By Mary Harper
United Nations Secretary General, Ban Ki-moon, has hailed the endorsement of Somalia’s new constitution as a “historic achievement”.
This might be an over-statement. Instead, the constitution’ s approval on Wednesday by the National Constituent Assembly (NCA), made up of 825 prominent Somalis, was a symbolic moment.
The NCA simply rubber-stamped a document that had been years in the making, with input from Somalis and non-Somalis alike.
The constitution had essentially been agreed beforehand by six of Somalia’s key power bases – the president, prime minister, parliamentary speaker, two regional presidents and a leader of a Sufi militia. The process had not been easy.
Perhaps the most important thing about the approval of the new constitution is that it opens the door for some of the most important parts of the political transition to take place.
Somalia is more a patchwork of semi-autonomous statelets than a unified territory”
A group of elders will now select a new parliament, which, once approved by a special technical committee, will elect a new speaker and president, although some believe the ‘new’ president will be the ‘old’ one, the current head of state, Sheikh Sharif Sheikh Ahmed.
The new constitution is highly ambitious. It promises many things.
The International Development Law Organisation, which offers legal expertise to governments, said it guarantees more fundamental rights than the US constitution.
‘Tantamount to torture’
According to the constitution, “all 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”.
If such rights are ever implemented, life could change for Somali women, non-Muslims and members of minority clans, all of whom have suffered discrimination.
Almost all of the delegates to the constituent assembly backed the constitution
The constitution says every citizen shall have the right to free education up to secondary school.
It says children should not be used in armed conflict. It outlaws the circumcision of girls, which is widely practised in Somalia, describing it as “cruel and degrading” and “tantamount to torture”.
All well and good. But the constitution appears to exist in a parallel universe, a fantasy land, when compared with the reality on the ground in Somalia.
Take female circumcision, for example. A survey by the Ministry of Health in Somalia found that 96% of Somali women were circumcised.
The World Health Organisation (WHO) and the UN children’s agency, Unicef, found that 98% of women they interviewed had undergone “Type 3 circumcision”, whereby part or all of the external genitalia is cut away.
Key constitutional points
A bill of rights, with everyone declared to be equal, regardless of clan or religion
Islam is the only religion of the state, and no other religion can be propagated in the country – however, this was also the case previously
Female genital mutilation – a widespread practice – is outlawed
Citizens have the right to be educated up to secondary level
A Truth and Reconciliation Commission is to be established
Territorial disputes should be settled peacefully – Somalia has gone to war with both Kenya and Ethiopia over its claims to their Somali-inhabited regions
Somalia will have a federal system – however the status of Mogadishu, the borders and distribution of power and resources between the regions are yet to be decided
The woman is then sewn up so only a small hole remains, often causing immense pain and difficulty during urination, menstruation, sexual intercourse and childbirth.
Even if cultural attitudes towards circumcision change, an immediate implementation of the ban will be impossible. Many parts of Somalia are still dangerous, and not under the control of the government.
Although security is improving in some parts of the country, Somalia is more a patchwork of semi-autonomous statelets than a unified territory.
The militant Islamist group al-Shabab occupies significant parts of Somalia, and carries out attacks in Mogadishu and other places no longer under its full control.
Another problem with the constitution is that contentious issues remain unresolved, including the status of Mogadishu, and the allocation of power and resources between the centre and the regions.
This is where ferocious arguments are likely to develop, and possibly lead to armed conflict.
If such violence breaks out, the transition process – in which so much time, money and hope have been invested – would simply cause the complexion of the Somali conflict to change, rather than bringing it to an end.
The constitution is likely to annoy many people in Somaliland, which broke away from the rest of the country in 1991, although it is not recognised internationally as an independent state.
It clearly defines the boundaries as including Somaliland and states that “the sovereignty and unity of the Federal Republic of Somalia is inviolable”.
One important thing appears to be missing from the constitution. Earlier documents stated that 30% of seats in parliament should be given to women. This seems to have been removed from the latest one.
One part of the new constitution that may play a part in healing Somalia is the provision for the establishment of a Truth and Reconciliation Commission.
One thing often missing from ‘landmark’ agreements on Somalia is a mechanism to deal with impunity.
For more than 20 years, Somalia has been engulfed by different kinds of violence perpetrated by different groups of people.
If a way could be found for people to confront the past, and accept responsibility for the violence, corruption and other problems, perhaps Somalia and Somalis could find a way of living together that is productive rather than destructive.