Hiiraan Online

By Bashir M. Sheikh-Ali
Wednesday May 11, 2022

History of Federalism and Somali Culture are Equally Important Pillars

In 2012, stakeholders in Somalia's political transition process agreed on a provisional constitution. That document lays out a political solution whose weakness is laid bare by the many challenges that the country had since faced. The key ingredient of this political solution is a federal structure that initially uses the now famous 4.5 power sharing.  Although one would be tempted to poke holes in this political solution and the underlying government structure (and there are many holes a knowledgeable person can choose from), the purpose of this paper is not to critique the document itself. Rather, the purpose of this paper is to illuminate the challenges facing Somalis in taking this provisional document and converting it to a viable constitution that can form the basis for a Federal Somali Government.

In this paper, I will briefly discuss complexities unique to federalism as well as Somali cultural norms that will likely be the biggest hindrances to form a federal government in Somalia.  Then, I will touch on how Somalia’s current state of governance poses additional challenges in creating a federal government.  I will finish the paper with some key features that need to be addressed before federalism can be a reality in Somalia. 

Cultural Norms and the Role of the Minorities

Governments do not come into existence in vacuum.  Rather, governments rise from societies and their cultural norms form the foundation for such government.  Listed below are few Somali cultural norms that pose significant challenges to the creation of any Somali government. 

1.    Somalia’s most challenging norm is the obvious one—clannism and all its ills.  Although the stated purpose of the 4.5 structure was to transition the country to one-person one-vote, it has become so ingrained in Somalis’ thinking that they look at everything through 4.5 lenses.  Further, not only clannism has become intractable in Somalia, but it is also a contributing factor to a number of other negative cultural norms that Somalis developed more recently. 

2.    Absence of accountability has become such a norm in Somalia that extrajudicial killings, the taking of public property and the purchase of votes are openly discussed without anyone frowning over them – unless frowning on it serves a political purpose.  In a country where no one is accountable for anything, corruption has become rampant.  Although the absence of accountability in Somalia has its roots in the lack of an effective and independent judicial system, it is also complicated by clannism because any wrongdoing becomes a clan issue.   

3.    Theft of public properties has become so normalized that the value of any government appointment is measured in the appointee’s ability to steal from the government. Any Somali who holds a government position is expected to benefit themselves, their immediate family, and their clan.  Somalis even coined terms for responsible bureaucrats (those who wouldn’t use their position for personal, family, or tribal purposes) – they call them “wax kama qabsan” or “wax ma tare,” which literally means someone who did not enrich themselves or their kin.  This expectation of benefitting your clan or kin is an exasperating factor to this negative cultural norm. 

4.    Although Somalia always had a ministry for planning, Somali government bureaucrats do not do much planning.  Rather, they present what they think is a reasonable budget for any project, knowing that much of the money is heading towards the bank accounts of one or more players in the scheme.  Lack of accountability is a contributing factor to this norm.  Because people have no expectation that any project will be managed correctly, no one worries about whether it will ever be completed.  If people had expectation of accountability, they would possibly have some plan.  Thus, this negative norm is intertwined with other negative norms discussed above.

5.    Somalis claim to be homogenous – yet they treat minorities horrendously!  Somalis isolate minorities and call them names; they then use those names as an insult to each other.  Somalis also have a culture of looking down on each other-- even the so-called major clans look down on others.  Somalia’s presumed homogeneity (in culture, ethnicity, language, and religion) hides many negative cultural norms and may be more of a myth than a reality.  Instead of pretending that Somalis are a homogenous society, the federal constitution must provide guarantees that all Somalis are equally treated under the law and prohibit all forms of discriminations ingrained in Somali culture.  Any Somali federal constitution should include protections specific to minority rights.

In creating a government, we must address these cultural norms upfront lest they exasperate the entire process.  Unfortunately, there are not many Somali norms that would be particularly helpful in creating a government. 

Federalism—Compromise and Cooperation are Key

Federalism is by far the most complicated system of governance that has ever been used anywhere in the world.  Whereas power emanates from one source in a unitary system of governance, there are two competing power centers in a federal system. It is an aphorism that governments do not willingly relinquish powers – they do so reluctantly and only if inevitable.  Instead, governments tend to usurp as much power as they can, especially if its boundaries are ill-defined. Thus, any federal system is susceptible to conflicts between sovereigns.  With Somalis’ proclivity to “rule of men” rather than “rule of laws,” any weakness in the federal structure will be an opportunity for exploitation by rudderless men (and occasionally women).  Thus, not carefully defining boundaries between the powers of the federal government and that of the member states invites exploitation and weakens the entire system. Therefore, the provisional constitution should be carefully modified to define the distribution of powers between the two power centers such that both the federal and member state governments are shackled to prevent encroachment into each other’s territories. If the two governments encroach into each other’s power territories, the country risks descending into dictatorship or, more likely, disintegrating into feuding fiefdoms. 

The very nature of federalism is based on conflicting interests that need to be carefully balanced through a negotiated process.  Just declaring federalism without doing the hard work necessary to create a carefully crafted federal system postpones the inevitable disintegration of the country into feuding fiefdoms, which will likely be controlled by neighboring countries.  Once these complex inter-governmental relationships in a federal system are viewed under the lenses of Somalis’ cultural norms discussed above, it becomes clear that the path to Somali federalism is a very tortuous one. The question is whether Somalis have reached political maturity to give this task its dues or whether they will shrink from the task and watch their country disintegrate. 

Formation of a Federal System and Somalia’s Realities

The only pre-requisite for the existence of a unitary government is the power itself.  Even successful coups lead to a unitary government. Conversely, power alone is not enough for a federal government to come into existence. Rather, federal governments come into existence only after two sovereigns agree to co-exist, with “agree” being the keyword in this sentence. 

Federal systems come into existence through a process of aggregation (where sovereign entities combine to create a federal government) or through devolution of a unitary government into federal member states.  An example of a federal system that came into existence through aggregation of sovereign nations is the world’s most developed federal system—that of the United States of America. There are several federal systems that have been created through devolution of an existing central government. 

Somalia does not fit into either of these two historic models of formations (aggregation and devolution).  Somalia does not have a central government that can undergo a devolution process and create member states.  Somalia is not made of sovereign regions that can come together and form a federal government through an aggregation process.  Instead, Somalia has regions with varying degrees of organizations and autonomy.  On one extreme, there is the autonomous region of Puntland and the de facto state of Somaliland[i] – both self-declared and both with regional governments that exercise (some) power over their respective citizenry. On the other extreme are Galmudug and Hirshabeelle, which have been cobbled together from regions that existed in former unitary governments but with no viable governments of their own.  Jubbaland and Southwest appear to fall somewhere between the two extremes.  Then, there is Mogadishu, which is not treated as a member state and has a mayor appointed by the central government instead of an autonomous administration.  Negotiators should address the status of Mogadishu at the onset of any discussions towards building a federal government.

Somalia declared federalism but refuses to do the hard work necessary to integrate these diverse regions into a federal government.  Thus, federalism exists in Somalia in name only.  With no central government to devolve into member states and no sovereign member states to give enumerated powers to a federal government, whatever Somalis do in creating a federal government will require an unprecedented and yet unknown process. 

Federal Structure—the Two Political Branches (Legislative/Executive)

All federal systems have one common property: each sovereign has an executive branch, a legislative branch, and a judicial branch. Since the two political branches have the power and the ability to tax and spend money, they are responsible for the implementation of all the constitutional mandates, including the creation of a judiciary branch that can hold its mandate as the third leg of the federal or member state government.

Federal Structure--The Judiciary (the Apolitical Branch)

A functioning judiciary, supported by the two political branches with budget and enforcement of its rulings, is a cornerstone of the establishment of a rule of law. It requires competent judges who are free from interference from the two political branches. The judges would be free of interference only if they are properly compensated and adequately protected. Physical and financial insecurities corrupt judges.

In a federal system, federal judiciary takes such an indispensable position that some consider it to be the most important branch of the entire federal system.  As Alexander Hamilton succinctly described it, “Of the three powers[], judiciary is next to nothing.”  Indeed, the federal judiciary is typically designed to keep the peace between the two political branches of the federal government.  It also keeps the peace between the federal and member state governments and among member states.

There are several considerations unique to federal systems that are often in play in judicial proceedings. The federal judiciary primarily rules on disputes arising out of federal law whereas state judiciaries address disputes arising out of state laws.[ii]  If an issue arising out of state law is part of a dispute in a federal court, the federal court may have to pretend that it is sitting in the state court on that issue and determine how a state judge would rule it. Conversely, if an issue arising from federal law becomes part a dispute in a state court, the state judge must rule that issue using federal law.

The judiciary in a federal system must be designed to work in an integrated manner such that disputes are resolved once and for all (with all attendant appeals processes).  In other words, disputants should be able to reach an end of the disputes in an efficient manner.  One way to integrate courts in a federal system is the use of good faith and credit to resolutions in anywhere in the system (i.e., once a dispute is validly resolved in one jurisdiction, it is resolved everywhere). There needs to be some form of supremacy clause if there are federal and state laws that apply to any dispute.  Given the complicated nature of federal judiciary, we must carefully design it and properly support it.

Separation of Powers

In a federal system, the three branches of the government rely on each other for maintaining a functioning system; however, they are independent of each other.  The powers of the three branches must be separated such that there is rarely a question of which branch has an authority over anything.  An important principal of separation of powers under federal systems is that no person can be employed by more than one sovereign or by more than one branch of government within a sovereign.  For example, no member of the legislative branch of the federal or of a member state should carry any executive duty in their respective sovereign.  Similarly, no judge or law enforcement officer should be a member of the legislative branch.  Failure to adhere to strict separation of powers principals will create chaos because members with dual allegiances often become agents of destruction.

Businesses’ and Citizens’ Relationship with the Federal System

Equally important in federalism is the relationship between the federal and the member state governments on one hand and the public (both individual citizens and businesses/associations) on the other hand.  The public needs to know which government has authority over their conducts.  If the federal and member states have concurrent powers over a conduct, those powers must be defined with clarity, including a supremacy clause. 

Co-sovereigns often exercise concurrent powers over businesses where corporations with national presence may become susceptible to the whims of member states’ preferential treatments of their local businesses.  To that end, laws in federal systems must be designed to protect businesses from being subjected to unfair treatments. In addition to protecting businesses from discrimination based on their origin or ownership, a federal system must have a reciprocal good faith and credit given to the public records and proceedings of each member state such that businesses do not have to litigate the same issue in multiple jurisdictions.  If two businesses litigate an issue in one member state, the proceedings (including any appeal process) should resolve the issues once and for all.  

Other Considerations

The federal government should have exclusive power over foreign policy and national defense, lest the national government risks losing sovereignty.  Member states should have law enforcement necessary to govern but should rely on the federal security forces for protection against external aggressions. Federal government security forces should not be used against any member state for any reason except for mutiny.

Preferential treatment of some member states over others risks inter-member feuds and could have disastrous consequences for the federal system.  Natural resources should carefully be handled. 

In sum, Somalis need to come to a table and negotiate the boundaries between the two governments. 

By Bashir M. Sheikh-Ali

[email protected]

The writer is a Somali 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.