Friday, March 29, 2024
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Democratic Transformation, options for 2016

By Mohamed Jama Aflaawe

Review and Implementation of the Constitution

Somalia voting
2016 election, Somalia

The timely Review and implementation of the provisional constitution is intricately part of the transition to democratic governance in Somalia. The implementation process is about setting up the mechanisms and passing the laws that will enable the constitution to be operational. Notable constitutional bodies are: Constitutional Court (The bill was drafted but has not been passed by the parliament); Review and Implementation Commission; Electoral Commission and Boundaries and Federation Commission; Establish Interstate Commission; Oversight Committee. The review process is about making the policy decision- the form of Government that is envisaged for Somalia, what is the form of the Constitution; these two issues encompass nature of federalism which the Provisional Constitution has been silent of. The review process chiefly requires the member states to be established so that these critical power sharing issues are negotiated between themselves and the federal government.

So what has been achieved in this constitutional process? The early period of constitutional implementation and review process met with great challenges, and has had far-reaching consequences for the review and implementation. There have been severe delays in setting up the required commissions and the passage of critical legislations thus begging the question of alternative modes for enhancing the legitimacy of the next government despite the fact that the Provisional Constitution lays out clear steps in the Final and Transitional Provisions, including steps for immediate implementation of the Constitution (refer to chapter 15). During the initial phase of implementation, the PC envisages passage of a series of laws and the creation of necessary institutions in order to give effect to the constitutional system and to rebuild the state.

In particular, Chapter 15 requires the quick establishment of an Oversight Committee of Parliament and a Review and Implementation Commission of technical drafters, which together will manage the production of a large volume of required legislation identified in the Schedules, and to oversee the implementation of the Provisional Constitution (Art. 133(2)(b)). The Commission has been formed but the oversight committee does not exist- the current oversight committee is for all intense and purposes a subcommittee of the parliament; like the finance or foreign affairs committee.

In addition, Art. 136 lays out a mechanism for adopting a series of amendments of the Provisional Constitution during the first term of the House of the People, to be followed by a referendum on the package. Additionally, the provisional constitution envisions that a census, an internationally supervised constitutional referendum and elections should be organized before the end of the transitional period.

Most of the critical institutions (including the oversight committee), as envisaged by the provisional constitution, do not exist. Even if such institutions are to be stood up, training, logistics and other arduous tasks will require time, perhaps a minimum of two to three years. The problem is compounded by the Somaliland constitution- more on below.

Constitutional Referendum: feasible options

The classic model for a Constitutional referendum would include the creation of an Independent Electoral Commission (IEC), which would be in charge of organizing and conducting the referendum, including voter registration. In the absence of a countrywide referendum, and for an indirect process to work, there are two potential options: wait until a referendum can be held countrywide (due to security concerns and lack of preparedness); hold the referendum in areas where security currently allows it (Somaliland, Puntland, TFG-controlled areas, embassies, refugee camps). However, neither of these options is feasible or sufficiently legitimate. Thus it is important to examine other Constitutional adoption mechanisms that would not require access to the entire territory but would still give the document greater legitimacy.

The options discussed are the following, and while none of them is optimal in providing the same level of credibility as a popular referendum, under the current conditions they could be considered as valid alternatives approximating legitimacy. The basic principle of this alternative mechanism would consist in the Constitution being adopted through indirect means through a Constituent Assembly (CA).

This CA could be established in various ways 1) Using the current House of the people with its 275 members; 2) Using a formula mixing whole or part of the House of the People and the Upper House and new delegates; perhaps from wider civil society; 3) Convene an entirely new set of delegates to form a CA.

For the last two options the new delegates could be nominated using regions or districts as the basis for representation so that the number of delegates would be based on the size of the population in the respective regions/districts (representation proportional to population). Population numbers will however necessarily need to be estimated and are likely to be contested. This system may also crystallize further the issue of Somaliland as a secessionist State if it refuses to send representatives.

Finalization of the constitution without the participation of Somaliland will pose some serious challenges in the adoption process. Non-participation would undermine the national outlook of the constitution and bolster Somaliland’s claim to succession with the argument that this new state is not part of them. Therefore, it is important for Somali policy makers to make provisions in the constitution which refer to future negotiations with states (both existing and nascent) who were not part of the ratification process.

Read more: Democratic-Transformations options for 2016

Mohamed Jama Aflaawe
Email: [email protected]

 

 


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