Issue No. 658

No Transparent Constitutional Review Process

By this time next week, Somalia's federal parliament should be moving into recess, following an unexpected parliamentary extension into Ramadan. Villa Somalia had promised a complete parliamentary review of the first four chapters of Somalia's Provisional Constitution by 15 March, but this seems increasingly unlikely. The review process instead stalled on Chapter 2, with the joint parliamentary session required to review Chapter 3 only reaching the necessary quorum on 6 March.

Even if Somalia's Upper and Lower Houses succeed in reviewing all four initial chapters by mid-March, it is highly unlikely they would have time to vote on any or all of the proposed amendments. And this is a 'big if,' as it has recently been reported that only some 40 Members of Parliament (MPs) showed up to vote over the past two weeks, though some legislation was nonetheless passed. As Ramadan nears, it seems increasingly improbable that a quorum can be reached to complete the review of the first four chapters during this session. 

Analysts are now reporting that at least some of the most controversial of the May 2023 National Consultative Council (NCC) proposals are being integrated into Chapters 1-4 of the Provisional Constitution by the Independent Constitutional Review and Implementation Commission (ICRIC), with Oversight Committee (OC) review and approval. These likely include language pertaining to extensions of Federal Member State presidential elections to November 2024, as well as a one-person, one-vote system. If the contentious NCC proposals are indeed adopted, it would suggest a transition to an OPOV system by the 2026 presidential election. It is highly unlikely that the necessary mechanisms to achieve this would be feasible within that timeframe. Consequently, we could expect a return to an indirect negotiated election, which would in essence contravene the newly amended Constitution.

The first four chapters of the Provisional Constitution currently under review are the Declaration of the Federal Republic of Somalia; Fundamental Rights and Duties of Citizens; Land, Property and Environment; and Representation of the People. From what we have learned, well over 100 proposed amendments are being considered in the first four chapters alone. While some international partners are particularly concerned about the rights of children and women, other controversial sections will surely surface once the revised text is made accessible-- beyond parliament-- to all groups required to be engaged per the 24 January procedures. Questions on how just two parties would be eligible to run in elections, or how precisely the proposed 'closed-list proportional representation' system would operate are still unclear.

Beyond the release and translation of the first four amended chapters of the Provisional Constitution, those involved in the review and approval process should expect to lay eyes on a 'drafting report' that clearly describes the process of making changes to the 2012 document. Members of the current ICRIC and OC are considered the most proficient and collegial group of constitutional experts Somalia has seen to date.

Still, it is widely understood that these crucial committees have not been provided sufficient technical legal assistance to most effectively turn political proposals and outdated provisional sections into clear and understandable constitutional language. The lack of technical assistance in the drafting of the National Consultative Council (NCC) proposals was blatant in their contradictory nature. In fact, we should anticipate the ultimate release of multiple sections of the revised Provisional Constitution that are simply not implementable without subsequent debate, as well as judicial consideration. 

Similar to a dearth of adequate technical support for the review process, there has been insufficient financial and political support for a full set of consultations with non-governmental actors. The 24 January procedures require that academics and civil society, including women, minorities, and representatives from less prominent regions of Somalia, be consulted in preparing the amended Provisional Constitution. Instead, a few hastily arranged meetings with pre-determined participants who were already supportive of the NCC-proposed electoral changes were convened in Mogadishu.

While it is reasonable to hope for a clearly amended Provisional Constitution moving ultimately towards finalisation over the coming months and years, it is not reasonable to expect the first four chapters to be approved over the coming days. There are many questions still to be answered, many processes— and texts-- to be made transparent, and complex procedures to follow to ensure that Somalia's constitutional review process is both legal and constitutional in itself. Rather than clarifying existing questions about the country's foundational text, the current constitutional review process is raising many more.

If public consultations aren't completed, parliamentary debate isn't fully carried out, quorum procedures aren't respected, and amended text is not circulated and carefully considered, this will turn into an illegitimate process. International partners should, therefore, seek to slow the rush, insisting that the law is respected, debate is allowed, and agreed-upon procedures are followed so that an emerging legitimate Constitution is not tarnished for political gain before it has even been created.

By the Somali Wire team