SOMALIA DEFIES RULE OF LAW AS NEW FEDERAL UNITS GET OFF THE GROUND BY ARBITRARY MEANS





By Hon Abdullahi Jama, Chair Select Committee on Economy, Trade and Industry's

"In the government of this Commonwealth (Massachusetts), the legislative department shall never exercise the executive and judicial powers or either of them: the executive shall never exercise the legislative and judicial powers or either of them: the judicial shall never exercise the executive and legislative powers or either of them: to the end it maybe government of laws not of men”. John Adam 1780.

The foundation of a modern state is based on checks and balances or the separation of powers of legislature, judiciary and executive branches of the government, provisions that are clearly defined in the constitution. Indeed, constitutionalism is an effective mechanism that ensures rule of law.
A democratic society is built on the foundation of independent and impartial judiciary, independent media, free and fair elections and rule of law. The Provisional Constitution-despite its flaws-is the supreme law of the land, anything that is contrary to our Islamic religion is considered null and void. Somalia will fall deep down into the abyss of insecurity, corruption and lawlessness if the constitution is blatantly ignored. Somali Federal Parliament, the highest organ and the mother of all institutions, should not tolerate a government of men rather; it should promote a government of laws to the best of its ability. Somalia as state will only become viable if it is built on strong democratic foundation which must be sustained by strong civil society and platform of political parties. At present, Somalia has neither. For last couple of months a parliamentary  ad hoc committee has been working on a draft legislation regarding political parties, hopefully, the parliament will pass party legislation on/or shortly after September 2014. With regard to civil society, it is, by and large, represented by an umbrella of local NGOs though wide array of organizations based on ethical, political, cultural, religious and scientific grounds are missing from the political scene.
A paradigm shift
   For almost a year, the Somali government was pursuing a stabilization plan and a policy to form federal units in line with Provisional Constitution and relevant laws of the republic through a bottom-up approach. Unfortunately, that policy has never been implemented due to objections raised by IGAD-AU partners which finally persuaded the Government to implement the much criticized IGAD Stabilization Plan left over by TFG coupled with the infamous “building blocks approach" published on Ethiopian Foreign Ministry position paper in 1998, and later resurfaced in an article published by a Canadian researcher called Matt Bryden whose Attachment to Somali politics has sparked much controversy. In short, the idea briefly reads as follows:.
"A future Somali state might thus resemble a patchwork of semiautonomous territories defined in whole or in part by clan affiliation, leading to a breakdown roughly as follows:
• An Isaaq dominated state in the northwest, corresponding roughly (if not exactly) to the boundaries of former British Somaliland;
• In the Northeast, a principally Mijerteen polity, involving some (if not all) of the broader Harti community in Sanaag and Sool regions;
• A Digil-Mirifle territory centered on (but not necessarily restricted to) the regions of Bay and Bakool;
• Jubbaland, an admixture of groups from the Juba valley, possibly extending as far north as Gedo region;
• An elongated central territory inhabited principally by the Hawiye;
• A national capital (probably, but not necessarily Muqdisho) administered separately as a cosmopolitan hub for all Somalis".(Review of African Political Economy, March 1999, Vol. 26 Issue 79).

Suddenly, President Hassan Sheikh Mohamud made a humiliating U-turn by signing up to the idea of Clan Federalism sending his State Minister Hon Farah to Addis Ababa to sign Jubbaland interim administration agreement on August 2013-a move that paved the way of the formation of Southwest and Mudug-Galgadud interim administrations.
The fallout of the current unconstitutional initiative reaches far beyond debates about the legality of the matter. It has opened a Pandora box paving the way for further unconstitutional steps to unravel. The first salvo was fired, once again, by the, egregious minister Hon. Farah, this time under the portfolio of Justice and Constitutional Affairs, wittingly committing another faux pas, by firing the attorney general and replacing him with another one. The current bloated and ineffective cabinet, as usual, promptly approves the move. One may argue the Government acted upon the controversial law recently passed by the parliament, albeit with slim majority, which provides legal ground upon which the minister can act. In reality the matter is much more complicated. There are series of articles in Provisional Constitution that bars the Cabinet from taking such steps, i.e., art.106, art.109a and art.111a. Moreover, the notion of separation of powers is clearly violated and, that sets a bad precedence further eroding the confidence people have on the government. The role of civil society, in this case the association of Somali Jurists, is needed in order to shed light on the current conundrum and constitutional crisis.
Empty Promises
The principles of Vision 2016 produced by the Office of the Prime Minister on June 2014, but distributed only within the circles of the international community, are given below:
"§ The Government believes that successfully achieving the goals of Vision 2016 will require alignment with principles of political inclusion clearly articulated in PSG1 of the “New Deal”.
§ All aspects of the process shall be Somali owned, inclusive, transparent and consistent with Provisional Constitution.
§ The implementation of Vision 2016 shall be situated in the context of a comprehensive reconciliation process that that promotes national cohesion and integration; § Management of the process shall be anchored in the principles and practices of integrity and good governance";
The ink was barely dry on the policy announcement when the Government broke the principles and priorities outlined in the position paper. The politics of federalization by the stroke of a pen without due regard to Community cohesion and constitutional arrangements, has added insult to the already injured society. It stokes fresh violence and saws seeds of mistrust between clans, by intensifying clan competition. It puts community relations back to square one, at levels of 1991.
Getting priorities wrong
Two years on since the election of the current administration, the government priorities should have been focused on stabilization of the liberated areas from Alshabab, which to date, is neither controlled by the government nor accessible in terms of humanitarian relief. The people in these areas are under siege with dire humanitarian condition, worsened by the drought that affected large part of the country including central regions.  AMISOM is stuck in its barracks and does not have the will to escort the relief supplies docking in the government stores nor can government master units of SNA to fill the gap. Another government priorities set out in its much publicized Vision 2016 is that the document outlines principles and priorities set for a Roadmap to end transition to democracy by September 10, 2016.Among other things the three foundational elements of the government’s strategy namely the Constitutional review and implementation, Completion of the federal system and Democratization as directed by the Provisional Constitution. However the first principle laid down in this document is violated by the Government. In that paper the Government stated that: “All aspects of the process shall be Somali-owned, inclusive, transparent and consistent with the Provisional Constitution”. The ICG in its recent publication on 26 June 2016 urged the government to "make the local Somali grievances that enable Alshabab to remain and rebuild in Somalia the paramount focus, not regional or wider international priorities.
Political repercussions
Somalia's current constitutional crisis is likely to get worse in the next few months, the recently declared drought will begin to bite with Government unable to open access routes for the affected regions, and the life of millions of Somalis will likely deteriorate. The Federal parliament has to intervene and fix the current impasse or become irrelevant in the eyes of Somali people. In the end, the current leadership will bear the brunt of people’s anger and dissatisfaction. 
Options for compromise
To prevent further damage, the Government should share its views with the parliament and seek new legislations through constitutional process, instead of embarking on arbitrary measures outside constitutional framework. It should also engage in a constructive dialogue with communities that have expressed grievances with its policies and insure inclusivity and transparency, as shown in its Vision 2016, is respected. Make no mistake, the current political and constitutional crisis will undoubtedly benefit Al-Shabab which Cedric Burns, ICG's Horn of Africa admits their resoluteness and fixity of purpose:  "For all it's mistakes, Al-Shabab has managed to appear independent of external political timetables and non Somali support.......that is been to group's continued control of both money and minds in many parts of Somalia (ICG Africa Briefing no 99). Candidly, it is the Government not Al-Shabab, which should have managed to free itself from external political timetables in order to win the hearts and minds of the Somali people.

Hon Abdullahi Jama, Chair Select Committee on Economy, Trade and Industry's

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