OPEN LETTER

TO: Mr. Bethwel Kiplagat/Chairman
Somali Reconciliation Conference
Inter-Governmental Authority on Development
Secretariat
Intergovernmental Authority on Development
P.O. Box 2653,
Djibouti
Republic of Djibouti

Dear Mr. Kiplagat,
We would like to take this opportunity to express our views and our concerns
regarding the important efforts currently underway on the Somali National
Reconciliation Conference in Eldoret (Kenya). We refer to conference
procedural matters, individual rights versus clan rights, the disastrous
state of human rights in the country, constitutional rights, judicial
review, war crimes tribunal, the land question, and the need for affirmative
action.
1. Procedural Matters
We are aware that the Somali crisis is entering a new stage in its
development as a result of the efforts of the regional and international
powers to bring an end to this tragedy. It is reasonable to assume that
there are plans to assist the Somali people set up a transitional government
in Eldoret and formulate a new constitutional, political, economic, social
and cultural order for a future Somalia. These are very important steps
which take us back to 1950, for reflection, when the United Nations
Trusteeship Council assumed responsibility for preparing Southern Somalia
for independence under a ten year United Nations Trusteeship Administration.
The work that was done, then, was extremely remarkable, in terms of the
constitutional rights that were guaranteed to every Somali citizen.
Despite this rich constitutional background, past reconciliation talks on
Somalia were fatally flawed from the beginning, because a high proportion of
the participants to the talks were drawn from the club of armed militias.
Clans represented by armed militias were accommodated and received favorable
quotas in matters of representation and power sharing, at the expense of the
vast majority of peaceful communities in the Benadir and in the
inter-riverine region. We continue to believe that those who raise national
reconciliation issues in an attempt to shut off any effort to resolve clan
quota in matters of representation evenhandedly err because they do not take
into account the background of injustice in the country and the aspirations
of the millions of peaceful Somalis for equal rights and equal opportunity.
Further, there has been total disregard for transparency and fair play in
procedural matters in representation and power sharing, which we believe are
no less important than substantive issues.
The basis of our philosophy is that Somalia in its entirety belongs to all
who live in it, and that no government, can have authority and enjoy
legitimacy, unless it is based on the will of all the Somali people, and
that conference participation, as much as clan representation, are central
arguments to the resolution of the Somali crisis.
2. Individual Rights versus Clan Rights
Modern societies protect individual rights above all else on the
understanding that all other rights are subordinated to individual rights
and freedoms because only the individual is sacred and has dignity, not the
group, nor the clan, however defined. Clan rights, backed by a false
majority, under conditions that basically blackmail the success of the peace
talks, unless certain set asides are not guaranteed, remain the obstacle to
the resolution of the Somali crisis. We have seen the dark nights of the
military dictatorship in Somalia (1969-90) and the anarchy and devastation
that followed (1990-present) and we understand that the group rights model,
if not followed to the letter, under an atmosphere of equality, would result
in the preservation of the nightmare of clan hegemony, injustice, and
institutional violence. In fact, the United Nations Trusteeship
Administration in 1950, and the Somali Constitution of 1960, did not even
address this type of model. It is fair to expect, in the interest of the
whole nation, that due attention be paid to the more legitimate voices of
the vast majority of peaceful Somalis who derive hope and inspiration from
the ideals of democracy, freedom, and equal rights.
As points of departure, for the resolution of the question of individual
rights versus clan rights, we recommend the adoption of the annex of
constitutional rights adopted by the Trusteeship Administration for Southern
Somalia in 1950, in conjunction with the Somali Constitution of 1960. These
two documents, even though the Somali Constitution of 1960 needs further
improvement due to the absence of a bill of rights and judicial review of
acts of parliament, have nonetheless produced concrete positive results
during the administration of the First Republic (1960-69).
A written constitution underpinned by a bill of rights, both of which are
protected by judicial review, is the best known way to prevent dictators,
warlords, and clan oligarchies from hijacking a nation.
3. Universal Suffrage
Vast sections of the Somali people are illegitimately stigmatized as
minorities, despite the fact that there has never been any census in the
country to establish who is a minority and who is a majority. The same
groups who continue to invoke the majority/minority clause have always been
in power in the country since independence in 1960, and we know that they
have always blocked any attempts to carry out a census in the country, the
latest being the deliberately frustrated UNDP Somalia Population Census
Project of 1975. As far as we are concerned, we understand that the roots of
this alienating plot goes back to the formation of the First Legislative
Assembly in Somalia in 1952, when the Italian Administering Authority in
collaboration with certain groups, worked to label certain groups, such as
the Benadiris, as minorities. This was in response to the leading role that,
in the early years of the colonial administration, the Benadiri people
played in the formation of the three important national liberation movements
in the country, namely the Somali Youth League, the Benadir Youth Union, and
the Hizbia Dastur Mustaqbil Somalia.
We believe that there can be no substitute to universal national suffrage as
the only means by which any future Somali government can claim legitimacy.
Any plan which rejects universal suffrage and which approves of a power
sharing mechanism based on franchise rights only within clan groups, living
within their group area, is undoing the work of a century of urbanization,
economic development, and national integration. Such constitutional
provisions, if ever adopted, would exclude millions of alienated groups who
do not belong to any of the armed militias, either as voters or as
candidates for electoral office.
Because the Benadiri people bear the scars of alienation for over fifty
years, because we learnt the hard way that a government which claims to
represent the people of the country is different from a government which
consists of true representative members of the people, we believe that the
institution of free and fair elections is a key to giving the alienated
groups the opportunity to defend their basic human rights. Those who claim
and thus reserve themselves the role of majority status and hegemony will
only have to show the numbers and abide by the internationally recognized
democratic principle of one man, one vote.
In this regard, a United Nations supervised national election, like the one
carried out in Liberia in July 1997, in the presence of prestigious
non-profit organizations, such as the Carter Center, would help remove the
unrelenting confusion and mystification that is continuously raised over the
distribution of political representation in the country.
4. Human Rights (Ref, Amnesty International letter to the Eldoret Conference
of November 7, 2002)
It is documented that the most ferocious wars, destruction, and pillage in
Somalia, have taken place in the Benadir. Marauding armed militia, belonging
to various groups repeatedly raided the defenceless population of the
Benadir, systematically looted their property and raped Benadiri women, even
inside the mosques. Extortions, kidnapping, and blackmail are, up to now,
the order of the day, as the men and women remain helpless at the mercy of
lawless bandits.
For over ten years, the Benadir remains under the occupation of armed
militias from other regions of the country. The native population are
continuously harassed, are denied the right to life, freedom of speech and
movement, while huge properties belonging to the Benadiri people of
Mogadishu, Merca, Brawa, and Kisimayo are still in the hands of thugs. The
Benadiri population, inside the country, and those in the Diaspora, suffer
immense psychological trauma, deriving from the atrocities committed against
their beloved ones, and the ethnic cleansing against which they have no
protection.
We do not believe, as some would like to suggest, that raising the question
of human rights violations would disrupt the current initiatives for the
formation of a stable political regime in the country. In the course of the
past decade, we have witnessed a persistent desire on the part of various
international organizations to tolerate and maintain a dialogue with
warlords on the basis that they hold authority over segments of the
population, even if such partnership did not lead to the fulfillment of UN
objectives to reach, assist, and educate the masses. We have seen
insensitivity to the cries from the victims that by attributing a leading
role to the warlords, the international organizations were essentially
giving them political legitimacy and undue credit in the eyes of the
victims. More than often, as has been the case in Somalia, such benevolent
initiatives to work with warlords, were deliberately frustrated, and ended
up to reward and strengthen the economic base of the perpetrators of
injustice with international economic assistance. No question that this
state of affairs has inevitably contributed to the stalemate, confusion, and
dismay, in the political system in Somalia. It has had a demoralizing effect
on the people and created uncertainty in the search for an alternative.
5. War Crimes Tribunal
In our view, the formation of a war crimes tribunal for Somalia is a key to
turning around the perpetuated violations of human rights in the country. It
is very important, for the victims and for the stability of the whole
region, to send a clear and sounding message, especially to non-state
violators of human rights in Somalia that nobody can be above or beyond the
reach of international law. Genuine reconciliation efforts, oriented to
build a stable political regime in the country, ought to address first and
foremost, the question of human rights abuses and war crimes in the country.
We do not believe, as suggested by some, that Somalia is currently at a
stage where we can talk about Truth Commissions because that would imply
that the current situation in the country is set to look into the future,
has guaranteed the basic rights to representation, has recognized and is
committed to carry out the restitution of seized property and land, and that
a fair and effective judiciary is in place to protect the innocent and
punish the violators of human rights. Unfortunately, none of these essential
coordinates of the equation are in place in Somalia today.
We feel a pressing demand for the adoption of an organic act in the country.
Such an act would define the rights and duties of the citizen, set forth the
rights of persons under suspicion of a crime or under arrest, the right to
bail, and to a speedy and public trial. The offices of human rights of the
UN and NGOs might be able to provide valuable assistance in setting up the
human rights standards, while the future Somali government should endorse,
sign, and abide by all international laws on the protection of life and all
human rights. The future Somali state should become a signatory to the
upcoming International Criminal Court as an essential means with which to
deal with the numerous perpetual non-state violators of human rights.
6. Emergency Powers
For the most part, close to one whole century, Somalia has been ruled with
emergency powers, from the advent of Italian colonialism (1900) to the end
of the military dictatorship (1990). Because it is more than likely that any
future regime, which comes to office, will be tempted to use emergency
powers, it would be wise to make restrictive constitutional provisions and
thus condition the introduction of a state of emergency on legislative
approval. The conditions under which emergency action can be exercised must
include a) a requirement that any declaration of a state of emergency lapse
unless it is specifically approved by the legislature within a short period,
b) prohibition of invasion of rights except pursuant to statutory
authorization, c) legislative approval of the use of emergency powers must
be by super-majority vote, such as a two-third majority, d) any declaration
of state of emergency must lapse after a limited period of time subject to
renewal by the executive and re-approval by the legislature.
Non-derogable rights under any state of emergency, as specified clearly in
the International Covenant on Civil and Political Rights, include: the right
to life, the right to be free of torture or cruel, inhuman, or degrading
treatment, the right not to be enslaved, the right not to be imprisoned for
failure to fulfill a contractual obligation, the right to recognition as a
person before the law, and the right to freedom of thought, conscience, and
religion. The future Somali Constitution must forbid any discrimination on
the ground of race, colour, sex, language, religion, or social origin. To
preserve the integrity of the system, and build consensus over national
issues, it is of fundamental importance to protect the right to due process,
and the right to see counsel and family.
There is no reason why the Somali people who have suffered so much, for one
whole century under colonialism, military dictatorship, and anarchy, should
not have the right to enjoy first generation civil and political rights, as
well as second generation economic, social and cultural rights, and third
generation environmental rights. They have paid the price over and beyond.
7. The Land Question
Land, especially agricultural land, is at the heart of the Somali crisis. On
the eve of independence in 1960, the Italian colonial plantation
concessionaires owned 73,000 hectares of gravity irrigable land, seized from
poor peasants, along both banks of the Shebelle and Juba rivers. The
military dictatorship seized an additional 35,000 hectares, belonging to
very vulnerable peasants along the banks of the two rivers. In the course of
the last decade, southern peasants were harassed, robbed, their land
occupied forcibly and their property devastated by marauding armed militias,
in an attempt to forcibly expel them from their land. As we know, the
colonial administration, civil governments (1960-69), and the military
dictatorship (1969-90) seized the land with the use of fraudulent land
legislation, which favoured and encouraged the colonial agricultural policy
based on the cultivation of banana, under a protected quota system. As more
and more peasants were pushed to rain-fed agriculture, and consequent
urbanization, the nation's food supply became irreversibly jeopardized.
We are not looking forward to a reconciliation conference which is silent on
the question of land grabbing from the vulnerable native farmers. We look
forward to a constructive peace conference which will redress the historical
injustices of land grabbing, dating as far back as the colonial era, all the
way to the present, which left the vast majority of native farmers, not only
landless, but cheap labour at the mercy of illegitimate banana plantations
and other cash crops. Any future constitution that fails to address this
fundamental problem of Somali agriculture will never endure.
Further, legitimate equity arguments and national food supply considerations
call for a land reform policy based on the restitution of the land and all
forms of property back to their original owners. A recourse to the past and
recent history of Southern Somalia, namely in the Benadir and the
inter-riverine region, provides ample information on the land question.
8. Affirmative Action
There is need to bridge the gap between the great wealth accumulated by the
few under the non-state regime of warlordism, military dictatorship, and
colonialism and the grinding poverty of the toiling masses for whom life is
a constant struggle for mere existence. Failure to narrow this gap would
leave the vast majority of disinherited masses hostage to the illegally
acquired wealth of certain groups. An affirmative action plan would do well
to correct the economic aspects of this problem.
The laws of the country should grant groups which have been discriminated
against and alienated, namely those disadvantaged natives, residing in the
Benadir and in the inter-riverine region, the necessary improvements to
which they have been denied for over a century. These two regions bear the
trauma of half a century of direct colonial rule, part of which was
painfully consumed under the Italian Fascist Regime, three decades of clan
rule, and a decade of destruction and havoc.
Those with sufficient economic power should be prevented from utilizing the
equality or non-discriminatory provisions in the Bill of Rights, to obstruct
corrective action. The Bill of Rights will have to take account of the
political, social, and economic imbalances that exist in the country today.
9. Unitary State versus Federalism
We share the underlying concerns that lead vast sections of the Somali
people to dismiss the unitary state because of fear of abuse of power by the
central authority. So much pain and suffering have been caused to innocent
civilians in the countryside and in the cities by the military dictatorship
that ordinary citizens legitimately question the validity of a central
authority which cannot deliver and protect its own citizens. This is the
background against which we inevitably must see the debate between a unitary
state versus federalism and it is driven by the inspiration of the vast
majority of defenceless citizens to escape the oppression of a despotic
unitary state.
Despite this revolting reality, there are serious doubts about the economic
feasibility of four or five separate city-states, under the present backward
state of the economy. Further, the same tenets of set asides, clan
privileges, power concentration, abuse of power, and mismanagement, that
brought down the unitary state are inherent in the existing breakaway
city-states, where power is concentrated in the hands of one or to two clan
families. The matter is further complicated by the ambitions of certain
powerful leaders to preserve their personal and clan leadership at any cost,
be it at the national level or at the city-state level, and is based on fear
of loosing power and of majority rule rather than a rational judgment of the
real interests or needs of the people of Somalia. Indeed, the dismissal of
the unitary state is a prelude to the downward proliferation of clan feuds
and hostilities in every corner of the country, as is already the case in
the existing city-states. The problems of the Somali people, as far as the
abuse of power is concerned, hence, do not go away by throwing away the baby
with the dirty water.
There is nothing to prove that a democratic decentralized unitary state, of
constitutional checks and balances, of separation of powers, of a
multi-party state, and of a judicial bill of rights to guarantee public and
private powers, with regional autonomy, based on equal rights and equal
opportunity for all individuals, cannot serve the people of Somalia. The
future Somali State must have the duty to promote a single national identity
and loyalty, but at the same time, recognize, protect, and develop the
positive aspects of cultural and linguistic pluralism.
10. Closing Remarks
The absence of a theoretical and practical alternative to the resolution of
the Somali tragedy does not necessarily create a condition whereby the
fundamental freedoms for all without distinction as to race, gender,
language, religion, and political opinion can be traded for the formation of
a government in the country. That has never been the spirit of the drafters
of the Universal Declaration of human rights. These universal values, which
are binding on any form of regime that is established in Somalia, cannot be
postponed, nor can they be left to the discretion of any group or any
administration. It is our hope, that the Inter-Governmental Authority on
Development in East Africa will not seek any plans to support a political
regime in Somalia, which deprives vast sections of the Somali population,
their sacred rights to freedom and representation, without ever yielding to
the demands for preferential treatment and set asides. The record shows that
attempts to persuade the international community to bail out warlordism out
of the dead end in which it finds itself, for over a decade now, did not
work in the past.
We hope that the current efforts to bring peace and stability to Somalia
will yield positive results for the majority of the alienated groups in the
country. We hope that the international community and especially the
neighbouring countries of IGAD will assist the Somali people build its
nation. We look forward to a Reconciliation Conference which will bring
justice, freedom, peace, and stability for all the people of Somalia. May
the future constitution of Somalia not become another burden.
Sincerely,
Abdulaziz Hagi Mohamed Hussein
Benadiri-Watch
Benadiri Refuggee Community in the Diaspora
[email protected]