Month: February 2023

PUNTLAND AGREEMENTS WITH FGS WERE INVALID

By Isse Dhoolawaa

My understanding was that President Deni did not sign document/s that were contrary to article 54 (the 4 powers) of the Federal Provisional Constitution or Article 4 of the PL Constitution. If any, documents signed by Deni and the administration before him are ad-hoc agreements allowing the process of governing the country to continue while completing the Provisional Federal Constitution. And that is/ was the wrong thing to do or to go about.

The Federal Government has been utilising its own centralist policies by grabbing and assuming State powers, particularly during HSM and Farmaajo’s period. Both men disregarded Articles 54 and 142 of the Federal Provisional Constitution. Article 54 limits the Federal powers to 4 only. While Article 142 allows the FMS, existing before the establishment of the Federal Provisional Constitution, to adhere and use thier own existing constitutions as well. That means the Federal Provisional Constitution recognises powers within the FMS of Puntland and Gulmudug. These two States had transferred these 4 powers while retaining the rest of their state powers. Remember, in June 2012, there were two FMS only, namely Puntland and Gulmudug.

As I have mentioned above mistakes were made by Deni and Gaas. They signed documents that are contrary to Puntland’s Constitution and Federal Provisional Constitution. At least they should’ve legal expertise and advisers, particularly during the discussion drafting agreements or finalising the document. Nevertheless, their failure doesn’t make the signed documents legal.

For Gaas, one very important document concerns natural resources, particularly fishing, oil and gas sectors. These two agreements were not submitted to the Puntland Parliament for ratification. In addition, oil and gas documents have articles stating co-operation and co-governance on the sectors. In other words, the laws would be drafted jointly. Under these articles the sectors would be managed and governed jointly by FMS and the Federal Governments. Neither the States nor the Federal Government have sole power over these sectors. But Farmaajo Administration drafted Petroleum Law without the consent and the support of the PL Government. In fact, PL Government made it very clear the illegality of the process and its final product, the Petroleum Law.

Thus, both agreements undermine Articles 54 and 4 of PL’s Constitution, the Article 54 of the Federal Provisional Constitution and the Oil and Gas Sector Management Agreement.

Hassan Sheekh Maxamud doesn’t care about the Somalia’s Provisional Constitution nor what Puntland thinks. He wants to govern the country the way he wants. It is his way or the highway for PL. That is why people like me have called for confederal political system for Somalia.

Deni needs to talk about this regularly and continuously. Politics is about expressing your views with certainty and determination.

Constitutional Design: Options for Decentralizing Power

Policy Paper No.2 | March 2018
By Laureate Professor Emeritus
Melbourne Law School

Read it here below:

wp-1677055274670Download

[Courtesy]

SITUATION IN SOMALIA REPORT BY UN SECRETARY-GENERAL

At United Nations Security Council. Latest Report by UNSG

“The recent agreement on the delineation of powers between the Federal Government and federal member states, albeit at this time without the support of Puntland, is encouraging progress. I urge leaders to continue inclusive discussions towards reaching a political agreement on power-sharing and other outstanding issues of federalism, within the context of the constitutional review process. It is vital that National Consultative Council discussions and the constitutional review process be informed by broad public consultations, in order to reflect the views of all stakeholders, including women, young people and marginalized groups. I am concerned by the recent announcement made by Puntland that it would limit cooperation with the Federal Government, and I call on the leaders of Somalia to resolve disputes through dialogue and compromise.”

  1. Subsequently, on 9 January 2023, Puntland issued a statement asserting its constitutional right to act as an independent government until the Federal Constitution
    was finalized, while reiterating its role in building the federal system of Somalia.
    Puntland further outlined its readiness to negotiate separately with the Federal
    Government towards reaching agreements on the completion of the constitution,
    security matters and power-sharing, among other matters. On 14 January, Puntland
    appointed a 22-member technical committee to engage with the Federal Government
    in this regard”.
Read more here below by downloading the file.

wp-1677053094526Download

FEDERALISM CAN BE ASYMMETRICALLY (DIFFERENTLY) APPLIED TO DIFFERENT STATES AND REGIONS WITHIN SAME COUNTRY

According to a research paper issued by Constitutional INSIGHTS published by Melbourne Forum in 2018 on constitutional issues, the world has multiple countries having various constitutional arrangements for different parts of their respective jurisdictions. There are many factors cited for reasons behind devising asymmetrical constitutional arrangements such as culture, religion, geography, wealth, historical grievances etc. Canada has asymmetrical federal arrangement with its French speaking Province of Quebec, allowing it to keep its Napoleon Civil Law, and for Native Territories within Provinces. Puntland, Somaliland and Banadir Region could qualify for asymmetrical arrangement to be enshrined in the Constitution of the Federal Republic of Somalia.

But, what is asymmetrical constitutional arrangement? This is how it has been depicted by Constitutional INSIGHTS.

Asymmetric Territorial
Arrangements in
Decentralized Systems


Introduction
This issue of Constitutional INSIGHTS deals with the questions presented by constitutional or legal arrangements that treat one region of a state differently from others. Differential treatment of this kind is sometimes described as ‘asymmetry’. It can be a useful tool in constitutional design. It may be particularly important in constitution building after conflict. For obvious reasons, however, it also may create envy or resentment on the part of other regions.
Accommodating asymmetry in an existing constitution may, in some contexts, present other challenges as well.
Asymmetry is a feature of constitutional arrangements in all parts of the world. This issue of Constitutional INSIGHTS explores when, how and with what consequences it has been used in Asia and the Pacific. Practice in the region is integral to an understanding of global constitutional experience. The use of asymmetry in Asia and the Pacific offers insights for constitution building in states and regions
elsewhere. Examples of asymmetry on which this issue of Constitutional INSIGHTS draws include: Jammu and Kashmir in India; Aceh in Indonesia; the Bangsamoro region in the Philippines; the Autonomous Region of Bougainville in Papua New Guinea (PNG); Sabah and Sarawak in Malaysia; and the Oecusse in Timor-Leste. As these examples show, asymmetry can be used in a range of different systems:
federations, devolved systems of government and more centralized
unitary states. States in the region in which asymmetry could be a useful tool in the future include Myanmar and Sri Lanka.
This issue of Constitutional INSIGHTS addresses four key questions:

  1. What does asymmetry involve?
  2. In what circumstances is it useful?
  3. What legal framework is needed for asymmetry?
  4. What issues arise in the course of implementing asymmetry? Read more here by downloading the file below:
wp-1676992271556Download

[Courtesy: Melbourne Forum, Constitutional INSIGHTS].

FEDERALISM IS A REALITY IN SOMALIA

We don’t know where everybody of you is on earth, and that is relevant point if you want to gauge the real perspectives of persons in the debate. From our perspectives as persons on the ground in Somalia, federal system is already a reality in the country. Yes, public institutions in both the Centre and most FMS are either non-existent or still rumentary. In the past only Puntland State was advocating for it, but now most FMS wouldn’t accept the return to One City-state Rule from the Centre. True, most FMS depend on the hand-outs from the Centre via international donor community. That is why the Centre has much sway in their respective internal affairs and security as they experience Alshabab onslaught, humanitarian crisis, non-existent infrastructure and a lot more problems. This is where Puntland is far better off and can stand up to unduly influence from the Centre. But, they all feel sense of pride for having made it. Another benefit they got from setting up a regional state is their newly acquired abilities to mitigate clan warfare as all clans feel belonging to a common state. Federalism in Somalia is now stronger than it was when Puntland alone was fighting for it. Puntland leadership may have political differences with the Central and some FMS leaders, but that doesn’t mean that they have abandoned the concept in practice. It is important to understand the situation on the ground.

Also note that the federal system with its different forms is a complex democratic governance with overlaying public institutions. Because most Somali clans are confederal by nature rather than blood lineages (Hawiye, Isaaq, Dir, Raxanweyn etc), federalism would have come easy and suitable to them. But the problem was its implementation because most leaders so elected before were undermining the system. They couldn’t grow out of the old central mentality they had experienced before. The question is, who would then make federalism work in Somalia? It is extremely important to be aware of this fact.

UNDERSTANDING OBSTACLES TO FEDERALISM IN SOMALIA

Advocates of a strong Somali Government argue that federalism weakens the Somali central administration, and the system Somalis agreed upon, following a vicious civil conflict in the country, is not working for Somalia and bound to fail. The proponents of this argument just shy away from declaring their intentions of directly promoting a unitary government, repeating the notion of installing the same mal-administration and tyranny that led to state failure as a result of city-state repression and violation of basic human rights. Many don’t acknowledge the fact that Somalia is still a federal state by name only, and even that is de facto rather than de jure as citizens fled to seek safe havens in their original places of ancestry, following the Civil War. They also seem not to be aware of the fact that leaders of the Central Government, who were elected on the platform of the Federal Constitution, paradoxically were undermining the very system they are elected to protect and uphold. Sheikh Sharif Sheikh Ahmed, Hassan Sheikh Mohamud 1 & 2, and Mohamed Abdullahi Farmajo were undeniably committed to doing away with Somalia’s fragile federalism. However, by attempting to unravel the system, they did more harm to the people’s trust in public institutions. Any argument for and against decentralization of Somalia’s governance which do not take into account the fact that federalism doesn’t take care by itself without concerted national efforts and intellectual power behind it, doesn’t deserve recognition in this debate.

Many Southern Somalia think tanks, media houses and prominent personalities are leading relentless campaigns to promote a centralist approach to Somali governance. At the forefront of these efforts are Mogadishu-based Heritage Institute for Policy Studies and Hiiraan Online, just to mention a few. Another major impediment to federalism is a secessionist attempt in Northwest Regions of Somalia, with many now promoting the idea that the Provisional Federal Constitution can’t be completed without Somaliland joining in. Others use these fresh political trends as excuses to prolong the status quo and freeze the democratic aspirations of the Somali people. Secessionists in Northern Somalia are now resorting to military violence against resisting residents in Sool Region as they see diminishing returns for their unilateral attempt to break up Somalia.