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      Questions on the Questionable Somali
Draft Constitution
By Amina Ahmed
April 26, 2012

“The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government." - Patrick Henry

The primary legal reference, Black’s Law Dictionary defines constitution as “The fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties.” This means that a constitution establishes the type of government of a nation; the organs of the government and delineates their powers and their reach; and creates the checks and balances that make them co-exist. A constitution would also specify the rights and guarantees of citizens and limit the government’s interference with those rights.

The constitution of a nation is regarded as the Supreme Law from which all other laws derive their validity. A constitution does not encompass all the laws of the nation but provides for the framework and government branches that would create all other necessary national legal code for the nation. As the Supreme Law, any national laws that are inconsistent with it shall be deemed void.

Constitutions are considered as a “social contract” or legal instrument between the people and their government. Constitutions should be formed by the wills and agreements of the citizens of the nation. The constitutional making process starts with the drafting of a document which is often delegated to a constitutional commission or a committee. Before beginning the drafting, at the start of this process, consideration should be given to whether to revise the existing constitution (if there is one) or create a new one, i.e., constitution de novo.      

Interpeace, an independent, international peace-building organization, publishes a handbook called ‘Constitution-making and Reform: Options for the Process’, which lays out ways “to create a modern constitution that is legitimate in the eyes of the people and that has been developed through an inclusive process.” The handbook’s guiding principles on constitution-making emphasizes public participation, inclusivity, transparency and national ownership. The current Somali constitution-making process contravenes all these principles – there is no public participation, no inclusiveness, no transparency and definitely no national ownership. Interpeace cautions that “Constitution-making may be a great nation-building event, but if the wounds are too recent, or the process is not handled with extreme delicacy, the process may give rise to renewed or new conflicts.”
The Transitional Federal Government (TFG) of Somalia, has three months left in its term and is in a great rush to finalize the Consultation Draft Constitution (CDC) of the Somali Republic. It is reported that the CDC was drafted by the Independent Federal Constitution Commission (IFCC), a commission formed in 2006 that was initially made up of fifteen Somali-born and foreign experts. The most current IFCC committee consists of 27 persons – 20 men and 7 women – and is headed by Abdillahi Hassan Jama. In December 2011, the Prime Minister convened a Somali Constitutional Committee of Experts who met for four days to support the work of the IFCC and provide assistance in finalizing the draft. The CDC is published on the website dastuur.org and is available in Somali (Maxaa), Somali (Maay), English and Arabic. The lengthy document has 179 Articles, 3 schedules, is 71 pages long (69 pages in Somali) and contains a plethora of legal provisions, a number of which abrogate each other. For example:

Article 22 - (1) A person is free to practice his or her religion. (2) No Muslim can renounce Islam.
Article 22aad (1) Qof kastaa wuxuu xor u yahay inuu ku dhaqmo diintiisa. (2) Qofka Muslimka ah kama bixi karo diintiisa.

Just browsing through all 176 articles you will find the CDC as an uninspiring and un-illuminated document that seems to be written by someone unfamiliar with the real priorities of the fragile nation of Somalia. The document does not address the nation’s recent chaotic history, contains no reconciliatory language and acutely lacks vision for the future. Parts of the document would make you laugh for their absurdity. Here are two examples:

Article 23 (2) A person has a right to seek and receive ideas.
Article 23aad (2) Qof kastaa wuxuu xaq u leeyahay in uu raadsado, helana afkaar.
Article 32 (3) A person has the right to social security, including social assistance.
Article 32aad(3) Qof kastaa wuxuu xaq u leeyahay daryeel bulsho, oo dhammaystiran.

Really! Do we need a document to inform us on the right to seek and receive advice? I also hate to ask, but how does the government plan to ensure this right to social security and social assistance? This quickly drafted and lengthy document is filled with too many provisions and high platitudes that are impractical and unenforceable. It is a given that if this draft constitution comes into force, the first persons to disobey the constitution document would be the government!

Good constitutions take time, going through many drafts and many revisions before a document can be published for public review. For example, the United States constitution, the shortest and least amended constitution in the world was passed only after many years of debate. The USA declared independence from Great Britain on July 4, 1776 and the Constitution was adopted September 17, 1787, eleven years after independence.
The CDC is date stamped 30 July 2010, and I assume that is when it was promulgated for public commentary. However, it only came to the awareness of the Somali people just in the past two months. A committee appointed to visit cities with large Somali populations, and hold consultative meetings to get feedback, failed to publicize those meetings and did not receive much turnout. Two such meetings occurred in the USA recently, and while I didn’t get an opportunity to attend any of them, I watched the youtube videos of both meetings.

In the sparsely attended consultative meeting held in the Minneapolis, the Somali Constitution Technical Expert (SCTE) stated in his opening remarks that there is a great need for a constitution document because it will direct the delegation of powers between the President, Parliament, and Prime Minister. The Somali TFG charter which has existed since the inception of the transitional government also delegates the powers between the transitional government entities but the TFG has conveniently disregarded it for years. Why would a new much longer document make any difference? When asked about what he thought of the draft document, SCTE admitted that he was no legal scholar and that there were areas on the draft document that he shared similar concerns with the Somali community of Minneapolis.

In Ohio, the SCTE framed the discussion around the articles on citizenship and many community commentators focused on this issue alone. When asked about the legitimacy of the draft document, and the lack of input and/or acceptance from Somali citizenry, the SCTE responded with the Somali idiom “Haddii aad tashan weyseen waa la idiin talinayaa” which loosely translates to “if you have been unable to direct/plan for yourself, someone will direct/plan for you” – raising many questions on whether that meant non-Somalis were directing/planning a constitution for Somalia? Why were they not cultivating Somali ownership of our most valuable national document, the Somali constitution? Had the committee held any regional consultation meetings within Somalia? Did the committee visit any cities in Gedo, the Jubbas, Bay, Hiiraan, or within the region of Benadir, where the TFG sits?

The SCTE in both meetings reiterated that the constitution was in a draft form and that they were there to gather feedback and this was not a call for an up or down vote on the document. He emphasized that this document had the potential to evolve and there would be opportunity to change it the near future. Well, we found out that is not true. A change in the near future is not envisioned in the CDC document. Perhaps, the SCTE was not familiar with this article.


Article 172. Restriction on amendment

No amendment may be proposed within the first seven years after the constitution comes into force, other than any amendments necessary to facilitate the participation of either or both Puntland or Somaliland.


Article 172aad. Xadididda wax-ka-beddelka dastuurka

Lama soo jeedin karo wax-ka-beddelid dastuurka todobadda sano (7) ee ugu horraysa dhaqangalkiisa, marka laga reebo wax-ka-beddelidda lagama-maarmaanka u ah fududaynta kas-soo-qaybgalka buuxa ee Somaliland iyo Puntland ay ugu soo qaybgalayaan nidaamka Federaalka.

Both USA meetings, dubbed public consultations on the draft constitution, were admittedly rushed and the communities of Columbus and Minneapolis were informed that there was very little time for deliberation or commentary. Missing a valuable opportunity for increasing legitimacy for the process, the committee made no genuine effort to engage in public education about the process; nor did it share how the comments/feedback would be incorporated into the draft. Therefore, it was not surprising that in his most recent interview given on VOA, the Minister of Constitution, Mr. Abdirahman Hosh Jibril stated that the constitution is now in its final draft and ready for approval to become a Provisional Constitution. Mr. Hosh made no mention of the numerous frustrating and disappointing comments received from the public consultation meetings, nor did he share whether the feedback received was incorporated into the final draft. Mr. Hosh was asked whether there was a requirement to approve this Constitution, and he responded that there is likelihood that the constitution may not get approved because of lack of agreements. I think this indicates that he is aware of the flaws within the document and with the process of this constitution-making. The next day, Mr. Hosh’s boss and the current Somali TFG Prime Minister Abdiweli M. Ali put a nail in the coffin by issuing a press release celebrating the ‘finalization’ of the final draft of the constitution on April 24, 2012.

Still major questions remain on this Questionable Constitution, and perhaps in the spirit of transparency and trust-building, the TFG and/or the IFCC should answer the following ten questions:

  1. Why is a new constitution necessary at this point in our history? Explain how a new constitution would move the country towards conflict prevention, reconciliation and peace?
  2. Why was the timeframe for public debate on the draft constitution so short? Why is there a big rush?
  3. Has peace evaded Somalia because we don’t have a new constitution?
  4. How does the constitution address the most urgent issues for the country – security, peace and unity?
  5. Is it necessary to create a new constitution in order for the transitional period to end?
  6. How does this constitution help in ending the conflict between the rival militias, the extremists and the TFG?
  7. Will this constitution contribute to reconciliation and reunification with Somaliland?
  8. Why does the constitution need to address areas of law that can be covered in the national legal code, i.e. revocation of citizenship rules, independent education institutions, abortion, an adult’s duty to care for parents etc.?
  9. What happened to the feedback and concerns received from the public consultation meetings? Will they be printed and shared with the public?
  10. Should this constitution-making process be shelved and the TFG, instead of spending energy and resources on writing a constitution that provides “right to life” (Art. 18), focus itself on upholding the rule of law in a more practical way and provide for security, food, housing, jobs and education for its citizenry?

Every Somali citizen has a duty to read the draft constitution document in its entirety and every Somali citizen has the right to reject it, if they deem it unworthy of our beloved country. It is my humble opinion that when peace is brokered with all parties of the Somali conflict, and all can come to the table, along with Somaliland, then and only then should a constitution-making process be undertaken. Until then, Soomaalida u diida Ceeb!

Amina Ahmed

Other articles that the author has published at WardheerNews:

- The Importance of Somalia's Exclusive Economic Zone


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