by Bashir M. Sheikh-Ali
In my paper on Federalism and Somalia,[2] I discussed how Somali cultural norms, the current state of different regions/member states, and clannism exasperate Somalis’ abilities to create a complex government system based on federalism. I suggested that creating a federal government in Somalia will require an unprecedented and yet unknown process. In this paper, I will try to put the foundation for where the biggest obstacles lie in a process that Somalis are seemingly adopting—a process that appears to be born from a marriage between the 2012 Provisional Constitution and clannism. The primary challenges to this process include mistrust between the clans, whether and how much Somalis should deviate from the Provisional Constitution and whether such deviation could rile up clan disputes and derail the whole process. Some readers will likely object to some of my explanations of the adopted processes. Others may not like the whole idea of writing about clannism. Regardless, my objective in writing this paper is rationalize a process that Somalis have adopted and provide some guidance on how to make it work for Somalis. Before I discuss the process that Somalis may be trying to adopt, I will briefly describe a legislative structure unique to federalism and discuss a relatively new form of federalism.
Consistent with the general federalism approaches, Somalia’s Provisional Constitution calls for two legislative bodies—the House of the People and the Upper House. In a typical democratic federal structure, members of the House of the People represent approximately the same number of electorates. When a federal system includes an upper house, it typically has a different form of representation than the proportional representation of the house of the people. It also has a different objective. Whereas the house of the people represents the interest of the majority, the upper house is often intended to prevent a runaway majority that fails to protect the interest of the minorities. For example, the upper house may be reserved to protect the federated entities such that each federal member state has an equal number of representatives in the upper house. The presence of such necessarily undemocratic upper house is a common feature in federal systems, and it is designed to protect small, federated entities and/or minorities. In those federal systems, people have equal representation in their house; federated entities have equal representation in the upper house.
Some federal systems give limited powers to the upper house (e.g., Ethiopia and Germany). Others have a parliament made of single house (e.g., Sri Lanka). Somalia chose to have two houses except there is no differentiation between the two, creating a structural oddity in Somalia’s legislative body.
Ethnic Federalism
Historically, federal governments were organized territorially—i.e., several sovereign regions combine to form a federal system, or one large unitary government devolves into several member regions or states. Ethnicity has recently been introduced as the basis for federalism. Typically, ethnic federalism comes into existence through devolution of a unitary government into member (ethnic) states. In ethnic federal systems, ethnicity is used to create the boundaries between member states, and it is the ethnicity that is protected through a federal guarantee. It would be unusual (but not impossible) for such ethnic federalism to come into existence through federation of ethnically different sovereign entities. Regardless, member state boundaries of ethnic federal systems are defined by ethnicity and the federal government would be made of ethnically different member states.
Sri Lanka and Ethiopia provide good examples of ethnic federalism. Both federal systems came into existence through devolution of a central government into ethnically diverse member states. For example, with the stated purpose of establishing the equality of all ethnic groups in Ethiopia, Meles Zenawi’s government implemented an ethnic-based federalism in Ethiopia by devolving the central unitary government into nine regions and two chartered cities (Addis Ababa and Dire Dawe).
Clan Federalism
Although ethnic federalism may be impractical in Somalia, one could envision clan-based federal government in Somalia where the boundaries of member states are defined by clan affiliation. Indeed, the best defining feature in the current member states in Somalia is clan. Galkayo is Exhibit A for clan/member state boundaries where the city is partitioned through clan line between Daarood (Puntland) and Hawiye (Galmudug) areas. Puntland’s annexation of a part of Galkayo (both the city and its rural villages) makes sense only through the lens of clannism because Galkayo had been the capital city of the Mudug Region throughout the brief history of the Somali Republic and would logically have been part of the Mudug region in Galmudug member state, based on Article 49 of the provisional constitution, which provides “two or more [pre-1991] regions may merge to form a Federal Member State.” Thus, the partition of Galkayo using a clan boundary and its acceptance by Galmudug, Puntland and the national government strongly suggest that Somalis may be federating the country based on clan even though the Provisional Constitution does not call for clan federalism.
Admittedly, Somali clans do not live in completely segregated regions; however, most of the six member states and Mogadishu could be assigned to one major clan, with one or more clans laying claims on some parts of it.[3] Puntland was carved out explicitly from the contiguous areas of Northeastern Somalia where Daarood traditionally resided, making Puntland indisputably a Daarood region. Galmudug, Hirshabelle, and Mogadishu are indisputably Hawiye regions. Somaliland is indisputably Dir region,[4] with Daarood making a minority clan.[5] Southwest is resided by Rahanweyn and several minority tribes with some Hawiye presence. Thus, Somalia’s member states are clan or pseudo-clan regions, and their existence is evidence that Somalis have been trying to federate through clans even though clan federation has not been declared in the provisional constitution.[6]
What’s more, the adopted clan/state boundaries are inconsistent with the provisional constitution, which calls for a national commission (nominated and approved by the parliament) to create member state boundaries through merger of “two or more [pre-1991] regions [] to form a Federal Member State.” See Article 49 of the provisional constitution. The parliament’s failure to go through a formal process of creating member states has allowed the creation of member states boundaries that are designed with an eye on clan interest. To complete federation of Somali clans, Somalis will need to reconcile member state boundaries with the Provisional Constitution and replace the irrational 4.5 power sharing structure with a fair system that provides specific protections for minority clans.
In negotiating a federal system, the first task for negotiators is defining member state boundaries, including Mogadishu. With Mogadishu’s population and economic power, there is no logical reason for not granting it a member state status. Just like Berlin in Germany, there is no reason for Mogadishu[7] not to be able to be a member state and the seat of the federal government. Mogadishu leaders need to step to the plate and fix this injustice. If not Mogadishu by itself, recreate the old Benadir region as a member state and combine Hiiraan with Galmudug. Mogadishu, or a region that falls under it, should be a self-governing member state. Just like the other adopted member state boundaries, the two newly re-created regions of Benadir and the Galmudug/Hiiraan will have clan boundaries. All that is important is that the whole country, not just a part of it, is divided into member states.
Once member state boundaries are agreed upon, the remaining core federalism question for the negotiators is how to divide the governmental powers between the federal and member state governments. In federalism, the division of power is between member states on one side and the federal government on the other side. Thus, the member states should come together and determine how much power they want to retain and then negotiate with the federal negotiators, if any. The more desirable approach would be for the member state negotiators to appreciate that any federal government created through the process is for all of them. Thus, they should negotiate with themselves and come up with a federal government that has specific powers while retaining other powers for the states. Given that the federalism power division is between the federal government and member states, the negotiators should reject any attempt by any member state to get preferential treatment over the other member states. Instead, all the member states should be on the same side and the federal government should be on the other side and all the negotiations should be about where to draw the (power) line that divides the two governments. Negotiators for the member states should remember that the federal government should be bestowed with all the powers necessary and proper to restore a national character – otherwise, we will have a collection of neighboring and potentially warring clan fiefdoms.
Just as the powers between the two sovereigns should be carefully crafted, negotiators should also carefully separate the powers between the three branches within each sovereign. In this vein, no person should hold positions within two branches of the same government or with the federal and a member state government. For example, an officer of a member state holding a position in the federal government, or a legislator holding an executive duty or judgeship of the same government can create chaos in a federal system by working on weakening or strengthening one government branch to help or hurt the other. For example, Article 97 of the Provisional Constitution calls for a parliamentarian type of government by making members of the House of the People eligible to be appointed members of the Council of Ministers without requiring them to resign from the parliament once their appointment is confirmed. However, adopting federalism while trying to retain parliamentarian government structure makes very little sense. Federalism can thrive only if the powers of the three branches of the government are carefully separated, which is antithetical to parliamentarian governance where the parliament and the executive branches are blended. Therefore, Somalia needs to choose federalism (which, by its nature, requires separation of powers) or parliamentarian governance (where the majority party in the parliament forms the government often using their parliament members). This is but one of the many strange structural features in the Provisional Constitution that need to be carefully addressed.
Irrationality in 4.5 Power Division[8]
Because clan federalism provides the best explanation for the current member state boundaries, it is fair to assume that Somalis have been unwittingly federating based on clan.[9] However, Somalis need to recognize that the adopted 4.5 power division has no rational basis. Hawiye, Daarood, Dir, and Rahanweyn form the “big 4” in the adopted 4.5 system and the remaining Somalis are lumped together to form the 0.5. Most Somalis would agree that the “big 4” clans are likely the largest four clans in Somalia; however, there is no reason to believe that, when combined, Somalis outside of the big 4 are fewer than any of the big 4 clans. Given that many Somalis living from Ras Kamboni to Jowhar do not consider themselves as part of the big 4 clans, it would be surprising, if not shocking, that those Somalis do not outnumber any of the big 4 clans. Until there is a reliable census, those Somalis add up to 0.5 only because politicians from the big 4 clans want to limit their share in the government. Indeed, some have criticized the 4.5 system as providing “unscrupulous and corrupted politicians from those major clans [an arrangement on which] they could dominate Somalia’s political power in perpetuity, under the pretext of this crooked system.”[10]
The Provisional Constitution calls for two legislative houses in Somalia; however, Somalis have adopted the 4.5 system to determine membership in both houses. Therefore, clans have equal representation in both houses, making Somalia’s lower house the House of the People in name only.[11] Once Somalis get to the point of holding a one person one vote election, it would make sense that the lower house is kept as the House of the People (with proportional representation) and the Upper House as the house of the federated entities. If Somalia’s Upper House is designated to protect the interest of the federated entities, we would have to pay careful attention to the member state boundaries and Somali clans that do not belong to the big 4. Federating Somali clans will require redefining clan boundaries and going back to the negotiations table.
Negotiations that led to the 4.5 system illustrate the challenge such new negotiations face. Before Somalis settled on the 4.5 system, two major sticking points were whether Isaaq and Samaroon should be treated as one or two clans and whether Somalis that fall within the “others” under the new system should be treated as one clan. Initially, Isaaq vied for a status equal to that of Hawiye and Daarood; however, they were eventually lumped with Samaroon as Dir, which is given the same status as Daarood, Hawiye, and Rahanweyn. Similarly, all the “others” were given the political status of half a clan. One may argue that Hawiye, Daarood, and Rahanweyn prevailed in those negotiations as they managed to limit all “other” Somalis as 0.5 and kept Isaaq and Samaroon together as one clan within the 4.5 system. There is no question that those results were not based on any rational basis. Thus, it will be a major challenge to reconcile current member state boundaries with the Provisional Constitution and change the 4.5 system to a system that is fair to all Somalis. Such negotiations will require willingness from Daarood, Hawiye, Rahanweyn and Dir to accept that they do not make up 89% of the Somali population. It also requires negotiating what the member state boundaries should be. That is why creating a viable federal government in Somalia will require carving an unknown and challenging path. Any modification to the existing 4.5 agreement, the adopted member state boundaries or member state boundaries as defined by the Provisional Constitution would risk creating hostilities between clans over power and become an obstacle to clan federation. As Heritage Institute’s Report on “Unblocking Somalia’s Federal Arrangement” found,[12] “trust-deficit [is] one of the main challenges facing the implementation of the federal arrangement. This trust deficit stems from the era of dictatorship and the years of state collapse and permeates across the political landscape.” Regardless, fairness should be the superseding rationale in any repartition of the country and reallocation of parliament representations.
Unique Challenges to Clan Federalism
The current 4.5 system was a compromise negotiated by Somali (clan) elders, warlords, Somali civil societies, and a host of entities referred to as the international communities. Currently, every country in the world seems to consider themselves a member of the international communities and has a stake in Somalia. Indeed, some Arab and Western nations and organizations use Somalis’ unwillingness or inability to deal with their differences as a pretext to issue all kinds of warnings and dictates on what Somalis should or shouldn’t do. Thus, entanglement by foreigners in any new negotiation process seems inevitable. However, for Somalia to build a government that works for them, Somalis would have to reconcile their differences and find a compromise solution. No clan will win if the status quo prevails. As President Hasan Sheikh Mohamud recently stated, “The people have to reconcile.” This is consistent with the finding by Heritage Institute’s Report, which succinctly explained, “the next government must embark on political and social reconciliation.”[13] The outcome of any such reconciliation process will hinge on whether there are credible negotiators willing to compromise and create a new government structure with clear and fair legal boundaries. It is my hope that this negotiation process will help identify visionary leaders who can help move the country in the right direction.
Dynamics in Somali clannism will likely exasperate any negotiations and reconciliation process. Socially, clan identification is not per se the problem. For the public, clan is for identification, protection, and support. Sadly, it has also become the mechanism of choice for Somalis to participate in or work for the government.
Politically, clannism has become a tool for corrupt politicians to grab the power in the name of the clan but serve only themselves and their cronies. Indeed, “the tendency to look at clan as ‘irrational’ thing from the past could not be further from the truth, and [politicians] that use clan are ‘rational’ and aware of its power for personal gain.”[14] These politicians also use clans as a shelter from accountability such that no Somali government official is ever prosecuted for corruption even though corruption has been rampant in Somalia for decades. Cross-clan political alliances (often powerful Daarood-Hawiye alliances) based on private interests have also emerged. Thus, clannism in Somalia has evolved into a pernicious tool to get power and enrich oneself without ever serving the clans’ interest. It is not clear whether there are enough Somali thinkers who are willing to transcend clan lines and help federalize clans. Thus, a major challenge to any prospect of finishing the provisional constitution, reconciling, and federalizing Somalis under clan is finding Somali stakeholders willing and able to negotiate on behalf of their clans with an eye on creating a federal Somali government with all the necessary attributes – a government for the people, based on rule of law, accountable, transparent, inclusive, and just.
Immediately Start a Plan for Registering all Citizens
Article 64 of the Provisional constitution provides, “The citizens of the Federal Republic of Somalia shall elect members of the House of the People of the Federal Parliament in a direct, secret and free ballot.” Under Article 72, the Upper House will have 54 members “elected through a direct, secret and free ballot by the people of the Federal Member States.” To hold an election in which “citizens of the Federal Republic of Somalia” elect members of the House of the People through “a direct, secret and free ballot,” all the citizens of the Republic must be counted and registered. The same registration can be used by the Member states to hold “a direct, secret and free ballot by the people” for the members of the Upper House. Most federal systems hold periodic nationwide censuses and re-district each member state as necessary after each census such that members of the House of the People represent approximately the same number of electorates. Therefore, the federal government should immediately create an agency that conducts census periodically and register every citizen. Because census re-allocates representation in the House of the People, the census process can become contentious and needs to be carefully managed and professionally run.
Restore Somali National Character
If Somalia, with its clan-based member states, is to have a national character, the federal constitution must provide necessary national ingredients and features. As Article 54 of the Provisional Constitution correctly calls for, certain powers that are characteristic of the national government in a federal system should not be open for negotiations. The federal government should have powers over matters concerning foreign affairs; national defense; citizenship and immigration; coining money and related monetary policies; and activities and transactions that cross member state boundaries such as movement of people and goods. Allowing member states to engage in cross-boundary transactions (such as international trade and agreements with foreign countries) will create competition between the federal government and member states and will undermine the federal government’s sovereignty.
The federal constitution should require clan/member states to enshrine in their own constitutions and laws the right for any Somali citizen, regardless of clan affiliation, to reside within their member state boundaries. The federal constitution should also give every Somali citizen the right to live and work in the clan-state of their choice. By allowing Somalis to freely live where they desire, the clan boundaries will slowly soften, and diverse communities will eventually form.
Although member states and the federal government should have concurrent powers over businesses, the federal constitution should protect individuals and inter-clan/state businesses from discrimination based on an affiliation to a clan or a region. Otherwise, inter-state business will be subjected to local protectionism and discriminatory rules. For example, no member state regulation on business activities should have any impact on inter-member state business transactions; otherwise, each member state will protect its local interest at the expense of the national interest of facilitating business transactions across the entire country. The federal government should adopt laws that make clan/state boundaries completely transparent to business activities and movement of people and goods. The member states should have the power to regulate all the goods located within the state[15] and all local activities of all businesses located in the state (including inter-state businesses) as long as such regulations do not affect the movement of people and goods across state boundaries. For instance, member states may require companies to obtain member state business licenses, regulate how they treat their employees, enforce health code, require them to collect income taxes from their local employees, regulate and collect taxes on businesses’ properties (including vehicles, equipment, land, and buildings), and require compliance with other local rules.
The federal constitution should also protect the non-big 4 clans from the whims of the big 4 clans. Given that clan animosities are always dormant phenomena that can be woken up by a single event, the federal government should retain the power to protect minorities within major clans as well as settle potential interclan /inter-state disputes.
Bashir M. Sheikh-Ali[1], J.D.
bashirmsheikhali@gmail.com
[1] The writer is a Somali American lawyer who practices Federal and State laws in the United States. The opinion in this paper is his own opinion and should not be attributed to any of his partners, associates, or colleagues.
[2] /op4/2022/may/186145/federalism_and_somalia.asp
[3] We know Somalis of all clans live all over Somalia. Therefore, when I state that a particular region belongs to a particular clan, it does not mean that there are no members of other clans in that region. For example, no one will dispute that Somalis belonging to Darood, Dir, Rahanweyn and “other” Somalis live and work in Mogadishu. Yet, there could be no disputing that Mogadishu is Hawiye region. Conversely, Cabudwaaq and Sool, which are inhabited predominantly, if not exclusively, by Daarood, would be considered islands of Daarood in Hawiye and Dir regions. Thus, these designations are more an illustration than anything else—I am only trying to illustrate how we may have already been federating using clan.
[4] To be sure, Dir includes other sub-clans who live in almost every member state in the nation.
[5] Sool, Sanaag, and Buuhoodle district of Togdheer are controlled by Somaliland even though they are primarily resided by Daarood. Puntland and Somaliland claim these regions for different reasons—for Somaliland, inclusion of these regions is consistent with their reasoning for seceding (as the successor state to the British Protectorate); for Puntland, these regions are resided by Daarood and should be included in the greater contiguous region resided by Daarood, which is Puntland.
[6] The Provisional Constitution mentions “clan” once in Article 11, Section (1), where it provides. “[a]ll citizens, regardless of sex, religion, social or economic status, political opinion, clan, disability, occupation, birth or dialect shall have equal rights and duties before the law.” Emphasis added. Interestingly, the Provisional Constitution also refers to “tribe” once in the Equality clause under Article 11. However, that clause does not refer to clan. Are the two terms the same or different?
[7] Even though the Provisional Constitution calls for two or more pre-1991 regions to form a member state, Mogadishu’s population, and economic power, which dwarfs that of any member state, justifies deviation from the provisional constitution.
[8] Although the stated purpose of the 4.5 system is power sharing, the reality is that 4.5 provides a power division in the name of the clan.
[9] The Provisional Constitution does not explicitly call for clan federalism; Article 49 of the Provisional Constitution is inconsistent with the adopted member state boundaries. The adopted member state boundaries can only be explained if we assume that Somalis are federalizing using clan.
[10] Abdullahi M Arale called the 4.5 system a “fake clan power-sharing system.” See /op4/2021/dec/184757/it_is_a_painful_experience_to_watch_our_country_degraded_into_oblivion_by_a_fake.aspx, last visited May 29, 2022.
[11] Incidentally, the Provisional Constitution does not explicitly provide for 4.5 membership allocation in the two houses of the parliament. It merely defines membership of each house. For instance, the Upper House has 54 members “based on the eighteen (18) regions that existed in Somalia before 1991,” elected through a direct, secret and free ballot by the people of the Federal Member States. On the other hand, the House of the People has 275 members elected by citizens of the Federal Republic of Somalia. Thus, members of the Upper House are chosen through member state elections whereas members of the House of the People are chosen through federal elections. Does that mean electoral districts for the House of the People can straddle across member state boundaries or should electoral district of the House of the People be confined in member state?
[12] https://heritageinstitute.org/wp-content/uploads/2021/12/unblocking-somalias-federal-arrangement_-dec-31-1.pdf.
[13] id., page 14.
[14] Nasteha Mohamud Ahmed, “Somalia’s struggle to integrate traditional and modern governance: The 4.5 formula and 2012 provisional constitution,” Submitted in 2018 to the Public Policy and Administration Department of The American University in Cairo in partial fulfillment of the requirements for The degree of Master of Global Affairs
[15] Such regulations, however, must not discriminate against the imported goods. For example, if one member state produces a particular type of bananas and imports other types of bananas from other states, such state should not be able to impose tax on the imported bananas without similarly taxing the locally grown bananas.
