On May 15, 2013, a government appointed delegation composed of members of parliament and cabinet hereinafter referred to as the Dialogue and Reconciliation Committee (DRC) made an official trip to Kismayo, the capital of the Lower Jubba region. Among the mandates of the delegation were to:
- To liaise with the Kismayo organizers of the Jubba conference and start dialogue on how to turn the conference into a regional reconciliation conference and make the process compliant with the Provisional Constitution;
- To conduct public consultations with the local communities and solicit their input on possible durable solutions;
- To review the status of the Somali National Army in Kismayo and assess its needs in order to professionalize it;
- To liaise with AMISOM (KDF) and assess its operational protocols as outlined in the MOU between AMISOM and the Somali government;
- To make oral representations to the IGAD fact-finding mission of the 17th and 18th of May, 2013 on the government policy position visa-vis the formation of regional administrations in the region and the federating process;
- To provide access to the local community leaders and elders so that they could make personal representation to IGAD mission in Kismayo;
- To provide a written report and a policy option to the President and the Prime minister.
Activities of the Dialogue and Reconciliation Committee (DRC) during and after the IGAD mission presence in Kismayo.
- The DRC made wide public consultations with the local community and traditional leaders and also facilitated their access to IGAD so they could make representations to IGAD;
- After it became apparent that the oragnizers of the Kisamyo conference made a hasty and ill-timed decision when they announced a presidency for ‘Jubbaland’, the DRC continued dialoging with the Rask Kamboni leadership on keeping the peace in the city until a peaceful political settlement is reached.
- The DRC made oral presentations to the IGAD mission to the effect that:
a) The process to be aligned with the Provisional constitution;
b) The process to be lead by the Federal Government;
c) The process to be preceded by a genuine regional reconciliation;
d) The momentum should not be lost on the concerted efforts to defeat Al-Shabab.
4. The DRC conducted periodic meetings with the AMISOM leadership in Kismayo and found that there is communication gab within AMISOM command and also between AMISOM (Kismayo) and the Somali government.
The Somali Government’s legal and Constitutional opinion on the Federation Process and its stand on the ‘Jubbaland” issue as presented to the IGAD fact finding mission in Kismayo.
- In August 2004, the delegates of the national reconciliation conference in Embgathi adopted a transitional federal charter that charted a political process which will inform the transitional process. Among other items, the Transitional Federal Charter called for the completion of the federal constitution that shall act as a binding document between citizens, regions and the state.
- At the time, it was believed that the constitution will be drafted and completed within two years and half period; however, through a culmination of unforeseen circumstances and political failures on the part of the successive governments, the process of completing the constitution took more than eight years.
- On august 1st 2012, the Provisional Federal Constitution was adopted in Mogadishu and for the first time since 1969 a government based on a constitutional foundation was formed. Although the constitution serves many purposes, it is also a symbolic document that provides a platform for political discourse and resolution of conflicts.
- For the purposes of the Jubba land issue, the constitution is explicitly clear on how the federation process will be undertaken within a constitutional framework as provided for in article 49(1) and also article 111E. The principles laid down in these two articles are as follows:
- The number and boundaries of the federal member states will be determined by the parliament on the recommendation of the Boundaries and Federations Commission, which is an independent Constitutional body.
- The Commission when making its determination on member states and boundaries will take into account demographic and cartographic information as well as political, economic and social criteria and recommend to the federal parliament the demarcation of bounders of federal member states.
- Moreover, member state boundaries will be based on the boundaries of the administrative regions as they existed before 1991, and the act of federation shall be a voluntary decision between two or more regions that may merge to form a federal member state.
- From the preceding principles mentioned above and laid out in the constitution, it is clear that for the purposes of the process of federation or for any other matter within the constitution, the constitution does not recognize clans but rather only recognizes individual citizens and political and administrative regions.
- By basing the future federated units on the pre-1991 administrative regions, the constitution presupposes that administrative regions will be formed that will voluntarily make a decision to merge with other regional administrations, and presumably through the voice of some form of an assembly that is representative and inclusive. Once the regional administrations through their assemblies make it publicly known their intention to federate with other units, they will jointly submit an application for a determination of their eligibility to federate pursuant to the principles laid down in the constitution.
- If the Boundaries and Federation Commission finds a determination that the applicant fits the criteria of the federation as laid down in the constitution then it will send a recommendation to parliament which after deliberations will make a final decision.
- The organizers of the Jubba Conference have not followed the constitutional requirements agreed upon under the constitution as the delegates in this conference were not delegates representing distinct regional administrations since no single administration has been formed in these regions. The argument of the conference organizers is that all clans and communities residing in the region have come together to federate those regions. Unfortunately, the constitution as pointed out above does not recognize clans and it has set down an elaborate process of federating the country through a proper and constitutional means, with the Federal Parliament having the final say.
- As it stands, there are other groups claiming to form a federated unit encompassing six regions, which include the Jubbas, and Bay, Bakool and Gedo, essentially making a claim on the same region that the Jubba land organizers are laying claim to.
- Additionally, the Federal government has made it clear repeatedly to Galmudug for over two years that it is not a Federal unit as it has not satisfied the criteria and procedure for membership.
- The wisdom behind article 49 and article 111E and the whole idea of creating a Boundaries and Federation Commission was to avert this kind of confusion whereby clans, militias and other political groups create a dispute and conflict on overlapping territories and regions.
The Constitution is at this moment by far the only binding document we have, notwithstanding its limitations. It is thus incumbent on all parties to conduct their political discourses, grievances and agendas within the framework of this document. Otherwise, we will be boxed into a slippery slope whereby every group including parliament, the judiciary and the executive will treat the Constitution as a mere nuisance and we will revert into a new posture of anarchy and civil strife.
The IGAD Communique of May 24, 2013
On May 24, 2013, IGAD issued its Communique based on its findings on its fact finding mission and declared the following principles going forward on the Jubba issue:
- That all parties adhere to the 5 principles laid down in the 21st Extra ordinary meeting of IGAD dated May 3, 2013 which are anchored on the following principles:
- Leadership of the government of the Federal Republic of Somalia in the process;
- Respect of the provisional constitution of the Federal Republic of Somalia;
- All inclusive consultative process with the peoples of Somalia;
- Supportive role of IGAD based on the priorities of the Somali government; and
- Fighting the Al Shabab as the primary focus of the Somali Federal government; AMISOM; regional and international partners;
- That the Federal government lead the process and convene a regional reconciliation conference as soon as practicable.
- That regional administration building efforts be in line with the provisional Constitution.
To the Somali government
The DRC recommended to the government to:
- Urgently re-open channels of communication with all relevant stakeholders of the Jubba.
- Convene a regional Jubba reconciliation conference in Mogadishu as soon as practicable, with a view to chart a mini Road Map on the establishment of an interim administration and formation of permanent regional administrations in accordance with the constitution.
- The government when convening the reconciliation conference shall ensure that the process is transparent, inclusive and representative of all stakeholder communities of the region.
- The government shall complete and table in parliament relevant legislations in order to stand up the Boundaries and Federations Commission mandated under the constitution.
- The government shall embark on a trust and confidence building measures aimed at assuring all stakeholder communities of the government’s bona fide intentions.
- That the government invite UNSOM, AU, AMISOM, IGAD and other international partners to play an active supportive role in the proposed reconciliation conference.
- The government shall integrate the various militia forces into a unified national command of the Somali national army as called for by the IGAD Communique of May 24, 2013.
- That the government shall refocus its efforts and continue the momentum in defeating Alshabab and liberating the whole jubba region in conjunction with AMISOM forces.
To the African Union
The DRC recommends to the African Union to:
1. Review the Mission of AMISOM and ensure that all sector two leadership in Kismayo adhere to the terms of agreement contained in the 2007 MOU between the Somali government and AMISOM, and also to improve the communications protocols between AMISOM (Kismayo) and the Somali government.
To the International Community
The DRC recommends to the International Community to:
- Respect the sovereignty, territorial integrity, political independence and unity of Somalia as enunciated in Resolution 2102 (2013) and adopted by the United Nations Security Council at its 6959th meeting on May second, 2013.
- Financially, technically and politically support the Somali government in its efforts in building local administrations in the newly liberated areas in line with the Federal Somali Provisional Constitution and also consistent with the IGAD Communique of May 24, 2013.
- There are report indicating that African Union peacekeepers that control the port city of Kismayo have allowed ships carrying charcoal to leave, violating a UN Security Council resolution 2036, a presidential order and Somalia’s Laws. Futher, there are other reports to the effect that Somalia’s charcoal exports, which never came to a complete halt, continue to benefit Al-Shabab an estimated US$ 100,000 per day even after they were forced out of Kismayo in September 2012. Today, an estimated 10 Million sacks of charcoal are piled up waiting for export from Kismayo port to Saudi Arabia, United Arab Emirates, Eritrea and Kenya.
The International community should help the Somali Government in its effort to put to halt Charcoal exports from Kismayo by tying their support of AU Mission in Somalia and AMISOM’s cooperation in supporting UNSC resolution 2036 regarding charcoal export from Somalia.