The draft constitution is a considerable improvement from the Transitional Federal Charter. However, there are serious flaws in the draft which would make the operation of the system of government difficult and controversial.
“Allah doth command you to render back your Trusts to those to whom they are due; And when ye judge between man and man, that ye judge with justice: Verily how excellent is the teaching which He giveth you! For Allah is He Who heareth and seeth all things.” (Quran; Al Nissa 4:58, Translation: Yusuf Ali)
"The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust." --Alexander Hamilton or James Madison, Federalist Papers, New York Packet, Federalist No. 57, Tuesday, February 19, 1788.
Earlier this month, the Transitional Federal Government (TFG)-appointed Committee of Experts (CoE) on the Constitution held a “constitutional review” session in Minneapolis, Minnesota, a gathering that, given the stakes, I wish I had attended. Regardless, in what follows below, I will share my initial thoughts about the constitution-making process currently underway in Somalia.
Today, there is a broad regional and international consensus that successive reconciliation conferences on Somalia produced a cycle of ineffectual transitional “governments” leaving nothing in their wake but dashed hopes, squandered goodwill and unfulfilled mandates.
For two long decades, Somalis repeatedly failed to negotiate effective and meaningful national government. In an age that is in dire need of alternative views of the future that can break with the bloody past, nothing highlights the general ineptitude of the Somalis to achieving statehood better than the utter failure of the Somali elite, both secular and religious, to pursue their own national interest defined in terms of their ability to achieve broad consensus on national purpose, strong idea of state, establish a shared socio-political vision and sound “political philosophy” for post civil war Somalia.
In short, Somalis failed to rejuvenate a collective sense of national identity that would prevail upon the tribal identity and prevent the perpetuation of the inherently discriminatory and un-Islamic “4.5” formula. Alas, the Somali Diaspora, besides being an “ATM” and a vital economic lifeline, continues its role as vicarious participant of the events unfolding back in the troubled country with no ability to marshal any meaningful contribution in order to positively impact the clan-induced political stalemate.
Despite this bleak situation, however, the Somali people insist on a new political configuration that challenges the categories delimited by the clannish-minded elites, religious demagogues and the continued manipulation by the “ Internationals” or “Ghost-lords” (to borrow from Bro. Abukar Arman, the fine Somali writer). Surprisingly, the citizens of Somalia have demonstrated astounding resilience and sheer will to survive and hope for a better day despite enduring decades-long brutality and disasters of all stripes. To overcome the current debacle, however, Somalia needs a new Social Contract. It is time to refound Somalia through sound principles.
ROLE OF ISLAM IN THE NEW POLITICAL DISPENSATION
On April 18, 2009, the Somali parliament voted unanimously to adopt Shariah law. Article 8 of the Transitional Federal Charter reads, in part, “(1) Islam shall be the religion of the Somali Republic. (2). The Islamic Shariah shall be the basic source for national legislation”.
Furthermore, the 2010 Draft Constitution, currently under review, essentially proclaimed Somalia as an “Islamic state” with a national religion. It obligates the Somali judges to rule and adjudicate in accordance with the provisions of Islam and jurisprudence of Shariah law as, under the Draft, no law could be "contrary to the sacred religion of Islam.” The role of religion in the new constitution is, therefore, bound to be contentious. This represents significant departure from the language of the 1960 constitution, which merely stated that “Islam shall be the religion of the State” rather than requiring all laws to be brought in conjunction with the Islamic law and declaring the supremacy of Shariah.
THE QURAN IS NOT A CONSTITUTION
The Quran is not a constitution in the generic sense. It is by definition and substance greater than a constitution. The religious clerics who proclaim, “Quran is our constitution!” misread the very essence of the Quran. A constitution is a flexible device, which organizes and shapes diverse political and legal systems. It is used to enshrine the broad principles on which a governmental system is to operate, including the rights and responsibilities of all levels of government; the description and role of key institutions at central and local levels; and, the basis on which detailed rules may be established or changed. It can be amended or abrogated.
On the other hand, a Qur’anic text cannot be altered or abrogated because of the Qadiyu Thubuut (absolutely authentic origin) principle. It can only be interpreted where its texts are vague, Zaniyu al Dilalah. An example would be verses describing acceptable commercial practices. These may be interpreted in light of relevant sources and materials. In essence, the Qur’an is more expansive than a constitution with respect to its functions and characteristics. Now, the belief that Somalia needs no unifying document besides the Quran misunderstands the function of the constitution in establishing a modern state and, moreover, runs contrary to the principles of Al Siyasah Al Shari’yah and Ijtihad (unprecedented doctrinal development) as articulated by classical Islamic jurists. Simply put, Somalia needs a national constitution to formalize its political choices in matters of government while, at the sometime, keeping Islam as the conscience of both the community and the constitution.
SOMALI LEGISLATURE AND INSTITUTIONALIZATION OF IJTIHAD
Technically, the implementation of Islamic law in Somalia, as required by this Draft, poses monumental legal challenge to Somalia’s fragile legal infrastructure and its religious elites. To effectuate the Islamic provisions in the Draft, Somalia’s constitutionally defined body (parliament) shall have no choice but to enact specific statutes containing detailed legal techniques and tools used to identify, interpret and apply principles, norms and standards of the Quran and Sunnah, and in their absence, to identify by certain techniques applicable principles to situations for which existing Quranic or Sunnah norms are unavailable.
These techniques include:
i. Identification, appraisal, and ranking of the sources of law in accordance with a certain methodology deemed valid by the Somali legislature and the consensus of the jurists.
ii. The institutionalization and professionalization of fiqh authorities and developing mechanisms to check the temporal rulers by Allah’s law, so that if a given law violated Islam there was a way to stop it.
iii. Creating a hybrid legal system representing a combination of immutable, divinely-derived legal standards and mutable decisions whose validity needs to rest on political judgments of what constitutes the best rule given a particular set of temporal circumstances by the fiqh scholars or the parliament whereby all laws are subjected to the following two-pronged test: 1) is the law in question inconsistent with an unambiguous ruling of authoritative sources of the Shariah and 2) does the law violate the Maqasid al Shariah “goals,” or the utilitarian principles of the Maslaha as articulated, among others, by Al Shatbi, Ibn Al Qayim, Al Qarafi and Ezzedin Ibn Abdisalam?
iv. Developing codified statutes with uniform application throughout the country. As former Chairman of Somaliland’s Law Reform Commission, I had the privilege of witnessing firsthand the impact of Somaliland’s efforts and struggle to harmonize Xeer, Shariah Law and the pre-1969 statutes of the Somali Republic into one uniform legal system throughout Somaliland. The purpose was to provide legal certainty and create predictable system of justice.
v. Since, according to the Islamic teachings, the Qur'an is God-given and cannot be altered, jurisprudential and doctrinal differences of various Fiqh authorities had to be reconciled in part because there is no uniformity of opinion about major legal issues within any one school of legal thought. For example, see Imam Shafi’s Al Qadim & Al Jadid legal doctrines or Al Asah & Al Azhar principles. In that context, uncontrolled pluralism of judicial (Fiqh) opinions and decisions should, in my view, be considered as conflicting with constitutionalism on grounds that it can be internally segregative and thus impede on the ideals of constitutionalism and possibly hinder good governance and social cohesion under a uniform system of law.
Instead of addressing these profoundly important questions in the national debate and political discourse, the recurring theme of Somali’s leading religious elite seems to become not only rhetoric calls for a return to the fundamentals of Islam, but in fact a regression to a fixed historic framework. In what constitutes an utter disregard of the human juristic interpretations (Fiqh), they argue that since the Qur'an is immutable, as is the Sunnah, and since the Sunnah is the last word on the Qur'an, everything that had to be said by Allah and His messenger has been said. There being nothing more to be said, the only thing left is a strict application of what has already been given. It is based on such faulty reasoning that leaders of some of these movements made themselves into the arbiters of what was valid and what was not. The corollary of that self-declared authority is that these “leaders” can decide on who is a true believer and who is an apostate (Murtad), a sideshow that really adds nothing to the quest for nationhood.
But the on-going process to refound Somalia in the year of 2012 is the ultimate test of Somali’s religious movements and elites. Now that the Draft Constitution essentially mandates the implementations of the Islamic Law, the era of the care-free religious rhetoric by religious elites is finally over. Taking the easy road of labeling every complicated human condition as Haram (prohibited) is no longer acceptable. The practice of the rarefied art of statecraft demands answers and solutions to layers upon layers of complicated and unprecedented legal and political issues. The religious elite will soon find out that governance, unlike lawlessness, is a complex system of interactions among competing interests. In such an environment, looking at the world in black and white (Muslim & Murtad) wouldn’t be only a disservice to Islam itself but also an undue oversimplification of the complex nature of Islamic Jurisprudence. There is a reason why there are at least four major schools of jurisprudence in Sunni Islam alone.
Without a doubt, the Somali legislators will need plenty of properly credentialed Ijtihad practitioners among them as they will, unfortunately, find it very had to stumble upon any of the so-called international legal experts – who were in charge of Somali’s “legal affairs” for the past two decades - that possesses the necessary legal background in the mergers of Islamic law and Western jurisprudence. Passing a unanimous parliamentary resolution declaring Shariah as the law of the land might have been the easy part. Implementing that decision within a modern-day governmental system, however, entails a complicated set of technical and jurisprudential challenges to which Somali’s religious elites are no match and, in my view, ill equipped to undertake.
BRIEF COMMENTS ON THE DRAFT CONSTITUTION
The efforts to establish a constitutional republic in Somalia are admirable. These efforts, however, must be diligent, effective, and thoughtful. The effectiveness of a new constitution should, in my view, be judged by: a) the level of participation by the public and b) legitimacy of the process. There is no credible evidence to suggest that the views of the people throughout the country reached the Independent Commission for the Constitution and Federal Affairs (IFCC) in any meaningful manner or were considered by it during the drafting process, the hilarious minute-long commercial on Universal TV notwithstanding. Further, based on my preliminary research, the IFCC seems to have been under intense pressures to meet strict deadlines. Regardless, I am not aware of any serious efforts on the part of the IFCC to consult and seek wide scale public participation in the Diaspora as well. (Reportedly, less than 100 people attended a recent TFG sponsored constitutional review session in Minnesota, a state which is home to an estimated 70 thousand Somalis).
Of course, a counter-argument can be made that the current security situation in Somalia does not permit broad debate and public participation. In addition, there is evidence of considerable intervention by foreigners, with their own unhelpful agenda (normally, the constitution-making process is a jealously guarded national treasure everywhere else but Somalia). Consequentially, because of strict time pressures, an unstable security situation and questionable foreign intervention, the goal of ensuring inclusiveness and broad based consensus with regards to the Constitution is, thus far, unattained. Therefore, with regards to participation and legitimacy, among people and communities, the process must be regarded as largely ineffective.
My general assessment is that this document is a considerable improvement from the Transitional Federal Charter. However, I consider that there are serious flaws in the Draft which would make the operation of the system of government difficult and controversial. For instance, there are technical deficiencies, ambiguous or incomplete language in the draft, which are to some extent tied to key substantive provisions, such as sovereignty, sources of legislation, lack of clear demarcation between the president and parliament, and the role of the regional states vis-à-vis the federal government. These poorly drafted substantive provisions could further sharpen the divisions within Somalia and pose a serious threat to the unity and territorial integrity of the country. I, therefore, have serious reservations about the durability and effective implementation of the Constitution in its current form. Having said that, I do have sympathy for its drafters and do understand the enormous difficulties they had to overcome to reach where they have.
My non-exhaustive review suggests that Somali intellectuals must give a great deal more thought to the modalities of the Constitution-making process than was possible in the process so far.
Generally, a preamble is an inspirational and symbolic statement. Its purpose is to situate the Constitution into a specific context. The context may consist of reconciliation (2010 Somali Draft Constitution), independence (1960 Somali Constitution), a revolution or the overthrow of the previous regime (1979 Iranian Constitution), or a peaceful transition to a new political or social system (the 2005 Afghan Constitution). The preamble also provides guidance to the objectives of the Constitution, which may be used to interpret the Constitution, but is not otherwise binding. Hence, to be effective for these purposes, the preamble is normally brief.
The preamble in this Draft-Constitution sets out an unprecedented affirmation of the central role of Islam in Somalia’s public life. It reaffirms and promotes the unity of Somalia and recites and condemns the injustices of the past. It certainly is intended to inspire pride in Islam. In these respects the preamble is good, if somewhat short. However, it fails to set out clearly the objectives of the Constitution in a comprehensive manner. Understandably, there is perhaps too much emphasis on the Islamic nature of the Constitution largely designed, in my view, to fend off any criticism by the powerful Islamic groups in Somalia. However, the preamble must also clearly spell out the objectives of the Constitution. Using the events of the last two decades as a backdrop, the Commission should enumerate, in addition to those already existing, the following priorities for the new constitution:
(a) Formulating a vision of Somalia that has wide approval all over the country;
(b) Enhancing national unity and territorial integrity;
(c) Assuring people democracy and participation as well as physical and psychological security;
(d) Ensuring effective and accountable government;
(e) The protection of human rights and dignity, including rights of minorities;
(f) Promotion of social justice and the fair distribution of the benefits of national resources; and
(g) Renewal of the economy and removal of poverty.
SHARIAH & SOVEREIGNTY (CHAPTER 1)
The title, “Declaration of the Republic,” has revolutionary overtones. Instead, I would prefer using, “Fundamental Principles,” as a title for this Chapter.
In my view, Article 1 struck a reasonable balance between the core Islamic beliefs represented in the Maqasid Al- Shariah and the universally accepted international standards and norms of justice, human rights, rule of law and democracy. Most importantly, the use of the Maqsid as articulated by Al- Shatibi and Ibn- Al-qayim, offers significant flexibility to the Somali legislature with respect to its lawmaking function and ensures compatibility of the Shariah with modernity.
Further, with respect to the issue of women’s rights, although recognizing that they are an integral part of the citizenry, they should not be singled out for specific privileges. Normally, such moves yield negative results. Instead, women’s Rights and Obligations should be based on the equal protection clauses of the Constitution (Art. 17 of the Draft) with further protections granted through the instrumentalities of the judiciary and law enforcement agencies. Consequentially, Article 1(4) is short-sighted, and probably meant to appease international actors. Therefore it is unnecessary and should be removed.
There is no provision prescribing the sources of legislation, a major flaw in this Constitution. To remedy this omission, Article 2(3) should either read: “Islamic law shall be the basic source of legislation. All legislations enacted by the Parliament shall be brought in conformity with the injunctions of Islam as found in the Qur’an and Sunnah” or it should elaborate other sources of legislation with a degree of clarity. If the IFCC were to choose the former, it should, in my view, solidify this provision further by proposing the establishment of the “National Fiqh Council” comprising membership of preeminent Islamic scholars, Judges, lawyers, women’s groups and human rights advocates, as a constitutional body entrusted with the mandate to advise the legislature on whether a certain law or legislation is repugnant to Islam, namely to the Qur'an and Sunnah. Read together, the preamble and Articles 2 & 3 clearly give supremacy to Shariah over the constitution.
States, “Somalia is sovereign . . . .” but fails to specify where that sovereignty is vested. Is it in the people? or, as the preamble suggests, in the Shariah?
One way to remedy this can be to distinguish original sovereignty as it rests with Allah (swt) and delegated sovereignty, which rests with the people (ummah), for the purposes of law-making and governance. Therefore, although, ultimate sovereignty rests with Allah (swt), mankind has also inherited a trust, or amana, from Allah (swt), in the form of the khilafa, to govern matters in light of the revelation, or risala. In a famous narration of the Prophet (pbuh), or hadith, the Prophet states, “My Ummah shall not agree upon error” thus reaffirming the importance of the will of the people.
ARTICLE 11 & 12: CITIZENSHIP
Clearly, the Constitution largely follows both the jus sanguinis, citizenship by right of blood, and the jus soli, citizenship by right of birth within the territory. Article 11 (2) states, in part,“. . . [A] person born outside……. or if they are of Somali origin.” In the absence of a clear definition of the word “Somali” in this Constitution, the plain language of this Article entitles any person of ethnic “Somali” origin, specifically the large Somali populations in Djibouti, northeastern Kenya, and the Somali region of Ethiopia to automatic citizenship. While I have nothing bad to say about the delusionary concept of “Greater Somalia,” these words constitute a serious loophole which, if not properly remedied, poses grave economic, national security and public health dangers to the Somali Republic.
Article 11(4) is a reckless disregard of the fact that Somalia’s borders are totally insecure and that there are large numbers of migrant children from neighbouring Ethiopia in the streets of Somalia today. Certainly, these children are entitled to full protection and other remedies under the law, but not necessarily citizenship. Thus, this provision should be deleted altogether. In Article 12(3), I would argue that five years is not a sufficient period of time to allow an alien to fully immerse herself in Somali identity, history, language, and culture. Therefore, in my view, Somali citizenship should be acquired by an applicant who has resided in Somalia a total of 12 years and fulfilled other requirements under the law. In addition Articles 13 & 14 should be merged.
Finally, provisions regulating nationality and citizenship should be left to nationality laws and legislation enacted by the Parliament. Usually, nationality and citizenship provisions are mutable and therefore are best dealt with by acts of Parliament.
FUNDAMENTAL RIGHTS (CHAPTER 3)
This chapter shares suspiciously striking similarities with the new constitution of South Africa!
One purpose of a Fundamental Rights chapter is to provide a vision and goals for a society. Another purpose is to define the relationships between citizens, communities, and the State. In this chapter, the Somali state comes across as a caring society, trying to ensure for its people their dignity and the fulfilment of their basic needs. On the whole it strikes fair and suitable balances, recognizing the liberties of the individual in a community-oriented society. It acknowledges the importance of economic development to the enjoyment of rights, and commits the state to facilitate economic growth by creating a suitable legal and business environment (Arts. 31, & 32). It also responds to the special problems, and recent experiences of governance, in Somalia, and thus contains sufficient protection to citizens, families, and children. The formulation of article 23, freedom of expression, may give the impression that these rights are conferred by the State; it, however, would be an improvement to state that everyone has an inherent right to the freedom of expression.
ARTICLE 51: THE ELECTORAL SYSTEM
Article 51 does not set out the method of voting, nomination, or other key aspects of the electoral system. It is unclear whether, under this system, the entire country is one electoral constituency or if there will be system of multi-member constituencies. Although a single national constituency can produce full proportionality, it has several disadvantages; particularly in the control it gives political parties and the lack of close, effective connections between the people and their representatives. It will be interesting to see how comprehensively the Somali parliament tackles the electoral system.
THE FEDERAL SYSTEM (CHAPTER 7)
The current debate over a federal system as opposed to a unitary system in certain Somali circles misdiagnoses the underlying causes for mistrust among Somalis. Central to the demands of every Somali tribe, in my view, are two major components: a) acceptable level of representation; and b) a desire for self-governance, such as a governor or district commissioner being from own tribe. My sense is that Somalis are less concerned about the nature of their system so long as they are satisfied with the level of representation allocated to their tribe and their ability to govern their own tribal localities. In general, federalism can balance national identity and interests with communal or regional identity and interests, and in this way discourage secession and promote national unity, as has been the experience of India and Switzerland. Federalism is also a reflection of the tolerance in society and the ability of the people to make compromises. It can produce greater responsiveness among government authorities to the people’s wishes and needs in local situations and increase opportunities for their participation in public affairs. Thus, federalism is perfect for countries that, unlike Somalia, have large multiethnic populations with multi-layered demands.
Somalia, however, is an impoverished nation with scarce resources to run large and expensive bureaucracies at federal and state levels. Therefore, I would strongly argue that a decentralized unitary system with strong local government is the realistic approach in Somalia, a country with homogenous population. Further, it is the only system experienced by Somalis in their modern history, thus resembling continuity and similarity to previous governmental systems.
BICAMERAL VS. UNICAMERAL (CHAPTER 8)
If Somalia were to adopt the Federal system, as this Draft-Constitution does, then it should have a bicameral legislative system. Bicameralism ensures territorial representation, provides stability, and assures legislative quality through extended deliberations. In addition, the institutional mechanisms afforded to each branch have significant ramifications for both the relative balance of power between the two branches, as well as the manner in which legislation is proposed, processed and passed. In light of the successful experience of Somaliland in running a bicameral system, I prefer a bicameral system for Somalia comprised of: (a) Lower House of Representatives and (b) Upper House of Elders, or Guurti. The use of the term Guurti would be particularly brilliant and compelling because it is the invention of Somalis in Somaliland and it had such a positive impact in maintaining equilibrium in the politics of Somaliland since the landmark 1993 Borama conference. With respect to article 85, I think the quorum should be a simple majority of those expected to be in attendance. A simple majority of votes should also be the requirement to make a decision.
PRESIDENTIAL V PARLIAMENTARY SYSTEMS
Once again, this Constitution, consistent with the Transitional Federal Charter, gives the Somali people a parliamentary and presidential system. The system as it stands is prone to creating power struggle between the president and the prime minister, similar to those that occurred between former PM Nur Cade and the late President Abdullahi Yusuf. Under this system, presidents would try to run an administrative state and not a democracy.
Only a strong, independent and effective Supreme Court could provide remedy to this flawed system and the constitutional crisis that will undoubtedly result from it.
JUDICIARY (CHAPTER 10)
I do not see a compelling reason for having a separate Constitutional Court. It is simply an unnecessary expenditure. I do believe that constitutional judicial authority should be vested in the Supreme Court which should be the final arbitrator of federal constitutional questions.
INDEPENDENT COMMISSIONS (CHAPTER 11)
It has become common in contemporary constitutions to establish Independent Commissions for the discharge of politically sensitive functions and for purposes of accountability of state officials. The intention is to insulate the performance of these functions from political interference or pressures. Article 136 (1) & (31) establishes a number of commissions with important tasks while it delegates the power of establishing others to the parliament. Given the increased role of religion in the public life in Somalia, I would suggest the establishment of a National Fiqh Council (NFC) with a mandate to advise the parliament and the government on religious matters.
A constitution becomes legitimate once it is ratified by the public. However, given Somalia’s current security situation, ratification should follow a two-step process. The first step will create a provisional constitution. In order to create this provisional constitution, the IFCC should require the approval of the constitution by a constituent assembly representing various regions and tribes of Somalia. Once the security situation in Somalia stabilizes, a referendum, involving the citizens of each region, should take place. After this referendum, the provisional constitution shall become permanent, subject to change only through the stated amendment procedures.
These are indeed perilous times, filled with real opportunities for revival of the Somali State. Any strategy aimed at bringing this political stalemate to a close must be holistic and far-reaching, addressing both the humanitarian and political causes and effects of years of anarchy, factionalism, bloodshed, loss of national purpose and the very essence of Somalinimo itself.
Refounding Somalia demands genuine Somalinimo and nothing less.
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* Prof. Abdulwahid Sheikhosman Qalinle is director of the Islamic Law & Human Rights Project (IHRP), University of Minnesota Law School; E-mail: [email protected]
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