The Somali Constitution on Federalism

[Illyria]

Carafaat,

a) I am not Xiin,

b) My questions were to you, and not him,

c) Just 'cos Xiin and I agree on the principal points on Juba does not mean we are coming from the same angle, or agree on all things politics,

d) What is with the grin?

 

Now, give me all you have got in a grown-up sort of way. And do not disappoint.

 

And I will read the thread shortly.

[Illyria]

Carafaat,

You do not know that, so let us toss the speculations aside.

Ilyria, I have read the constitution way before you started shopping in it.

 

I actually did not ignore any of the sections of the Article, which is the reason I provided the Article in its entirety, but let us move on.

You have ignored article 49.1 to 49.5, and are only justifying your little cause here by article 49.6((6) Based on a voluntary decision, two or more regions may merge to form a Federal Member State.)

 

Let us not pontificate, but instead consider the provisions of the Article.

 

a) Without the commission as in sub section 3,

b) Without the Federal Member States as in sub section 4,

c) Without the federal parliament determining the number and boundaries as in sub section 2,

 

And I will set sub sections 5 and 6 to aside for now.

 

Without these, the federal gov’t is toothless, lacks the needed political clout, and its role is up in the air to be interpreted as non-existence.

 

You would not be suggesting citizens should stay frozen in time and await MPs sitting in Mogadishu to determine their future, do you? If you are, then there are bigger issues than Juba.

 

Nowhere does it state federal member states could not be formed, or have to wait until the government has put its act together. Juba leaders are actually helping the gov’t in doing what they gov’t could not do.

 

As I said, this is not a constitutional argument, but a political and procedural one, and it is for the federal leadership to lead, or get out of the way.

 

Also, existing and emerging Federal Member states have a role, as in sub section 4, and in other Articles where the federal gov’t must consult with member state in all major decision-making and engagements (this is a point not being discussed), but will prove thorny in time.

 

More importantly, the constitution awards the final say to the citizens of the country via the federal parliament (MPs must do what the citizens want), and not political leaders in the executive, which is where I think your argument, tho’ well meaning, loses its marbles. Further, the formation of Federal Member states is up to the citizens as in Article 46, sub section 1, and not up to the gov’t as and when its institutions have been completed and it’d gotten its act together.

 

Now, I must note that the federal gov't has a role and responsibilities none of which had been assumed, and I hope it will in time, but for now it has not, which is a fact we cannot change. It is a gov't which only exists in name, but has no authority over its territories and citizens. As and when it had extended its authority and assumed its role, then we can have that conversation, but for now, it is futile.

 

Now, Juba initiative started under the rein of president Shariif and ahead of the current gov't, and its legitimacy and mandate rests with its citizens.

 

And one more time, as I said, this is a political issue - citizens have won, and the gov't missed a chance to lead.

 

Let me ask you a question: what is your understanding of sub section 4 of Article 49?

(4) The number and the boundaries of the districts in a Federal Member State shall be determined by a law enacted by the parliament of the Federal Member State, which must be approved by the House of the People of the Federal Parliament.

[Baashi]

Illyria last paragraph is bull's eye -- a direct hit. I would give everyone who argued for or against JL being constititional the benefit of doubt. Reason being there are many loopholes in this document and only competent constitutional court can put this baby to bed.

[Illyria]

Excellent point Baashi,

And I would agree the document is complex demanding legal expertise, due dilegence and calm composure in its understannding, which is the reason I was putting the questions to Carafaat, the loudest member in the opposing camp.

[Naxar Nugaaleed]

its funny how everyone sidestepped the misconduct of the federal government. The constitutional conflict between the jubba project and the federal government is not about parliamentary commissions that have yet to be appointed but does the government have constitutional right to obstruct a peace process to form a federal state and can they unilaterally appoint officials for local governments.

[Illyria]

Valid points tho' I was actually setting that aside 'cos it is subjective with greater latitude, and it is more difficult to convince passionate protagonists of the gov't otherwise until the legal questions had been settled, and then we could move on to the political dialogue which is where the 'misconduct' and the issue of Juba itself could be discussed.

 

For now, antagonists of the Juba initiative are engaging in an unwinnable debate.

[N.O.R.F]

Fair points Illyria. It is a confusing document. I still reads as though 49 (4) is subject to 49 (2).

 

Naxar, this thread was before the govnt said it would put in place a temporary admin.

[Nin-Yaaban]

So what are some of the 'Questionable' parts of this constitution? Anything most of us SoLer's should be worrying about?

[Illyria]

Nin-Yaanban,

It is a good document, and a good starting point. It is up to the people to amend as seen fit. I have not seen yet, 'major' articles which could be regarded wrong or worrisome. And remember we have come a long way as long as we are talking about the constitution and politics, and not waging wars.

[Illyria]

NORF,

Agreed, but could you read it again please, and tell me what your understanding of the two articles is?

Are the two articles complimenting each other, or are they contradicting each other, or is one to cancel the other one out? Or is one simply dependent upon the other? I ask 'cos the answer might lie therein.

 

2) The House of the People of the Federal Parliament, before determining the number and boundaries of the Federal Member States, shall nominate a national commission which shall study the issue, and submit a report of its findings with recommendations to the House of the People of the Federal Parliament.

 

(4) The number and the boundaries of the districts in a Federal Member State shall be determined by a law enacted by the parliament of the Federal Member State, which must be approved by the House of the People of the Federal Parliament.

 

N.O.R.F;934712 wrote:

Fair points Illyria. It is a confusing document. I still reads as though 49 (4) is subject to 49 (2).

[N.O.R.F]

The way that I understand it is that it could be one of two.

 

1. The clauses state the process of federal state building 49 (4) and the rubber stamping process 49 (2). It may be the case that 49 (4) can occur before 49 (2) which is what is taking place at the moment but, whether a federal state admin is created before or after 49 (2), 49 (2) will always be required to rubber stamp it through a commission's recommendations and/or a parliamentary vote.

 

2. 49 (2) and 49 (3) are to provide the framework that the federal state creators to follow. Once this is done through the process involved with 49 (4), parliament approves.

[Carafaat]

Illyria;934527 wrote:

Carafaat,

You do not know that, so let us toss the speculations aside.

Ilyria, I have read the constitution way before you started shopping in it.

 

I actually did not ignore any of the sections of the Article, which is the reason I provided the Article in its entirety, but let us move on.

You have ignored article 49.1 to 49.5, and are only justifying your little cause here by article 49.6((6) Based on a voluntary decision, two or more regions may merge to form a Federal Member State.)

 

Let us not pontificate, but instead consider the provisions of the Article.

 

a) Without the commission as in sub section 3,

b) Without the Federal Member States as in sub section 4,

c) Without the federal parliament determining the number and boundaries as in sub section 2,

 

And I will set sub sections 5 and 6 to aside for now.

 

Without these, the federal gov’t is toothless, lacks the needed political clout, and its role is up in the air to be interpreted as non-existence.

Article 48(2) states that No single region can stand alone. Until such time as a region merges with another region(s) to form a new Federal Member State, a region shall be directly administered by the Federal Government for a maximum period of two years.

 

The goverment isnt tootheless. It has the responsibility to appoint regional administration and directly administer the regions where there are no States yet. They have appointed the regional administration even for Bay and Bakool, (where there is also a process going on same as in Kismayo) to form a federal State. Even for Gedo where there is no State(yet). Middle Jubba is still occubied by Al Shabaab, and I assume they will apoint there an admin aas well.

 

 

You would not be suggesting citizens should stay frozen in time and await MPs sitting in Mogadishu to determine their future, do you? If you are, then there are bigger issues than Juba. Nowhere does it state federal member states could not be formed, or have to wait until the government has put its act together. Juba leaders are actually helping the gov’t in doing what they gov’t could not do.

Citizens should go about their business but should not be obstructing nor frustrate the goverment to do its work either. This has happened in Kismayo where goverment delegations were not allowed to land(earlier this year).

 

As I said, this is not a constitutional argument, but a political and procedural one, and it is for the federal leadership to lead, or get out of the way.

Let the Constitutional Court decide weather this is a political or constitutional issues. I understand one is already in the process of formation of the Constitutional Court.

 

 

Also, existing and emerging Federal Member states have a role, as in sub section 4, and in other Articles where the federal gov’t must consult with member state in all major decision-making and engagements (this is a point not being discussed), but will prove thorny in time.

I am sure this only goes for the existing and functioning States not those being formed now in all haste.

 

 

More importantly, the constitution awards the

final say to the citizens of the country via the federal parliament (MPs must do what the citizens want), and not political leaders in the executive

, which is where I think your argument, tho’ well meaning, loses its marbles. Further, the formation of Federal Member states is up to the citizens as in Article 46, sub section 1, and not up to the gov’t as and when its institutions have been completed and it’d gotten its act together.

I think this is where you and many others are loosing the plot. Large parts of Somalia are still occubied by Al Shabaab. This goes for Jubbaland as well, the largest city of Gedo(Baardhere) and of Middle Jubba(Bu'ale) is under control of Al Shabaab. Those citizens in the still occubied areas have every right to be heard, participate in the process of State building as well. One should try to talk with them rather then for them. No decisions should be taken without their involvement. So far we have only heard a the opinion of small elites. Thats why I think they are rushing the whole Jubbaland initiative.

 

Now, I must note that the federal gov't has a role and responsibilities none of which had been assumed, and I hope it will in time, but for now it has not, which is a fact we cannot change. It is a gov't which only exists in name, but has no authority over its territories and citizens. As and when it had extended its authority and assumed its role, then we can have that conversation, but for now, it is futile.

This goes for Jubbaland, it only exist in name. Actually the Federal Goverment has established its authority in numerous regions(Marka, Bay, Banadir, Beletweyn, Shabelle's, Gedo, etc) and hence our discussion why it should do the same in Kismayo.

 

Now, Juba initiative started under the rein of president Shariif and ahead of the current gov't, and its legitimacy and mandate rests with its citizens. And one more time, as I said, this is a political issue - citizens have won, and the gov't missed a chance to lead.

Citizens are still under occubation of Al Shabaab. See earlier comments regarding largest cities in the region.

 

Let me ask you a question: what is your understanding of sub section 4 of Article 49?

(4) The number and the boundaries of the districts in a Federal Member State shall be determined by a law enacted by the parliament of the Federal Member State, which must be approved by the House of the People of the Federal Parliament.

Well as I undertand it, the law should be approved by the House of the People of the Federal Parliament. (Approval by the Upper House of the People is not possible, as there is no Upper House yet.)

[Mario B]

This has got nothing to do with the constitution, what the government wants, is to have all the territories occupied by Al- shaabab [ 70/80% of Jubbbaland now] to come under government jurisdiction, remember folks, last time a clan found itself in the presence of no central government, these clansmen declared a 'phantom republic'.[ and now we have Turkey mediating in order to bring these countrymen into the fold of the Republic]. Now the government doesn't want a replay of that farce in the Jubooyinka. So folks these Jubba thing will happen but not in this hasty manner.

[Carafaat]

Mario, I agree with you.

 

There is nothing wrong if 2 regions want to merge. If the people want Jubbaland then it will happen for sure. But not in this manner and not as platform to undermine Somalias Goverment.

[Illyria]

Carafaat,

I could not follow your reasoning, so I'll leave it there.

 

It is only fair I re-insert this line here for the right context.

 

NORF,

If so, you would have known that if provisions of an article are not implemented, the rest of the article becomes untenable, and therefore in a pending status. And yes to discussions, but by people who understand its inner workings, and can engage in intelligable dialogue.

 

N.O.R.F wrote:

One doesn't need a law degree to scrutinise the constitution and see where there may be areas of contention saxib. A discussion on the articles and their implications should be encouraged.