Among all the business that was left undone when the Western "donor"-powers/U.N. rammed through the "transition" to the Somali Federal Government (S.F.G.) in the late summer of 2012 was that of the form that a permanent Somali state would take.
In particular, although it specified that Somalia would be a federal state, the interim constitution did not decide the issue of whether the form of federalism would be centralized or decentralized, paving the way for a political struggle that is now underway between interests favoring an arrangement in which the central government would dominate regional states and those favoring one in which the regional states would have substantial autonomy in relation to the central government.
The two focal points of the conflict over decentralized and centralized federalism are, respectively, Puntland, the only established regional state in Somalia, and the S.F.G., the recognized central government. The territories in which the conflict is playing out are the regions of south-central Somalia, in which regional states have not yet been formed. The S.F.G. has been attempting to set up regional administrations in south-central Somalia that are loyal to it, whereas Puntland is encouraging the formation of regional states that are independently organized. With forces in favor of both arrangements in each of the south-central regions, the conflict has become a test of power region by region.
Of all the regions in south-central Somalia, those in the deep south - Lower Jubba, Middle Jubba, and Gedo - have become the test case for whether Somalia will adopt centralized or decentralized federalism. Even before the inception of the S.F.G., a process had begun to unite the deep-southern regions in a regional state that was undertaken by local politicians and clan leaders independently of any central authority. By early November, 2012, that process to create a "Jubbaland" state modeled on Puntland had matured to the point that negotiations among the participants moved from Kenya to the capital of Lower Jubba, Kismayo, and preparations for a convention to inaugurate Jubbaland were underway.
Faced with the imminent prospect of a regional state in south-central Somalia that was formed without the S.F.G.'s guidance, the S.F.G.'s president, Hassan Sh. Mohamud, asserted that any regional state in the deep south should be formed under the direction of the central government. In response, the technical committee overseeing the preparations for the Jubbaland convention dispatched a delegation to Somalia's capital Mogadishu to attempt to persuade Hassan to back the Jubbaland process. Hassan countered that the administrations of the deep-southern regions should be appointed by the S.F.G. The initial face-off had ended in a deadlock.
From mid-November, 2012 through late February, 2013, the conflict remained frozen as both sides attempted to mobilize support, and preparations for the Jubbaland convention proceeded. The struggle reignited in late February, on the eve of the convention's opening and has gone on since then.
The Show-Down Begins:
Slated to start on February 23, the Jubbaland convention was delayed when armed clashes broke out between Ogaden-Darod and Marehan-Darod militias in Kismayo, and some of the delegates to the convention from Gedo had not yet arrived in the city.
On February 24, as reported by Hiiraan Online, the S.F.G. attempted to pre-empt the convention, with S.F.G. interior minister, Abdikarim Hass Guled announcing that the S.F.G. had not been involved in the preparations for the Jubbaland convention and would hold a "more inclusive" convention of its own for the deep-southern regions. "We are inviting all parties to attend this conference including the interim local rulers [who are key figures in the Jubbaland process] and all the local stakeholders," said Guled.
The counter-convention turned out to be a bargaining chip for Guled when he arrived in Kismayo on February 25 with an S.F.G. ministerial delegation and met with local officials involved in the Jubbaland convention. As reported by Garowe Online, Guled suggested that the convention be held in Mogadishu, whereas his interlocutors insisted that its venue remain in Kismayo. According to Moallim Mohamed Ibrahim, speaking for the convention's organizing committee, the Jubbaland leadership had repeated to Guled the invitation that they had "always extended" to the S.F.G. to participate in the convention, to which, he said, the S.F.G. had not replied. Having had their counter-offer of a Mogadishu convention rejected, the S.F.G. delegation returned to Mogadishu, saying that they would consult with Hassan on the possibility that the S.F.G. would participate in the Jubbaland convention.
On February 27, more convention delegates from Gedo arrived in Kismayo. It came to light that the absence of the Gedo delegates had been due to some Gedo politicians' opposition to the convention. Sh. Mohamud Daud Odweyne, spokesman for the Ahlu Sunna Wal-Jamaa (A.S.W.J.) movement, a Sufi-associated militia that is prominent in Gedo, and a member of the Jubbaland technical committee, told Garowe Online that he had met with the opposition politicians in Gedo's capital Garbaharay and had convinced them that they should attend the convention. On the same day, Guled sent a tweet warning that "no clan or armed group" could create an administration in Kismayo. Guled was making a veiled reference to the Ogaden-Darod and the leader of the Raskamboni movement, which is dominated by that sub-clan, Sh. Ahmed Mohamed Islam (Madobe), who chairs Kismayo's interim administration. The opposition Gedo politicians were Marehan-Darod.
The Jubbaland convention opened on February 28 with a speech by Madobe in which he urged the S.F.G. to attend. The delegates, who numbered more than 400, then began discussions on a schedule for mapping out a Jubbaland regional state. The S.F.G. had failed in its first attempt to derail or redirect the Jubbaland process.
The S.F.G. made its next move on March 2, when the office of S.F.G. prime minister, Abdi Farah Shirdon, issued a statement declaring the Jubbaland convention to be "unconstitutional:" "The government's constitutional mandate is to establish a federal state as the end goal." In fulfilling its mandate, said Shirdon, "the government will only be a facilitator." The statement ended by warning that in its unilateral action, "the Kismayo convention will jeopardize the efforts of reconciliation, peace building and state-building, create tribal divisions and also undermines the fight against extremism in the region."
In a statement issued on February 26, the Puntland government had already accused the S.F.G. of "violating the country's [Somalia's] Provisional Federal Constitution " by "actively interfering with the formation of emerging Federated States, such as Jubbaland in southern Somalia.
Constitutional Contretemps:
Rekeying a political conflict as a legal dispute is a syndrome that became chronic during the tenure of Somalia's Transitional Federal Government, which preceded the S.F.G. Such a move can undoubtedly produce peaceful and orderly dispute resolution when there is an established body of law, legitimate institutions of adjudication, and acceptance of the decisions of those institutions by disputants. In the absence of the fulfillment of those requisites, however, as is the case in Somalia today, legal argumentation tends to replicate political conflict and to distort it by diverting attention from substantive issues.
That pattern of distorted replication becomes particularly acute when the document in which the argument is rekeyed is incomplete and poorly drafter, which is the case with the interim Somali constitution. Whether the lacunae and ambiguities are the result of the constitution's having been rushed, including unresolved compromises, or being incompetently drafter (one wonders about the role of the Western experts who were hired to prevent such problems), the provisional constitution is an invitation to endless legal contretemps.
In the present case, the arguments turn on Article 49, which addresses "The Number and Boundaries of the Federal Member States and Districts." The S.F.G. and its supporters base their case on the first section of Article 49, which says: "The number and boundaries of the Federal Member States shall be determined by the House of the People of the Federal Parliament." From the S.F.G.'s viewpoint, no regional state can be formed independently of parliamentary decision, from which the S.F.G. draws the conclusion that it has been tasked with forming interim administrations where there are no existing regional states, pending parliamentary decision. In contrast, Puntland and the supporters of the Jubbaland process cite the sixth section of Article 49, which says: "Based on a voluntary decision, two or more regions may merge to form a Federal Member State."
The ambiguity is further muddied by the second and third sections of Article 49, which require parliament to nominate a national commission to "study the issue" and report to the lower house of parliament, and that parliament enact a law defining the commission's responsibilities and powers, the "parameters and conditions it shall use for the establishment of the Federal Member States," and the number of commissioners and their requirements. The commission, of course, has not yet been established and the lower house has not yet defined "the parameters and conditions" for a regional state, which could be based either on a process overseen by the central government or one initiated locally and ratified by parliament.
[The fourth and fifth sections of Article 49 address the number and boundaries of districts within regional states and are not at issue here, since they assume that regional states have already been established.]
It is clear that neither the S.F.G. nor the supporters of the Jubbaland process has a knock-down constitutional case, since the requirements for a regional state have not yet been defined. The opponents have been throwing sections one and six of Article 49 against each other, while ignoring section 3(b), which shows how the issue is supposed to be resolved constitutionally, when and if parliament gets down to defining the "parameters and conditions" of and for a regional state. Meanwhile their dispute is doomed to revolve in a constitutional void. The lower house of parliament has begun the process of revising the constitution; it might also start fulfilling its requirements under it.
The Story Resumes:
With the drafters of the provisional federal constitution having dumped the question of how to define a regional state into the lap of parliament, which shows no sign of resolving it, the political show-down over Jubbaland continued.
The conflict took on a military aspect on March 6, when S.F.G. forces based in Gedo crossed into Lower Jubba and set up camp at Berhani, about twenty-five miles from Kismayo. As reported by Garowe Online, the provisional administration in Lower Jubba headed by Madobe prepared to send his forces to Berhani to push back the S.F.G. contingent, but was prevented from doing so by Kenyan forces in the African Union peacekeeping mission in Somalia (AMISOM), which attempted without success to persuade the S.F.G. to pull back. The provisional governor of Gedo, Mohamed Abdi Kalil, who opposes the Jubbaland process, said that the S.F.G. forces were in Berhani to "safeguard peace."
Alarmed by the prospect of armed conflict between the S.F.G. and supporters of the Jubbaland convention, Kenya and the sub-regional Horn of Africa organization, the Inter-Governmental Authority on Development (I.G.A.D.), which has backed the Jubbaland process, called Madobe and S.F.G. military officials to Nairobi to resolve the dispute. The Jubbaland convention was suspended in Madobe's absence. On March 23, Madobe returned to Kismayo and announced that both sides had reached agreement on "all the issues" and that the Jubbaland convention would continue without disturbance.
As more delegates to the convention arrived in Kismayo from Gedo, and the convention's technical committee announced progress on drafting a three-year interim constitution for the Jubbaland state, S.F.G. Prime Minister Shirdon announced on March 24 that he would visit Kismayo as part of his "listening tour" of Somalia's regions.
Shirdon arrived in Kismayo on March 26 and immediately met with leaders of the Jubbaland convention. Garowe Online reported that Shirdon repeated the S.F.G.'s position that it should appoint regional administrations for Lower Jubba, Middle Jubba, and Gedo. According to the Mareeg website, leaders of the Raskamboni movement countered Shirdon by saying that the S.F.G. would not be allowed to participate in the Jubbaland convention and could only attend as "visitors."
Talks continued on March 27 and a joint committee was appointed by the two sides to hammer out a "cooperation agreement," but the committee deadlocked over the S.F.G.'s demands that Kismayo's airport and seaport by handed over to its control, that S.F.G. forces from Mogadishu be stationed in Kismayo, that the S.F.G. appoint an administration for Lower Jubba, and that the Jubbaland convention be disbanded. Madobe refused to accept any of those demands, and, on March 29, as reported by Hiiraan Online, S.F.G. Interior Minister Guled announced that the talks had "collapsed" on account of the Jubbanland leaders' "unconstitutional demands."
Having failed twice to thwart the Jubbaland convention by sending high-level delegations to Kismayo, including the prime minister the second time, the S.F.G. officials returned to Mogadishu. In commenting to the press on his visit, Shirdon appeared at the outset to hold out an olive branch to his Jubbaland rivals, saying that he was "content with the current administration" in Kismayo and praising the communities in the deep south for organizing the Jubbaland convention. Then, however, he reversed field, noting that the Jubbaland process did not conform to the way the S.F.G. expected "state administrations in Somalia to be established."
In particular, Shirdon claimed that the Jubbaland process was flawed because in its inception it did not include the S.F.G. in a leadership role, which would have insured that "all communities" in the deep-southern regions were represented in the process. As reported on the Mareeg website, Shirdon noted that "the people of the Jubba region were divided on the convention and that the S.F.G. was needed to "reconcile the Jubba clans." Appealing to the fourth section of Article 49, Shirdon claimed that no regional states could be formed before a national commission on regional states had released a report. The prime minister omitted mentioning that the constitution does not mandate the central government to prohibit local processes to initiate regional states in the absence of parliament's fulfillment of the fourth section of Article 49. Both sides continued to act in a constitutional void.
With both sides claiming constitutional sanction and neither of them clearly having it, the conflict moved back to a political power struggle. In the S.F.G.'s next move, Shirdon resumed his listening tour, visiting Gedo, where he appointed the S.F.G.' ally Kalil as interim governor and made an agreement with A.S.W.J. to merge its forces with the Somali National Army. Meanwhile the Jubbaland convention unanimously ratified a transitional constitution for the new regional state on April 2, with more than 870 members voting, as reported by the Sabahi website.
On April 3, a split surfaced in the federal parliament when forty-four M.P.'s, most of them from the Jubba regions, traveled to Kismayo to show their support for the Jubbaland convention. As reported by RBC Radio, the M.P.'s visit "came a day after tense debate" in the federal parliament, in which the "bulk of the house's members" opposed it.
Countering the S.F.G.'s moves to undermine the Jubbaland process, Puntland sent a ministerial delegation to the convention to show its support and to make it clear that Puntland would not acquiesce in the S.F.G.'s interpretation of its role. Puntland's minister of public works, Dahir Haji Khalif, said that the delegation was "ready to contribute our advice in the establishment of Jubbaland state administration." Former T.F.G. prime minister, Abdirashid Ali Sharmarke, also arrived at the convention as an observer, urging the S.F.G. to "fully respect the interest and legal rights of people in Jubbaland."
The face-off in November, 2012 had become a full-fledged show-down.
Assessment of the Show-Down:
There is little interpretation that an analyst can add to a narrative of the first phases of the show-down over Jubbaland between the interests in favor of centralized federalism and those advocating decentralized federalism. As the conflict proceeds, it increasingly takes on a clan character centered on the Marehan-Darod, who are divided among those who support the Jubbaland process and those who
believe that their-sub-clan is under-represented in it. The S.F.G. has moved to gain a foothold by bolstering the disaffected Marehan (what else could it do but play the divide-and-rule game?); whereas Puntland has responded by showing overt support for the Jubbaland process (would one expect it to acquiesce in the S.F.G.'s moves?). That should be obvious from the narrative.
It would be easy for this analyst to describe the clan politics at work in the deep-southern regions and beyond, but to do so would be poisonous and fruitless. He can only say that at its root the breakdown and degeneration can be traced to the vicious naivete, malign neglect, narrow self-interest, and incredible hypocrisy of the "donor"-powers/U.N., but it is too late to do anything about that. The provisional constitution is a "$60 million 'panacea'" as Abukar Arman puts it perfectly, with bitter irony, in an analysis posted on April 5.
Only Somalis will be able to pull themselves out of the pit into which they are falling. It is obvious that nobody else will help them, at least politically, and nobody ever did since the fall of Siad Barre.
Report Drafted By: Dr. Michael A. Weinstein, Professor of Political Science, Purdue University in Chicago weinstem@purdue.edu
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