Labelled as a failed state, Somalia is finally on the long road to recovery, but is their new constitution holding them back?
Whilst the country’s new constitution may be deemed a success, many have argued that it is just a $60 million panacea that is creating further problems for the re-emerging Somali democracy. The aim was, amongst other things, to promote human rights, however, the 2012 constitution legalises discriminatory ethnic nepotism, or clanism, in the form of the so-called 4.5 formula. This is the system, which gives the each of the four major Somali clans 61 seats of the new 275-member Federal Parliament, leaving the remaining 31 seats for the combined remaining minority clans.
However, the constitution goes further, incentivising clan-based balkanisation. It has already grandfathered certain clan-based political entities such as Puntland and Galmudug as semi-autonomous federal states, and it grants them discretions to go into deals with any foreign entity they wish for oil explorations, mining of minerals etc.
On the one hand, Article 44, which deals with Natural Resources, states that: “The allocation of the natural resources of the Federal Republic of Somalia shall be negotiated by, and agreed upon, by the Federal Government and the Federal Member States in accordance with this Constitution.”
On the other hand, Article 142 (1), which deals with existing Federal Member States in Somalia provides a major loophole. “Until such time that all the Federal Member States of Somalia are established and the adopted Federal Member State Constitutions are harmonized with the Somali Federal Constitution, the Federal Member States existing prior to the provisional adoption of this Provisional Constitution by a National Constituent Assembly shall retain and exercise powers endowed by their own State Constitution.”
While the constitution is peppered with enough articles to keep the fire burning, it is in these two particular articles that the so-called Ghost-lords, those keen to exploit the country’s natural resources, hit the jackpot. The constitution restricts the Federal Government from engaging in any deals on natural resources, yet allows the Federal States to engage as they please. Under such temptation, who—save a few—would be interested in working and sacrificing to save and sustain the state?
Eight months ago, like a few other insightful analysts, I warned against the danger woven into the new constitution. In an article (bluntly) titled A Constitution of Ambiguity and Deferment, I wrote: “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.”
The foundation of every peaceful nation is an unambiguous set of laws or a thoroughly negotiated and ratified social contract. As I argued in the aforementioned article, this basic premise could not have been lost on the framers of the current constitution. By framers, I refer to those who, perhaps due to their naïveté or political myopia, decided that the best way to sustain peace in Somalia is to put the cart before the horse.
They accepted a dysfunctional constitution that did not clearly define demarcation of authority, land ownership, or resources-sharing as a legitimate prerequisite to “emerge out of the transitional status”.
So, the moral argument that helped pass this embarrassment of a constitution was: “Reconciliation can wait. We are sick and tired of being in transition; let’s just accept anything handed to us in order to regain our sovereignty.”
What is the point of sovereignty, if the treatment is more or less the same? Sovereignty is not a badge worn as a façade; it is a right, and for that reason, it should be demanded and protected.
Since the matter at hand cannot be remedied by judiciary intervention, as that branch is currently being revamped, and this matter needs more than constitutional interpretation, the Federal Parliament has the duty to step in to deescalate the steadily mounting clan tension, and fix the constitution. As an institution that includes practically all Somali clans, the Parliament indeed has the legitimate authority.
Speaker Mohamed Osman Jawari and all MPs who are willing to put their nation’s interest above their personal, clan or regional interests should take this bull by the horns.