By Abdurahman Hosh Jibril
As the combined forces of the Somali national Army and AMISOM are taking armed offensives to the last remaining strategic holdouts of Alshabab, a political storm is raging in most regions recently recovered from the grip of Alshabab forces-from the Jubba regions in the southern most area of Somalia, to Bay, Bakool, Lower Shabelle, Middle Shabelle, Hiiraan, Galgaduud and beyond. The genesis of these conflicts are centered around opposing views on governance configurations for these regions, and most particularly on competing interpretations of the federating process articulated under the Somali Provisional Constitution, which was adopted in August 2012. The result is the chaotic manner in which various politicians/strong men are making a constellation of arbitrary claims on putative federal units that are merely and realistically mirages, and in processes that are not compatible with the relevant provisions of the constitution; hence, the claims and counter-claims of territories on overlapping regions: the six state South West state (Lower Shabelle, Bay, Bakool, Gedo, Lower Jubba and Upper Jubba) on overlapping territories of the Jubbas (Gedo, Lower Jubba and Upper Jubba,) Three State South West state ( Lower Shabelle, Bay and Bakool) on overlapping territories of the South West state and the new Shabelle State( lower Shabelle and Middle Shabelle) on overlapping territories of the Three State South West state. More worrying though for policy makers, is the fact that there is an undercurrent of clan chauvinism driving the proliferation of these copycat claims and counter claims for power and land that if not properly managed , could cause a renewed clan conflict and civil war.
The purpose of this paper is to advance the thrust and substance of the debate on the constitutional dimensions touching on governance, formation of civil administrations in the regions and the contentious issue of Federalism, a governance model agreed upon by then stakeholders in 2004 in Embagathi, Kenya, reflected in the 2004 Transitional Charter and subsequently enshrined in the current Provisional Constitution. The paper further would explore viable and peaceful options on the way forward taking into account diverse political views on these subjects, and the clan and regional grievances seemingly shaping these opposing and trenchant views.
A little Background
As Somalia descended into a self-destructing and anarchic landscape in the early 1990s, the national state and its institutions vanished within months, paving the way for warlords with armed clan militias staking claims of governance in various regions of the country, with some localities such as Mogadishu, the capital, divided along clan and sub-clan lines. The armed conflicts resulted in the destruction of lives and properties and human displacement on a magnitude and scale unheard of in Somali history. In 2000, after 10 years of statelessness and warlordism, the government of Djibouti hosted in the city of Arta, Djibouti, a national political conference for Somalia aimed at resuscitating the Somali national state and a cross clan Somali delegations were invited, which included key former combatant warlords, civil society members, women and religious scholars. The conference successfully concluded with the formation of a national assembly, which elected HE Abdikassim Salad Hassan as the first transitional president since the civil war began in 1990. Because of the prevailing anarchy and continuing civil war in many regions of the country, in addition to an indifferent international community, which was blinded by its jingoist lens of viewing events in Africa and elsewhere on a narrow scope of the “ War on Terror”, the first post-civil war transitional Somali government imploded in no time because of lack of capacity, institutions and resources. It also lacked a national army that could exercise a legitimate monopoly on violence and thus subdue armed spoilers of the peace process.
In 2004, a subsequent conference was hosted in Embagathi, Kenya with the support of IGAD, the government of Kenya, the AU and the UN and this time around most armed groups and members of civil society were invited in order to deliberate on all contentious issues, agree on a cessation of hostilities, draft a national charter which could serve as a precursor to a national constitution at a future date, and agree on the formation of a broad based government that can bring about peace and engage in economic and social development. At the conclusion of this long and arduous conference, the stakeholders signed a cessation of hostilities document, agreed on a National Charter and formed a 275 parliament that elected HE Abdullahi Ysusf Ahmed as the second transitional president of Somalia. The Charter that was adopted in 2004 directed future governments to transition from the Charter into a more permanent modern constitution and it pointed out to a timeline of 2 years to complete a draft. In addition, a significant number of stakeholders made it sure that the Charter referenced a governance model that is Federal; hence the title of the 2004 charter: The Transitional Federal Charter of Somalia.
It should be noted that at the conclusion of the Embagathi conference, the expected outcomes of this political dispensation by stakeholders as well as the international partners were that by 2006, a draft constitution would be completed and requisite legislative and institutional arrangements for preparing the country for a mulit-party and democratic electoral system based on universal polling would be prepared in time for a 2008 elections. It was also hoped that a formula on the federating process would be agreed upon during this period, so that by 2008, a federal arrangement would materialize. Since hindsight is uniquely 20/20, no one anticipated that for the next 7 years on, the country would be mired in an armed conflict with a well organized, well armed and well trained terrorist group operating within the vortex of Global Jihadism.
A background on the rationale for or against Federalism
Proponents for Federalism are not monolithic in their articulation of their rationale though they all converge on the end result. It is noteworthy to mention that both groups-For or Against Federalism-, while rational in their arguments and positions for the most part, nevertheless, the arguments of both camps contain doses of irrationality typical of conspiracy theories. Furthermore, there is a misconception that the opposing groups fall neatly into members of different and discreet clans, but that is not case as you will find both proponents and opponents in all clans, including those in Somalialnd. The earliest proponents of Federalism were elites within the Digil/ Mirif clans who articulated a federal vision during the struggle for independence from Italy in the 1950s and most commentators state that this was a conscious choice because the D/M community were fearful that once the Italian colonialists leave and the Somali people begin exercising self rule, that they would be dominated by the non-D/M clans( Maxaa Tiri) and stripped of their rights. Among the lead proponents of this view was the late Mr. Abdukadir Zoppe, a key Minister in the first post-independence government and a very astute politician.
The second proponents of Federalism are Puntland and Somaliland. The rationale of this group of proponents is rooted in historical grievances anchored on violations of human rights, and also “facts on the ground”, ostensibly premised on the fact that both these regions have institutionally organized their communities into respective governments (with varying degrees of successes) that have parliaments, executive, judiciary, police, revenue collection systems, and district level civil administrations. Somaliland’s grievance goes much deeper than Puntland. The substance of Somaliland’s deeply and widely held grievance is that in 1988, the national army of a functioning Somali state unleashed destruction and terror on the Somali citizens in that region, terror that included air bombings on Hargeisa and other towns, resulting in an exodus of families, children, women and the vulnerable into refugee camps in Ethiopia with squalid conditions. On the other hand, some Puntlandlers cite the 1991 civil war as a grievance marker since thousands of their members had to flee from Mogadishu where significant numbers of them called home for generations. Both groups further claim that successive governments after independence failed to provide economic development to their respective regions by way of projects and that power, wealth and even services were concentrated in Mogadishu to the extent that many services could only be accessed in Mogadishu to the detriment of citizens living elsewhere.
The third proponents of federalism are found within Somali academic circles and practitioners of peace building. The premise of their arguments is thus: In divided societies with diverse historical narratives of grievances and counter-grievances, in countries were there are separatist or secessionist tendencies and in societies coming out of nasty and prolonged civil wars, it is best to diffuse power vertically through the enshrinement of the principles of separation of powers in the constitution, and horizontally through decentralization, devolution or federation. This group further posits that a unitary system is a disincentive to economic development of the regions and a dangerous incentive to massive urbanization of a few big cities as young people in the regions would flock to major cities in search of opportunities, a trend that would depopulate the regions and exert demographic pressure on a few cities. The penultimate argument in this thesis is that the regions would turn into pockets of small towns characterized by poverty and inequality while major cities would also end up with massive poor and uneducated migrants from the periphery whose only recourse to eke out a living would be a life of crime and anti-social behavior. To put it in another way, decentralization, devolution and federalism would, the argument goes, provide the regions with the appropriate powers (through some slice of the national tax base, resource sharing, equalization through the national budgeting regime) to enable them engage in economic development and provision of services to citizens residing in these regions, and also as a result contribute to the national economy.
On the other hand, those against federalism acknowledge the historical grievances of communities mentioned above but they hold that those historical wrongs can be rectified through a unitary system of government that upholds national unity and territorial integrity. They assert that it was not the unitary system per se that is culpable for the atrocities of the past decades but the absence of rule of law, participatory democracy and a robust constitution that could serve as a bulwark against human rights violations of citizens. They further argue that economic development eluded all regions (and not only Somaliand and Puntland) during successive governments, since governments post-independence governments placed priority on militarization and thus allocated significant resources to the army and armaments. This group believes that only a unitary system with built-in constitutional safe guards can accomplish what a cumbersome and myriad of governments and sub-national governments in a federal arrangement cannot do. Put another way, preserve the unitary system but improve its governance and bring it up to international standards, essentially saying, “ Do not throw the baby with the bath water”. As a reflection of the level of mistrust over this issue, some proponents in this camp, including Somali academics, openly profess that Federalism is a foreign imposition and that Ethiopia and the USA are scheming behind the scene, and that federalism is a Trojan horse designed to divide the Somali people, weaken the Somali nation through balkanization into self autonomous regions and then loot the natural resources under the cover of international cooperation. To this group, the grievances of the DM people and those of members of Somaliland and Puntand fall on deaf ears.
End of the Transitional Charter and the Beginning of the Constitutional regime
June 2011 to September 2012: Enter HE President Sheikh Sharif Sheikh Ahmed, HE Speaker Sharif Hassan Sheikh Aden, currently a member of parliament and active in the ongoing debate on federalism and HE Prime Minister Abdiwali Mohamed Ali Gaas, currently the President of Puntland State and one of the most important stakeholders on the debate on federalism and constitutional development. The purpose for starting with this political period is not to discount or ignore what former governments have accomplished with regard to the constitutional development of Somalia. As a matter of fact, HE Prime Minister Ali Mohamed Ghedi deserves credit as he established the Independent Federal Constitutional Commission in 2006 and it is the IFCC that completed the first draft of the constitution in July 2010 (known popularly in Somali as the Dastuurka Qabya Qoraalka Somalia.) Both HE Prime Minister Omar Abdirashid Sharmarke and HE Prime Minister Mohamed Abdulllahi Farmaajo also continued with the supervision of the drafting process of the IFCC and therefore deserve credit. The reason for starting with this period is to set the stage for the discussion of the nature of the federal system we have in the provisional constitution and how understanding it can assist us in devising a formula that can provide strategic resolution of the current chaos attending this subject. The other purpose for starting with this period is also because during this period, I was the Minister in charge of Constitutional Affairs, in charge of overseeing the completion of the draft of the constitution and its adoption as well as end-of-transition processes, and as such I can offer a front-row view account of History during this short period, known as the Road Map Era.
For a full account of the tumultuous negotiations, political grandstanding and bickering surrounding the completion of the constitution and the colorful characters in that cut-throat political drama, I will leave for another day, perhaps in a book form, but for now this paper concentrates on the debates on Federalism leading and up to the adoption of the current text, the 2012 Provisional constitution.
Two salient points are worth highlighting here: The Federating process and Power and Resource arrangements within the projected federation. During the final drafting and negotiations, the federating process was vigorously debated and some of the debates actually anticipated rather presciently the current political shenanigans going on in the Jubbas, Bay and the Shabeelle and the new “ Presidents” sprouting by the day, and that is why elaborately worded articles were included in the constitution so that the federating process would be regimented in a transparent constitutional framework with no room left for arbitrary measures by groups or individuals to circumvent the process.
For the purposes of the federating processes, the constitution has explicitly made it clear 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 its recommendations to the federal parliament including respective demarcations of bounders thereof, 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 decisions to merge with other regional administrations, and presumably through the voice of some form of a regional 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. In the final analysis, it is worth repeating that the whole wisdom behind article 49 and article 111E and the whole idea of creating a Boundaries and Federation Commission was, in the mind of the drafters and negotiators of the constitution, to avert this kind of confusion whereby clans, militias and other political groups create a dispute and conflict on overlapping territories and regions.
When the Jubbaland issue gathered storms around April 2013, this author and other colleagues raised a flag and warned that if the federation process is not conducted in a manner that is not transparent and is not consistent with the constitution, then we would open floodgates, resulting in clans and individuals copycatting the same Jubba process. It is worth highlighting too that most members of the international community within the Nairobi cluster did not want to hear inconvenient truths and were prepared to support a process that contravened the constitution, notwithstanding the fact that their governments donated millions of Dollars on the drafting and completion of the constitution for a period of 8 years.
Now, almost two years after the adoption of the Provisional Constitution, and almost a year after the Jubbaland crisis, the chickens are coming home to roost, and mainly because Somali some Somali politicians, the international community and the Federal Government of Somalia failed to respect and uphold the constitution, for various and disparate reasons I presume. The result is the current laughable spectacle in the Jubbas, Bay and Shabeelle regions where by entities be they clans or power hungry individuals are claiming and counter-claiming the same overlapping territories as their respective federal units. Now, the question is: Is it too late to reverse the ongoing tragic events and if not what is the proper and constitutional way forward?
The Critics: Some valid and some, not so valid
Before offering recommendations on the way forward, it is best to address the concerns of the critics of both the constitutional making process itself and the current process or lack thereof with regard to the federating process, as speaking to these concerns would sharpen the issues and hopefully shed light on the way forward. The most vociferous critics of the constitutional making process with regard to federalism are individuals who are neither constitutional lawyers, nor experts on constitutional theory, as typical of Somali intellectuals, but who are generalists who dabble on every discipline but are masters of none. It is the kind of individuals who do not engage in sustained study and reflection on the body of knowledge surrounding constitutional theory, constitutional making and constitutional building processes-individuals you will find one day writing on piracy, another day on disaster management and still another day on ecology or mysticism etc. On account of charity, I will not mention names. Still the questions that the critics pose are valid and deserve interrogation, examination and perhaps clarification.
The most recurring concern and critique is this and it shall be posed as a statement: The Provisional Constitution as a whole and in particular the sections and articles relevant to Federalism are vague and ambiguous and that is why we are having all these conflicting views and conflicts on Federalism. This brings me to the second salient point mentioned earlier above, which is power and resource sharing within the projected federation. This author admits that the constitution is, for example, silent on power and resource sharing and agrees that it is rather ambiguous. The constitution is also ambiguous in some other sections. But it should be pointed out that there is a method to this madness and the constitution is deliberately ambiguous because as much as a constitution is a legal document reflecting a legal contract with dry legal clauses, it is a also a political document, a conflict resolution tool and an instrument of peace building and peace making. In constitution making and constitution building best practice theories, this ambiguity is termed as “Constructive Ambiguity”. A clarification and illustration on relevant facts on “Constructive Ambiguity” is in order:
In May 2012 close to the finish line of the Road Map regime, a constitutional conference was held at the AU headquarters in Addis Ababa and attended by the three Principal leaders, The President, The Speaker, the Prime Minister, the Road Map signatories and many members of international community fronted by then Representative of the Secretary General of the United Nation to Somalia, HE Augustine Mahiga, a brilliant and progressive diplomat, a pan-Africanist who always had the interests of the Somali people in his heart but who was grossly misunderstood by the Somali elite with their conspiratorial dispositions forever on their antenna. An agenda item of the conference, among other items, was the finalization and harmonization of the Federalism section of the constitution and most specifically power and resource sharing formula to be drafted and agreed upon. As a matter of fact, the departing points and references, it was suggested, would be the final draft that the Committee of Experts (Speaker Jawari was the chair of the group) completed and it contained detailed formula for power and resource sharing and some parties advised that we should adopt those formulas; however, after a two day debate, it was agreed that it would be premature and unfair for the Road Map signatories to write and sign contract formula with respect to power and resource sharing when vast regions of the country and its inhabitants were under Alshabab writ. The parties scrapped the power and resource sharing clauses and left that for future negotiations at such a time when all regions are free and have formed their respective federal units. Had we gone ahead and included elaborate power and resource sharing formula into the constitution, the process would have been stamped as a fait accompli by the regions that were not present at the table in Addis Ababa in 2012, and conspiracy theories not being in short supply in this neck of the woods, the drivers of the process including this author would today be standing accused of various unfounded and heinous wrongs.
The draft was deliberately left “ambiguous” for broader constructive purposes. A political and constitutional ramification of that fateful May 2012 decision by the Road Map signatories, consequently, is that the Provisional Constitution of 2012 is silent on the nature of Federalism that is best suited for Somalia since the type and outlook of federalism, in a spectrum of federal configurations, is by nature determined by the extent and elasticity of the power and resource sharing formula contained within the constitution.
To elaborate further, there are two stages in constitutional formations; constitution making process and constitution building process and both processes have different philosophical underpinnings. Constitution making process is the initial stage of getting political opponents together, identifying contentious issues, negotiations, drafting to finally adopting an interim document. In our case, that odyssey started in 2004 with the signing of the cessation of hostilities, the adoption of a national Charter and culminated in the drafting, completion and adoption of the 2012 Provisional Constitution. By nature, during Constitution making processes in post conflict and divided societies, the primary stakeholders of the process are often elite political adversaries ostensibly representing or claiming to represent political segments of society, and as such it is best to ensure that the final document does not constitute a sharing of the spoils among these narrow base of stakeholders and also that the process does not bring about finality and closure to the national constitutional conversation. Rather, it is better that the constitutional product out of this constitution making process remains provisional, open ended and all contentious issues left out so that these contentious issues could be discussed and resolved in an inclusive, consensus driven process with a broader stakeholder base, including vulnerable groups. This open-ended constitutional conversation stage is the Constitutional building phase and in the Somali case, this process ought to have started in September 2012 right after the end of the transition, with the implementation schedule contained in Chapter 15 of the constitution as a blue print. The constitution building stage or the implementation stage is very crucial because it is at this stage where the overarching political vision of ensuring that the final text speaks to the democratic and peaceful aspirations of the people, and provides a coherent transition towards democratization and a culture based on rule of law, is meticulously concretized by establishing relevant legislations, independent constitutional bodies and other constitutional bodies that ought to have a supervisory or oversight roles
In the case of Somalia and particularly on the issue of federalism, it is during this stage, the Constitutional Building/implementation stage that a vigorous debate on federalism should have started and it did not, formally at least. Fortunately or unfortunately (depending on the angle one views this matter) the debate on federalism started last year rather reluctantly, with the proclamation of a super state by the proponents of the three-region Jubba state and it is now raging in Baydoa, Merka, Jowhar, Hiraan and central Somalia. Moreover, it is getting scary by the day as the process involved is veering off from a debate format to confrontational politics.
The Way Forward
As mentioned above, an important consequence of the May 2012 decision to defer the definition of the nature and extent of power sharing within the projected federation is that all regions irrespective of whether they were part of the 2011/2012 constitutional conferences or not now have a choice and say in the debate that will shape the nature of federalism the country would adopt. It is a level playing field. While many pundits and politicians view the current political manifestations in the regions as irreparable crisis, it is this author’s considerate opinion that this “crisis” indeed is an opportunity to vigorously and publicly debate the issue and arrive at a resolution on the matter, provided though that the process is guided by a coherent set of principles, and in line with the overall stabilization plan of the government and its partners. The debates and the processes should be structured, led by the federal government and anchored on the provisional constitution. Practically, the following principles and guidelines can steer the civil administration formation in newly liberated areas and also resolve the current stand off regarding the rushed-up parallel administrations in the regions mentioned above:
1. As a start all parties should make a commitment to the Provisional Constitution.
2. The guiding principles of administration building/stabilization that would lead to federal units should be guided by the bottom up approach articulated by the Local Administrations Act enacted by the Federal Parliament in 2013, and also consistent with the principles advanced by the Federal Government last year, subsequently adopted by IGAD and which served as the basis of the Jubba Agreement in Addis Ababa. Among some of those principles are:
- Leadership of the Government of the Republic of Somalia in the process;
- Respect of the Provisional Constitution of the Federal Republic of Somalia;
- All inclusive consultative process with the relevant stakeholders and community;
3. The concerned conflict parties should take a six-month to a year breathing space in which period all the liberated pre-1991 regions engage in forming regional and district administrations, together with respective regional assemblies that are genuinely representative and inclusive.
4. The regional assemblies thus formed shall start deliberating on how and which regions to federate with and through a motion put to a vote make the region’s intentions known to the public by way of an assembly resolution.
5. The Federal Government, especially the Ministry of Interior and Federal Affairs expeditiously establish crucial legislations relevant to the formation of federations, and also subsequently stand up component independent constitutional commissions thereof.
6. Upon the set up of all constitutional structures and legislations thereof, (including the Boundaries and Federations Commission) necessary for the federation process to take off, regional parties can then process their applications through these bodies.
7. The Federal Government (Ministry of Interior and Federal Affairs) should involve its international partners (IGAD, AU, UN) in the process on an advisory level for their technical support and for the utilization of their Good Offices
8. The Federal Government (The Ministry of Interior and Federal Affairs) starts public education and consultations in all regions of the country at the earliest time possible.
9. On a parallel level the Constitutional review and Implantation Commission in conjunction with the Ministry of Interior and Federal Affairs should convene a series of constitutional conferences whereby all regional representatives and other stakeholders are invited to deliberate all contentious issues regarding federalism and regional administrations.
Somalia is at a cross Roads. Having just about defeated Alshabab with the assistance of Amisom and having liberated much of the hinterland, Somalia now faces multitudes of pressing challenges-governance and civil administrations building, peace building and the laying of the building blocks of the projected federation-as it begins structured stabilization processes in most regions. It is also going through growing pains as diverse actors in the newly liberated areas are advancing competing views on the governance configurations of the regions and the federating process, notwithstanding the fact that the Provisional Constitution contains a blue print designed to guide the process. While a federal system was proscribed for the country by the then stakeholders in 2004 as a curative measure to foster peace and national unity for communities that went through a painful civil war and with disparate narratives of pain, the current political standoff in the Bay/Bakool/Shabelle/Jubba corridor may engender a renewed civil war if the process takes the shape of a quick-fix, shot-gun wedding type Federalism, and if the process is not managed properly through dialogue, public consultations and is not underpinned by a spirit of reconciliation. It is also very important that all parties, including the Federal Government upholds and respects the all principles relevant to the formation of civil administrations including the projected federation within the framework of the Provisional Constitution.
Abdurahman Hosh Jibril is the former Minister of Constitutional Affairs and Reconciliation in the Federal Transitional Government of Somalia that ended in September 2012. He is now a member of the Federal Parliament of Somalia.