Blog of the International Journal of Constitutional Law

Somalia Constitution Approved

In the face of an attempted suicide bombing, 645 members of a constituent assembly overwhelmingly approved a new Constitution in Mogadishu. The constitution had been urged by members of the international community as an essential step in re-establishing Somalia as a genuine functioning state after decades of civil war. While the draft text itself won’t guarantee that outcome, it does set in motion a process that could produce such a result. The odds are long in any case.

Reconstruction through constitution-making has a long history, and somewhat of a mixed record. The UN, of course, was heavily involved in producing constitutions in places like East Timor, Afghanistan and Cambodia. The adoption of a constitution typically signals the end of international stewardship and the re-establishment of national sovereignty, but in the case of Somalia, significant international engagement will have to continue if the thing is to work. On a good day, the central government controls most neighborhoods of Mogadishu and little else, and so will need a healthy supply of carrots to induce the rest of the country to transfer authority to it.

In Somalia, the main issues in the drafting process have been the role of Islam, federalism, and the form of government. The form of government was resolved some months ago and will be parliamentary. In addition, the main political factions demanded that the transitional legislature be formed using the so-called 4.5 formula, which allocates equal shares to the four large clans, with a half-share for all the other clans. So the challenge of the Constitution will be to gently ease away from this allocation toward more fluid systems of representation.

On Islam, this draft makes a fair attempt to conform to both Islamic and international human rights standards. The ban on female circumcision (which earlier drafts declared to be contrary to Islam) is particularly notable in this regard. But one provision that has been pretty controversial is the ban on propagating religions other than Islam, found (duplicatively) in both Arts. 2(2) and 17(2). Such bans, while found in ordinary law of certain other Islamic countries, have not been put into other constitutions to my knowledge. The drafters received some pressure to change this provision.

The Constitution includes a repugnancy clause, which states that laws must be compatible with Islam (Art. 2(3)). Comparative experience suggests that the key thing here is not what the constitution says about Islam, but who interprets it. Some countries have a very strong provisions requiring compatibility of laws with Islam, but these are interpreted by relatively liberal constitutional courts. The Somalia draft contemplates a constitutional court with expertise in both law and Shari’ah.

On federalism, the main challenge is that some regions of the country have fully functioning governments, while others have nothing even close. The central government has to both gain authority from functioning Member States like Puntland and Somaliland, while helping to deliver services and create governments in other areas. The final Constitution is a significant improvement over earlier drafts on a number of scores. While earlier drafts contemplated exceedingly complex schemes for allocating powers between the Federal and Member State levels of government, this version has only a few powers reserved to the Federal government (Foreign Affairs, National Defense, Citizenship and Immigration, and Monetary Policy as per Art. 54) and leaves the rest open to negotiation. This probably makes sense given the extremely weak position of the current central government. But it will be a major challenge ahead.



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