Somalia's Constitution of Ambiguity and Deferment

If constitutions are supposed to make boundaries of the government’s legitimate authority over its citizens and state or regional administrations clear, Somalia’s new constitution oddly falls short. While there are some bright provisions in the new constitution, much of it can be aptly described as uncertain assurances and a ‘not now’ legal document!

However, one would have no idea if one’s information about the new constitution was only through the uniformed report of the international media, the UN and a handful of countries of well-wishers who were quick to congratulate Somalia for its “historic accomplishment”.

There is no dispute that what took place in Mogadishu on August 1, 2012 is an historical milestone, or at least it has that potential. And before history renders its final judgment, I would like to say that the forecast is eerily grim. And if the new parliament does not make the necessary changes as soon as it assumes its responsibilities, the new constitution could, among other things, undermine the profound security and stabilization accomplishments of recent months.

Unlike new constitutions that are crafted to solve existing problems and prevent potential ones—here, South Africa’s comes to mind—this one seems to have been crafted to replace an existing one in order to create future problems that are far beyond its capacity to deal with or defuse them.

Somalia was in war with itself for over two decades mainly because of injustices and abuse of authority, clan based resource and territorial zero-sum competition, culture of impunity and lack of reconciliation. All of which the new constitution either superficially mentions or outright differs them to an indefinite time in the future.

Under the new constitution, we have federalism as a system of governance which virtually institutionalizes the Balkanization of Somalia into clan fiefdoms without any clear territorial size or borderlines. We have federal states that no one knows their number or cap. We have a Federal government that no one knows where its authority ends and that of a federal state begins. We have recognized national resources without any clear identification of who has the right to market or contract out these resources, administer its revenues, or protect the overall national interest. However, the new constitution is not without a pacifying gimmick: Sharia (Islamic law) in every court and universal education for every child. Never mind the practicality of these two rights in terms of human and financial resources, and never mind what form of Sharia.

Moreover, the new constitution gives freehand to all kinds of greedy and corrupt politicians to contract out or practically sell every inch of the country for quick cash, and in doing so, weave a web of domestic, regional, and international legal and other disputes that could prove impossible to untangle. Contracting craze for exploration and other interests was already underway despite the fact that the now defunct Federal Transitional Parliament has passed a bill declaring that no branch of the government (therefore, no region or a local administration) could get into a contract with a foreign country or an international entity while it is still in transition. It is widely believed that is exactly why the Ghost-lords declared the old Parliament irrelevant while retaining its ousted Speaker of the Parliament as one of the key political actors without an institution or an office to represent. To many Somalis this mini chapter of history is a constant reminder that Somalia is herded by wishes and commands other than its own.

No one can claim with straight face the outcome or arrangement that recently transpired in Mogadishu was a wholly indigenous initiative or process. It is widely recognized as a product of ‘carrot and stick’; or more specifically, on of blackmail, groupthink and outright coercion of certain political functionaries and their cohorts. These are political actors who readily accepted subservient roles to please a man who has been granted the mandate to function as a colonial governor of Somalia—the undisputed political Don—the UN Special Representative, Ambassador Augustine Mahiga, and out of fear that emanates from the specter of the Ghost-lords.

There are those who insist that the new constitution was approved through a legitimate democratic process of representation- 825 Constituent Assembly made of men and women from the entire clan spectrum. On the other hand, there are a great number of Somalis who are profoundly offended by what they describe as ‘muzzle democracy’ in which the Constituent Assembly—like the 135 Traditional Elders who selected them—were openly told they had no authority to change anything in the new constitution, and that they were simply assembled to approve the document.

That notwithstanding, the new constitution is the law of the land and amending it or discarding it all together would have to be done only through the legal process.

The new parliament is the only institution capable of salvaging Somalia and restoring the inherent dignity of our people. Therefore, once their selection becomes official, the new parliament should unequivocally assert its legitimate authority as the legislative body of the nation. It should also render any previous agreement, nod or wink that is there to restrict or deny them the right to exercise their constitutional authority as law-makers null and void.

The new Parliament should make ‘a thorough review of the new constitution’ its first order of business. It should appoint an ad hoc committee made of a certain members of the parliament along with a few citizens with expertise in constitutional law and with patriotic credentials to carry out that task. This committee should focus on the critical areas that the new constitution deferred them indefinitely: reconciliation, system of governance, boarder demarcations, and rights to natural resources. They should also determine what structure or whose commandership should all of the active militias come under?

The fallout of the new constitution is far beyond simply frustrating the romantic nostalgia for unity and sense nationhood as some like to dismiss it. The new constitution exposes an already traumatized nation to more exploitation and bloodshed. Bluntly stated, this document poses a serious existential threat that should be of a concern to anyone who cares about Somalia. The work ahead is by no means an easy one as swimming against a ferocious political current is the only hope for survival.

Abukar Arman is Somalia's Special Envoy to the United States. He is also a widely published political analyst.

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