Somalia
Somalia: Interpeace corrections to ICG report on Puntland
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Aug 28, 2009 - 7:22:28 PM

This note provides a commentary on the ICG report “The Trouble with Puntland” (12 August 2009) with reference to the section on the constitutional review process. Relevant extracts from the ICG report are annexed at the end of this note for ease of reference. Key concerns regarding the ICG report section on the constitutional review process are that it demonstrates:

1. ignorance of the Puntland constitutional review process
2. unreasonable criticism of the constitutional review process
3. inherent contradictions.

1. Ignorance of the Puntland political and constitutional review process

• Reference to replacing the Charter with a new Constitution when in fact the process was revision of the existing provisional Constitution

The report states: “The regime’s attempt to replace the 1998 Puntland Charter with a new Constitution also exacerbates the government crisis.” (Page 8) and “The idea of a constitution to replace the Charter was first mooted in 2005” (Page9).

 In fact, Puntland has been under a Constitution (and not a Charter) for the last 8 years: the intention to replace the 1998 Puntland Charter was consummated in June 2001 when Parliament passed a Provisional Constitution, pending a public referendum to approve it. The process initiated in 2007 (NOT in late 2006 as indicated in the report) was a revision of the Constitution, with the body charged with preparing the draft revised Constitution named accordingly as the “Constitutional Review Committee” (CRC).

• Ignorance of the actual constitutional review process that took place

The actual review process differs in critical and significant ways from that presented in the ICG report (see annex). The key steps followed in the review process are as follows:

1. The Constitutional Review Committee was established in February 2007 and began the review of the Constitution in June 2007.

2. In February 2008, a first draft was submitted for the consideration of over four hundred Puntlanders in a series of four 3-day forums (i) for governors, mayors and councillors; (ii) and (iii) for civil society groups, umbrella organizations, and business leaders; and (iv) for over 150 traditional leaders. In preparation for each forum, participants were provided with a copy of the draft revised constitution and encouraged to identify: specific articles for discussion, amendment or suppression; and any important gaps. Each forum opened with a presentation by a member of the Constituional Review Committee on the general content of the draft and the process through which it had been drafted.  The comments and input from participants were tabulated and recorded in a matrix to be used by the Constitutional Review Committee during finalization of the draft, with the oral interventions recorded, summarized and subsequently discussed and analysed by the Committee. Many of the recommendations were incorporated into the Final Draft presented to the Executive in June 2008. 3. The Cabinet forwarded the Final Draft immediately to the Parliament. However, when the Parliament reconvened for its ordinary period of sessions in October 2008, it was agreed that, in order to minimise the risk of politicisation of the review process, the task of discussing and approving the changes should be deferred to the new Parliament, to be inaugurated in January 2009. 4. One of the first acts of the new Puntland government was to recall the Final Draft constitutional text from Parliament and submit it for another revision. The text was then debated by Parliament in a special session throughout May 2009; a team of five Puntland lawyers were appointed as advisers; and the plenary approved the text submitted by the Executive with significant changes.

• Unbalanced perspective with disproportionate and inaccurate attention to the opposition to the constitutional review process
Of the nine references supporting this section of the ICG report, two are from the media and the other seven, containing judgements and no facts, are from government critics, reflecting a lack of analytical balance.

The report refers on several occasions to the growing opposition to the constitutional [review] process. As with any other political process, there is no doubt that the constitutional review has its critics but the weight given to this in the report is not corroborated by concrete facts - with the sole exception of the opposition presented by a group of fourteen traditional leaders.

The report presents the public manifesto on 29 June 2008 by the group as follows:
“The response from the dissident clan elders was swift and politically unprecedented. Fourteen prominent Isims (chiefs) signed a widely-publicized petition, condemning the entire exercise and calling for a region-wide conference to <Save Puntland>" (Page 9).

Firstly, the public manifesto refers to the general situation of Puntland and makes only one reference to the Constitutional review process as follows: “4.  The submission of the provisional constitution to state organs, prior to public referendum, should be postponed, because it contains serious defects” (see annex of the manifesto). To characterise this as “condemning the entire exercise” is both inaccurate and misleading. Closer analysis of the process and events preceding the manifesto would indicate that a key factor might be the refusal by the elders’ consultative forum in February 2008 of the proposal made by the group of fourteen traditional leaders to adopt a bicameral system for the legislature, reserving the
upper house for the traditional leaders (similar to the Guurti in Somaliland). The
Constitutional Review Committee responded in writing in March 2008, clarifying that their mandate did not include radical reformation of fundamental organs of the state.

Secondly, the manifesto, contrary to what the ICG briefing affirms, was clearly not a “response” to the approval of the Final Draft, by the Cabinet and the Parliament since the manifesto was issued on 29 June 2008 before the Cabinet approved the Final Draft in July 2008, with the Parliament approving it over 6 months later: the letter of the manifesto clearly implies that it has not been submitted to the State’s institutions.

Finally, credible analysis of the assertion of growing opposition to the constitutional process by the clan leaders would require an explanation of why the Final Draft Constitutional text was approved by 49 members of Parliament, with only 2 against and 3 abstentions if, as the report states: “A regional parliament chosen by clans was established”.(Page 5)

2. Unfair criticism of the constitutional review process

• Criticism that the [review] process was undertaken in secrecy and without civic
participation “T he constitution was crafted in secrecy, without input from civil society and key clan constituents” (Page 8) and was one in which “ much of the Committee’s work was shrouded in secrecy” and footnote “ This did not, however, prevent leaks, and by May 2008, the draft was being openly debated, especially controversial clauses”.

The report gives no evidence to support these criticisms. Far from the text being “leaked” by May 2008, 3 months earlier in February 2008, hundreds of copies of the text were distributed by the Constitutional Review Committee to the participants in the forums, electronic versions of the draft revised constitution were distributed to Puntland websites and recordings were transmitted by Puntland radio stations. Civil society groups worked with the Constitutional Review Committee to produce a radio education programme on the draft revised constitution
with the aim of ensuring public exposure to key issues well before the planned referendum. This generated a high level of discussion in Puntland, with the constitution and many of the key articles becoming ‘buzz words’. In addition, throughout the review process, members of the Constitutional Review Committee gave media interviews (radio and newspapers). On civic participation, the process is described above (1).

• The issue of the separation of Puntland from the rest of the Somalia Federation
The report presents the constitutional process as part of a strategy to separate Puntland from the rest of the Somali Federation “Some regime figures see the whole project as an effort to engineer a final break with the south and move Puntland toward secession.”(page 9) and, more categorically, the report concludes that [the new constitution] “[It] seeks to put Puntland firmly on the path towards secession” (page 9).

Firstly, the production of a State Constitution to be approved by referendum was an obligation placed on the government by the Puntland Charter (1998) and one of the criticisms levelled against the Abdulahi Yusuf regime was its failure to produce the State Constitution
on time.

Secondly, the proposed Constitution, following the mandates of the Puntland Charter and the Provisional Constitution (as well as the Somali Transitional Federal Charter), defines Puntland’s political regime as Federal: this is a central feature and reflects Puntlanders’ decision to opt for a different system of government due to their negative experience with the unitary system in the past.

Thirdly, the two specific causes for secession from the rest of Somalia appear in Article 4 of the revised constitutional text: the rationale is explained not by a desire for independence but because of:

(i) Inability to develop an effective government in south-central regions of Somalia
As the years pass without any possibility of forming a federation in the absence of any other States, the sense of being a de facto independent state becomes more ingrained in the life of Puntland, as the report recognizes in footnote 1 “ At present, the government of Puntland operates wholly autonomous of the Transitional Federal Government” (Page 2)

(ii) Indications of reversion to a unitary government amongst politicians in the south When the new government was established in Mogadishu after the Djibouti Agreement in early 2009, it appeared to change its name from ‘Transitional Federal Government’ to ‘Government of National Unity’, accompanied by discussions among politicians in the south on reverting to a unitary system of government. This triggered a reaction in Puntland to reaffirm more clearly in the Puntland constitutional text, on the one hand, the need for a federal system of government and, on the other hand, the recognition that, to a great extent, Puntland polity is de facto independent from the rest of Somalia.

Nevertheless, the Final Draft Constitution explicitly recognizes that the Federal Constitution is above the State one (Article 138); includes a special procedure to harmonize the State Constitution with the Federal one (Article 140); and secession would require a 2/3 majority in Parliament and approval by popular referendum (Article 4. 5).

Finally, the ‘evidence’ presented in the report of the secessionist drive in Puntland relating to Puntland’s anthem and flag, reflects lack of knowledge about the federal system, in which it is common practice for the different States to have their own anthem and flag.

Other criticisms of the constitutional review process in the ICG report that refer to it the process as “heavily politicized”, “ill timed”, or “badly managed” are unsupported by evidence and appear instead to reflect the opinion of opposition figures.

3. Contradictions

• In analyzing the content of the new constitution, the report recognizes that “The document has noteworthy features…….It is mostly strong on human rights” (page 9) but three paragraphs later comments that “Many individual and civil liberties are limited”.

• Reflecting on the party system, the report comments “There is a danger a multiparty system will simply formalize the growing clan schisms, with every clan or sub-clan creating its own party, as happened in southern Somalia in the 1990s.” (page 8) while the concluding comment on the content of the Constitution states “The move to a multiparty system and the limits placed on the number of official parties could intensify inter-clan friction”.

4. Concluding comment

The ICG report’s assessment of the Puntland Constitutional Process “The region is now saddled with a basic document that lacks popular legitimacy and is increasingly contested by key segments of society that feel they were deliberately prevented from shaping it” is untenable on empirical grounds, does not recognise that the process was revision of the existing provisional Constitution, and does not reflect the current reality in Puntland.

Read Full ICG Report

PS. Garowe Online obtained Interpeace Response on ICG Report.



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