Issue No. 652

No Straightforward Constitutional Review Process

Somalia is in the midst of a process to finalise its Provisional Constitution. Over a decade has passed since it was first adopted in August 2012, with successive federal administrations promising, and failing, to review and finalise the country's supreme document. The current episode, though, is no simple review process but rather more like a process of production. Dozens of articles have been revised, and nearly 100 paragraphs have been amended in the most substantial constitutional reform since 2012. There is nothing insignificant nor uncontroversial about the National Consultative Council's (NCC) proposed changes on top of the already highly complex process.

In considering the constitutional process, it is important to revisit the scope of the original NCC proposals, as announced in May 2023. These included one-person, one-vote elections by the end of 2024; closed list proportional representation and a single national constituency; limiting the number of political parties to two; harmonising dates of Federal Member State (FMS) elections and granting FMS presidents' term extensions toward this end, and shifting from a hybrid to a presidential system. Leaving aside the likely challenges inherent in most of these proposals, it is also critical to focus on the process by which these proposals are currently being considered.

On 24 January 2024, Somalia's bicameral parliament adopted a set of procedures intended to guide the passage of the NCC proposals and recommendations for changes to the Provisional Constitution of 2012, including some of the most contentious involving FMS power-sharing, taxation, and public financing.

More specifically, the procedures include several points that should be highlighted. The Constitutional Oversight Commission (OC) is tasked with both summarising suggested revisions to the Provisional Constitution and consulting with Parliament. It is also required to "inform the public of the related proposals and reports, providing sufficient opportunities as possible for public hearing." To comply with this stipulation, the OC must submit a report to both government and non-governmental offices and organisations, including Somali scholars, civil society, and other specialists, for their feedback within 30 days. Over the past week, a handful of individuals and civil society groups have convened at the Hotel Jazira in Mogadishu at the behest of the federal government to discuss the tabled changes, but this is hardly enough to be considered a substantive "public hearing."

Once the public has been consulted and revisions summarised, the Independent Commission for the Review and Implementation of the Constitution (ICRIC) must then consider their submission within another 30 days. Only after these reviews and consultations can the proposals be tabled in parliament for debate chapter by chapter according to a clear schedule. This is a process one might assume should take many months or longer, not just a few weeks. Yet by the end of March, the debate over the amendments to the Constitution's fourth and final chapter is meant to have concluded. This is despite every Member of Parliament (MP) having allotted time to speak. The coverage of these debates itself has also faced accusations of misrepresentation. When the former federal President and current MP, Sharif Sheikh Ahmed, rose to condemn the amendments, Somalia's state broadcaster cut away.

Only if a proposal receives the support of a simple majority (50+1%) of the total number of MPs can it be officially added as a change to the text of the Provisional Constitution. The approval of the final changes that end up in the Provisional Constitution will require the support of 2/3 of the total members of both parliamentary chambers. But given the ongoing challenges of ensuring parliamentary attendance, let alone concerted scrutiny of legislation, this could present a real problem.

Only once every amendment to the draft Provisional Constitution and every proposal of the NCC has been fully considered can parliament approve the finalised version. It is then delivered to the President for signing before being published in the Official Gazette. As per the 24 January procedures, the final draft of the Provisional Constitution would then come into full legal effect on the date of publication. But there is nothing in the 24 January procedures that stipulates when or how the finalised Provisional Constitution can be presented to the country for a public referendum for their approval. And this can only be accomplished after the contentious constitutional provisions concerning Somaliland and all FMS, including Puntland, have also been resolved.

Given the deep uncertainties and contested elements of the proposals, it is clear that there is much left to be done. The finalisation of the Provisional Constitution has been an aspiration of successive administrations, but the manner in which they have been tabled and debated is alarming. The process cannot and should not be rushed, with Somalia's political divisions now facing further rupture.

The process outlined by the 24 January procedures has been far from sufficiently transparent. It is not only the process that remains opaque; both the substantive legislative language of the changes being proposed to the Provisional Constitution and the current language of the NCC proposals are not readily accessible for scrutiny. This is no simple 'review' process but the production of the finalised Provisional Constitution, with substantial changes and significant additions. And this process does not appear to be subject to clear and effective oversight, as required by the 24 January procedures.

The precise content of the tabled amendments to the Provisional Constitution must be accessible to all, not just a select few. Somalia's civil society, public, and all political stakeholders should have opportunities and access to consider and debate the shape of the country's politics and direction for a truly legitimate outcome.

By the Somali Wire team