Federal and federal now, the argument

General Duke · July 16, 2003

The ationale of Federalising Somalia Now

The New direction

The Somali conference in Eldoret/Mbgathi swayed from one direction to another, and from a unitary system of governance to a federal system. The interim charter that was recently drafted called for an interim unitary government that will work towards federalising Somalia in the long run. However, suddenly, on the fifth of July it seems that the Conference came back to the right track: "The interim government should be federal right from the start" the agreement said. This last minute decision saves a lot of valuable time for Somalia, and solves the route causes of the deep-rooted conflict of the divided clans of Somalia.

Taking on board the existing self-administrations

Currently in Somalia, there are three major states that claim either to be independent (Somaliland), or autonomous and are waiting for federalising the country so that they (Puntland and Southwest states) join Federal Somalia as autonomous states. Jubbaland (portion of Somalia west or River Jubba) is not formed yet, but it exists in the minds of the people who live in Gedo and Waamo. This is the desire of the people in those states, and nobody can force them to live under unitary government. Their voices must be heard and included in restructuring Somalia, and ethnic states that symbolises their self-governments. How do we get along with these existing self administrations and install a unitary government? Can we simply ignore them and think of reconciliation at the same time? In any reconciliation, the self-administrations must be put into account and then design governance structures accordingly.

Designing for pluralistic and diverse society

Somalia is not homogeneous as we used to claim for many years. In terms of language, people speak in general May and Maxay (Somali dialects), while there are some ethnic groups who speak dialects of Swahili such as Reer Baraawe, Reer Gosha, including the Mushunguli of the Gosha (along the river between Jilib, all the way through Jamaame to Kismayo) and the Baajuuni people. There is no need to ignore these Swahili dialects spoken within Somalia, as all these ethnic groups are Somalis. In addition to that the clan cleavages are very strong, and clan affiliation sentiments are so strong that even if we speak the same Somali language, we feel different: clan x, clan y and clan z. It is this primordial sentiment (primary cleavage in Somalia) which every Somali feels needs to be addressed and be taken aboard in our politics.

The new shift to to embrace federalism right from the start is courageous step and it is timely action. Federalism means pluralism, accepting diversity, decentralisation of power and representation, and spreading economic allocation to the states. Why do we fear from federalism? Is it because the country may disintegrate eventually? The nation state of Somalia already disintegrated and it is only through federalism that we can save it. The damage to the nation state of Somalia is done and if we install a unitary system of government at the centre now, it will not even govern Mogadishu, let alone Baydhaba, Kismayo, Beledweyne or any other region. Can't we learn lessons from Arta government, and reconstitute Somali institutions differnetly? Why do we waste 3 or 4 years to repeat in something that was done in Arta, Jabouti and that failed and never worked?

Federalism is inevitable

The existence of self-administrations in Somalia necessiate the quick adoption of federalism for Somalia. The quicker the self administrations are taken aboard, the quicker to embark on the route to stability, peace and strengthening of governance institutions. People will have their allegiance and symbolism on their state first, and then on Somalia. The is a short or middle term solution to Somalia, and allegiance to the nation will gradually develop in time.

By: Abdulkadir Abiikar

e-mail: Abukaraah@aol.com

Mogadishu - Somalia

miles-militis · July 16, 2003

Thank you for the posting old chap. Another son of Somali who indeed zeroes in on the true nature of the Somali predicament and its possible resolution. There is after all hope for the Horn unlike Dr Ghalaydh who managed until recently to remain in between the two hard rocks but now so suddenly changed colours, which might be due to the scorching hot air of the Emirates.

Or perhaps Prof Samatar and A/Qassim both of whom refuse to accept the actuality on the ground, and instead favour a habit of “scapegoating” the missing third party, and their constant “wailing” to represent the “interest of the Somali populace”. I wonder whom they represent, what in their mind constitutes the “Somali populace” and how they come to represent the public.

General Duke · July 16, 2003

S-Warrior,

Stay tough bro, good observations as ever. Professor Samatar is a joke, the man jumps from one thing to another. He dreams of a Utopia in witch he is king, perhaps he gets love in Mogadishu and this has made him demented.

Dr Ali Khalif Galayr i think is just miseading people, he wont lose out in the new Somalia, he is a big man involved in big business and is opposed to personalities more than the idea.

Abdiqasin on the other hand is a man who slept for three years and want to keep everyone awake for three days. He is losing clout with even Xasan Abshir Farax who was a good right hand man, but maybe Xasan was wasting his time, grabing money and now wants to be forgiven who knows. All i know is Abdiqasin is finished, he has no qualifications like the others to give lectures on retirement.

miles-militis · July 16, 2003

I hear you my man. Resilient as always I shall remain for the cause of Somali nationalism.

However, I see stark similarities between Dr Ghalaydh referencing his last interview regarding the future of Somalia, Prof Samatar’s daily barrage of yo-yoing from one rationale to another to nothing as was indicative of his latest outbursts, and A/Qassim who mind you is not as dense as he appears. Sure, they are not of the same calibre but on the same dhow heading towards the abyss cliffs of Surat.

Samafal · July 16, 2003

Heey Smith and Warrior would you tell us little bit more about this new phenomenon seem to dominate in the Somali politics nowadays since you guys know this staff.

My first question is

What is Federalism?

Does federalism have many different forms? Or is it distinctive?

Who is in charge of the country? President (President of the decentralized government) or the governors of the autonomous regions? Who is in charge armed forces? Wouldn’t every region have the control of it’s army

For example if the country is to go to war who has the final say? President? How about if the governors do not agree with him? The country would be disintegrated, wouldn’t it?

Saxiibayaal I am asking too much question but I need to learn , you know…….I am hopeless about politics and staff

Thank you

Samafal · July 16, 2003

Heey Smith and Warrior would you tell us little bit more about this new phenomenon seem to dominate in the Somali politics nowadays since you guys know this matter.

My first question is

What is Federalism?

Does federalism have many different forms? Or is it distinctive?

Who is in charge of the country? President (President of the decentralized government) or the governors of the autonomous regions? Who is in charge armed forces? Wouldn’t every region have the control of it’s army

For example if the country is to go to war who has the final say? President? How about if the governors do not agree with him? The country would be disintegrated, wouldn’t it?

Saxiibayaal I am asking too much question but I need to learn , you know…….I am hopeless about politics and stuff

Samafal · July 16, 2003

,

BN · July 16, 2003

Yacqoub,

I read an article about this subject on Hiraan.com titled 'Federal Somalia'. It also included a map of possible final look of federal states. You can also read the two purposed constitutions/charters for some answers.

http://www.hiiraan.com/htdocs/2003/june03/constitution.htm -->18 Factions

http://www.hiiraan.com/htdocs/2003/june03/finaldraft.htm --> Harmonization Committee’s

http://www.hiiraan.com/Sept/somalia.htm -->Federal Somalia Article/Map

General Duke · July 17, 2003

Bari Nomad,

Many thanks for the map bro, I like the map.

Yaquub bro,

there is a lot of material on this, but I will try to give you a good summary of what I know so far which isnt that much

miles-militis · July 17, 2003

Yacquub - this I reckon will make an interesting reading as to your query.

Best of luck! Cheers.

SOMALIA WATCH - (Study-I.M.Lewis) Decentralization options

Posted by/on:[AMJ][Thursday, October 5, 2000]

Executive Summary

This study describes four models of decentralised constitutional government, focusing on aspects that may be appropriate for Somalis. The four models are: (1) a confederation; (2) a federation; (3) a decentralised unitary state with strong guarantees of local or regional autonomy; and (4) a consociational, non-territorially based form of decentralisation. It then looks at different elements of government in modern democracies, such as the political economy, the administration, the judiciary, defence and foreign relations, and electoral designs, and outlines how each would be organised in the different models. The report concludes with a menu of options, and considers a final form, which would be the most decentralised: functional cooperation, which could be applied to however many states Somalis decide they want to establish, or even without the creation of formal state machinery at all. The report does not assume that the former Somali Republic can only be reconstructed as a single state.

Introduction: The Uncentralised Somali Legacy

by Professor Ioan M. Lewis

Today, most Somalis under the age of 30 have no knowledge of the democratic structures that were in place before Mohamed Siad Barre's military rule began in 1969, nor of the colonial period. In traditional Somali politics, all decision making is conducted democratically (although formally excluding women), by segmentary groups of kinsmen whose patterns of alliance and confrontation are fluid and inherently unstable. Pastoralists are individualists who meet in general assemblies, where all adult male family heads (or elders) seek consensus, instead of taking decisions by majority vote. Since so many males can be elders, leadership is often difficult to maintain for very long. In this uncentralised, rather than merely decentralised society, there is thus no tradition of a centralised state nor any set political offices or ranked leaders.

The two most stable elements in Somali society are: 1) the ' dia paying group': the contractually defined kinship group within clans or subclans, which acts as a unit in paying and receiving damages for injury and death; and 2) the clan: a grouping of several related 'dia paying groups'. Clans usually live within a roughly defined territory, trade together, share and maintain wells and other resources (camels bear a common clan brand). There are approximately 100 clans in this country of some 5 million inhabitants, though the size and power of each clan varies considerably. Pastoral nomads belong to clans that are larger and more widely spread out than clan members who live by cultivating and in urban areas. All clans belong to a clan family - a group of related clans which is the highest level of political solidarity within the Somali nation or ethnic group.

Clan Culture

The six Somali clan-families are the Dir, ***** , **** , ****** , Digil and ********* (also known as Digil-Mirifle). The **** live primarily in the former British Somaliland; the Digil and ********* are agro-pastoralists who live between the Juba and Shebelle Rivers, where they produce grain and have their own distinct culture and language (May or Maymay). They also adopt migrants from other clans. The ***** and ****** clans are the most widely distributed. There are also marginal Bantu groups along the rivers, other minority urban communities (some of Arab origin), and blacksmiths, leather-workers, and hunters who may seek to maintain retain separate status from the Somali clan structure.

Somali men are traditionally either warriors or men of God. Today, almost every male has an automatic rifle, and some have even heavier weapons, which constitute a serious obstacle to the formation of governmental structures. The country thus now consists of clans and unstable clan-alliances with their militias, as well as war lords with free-lance armed forces. There are also, in some areas, small independent Islamic communities, often with their own militias, providing educational and medical facilities and offering support to orphan war victims. In some urban settings, particularly, where other patterns of social control are failing, a fundamentalist style of Islamic law is being applied strictly, controversial though this is for many Somalis. There is in fact a deep-seated tension between universalistic Islam and particularistic local customary values and allegiances.

Over the past five years, there have been significant movements of population as people have pushed into the south, where economic and agricultural opportunities are greater. There has also been some 'clan-cleansing' during the same period, creating substantial numbers of refugees and displaced persons. While pasturage is traditionally not owned by specific groups, today clans are trying to maintain control over some regions, especially where there are water points and trading centres. In the absence of any effective central government, clan elders are also consolidating their power by making decisions in local clan councils, often in co-operation with militias, who provide informal police functions.

The Colonial and Post-Colonial Experience

There was no Somali state before European colonisation, which divided the nation into five parts (French, British, Ethiopian, Italian and Kenyan). This division ultimately served to unite Somalis, giving rise to Somali nationalism. After independence in 1960, which brought together the British and Italian Somalias, formal local councils were set up and elections held. The Italian legal system was largely adopted, while common features of Somali customary law continued to be applied alongside the European codes and shari'a law. The new state (the Somali Republic) was divided into eight regions with 59 districts, administered by regional and district governors.

The desire to unite all Somalis under one banner encouraged national solidarity cutting across clan ties, but created conflicts with neighbouring states, especially Kenya and Ethiopia. This unity lasted until the late 1960s when Mohamed Haji Ibrahim Egal, the new prime minister, made peace with the two neighbours. In what proved to be the last civilian elections held in 1969, most voters and candidates behaved according to their clan identifications, with 1,002 candidates contesting the 123 seats in the National Assembly.

Military Rule

In October 1969, General Mohamed Siad Barre took over in a military coup. Siad Barre developed a highly centralised, totalitarian state, and tried unsuccessfully to abolish clan behaviour. He applied what he termed 'scientific socialism'. Inspired by Marx and Lenin, Siad ruled through a revolutionary council, which effectively favoured the ***** clans, and was adept at manipulating clan rivalry in choosing ministers.

After the crippling 1975 drought the government adopted relief measures which displaced many northern nomads to the south, where they were settled in agricultural and fishing communities. Both activities were despised by the nomads, and many preferred to survive on food hand-outs while rebuilding their herds. Siad supported the Ogadeni guerillas (his mother's clansmen) in their secessionist struggle in Ethiopia, which by the late 1970s was gathering momentum and led to all-out war in 1977/78. This proved disastrous as Somalia had underestimated the strength of external support for Ethiopia and lost the war. Defeat and the enormous number of Ogadeni refugees who fled into Somalia gradually destabilised Siad's regime. The former Soviet Union had abandoned Somalia for the greater prize of Ethiopia, and Siad desperately switched allegiance to the West to gain assistance. As western aid gradually increased, the national economy collapsed, and Somalia became dependent on this aid for survival, although the informal economy thrived.

Current Patterns of Wider Alliance

Siad's peace agreement with Ethiopia in 1988, his arming of friendly clans to fight his opponents, the liberation of the 'Republic of Somaliland' by the **** guerillas, of Majerteynia by the SSDF, and his own overthrow in 1991 all helped to forge the current Rambo-style political economy.

Clans are not the only political units on the ground today, and, following wider economic and other strategic interests, are themselves involved in shifting patterns of alliance. Outside Mogadishu, there are currently at least three more ambitious political groupings, each with its own specific strengths and weaknesses: 1) 'Republic of Somaliland'/North-West, based on the former Somaliland Protectorate, and including the **** clans and their allies in the Gadabursi, Ise, Warsangeli and Dulbahante clans. The main port is Berbera, the capital Hargeisa; 2) North-East (Regions), based on the Majerteyn clan. The main port and capital is Bosaso; 3) Digil and ********* (Mirifle) alliance of clans based in the Inter-Riverine region of southern Somalia. The capital is Baidoa.

All three regimes claim local autonomy, but only Somaliland has so far asserted full independence (without achieving international recognition). This reflects the localisation of the **** and associated clans. The clan connections and interests of the SSDF Majerteyn in the North East, in contrast, extend far outside this region into the southern part of Somalia (through the Harti grouping). Here since June 1995 the demographically dominant ****** have two 'governments' based in different parts of the old capital, Mogadishu, and variously claiming 'national' status.

The Challenge

In conformity with their traditionally uncentralised political culture, the majority of those Somalis who feel a need for modern government (and not all do) advocate a lightly administered, decentralised system. Since Somalis have so energetically 'rolled back the frontiers of the state', it will be difficult to establish decentralised and flexible political structures that can accommodate the powerful inter-clan conflicts that pervade their politics. The problems are compounded by the widespread distribution of modern weapons and the practice of voting with the gun which has become so deeply embedded. The challenge facing Somali political leaders will be to persuade people that there are general common interests that could be best served by wider forms of political structures than exist today. They will then have to establish (perhaps along the lines suggested in our Menu) loosely articulated forms of political organisation capable of securing public approval.

1. Decentralisation Options for Democratic Reconstruction

Four decentralised models of government are outlined in this report, drawn from the experience of other peoples whose history has something in common with that of the Somalis. These are analysed with reference to emerging institutions in the former Somalia. There are three territorially-based models (a confederation, a federation, and a decentralised unitary state), and one community-based model (consociational) that can be combined with any of the territorially-based models.

Decentralised constitutional structures in other parts of the world that have similarly developed through local initiatives should be of interest to Somalis who wish to rebuild one or more states to replace the discredited former republic. It is not yet clear how many states should emerge from the old Somalia. There are three possibilities: 1) to re-establish a united Somalia under either a unitary or a federal constitution; or 2) to create a union or confederation from two or more states; or 3) to form two or more independent states with no constitutional links. Whatever is decided, it need not be permanent. Arrangements can be built into a new constitution that allow for re-unification or secession. Another important issue is where sovereignty, i.e., supreme political authority, should lie. There are three possibilities: 1) sovereignty can rest with all adult Somali citizens; 2) it can also be vested in the constituent territorial units of a Somali state or states; and 3) it can also rest with the clans.

A Confederation

A confederation is a union of separate but equal states linked by international treaties. In confederations, sovereignty rests with the states, whereas in federations it is shared between the centre and the states (or provinces or regions). A confederation is normally created for specific purposes, such as for common defence, free trade, or to prepare for closer political union; and the centre normally acts as a coordinating body only. For example, in many federations, such as Switzerland, Germany, and the USA, a confederation existed before the member states opted for a closer form of co-operation.

In the European Union, which is still more of a confederation than a federation, member states (15 now but there is no limit) agreed to establish common institutions that are responsible for certain areas of policy throughout the Union. Once these functions, such as agricultural policy, are transferred to the centre, they cannot be exercised independently at the state level. In order that each state continues to have some control over these central institutions, provisions in the treaties of union allow each state to veto, or opt out of policies that the state feels damages its interests.

In some departments, the EU has moved closer to a federation. The European Court of Justice, for example, is considered the highest court for EU members, and thus sovereignty has effectively been transferred to the centre. Its underlying structure, however, remains confederal because the transfer is voluntary, i.e., the Court does not have any power to enforce decisions. European experience here may have potential relevance for Somalis: one of the motives inspiring European union was to prevent a repetition of the two European wars that also engulfed the world in conflict earlier this century. At some point in the future, and in conformity with traditional political values, it would be possible for the different Somali regions or states to create common institutions and policies. Somalis could then work together in central agencies, with representation from each state or region, protected by the sovereign status of each region and by the right to veto, or opt out of unwelcome proposals.

A Federal System

It is probably too early to contemplate any form of centralised authority, but in theory, if enough trust developed between the different Somali groups, they could create a federation, satisfying those who want a more substantial central governing capability, and those who want strong regional governments. In typical federations, free and independent states come together, and transfer a limited amount of sovereignty to the federal institutions, although others have been created by decolonisation, or after a war, such as in Germany, where the purpose was to limit the power of the central authority. The centre and the regions (or provinces) share power, and the centre is unable, on its own authority, to change the constitution. There are three ways of organising federal-provincial relations: 1) the provinces have most of the powers of government, with the centre only exercising limited powers; 2) the centre has most of the powers with the provinces having a limited amount; or 3) the provinces and the centre share powers of government with specific means of mediating disputes between them. It is also possible to grant considerable autonomy - even the right to secede - to some regions within any of these three.

It is important to repeat that forms of government are not irreversible: a federation can become a confederation, and a confederation can develop into a federation. There are, in addition, many types of federation, and models exist that have never been applied. Federations are designed to allow diverse peoples and cultures to live together, with guarantees normally written into the constitution to ensure that the centre does not seize all the power. This is sometimes facilitated by removing the federal capital from a major city and placing it in a small city in an unimportant region. If Somalis wanted a federation, the capital could be moved from Mogadishu.

Swiss experience has some similarities to recent Somali history. Switzerland was forged after civil war, coups in various cantons, attempts at constitution writing, and intervention by outside powers. The federal plan was designed to bring together people torn apart by religious and political differences, all equally suspicious of central government. In the resulting Switzerland, the powers of the centre are sharply defined and limited, whereas those of the cantons are not (Option 1 listed above). The cantons may even have their own constitutions, as long as they do not contradict the federal constitution, and guarantee to continue to govern democratically.

Switzerland also has a collective presidency with seven members who take it in turn to serve as president; this assures that no one person or group takes over. This method has been very successful - there are no Swiss politicians famous outside Switzerland. There are two other governmental institutions. The first, the Federal Assembly, has two chambers, one with representation according to the population in each canton; the other has two representatives per canton. The second is the Federal Court, on which the four languages of Switzerland are represented; and which mediates disputes between the federal government and the cantons, and amongst the cantons themselves. The Swiss are first citizens of their communes, then of their cantons, and finally of Switzerland.

A Decentralised Unitary State with Guarantees of Regional or Local Autonomy

Just as the differences between a confederation and a federation can be slight, so too between a decentralised unitary state and a federation. The main difference is that in a federal system, power is shared between the centre and the regions whereas in a decentralised system, the regions are subordinate to the centre. For example, in Uganda or Papua New Guinea, although regions are allowed considerable control over many of their affairs, the centre retains the right to reduce this or to intervene if it wants to. In Uganda, the decision to decentralise was partly designed to accommodate strong regional pressures.

Decentralisation is a top-down process, which by delegating power, can help to reduce the centre's control over the social, economic and cultural life of its citizens. In contrast, the formation of a federation, is a bottom-up process where local units join together creating an additional layer of government above them. This decentralised option might be more appropriate within the local units of state or states that the Somalis eventually establish, providing these reflect traditional structures of political authority. Although any decision to pursue the confederal or federal options would necessarily require widespread popular support, there are two major aspects of decentralised unitary systems that could be included in a future Somali constitution(s): 1) the constitution could define the powers of local governments. These powers can always subsequently be transferred to the centre if a local government wishes; and 2) guarantees should be included to ensure that larger units of government (such as provinces or the centre) cannot abolish smaller local units.

Consociation: A Non-Territorial Option

Power sharing or consociational principles of government can operate in confederations, federations and decentralised unitary states, and were developed specifically for divided societies. South Africa today is a model of a consociational democracy in its early stages. Consociational democracies normally include four elements: 1) a grand coalition government, which includes representatives from the major groups (or clans or clan-families) in society; 2) a quota of seats or jobs or public moneys for each community according to its population strength; 3) community responsibility for certain matters, such as education; e.g., the distinctive interests of clans and minorities could be respected wherever they lived or worked; and 4) minority veto power.

Under consociational arrangements, groups are separate but equal. For these to work, people need to be convinced that it is better to have a share of power than to risk the costs involved in trying to seek full control. Three conditions need to be satisfied: 1) competing communities must not try to integrate other groups or establish their own separate sovereign state; 2) politicians must strive to maintain these beliefs, economic and political stability, and be mindful of the negative consequences of returning to a state of war; and 3) the leaders of the communities must be able to act independently so that they may be able to reach a compromise with other groups without being accused of betrayal by their own community. The Somali tradition of elders participating in consensual decision-making at the local level demonstrates that such principles could be appropriate here. When these conditions are not met, consociations fail, as happened disastrously in Lebanon and Cyprus.

The key feature of all four systems of decentralised government is the ultimate location and distribution of power: in confederations, power is above all held by the component states; in federal systems, it is shared between the centre and the constituent states; and in decentralised unitary states, it is located at the centre though certain regions enjoy considerable autonomy.

2. The Political Economy of Decentralisation

Only the pastoral livestock industry managed to survive the destructive economic effects of the Siad Barre regime, which officially suppressed private enterprise, although thereby stimulating an extensive informal and black market economy. In the late 1980s, a structural adjustment programme was attempted but not properly implemented, leaving Somalis with little experience of successful economic policy. Once the state collapsed, the country was left with many small traders and producers lacking public services and regulation. There is little prospect in the future that donors will grant the large sums of aid of the past, and foreign investment can be expected to be slight for some time. Thus political reconstruction, at whatever level, will need to operate against a background of small-scale local economies.

The switch to private enterprise fits well with decentralisation, which depends on the abilities of local groups to manage their economies and resist pressure from the centre. If the state transfers assets to the private sector, it lets success and failure be determined by the market. Decentralisation may reduce conflict and may minimise the economic benefits associated with political office. Clan loyalties will play an important role in rebuilding the private sector, but need not lead to conflict if success and failure are determined by fair competition, i.e., providing the market is regulated and policed. Some services, such as law and order, defence, roads, health, education, etc., will still need to be provided publicly, but there is no reason why some of these cannot be managed by local authorities, with the assistance of donors and NGOs.

Modern states also require conditions that allow traders to produce and exchange their goods through common property laws, stable currency and a credit system. Many assume that local initiatives are the only way to restore order, and that new local authorities can combine to form a state while still retaining significant autonomy. Regional Somali authorities, however, will need access to personnel, financial resources and physical assets.

Inter-Regional Transfers

Inequality between regions will require attention if poorer regions are to be integrated in all political formations. Market economies often lead to an unequal distribution of income, which can only be corrected through transferring income by both local and central government. In confederations, such transfers are rare, while in unitary states the centre controls taxes and grants and thus can redistribute more easily. In federal systems, transfers often create conflict. It is also difficult to establish criteria that determine who gets what, and in which circumstances. It is unlikely that Somalis will pay taxes to anyone or for anything outside their immediate region, so such a redistributive system may not be practical for some time. This means that local authorities will have to strengthen their ability to raise funds to pay for education, health, roads and water. Regional councils can also set up committees to decide how resources will be distributed, as well as to monitor spending. In the meantime, local authorities will have to charge full cost fees for consumer services, which will eliminate the immediate need to raise taxes and also give local people control over the service that is provided. Foreign donors may also be able to assist the poorer regions in restructuring. Communities can continue to provide services on a voluntary basis, such as mending roads, building schools, and digging wells.

Money

The collapse of the Somali Republic has removed controls over trade and investment, and ended the creation of state-supported credit and the growth of money supply. While the previous system caused inflation, which was increased by foreign aid, the current situation is deflationary since there is a shortage of money in circulation.

Trade is currently conducted in US dollars, Saudi rials and Somali shillings. If the local currency wears out or is rendered worthless by unauthorised printing of new notes, trade will continue, but the use of foreign currencies may expand if remittances and payment for exports continue. In the medium and long term, Somalis will have to decide whether they want to create regional currencies or a central one. There is no reason why several currencies cannot co-exist, although there would be financial costs to their doing so.

Trade and Credit

Export taxes should be kept to a minimum in economies that depend heavily on foreign trade. Most taxes today are collected at the four major ports and a few larger airports, which give the groups in control considerable leverage. It is obviously desirable that agreement can reached on the distribution of these resources. Attempts will also have to be made to discourage internal customs barriers, which can stimulate conflict. Most federations try to maintain free internal trade to avoid such disputes.

Currently, small producers and traders use their own assets and family networks for credit, while international traders also use foreign banks. Central banks may not be necessary, as experience has shown, and private banks can often be more effective. Community banking systems, such as those run by NGOs in Bangladesh, Bolivia and South Africa, could also be tried.

Property Rights and Agriculture

A means of sorting out property claims, returning assets to owners, and compensating those who cannot return to their property will need to be established. The legal system, courts of law, prisons, and police could be financed locally, possibly with donor support. Other issues of concern include the destruction of rangelands, illegal charcoal production, over-exploitation of fishing resources, and toxic waste dumping.

To improve agriculture, the private sector needs better credit facilities to buy fertilisers, crops, etc. If subsidies are to be involved from foreign NGOs, they should be careful not to discourage local initiatives.

Health and Water

Whether for people or livestock, health care requires many types of services that are often expensive and specialised. The major consideration now is access to clinics, drugs, and doctors or healers. Many of these services can be provided privately on a fee-for-service basis, supplemented by foreign NGOs, which would work similarly in unitary or decentralised political settings. Poorer consumers could be subsidised by communities or foreign donors, although it is often difficult to establish standards for deciding who needs these services the most. Wells and water rights may continue to be operated by clans and individuals as before, with some involvement of regional governments.

Education and Roads

As with health, similar problems arise for education. Private and public systems can operate at the same time, paid for by local parent-teacher associations and foreign donors. Local communities may manage and regulate their own schools, irrespective of type of government. Higher education will be more difficult to provide in the short-term, though it too could be controlled by local governments.

The most widely used roads should be maintained by the widest possible groupings, while local roads and footpaths can be a local responsibility, with some sub-contracting to private firms where necessary.

Security

A major concern will continue to be the huge number of weapons in circulation. New forms of community-based security could be established which recognise the right to bear arms, but also subject people to the authority of clans and local authorities. A citizen army could always be mobilised if there were an imminent danger, but meanwhile, regardless of the nature of the state, i.e., confederal, federal or decentralised unitary, costs would be kept down and control exercised by those with most authority at the local level.

3. Remaking Administrative Structures

The six basic requirements here are: 1) how to organise a stable administration for even the most decentralised government; 2) how to overcome the assumption that every position is a prize for which rival groups compete, especially for those posts controlling public funds; 3) how to create administrative structures that allow policy to be implemented while also meeting the challenge set out in (2); 4) how to save funds by coordinating some services and functions of government on a state-wide basis; 5) how to resist any temptation to create a uniform administrative structure throughout the country (regional structures should reflect the needs of the region); and 6) how to finance and staff, over the long term, these public administrative structures, bearing in mind that numbers of people employed should be kept to a minimum.

Minimum Functions

There are seven minimum functions necessary for the effective running of a state administration:

1) Police and maintenance of order. In a unitary system, local governments can be responsible for police who work alongside national police forces. Under confederal arrangements, police forces would be organised by their own states, although there could be a coordinating body at the confederal level. In a federal system, local and national police could share certain duties. Consociation means communal self-government and is easier to organise in the judiciary than in the police - though fair representation of all clans is possible in a national police force.

2) Defence. Issues to consider here include land border protection, prevention of smuggling, protection of fisheries and off-shore resources, and the response to internal disorder and disasters. These would need to be covered in whatever form of government is adopted.

3) Fiscal policy. The issuing of a national currency would function at a central level in both unitary and federal states, while taxation and public borrowing are normally shared by the centre and regions/provinces. In a confederation, these responsibilities would normally be handled by the member states.

4) Collection, management and allocation of central revenue. Assuming there will be some funds gained from export and import duties, the centre in a confederal model need not be involved in this, whereas each state in a loose federation could control these functions, although some authority would be necessary to secure subsidies for poorer regions.

5) Judicial systems. These vary according to form of government and are discussed in Chapter 5.

6) Public service management. This is necessary under all models.

7) External representation. This is also a general requirement, and is discussed in Chapter 6.

Other Functions

In the medium term, other functions that would be essential for the proper running of any administration include: posts and communications, which need to be accessible throughout the country in any type of system, although it is not imperative that this be centrally controlled, and could even be privatised; major public works, such as roads; and tertiary education. In the short term, however, there are several concerns that need to be addressed, though not necessarily at the central level. These include: primary and secondary education, health, veterinary and agricultural services. Already in many parts of Somalia and the 'Republic of Somaliland', NGOs are assisting in providing some of these services, most of which are paid for on a fee-for-service basis.

The scarcity of trained staff for any of these functions makes it important to offer services on as wide a basis as possible. Some government funding will be necessary to plan for the future, although this often causes spiralling costs as demands increase for ever more services.

Staffing

Typically those working in the public sector are recruited on merit (by competitive exams, specified qualifications, and some consideration for representation), and are normally hired for life. Neither of these would seem to be appropriate for Somalis. Because of the clan-based nature of Somali society, representation should be the primary principle of recruitment and promotion. Difficulties will arise, especially concerning how many clans or sub-clans or regions should be given representation, and this is especially problematic when such jobs are to be kept to a minimum in order to ensure that a greater proportion of available funds is directed to substantive service provision and not primarily to salaries. This dilemma might be resolved by limiting the period of service, rotating jobs, and, should sufficient trust be established, holding a census to determine exact numbers.

4. The Judicial Branch of Government

This chapter does not directly discuss the situation that would arise if the former Somalia were to split into several independent states - although the same general considerations would hold and they might wish to operate common judicial institutions. There are six key areas to consider in decentralised systems: 1) the supreme court (or the highest court in the state); 2) the coordination of judicial systems; 3) multiple systems of laws; 4) Islamic law; 5) administrative justice; and 6) human rights safeguards.

The Supreme Court

A constitution is a guarantee that the agreement leading to the coming together of different peoples and groups will be observed. In confederal and federal systems, and in some decentralised unitary states, defending the constitution is normally the task of the supreme court. As such, the powers of the supreme court are very important for the proper functioning of the state.

There are several fundamental questions related to the supreme court. Who appoints members of this court? There is no set formula. They can be appointed by the president or prime minister, or they can be elected by the legislature. The 1960 Constitution of the Somali Republic allowed for the involvement of both, and it may be appropriate to consider a similar option in the future, for however many states finally emerge.

How many members should there be? A possibility would be to follow the method of the European Court of Justice, which has 15 judges, one from each member state. The more the court reflects the diversity of the state or states, the easier it will be to have its decisions enforced.

How long should a judge serve, and how can judges be removed? The advantage of long terms of office is that decisions can be made independently of political pressures, but this may also create friction between the court and the executive branch, and in turn cause the executive to either remove judges or pack the court with supporters. Short terms of office, on the other hand, often cause political considerations to take precedence as the continuation of employment is somewhat dependent on the approval of the executive.

These obstacles can be overcome, especially for state courts. Judges may be elected for medium length terms, such as six to ten years, as happens in Switzerland or in states of the US. An independent body can also appoint and discipline the judiciary. Mandatory retirement is another possibility. Just as in appointment, removal from office can involve different branches of government, especially in controversial cases, such as removal from the supreme court.

The supreme court should be the final court of appeal for civil and criminal matters. It has the responsibility to uphold the laws of particular states or regions, while also ensuring that common standards apply throughout the federation. Confederations would not normally have a supreme court, although each member state would have one. In any future Somali federation, by contrast, this court would also have the responsibility developing unified federal law. To resolve constitutional disagreements, a combination of arbitration and referendum could be adapted to traditional Somali dispute-solving procedures.

Multiple Judicial Systems

An initial problem in reconstructing a Somali state or states will be finding enough qualified lawyers. In a confederation or a federation, an important issue to resolve will be how to enforce decisions made by courts in one state in another state, as well as between the state and the central government in a federation, as different laws develop in different areas of the country. One solution would be for the states to agree to enforce each other's judgements, irrespective of whether they were in line with the public policy or legislation of the enforcing state.

In all matters, though, it is important that (con)federal laws are enforceable throughout the (con)federation. This holds for criminal as well as for civilian law: the existing Penal Code in Somalia could be re-applied while courts are being established, and used as a basis by the successor state or states on which to construct their own criminal law.

Multiple Laws and Islamic Law

Federations and confederations may develop multiple systems of laws, which often complicate their administration and implementation. Somalis already have experience of multiple legal systems since customary and Islamic law have existed alongside English and Italian law. This previous Somali practice could therefore provide a possible model for a future decentralised state or states, and representative commissions could be established to ensure that laws are harmonised and disputes resolved during this process.

Until 1962, there were separate shari'a and non-shari'a courts in Somalia, with different methods of combining and ordering the various forms of law. Some similar formulation could be applied if Somalis agreed to establish a federation or a confederation.

Administrative Justice

The current international emphasis on 'good governance' has implications for the judiciary. For example, the new constitutions of Malawi, South Africa and Uganda all give citizens the right to fair treatment by government agencies as well as the right of appeal against government decisions. The question is where to locate such mechanisms, at the state or central levels, or both. Most decisions directly affecting citizens are probably best taken at the regional level, as people generally prefer legal disputes to be dealt with informally, using customary practices wherever possible.

Human Rights Implications

Some international laws are binding on states even if they do not wish to be bound. Even so, international human rights standards will need to be written into law, not only to protect the individual, but also to reassure potential donors and foreign investors.

Many treaties already exist that try to protect minorities by establishing political, education, language, and property rights, in addition to the fundamental rights theoretically enjoyed by all individuals, e.g., non-discrimination, freedom of conscience, and religion. Since it is easier to frame laws protecting human rights than to implement them, there is scope for a careful study of Somali traditional concepts of rights, and their relation to internationally recognised human rights.

International obligations are easier to legislate in unitary states than in decentralised systems because the centre has authority over the laws of the country. Yet at the same time, abuse of power is also more likely in such states. To avoid this danger the problems associated with federations and confederations need to be addressed at the start. For example, in federal systems one component state may not comply with international laws, or inconsistent laws may prevent the application of human rights norms. It is possible to overcome such problems by mutual coordination of laws or by creating a common Charter of Rights, and a constitutional court to oversee the process of coordination and implementation. The advantages of federal systems are that laws can be adjusted according to local needs. Federal systems also can protect minority rights, especially in terms of language, religion, education, marriage and family issues, where relevant. In confederal systems, each state would have responsibility for ensuring that human rights obligations are followed, although here too it would be desirable to create a coordinating body, or even to allow a single organisation to frame such laws.

5. Alternatives for Defence and Foreign Relations

Issues and problems related to foreign affairs will be similar irrespective of how many states are created. As foreign relations are relations between states, their conduct is generally guided by central structures, though adjustments can be made to cater for the needs of decentralised government. There are seven main concerns related to foreign affairs and defence that need to be addressed: 1) treaty-making; 2) foreign representation; 3) defence; 4) citizenship; 5) foreign trade, customs and excise; 6) foreign aid; and 7) currency.

Treaty Making

Treaties, whether they pertain to membership in international organisations such as the UN, or bilateral relations between states, are normally signed by some central authority, and then ratified by the president (or head of state), parliament and/or constituent states. All government systems, from a centralised, unitary state to a confederation, operate in this manner, although some federal states allow a degree of independence in treaty making. For example, in Australia and Canada, the provinces may sign treaties that deal with foreign trade matters, as long as such treaties do not conflict with those signed by the central authority. Further, in situations where the province or canton or state signs its own treaties, the central authority may also retain the right to approve it. Conflicts resulting from treaties signed by different authorities can be resolved by an independently appointed group, comprised of members from all segments of society.

Confederations allow for more decentralisation. The options for treaty making in confederal systems are as follows: 1) the central authority is granted full rights to conclude international treaties, while constituent states retain control over domestic matters; 2) member states have some independence in treaty-making as long as they are not in conflict with the interests of the confederation; and 3) member states can conclude treaties with foreign powers independently, while at the same time sharing common services and rules covering relations amongst themselves, as well as relations with external states in particular areas. In very loose confederations, such as the European Union, where members still have not granted the central authority sole jurisdiction over all treaty-making, even on issues which have been transferred, they retain the right to veto legislation that conflicts with their interests. For such a loose arrangement to work, there must exist a measure of trust between the centre and the constituent parts. If Somalis were eventually to agree to confederate along similar lines, it would also be necessary for the component states to honour pre-existing agreements signed by earlier heads of state of Somalia (unless they were opposed to the principles of the new state or states).

Foreign Representation

The right to conclude treaties generally also determines who represents the new state or states in embassies abroad, at multilateral institutions, and international conferences. In unitary and federal states, the appointment of such representatives is usually controlled by the head of state. In confederal systems, such appointments will depend on how extensive the sharing of foreign relations decisions is between member states. The range of options for diplomatic representation may be illustrated by the European Union (where member states each have their own foreign embassy staff) and the United Arab Emirates (where such staff represent the federation and come from all member states).

The key issues concerning foreign representation relate to recruitment of staff and the cost involved.

The first difficulty is how to recruit personnel, whether on merit or according to a system of community representation (based on region or clan, for example), or on a combination of the two. In theory, this dilemma should not arise in unitary or federal states, but it would be a problem in confederal or decentralised unitary states, and could be very serious in states with deep divisions between groups, where no group trusts the others to fully represent its interest, e.g., a Kurd in Iraq would be unlikely to trust a non-Kurdish Iraqi to represent his or her interests in country-wide institutions. In such a situation, the solution may be to rotate offices between clans or regions, and establish safeguards so that while in office, each representative would not be able to pursue his or her group's interests at the expense of others.

As the new state or states will inevitably be short of funds, a further difficulty arises concerning how to pay for such offices. One solution would be to minimise the number of offices. For example, there could be a delegation to the UN which might also cover relations with the United States, a representative in Brussels to handle the European Union as well as bilateral relations with member states, a representative to work with neighbouring East African states, one for the OAU, and a small group to cover regional issues such as trade, refugees, drought and food security. The need to deal with such issues will arise under any system of government but in no case do they require a large diplomatic establishment.

Defence

Even in decentralised systems, it may make sense for the centre to provide for common defence, in order to reduce the financial burden that is inevitably involved. Indeed, it is to make such savings that many federations and confederations are formed, as was the case in the short-lived Senegambian Confederation, or the United Arab Emirates. In most states, whether they be unitary or federal, responsibility for declaring war and maintaining the defence of the union rests with the centre.

In Africa, however, central control over defence has often proved disastrous. In many countries, there should be no need for large defence budgets, since they face no serious external threat. Yet almost invariably the government devotes a substantial portion of its expenditure to defence. The army often ends up usurping power, and far from protecting society, threatens the civilian population. The problem is even worse in states that have fallen apart due to civil war, and where, as in the former Somalia, most adults are armed. In these cases it is seldom possible to disarm the population and/or abolish the armed forces without enlisting the support of an outside power, which is likely to be unpopular and widely resisted. Yet without a regional threat there is no need to reconstruct a standing army. Once again, Swiss experience may offer some useful lessons for Somalis: the Swiss have no standing army, but if an emergency occurs, they can easily assemble a force from the different regions of the country, particularly as all citizens have to undergo a period of military service.

An additional safeguard to prevent internal conflicts between clan militias or regions could take the form of a dispute settlement group with representatives from all parts of the country and all clans, which could be assembled in time of need. Such a group would resemble the gathering of clan elders to settle inter-clan disputes. If there is insufficient trust to set up such a group, at least initially, an alternative would be to contract out this function to an international or regional organisation, such as the OAU. This would have the advantage that the donor community might be more willing to reinvest in whatever state or states are established if there are transparent mechanisms for preventing the abuse of power.

A final defence issue is the protection of the environment. In the absence of a Somali government or governments, Somali waters are already being overfished and used as a dumping ground for toxic waste. In the short term, it might be possible to contract out supervision of these activities to an outside agency to monitor and safeguard Somali natural resources.

Citizenship

In most systems, issues related to citizenship, such as the issuing of passports, naturalisation, emigration and immigration are handled by a central authority. Some countries allow dual citizenship, and in confederal systems, like the European Union, citizens belong first to their state, and second to the union. This could work for Somalis: they could have common citizenship, and also belong to their own regions or states, where they would vote. Thus a Somali could live in any part of the reconstituted state or states, but perhaps only vote in his or her particular area. If this were to be agreed, then each region could also issue its own passports, as members of the European Union already do.

Foreign Trade

As Somalis have demonstrated, foreign trade can continue even in chaotic political circumstances. But for trade to contribute to economic recovery over the long term, it is important that it take place in a stable and secure environment. In some federal systems, the different provinces maintain independent trade relations with foreign states, as do the states in most confederations. Providing the rules, enshrined in the GATT, WTO and Lome conventions, are applied, it would be possible to devolve responsibility for trade policy to regional governments.

In most countries matters relating to customs and excise are under the overall control of a central ministry. The main reason is to prevent trade wars between the constituent states. For example, without some regulation they might be tempted to compete with one another by lowering import taxes. In unsettled conditions, this would not promote healthy competition but make it more difficult to maintain the peace, as it did in the Senegambian Confederation before its collapse (the Gambia refused to give up its low tariffs and liberal trade policy).

The general problems that come up with regard to trade relate to the collection of taxes and redistribution of funds, normally from wealthier regions to poorer ones, and how to convince those controlling strategic assets, such as ports and airports, to give them up. In the short term, it may be necessary to leave such assets under their current 'managers'. Each region would have responsibility for buying into whichever services (health, veterinary, fishing, transport, etc.) they needed, raising the money to buy the service by taxes within their region.

Foreign Aid

Decentralisation is probably necessary if development aid is to revive. Donors increasingly attach political and economic conditions to aid and will need to be assured that the local government(s) are legitimate and stable, and that the money will be used wisely. From this point of view decentralised governments would have an advantage over unitary ones in that legitimate representatives from local areas could manage (and petition for) projects, rather than having them administered by a centrally located agency. Aid could be managed in this fashion in confederal unions or federal states. Even in decentralised unitary states responsibility for foreign aid could be delegated to local authorities. Indeed it is possible that donors might make such delegation a condition for the resumption of aid.

In addition, with regard to disaster relief, as opposed to development assistance, attention will need to be paid to re-establishing early warning systems so that future famines may be prevented. International regional organisations could be enlisted in the first instance, on the condition that they train Somalis to staff their own offices in the long term.

Currency

Authorities controlling the money supply are normally centrally located, though they may be independent of the government, as the Federal Reserve is in the United States, or they may maintain different values for domestic and foreign transactions, as the Republic of South Africa did until recently. In some countries where the local currency is very weak or has collapsed, a foreign currency often circulates next to the local one. But there are no unitary states or federations where rival currencies compete with each other. This is because of the fear that the authorities in one state or province might off-load their economic problems onto their neighbours by depreciating their own currency to make exports cheaper and imports more expensive. The situation in confederations is more ambiguous (see 1 and 2 below).

There are four possible arrangements for currency that comply with decentralised models. They are:

1) Each state or region could maintain its own currency and exchange it at a rate agreed upon by all parties. In this instance, it would be better to peg its value to a major international currency or basket of currencies. Difficulties may arise, however, if one region is wealthier than others.

2) A currency system modelled on the European ecu could be established. This would take the previous idea one step further by pegging each region's currency to a common one. This could work as an interim solution while trust was being restored in the new political structure. Eventually the common currency could replace regional currencies altogether.

3) The pre-existing Somali shilling could continue to be used for trading purposes along with a major international currency, such as the dollar, which would gradually replace shillings as they wear out or are devalued because of possible over-printing.

4) An independent monetary authority could be created for the entire state or states. Initially, staffing for this organisation could be contracted out to an international financial institution, such as the IMF, which could also train Somali bankers.

6. Principles of Constitutional and Electoral Design

If Somalis decide on some form of decentralised democratic system, they will need to design it in a way that will prevent a return to authoritarian rule. It will need a separation of powers, checks and balances, and some form of consociational or consensual, co-operative government.

Parliamentary Democracy

Democracies can be organised in several ways. One is parliamentary democracy, in which the legislature has most of the power. In the United Kingdom, for example, the legislature (or parliament) has significant control over the executive because the authority of the prime minister and the cabinet ultimately rests on the support of parliament. There are nine key features of this type of system: 1) a concentration of executive power, normally in a one-party government; 2) a mixing of executive and legislative power; 3) a two-chamber parliament, with one chamber being less powerful; 4) a mainly two-party system; 5) party competition normally over left and right issues, such as economic policy; 6) simple plurality rule which gives seats to the candidate with the most votes; 7) unitary and centralised government, where local governments can be abolished or curtailed by the centre; 8) an unwritten constitution, with minimal judicial involvement in its interpretation; and 9) representative democracy with little use of referendums.

Parliamentary and majoritarian systems, which give power to the elected majority, only work well in fairly homogenous societies that are based on the concept of liberal individualism. In deeply divided societies, such systems do not function well, and it is often the case that a dominant community can take over and run the society for its own purposes.

Consensual/Consociational Democracy

Another form of organising a democracy is the consensual or consociational method, which is the opposite of the former system. Consensual models try to maximise participation and representation in government while also holding back attempts by a powerful group to take control. This type of system may be more appropriate for a divided society, and has something in common with traditional Somali decision-making processes.

In consensual systems, there are eight distinctive features which could work in a federal Somali state that was based on a multi-party system, or in the independent states of a confederal system: 1) executive power sharing that enjoys support from many communities, including a multi-person rotating presidency with representatives from each of the regions, veto powers, and separate elections for the executive and parliament; 2) separation of executive, legislative and judicial powers that allows for co-operation between the branches of government, or perhaps in the Somali case, a 'council of state' formed by elders and former presidents and prime ministers who would mediate disputes and take certain issues to the Supreme Court; 3) two federal chambers with equal powers and minority and/or territorial representation; 4) a multi-party system; 5) a multi-dimensional party system where language and clan differences, for example, are included in party platforms; 6) a proportional representation voting system in which the elected chambers genuinely represent the population and encourage some integration; 7) a type of decentralisation that allows some communities or clans greater autonomy; and 8) a constitution that gives minorities specified rights.

Consensual systems enable all those who are affected by political decisions to take part in making those decisions. They also allow distinct communities the opportunity to govern themselves, so long as they respect the rights of others to do the same.

Electoral Options

There are numerous types of electoral arrangements that can be adapted to a society's particular needs. In a federal system, each state or region could equally choose separate systems so long as they fall within overarching electoral rules. The same is true for a confederation. It must be remembered, however, that no outcome is certain in the different systems.

Proportional representation (PR) systems ensure a proportional relationship between the votes for parties or candidates and the seats they win. PR systems differ from non-proportional (NPR) systems, which are often called majoritarian systems. There are three ways of organising NPR systems: 1) plurality rule, where a candidate is elected in a single person district and wins if he or she has the most votes; 2) alternative vote, where a candidate only wins if he or she has a majority of the votes; and 3) exhaustive double-ballot procedure, where if no candidate wins in the first ballot, there will be run-off elections between the top two candidates.

The advantage of having a NPR system in the Somali context would be that it would encourage parties to broaden their appeal to include many clans. The disadvantages, however, are three: 1) parliament could be filled with many small parties, which could in turn make it easier for a strong party to take control; 2) the 'winner takes all' principle would not be acceptable to those that lost; and 3) dominant coalitions of clans could try to damage weaker clans or parties. PR systems, on the other hand, may be more likely to produce a stable government, and would cope better with population shifts. In a PR system, moreover, clans could be allowed to form their own parties or coalitions if they so wished.

7. Conclusion: The Menu of Options

A concluding menu lists the advantages and disadvantages of the three constitutional models considered in the report, i.e., confederal, federal and decentralised unitary state, and also of consociational government. This analysis, which is already in summary form, is not reproduced here.

Functional Co-operation

There is one final possibility to consider: co-operative arrangements without an overarching political authority. Functional services, in which most Somalis have an immediate interest, and on which they might be prepared to co-operate include veterinary or health services; fishery protection and licensing; educational services such as curriculum development, the provision of textbooks, teacher training, and the negotiation of scholarships for Somalis in foreign universities; posts and telegraphs; weights and measures; and currency. Thus if attempts to construct a confederation, federation, or decentralised unitary state break down, or proceed at a very slow rate, agencies could still be created to provide specific services to meet certain needs. Indeed there is a traditional Somali precedent in the concept of contractual agreement (heer ).

There are two ways in which such functional agencies could be set up, although they are not mutually exclusive. The first and theoretically most desirable would be by agreement amongst those Somalis from different clans, regions and/or 'states' who share a particular functional interest. Such agencies would employ Somalis and this might make external donors more willing to reinvest in their future. The second would be to contract out such services to an international agency, such as the World Bank. This would have similar advantages as the previous one regarding employment and foreign investment, and avoid the disadvantages that might spring from continued inter-clan competition, even over the provision of agreed welfare services. Such collaboration might foster wider Somali sentiments of national solidarity.

miles-militis · July 17, 2003

And here is a copy of the draft put together by the harmonisation committee chaired by the Prof Samatar of U of M, which in essence is a modified version of the old constitution of the gutted, abattoir-destined republic of Somalia. You should be able to reference both of these pieces to get answers for your questions.

Best of luck!

THE CHARTER - DRAFT

A COMPROMISE PROPOSAL BY THE HARMONIZATION COMMITTEE

Based on: The 1960 Constitution of The Somali Republic and Proposals of The sub b Groups of the Charter Committee of the Reconciliation Conference

April, 2003

TABLE OF CONTENTS

PAGE NO.

Preamble 2

Part I - General Provisions 3

Part II - Fundamental Rights And Duties Of The Citizen 5

Part III - Fundamental Human Rights 6

Title I - Right To Liberty 6

Title II - Social Rights 8

Title III - Judicial Guarantees 10

Part IV - Organization Of The State 11

Title I - The Interim Parliament 11

Section I: Definition of the Interim Parliament 11

Section II: Organization 11

Section III: Powers and Functions 12

Section IV: Procedures 13

Section V: Immunity 15

Title II - The Interim President of The Republic 15

Title III - The Interim Government 17

Section I: Organization of the Government 17

Section II: Activities of the Government and Subordinate

Organs

Section III: Auxiliary Organs 21

Title IV - The Organization Of The Self-Governing Administrations

And Autonomous Regions of The Republic 26

Section I: Constituent Parts and their Powers 26

Section II: Interim Self-Governing Administration 26

Section III: Interim Autonomous Regions 27

Section IV: Districts 28

Part V - Constitutional Guarantees 30

Title I - Review of The Constitutionality of Laws 30

Title II - Criminal Proceedings Against The President of The Republic

and The Members of The Government 31

Title III - Amendments to The Charter 31

Part VI - Transitional and Final Provisions 32

THE CHARTER

OF THE

SOMALI REPUBLIC

IN THE NAME OF GOD THE MERCIFUL

AND BENEFICENT

THE SOMALI PEOPLE

PREAMBLE

CONSCIOUS of the unprecedented hardships the Somali people suffered during the long civil war, including massive loss of human life, the destruction of communities and our social and economic capital, the displacement of our citizens from their homes, and the gross violation of human rights;

FIRMLY BELIEVING that peace and stability are essential preconditions for restoring our collective and individual dignity and that all hostilities, communal fighting, and mistrust should end immediately

DETERMINED to co-operate with all good-willed people to reconsolidate our liberty and restore democracy to our land in order to ensure the well-being of our children and those of our neighbours in this small but precious planet.

EMPLOYING the fundamental values and obligations of the Act of Union and the Somali Constitution of 1960, on which this Somali Charter is rooted for continuity of the Somali Republic’s sovereignty;

COMMITTED to maintain and consolidate the independence and unity of the Somali Nation in a democracy based on the people’s sovereignty, their equality and duties of all citizens.

____________________

Note:

Somali Republic and Somalia are used interchangeably and refer to the old Somali Republic (1960 – 1991)

CHARTER

PART I - GENERAL PROVISIONS

Art. 1. (The Republic)

1. The Somali Republic is an independent and fully sovereign state. It is a representative Republic determined to re-establish democratic institutions and culture.

2. It shall adopt a federal system that shall be completed within a period of three years. The interim years shall be governed through a decentralized governance system to prepare the prerequisites for a full-fledged federal system to be established in the third year of the transition. It shall become a Federal Republic once the constitution is adopted and federal authorities are elected.

3. The official name of the State shall be Somali Republic until the future constitution chooses a different name.

4. Sovereignty belongs to the people who shall exercise it in the forms determined by the Charter and the laws. No part of the people nor any individual may claim sovereignty to or assume the right to exercise it.

5. Islam is the religion of the State.

6. The national flag shall be azure in colour, rectangular, and shall have a white star with five equal points emblazoned in its centre.

7. The emblem of the Somali Republic shall be composed of an azure escutcheon with a gold border and shall bear a silver five-pointed star. The escutcheon, surmounted by an embattlement with five points in Moorish style, the two lateral points halved, shall be borned by two leopards rampant in natural form facing each other, resting on two lances crossing under the point of the escutcheon, with two palm leaves in natural form interlaced with a white ribbon.

8. Mogadishu is the national capital. Its boundaries and administrative structure shall be established by law. The Interim Government may select another city/town in the country as its seat during the interim period for security reasons.

Art. 2. (The People)

1. The people consist of all the citizens.

2. The manner of acquiring and losing citizenship shall be established by law.

3. No person may be denied citizenship or deprived thereof for political reasons.

Art. 3 (Equality of the Citizens)

All citizens, without distinction of race, national origin, birth, language, religion, gender, economic or social status, opinion, or other discriminatory distinctions shall have equal rights and duties before the law.

Art. 4 (Official Language)

The official language shall be Somali (two main dialects) Arabic and English are second languages.

Art. 5 (Boundaries of the State)

1. The national territory is sacred and inviolable.

2. The territorial sovereignty shall extend to the continental territory, the islands, the exclusive economic zone, territorial waters, the subsoil and the air space above.

3. The Somali Republic is bound on the West by Ethiopia; Northwest by the Republic of Djibouti; North by the Gulf of Aden; East by the Indian Ocean and South and Southwest by the Republic of Kenya.

4. The law shall determine the parties of the territory and the properties which belong to the State and to public bodies, and establish the legal status thereof.

Art. 6. (Supremacy of the Law)

1. The organization of the State and the relationships between the State and other persons, public or private, shall be governed by law.

2. Administrative and legislative acts contrary to the law and the Charter may be invalidated on the initiative of the interested party in accordance with the provisions of the Charter.

Art. 7. (The Republic in the International Order)

1. The generally accepted rules of international law and international treaties duly concluded by the Republic and published in legislative acts, shall have the force of law.

2. The Republic repudiates war and violence as a means of settling regional and international disputes.

3. It accepts, on conditions of parity with other States, limitations on its sovereignty necessary for the establishment of a system to ensure peace among Nations.

4. The Somali Republic shall promote and encourage solidarity among the peoples of the world, in particular, among the Africans, the Arabs and the Islamic people. The Republic is a member, among others, of the African Union, Inter Governmental Authority for Development (IGAD), League of Arab States, Organization of Islamic Conference, Non-aligned Movement, and the United Nations.

Art. 8. (Human Rights)

1. The laws of the Somali Republic shall comply, in so far as applicable, with the principles of the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10th December, 1948 as well as other international covenants pertaining to human rights to which the Republic is a party.

2. As stipulated in international conventions on human rights, certain rights such as right to life, freedom from torture, freedom from slavery, freedom of thought, conscience and religion cannot be suspended or restricted even during legitimate emergency.

PART II - FUNDAMENTAL RIGHTS AND DUTIES OF THE CITIZEN

Art. 9. (Right of Access to Public Office)

Every citizen who possesses the qualifications required by law shall be equally eligible for public office.

Art. 10. (Right of Petition)

1. Every citizen shall have the right to address written petitions to the Interim President of the Republic, Parliament and the Government.

2. Every petition which is not manifestly unfounded shall be examined.

Art. 11. (Right of Work and Residence)

a) Every citizen shall have the right to reside, work and travel freely in any part of the territory of the State and shall not be subjected to deportation.

b) Every citizen shall have the right to leave the territory of the State and to return thereto.

Art. 12. (Right of Political Association)

1. Every person shall have the right to associate in political parties, without previous authorization, for the purpose of co-operating democratically and peacefully in the shaping of national policy.

2. Political parties and associations which are secret, have an organization of a military character or have a clan denomination shall be prohibited.

3. Registration of political parties shall be regulated by law.

Art. 13. (Right to Form Trade Unions)

1. Every citizen shall have the right to form trade unions or join them for the protection of economic interest.

2. Trade Unions organized according to democratic principles shall be considered juridical persons according to the law.

3. Trade Unions being juridical persons may negotiate collective labour contracts binding on their members.

Art. 14. (Right of Economic Initiative)

The law may control the exploitation of the economic resources of the territory of the State

Art. 15. (Duty of Loyalty to the Homeland and The State )

1. Every citizen shall have the duty to loyally observe this Charter and the laws of the land.

2. It is the duty of every citizen to: (a) preserve and protect public and private property, (b) defend the country, maintain internal security, uphold the national unity and preserve State secrets.

3. Every person shall contribute to public expenditure according to capacity to pay.

4. A system of taxation based on principles of social justice shall be established by law.

5. Military service shall be governed by law.

PART III - FUNDAMENTAL HUMAN RIGHTS

TITLE I RIGHT TO LIBERTY

Art. 16. (Right to Life and to Personal Integrity)

1. Every person shall have the right to life and to personal integrity.

2. Arbitrary limits to such rights may not be established.

c) The law may prescribe the death penalty only for the most serious crimes against human life or the personality of the State.

Art. 17. (Personal Liberty)

1. Every person shall have the right to personal liberty.

2. Subjection to any form of slavery or servitude shall be punishable as a crime.

3. No person shall be liable to any form of detention or other restrictions of personal liberty except when apprehended in flagrante delicto or pursuant to an act of the competent judicial authority, stating the grounds thereof, in the cases and in the manner prescribed by law.

4. In cases of urgent necessity, expressly defined by law, the competent administrative authority may adopt provisional measures, which shall be communicated without delay to the competent judicial authority and confirmed by it within the time and in the manner prescribed by law, failing which such measures shall be deemed to have been revoked and shall be void.

5. In each case of detention or other restrictions of personal liberty, the reasons for the measure shall be communicated to the person concerned without delay.

6. No person shall be subjected to security measures except in the cases and in the manner prescribed by law and pursuant to an act of the competent authority, stating the grounds thereof.

7. No person shall be subjected to inspection or personal search except in the cases and under the provisions laid down in above paragraphs 3, 4 and 5, and in other cases as prescribed by law for judicial, sanitary or fiscal reasons, and in the manner prescribed thereof. In every case, the self-respect and moral dignity of the person concerned must be preserved.

Art. 18. (Guarantees in Cases of Restriction of Personal Liberty)

Any physical or moral violence against a person or restriction of personal liberty shall be punishable as a crime.

Art. 19. (Extradition and Political Asylum)

1. Extradition may be granted only in the cases and in the manner prescribed by law, subject to international convention.

2. No person may be subjected to extradition for political offences.

3. Any alien persecuted in his own country for political offences shall have the right to asylum in the territory of the State, in the cases and under the conditions provided by law.

Art. 20. (Limits to Personal Service and Property Levy)

No personal service or property levy may be imposed save in accordance with the law.

Art. 21. (Freedom of Domicile)

1. Every person shall have the right to the inviolability of his domicile.

2. No inspection, search or seizure shall be carried out in the domicile or in any other place reserved for personal use except in the cases and under the provisions laid down in paragraphs 3, 4 and 5 of Article 17 and in other cases as prescribed by law for judicial purposes and in the manner prescribed therefor.

3. Inspections for public health, safety or fiscal purposes shall not be carried out, except in the cases and in the manner prescribed by law.

Art. 22. (Freedom of Correspondence)

1. Every person shall have the right to freedom and secrecy of written correspondence and of any other means of communication.

2. Limitations thereon may be imposed only in the cases and under the provisions laid down in paragraphs 3, 4 and 5 of Article 17 and in other cases as prescribed by law for judicial purposes, and in the manner prescribed therefor.

Art. 23. (Social Equality)

All persons are equal in social dignity.

Art. 24. (Property)

1. The right to own property shall be guaranteed by law, which shall define the modes of acquisition and the limits to the enjoyment thereof for the purpose of ensuring its social function.

2. Property may be expropriated only for reasons of public interest and in the manner prescribed by law, in exchange for equivalent and timely compensation.

Art. 25. (Freedom of Assembly)

1. Every person shall have the right to assemble in a peaceful manner for a peaceful purpose.

2. The law may provide that notice of intended public meetings be given to the authorities. Meetings may be forbidden only for reasons of public health, safety, morality, order or security.

Art. 26. (Freedom of Association)

1. Every person shall have the right to freely form associations, without authorization.

2. No person may be compelled to join an association of any kind or to continue to belong to it.

3. Secret associations or those having an organization of military character shall be prohibited.

Art. 27. (Right to Strike and Picketing)

The right to strike and picketing is recognized and may be exercised within the limits prescribed by the law. Any act tending to discriminate against, or to restrict the free exercise of trade union rights shall be prohibited.

Art. 28. (Freedom of Opinion)

1. Every person shall have the right to freely express own opinion in any manner, subject to any limitations which may be prescribed by law for the purpose of safeguarding morals and public security.

2. Expression of opinion may not be subject to prior authorization or censorship.

Art.29. (Freedom of Religion)

Every person shall have the right to freedom of conscience; and to freely profess own religion and to worship it subject to any limitations which may be prescribed by law for the purpose of safeguarding morals, public health or order. However, no religion other than Islam can be propagated in the country.

Art. 30. (Personal Status).

1. Every person shall have the right to a personal status in accordance with the laws or customs.

2. The personal status of Muslims is governed by the general principles of the Islamic Sharia.

TITLE II SOCIAL RIGHTS

Art. 31. (Protection of the Family)

1. The family based on marriage, as being the fundamental element of society, shall be protected by the State.

2. Parents shall provide for the support, education and instruction of their children, as required by law.

3. The law shall provide for the fulfillment of the obligations set out in the preceding paragraph in case of death of the parents and whenever, by reason of incapacity or otherwise, the parents do not perform them.

4. Children who are of full age shall be obliged to support their parents when the latter become unable to provide for themselves.

5. The State shall protect motherhood and childhood and encourage the institutions necessary for this purpose.

6. The State shall recognize the protection of children of unknown parents as its duty.

7. Women have the right to equal treatment with men, including the right to equal opportunities in political, economic and social activities, and they are entitled to be accorded the same dignity of person as men.

8. Society is to give children a special consideration and it is the duty of parents, society and the state to protect, nurture and educate them.

9. Elderly people have all the rights and freedoms provided in the Charter and are entitled to health care, protection and assistance of family, society and state.

Art. 32. (Welfare Institutions)

1. Persons with disabilities have the rights and freedoms provided in the Charter and the State shall, by legislation and policy measures, recognize their rights for respect and human dignity, and make financial provisions as much as possible.

2. The State shall promote and encourage the creation of welfare institutions for the physically handicapped persons and abandoned children for their protection, education and health.

Art. 33. ( Protection of Public Health)

The State shall protect public health and promote free medical assistance for indigent persons.

Art. 34. (Safeguarding of Public Morality)

The State shall safeguard public morality in the manner prescribed by law.

Art. 35. (Education)

1. The State shall encourage education, as being a fundamental interest of the community, and provide for the creation of State schools open to all.

2. Primary education in public schools shall be free.

3. Freedom of teaching shall be guaranteed by law.

4. Organizations and individuals shall have the right to establish, in accordance with the law and without financial support from the State, schools and educational institutions.

5. Private schools and educational institutions may have a parity of status with State schools and institutions under the conditions laid down by law.

6. Teaching of Islam shall be compulsory for pupils of Islamic faith in primary and secondary State Schools and in schools having a parity of status. Teaching of The Holy Quran and Islamic religious education shall be a fundamental element in primary and secondary State schools for Muslims.

7. Institutes of higher education shall have their own autonomous organization, within the limits prescribed by law.

8. a) Somali language shall be the medium of instruction in elementary schools. Arabic and English shall be taught as languages.

b) English shall be the medium of instruction in intermediate and secondary schools. Somali and Arabic shall be taught as mandatory languages.

9. The Interim Government shall undertake sustained and massive educational program (with international assistance) to undo the damage of the past decade.

10. The Interim Government shall re-establish Somali National University and plan to have future satellite campuses in the regions.

Art. 36. (Protection of Labour)

1. The State shall protect labour and encourage it in all its forms and applications.

2. Forced and compulsory labour of any kind shall be prohibited. The cases in which labour may be ordered for military or civil necessity or pursuant to a penal conviction shall be prescribed by law.

3. Every worker shall have the right to receive, without any discrimination, equal pay for equal work, so as to ensure an existence consistent with human dignity.

4. Every worker shall have the right to a weekly rest and an annual leave with pay; and shall not be compelled to renounce it.

5. The law shall establish the maximum working hours, weekly rest, annual leave and the minimum age for the various types of work; and shall ensure that minors and women work only under suitable conditions.

6. The State shall protect the physical and moral integrity of the workers.

Art. 37. (Social Security and Assistance)

1. The State shall promote social security in accordance with the law.

2. The State shall guarantee to its civil and military employees the right to pension; it also shall guarantee, in accordance with the law, assistance in case of accident, illness or incapacity for work.

3. Rights of non-state employees shall be protected in a law to be established.

TITLE III JUDICIAL GUARANTEES

Art. 38. (Right to Institute Legal Proceedings)

Every person shall have the right to institute legal proceedings under conditions of full equality before a lawfully constituted Court.

Art. 39. (Protection Against Acts of the Public Administration)

Judicial protection against acts of the Public Administration shall be allowed in all cases, in the manner and with the effects prescribed by law.

Art. 40. (Civil Liability of the State for the Acts of its Officials and Employees)

1. Whoever suffers damages from acts or omissions in violation of his rights by officials or employees of the State or public bodies in the performance of their duties, shall have the right to obtain compensation from the State or the public bodies concerned.

2. The penal, civil and administrative liability of officials and employees for the acts or omissions referred to in the preceding paragraph shall be governed by law.

Art. 41. (Right of Defence).

1. The right of defence shall be allowed at every stage of legal proceedings.

2. The State shall guarantee, under the conditions and in the manner prescribed by law, free legal aid to the poor. In case of capital punishment, free legal aid shall be provided for all.

Art. 42. (Non-retroactive Nature of Penal Law)

No person may be convicted for an act which was not punishable as an offence under the law in force at the time when it was committed; nor may a heavier punishment be imposed than the one applicable at that time.

Art. 43. (Penal Liability)

1. Penal liability shall be personal. Any kind of collective punishment shall be forbidden.

2. The accused shall be presumed innocent until proven guilty.

Art. 44. (Social Purpose of Punishment)

Punishment that restricts personal liberty shall not consist of treatment contrary to feelings of humanity or be such as to obstruct the moral rehabilitation of the convicted person.

Art. 45. (Enforcement of Punishment)

Supervision over the enforcement of punishment and security measures shall be exercised by the competent Court in accordance with the law.

Art. 46. (Redress of Judicial Errors)

The conditions and procedures for the redress of judicial errors shall be prescribed by law.

PART IV - ORGANIZATION OF THE STATE

TITLE I THE INTERIM PARLIAMENT

Section I: Definition of the Interim Parliament

Art. 47. (Legislative Powers)

The legislative power shall be vested in the Interim Parliament.

Art. 48. (The Doctrine of Islam in the Legislation)

The doctrine of Islam shall be the main source of the laws of the State.

Section II: Organization

Art. 49. (Interim Parliament)

1. The Interim Parliament shall consist of Deputies nominated by the various community (political/traditional) at the Reconciliation Conference’s reconstituted third phase plenary. The nominees need not be members of the plenary of the conference and shall be based on an equitable community and regional balance.

2. The number of Deputies shall be 171 members, of which at least 25 of them shall be women, in order to move towards equity. The women members shall be named by the women groups at the Conference on equitable community basis.

3. Every citizen who has the right to vote and attained 25 years of age shall be eligible to be a Deputy.

4. Deputies should not be eligible for cabinet positions.

Art. 50. (Term of Office and Elections)

1. The term of office of the Interim Parliament shall be for a period of three years starting from the date of the signing of the final reconciliation agreement. This term shall not be extended or reduced.

2. At its first meeting, the Interim Parliament shall elect, from among the Deputies, a President, one Vice-President and the other Members of the office of the Presidency.

3. Every Deputy represents the people and shall exercise functions without being bound by any mandate.

Art. 51. ( Dissolution of the Interim Parliament)

The Interim Parliament shall not be dissolved before the end of its term.

Section III: Powers and Functions

Art. 52. (Sessions of the Interim Parliament).

1. The Interim Parliament shall hold two annual sessions.

2. The Interim Parliament may be convened in extraordinary session by its President, or on the request of the President of the Republic, or of the Government, or of one fourth of the Deputies.

Art. 53. (Amnesty and Indult)

1. The power of granting amnesty and indult may be delegated to the President of the Republic by a law approved by two-thirds majority of the Deputies in the Interim Parliament, upon the proposal of the Council of Ministers.

2. Amnesty and indult may not be granted in respect of offences committed after the presentation of the draft law on the delegation of powers.

Art. 54. (Taxation and Expenditure)

The imposition, modification and abolition of taxes shall be effected only by law.

1. Laws involving new or larger State expenditure shall specify the means for meeting such expenditure.

2. In the case of an expenditure to continue for more than one year, the means to meet it may be limited to the budget for the current year.

Art. 55. (Budget and Annual Accounts)

1. The Parliament shall approve the estimated budget each year, which shall be presented by the Government at least two months before the new financial year.

2. The law approving the budget may not establish new fiscal charges and new expenditures.

3. Provisional application of the budget may be authorized by law for periods not exceeding three months in toto.

4. Within the first six months of each financial year, the Government shall present to the Parliament, for approval, the annual accounts relating to the previous financial year.

Art. 56. (International Treaties)

The Interim Parliament shall authorize by law the ratification of political, military or commercial international treaties or of treaties which involve a modification of the law or financial commitments not included in the budget.

Art. 57. (State of War)

The Interim Parliament shall authorize the declaration of a state of war in the event of an external aggression and confer on the Government the necessary powers.

Art. 58. (Power of Investigation of the Interim Parliament)

1. Each Deputy shall have the right to put questions or to submit interpellations to the Government and to propose motions to the Parliament. The Government shall reply within twenty days.

2. The Parliament may order investigations through Committees consisting of Deputies from all parliamentary groups, in order to investigate occurrences or situations of public interest. When it decides to order such an investigation the Parliament shall establish, within the limits of the Charter, the powers of the Committee; it may also appoint experts to co-operate with the Committees.

Section IV: Procedures

Art. 59. (Organization).

1. Except as otherwise provided by the Charter, the conduct of business in the Parliament shall be governed by rules of procedure approved by the Interim Parliament on the proposal of its President or of at least five Deputies.

2. At its first meeting, the Parliament shall elect, from among the Deputies, a President, a Vice-President and the other Members of the office of the Presidency.

3. The orderly conduct of the Interim Parliament shall be maintained by the Interim Parliament itself through its President or through whoever acts on behalf of the President in accordance with rules of procedure.

4. The meetings of the Parliament shall be public. In exceptional cases, the Parliament may decide to meet in closed session on the motion of its President, or at the request of the President of the Republic, or of the Government, or of not less than thirty Deputies.

5. The sitting of the Parliament shall not be valid unless there is an absolute majority of the Deputies present.

6. All decisions shall be taken by a vote of the majority of those present, except when a special majority is required unless stated by the Charter or law.

7. No proposal rejected by the Parliament may be re-introduced until six months have elapsed after the rejection.

Art. 60. (Participation of the Ministers, Vice-Ministers).

1. Ministers and Vice-Ministers shall have the right to attend the meetings of the Parliament and of the Committees and to take part in the discussions in the exercise of their ministerial functions. Officials and experts, at the request of Ministers, may also attend such meetings and be heard.

2. Ministers and Vice-Ministers shall be present at the meetings if requested by the Parliament.

Art. 61. (Oath)

1. Before assuming his functions, each deputy shall take the following oath of office before the Parliament: “In the name of God, I swear that I will discharge faithfully all my duties in the interest of the people and will abide by the Charter and the laws”.

2. Deputies in office shall be entitled to the emoluments and daily sitting allowances fixed by law.

Art. 62. (Presentation and Discussion of Draft Laws)

1. Each deputy and the Government shall have the right to present draft laws to the Parliament.

2. Prior to the Parliamentary debate, every draft law shall be examined by the relevant Parliamentary Committee which shall present one or more reports thereof to the Parliament.

3. The Parliament shall discuss each draft law in accordance with the rules of procedure. It shall vote on it Article by Article, and in the end it shall vote on the draft law as a whole.

Art. 63. (Promulgation and Publication)

1. Every law approved by the Parliament shall be promulgated by the President of the Republic within sixty days of its approval.

2. Where the Parliament declares by an absolute majority of its Members, that there is an urgent need, a law shall be promulgated within the time-limit fixed by the Parliament, provided that such time-limit shall not be less than five days.

3. Within the period fixed for promulgation, the President of the Republic may transmit to the Parliament a message, stating the grounds thereof, requesting that the law be reconsidered.

4. Where the Parliament approves such law again by a two-third majority, the President of the Republic shall promulgate it within thirty days of the approval.

5. Every law approved by the Parliament and promulgated by the Head of State shall be published in the Official Bulletin and shall come into force on the fifteenth day following its publication, unless the law provides otherwise.

Art. 64. (Delegation of Legislative Powers)

1. The Parliament may delegate to the Government the power to issue, on specified subjects or matters and for a limited period, provisions having the force of law. In delegating authority, the Parliament may establish the policy and issue directives.

2. Provisions made under a delegated power shall be issued by decree of the President of the Republic on the proposal of the Council of Ministers.

Art. 65. (Decree-Laws)

1. In case of urgent necessity, the Government may issue temporary provisions having the force of law. Such provisions shall be issued by decree of the President of the Republic, on the proposal of the Council of Ministers, and shall, within five days from the date of their publication, be submitted to the Parliament for conversion into law.

2. If in session, the Parliament shall decide on their conversion into law within thirty days of the date of presentation; if not in session, it shall decide within thirty days of its first subsequent meeting.

3. Provisions which are not converted into law shall cease to have effect ab initio; the Parliament may, however, decide that such effect shall cease on a different date and may regulate the legal consequences arising from the non-conversion of such provisions.

Section V: Immunity

Art. 66. (Immunity)

1. Deputies shall not be prosecuted for facts mentioned, opinions expressed or votes cast in the exercise of their functions in Parliament.

2. Without the authorization of the Parliament, no criminal proceedings shall be instituted against a Deputy, nor shall a Deputy be arrested or otherwise deprived of personal liberty nor shall his person or domicile be subjected to search, except in case of flagrante delicto for a crime in respect of which a warrant or order of arrest is mandatory.

3. In cases other than those involving criminal proceedings, an action may be taken against a Deputy in accordance with the law, without authorization of the Parliament.

TITLE II THE INTERIM PRESIDENT OF THE REPUBLIC

Art. 67. (Election)

1. The Interim President of the Somali Republic shall be the Head of the State and represents the unity of the Nation.

2. The Interim President of the Republic shall be elected by secret ballot by the Interim Parliament with a majority of two-thirds of its members on the first and second ballots, or by an absolute majority of its members in subsequent ballots.

3. Before assuming his/her functions, the Interim President of the Republic shall take the following oath of office before the Parliament: “In the name of God I swear that I will discharge faithfully all my duties as the Interim President of the Republic and defend the Charter, and laws of the land with all my strength in the interest of the Country and the people”.

Art. 68. (Qualifications for Eligibility)

1. Any Muslim citizen whose father and mother are both Somali citizens, and who has the right to vote and is not less than forty five years of age, shall be eligible to become the Interim President of the Republic. The President must not have committed crimes and engaged in human rights violations.

2. The spouse of the Republic’s Interim President shall be a Somali national.

3. The Interim President of the Republic shall not, during his term of office, exercise any other public function, except the right to vote, nor shall he/she engage in any professional, commercial, industrial or financial activities.

Art. 69. (Term of Office)

The term of office of the Interim President of the Republic shall be three years from the date of his/her taking the oath. Any modification of this period shall not apply to the Interim President in office.

Art. 70. (Emoluments and Establishment of the Interim President of the Republic)

The emoluments of the Interim President of the Republic and the amount required for his establishment shall be fixed by law.

Art. 71. (Disability, Resignation, Death)

1. In case of death, resignation, or permanent disability of the Interim President of the Republic, the Parliament shall meet within thirty days to elect a new President of the Republic.

2. Until the election provided for in the preceding paragraph has taken place and in cases when the powers of the President in office have been suspended under Article 74(3), as well as in all cases of temporary disability, the functions of the President shall be temporarily exercised with full legal effect by the President of the Parliament, or, in his/her absence, by the Deputy President of the Parliament.

3. In case of resignation, the President of the Republic shall give written notice thereof to the Parliament.

Art. 72. (Powers and Duties)

The Interim President of the Republic shall exercise the functions conferred upon him by the Charter and by law, in the legislative, executive and judicial fields. In addition, she/he shall:

a) authorize the presentation to the Interim Parliament of draft legislation originating from the Government;

b) address messages to the Interim Parliament;

c) grant pardon and commute sentences;

d) accredit and receive diplomatic agents;

e) ratify international treaties, after previous authorization from the Parliament, where required;

f) be the commander-in-chief of the Armed Forces;

g) declare a state of war after authorization from the Parliament in accordance with Article 57;

h) Confer State honours.

Art. 73. (Responsibility)

1. The Interim President of the Republic shall not be responsible for acts performed in the exercise of his functions, except for crimes of high treason or attempts against the constitutional order, as provided by law.

2. The responsibility for acts of the President shall rest with the Prime Minister and the competent Ministers who subscribe to them.

3. In case of high treason or attempts against the constitutional order, the President of the Republic shall be impeached by a decision of the Parliament taken on the motion of at least one fifth of its Members and approved by secret ballot by a majority of two-thirds of the Deputies. The President shall then be tried by the Supreme Court constituted as the High Court of Justice.

4. Except in the cases mentioned in the preceding paragraph, the President of the Republic shall not be tried for any penal offence except when the Parliament gives its authorization approved by secret ballot by a majority of two thirds of the Deputies.

5. An approval of impeachment for high treason or for an attempt against the constitutional order or an authorization to institute criminal proceedings for any other crime shall entail the automatic suspension of the powers of the President.

TITLE III THE INTERIM GOVERNMENT

Section I: Organization of the Government

Art. 74. (Executive Power)

The executive power shall be vested in the Interim Government, headed by the Prime Minister.

Art. 75. (The Interim Government)

1. The Interim Government shall be composed of the Prime Minister, the Deputy Prime Minister and the Ministers.

2. The meeting of the Prime Minister and the Ministers shall constitute the Council of Ministers. During the absence of a Minister, the Prime Minister shall delegate the responsibilities of this Ministry to a colleague of the cabinet.

3. The Prime Minister shall be appointed and dismissed by the President of the Republic.

4. The Ministers shall be appointed and dismissed by the President of the Republic on the proposal of the Prime Minister.

5. Before assuming their functions, the Prime Minister and the Ministers shall take the oath of office before the President of the Republic as specified in Article 61(1)

Art. 76. (Vice-Ministers).

1. The Ministers may be assisted by Vice-Ministers who shall be appointed and dismissed by the President of the Republic, on the proposal of the Prime Minister, having heard the Council of Ministers.

2. The Vice-Ministers shall assist the Ministers and exercise the functions delegated to them.

3. Before assuming their functions, the Vice-Ministers shall take the following oath of office before the Prime Minister as specified in Article 61(1)

Art. 77. (Qualifications for Appointment of Ministers and Vice-Ministers)

1. The Prime Minister, the Deputy Prime Minister, the Ministers and Vice-Ministers shall be appointed from outside the members of the Parliament.

2. Ministers and Vice-Ministers shall have degrees from recognized Universities, or its equivalent, wide management experience, proven ability and high integrity.

3. A Minister or Vice Minister, during his period in office, shall not exercise any other public functions nor shall he engage in professional, commercial, industrial or financial activities. He shall not directly or indirectly obtain the lease of, or purchase property belonging to the State or to public bodies, except for public premises to be used as his personal residence during his term of office. He shall not, furthermore, sell or lease his own property to the State or to public bodies, or participate in a personal capacity in State enterprises or in enterprises controlled by the State.

Art. 78. (Presidency of the Council of Ministers and Ministries)

1. The functions of the Presidency of the Council of Ministers as well as the number and the functions of the Ministries shall be established by law.

2. Considering the need for a lean Interim Government during the transition period, resource scarcity and as there shall be regional governments, the Interim Cabinet shall not exceed 13 members. There shall be no more than 6 Vice-Ministers

3. The organization of the Presidency, the Council of Ministers, the Ministries and the subordinate offices shall be laid down in regulations issued by decree of the President of the Republic

Art. 79. (Confidence of the Interim Parliament)

1. The Interim Government shall obtain the confidence of the Interim Parliament within thirty days of its formation. The Interim Government shall present itself and its programme to the Interim Parliament and request its confidence. Subsequently, the Interim Government may ask the Interim Parliament to express its confidence at any other time.

2. The Parliament shall express its confidence or no-confidence by means of a motion, stating the grounds thereof, approved by a simple majority in an open vote.

3. A motion of no-confidence, stating the grounds thereof, may also be proposed at any time, by at least thirty Deputies, and shall be examined not earlier than five days after its presentation. In order to be carried, it shall require an absolute majority in open vote.

4. Upon a vote of no-confidence by the Parliament, all the Members of the Government shall resign.

5. The resigning Government shall continue in office for the purpose of carrying out routine duties until the appointment of the new Government.

Section II: Activities of the Interim Government and Subordinate Organs

Art. 80 (Powers and Functions of the Interim Government)

The functions of the Interim Government will be:

- Reconciliation, demobilization, disarmament, and reintegration

- Foreign and International Co-operation

- Justice and Religion

- Defence and Security

- Finance, economy, and Development Planning

- Natural Resources and Environment

- Transport, Posts and Telecommunication

- Social Affairs

- Reconstruction and Public Works

- Foreign Trade

- National Reconciliation

- Science and Technology

Art. 81. (Powers and Responsibilities of the Interim Prime Minister and the Ministers)

1. The Prime Minister shall direct the general policy of the Interim Government and shall be responsible thereof. The Prime Minister shall maintain the unity of the Government’s policy by coordinating and promoting the activities of the Ministries.

2. The Ministers shall direct the affairs within the competence of their respective Ministries and shall be individually responsible therefor.

3. The Prime Minister and the Ministers shall be jointly responsible for the acts of the Council of Ministers.

Art. 82. (Penal Responsibility of the Interim Prime Minister and the Ministers)

1. The Prime Minister and the Ministers are responsible for offences committed in the exercise of their functions.

2. In respect of such offences, the Prime Minister and the Ministers shall be impeached on a decision of the Parliament taken on the motion of at least one-fifth of its Members and approved by secret ballot by a majority of two-thirds of the Deputies; they shall be tried by the Supreme Court constituted as the High Court of Justice.

3. Except as provided in the preceding paragraph, no criminal proceedings shall be instituted against the Prime Minister or the Ministers except by authorization of the Parliament, approved by secret ballot by a majority of two-thirds of the Deputies.

4. The Prime Minister or a Minister committed for trial before the High Court of Justice shall be automatically suspended from exercising his functions.

Art. 83. (Power to Issue Regulations)

Regulations shall be issued by decree of the Interim President of the Republic on proposals approved by the Council of Ministers. The power to issue regulations on specific matters may be given by law to other organs of the State and to public bodies.

Art. 84. (Administrative Decentralization)

Whenever possible, administrative functions shall be decentralized and performed by the local organs of the State and by public bodies.

Art. 85. (Law Enforcement)

1. In order to safeguard national security, the police force shall be re-established under the already applicable existing laws, rules and regulations.

2. The policing system shall be decentralized, whereby the self-governing entities, autonomous Regions and their component units (Districts, etc), shall have their own Police units with respective command structures.

3. The Interim Government shall retain the following police functions under a Central Police Command (CPC) responsible to the Council of Ministers:

a) Protection of State institutions, VIPs and other entities;

b) Centralized Bureau of Investigation (CBI) for the prevention and investigation of crimes against the state and cases with international repercussions.

c) Frontier Control (mobile force, etc), including territorial waters;

d) Interpol affairs and liaison with International police organizations;

e) Responsibilities for uniformity of Police functions throughout the country, and in

Particular:

i) Co-ordination and inspection of regional police units.

ii) Incorporation of Police Archives, care and custody of fingerprint collections and other criminal records; statistical police data including identification of habitual criminals and their individual modus operandi – collation and dissemination of Police Gazettes, etc.

iii) Police Training and management of training schools.

iv) Logistics catering for the Police throughout the country.

Art. 86. (Appointment of High Officials)

High officials and Commanders of the Police and Armed Forces specified by law shall be appointed by the Interim President of the Republic, on the proposal of the relevant Minister and approved by the Council of Ministers.

Art. 87. (National Commissions)

1. The Interim Government shall within ninety (90) days of receiving the confidence of Parliament nominate the following national commissions in consultation with the Regional authorities and/or communities:

a) Federal constitution Commission

i) A Federal Constitution Commission shall be established by law which shall provide for its composition and powers.

ii) The law establishing to provide the Constitution Commission shall guarantee the independence of its functions.

iii) The Constitutional Commission shall undertake the following tasks:

- hold consultations with SGA’s, autonomous regions, civil society and the public in general on issues concerning the drafting of the federal constitution;

- draft a federal constitution during the Interim period;

- organize a national conference on the draft constitution which should approve the final draft.

b) Land and Property Commission, which shall inter alia ascertain the following tasks:

i) identify property and assets illegally acquired

ii) by whom such property(ies) have been acquired

iii) whereabouts of the acquisition

iv) Restore or recommend the ways and means of restoration of such acquisition to rightful owners

v) To determine ways and means of compensating where the acquisition is no longer available in kind.

c) Conflict Resolution and Reconciliation Commission, to:

i) Enhance reconciliatory endeavours at all levels of society to end the hostilities;

ii) Bridge the gap of mistrust among the various communities and confidence through dialogue

iii) Create appropriate regional and national networks for peace management, early warning and early response to conflict situations.

d) Civil Service Commission

i) shall be established by law which shall provide for its composition and powers.

ii) the law establishing the civil Service Commission shall guarantee the independence of its functions.

The nominations of the above National Commissions shall be subject to Parliamentary approval and appointment by decree of the President of the Republic.

Each Commission shall have clearly specified terms of reference and a time frame of its mandate.

Art. 88. (Civil Servants and Public Employees)

1. Civil servants and public employees shall exercise their functions in accordance with the law and solely in the public interest.

2. Civil servants and public employees may not be leaders of political parties.

3. The categories of civil servants and public employees who shall not belong to political parties or engage in other activities incompatible with their functions shall be established by law.

4. Any civil servant or public employee who is on leave for any reason shall not be promoted except on grounds of seniority.

5. The status of civil servants shall be established by law.

6. Appointments to the permanent establishment of the civil service shall be made only after a public competitive examination, except in the cases provided by law.

Section III: Auxiliary Organs

Art. 89. (Magistrate of Accounts)

1. The Magistrate of Accounts shall exercise a prior control over the legality of Government acts involving financial obligations and a post-audit on the State budget.

2. The Magistrate of Accounts shall participate, in the manner specified by law, in the control over the financial management of agencies to which the State makes a regular

contribution, and of agencies to which the State makes a substantial contribution as an extraordinary measure.

3. S/He shall report to the Parliament on the results of his/her audit.

4. The law shall regulate the organization of this organ and guarantee the independence of its functions; it shall ensure that the organs and agencies subject to audit have the right to be heard in any judicial proceedings connected therewith.

Art. 90. (National Economic and Labour Council)

1. The National Economic and Labour Council shall be composed in the manner prescribed by law, of experts and representatives of categories of producers of national wealth in proportion to their numerical strength and economic importance.

2. It shall be an Advisory Organ to the Interim Parliament and to the Government, in respect of matters and functions assigned to it by law.

Art. 91. (Disarmament Bureau)

1. There shall be established a Bureau for disarmament, demobilization and rehabilitation and reintegration of militia groups.

2. The Bureau shall be staffed by a number of technocrats with both civilian and military background, who shall work under the supervision of an autonomous Board of Directors to be established by law.

3. The Bureau shall have its head office at the seat of government, but may have sub-offices in all parts of the country; and shall be accommodated in existing public building.

4. The mission of the Bureau is the disarmament of all militia groups in the country as soon as possible, in collaboration with the regional authorities.

5. The disarmament shall primarily be conducted inter alia through the voluntary surrendering of weapons and through a number of incentives.

6. Any weapons so surrendered shall not be stored, but shall be immediately destroyed, as far as possible in the presence of the surrendering volunteers, as a confidence building measure that such weapons shall not pass to third parties, least of all, their rivals.

7. Corporates and other private entities who employ armed militia may have their fire arms registered with the Disarmament Bureau and to be licensed for their security and their property, against the payment of fees to the prescribed by law. The Corporates or private entities shall be fully responsible for such fire arms registered and licensed under their names.

8. The fire arms mentioned in the preceding sub-paragraph may be withdrawn when the country’s security is re-established.

9. Both the Board of Directors and the Bureau shall be answerable to the Council of Ministers.

Art. 92. (Commercial Court)

1. To create conducive business environment and improve the resolution of trade and commercial conflicts, there shall be established a Commercial Court.

2. The concerning the legal status and the appointment of members of the court shall be established by law.

Art. 93. (Central Bank)

1. There is established Central Bank for the Republic. The Central Bank shall be the only authority to issue the currency of the country.

2. The Central Bank shall vest in a Board which shall consist of a Governor, a Deputy Governor and a member for each state which will represent the state in the Board of the authority.

3. The Governor, the Deputy Governor and all other members of the Board shall be appointed by the President of the Republic with the approval of the Interim Parliament and hold the office for a term of five years.

4. A person shall not be qualified as a Governor unless such person has knowledge and experience in matters relating to development, finance or accounting.

Art. 94. (Functions of the Central Bank)

The Central Bank shall be headed by a Governor and governed by an appointed Board.

1. The Central Bank of the Somalia Republic shall:

a) Promote and maintain the stability of the value of the national currency;

b) Issue notes and coins;

c) Act as a Banker and Financial Advisor of the Interim Government;

d) Conduct the monetary policy of the Government in a manner consistent with the relevant provision of the law;

e) Regulate the currency system in the interest of balanced and sustainable economic growth of Somalia.

2. In performing its functions, the Central Bank shall conform to the Charter and shall not be subject to the direction or control of any person or authority except the government.

Art. 95. (Somali Revenue Authority (SRA))

1. To avoid mistrust amongst the Interim Government and the constituent parts of the Republic and to ensure efficient and effective generation of revenue for the purposes of promoting and safeguarding the well-being of the people of Somalia.

2. To enhance the participation of people, communities and civil society organizations in public finance.

3. To ensure that the budget and budgetary process promote transparency, accountability and effective financial management, it is established a Somali Revenue Authority (SRA), which shall be the only authority in charge of collecting all kind of revenue in the country. The Head of SRA, his deputy and all other members of the Board shall be nominated by the Cabinet and appointed by the President of the Republic and shall remain in office for a term of five years.

4. In performing its functions, the SRA shall conform to the Charter and shall remain responsible to the Government.

Art. 96. (The Ordinary Fund)

1. All revenue or other monies raised or received locally on behalf of, or in trust for, the Government shall be paid into the ordinary Fund.

Art. 97. (Withdrawals from the Ordinary Fund)

1. No money shall be withdrawn from the Consolidated Fund except:

a) to meet expenditure charged on the Fund by the Charter or by an Act of Parliament.

b) where the issue of those moneys has been authorized by an Appropriation Act, or a Supplementary Appropriation Act.

2. No money shall be withdrawn from any public fund other than the Consolidated Fund, unless the issue of those moneys has been authorized by law.

3. No money shall be withdrawn from the Consolidated Fund unless the withdrawal has been approved by the Controller of Budget in the manner prescribed by Parliament.

Art. 98. (Consolidated Fund)

1. All monies donated by the international community for the purpose of reconstruction

and development shall be paid into a special fund called Consolidated Fund for

Reconstruction.

2. The Fund shall accept international participation and involvement in:

a) fundraising, including holding of donor conference for the Somali Republic;

b) in providing technical assistance for managing and monitoring of the fund.

Art. 99. (Appropriation Bill)

1. The heads of expenditure contained in the estimates, other than expenditure charged on the Consolidated Fund by the Charter or any Act of Parliament, shall be included in a Bill to be known as an Appropriation Bill which shall be introduced into Parliament to provide for the issue from the Consolidated Fund of the sums necessary to meet that expenditure, and the appropriation of those sums for the purposes specified in the Bill.

2. If in respect of any financial year it is found:

- that the amount appropriated for any purpose under the Appropriation Act is insufficient or that a need has arisen for expenditure for a purpose for which no amount has been appropriated by that Act; or

- that any moneys have been expended for any purpose or for a purpose for which no amount has been appropriated by that Act, a supplementary estimate showing the sums required or spent shall be laid down before Parliament and in the case of excess expenditure, within four months after the first drawing on the money is made: provided that the sum required or spent in a supplementary shall not in total exceed ten percent of the sums appropriated by Parliament for the respective purposes during that financial year.

Art. 100. (Controller of the Budget)

1. There shall be a Controller of Budget shall nominated by Cabinet, and approved by Parliament. He/she shall be appointed by the President of the Republic. This hall be a constitutional office.

2. A person shall not be appointed Controller of Budget unless that person:

a) is a fully qualified accountant, and finance and budget expert;

b) is a person of high moral character and proven integrity.

3. The Controller of Budget shall oversee the implementation of the Budget as Parliament approved it by:

a) ensuring that the money is spent as Parliament intended;

b) providing accounts of actual as opposed to budgeted expenditure;

c) providing technical advice to Parliamentary finance committees;

d) working closely with the Ministry of Finance and Development Planning and other ministries.

4. The Controller of Budget shall submit annual reports to the Parliament.

5. Parliament shall, within three months after the submission of the report in clause (4) of this article, debate and consider the report and take appropriate action.

6. In performing his/her functions, the Controller of Budget shall not be under the direction or control of any person except that of Parliament.

7. Subject to the law the Controller of Budget may be removed from office by the President only for:

a) inability to perform the functions of his/her office arising from infirmity of body or mind;

b) misconduct

c) incompetence

TITLE IV THE ORGANIZATION OF THE INTERIM SELF-GOVERNING ADMINISTRATIONS ANDAUTONOMOUS REGIONS OF THE REPUBLIC

Section I: Constituent Parts and their Powers

Art. 101. (Decentralized Governance)

1. The Somali Republic shall have a decentralized governance system during the Interim period. The constituent parts shall be Self-Governing Administrations and Autonomous Regions. The Federal (Post-Interim) Units shall be defined by the Constitution.

2. The powers and functions of the Self-Governing Administrations and Autonomous Regions include Education; Health; Water Supplies; Local Electricity Supply; Agriculture; Public Works; Local Police; Local Business regulation; Welfare; and Regional Development Planning.

3. Powers and functions to be shared between the Interim Government on the one hand, and Self- Governing Administrations and the Autonomous Regions on the other, shall include Natural Resources, Security, Trade, Transport, Telecommunications, Taxation, Infrastructure, Ports and Airports, Development Planning, Reconstruction and Public Works. In Economic Affairs the formula recommended by the economic committee shall apply.

4. The Government shall assist the Self-Governing Administrations and Autonomous Regions in the transition to become viable entities as shall be defined in the future federal constitution. The total number of the constituent units of the Federal Republic shall be determined by the Constitutional Commission during the transitional period through consultations with the Government, Self-Governing Administrations, the Autonomous Regions and the general public.

5. All mandates not specified shall belong to the Interim National Government which can devolve some of them to the regional authorities.

Section II: Interim Self-Governing Administrations

Art. 102. (Governance Structures)

1. Interim Self-Governing Administrations are two or more regions that have joined together to form common governance structures and shall relate to the national government as one entity. These entities have the following characteristics:

- Geographical territory/contiguity

- At least 2 or more regions united

- Governance structure accepted by people of the regions concerned

- Economic viability.

2. In the framework of the unity and indivisibility of the Somali State, the Interim Government and current Interim Self-Governing Administrations and Autonomous Regions shall enter into dialogue concerning matters not covered in the Charter, including unspecified powers and functions.

3. The Government shall assist the Interim Self-Governing Administrations in the further development of their governance structures.

Section III: Interim Autonomous Regions

Art. 103. (Regions)

1. In the framework of the unity and indivisibility of the Somali Republic the regions and the districts shall be autonomous entities with powers and functions of their own to be established by law.

2. The autonomous regions are those individual regions that have maintained the 1990 regional status and do not have the Self- Governing Administration traits at the beginning of the interim period.

3. There shall be established autonomous Interim Regional Councils.

a) A regional council is composed of members nominated by the Districts of the region. Each district nominates five persons including a District chairperson and a woman to serve in the Regional council.

b) Regional councils elect their chairpersons and their Vice-Chairperson(s) from among their own respective members by simple majority. An elected chairperson of a regional council becomes the ex-officio Regional Governor; and also represents the central Government in the region.

c) The Regional Governor and the District chairpersons shall form the executive body of the region.

4. Each regional council shall exercise the following functions:

a) Maintain regional security

b) Enhance the capacity of the district councils

c) Assist districts to develop their capacity to discharge their functions

d) Formulate plans and policies for the exploitation of the regional resources and development of regional infrastructure

e) Formulate plans and policies for education and health in the region.

f) Manage regional institutions

g) Any other functions delegated by the national government.

5. Each Regional Council establishes its own rules of procedure and enacts by-laws, as it deems necessary.

6. The life span of the Interim Regional Councils shall be within the third year of the interim period and before completion of the Federal structural process.

7. A regional council may be dissolved by the national Government for incompetence or exceeding its powers. A new council shall in that case be constituted within one month. The dissolved regional council can petition the Supreme Court against the decision of the National Government.

Section IV: Districts

Art. 104. (Regional Component Units)

1. Districts are the component units of the Regions.

2. Each District shall have its own district council and its members shall be selected by their own respective communities. A district shall be self-supporting in terms of resources, to meet its administrative expenditures.

3. The District Administrator is an appointed public servant.

4. Districts consist of the following categories which determine the number of the members of each district council:

a) Category “A” with 21 members

b) Category “B” with 17 members

c) Category “C” with 13 members

5. The District Chairperson, Vice-Chairperson and the district administrator shall in each District, form the executive body.

6. The District Council shall, among other things prescribed by the existing laws, also have competences over the following functions:

a) Establish, maintain, and manage primary and secondary education.

b) Establish, maintain and manage district hospitals and clinics.

c) Implement national land tenure policies

d) Establish Public works, Water and Electricity supplies, and maintain local bridges and of roads.

e) Implement national Agriculture policies.

f) Establish and maintain local Police and Prisons

g) Regulate local commerce and Industrial enterprises

h) Manage local ports and air ports.

i) Establish District statistics and planning.

j) Develop and manage local sports

7. District Councils adopt their rules of procedures and elect their chairpersons and vice-chair persons.

8. An elected Chairperson of the District Council becomes the ex-officio District Commissioner and shall be responsible to the regional Governor for administrative and security matters of the District. For all the district affairs, the Chairperson is answerable to the District Council.

9. A District Council may be dissolved by the regional council for incompetence or derliction of duty by a simple majority vote stating the reasons thereof. New District Council members shall be selected by the community, within two weeks.

TITLE V THE JUDICIARY

Art. 105. (Judicial Powers)

The Judicial powers shall be vested in the Judiciary.

Art. 106. (Independence of the Judiciary)

The judiciary shall be independent of the executive and legislative powers.

Art. 107. (Supreme Court).

1. The Supreme Court shall be the highest judicial organ of the Republic. It shall have jurisdiction over the whole territory of the State in civil, criminal, administrative and accounting matters and in any other matter specified by the Charter and the law.

2. The organization of the Supreme Court and of the other judicial organs shall be established by law.

Art. 108. (Unity of the Judiciary)

1. No extraordinary or special Courts shall be established.

2. There may only be established, as part of the ordinary Courts, specialized sections for specific matters, with the participation where necessary, of citizens who are experts, from outside the Judiciary.

3. The jurisdiction of Military Tribunals in time of war shall be established by law. In time of peace, they shall have jurisdiction only in respect of military offences committed by members of the Armed Forces.

4. The people shall participate directly in assize proceedings, in the manner prescribed by law.

Art. 109. (Judicial Guarantees)

1. In the exercise of their judicial functions, the Members of the Judiciary shall be subject only to law.

2. The rules concerning the legal status and the appointments of Members of the Judiciary shall be established by law.

3. Members of the Judiciary shall not be removed or transferred except in the cases specified by law.

4. Members of the Judiciary shall not hold offices, perform services or engage in activities incompatible with their functions.

5. Administrative and disciplinary measures, relating to Members of the Judiciary shall be adopted, as provided by law, by decree of the President of the Republic, on the proposal of the Council of Ministers, having heard the Higher Judicial Council.

Art. 110. (Judicial Procedure)

1. Judicial proceedings shall be public; the Court may decide, however, for reasons of morals, hygiene or public order, that the proceedings be held in camera.

2. No judicial decision shall be taken unless all the parties have had the opportunity of presenting their case.

3. All judicial decisions and all measures concerning personal liberty shall state the grounds therefor, and shall be subject to appeal in accordance with the law.

4. The Police and other Armed Forces shall be directly available to the judicial organs for the performance of acts pertaining to their functions.

PART V - CONSTITUTIONAL GUARANTEES

TITLE I REVIEW OF THE CONSTITUTIONALITY OF LAWS

Art. 111. (Constitutionality of Laws)

1. Laws and provisions having the force of law shall conform to the Charter and to the general principles of Islam.

2. In the course of a judicial proceeding, the question of the constitutionality of a law or a provision having the force of law may be raised, as to the form or substance, by means of a petition of the party concerned or of the Office of the Attorney General, or by the

3. Court on its own motion, where the decision depends, even though partially on the application of the law or provision being challenged.

4. Where a petition is presented by the party concerned or by the Office of the Attorney General while the case is pending before a Court of first or second instance, the Court, where it finds the petition not manifestly unfounded, shall suspend judgement and refer the matter to the Supreme Court for a decision, which shall be binding upon the former Court.

5. Where a petition is presented while the case is pending before the Supreme Court, the Supreme Court, where it finds the petition not manifestly unfounded, shall suspend judgment and proceed according to Article 111.

6. The same procedure shall apply where the question of constitutionality is raised by a Court of first or second instance, or by the Supreme Court, on their own motion.

Art. 112. (Constitutional Court)

1. A question of constitutionality shall be decided by the Supreme Court constituted as the Constitutional Court, with the addition of two Members appointed for a period of three years by the President of the Republic, on the proposal of the Council of Ministers, and two Members elected for the same period by the Parliament by an absolute majority.

2. The qualifications of the additional Members shall be prescribed by law.

Art. 113. (Judgment)

A decision of the Constitutional Court declaring that a law or a provision having the force of law is unconstitutional shall be communicated by the Court to the President of the Republic, the President of the Parliament and the Prime Minister, and shall be published in the manner prescribed for the publication of laws.

TITLE II CRIMINAL PROCEEDINGS AGAINST THE INTERIM PRESIDENT OF THE REPUBLIC AND THE MEMBERS OF THE INTERIM GOVERNMENT

Art. 114. (Impeachment)

1. The Articles of impeachment approved by the Parliament under Article 73 or Article 82, shall specify the acts alleged to have been committed by the President of the Republic or any Member of the Government and their accomplices if any.

2. The Parliament shall appoint, from among its Members, or from outside, one or three Prosecuting Commissioners who shall act as Public Prosecutor in proceedings before the Supreme Court constituted as the High Court of Justice.

Art. 115. (High Court of Justice)

The Supreme Court constituted as the High Court of Justice shall conduct the trials with six additional Members, drawn by lot by the President of the Court at a public hearing from a special list of twelve citizens qualified for election as Deputies. The twelve citizens shall be elected by the Parliament at the beginning of each term from among persons who are not Members of the Interim Parliament.

Art. 116. (Organization)

1. The provisions governing proceedings before the Supreme Court constituted as the High Court of Justice shall be laid down by law.

2. The Court shall establish its own rules of Court for the hearings.

TITLE III AMENDMENTS TO THE CHARTER

Art. 117. (Amendments and Additions to the Charter)

Amendments or additions to the provisions of the Charter shall be decided by the Parliament on the proposal of at least one fifth of its Members, or the Government, by two successive ballots held at an interval of not less than three months, approval thereof requiring an absolute majority of the Deputies on the first ballot and a two-third majority on the second ballot.

Art. 118. (Limits on Amendments to the Charter).

The Charter shall not be amended under the terms of the preceding Article for the purpose of modifying the republican and democratic form of government or for restricting the fundamental rights and freedoms of the citizen and of people guaranteed by the Charter.

PART VII - TRANSITIONAL AND FINAL PROVISIONS

I. The specific mandates of the interim national institutions for the interim period include:

a) The Interim Government shall on the outset of taking office appeal for the stationing of an international force to assist it in the initial program of disarmament and demobilization.

b) Restore law and order in the country, in collaboration with Self-Governing administration and autonomous regions.

c) Shall ensure national unity, reconciliation and peace-building

d) Assist the Self-Governing administrations to enhance and complete the governance structures where necessary.

e) Assist in establishing viable administrations in autonomous regions.

f) Establish special national commissions including Constitutional and all other commissions should be listed. Electoral Commissions, Land and Property Rights Commissions, reconciliation and conflict resolution; etc. within three months of taking office.

g) Establish a pro-active programme to attract Somali professionals from abroad.

h) Establish a joint regional security system with other countries, in association with the AU and UN.

i) Actively promote regional security by taking preventive measures in combating all types of terrorisms.

j) Establish, in close collaboration with the international community a support system that shall work in tandem with the Interim Government to establish viable public institutions and help restore peace and stability.

II. Land and property Rights

As policy and principle, all public and private land, property and assets illegally seized, occupied or acquired during and before the civil war should be returned unconditionally to their rightful owners through the appointment of a National Commission for Land and Property whose duties shall include the following:

a) To receive, investigate and address community and individual complaints and claims on land, property and asset, taking into consideration destruction and replacement of property, falsification and/or loss of documents;

b) To design a framework that people whose properties were illegally occupied or rented out shall be entitled to compensation paid by the illegal occupiers/tenants.

c) That all public property, land and assets disused or privately held should revert to state ownership regardless of its present state, occupation or ownership;

d) To recover and register all public property, land and assets, including vehicles, ships, aircrafts, industries, artifacts, treasure, valuables, funds inside and outside the country;

e) To launch a campaign at national, state/regional and district levels, appealing to Somalis and foreigners for the voluntary return of national assets, treasures and monuments stolen or misappropriated during the last 12 years of civil war in Somalia;

f) To establish special courts to deal with land and property rights and make land tenure law;

g) To mobilize resources for implementation of land and property conflicts resolution;

III. The Government shall devote maximum effort to restore peace and security, free movement of people, goods and services; disarmament and collection of illegal weapons that are in the hands of members of the general public; the rehabilitation and reintegration of all militia groups in co-operation with the regional administrations, traditional leaders and the international community.

IV. The Government shall take adequate measures to facilitate resettlement of internally displaced persons and voluntary repatriation of Somali refugees.

V. Any ongoing projects in parts of the country may continue, provided they do not infringe on the sovereignty of the state or impair the environment.

VI. All factions and their militia groups shall be dissolved and cease to exist within three months of the establishment of the Interim National Government.

VII. All armed groups inside the Somali Republic shall turn in their weapons to the authorities.

VIII. The tasks of the Interim Government in the last year of the transition (year 3) shall consist of the following:

a) Provide the necessary support and resources to the constitutional commission to organize the referendum on the Federal Constitution;

b) Enact Electoral and political parties’ laws.

c) Facilitate the completion of the process of identification and demarcation of constituent states of the Federal Republic to be outlined in the Federal Constitution.

d) Provide the necessary resources to the Electoral Commission to organize federal elections.

X. The final status of the Somali Republic shall emerge after the successful completion of the following processes:

a) Elections for States and Federal Legislatures;

b) Formation of the States constituting the Federal State and their governance institutions;

c) Adoption of the Federal Constitution in a Referendum

XI. The date for the elections of the future Parliament under the Federal Constitution shall be fixed by the Interim President, and the elections shall take place at least ninety days before the expiry of the transitional period.

XII. The Interim Parliament shall retain its powers in all cases until the production of the electoral results for the new Federal Parliament.

XIII. The future elected Parliament shall meet for its first session within thirty days from the production of the electoral results.

XIV. The text of this Charter shall be disseminated through broadcasting and printed media.

XV. In order to implement the provisions of the Charter, it is necessary for the following existing laws to be reviewed by a Commission of legal experts in the light of the current situation:

- Law on government organization;

- Law on Regional and Local Administrations;

- Law on State Accounting;

- Law on Public Order;

- Law on citizenship;

XVI. Provisions of the 1960s Constitution of the Somali Republic and other existing laws, and rules and regulations, which do not contravene this National Charter shall remain in force.

XVII. The Interim Government shall establish an autonomous National Resource Center (Think tank) that researches major issues facing the nation, and that would conduct non-partisan public debates.

XVIII. This Charter shall provisionally come into force the date of the signing of the final agreements of the Reconciliation Conference and shall remain valid until a Federal Constitution shall be adopted in a popular Referendum.

FAISAL_YARE · July 17, 2003

Originally posted by Samurai Warrior:

Yacquub - this I reckon will make an interesting reading as to your query.

Best of luck! Cheers.

SOMALIA WATCH - (Study-I.M.Lewis)

Decentralization options

Posted by/on:[AMJ][Thursday, October 5, 2000]

Executive Summary

This study describes four models of decentralised constitutional government, focusing on aspects that may be appropriate for Somalis. The four models are: (1) a confederation; (2) a federation; (3) a decentralised unitary state with strong guarantees of local or regional autonomy; and (4) a consociational, non-territorially based form of decentralisation. It then looks at different elements of government in modern democracies, such as the political economy, the administration, the judiciary, defence and foreign relations, and electoral designs, and outlines how each would be organised in the different models. The report concludes with a menu of options, and considers a final form, which would be the most decentralised: functional cooperation, which could be applied to however many states Somalis decide they want to establish, or even without the creation of formal state machinery at all. The report does not assume that the former Somali Republic can only be reconstructed as a single state.

Introduction: The Uncentralised Somali Legacy

by Professor Ioan M. Lewis

Today, most Somalis under the age of 30 have no knowledge of the democratic structures that were in place before Mohamed Siad Barre's military rule began in 1969, nor of the colonial period. In traditional Somali politics, all decision making is conducted democratically (although formally excluding women), by segmentary groups of kinsmen whose patterns of alliance and confrontation are fluid and inherently unstable. Pastoralists are individualists who meet in general assemblies, where all adult male family heads (or elders) seek consensus, instead of taking decisions by majority vote. Since so many males can be elders, leadership is often difficult to maintain for very long. In this uncentralised, rather than merely decentralised society, there is thus no tradition of a centralised state nor any set political offices or ranked leaders.

The two most stable elements in Somali society are: 1) the ' dia paying group': the contractually defined kinship group within clans or subclans, which acts as a unit in paying and receiving damages for injury and death; and 2) the clan: a grouping of several related 'dia paying groups'. Clans usually live within a roughly defined territory, trade together, share and maintain wells and other resources (camels bear a common clan brand). There are approximately 100 clans in this country of some 5 million inhabitants, though the size and power of each clan varies considerably. Pastoral nomads belong to clans that are larger and more widely spread out than clan members who live by cultivating and in urban areas. All clans belong to a clan family - a group of related clans which is the highest level of political solidarity within the Somali nation or ethnic group.

Clan Culture

The six Somali clan-families are the Dir, ***** , **** , ****** , Digil and ********* (also known as Digil-Mirifle). The **** live primarily in the former British Somaliland; the Digil and ********* are agro-pastoralists who live between the Juba and Shebelle Rivers, where they produce grain and have their own distinct culture and language (May or Maymay). They also adopt migrants from other clans. The ***** and ****** clans are the most widely distributed. There are also marginal Bantu groups along the rivers, other minority urban communities (some of Arab origin), and blacksmiths, leather-workers, and hunters who may seek to maintain retain separate status from the Somali clan structure.

Somali men are traditionally either warriors or men of God. Today, almost every male has an automatic rifle, and some have even heavier weapons, which constitute a serious obstacle to the formation of governmental structures. The country thus now consists of clans and unstable clan-alliances with their militias, as well as war lords with free-lance armed forces. There are also, in some areas, small independent Islamic communities, often with their own militias, providing educational and medical facilities and offering support to orphan war victims. In some urban settings, particularly, where other patterns of social control are failing, a fundamentalist style of Islamic law is being applied strictly, controversial though this is for many Somalis. There is in fact a deep-seated tension between universalistic Islam and particularistic local customary values and allegiances.

Over the past five years, there have been significant movements of population as people have pushed into the south, where economic and agricultural opportunities are greater. There has also been some 'clan-cleansing' during the same period, creating substantial numbers of refugees and displaced persons. While pasturage is traditionally not owned by specific groups, today clans are trying to maintain control over some regions, especially where there are water points and trading centres. In the absence of any effective central government, clan elders are also consolidating their power by making decisions in local clan councils, often in co-operation with militias, who provide informal police functions.

The Colonial and Post-Colonial Experience

There was no Somali state before European colonisation, which divided the nation into five parts (French, British, Ethiopian, Italian and Kenyan). This division ultimately served to unite Somalis, giving rise to Somali nationalism. After independence in 1960, which brought together the British and Italian Somalias, formal local councils were set up and elections held. The Italian legal system was largely adopted, while common features of Somali customary law continued to be applied alongside the European codes and shari'a law. The new state (the Somali Republic) was divided into eight regions with 59 districts, administered by regional and district governors.

The desire to unite all Somalis under one banner encouraged national solidarity cutting across clan ties, but created conflicts with neighbouring states, especially Kenya and Ethiopia. This unity lasted until the late 1960s when Mohamed Haji Ibrahim Egal, the new prime minister, made peace with the two neighbours. In what proved to be the last civilian elections held in 1969, most voters and candidates behaved according to their clan identifications, with 1,002 candidates contesting the 123 seats in the National Assembly.

Military Rule

In October 1969, General Mohamed Siad Barre took over in a military coup. Siad Barre developed a highly centralised, totalitarian state, and tried unsuccessfully to abolish clan behaviour. He applied what he termed 'scientific socialism'. Inspired by Marx and Lenin, Siad ruled through a revolutionary council, which effectively favoured the ***** clans, and was adept at manipulating clan rivalry in choosing ministers.

After the crippling 1975 drought the government adopted relief measures which displaced many northern nomads to the south, where they were settled in agricultural and fishing communities. Both activities were despised by the nomads, and many preferred to survive on food hand-outs while rebuilding their herds. Siad supported the Ogadeni guerillas (his mother's clansmen) in their secessionist struggle in Ethiopia, which by the late 1970s was gathering momentum and led to all-out war in 1977/78. This proved disastrous as Somalia had underestimated the strength of external support for Ethiopia and lost the war. Defeat and the enormous number of Ogadeni refugees who fled into Somalia gradually destabilised Siad's regime. The former Soviet Union had abandoned Somalia for the greater prize of Ethiopia, and Siad desperately switched allegiance to the West to gain assistance. As western aid gradually increased, the national economy collapsed, and Somalia became dependent on this aid for survival, although the informal economy thrived.

Current Patterns of Wider Alliance

Siad's peace agreement with Ethiopia in 1988, his arming of friendly clans to fight his opponents, the liberation of the 'Republic of Somaliland' by the **** guerillas, of Majerteynia by the SSDF, and his own overthrow in 1991 all helped to forge the current Rambo-style political economy.

Clans are not the only political units on the ground today, and, following wider economic and other strategic interests, are themselves involved in shifting patterns of alliance. Outside Mogadishu, there are currently at least three more ambitious political groupings, each with its own specific strengths and weaknesses: 1) 'Republic of Somaliland'/North-West, based on the former Somaliland Protectorate, and including the **** clans and their allies in the Gadabursi, Ise, Warsangeli and Dulbahante clans. The main port is Berbera, the capital Hargeisa; 2) North-East (Regions), based on the Majerteyn clan. The main port and capital is Bosaso; 3) Digil and ********* (Mirifle) alliance of clans based in the Inter-Riverine region of southern Somalia. The capital is Baidoa.

All three regimes claim local autonomy, but only Somaliland has so far asserted full independence (without achieving international recognition). This reflects the localisation of the **** and associated clans. The clan connections and interests of the SSDF Majerteyn in the North East, in contrast, extend far outside this region into the southern part of Somalia (through the Harti grouping). Here since June 1995 the demographically dominant ****** have two 'governments' based in different parts of the old capital, Mogadishu, and variously claiming 'national' status.

The Challenge

In conformity with their traditionally uncentralised political culture, the majority of those Somalis who feel a need for modern government (and not all do) advocate a lightly administered, decentralised system. Since Somalis have so energetically 'rolled back the frontiers of the state', it will be difficult to establish decentralised and flexible political structures that can accommodate the powerful inter-clan conflicts that pervade their politics. The problems are compounded by the widespread distribution of modern weapons and the practice of voting with the gun which has become so deeply embedded. The challenge facing Somali political leaders will be to persuade people that there are general common interests that could be best served by wider forms of political structures than exist today. They will then have to establish (perhaps along the lines suggested in our Menu) loosely articulated forms of political organisation capable of securing public approval.

1. Decentralisation Options for Democratic Reconstruction

Four decentralised models of government are outlined in this report, drawn from the experience of other peoples whose history has something in common with that of the Somalis. These are analysed with reference to emerging institutions in the former Somalia. There are three territorially-based models (a confederation, a federation, and a decentralised unitary state), and one community-based model (consociational) that can be combined with any of the territorially-based models.

Decentralised constitutional structures in other parts of the world that have similarly developed through local initiatives should be of interest to Somalis who wish to rebuild one or more states to replace the discredited former republic. It is not yet clear how many states should emerge from the old Somalia. There are three possibilities: 1) to re-establish a united Somalia under either a unitary or a federal constitution; or 2) to create a union or confederation from two or more states; or 3) to form two or more independent states with no constitutional links. Whatever is decided, it need not be permanent. Arrangements can be built into a new constitution that allow for re-unification or secession. Another important issue is where sovereignty, i.e., supreme political authority, should lie. There are three possibilities: 1) sovereignty can rest with all adult Somali citizens; 2) it can also be vested in the constituent territorial units of a Somali state or states; and 3) it can also rest with the clans.

A Confederation

A confederation is a union of separate but equal states linked by international treaties. In confederations, sovereignty rests with the states, whereas in federations it is shared between the centre and the states (or provinces or regions). A confederation is normally created for specific purposes, such as for common defence, free trade, or to prepare for closer political union; and the centre normally acts as a coordinating body only. For example, in many federations, such as Switzerland, Germany, and the USA, a confederation existed before the member states opted for a closer form of co-operation.

In the European Union, which is still more of a confederation than a federation, member states (15 now but there is no limit) agreed to establish common institutions that are responsible for certain areas of policy throughout the Union. Once these functions, such as agricultural policy, are transferred to the centre, they cannot be exercised independently at the state level. In order that each state continues to have some control over these central institutions, provisions in the treaties of union allow each state to veto, or opt out of policies that the state feels damages its interests.

In some departments, the EU has moved closer to a federation. The European Court of Justice, for example, is considered the highest court for EU members, and thus sovereignty has effectively been transferred to the centre. Its underlying structure, however, remains confederal because the transfer is voluntary, i.e., the Court does not have any power to enforce decisions. European experience here may have potential relevance for Somalis: one of the motives inspiring European union was to prevent a repetition of the two European wars that also engulfed the world in conflict earlier this century. At some point in the future, and in conformity with traditional political values, it would be possible for the different Somali regions or states to create common institutions and policies. Somalis could then work together in central agencies, with representation from each state or region, protected by the sovereign status of each region and by the right to veto, or opt out of unwelcome proposals.

A Federal System

It is probably too early to contemplate any form of centralised authority, but in theory, if enough trust developed between the different Somali groups, they could create a federation, satisfying those who want a more substantial central governing capability, and those who want strong regional governments. In typical federations, free and independent states come together, and transfer a limited amount of sovereignty to the federal institutions, although others have been created by decolonisation, or after a war, such as in Germany, where the purpose was to limit the power of the central authority. The centre and the regions (or provinces) share power, and the centre is unable, on its own authority, to change the constitution. There are three ways of organising federal-provincial relations: 1) the provinces have most of the powers of government, with the centre only exercising limited powers; 2) the centre has most of the powers with the provinces having a limited amount; or 3) the provinces and the centre share powers of government with specific means of mediating disputes between them. It is also possible to grant considerable autonomy - even the right to secede - to some regions within any of these three.

It is important to repeat that forms of government are not irreversible: a federation can become a confederation, and a confederation can develop into a federation. There are, in addition, many types of federation, and models exist that have never been applied. Federations are designed to allow diverse peoples and cultures to live together, with guarantees normally written into the constitution to ensure that the centre does not seize all the power. This is sometimes facilitated by removing the federal capital from a major city and placing it in a small city in an unimportant region. If Somalis wanted a federation, the capital could be moved from Mogadishu.

Swiss experience has some similarities to recent Somali history. Switzerland was forged after civil war, coups in various cantons, attempts at constitution writing, and intervention by outside powers. The federal plan was designed to bring together people torn apart by religious and political differences, all equally suspicious of central government. In the resulting Switzerland, the powers of the centre are sharply defined and limited, whereas those of the cantons are not (Option 1 listed above). The cantons may even have their own constitutions, as long as they do not contradict the federal constitution, and guarantee to continue to govern democratically.

Switzerland also has a collective presidency with seven members who take it in turn to serve as president; this assures that no one person or group takes over. This method has been very successful - there are no Swiss politicians famous outside Switzerland. There are two other governmental institutions. The first, the Federal Assembly, has two chambers, one with representation according to the population in each canton; the other has two representatives per canton. The second is the Federal Court, on which the four languages of Switzerland are represented; and which mediates disputes between the federal government and the cantons, and amongst the cantons themselves. The Swiss are first citizens of their communes, then of their cantons, and finally of Switzerland.

A Decentralised Unitary State with Guarantees of Regional or Local Autonomy

Just as the differences between a confederation and a federation can be slight, so too between a decentralised unitary state and a federation. The main difference is that in a federal system, power is shared between the centre and the regions whereas in a decentralised system, the regions are subordinate to the centre. For example, in Uganda or Papua New Guinea, although regions are allowed considerable control over many of their affairs, the centre retains the right to reduce this or to intervene if it wants to. In Uganda, the decision to decentralise was partly designed to accommodate strong regional pressures.

Decentralisation is a top-down process, which by delegating power, can help to reduce the centre's control over the social, economic and cultural life of its citizens. In contrast, the formation of a federation, is a bottom-up process where local units join together creating an additional layer of government above them. This decentralised option might be more appropriate within the local units of state or states that the Somalis eventually establish, providing these reflect traditional structures of political authority. Although any decision to pursue the confederal or federal options would necessarily require widespread popular support, there are two major aspects of decentralised unitary systems that could be included in a future Somali constitution(s): 1) the constitution could define the powers of local governments. These powers can always subsequently be transferred to the centre if a local government wishes; and 2) guarantees should be included to ensure that larger units of government (such as provinces or the centre) cannot abolish smaller local units.

Consociation: A Non-Territorial Option

Power sharing or consociational principles of government can operate in confederations, federations and decentralised unitary states, and were developed specifically for divided societies. South Africa today is a model of a consociational democracy in its early stages. Consociational democracies normally include four elements: 1) a grand coalition government, which includes representatives from the major groups (or clans or clan-families) in society; 2) a quota of seats or jobs or public moneys for each community according to its population strength; 3) community responsibility for certain matters, such as education; e.g., the distinctive interests of clans and minorities could be respected wherever they lived or worked; and 4) minority veto power.

Under consociational arrangements, groups are separate but equal. For these to work, people need to be convinced that it is better to have a share of power than to risk the costs involved in trying to seek full control. Three conditions need to be satisfied: 1) competing communities must not try to integrate other groups or establish their own separate sovereign state; 2) politicians must strive to maintain these beliefs, economic and political stability, and be mindful of the negative consequences of returning to a state of war; and 3) the leaders of the communities must be able to act independently so that they may be able to reach a compromise with other groups without being accused of betrayal by their own community. The Somali tradition of elders participating in consensual decision-making at the local level demonstrates that such principles could be appropriate here. When these conditions are not met, consociations fail, as happened disastrously in Lebanon and Cyprus.

The key feature of all four systems of decentralised government is the ultimate location and distribution of power: in confederations, power is above all held by the component states; in federal systems, it is shared between the centre and the constituent states; and in decentralised unitary states, it is located at the centre though certain regions enjoy considerable autonomy.

2. The Political Economy of Decentralisation

Only the pastoral livestock industry managed to survive the destructive economic effects of the Siad Barre regime, which officially suppressed private enterprise, although thereby stimulating an extensive informal and black market economy. In the late 1980s, a structural adjustment programme was attempted but not properly implemented, leaving Somalis with little experience of successful economic policy. Once the state collapsed, the country was left with many small traders and producers lacking public services and regulation. There is little prospect in the future that donors will grant the large sums of aid of the past, and foreign investment can be expected to be slight for some time. Thus political reconstruction, at whatever level, will need to operate against a background of small-scale local economies.

The switch to private enterprise fits well with decentralisation, which depends on the abilities of local groups to manage their economies and resist pressure from the centre. If the state transfers assets to the private sector, it lets success and failure be determined by the market. Decentralisation may reduce conflict and may minimise the economic benefits associated with political office. Clan loyalties will play an important role in rebuilding the private sector, but need not lead to conflict if success and failure are determined by fair competition, i.e., providing the market is regulated and policed. Some services, such as law and order, defence, roads, health, education, etc., will still need to be provided publicly, but there is no reason why some of these cannot be managed by local authorities, with the assistance of donors and NGOs.

Modern states also require conditions that allow traders to produce and exchange their goods through common property laws, stable currency and a credit system. Many assume that local initiatives are the only way to restore order, and that new local authorities can combine to form a state while still retaining significant autonomy. Regional Somali authorities, however, will need access to personnel, financial resources and physical assets.

Inter-Regional Transfers

Inequality between regions will require attention if poorer regions are to be integrated in all political formations. Market economies often lead to an unequal distribution of income, which can only be corrected through transferring income by both local and central government. In confederations, such transfers are rare, while in unitary states the centre controls taxes and grants and thus can redistribute more easily. In federal systems, transfers often create conflict. It is also difficult to establish criteria that determine who gets what, and in which circumstances. It is unlikely that Somalis will pay taxes to anyone or for anything outside their immediate region, so such a redistributive system may not be practical for some time. This means that local authorities will have to strengthen their ability to raise funds to pay for education, health, roads and water. Regional councils can also set up committees to decide how resources will be distributed, as well as to monitor spending. In the meantime, local authorities will have to charge full cost fees for consumer services, which will eliminate the immediate need to raise taxes and also give local people control over the service that is provided. Foreign donors may also be able to assist the poorer regions in restructuring. Communities can continue to provide services on a voluntary basis, such as mending roads, building schools, and digging wells.

Money

The collapse of the Somali Republic has removed controls over trade and investment, and ended the creation of state-supported credit and the growth of money supply. While the previous system caused inflation, which was increased by foreign aid, the current situation is deflationary since there is a shortage of money in circulation.

Trade is currently conducted in US dollars, Saudi rials and Somali shillings. If the local currency wears out or is rendered worthless by unauthorised printing of new notes, trade will continue, but the use of foreign currencies may expand if remittances and payment for exports continue. In the medium and long term, Somalis will have to decide whether they want to create regional currencies or a central one. There is no reason why several currencies cannot co-exist, although there would be financial costs to their doing so.

Trade and Credit

Export taxes should be kept to a minimum in economies that depend heavily on foreign trade. Most taxes today are collected at the four major ports and a few larger airports, which give the groups in control considerable leverage. It is obviously desirable that agreement can reached on the distribution of these resources. Attempts will also have to be made to discourage internal customs barriers, which can stimulate conflict. Most federations try to maintain free internal trade to avoid such disputes.

Currently, small producers and traders use their own assets and family networks for credit, while international traders also use foreign banks. Central banks may not be necessary, as experience has shown, and private banks can often be more effective. Community banking systems, such as those run by NGOs in Bangladesh, Bolivia and South Africa, could also be tried.

Property Rights and Agriculture

A means of sorting out property claims, returning assets to owners, and compensating those who cannot return to their property will need to be established. The legal system, courts of law, prisons, and police could be financed locally, possibly with donor support. Other issues of concern include the destruction of rangelands, illegal charcoal production, over-exploitation of fishing resources, and toxic waste dumping.

To improve agriculture, the private sector needs better credit facilities to buy fertilisers, crops, etc. If subsidies are to be involved from foreign NGOs, they should be careful not to discourage local initiatives.

Health and Water

Whether for people or livestock, health care requires many types of services that are often expensive and specialised. The major consideration now is access to clinics, drugs, and doctors or healers. Many of these services can be provided privately on a fee-for-service basis, supplemented by foreign NGOs, which would work similarly in unitary or decentralised political settings. Poorer consumers could be subsidised by communities or foreign donors, although it is often difficult to establish standards for deciding who needs these services the most. Wells and water rights may continue to be operated by clans and individuals as before, with some involvement of regional governments.

Education and Roads

As with health, similar problems arise for education. Private and public systems can operate at the same time, paid for by local parent-teacher associations and foreign donors. Local communities may manage and regulate their own schools, irrespective of type of government. Higher education will be more difficult to provide in the short-term, though it too could be controlled by local governments.

The most widely used roads should be maintained by the widest possible groupings, while local roads and footpaths can be a local responsibility, with some sub-contracting to private firms where necessary.

Security

A major concern will continue to be the huge number of weapons in circulation. New forms of community-based security could be established which recognise the right to bear arms, but also subject people to the authority of clans and local authorities. A citizen army could always be mobilised if there were an imminent danger, but meanwhile, regardless of the nature of the state, i.e., confederal, federal or decentralised unitary, costs would be kept down and control exercised by those with most authority at the local level.

3. Remaking Administrative Structures

The six basic requirements here are: 1) how to organise a stable administration for even the most decentralised government; 2) how to overcome the assumption that every position is a prize for which rival groups compete, especially for those posts controlling public funds; 3) how to create administrative structures that allow policy to be implemented while also meeting the challenge set out in (2); 4) how to save funds by coordinating some services and functions of government on a state-wide basis; 5) how to resist any temptation to create a uniform administrative structure throughout the country (regional structures should reflect the needs of the region); and 6) how to finance and staff, over the long term, these public administrative structures, bearing in mind that numbers of people employed should be kept to a minimum.

Minimum Functions

There are seven minimum functions necessary for the effective running of a state administration:

1) Police and maintenance of order. In a unitary system, local governments can be responsible for police who work alongside national police forces. Under confederal arrangements, police forces would be organised by their own states, although there could be a coordinating body at the confederal level. In a federal system, local and national police could share certain duties. Consociation means communal self-government and is easier to organise in the judiciary than in the police - though fair representation of all clans is possible in a national police force.

2) Defence. Issues to consider here include land border protection, prevention of smuggling, protection of fisheries and off-shore resources, and the response to internal disorder and disasters. These would need to be covered in whatever form of government is adopted.

3) Fiscal policy. The issuing of a national currency would function at a central level in both unitary and federal states, while taxation and public borrowing are normally shared by the centre and regions/provinces. In a confederation, these responsibilities would normally be handled by the member states.

4) Collection, management and allocation of central revenue. Assuming there will be some funds gained from export and import duties, the centre in a confederal model need not be involved in this, whereas each state in a loose federation could control these functions, although some authority would be necessary to secure subsidies for poorer regions.

5) Judicial systems. These vary according to form of government and are discussed in Chapter 5.

6) Public service management. This is necessary under all models.

7) External representation. This is also a general requirement, and is discussed in Chapter 6.

Other Functions

In the medium term, other functions that would be essential for the proper running of any administration include: posts and communications, which need to be accessible throughout the country in any type of system, although it is not imperative that this be centrally controlled, and could even be privatised; major public works, such as roads; and tertiary education. In the short term, however, there are several concerns that need to be addressed, though not necessarily at the central level. These include: primary and secondary education, health, veterinary and agricultural services. Already in many parts of Somalia and the 'Republic of Somaliland', NGOs are assisting in providing some of these services, most of which are paid for on a fee-for-service basis.

The scarcity of trained staff for any of these functions makes it important to offer services on as wide a basis as possible. Some government funding will be necessary to plan for the future, although this often causes spiralling costs as demands increase for ever more services.

Staffing

Typically those working in the public sector are recruited on merit (by competitive exams, specified qualifications, and some consideration for representation), and are normally hired for life. Neither of these would seem to be appropriate for Somalis. Because of the clan-based nature of Somali society, representation should be the primary principle of recruitment and promotion. Difficulties will arise, especially concerning how many clans or sub-clans or regions should be given representation, and this is especially problematic when such jobs are to be kept to a minimum in order to ensure that a greater proportion of available funds is directed to substantive service provision and not primarily to salaries. This dilemma might be resolved by limiting the period of service, rotating jobs, and, should sufficient trust be established, holding a census to determine exact numbers.

4. The Judicial Branch of Government

This chapter does not directly discuss the situation that would arise if the former Somalia were to split into several independent states - although the same general considerations would hold and they might wish to operate common judicial institutions. There are six key areas to consider in decentralised systems: 1) the supreme court (or the highest court in the state); 2) the coordination of judicial systems; 3) multiple systems of laws; 4) Islamic law; 5) administrative justice; and 6) human rights safeguards.

The Supreme Court

A constitution is a guarantee that the agreement leading to the coming together of different peoples and groups will be observed. In confederal and federal systems, and in some decentralised unitary states, defending the constitution is normally the task of the supreme court. As such, the powers of the supreme court are very important for the proper functioning of the state.

There are several fundamental questions related to the supreme court. Who appoints members of this court? There is no set formula. They can be appointed by the president or prime minister, or they can be elected by the legislature. The 1960 Constitution of the Somali Republic allowed for the involvement of both, and it may be appropriate to consider a similar option in the future, for however many states finally emerge.

How many members should there be? A possibility would be to follow the method of the European Court of Justice, which has 15 judges, one from each member state. The more the court reflects the diversity of the state or states, the easier it will be to have its decisions enforced.

How long should a judge serve, and how can judges be removed? The advantage of long terms of office is that decisions can be made independently of political pressures, but this may also create friction between the court and the executive branch, and in turn cause the executive to either remove judges or pack the court with supporters. Short terms of office, on the other hand, often cause political considerations to take precedence as the continuation of employment is somewhat dependent on the approval of the executive.

These obstacles can be overcome, especially for state courts. Judges may be elected for medium length terms, such as six to ten years, as happens in Switzerland or in states of the US. An independent body can also appoint and discipline the judiciary. Mandatory retirement is another possibility. Just as in appointment, removal from office can involve different branches of government, especially in controversial cases, such as removal from the supreme court.

The supreme court should be the final court of appeal for civil and criminal matters. It has the responsibility to uphold the laws of particular states or regions, while also ensuring that common standards apply throughout the federation. Confederations would not normally have a supreme court, although each member state would have one. In any future Somali federation, by contrast, this court would also have the responsibility developing unified federal law. To resolve constitutional disagreements, a combination of arbitration and referendum could be adapted to traditional Somali dispute-solving procedures.

Multiple Judicial Systems

An initial problem in reconstructing a Somali state or states will be finding enough qualified lawyers. In a confederation or a federation, an important issue to resolve will be how to enforce decisions made by courts in one state in another state, as well as between the state and the central government in a federation, as different laws develop in different areas of the country. One solution would be for the states to agree to enforce each other's judgements, irrespective of whether they were in line with the public policy or legislation of the enforcing state.

In all matters, though, it is important that (con)federal laws are enforceable throughout the (con)federation. This holds for criminal as well as for civilian law: the existing Penal Code in Somalia could be re-applied while courts are being established, and used as a basis by the successor state or states on which to construct their own criminal law.

Multiple Laws and Islamic Law

Federations and confederations may develop multiple systems of laws, which often complicate their administration and implementation. Somalis already have experience of multiple legal systems since customary and Islamic law have existed alongside English and Italian law. This previous Somali practice could therefore provide a possible model for a future decentralised state or states, and representative commissions could be established to ensure that laws are harmonised and disputes resolved during this process.

Until 1962, there were separate shari'a and non-shari'a courts in Somalia, with different methods of combining and ordering the various forms of law. Some similar formulation could be applied if Somalis agreed to establish a federation or a confederation.

Administrative Justice

The current international emphasis on 'good governance' has implications for the judiciary. For example, the new constitutions of Malawi, South Africa and Uganda all give citizens the right to fair treatment by government agencies as well as the right of appeal against government decisions. The question is where to locate such mechanisms, at the state or central levels, or both. Most decisions directly affecting citizens are probably best taken at the regional level, as people generally prefer legal disputes to be dealt with informally, using customary practices wherever possible.

Human Rights Implications

Some international laws are binding on states even if they do not wish to be bound. Even so, international human rights standards will need to be written into law, not only to protect the individual, but also to reassure potential donors and foreign investors.

Many treaties already exist that try to protect minorities by establishing political, education, language, and property rights, in addition to the fundamental rights theoretically enjoyed by all individuals, e.g., non-discrimination, freedom of conscience, and religion. Since it is easier to frame laws protecting human rights than to implement them, there is scope for a careful study of Somali traditional concepts of rights, and their relation to internationally recognised human rights.

International obligations are easier to legislate in unitary states than in decentralised systems because the centre has authority over the laws of the country. Yet at the same time, abuse of power is also more likely in such states. To avoid this danger the problems associated with federations and confederations need to be addressed at the start. For example, in federal systems one component state may not comply with international laws, or inconsistent laws may prevent the application of human rights norms. It is possible to overcome such problems by mutual coordination of laws or by creating a common Charter of Rights, and a constitutional court to oversee the process of coordination and implementation. The advantages of federal systems are that laws can be adjusted according to local needs. Federal systems also can protect minority rights, especially in terms of language, religion, education, marriage and family issues, where relevant. In confederal systems, each state would have responsibility for ensuring that human rights obligations are followed, although here too it would be desirable to create a coordinating body, or even to allow a single organisation to frame such laws.

5. Alternatives for Defence and Foreign Relations

Issues and problems related to foreign affairs will be similar irrespective of how many states are created. As foreign relations are relations between states, their conduct is generally guided by central structures, though adjustments can be made to cater for the needs of decentralised government. There are seven main concerns related to foreign affairs and defence that need to be addressed: 1) treaty-making; 2) foreign representation; 3) defence; 4) citizenship; 5) foreign trade, customs and excise; 6) foreign aid; and 7) currency.

Treaty Making

Treaties, whether they pertain to membership in international organisations such as the UN, or bilateral relations between states, are normally signed by some central authority, and then ratified by the president (or head of state), parliament and/or constituent states. All government systems, from a centralised, unitary state to a confederation, operate in this manner, although some federal states allow a degree of independence in treaty making. For example, in Australia and Canada, the provinces may sign treaties that deal with foreign trade matters, as long as such treaties do not conflict with those signed by the central authority. Further, in situations where the province or canton or state signs its own treaties, the central authority may also retain the right to approve it. Conflicts resulting from treaties signed by different authorities can be resolved by an independently appointed group, comprised of members from all segments of society.

Confederations allow for more decentralisation. The options for treaty making in confederal systems are as follows: 1) the central authority is granted full rights to conclude international treaties, while constituent states retain control over domestic matters; 2) member states have some independence in treaty-making as long as they are not in conflict with the interests of the confederation; and 3) member states can conclude treaties with foreign powers independently, while at the same time sharing common services and rules covering relations amongst themselves, as well as relations with external states in particular areas. In very loose confederations, such as the European Union, where members still have not granted the central authority sole jurisdiction over all treaty-making, even on issues which have been transferred, they retain the right to veto legislation that conflicts with their interests. For such a loose arrangement to work, there must exist a measure of trust between the centre and the constituent parts. If Somalis were eventually to agree to confederate along similar lines, it would also be necessary for the component states to honour pre-existing agreements signed by earlier heads of state of Somalia (unless they were opposed to the principles of the new state or states).

Foreign Representation

The right to conclude treaties generally also determines who represents the new state or states in embassies abroad, at multilateral institutions, and international conferences. In unitary and federal states, the appointment of such representatives is usually controlled by the head of state. In confederal systems, such appointments will depend on how extensive the sharing of foreign relations decisions is between member states. The range of options for diplomatic representation may be illustrated by the European Union (where member states each have their own foreign embassy staff) and the United Arab Emirates (where such staff represent the federation and come from all member states).

The key issues concerning foreign representation relate to recruitment of staff and the cost involved.

The first difficulty is how to recruit personnel, whether on merit or according to a system of community representation (based on region or clan, for example), or on a combination of the two. In theory, this dilemma should not arise in unitary or federal states, but it would be a problem in confederal or decentralised unitary states, and could be very serious in states with deep divisions between groups, where no group trusts the others to fully represent its interest, e.g., a Kurd in Iraq would be unlikely to trust a non-Kurdish Iraqi to represent his or her interests in country-wide institutions. In such a situation, the solution may be to rotate offices between clans or regions, and establish safeguards so that while in office, each representative would not be able to pursue his or her group's interests at the expense of others.

As the new state or states will inevitably be short of funds, a further difficulty arises concerning how to pay for such offices. One solution would be to minimise the number of offices. For example, there could be a delegation to the UN which might also cover relations with the United States, a representative in Brussels to handle the European Union as well as bilateral relations with member states, a representative to work with neighbouring East African states, one for the OAU, and a small group to cover regional issues such as trade, refugees, drought and food security. The need to deal with such issues will arise under any system of government but in no case do they require a large diplomatic establishment.

Defence

Even in decentralised systems, it may make sense for the centre to provide for common defence, in order to reduce the financial burden that is inevitably involved. Indeed, it is to make such savings that many federations and confederations are formed, as was the case in the short-lived Senegambian Confederation, or the United Arab Emirates. In most states, whether they be unitary or federal, responsibility for declaring war and maintaining the defence of the union rests with the centre.

In Africa, however, central control over defence has often proved disastrous. In many countries, there should be no need for large defence budgets, since they face no serious external threat. Yet almost invariably the government devotes a substantial portion of its expenditure to defence. The army often ends up usurping power, and far from protecting society, threatens the civilian population. The problem is even worse in states that have fallen apart due to civil war, and where, as in the former Somalia, most adults are armed. In these cases it is seldom possible to disarm the population and/or abolish the armed forces without enlisting the support of an outside power, which is likely to be unpopular and widely resisted. Yet without a regional threat there is no need to reconstruct a standing army. Once again, Swiss experience may offer some useful lessons for Somalis: the Swiss have no standing army, but if an emergency occurs, they can easily assemble a force from the different regions of the country, particularly as all citizens have to undergo a period of military service.

An additional safeguard to prevent internal conflicts between clan militias or regions could take the form of a dispute settlement group with representatives from all parts of the country and all clans, which could be assembled in time of need. Such a group would resemble the gathering of clan elders to settle inter-clan disputes. If there is insufficient trust to set up such a group, at least initially, an alternative would be to contract out this function to an international or regional organisation, such as the OAU. This would have the advantage that the donor community might be more willing to reinvest in whatever state or states are established if there are transparent mechanisms for preventing the abuse of power.

A final defence issue is the protection of the environment. In the absence of a Somali government or governments, Somali waters are already being overfished and used as a dumping ground for toxic waste. In the short term, it might be possible to contract out supervision of these activities to an outside agency to monitor and safeguard Somali natural resources.

Citizenship

In most systems, issues related to citizenship, such as the issuing of passports, naturalisation, emigration and immigration are handled by a central authority. Some countries allow dual citizenship, and in confederal systems, like the European Union, citizens belong first to their state, and second to the union. This could work for Somalis: they could have common citizenship, and also belong to their own regions or states, where they would vote. Thus a Somali could live in any part of the reconstituted state or states, but perhaps only vote in his or her particular area. If this were to be agreed, then each region could also issue its own passports, as members of the European Union already do.

Foreign Trade

As Somalis have demonstrated, foreign trade can continue even in chaotic political circumstances. But for trade to contribute to economic recovery over the long term, it is important that it take place in a stable and secure environment. In some federal systems, the different provinces maintain independent trade relations with foreign states, as do the states in most confederations. Providing the rules, enshrined in the GATT, WTO and Lome conventions, are applied, it would be possible to devolve responsibility for trade policy to regional governments.

In most countries matters relating to customs and excise are under the overall control of a central ministry. The main reason is to prevent trade wars between the constituent states. For example, without some regulation they might be tempted to compete with one another by lowering import taxes. In unsettled conditions, this would not promote healthy competition but make it more difficult to maintain the peace, as it did in the Senegambian Confederation before its collapse (the Gambia refused to give up its low tariffs and liberal trade policy).

The general problems that come up with regard to trade relate to the collection of taxes and redistribution of funds, normally from wealthier regions to poorer ones, and how to convince those controlling strategic assets, such as ports and airports, to give them up. In the short term, it may be necessary to leave such assets under their current 'managers'. Each region would have responsibility for buying into whichever services (health, veterinary, fishing, transport, etc.) they needed, raising the money to buy the service by taxes within their region.

Foreign Aid

Decentralisation is probably necessary if development aid is to revive. Donors increasingly attach political and economic conditions to aid and will need to be assured that the local government(s) are legitimate and stable, and that the money will be used wisely. From this point of view decentralised governments would have an advantage over unitary ones in that legitimate representatives from local areas could manage (and petition for) projects, rather than having them administered by a centrally located agency. Aid could be managed in this fashion in confederal unions or federal states. Even in decentralised unitary states responsibility for foreign aid could be delegated to local authorities. Indeed it is possible that donors might make such delegation a condition for the resumption of aid.

In addition, with regard to disaster relief, as opposed to development assistance, attention will need to be paid to re-establishing early warning systems so that future famines may be prevented. International regional organisations could be enlisted in the first instance, on the condition that they train Somalis to staff their own offices in the long term.

Currency

Authorities controlling the money supply are normally centrally located, though they may be independent of the government, as the Federal Reserve is in the United States, or they may maintain different values for domestic and foreign transactions, as the Republic of South Africa did until recently. In some countries where the local currency is very weak or has collapsed, a foreign currency often circulates next to the local one. But there are no unitary states or federations where rival currencies compete with each other. This is because of the fear that the authorities in one state or province might off-load their economic problems onto their neighbours by depreciating their own currency to make exports cheaper and imports more expensive. The situation in confederations is more ambiguous (see 1 and 2 below).

There are four possible arrangements for currency that comply with decentralised models. They are:

1) Each state or region could maintain its own currency and exchange it at a rate agreed upon by all parties. In this instance, it would be better to peg its value to a major international currency or basket of currencies. Difficulties may arise, however, if one region is wealthier than others.

2) A currency system modelled on the European ecu could be established. This would take the previous idea one step further by pegging each region's currency to a common one. This could work as an interim solution while trust was being restored in the new political structure. Eventually the common currency could replace regional currencies altogether.

3) The pre-existing Somali shilling could continue to be used for trading purposes along with a major international currency, such as the dollar, which would gradually replace shillings as they wear out or are devalued because of possible over-printing.

4) An independent monetary authority could be created for the entire state or states. Initially, staffing for this organisation could be contracted out to an international financial institution, such as the IMF, which could also train Somali bankers.

6. Principles of Constitutional and Electoral Design

If Somalis decide on some form of decentralised democratic system, they will need to design it in a way that will prevent a return to authoritarian rule. It will need a separation of powers, checks and balances, and some form of consociational or consensual, co-operative government.

Parliamentary Democracy

Democracies can be organised in several ways. One is parliamentary democracy, in which the legislature has most of the power. In the United Kingdom, for example, the legislature (or parliament) has significant control over the executive because the authority of the prime minister and the cabinet ultimately rests on the support of parliament. There are nine key features of this type of system: 1) a concentration of executive power, normally in a one-party government; 2) a mixing of executive and legislative power; 3) a two-chamber parliament, with one chamber being less powerful; 4) a mainly two-party system; 5) party competition normally over left and right issues, such as economic policy; 6) simple plurality rule which gives seats to the candidate with the most votes; 7) unitary and centralised government, where local governments can be abolished or curtailed by the centre; 8) an unwritten constitution, with minimal judicial involvement in its interpretation; and 9) representative democracy with little use of referendums.

Parliamentary and majoritarian systems, which give power to the elected majority, only work well in fairly homogenous societies that are based on the concept of liberal individualism. In deeply divided societies, such systems do not function well, and it is often the case that a dominant community can take over and run the society for its own purposes.

Consensual/Consociational Democracy

Another form of organising a democracy is the consensual or consociational method, which is the opposite of the former system. Consensual models try to maximise participation and representation in government while also holding back attempts by a powerful group to take control. This type of system may be more appropriate for a divided society, and has something in common with traditional Somali decision-making processes.

In consensual systems, there are eight distinctive features which could work in a federal Somali state that was based on a multi-party system, or in the independent states of a confederal system: 1) executive power sharing that enjoys support from many communities, including a multi-person rotating presidency with representatives from each of the regions, veto powers, and separate elections for the executive and parliament; 2) separation of executive, legislative and judicial powers that allows for co-operation between the branches of government, or perhaps in the Somali case, a 'council of state' formed by elders and former presidents and prime ministers who would mediate disputes and take certain issues to the Supreme Court; 3) two federal chambers with equal powers and minority and/or territorial representation; 4) a multi-party system; 5) a multi-dimensional party system where language and clan differences, for example, are included in party platforms; 6) a proportional representation voting system in which the elected chambers genuinely represent the population and encourage some integration; 7) a type of decentralisation that allows some communities or clans greater autonomy; and 8) a constitution that gives minorities specified rights.

Consensual systems enable all those who are affected by political decisions to take part in making those decisions. They also allow distinct communities the opportunity to govern themselves, so long as they respect the rights of others to do the same.

Electoral Options

There are numerous types of electoral arrangements that can be adapted to a society's particular needs. In a federal system, each state or region could equally choose separate systems so long as they fall within overarching electoral rules. The same is true for a confederation. It must be remembered, however, that no outcome is certain in the different systems.

Proportional representation (PR) systems ensure a proportional relationship between the votes for parties or candidates and the seats they win. PR systems differ from non-proportional (NPR) systems, which are often called majoritarian systems. There are three ways of organising NPR systems: 1) plurality rule, where a candidate is elected in a single person district and wins if he or she has the most votes; 2) alternative vote, where a candidate only wins if he or she has a majority of the votes; and 3) exhaustive double-ballot procedure, where if no candidate wins in the first ballot, there will be run-off elections between the top two candidates.

The advantage of having a NPR system in the Somali context would be that it would encourage parties to broaden their appeal to include many clans. The disadvantages, however, are three: 1) parliament could be filled with many small parties, which could in turn make it easier for a strong party to take control; 2) the 'winner takes all' principle would not be acceptable to those that lost; and 3) dominant coalitions of clans could try to damage weaker clans or parties. PR systems, on the other hand, may be more likely to produce a stable government, and would cope better with population shifts. In a PR system, moreover, clans could be allowed to form their own parties or coalitions if they so wished.

7. Conclusion: The Menu of Options

A concluding menu lists the advantages and disadvantages of the three constitutional models considered in the report, i.e., confederal, federal and decentralised unitary state, and also of consociational government. This analysis, which is already in summary form, is not reproduced here.

Functional Co-operation

There is one final possibility to consider: co-operative arrangements without an overarching political authority. Functional services, in which most Somalis have an immediate interest, and on which they might be prepared to co-operate include veterinary or health services; fishery protection and licensing; educational services such as curriculum development, the provision of textbooks, teacher training, and the negotiation of scholarships for Somalis in foreign universities; posts and telegraphs; weights and measures; and currency. Thus if attempts to construct a confederation, federation, or decentralised unitary state break down, or proceed at a very slow rate, agencies could still be created to provide specific services to meet certain needs. Indeed there is a traditional Somali precedent in the concept of contractual agreement (heer ).

There are two ways in which such functional agencies could be set up, although they are not mutually exclusive. The first and theoretically most desirable would be by agreement amongst those Somalis from different clans, regions and/or 'states' who share a particular functional interest. Such agencies would employ Somalis and this might make external donors more willing to reinvest in their future. The second would be to contract out such services to an international agency, such as the World Bank. This would have similar advantages as the previous one regarding employment and foreign investment, and avoid the disadvantages that might spring from continued inter-clan competition, even over the provision of agreed welfare services. Such collaboration might foster wider Somali sentiments of national solidarity.

FAISAL_YARE · July 17, 2003

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