BY MOHAMED OMAR
AUGUST 17, 2019
Inconsistencies and conflicts in the sharing of power between the federal government and federal member states in the Provisional Federal Constitution of 2012 derails the implementation of federalism. Somalia officially became a federal state in 2012 after 825-member National Constituent Assembly (NCA) approved a new provisional constitution. However, the implementation of the federalism in legal aspect faces inter alia numerous problems created by provisions regarding how power will be shared between the federal government and federal member states. Among many core features of federalism in many countries across the world is that the federal constitution provides an elaborate legal structure through which the two levels of government would discharge their duties in a way that they complement each other.
The law also highlights approaches and institutions tasked with resolving conflicts and mediating between the federal and state governments. Equally, frequent disputes arising from the question of sovereignty/supremacy between the federal laws and institutions over the regional constituents and legislation are well articulated in the various statutes that establish the federal system. In most cases, the federal laws reign supreme over regional states since it is the federal constitution that forms the basis for establishing the authority of constituent states of the federal system. Also, the federal laws do override those laws promulgated by the regions, they are usually the most effective and they have the strongest impact compared to the laws issued by the regions (constituent regions of the federal system) given their significance and influential power. On the contrary, it is noteworthy that the Somali constitution has some provisions which are inconsistent with the principles of the supremacy of the federal constitution and federal laws over the regional constitutions and laws. Article 54 does not mention or define the allocation of powers and resources between federal government and federal member states. In addition, there is inconsistency in the mechanism for resolving disputes over sharing of power between the central government and regions. Although Article 50 (g), on the Principles of Federalism in the Federal Republic of Somalia, mentions that the resolution of disputes should be through dialogue and reconciliation, it does not address important aspects of the same, for example, by who and how this dialogue should be organized in federalized Somalia.
Secondly, the federal system of government in Somalia continues to face serious challenges from an on -going conflict, secessionist ideology in other parts of the country as well as lack of sufficient resources to ensure that the various states are able to provide the necessary public goods. These problems can be traced back to the constitution-making process. The current constitution was written as part of a peace-building process; however, this was done with little regard to public participation and deep-rooted consensus among various actors. Post -conflict constitution-making tend to demand for not just consensus but also compromises in order to accommodate the different aggrieved parties. The lack of a home-grown spirit on the constitution has made some to consider the document as a document imposed on them by external actors thus diluting their commitment towards the same.
But even more importantly, the constitution failed to provide room for proper and agreeable boundary review among the states as well as failed to create an institutional link between the federal government and the regional state. With funding support for the peacebuilding process, Somalia’s government is making tremendous achievements on the constitutional review and peace and reconciliation efforts. That said, state-building in Somalia would require fusion of strategies, favorable individuals that comprises local communities along with formal political stakeholders. İn addition to that, in order to attain one-man one vote in Somalia by 2020/21, the following issues must address effectively; security improvement, voter registration, conducting national census, finalizing constitutional review and ratification, and securing political stability. Constitutions are an integral part of the contemporary state system and therefore any process towards making a new constitution should be seen as an opportunity not just to address the concerns of the current generation but also create an enabling environment for future generations to realize their full potential. With this regard, those who are tasked with writing the new constitution should endeavor to look beyond personal, communal or group interest. Constitution making should not be turned into a clan rival affair but rather an honest effort to provide lasting solutions to some of the recurring problems in the country.
As observed, political interest continues to overshadow efforts to write a constitution and thus many significant groups end up being marginalized. It is worth noting that the elitist approach of granting certain category of people the mandate to develop laws irrespective of the opinions of other groups, yet the constitution is supposed to cover the whole country, partly explains why there is little success in the previous efforts. Secondly, there is need to determine whether the new constitution should precede solving the conflict, be part of the conflict resolution process or be a post -conflict agenda. This is based on the idea that attempting to write a constitution without first resolving the existing conflicts may not yield the desired fruits. And conflict in this context does not just refer to group conflict but also ideological, territorial, identity and economic rivalries. For three decades, the country has been under constant instability and with the hope of addressing some of the main causes of conflict such as marginalization, bad governance and corruption through a constitutional amendment, the process needs to be given the necessary support and commitment.
Summary and Recommendations:
Based on the observations made, the following measures are recommended; that the constitution making process be given a national outlook with the opinion and suggestions of as many stakeholders as possible being sought. That while the federal system of government seems to be an ideal model for the case of Somalia’s political landscape, it should be designed in a manner that reflects the unique historical, social, political and economic status of the country and therefore room for negotiation, compromise and most importantly consensus should be open. That in adopting the federal system, proper institutional structures be adopted to ensure swift and effective dispute resolution and interaction between the two levels of government. By this, a bi-cameral parliament will be useful as the upper house/ senate will exclusively deal with matters of the federal system and act as a link between the two levels of government.
That for better functionality, additional institutions such as a revenue allocation authority that will determine revenue allocation between the central and federal states. Administrative courts to deal with breach of administrative functions, an independent cohesion and integration commission, constitution implementation commission to ensure proper implementation of the new law and a supreme court with judicial review powers and stronger oversight role on the executive and legislature.