Issue No. 669

Establishing the Rule of Law by Violating It

If you feel baffled by recent developments in relation to Somalia's Provisional Constitution since the beginning of the Holy Month of Ramadan, you are certainly not alone. After months of delay surrounding the future of the National Consultative Council (NCC) proposals, events suddenly accelerated at break-neck speed as Villa Somalia moved decisively to push them and other major constitutional revisions through the federal parliament in February and March. These developments culminated in parliamentary and presidential approval of revisions to Chapters 1-4 late in the day on 30 March and on 1 April, respectively.

Before tackling the content of these revisions, it is important to consider several procedural elements of their approval that the federal government of Somalia has presented as facts. First, the necessary quorum of Members of Parliament was present for the vote. Second, all lawmakers had ample time to review the final draft thoroughly. Third, they voted unanimously to approve the revisions. And finally, Chapters 1-4 of the Provisional Constitution should now be implemented as the highest law of the land, without the remaining 12 chapters.

On the face of it, all of this might sound quite impressive, and it certainly has garnered the support of some of Somalia's most influential international partners. However, the realities of every one of these assertions are questionable at best. Indeed, one need only refer to the constitutional procedures passed in January 2024 to verify that the Provisional Constitution cannot become law in bits and pieces; it was to be approved as a complete document. Even granting the dubious assertion that 2/3 of the total lawmakers from both chambers were present for the 30 March vote, how they came to be there is a question worth exploring.

Reports are continuing to surface about the various incentives offered to lawmakers in exchange for their attendance and vote. Further, credible Somali sources have categorically stated that the number of parliamentarians who thoroughly reviewed the contents of the constitutional revisions was exceedingly low; some claim no one reviewed them. This would not be the first time in 2024 when lawmakers appear to have voted on a bill without reading it, as parliamentarians also rushed through the Turkey-Somalia maritime naval pact in February. And the mere notion that the vote could have been unanimously in favour of the particularly controversial changes to the country's system of government, given Somalia's current fractured politics, is frankly untenable.

But all of this may not matter to those who are claiming that the ends should justify the means, especially given the financial and political costs of Somalia's long-standing constitutional review process. It is therefore important to examine the content of the revisions themselves, some of which are problematic as written, and others of which require a level of democratic oversight currently unthinkable in Mogadishu. So let us focus again on Chapter 4 of the revised Provisional Constitution, 'Representation of the People.'

The revised text of Chapter 4 is essentially new, with dozens of lines inserted with minimal justification. Among the more problematic aspects of Chapter 4 are: the absence of an explicit quota for women's participation in government, which is left to future parliamentary regulations to be determined; the right of the president to appoint and dismiss the prime minister; limiting the number of national political parties to three; the establishment of an 'independent' election commission appointed by the Council of Ministers of the federal government; and federal oversight of Federal Member State compliance with democratic systems. Each of these is sure to be controversial in its own right.

Among revisions that appear positive on the surface but will require a herculean effort to implement are: free, fair and confidential voting; freedom from corruption in regard to voting; making voting easy for citizens to understand; transparent and accountable election processes; fair representation in parties and access to voting for people with special needs, minorities, and women; political parties' adherence to the rule of law and the defence of human rights; and, of course, commitment to one-person, one-vote elections.

The irony is that the federal government has already violated multiple of these revisions in the process of seeking to ratify them. The constitutional review process has ridden roughshod over free, fair and confidential voting, freedom from corruption in regard to voting, and the right to a transparent and accountable vote.

Some in the international community have joined with a number of high-profile Somali opposition figures in criticising the review process of Somalia's Provisional Constitution for failing to achieve inclusive consultation with non-governmental representatives, not to mention Puntland's regional government. But a lack of inclusivity is far from the only challenge awaiting President Hassan Sheikh Mohamud after Eid in the lead-up to the next parliamentary session, which is just two months away. The imminent return of Federal Member State leaders may prove to be the next headache for Villa Somalia, with several reportedly unhappy, having been essentially shut out of the process since they gave their initial approval to the NCC proposals back in May 2023. Most importantly though, the people of Somalia surely cannot be expected to accept an incomplete 'review' of the Provisional Constitution that is supposed to lead them to democracy and the rule of law when the process itself has been tarnished and opaque.

By the Somali Wire Team