Inconsistencies and conflicts in the sharing power between the federal government and federal member of states in provisional federal constitution of 2012.
Somalia officially became a federal state in 2012 after 825-members of the National Constituent Assembly approved a new provisional constitution.
However, the implementation of the federalism in legal aspect faces inter alia numerous problems created by provisions regarding how power will be shared between the federal government and federal member of states. Among many core features of federalism in many countries across the world is that the federal constitution provides an elaborate legal structure through which the two levels of government would discharge their duties in a way that they complement each other.
The law also highlights approaches and institutions tasked with resolving conflicts and mediating between the federal and state governments. Equally, frequent disputes arising from the question of sovereignty/supremacy between the federal laws and institutions and over the regional constituents and legislation are well articulated in the various statutes that establish the federal system. In most cases, the federal laws reign supreme over regional states since it is the federal constitution that forms the basis for establishing the authority of constituent states of the federal system.
Also, the federal laws do override those laws promulgated by the regions, they are usually the most effective and they have the strongest impact compared to the laws issued by the regions (constituent regions of the federal system) given their significant and influential power. On the contrary, it is noteworthy that the Somalia constitution has some provision which is inconsistent with the principles of the supremacy of the federal constitution and federal laws over the regional constitutions and laws. Article 54 does not mention or definition the allocation of powers and resources between federal government and federal member states.
In addition, there is inconsistency in the mechanism for resolving disputes oversharing of power between the central government and regions. Although, Article 50 (g), on the Principles of Federalism in the Federal Republic of Somalia mentions that resolution of disputes should be through dialogue and reconciliation it does not address important aspects of the same for example by who and how this dialogue should be organized of federalism in Somalia.
Secondly, the federal system of government in Somalia continue to face serious challenges from the on -going conflict, secessionist ideology in other parts of the country as well as lack of sufficient resources to ensure that the various states are able to provide the necessary public goods. These problems can be traced back to the constitution making process. The current constitution was written as part of a peace building process; however, this was done with little regard to public participation and deep-rooted consensus among various actors.
Post -conflict constitution making tend to demand for not just consensus but also compromises in order to accommodate the different aggrieved parties. The lack of a home-grown spirit on the constitution has made some to consider the document as a document imposed on them by external actors thus diluting their commitment towards the same.
But even more importantly, the constitution failed to provide room for proper and agreeable boundary review among the states as well as fail to create an institutional link between the federal government and the regional state. This study has relied on rigorous analysis of the data drawn from the constitution, parliamentary resolution, reports, and legal materials and the government documents would be analyzed based on the inductive, interpretive and analytical methods.
On the basis of funding support from the Peace Building process Somalia’s government is making tremendous achievements on the constitutional review and Peace and reconciliation efforts. However, the following issues must address positively; security improvement, voter registration, conducting National census, finalizing constitutional review and approval, and securing political stability.
Constitution are an integral part of the contemporary state system and therefore any process towards making a new constitution should be seen as an opportunity not just to address the concerns of the current generation but also create an enabling environment for future generations to realize their full potential.
With this regard, those who are tasked with writing the new constitution should endeavor to look beyond personal, communal or group interest. Constitution making is should not be turned into a clan rival affair but rather an honest effort to provide lasting solutions to some of the recurring problems in the country. As observed, political interest continues to overshadow efforts to write a constitution and thus many significant groups end up being marginalized.
It is worth noting that the elitist approach of granting certain category of people the mandate to develop laws irrespective of the opinions of other groups, yet the constitution is supposed to cover the whole country partly explains why there is no much success in the previous efforts. Secondly, there is need to determine whether the new constitution should precede solving the conflict, be part of the conflict resolution process or be a post -conflict agenda.
This is based on the idea that attempting to write a constitution without first resolving the existing conflicts may not yield the desired fruits. And conflict in this context does not just refer to armed conflict but also ideological, territorial, identity and economic rivalries. Three decades the country has been under constant instabilities and with the hope of addressing some of the main causes of dispute such as marginalization, bad governance and corruption through a constitutional amendment, the process needs to be given the necessary support and commitment.
Dr. Bincof is a Ph.D. in Political Science and Public Administration, a university lecturer, and a Specialist in governance, strategy, and politics. you can reach him at email: email@example.com