By the time the Somalia Transitional Federal Parliament convened for the first time in the town of Baidoa on 26 February 2006, the constitutional process was high on the list of urgent business. In 2004 parliament had been sworn in, and according to the transition timetable a draft constitution had to be ready by October 2007.
Reliance on a constitutional process as part of a transition from a peace agreement to a legitimate elected government is an increasingly common methodology. It acknowledges that those at the table during peace negotiations may not represent all the interests in a country, that in many cases the range of issues that need to be debated in a constitution are too vast for a peace negotiation, and that many of these issues are best debated at a slower pace, in a more inclusive fashion.
This was certainly the case in Somalia. The peace agreement took the form of a transitional constitution – the Transitional Federal Charter of the Somali Republic – and set out many provisions that could be part of a constitution, including a federal governance structure and Islamic Shari’a as the basic source for legislation.
However the Charter had been adopted by unelected participants in a peace negotiation. It did not have the approval and involvement of the Somali people and lacked the legitimacy required to establish a workable peace and a viable state. Hence Article 71(2) of the Charter provided that a federal Constitution based on the Charter was to be drafted (within 2.5 years) and adopted by referendum during the final year of the transitional period. The TFG had a three-year window and a consortium of donors, NGOs and international agencies was formed to support this process. I was brought in as lead legal advisor to assist on the project.
The Charter provided for the creation of a Federal Constitutional Committee (FCC), the members of which were to be proposed by the Council of Ministers and approved by the parliament. The first step therefore was to create this commission.
Undoubtedly some difficult negotiations took place among the ministers and parliamentarians in putting together a list of 15 members, who were ultimately chosen on a clan basis using the ‘4.5 formula’, like the parliament. An early list did not have any women on it, but in response to advice about the importance of having a representative commission, two women were included in the list sent for parliamentary approval.
Part of my role was to explore with the TFG the sorts of processes and methodological options available to them in setting up the constitution building process, and to enrich their understanding of these options through comparative discussions of other constitutional processes.
Discussions with Somalis revealed that many of the core concepts that had been negotiated during the peace agreement were not well understood. Federalism, and in particular the fact that federalism requires relinquishing some power and control by the central government in favour of the states or regions, had not been internalised, as became clear in discussions with members of the TFG.
A lot of emphasis was put on the need for a public dialogue and an inclusive process in order to ensure that the final draft had legitimacy and would be accepted at referendum. At the time, Kenya was considered a cautionary tale as the people of Kenya had just rejected their new constitution at referendum.
In June parliament established the FCC in the Somalia Constitutional Commission Act (June 2006). This established guiding principles for the Commission, namely that it was to take account of: the Charter, the principle of Islam, democracy and social justice, and a process that “(a) promotes public participation, transparency and accountability to the people; (b) accommodates the diversity of Somalis and their opinions; and (c) promotes stability, peace and reconstruction”.
The members of the FCC would not be powerbrokers within their clans, but they were respected clan members with professional backgrounds that ranged from former judges to religious elders. They convened for the first time at a week-long workshop hosted by the UN Development Programme (UNDP) in August. The members of the commission proved to be engaged and interested, aware of the risks and challenges they faced and determined to take their responsibilities seriously.
One of their first decisions was to change their name to the Independent Federal Constitutional Commission. During the workshop, the IFCC drafted their rules of procedure and agreed on the following methodology and procedural steps:
1. A civic education program that would run the entire three years (to late 2009) and empower the people of Somalia to understand why a constitution was being made and what their governance choices were. This was to be overseen by the commission but implemented by a Secretariat with civil society collaboration.
2. A consultation process of nine months following an initial period of civic education, in which the commission would initiate a national dialogue to bring divided and fragmented groups together to discuss a common future for the state.
3. The preparation of the draft constitution itself would take six months, and the commission would request comparative and expert assistance as they identified their needs. The draft would be the subject of further civic education before the referendum. There was discussion of a representative validation meeting before the referendum, but it had not been decided on.
These decisions were well received by Minister Derro, the Minister for Constitutional Affairs, and represented a hopeful start for the constitutional process. The international consortium agreed to support the process on this basis and allocated a substantial budget to so do, in the order of 10 million Euros.
However all of this activity was taking place against the background of the rise of the Islamic Courts Union (ICU) in Mogadishu (June 2006) and its standoff with the TFG. Even as the constitutional process seemed to be opening up an opportunity for dialogue and negotiation between all Somalis, including the Islamists, it was apparent that the ICU and the TFG were facing off for another round of conflict.
In fact the Minister for Constitutional Affairs became one of the first casualties of the renewed war in Somalia. He was assassinated after Friday prayers in August a few days after the launch workshop of the IFCC. It remains unclear whether he was targeted because of his involvement with the constitutional process or whether he was simply an accessible target. In the chaos that followed, the constitutional process was essentially put on hold, as the transitional parliament and government turned all their attention to the crisis.
Since 2006, the commissioners have attempted to continue with preparations, but with the TFG on the verge of collapse there was little impetus to run a complex constitutional process in such an unstable environment. With a new government in place since January 2009 there may be an opportunity to re-launch the process, but it will depend on whether the country is stable enough to conduct of a participatory constitution building process.