Foreign Policy Blogs

A Constitution of Ambiguity and Deferment

TFG Minister of Reconciliation and Constitution

TFG Minister of Reconciliation and Constitution. Source: Google Images

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.

 
  • Åmiña Åhmëd

    Dear Mr. Arman, you write: “The new parliament is the only institution capable of salvaging Somalia and restoring the inherent dignity of our people.” That is NOT true!!!

    The Provisional Constitution greatly limits what the the NEW parliament can do!!!! If you look at Chapter 15, Article 13 states the follow:
    “1) Notwithstanding Clause (2), whether before or after the expiry of the first term of the Federal Parliament, neither House of Parliament may consider an amendment to the Founding Principles mentioned in Chapter 1 of this Constitution.
    (2) Subject to Clause (1), and other than an amendment of the boundaries of Federal Member States in terms of Article 49, a House of the Federal Parliament may consider an amendment to the Constitution only in terms of the procedures set forth in Clauses (3) through (9).”

    It is astounding to note that the NEW parliament cannot designate a capital city or make any changes citizenship laws, all these founding principles are deferred to the NEXT parliament. This is the chapter the NEW parliament can’t touch!

    “CHAPTER 1: DECLARATION OF THE FEDERAL REPUBLIC OF SOMALIA
    Article 1. The Federal Republic of Somalia
    Article 2. State and Religion
    Article 3. Founding Principles
    Article 4. Supremacy of the Constitution
    Article 5. Official Languages
    Article 6. The Flag and National Symbols
    Article 7. The Territory of the Federal Republic of Somalia
    Article 8. The Public and the Citizenship
    Article 9. The Capital City of the Federal Republic of Somalia”

    The English version of the constitution can be found in the middle of this website: http://dastuurkeenna.com/ and the Somali version here: http://radiomuqdisho.net/akhriso-qoraalka-dastuurka-cusub-ee-uu-dalku-yeelanayo/

    May God save our country!

    • Abukar Arman

      Thank you, Amina, for the insightful feedback. You and I are in agreement on the new constitution’s preemptive shackling of the new Parliament to render that institution a political rubber stamp at best. However, you and I might differ (and I could be wrong) in our interpretation of who has the legitimate authority to introduce, process, and pass legislation. I am of the opinion that the New Parliament has more legitimate authority than those who put the shackling provisions in the new Constitution. I also believe it is the patriotic duty and moral obligation of the new Parliament to assertively reclaim its legislative authority. Also, the sovereignty of our nation and the dignity of our people.

    • Abdiwahab Tarey

      Dear Amina: Statement like “It is astounding to note that the NEW parliament cannot designate a capital city or make any changes citizenship laws, all these founding principles are deferred to the NEXT parliament” are based on erroneous interpretations of the Provisional Constitution and false assumptions. The Provisional Constitution can be amended and in it are provisions, protocols, and frameworks within which such amendments should be legally pursued (for God sake there are whole chapter and additional Sub-schedules for that specific purpose). Nothing is sacred about the capital of Somalia. That the Constitution does not specifically mention Mogadishu as the capital of Somalia is a good thing as it overcomes the necessary constitutional legal hurdles if Somalis ever decide for reasons beneficial for the country to change their capital (something that can happen and has happened in other countries). If the need arises, changing nation’s capital city should not be linked to the cumbersome processes of constitutional amendments. It should only require legislative acts of elected Parliament and not constitutional amendments. That the provisional constitution dictates there be a general special laws, to be developed through legislative processes, for the capital city is also a sound judgment. Contrary to your assumptions, the provisional constitution invests power within the legislative branch for anything the Capital City of Somalia. It is the congress (the two houses) that can set laws for the capital city; and it is, therefore, well within the powers of the congress to affirm the current capital or change it (now or later; should the need arise) without requirements for constitutional amendments. These are, IMHO, sound constitutional principles. I hope we stop confusing and misinforming the tired public.

      • Abukar Arman

        Thank you, Abdiwahab, for the feedback- the rant waves notwithstanding. I hope you are right and your entire claims are accurate. I suspect you as a professional scientist would do your very best to objectively detach yourself from any emotional connection to your subject of study and would further refrain from making any claims that you could not corroborate. With that in mind, let me say the following. You wrote “…. the provisional constitution, is a landmark document with built-in mechanisms and fundamentally sound social contracts to guide Somalia and Somalis out of the self-inflicted wounds and conflicts.”
        Do you mind enlightening me and this august forum: what “built-in mechanisms and fundamentally sound social contracts” are you talking about? I hope you would indulge us with a tour through the new Constitution. Perhaps due to my limited understand, I don’t know how anyone can describe the new Constitution as a “social contract”! Which one of the six signatories had the vision to by-pass the 1961 democratically ratified constitution and replace it with this deliberately faulty and conflict breeding document? Who declared it the desperately needed panacea that must be protected with secrecy and political smoke till the Constituent Assembly were convened and given their marching orders? Who negotiated it, and who were the six signatories representing? Could they in any way shape or form be considered adequate representation of the Somali people? You also wrote, “Constitutions are evolving social-contracts and this one is no exception.” Well said. I agree. But how come you would not consider this as an exception when you know that the new Parliament is preemptively shackled and is denied the right to exercise their legitimate authority as sister Amina accurately exposed in here first post?
        You also wrote “The author is wrong or uninformed with regards to the delineations of powers and administrative roles between the central and would-be federal regional governments. The PAC establishes clear delineations for certain critical issues and forwards others for further discussions and negotiations.” Abdiwahab, if that is the case you could perhaps help us define what constitutes the “Federal Republic of Somalia” and, say, “Jubaland State” in terms of geographical territories and political authority. Would the latter, in due course, have the right to conduct its own foreign, defense, immigration and monitory policies? Abdiwahab, the new Constitution offers nothing to neutralize the clan based resource and territorial zero-sum competition that is at the heart of the Somali conflict. Likewise, it offers nothing to structure the clan-based and other militias into a unified command, to eradicate the prevalent culture of impunity, or offer any substantive plan or a deadline to at least start the reconciliation process. Yet, you—despite being a professional skeptic—not only find comfort in the current arrangement, you are in fact an enthusiastic defender. It is baffling, to say the least!

        • Abdiwahab Tarey

          Abukar, I am sure you will reckon that the demonstrably rotten political processes of Somalia and the substance/texts of the PAC are two separate issues. Dismissing the PAC out of subjectively forecasted doom scenarios is neither healthy skepticism nor helpful for fruitful debate. You asked, “how come you would not consider this[PAC] as an exception when you know that the new Parliament is preemptively shackled and is denied the right to exercise their legitimate authority as sister Amina accurately exposed in here first post.” FYI, nothing in the PAC unduly and preemptively shackles or denies the authority of the Parliament. I would advice that Amina re-read the aptly titled Chapter of the PAC she referenced and posted only few articles from it. Because if she throughly read the entire Chapter and understood its whole premise, she would’ve recognized the available frameworks and mechanisms for constitutional reviews and amendments pre- and post-ratifications (public refrendum). Constitutional amendments are by design cumbersome and should be so, lest its founding principles become the subject of public opinion winds at any given moments or political whims of charlatans. Please read the said Chapter and the relevant sub-schedules that follow. With regards to your concerns about the enshrined Federal system of governance, the PAC contains sufficient devolutions of power and governing legal frameworks for the Federal government and the Regional States. It also provides directives for areas to be further studied, negotiated, and laws be written. This was necessary because of the unfinished businesses of our ongoing socio-political processes and that is a sound judgement by the authors of the document.
          Abukar, I am afraid I don’t see the sources of your fears and concerns to the extent that you must employ very alarming syntaxes in your arguments. This document affords Somalis unique opportunities to recover their statehood and I am confident that through it we can and will reconstitute our lost Republic – albeit in a different solution-based form and that is also a good thing. I can understand that you are skeptical and share not the same confidence. Then take solace that constitutions do evolve and can be changed. And this one is no exception – belief that. Let’s not be forever fearful, for one thing we Somalis have very little to lose and a lot to regain.

          I can’t walk you through the PAC, but please do re-read the document throughly and recognize that thanks to the PAC the dreaded signatories will be no more and whatever concerns one may have can be addressed through the review processes and amendment mechanisms established within the PAC as prime directives. Let’s be a society of laws and not of men.

          • Abukar Arman

            Dr. Abdiwahab, I was hoping my out of the ordinary long response would provide you a large menu of clarification options and a golden opportunity to corroborate your claims with hardcore facts. With all due respect, by selectively choosing not to answer the more serious questions and settling to defend your seemingly blind conviction with a few shallow philosophical statements that cannot pass basic scrutiny speaks volumes. The stage was set for you to make your case and present facts to at least make us less alarmed and skeptical, but all that you could offer to support your argument was ‘go back and reread the new constitution’ advise. How else can one wiggle himself out when caught defending the indefensible!

  • Abdiwahab Tarey

    This article is riddled with soundbites and feel good political statements backed with exaggerated shortfalls vis-a-vis Somalia’s ongoing socio-political processes and baseless fears of pending doom (FYI we have been dwelling in doom; how much worst can it actually get!). That these statements are coming from political-appointee-come-social-activists also offers the culture of expedient rouge mentality amongst Somalis (government officials particularly).

    Despite the exaggerated concerns raised by the author, the crown jewel of Somalia’s ongoing socio-political process, the provisional constitution, is a landmark document with built-in mechanisms and fundamentally sound social contracts to guide Somalia and Somalis out of the self-inflicted wounds and conflicts. Constitutions are evolving social-contracts and this one is no exception. For instance, the Federal System of Governance the author believes is a threat imposed on Somalis by others is in fact an organic solution-oriented concept that has been part and parcel of our socio-political processes since the collapse of the Bare’s regime. Moreover, the very foundation of the current government the author is its envoy is agreed upon (by political groups) Federal System of Governance with seemingly irreversible facts on the ground (Somaliland and Puntland). So much so, that the IFCC that assembled the provisionally adopted constitution were under legal mandate to return Federal constitution. And so it did so justly.

    Yes, some elements of the would-be Federal Republic of Somalia remain outstanding (i.e. wrestling with South-Central administrative anarchies). That is political and social issues to be sorted out in the near future by Somalis. To that end, the provisionally adopted constitution (PAC) provides legal frameworks on the “how” accompanied by fundamental protections of the country’s sovereignty and its citizens rights. The author is wrong or uninformed with regards to the delineations of powers and administrative roles between the central and would-be federal regional governments. The PAC establishes clear delineations for certain critical issues and forwards others for further discussions and negotiations. Given Somalia’s current socio-political situations, this is the best possible approach towards lasting social contracts and for needed genuine reconciliation (something that should occur at the local and national levels).

    Maybe the author would like to have perfect document per his political ideology or maybe the author would like to re-negotiate, as per dictates of his liking, socio-political issues that had been settled some decades ago.

    Whatever it maybe, the truth of the matter is with this document (however unfinished yet) on hand Somalia, after decades of conflicts, has the best chance of recovering its statehood. As such, Somalis are best advised to use this document as their launching pad for better tomorrow.

    Perhaps, some would like us to forever remain fearful and suspicious – always blaming forces from without for all of our ills. Let them be as such, but they should not hijack the process or be allowed to create confusions amongst the tired public.

    Bluntly stated, the author is dead wrong with his conclusion that “this document [POC] poses a serious existential threat that should be of a concern to anyone who cares about Somalia.”

    With all of its shortcomings and however it was adopted provisionally, the POC offers Somalia and Somalis the best chances and hence DO NOT pose existential threat (serious or otherwise).

    Put your political cards on the side and for once read the darn document and its social-contract frameworks. Then, using the mechanisms established within it, try to make it better for all and not for the satisfactions of your political concerns or aversion to some hypothetical threats and fears – threats and fears that will come to be if Somalia continues to remain in its status quo.

    • Åmiña Åhmëd

      Brother Abdiwahab:

      I am very curious as to which version of the Provisional Constitution you are basing your comments on. As we all know there were many versions circulating and the one drafted by the Independent Federal Constitutional Commission (IFCC) and others shared on UNPOS’s website did not make it to the final round. The current document, which was adopted on August 1st that you praise as the crown jewel of the political process makes no mention of a federal state, and the words “Somaliland” or “Puntland” don’t even appear in it!!!! Where are the federal states????? What of a constitution that doesn’t contain a specific mention of the nation’s capital city or who is a Somali citizen? Perhaps, I am reading a different version that the one you are referrencing, do you have another link? Thanks!

    • Abukar Arman

      Abdiwahab, you may remember that I asked you, among other questions, to define what constitutes “Federal Republic of Somalia”. You opted to ignore that. Could it be because the new Constitution offers the definition below which in theory includes “Somaliland” whereas in reality no representative of that entity was part of the signatories nor were they invited to be part of the process? Why should they if the whole thing was designed to Balkanize Somalia?

      The Territory of the Federal Republic of Somalia
      (1) The sovereignty of the Federal Republic of Somalia extends over all the territory of the Federal Republic of Somalia, which includes the land, territorial sea, the islands, the subsoil, the air space, and the continental shelf, and any land and waters that join the Federal Republic of Somalia in accordance with a law that shall be passed by the Federal Parliament.
      (2) The territory of the Federal Republic of Somalia is inviolable and indivisible.
      (3) Any international boundary dispute over the territory of the Federal Republic of Somalia shall be resolved in a peaceful and cooperative manner that is in accordance with the laws of the land and international law.
      (4) The boundaries of the Federal Republic of Somalia shall be those described in the 1960 Constitution of the Republic of Somalia.

      This, along with all immanent clan supremacy-based Federal Member States without territorial boundaries….make up a recipe for resister. To me the new Constitution does not only prematurely abort the North/South negotiations that just got underway, it paves the way for contentious claims/counter-claims and future violence. Abdiwahab, I am just surprised at how your curiosity and passion for scrutiny as a scientist is switched off when it comes to this new Constitution of ambiguity and deferment!

      • Abdiwahab Tarey

        Abukar like I said, rotten otten political processes of Somalia and the substance/texts of the PAC are two separate issues. For your indulgence and per your request for a tour, Article 1-9 of the PAC provide foundation principles (prime laws) of the constitution that are consistent with Somali traditions and expectations. I can understand you and others have issue with the enshrined Federal system of governance in this chapter. Notwithstanding your concerns and fears of more conflicts, Federal System of Governance was something by law mandated by the Transitional National Charter (TFC). Per TFC, the IFCC (F=Federal) that drafted the PAC could not lawfully return anything other than a Federal Constitution.

        With regards to the 1961 constitution, it was abolished by the former Military Regime some more than 40 years ago. Moreover, despite nearly 20 Somali reconciliation conferences, over just as many years, Somalis by design or default never once showed credible resolve to reclaim that constitution as the rightful constitution for their country– perhaps preferring a new social contracts and fresh foundations of their country and people; thus the need for transitional charters and now a PAC. FYI, the 1961 constitution was not, then and still now, without detractors and without certain communal grievances against some of its principles and laws.

        Articles 10-45 provide unalienable rights and freedoms (some even ambitious) to Somali citizens that guarantee “life, liberty, and pursuit of happiness” as well as general resource managements directives. All of these are consistent with international standards, Somali traditions and most Somali’s expectations. Articles 46-47 re-enforces the power of the people and establish principles for just political representations.

        You asked about what constitutes the Federal Republic (a work still in progress). The answers can be found in Chapter 5 of the PAC. This includes addresses to your concerns about the structure (Article 48), guiding principles and mechanisms for federal state establishments (Article 49), exemplary principles to ensure conflict free transition to Federal system of governance (Article 50), the consultative and collaborative relationships between the Federal government and the regional states (Article 51-53). Lastly your concerns about jurisdictional issues, Article 54 clearly outlines Federal governments jurisdiction over matters of: “(A) Foreign Affairs; (B) National Defense; (C) Citizenship and Immigration; (D) Monetary Policy, which shall be the powers and responsibilities of the federal government.” Article 54 also allows the Federal government and the states to negotiate and agree upon laws over allocations of powers and resources. Additional delineation of authorities can be found in Articles 120 and 121. Article 142 is also relevant as a directive.

        With regards to your concerns about the “Amending the Constitutions”, Chapter 15 deals with that. Here two things ought to be clear; the difference between Amending the PAC and Amending the Constitution (i.e. the public referendum ratified constitution). Article 132, the Article Amina referenced, deals with the latter (provisions for amending the Constitution once its ratified). The cumbersome process and restrictive languages in this Article are not unusual and purposeful for proper checks and balances and to ensure the principles of the ratified social contracts are not discarded very easily. Article 133 – 137 as well as schedule one (C & D) provide the relevant established frameworks and mechanisms for the review and amendment processes of the PAC.

        Abukar, much remains to be resolved in Somalia and amongst Somalis, but I doubt the PAC with all of its just provisions, directives, and painstakingly outlined frameworks and mechanisms are going to be harmful to Somalia’s long journey towards recovery. It offers detailed guidance and legal foundations for the would-be long journey ahead. If nothing else but Article 135 is adopted and implemented immediately, Somalia’s journey to recovery will kick start with solid beginning.

        Abukar, the signatories and the “Somaliland” issue are separate matters to be dealt with separately.

        • Abukar Arman

          Abdiwahab, I re-read these articles just to make sure I was not overlooking something and I find most of them still peppered with glittering generalities, ambiguity, and deferment. Let me offer you some specific quotes (something that you seem to have cleverly been avoiding) from Article 1, Article 9, and Chapter 15.

          Article 1 states. The Federal Republic of Somalia
          (2) After Allah the Almighty, all power is vested in the public and can only be exercised in accordance with the Constitution and the law and through the relevant institutions. It is prohibited for a person or a section of the public to claim the sovereignty of the Federal Republic of Somalia, or to use it for their personal interest.

          If all power is vested in the people, how come the 135 Traditional Elders who represent virtually every clan in Somalia were denied to make any changes of the draft constitution (a fate that the Constituent Assembly would later suffer)? What power is vested in the people? How much of the power were the people allowed to exercise in relation to this controversial constitution? How is this any different than the glittering generalities often used to pacify the masses?

          Article 9. The Capital City of the Federal Republic of Somalia
          The status of the capital city of Somalia shall be determined in the constitutional review process, and the two houses of the Somali Federal Parliament shall enact a special law with regards to this issue.

          Is it not fair to question the logic that propelled the new Constitution and declared its passing very urgent when the new constitution cannot even solve the status of the capital city of the Federal Republic of Somalia?

          Chapter 15
          “(1) Notwithstanding Clause (2), whether before or after the expiry of the first term of the Federal Parliament, neither House of Parliament may consider an amendment to the Founding Principles mentioned in Chapter 1 of this Constitution.” This to me is a sure way to keep us in a quagmire of bloody conflicts. Meanwhile, some of us may find solace in the ambiguity of “all powers are vested in the public”.

          Abdiwahab, you wrote: “With regards to the 1961 constitution, it was abolished by the former Military Regime some more than 40 years ago.” Therefore it is illegal?

          You added: “Moreover, despite nearly 20 Somali reconciliation conferences, over just as many years, Somalis by design or default never once showed credible resolve to reclaim that constitution as the rightful constitution for their country…” Could it be because they were under the tyranny of military might?

          • Abdiwahab Tarey

            Abukar, it is important to recognize the political process that gave way to the provisional adoption of the constitution can not impose external merits or demerits on the actual substance or the spirit of the constitution. The two are separate; as such your concerns about the political process and how the rotten process have over-written certain inalienable rights of the citizens are valid – no questions here. But these matters, which as you referenced, are appropriately dealt with within the now adopted Constitution, should not heavily influence your judgements on the Constitution. The Article 1 you just referenced, which is by designation among the supreme principles of the PAC, became a provisional Law, on August 1st thanks to the PAC. Thus going forward, you can use it and other laws within the PAC to demand your rights and to hold our leaders and our institutions accountable. Abukar, we can and should hold the political leaders and entities that have concocted all the wrong deeds you and others have highlighted (including their marginalization of the public and the muzzling off of the traditional leaders). But what is that got to do with objectively critiquing the PAC – which mind you is not of their makings and does not particularly benefit them alone. With regards to the capital city, the status or even the naming it is not, IMHO, constitutional matter. Therefore, this PAC appropriately creates constitutional mandate for capital city and puts the jurisdiction of its status and special laws under the Parliaments (the Congress). That is not unusual. As you may know, other National Capitals around the world exist as such – Washington DC being a great example. As for Chapter 15 and Article 132, Abukar why is it that you only focus on the first Clause of that article even with “Notwithstanding” statement? Even then, do you not understand what it is the Clause 1 of Article 132 is protecting – i.e. Chapter 1 and the supreme principles of the constitution? If one reads honestly the general principles in Chapter 1, one would conclude that indeed they ought to be protected and not be subject to constant changes. Even then, this article deals with amendments of the constitution once the PAC is reviewed, amended, and then ratified through public referendum. It restrictive posture is purposeful. Here are the two clauses that guide one another and the ones that follow: (1) Notwithstanding Clause (2), whether before or after the expiry of the first term of the Federal Parliament, neither House of Parliament may consider an amendment to the Founding Principles mentioned in Chapter 1 of this Constitution. (2) Subject to Clause (1), and other than an amendment of the boundaries of Federal Member States in terms of Article 49, a House of the Federal Parliament may consider an amendment to the Constitution only in terms of the procedures set forth in Clauses (3) through (9).

            Abukar constitutions are to my limited understandings at times ambiguous and abstract in texture, that is why Courts and trained individuals must interpret and apply the full scopes of the generally stated articles and clauses. So I am not threaten by the generalities and ambiguities, I am however concerned that we are wasting too much time on non-issues and losing focus on critical issues – like how to re-establish the functionaries of the constitution, the Judiciary Branch. We can have, on paper, the best or the worst system of governance and a constitution to boot. It will matter not much without real and functioning Independent and just Judiciary. Regardless of what may come to be the PAC and however it is changed, without functioning Judiciary we will forever remain a society of men and not of laws. And in the society, the weak will suffer and the strong will think he/she is winning something of some value, while in reality we are all in it for a “doom”.

        • Abukar Arman

          Abdiwahab, I had to resist the temptation to go after certain fallacies in your latest response such as comparing the Mogadishu conundrum (with all its unique and indeed volatile dynamics) to fair weather choice of capitals…such as Washington, DC lest I overshadow your closing remark. So, let me echo your profound observation:

          “We can have, on paper, the best or the worst system of governance and a constitution to boot. It will matter not much without real and functioning Independent and just Judiciary. Regardless of what may come to be the PAC and however it is changed, without functioning Judiciary we will forever remain a society of men and not of laws. And in the society, the weak will suffer and the strong will think he/she is winning something of some value, while in reality we are all in it for a doom”. Thanks.

  • Geesh

    imposing a rhetoric form of Governance would never produce expected results, Because there is no elected Constituent Council, who could in return daft a provisional constitution. but there is Hand-Picked Number of persons who were told to ratify an already Drafted Paper Called Constitution!? granted! this is what the so-called IC has been doing in Somalia, however, this selected individuals now, come from, so-called Somali Elders..but without ” Reference” while yesterday, when building So-called TFG in Kenya, there were from Enclave Controlling Warlords without “Reference”..it means reading back and forth..”Jug-Jug meeshaada Joog “

    • Abukar Arman

      Thank you, Geesh, for the feedback. You are right we must start somewhere. On my part, that is why I accept the new Constitution (however dangerously imperfect) as the law of the land. That is why I also put my confidence on the new Parliament though I know some would come through a dubious process….

  • Geesh

    wadamada ay isbadalada ka dhaceen ama xoog Dibada uga yimid Sida: Ciraaq iyo Afgaanistaan ama Gudaha haka yimaadee sida Liibiya, Masar, Tunisiya, Yemen kuligood ma jirto cid ku faradyeeshay dastuur loo qoray. Tusaale: Wadamada Rabiica carabta waxay Doorteen Gole la yiraahdo “Majlis Al-Ta’siisi” AMA Golaha Aasaasida “Provisional Constituent” iyo “Dastguur kumeelgaar ah” oo ay ku shaqeeyaan marxalada kala guurka ah ee ay joogaan. Wuxuu diyaarinayaa Doorashooyinkii Baarlamaanka, iyo kii Madaxweynaha wuxuu dhameystirayaa Qoritaanka Dastuur Daa’im ah. Xitaa. Wadamada Afgaanistaan iyo Ciraaqna, isla Dariiqaad oo kale ayay Mareen!!?? sidaa darteed Ustaad Carmaan…..2003-dii ayaa Soomaaliya lagu faradyeelay 4.5 iyo Dowlad la yiraahdo TFG>>? ilaa hada saameynteedii ayaa socota…Hadii marka Hada oo laga joogo xiligaas 9-sano, oo ay Soomaalidii Yeesheen Wacyi ka weyn, iyo Khibrad ka Baaxad weyn Xiligaas….lagu soo celiyay isla kii oo si kale loo dhigay…..Waxay ila Tahay Soomaaliya dadka ku dhex jira ma oga Taarikhdeeda Iska Caabinta “Domination” cid walba oo ay tahay Faarisiyiin, Carab, Reer Galbeed. si aan ka waynayn sida xitaa wadamada Ciraaq iyo Afgaanistaan…iskaba daaye Wadamada Rabiica Carabta……Tan maahan macnaheedu inaanan horumarsan Nidaamkaan Rabno….oo aan meel cidla ah ka qaylinayno..mana ahan macnaheeda inaan diidanahay Qawaaniiinta Caalamiga ah, iyo Cid Gooni ah….ee Macnaheedu waxa weeye inaan anagu Xaq u leenahay inaan Aayaheena ka tashano..Caalamkuna uu taas nagu taagero sida uu Wadamada kalaba ugu taageeray…

    • Abukar Arman

      Geesh, may I ask you to please translate your post and re-post it so that the FPA audience who is primarily English speaking could understand. I normally take the liberty to translate to the audience if a poster adds a line or so in Somali, however, your post would require more time than I can afford to invest. Thanks.

Author

Abukar Arman
Abukar Arman

Abukar Arman is a former diplomat (Somalia's Special Envoy to the US). He is a widely published analyst. His focus is Foreign policy/Islam/post-civil war Somalia/extremism. He is a DiploAct of a sort (fusion of diplomacy & activism).
You may follow him on Twitter: @4DialogSK or reach him via e-mail: [email protected]

GreadDecisions in foreign policy discussion group ad v2