ABOUT THE MINISTRY OF CONSTITUTIONAL AFFAIRS

ABOUT THE MINISTRY OF CONSTITUTIONAL AFFAIRS

The Ministry has two major roles. The first is to provide the overall organizational facilitation of the smooth execution of the tasks throughout the period of the review and implementation process of the constitution; and the second, is to strengthen the coordination of all institutions that are involved in the constitution review process in Somalia.

MANDATEOur mandate is to promote and facilitate political and public consultations including tasks of the Federal Government and other Federal Member States as well as the political, social and cultural organizations and the Somali society in order to devise an open, transparent and inclusive atmosphere of the constitutional review process in collaboration with the constitutional mandated committees and other relevant institutions. The Ministry is also responsible for overseeing the implementation of the constitution.

VISIONOur vision is: The adoption of the final constitution with broad consensus that reconciles and unites the Somali people.

MISSION In delivering of our Vision, we will do so in an inclusive manner by consulting all role players and stakeholders in society.

CORE VALUESOur values include promotion of:

• Peace and National Unity

• Democracy, Good Governance and Rule of Law

• Human Rights

• Gender Equity

• Inclusivity and people’s participation

Ministry of Constitutional Affairs Address: Villa Somalia, Mogadishu - Somalia Website: www.moca.gov.so Email: [email protected]

@MoCAFGS @MoCASomalia

https://www.facebook.com/MoCAFGS/

https://twitter.com/MoCASomalia

Table of ContentsList of Figures � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � IIIList of Tables � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � IIIAcronyms and Abbreviations � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � IVAcknowledgement � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � VForeword by the Minister � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � VIStatement by the Deputy Minister � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � IXStatement by the Director General � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �XTribute to Late Minister Abdirahman Hosh Jibril � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � XII

1. Introduction � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �1

2. The Ministry � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �2

2.1 Introduction to the Ministry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2.2 Functions of Ministry of Constitutional Affairs (MoCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2.3 Organogram of the Ministry (MoCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2.3.1 Functions of the Minister and Deputy Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32.3.2 Director General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42.3.3 Departmental directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42.3.4 Somali Ministers of Constitution since 1959 – 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2.4 Achievements of The Ministry (2017 – 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2.4.1 Roadmap for Finalization of the Constitution Review . . . . . . . . . . . . . . . . . . . . . . . . . . . 92.4.2 Establishment of MoCA Forums (MoCAF) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92.4.3 National Constitutional Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92.4.4 Public Outreach and Civic Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102.4.5 Coordination of Technical and Political Undertakings Related to the Constitutional Review Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

3. Background and Context to Constitutional Review � � � � � � � � � � � � � � � � � � � � � � � � � � � �12

4. Strategic Perspectives � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �14

4.1 Building Strategic Partnerships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

4.2 Building Consensus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

4.3 Adoption of the Strategy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

5. Progress Recorded � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �17

5.1 Overview of the 15 Chapters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

5.2 Analysis of the 14 Chapters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

5.3 Issues Requiring Political Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

5.4 List of Non-Contentious Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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MoCA Handover Report – 2021

6. Proposals Developed For Consideration � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �30

6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

6.2 Proposed Option on Allocation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

6.3 Seeking a Logical Approach to The Allocation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

6.3.1 Principles Underlying FGS Competencies under Article 54 . . . . . . . . . . . . . . . . . . . . . . 376.3.2 Principles Underlying FMS Competencies under Section 52 . . . . . . . . . . . . . . . . . . . . . 376.3.3 The Allocation of Competencies - Education as an Example . . . . . . . . . . . . . . . . . . . . . 386.3.4 Allocation of Legislative Competencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386.3.5 Allocation of Executive Competencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396.3.6 Allocation of Administrative Competencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396.3.7 A Possible Approach to the Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

6.4 Proposed Chapter on the Devolution of the Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

6.4.1 The Structure and Levels of government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406.4.2 The Number and Boundaries of the Member States and Districts . . . . . . . . . . . . . . . . 406.4.3 Principles of Federalism of the Republic of Somalia . . . . . . . . . . . . . . . . . . . . . . . . . . . 416.4.4 Co-operative Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426.4.5 Powers Exclusively Allocated to the Federal Government. . . . . . . . . . . . . . . . . . . . . . . 426.4.6 Powers Exclusively Allocated to Member State Governments . . . . . . . . . . . . . . . . . . . 426.4.7 Art 53: Federal Government Intervention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

6.5 Proposed Revised Chapter on Public Finance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

6.5.1 Art 122 Principles of Public Finance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436.5.2 Art 122 (A) Criteria for Determining Equitable Allocation of National Resources . . . . 436.5.3 Art 122 (B) Independent Commission on Resource Sharing . . . . . . . . . . . . . . . . . . . . . 446.5.4 Art 122 (C) Revenue Raising Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456.5.5 Art 122 (D) Consolidated Revenue Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456.5.6 Art 122 (E) Public Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 466.5.7 Art 122 (F) Public Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 466.5.8 Art 122 (G) Annual Budget Estimates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476.5.9 Art 122 (H) Appropriation Bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476.5.10 Art 122 (I) Financial Control and Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486.5.11 Art 122 (J) Public Procurement and Concessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486.5.12 Art 123(A) Central Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 496.5.13 Art 123 (B) Auditor General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

6.6 Proposed Constitutional Principles on Natural Resource Revenue Sharing . . . . . . . . . . . . . . 50

6.6.1 Principles Established in the Baidoa Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 506.6.2 Proposed Provisions on Natural Resources as an Expansion of Article 44 of the Provi-sional Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

6.7 Options on the Federal Justice and Corrections Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

6.7.1 Jowhar Agreement on Justice Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 516.7.2 Federal Government’s Proposal on the Justice and Corrections Model. . . . . . . . . . . . 516.7.3 Proposed Option on the Federal Justice and Corrections Model . . . . . . . . . . . . . . . . . 54

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Figure 1: MoCA Organigram � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 6Figure 2: Somali Ministers of Constitution since 1959 – 2021 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 7

Table 1: Visits to the Federal Member States � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �14Table 2: Analysis of the 14 Chapters � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �17Table 3: Specific Additional Issues that Requiring Political Resolution � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �22Table 4: Special and shared powers of Federal Government and Federal member states � � � � � � � � � � � � � � � � � � � � �31Table 5: Structure of the Courts � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �52Table 6: Hierarchy of the Ordinary Courts � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �52Table 7: Jurisdiction and Competency of the Courts � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �53Table 8: Judicial Service Commission � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �53Table 9: Judicial Training Institute � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �54

6.8 Options on the Electoral Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

6.8.1 Considered Options on the Electoral Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 566.8.2 Proposed Option on the Electoral Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

6.9 Status of the Capital City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

6.9.1 Options on the Status of the Capital City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 596.9.2 Proposed Option on the Status of the Capital City . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

7. Challenges to the Constitutional Review, Way Forward And Conclusion � � � � � � � � � � �61

7.1 Challenges to Constitutional Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

7.2 Way Forward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

7.3 Strategy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

7.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

ANNEXE A: � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �66ANNEXE B: � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �70ANNEXE C: � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �86ANNEXE D: � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �90ANNEXE E: � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �95ANNEXE F: � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �100ANNEXE G: � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �102

List of Figures

List of Tables

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ACRONYMS AND ABBREVIATIONS

CRP Constitutional Review Process

CSO Civil Society Organizations

EISA Electoral Institute for Sustainable Democracy in Africa

F Stands for (Federal Sphere)

FGS Federal Government of Somalia

FL Federal level

FMS Federal Member States

FS Stands for (Federal and State spheres)

ICRIC Independent Constitutional Review and Implementation Commission

IOM International Organization for Migration

Max Planck Max Planck Foundation for International Peace and the Rule of Law

MoCA Ministry of Constitutional Affairs

MoCAF Ministries of Constitutional Affairs Forum

MoIFAR Ministry of Interior, Federal Affairs & Rec

NIS Nordic International Support Foundation (NIS Foundation)

OC Parliamentary Provisional Constitution Review and Implementation

Over sight Committee

PC Provisional Constitution

S Stands for (State Sphere)

SL State level

UNDP United Nations Development Programme

UNSOM United Nations Assistance Mission in Somalia

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ACKNOWLEDGEMENT

The Federal Ministry of Constitutional Affairs hereby expresses its acknowledgement and heartfelt appreciation to the President of the Federal Republic of Somalia, Prime Minister and Speakers of the two houses of the Federal Parliament for their contribution, encouragement and guidance during the constitution review process.

The Ministry also expresses its gratitude to the Parliamentary Oversight Committee and the Independent Constitutional Review and Implementation Commission (ICRIC) for their dedication, commitment and collaboration during the course of the constitutional review process. We are equally thankful to the Institutions and Ministries of the Federal Government and Federal Member States for their cooperation and participation in the process. The Ministry further extends its appreciation to the diverse Civil Society Organizations (CSOs) including the women, youth, persons with disabilities, marginalized groups, professionals, academia/think tanks, religious scholars, traditional elders, business groups and the media for their participation and invaluable contribution of views in the review process.

Likewise, the Ministry is indebted to the different donors, organizations and individuals/experts for their unwavering support without which we would not have made the progress recorded thus far. We owe sincere gratitude to our International Partners especially UNDP and UNSOM for their continued technical and financial support. We gratefully acknowledge Max Planck, EISA, Conflict Dynamics International (CDI), Forum of Federations, Saferworld, IOM and NIS for their contribution to the Constitutional Review Process in one way or the other. And above all, we thank to almighty Allah (SWT) who made our successful course in the constitution review process possible and who bestowed his blessings upon us to reach this stage.

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FOREWORD BY THE MINISTER

The idea of having a constitution goes back to the birth of Islam. Prophet Muhammad (SAW) established the first Islamic state in Medina in 622 A.D. and drafted its Charter, as a political document which was supported by Arab clans, Jews and Muslims. The document integrated the Medina community of Muslims and non-Muslims in principles of unity, independence, rule of law, diversity, respect for International law and justice. Many Muslims and non-Muslims believe that this document was the first ‘Human rights document’ in the history of mankind as it provided for the freedom of religion, privacy right, rights of minorities, right to revolution and the rules of war, etc. This was well before other written constitutions were crafted in 17th century.

Against this background, Somalis searched for solutions that would provide for statehood and a prosperous life in a modern world. The first constitution of Somalia after independence was framed by the Italian administration under trusteeship system of the United Nations. The constitution attempted to merge the values and principles of Islam with that of western modern constitutions which Somalis had little prior understanding of.

Since then, charters were decreed and constitutions were proclaimed, but the Somali people were not able to agree on a single document that reflected its known norms and principles on how to govern themselves. The adoption of a socialist ideology in the 1979 Constitution worsened the case. In the end, civil conflict brought about state failure and the country descended into turmoil for more than a decade. Many neighboring and sister countries tried to facilitate political agreement, but most of these endeavors were unsuccessful. Djibouti had a particular role in this process by facilitating the longest negotiations between Somali rivals in Arta, Djibouti. The result of these talks was a Transitional National Government (TNG) mandated mainly for a reconciliation process. The TNG was however boycotted by several factional leaders. The Eldoret and later Mbagathy reconciliation conference held in Kenya from 2002 - 2004 succeeded to bring the factional leaders to the negotiating table. The two yearlong conference finally agreed on a federal system and produced a transitional federal charter followed by the establishment of a Transitional Federal Government in 2004.

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Following Mbagathy, the Provisional Constitution was the product of many consultations, agreements and roadmaps which was finally adopted in 2012 by a National Constituency Assembly of 825 members. The PC established a new Federal Government system but without clarifying the key characteristics of the federation. The allocation of powers, separation of competencies, representation of the people, resources management, public finance, the structure of the federation and other important issues were deferred for negotiations between the Federal Government and Federal Member States which were yet to be formed.

The Provisional Constitution mandated a process of constitutional review and envisioned further negotiations to be conducted between FGS and FMS in a manner that takes peace building and state building measures into account.

The process of constitutional review therefore has two functions. Firstly, it allows Somalis to learn and produce a system that best serves their aspirations and reflects their values. Secondly, to adopt a constitution that unites us and protects our unity. The three mandated institutions, Ministry of Constitutional Affairs, Parliamentary Oversight Committee, and Independent Constitutional Review and Implementation Commission agreed to combine their energies in a single roadmap to achieve a Somali owned and Somali crafted constitution agreed by all role players. To realize this aim, consulted with FGS and FMS authorities, CSOs, experts, held conferences, retreats and awareness campaigns. This allowed us to prepare a draft set of amendments that allowed us to consult the public further. I am pleased to report that we were able to in February 2020 to hold FGS Inter-Ministerial Work Sessions enabling all FGS Ministries to identify the key political and power sharing issues and find a common ground on the constitutional review process. This was incredibly helpful in shaping our ideas going forward. The progress made in these discussions were taken forward to all the FMS when I was afforded an opportunity of engaging with the leadership of each of these states on progress made and taking the process forward. These discussions were carefully taken through to each of the Dhusamareb conferences to ensure that there was greater inclusivity in constitutional review process. These consultations were planned in two phases due to outbreak of COVID-19 pandemic and the political impasse. The first round of consultations was organized in March 2020, while the second round of consultations took place in October and November 2020. Public consultations were organized in Mogadishu, Hirshabelle, Galmudug and South West State, collecting opinion of the states’ institutions, leadership and citizenry on the constitutional review. The States and the Banadir Region provided their views which led to the 3rd revised version of the Provisional Constitution.

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The result is that we now have a final draft proposal to amend the constitution based on the views gathered from these consultations. It is important to note in this regard that around 81% of the proposed amendments are of a technical nature and not of a contentious nature. The remaining parts are areas need political consideration between leaders of the FGS and FMSs. To assist, the three institutions prepared options for these discussions which are included in this report.

There are many political, institutional, legal, and technical challenges to before we were able to complete the process of review. However, the reality is that the end-result will be a Somali owned and Somali drafted constitution that reflects the aspirations and values of the Somali people on which we would be able to build strong institutions of state on the foundations of the rule of law and constitutionalism.

H.E. Hon. Salah Ahmed JamaMinister of Constitutional Affairs

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STATEMENT BY THE DEPUTY MINISTER

Somalia is striving to build a sustainable state and restore the unity of our nation through the constitution and a peace building process.

The Provisional Constitution of 2012 came to life after a long process of negotiations. There are, however, many issues that require further political consideration and agreement. Our starting point was to build our working relationship with both the Oversight Committee and ICRIC. This allowed us to jointly develop a strategy to manage the process of constitutional review. The main focus of our strategy was to ensure that we effectively consulted and worked with all role players in a manner that would allow us to conclude the process of review and arrive at a constitution that represents the will and aspirations of all our people. The Federal Government accordingly created an environment to facilitate agreement. We set up institutional arrangements, allocated funds, and provided for various forums for discussions and interactions to support the review process.

The federal mandated institutions achieved great success in completing the technical part of the review, as well as enhancing the role of the public in the Constitution. To facilitate matters requiring political consideration, they identified and developed various options. Example of this is the manner in which proposals for the status of the Capital and allocation of powers were dealt with.

We are hopeful that the leadership of the FGS and Federal Member States seize the opportunity to play their role and positively contribute to the process of producing a constitution that serves the interests of all.

H.E. Hon. Lutfi Sharif Mohamed OmerDeputy Minister of Constitutional Affairs

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STATEMENT BY THE DIRECTOR GENERAL

The foundation of the Constitutional Review Strategy was a Memorandum of Understanding that was carefully put together between the three mandated institutions. This MOU formed the basis for the management of the project and accounted for the successes made. The second part of the strategy included a detailed work plan that was jointly agreed upon by the mandated institutions.

The strategy focused on undertaking a careful review of the Provisional Constitution after consulting all political role players and stakeholders including civil society. We adopted a plan and were careful to ensure that we delivered according to this. Because of the productive relationships, mutual trust, and respect that developed between the mandated institutions, we were able to implement the plan by ensuring that we collectively technically reviewed the draft, developed clear options in respect of the political issues requiring consideration, and consulted as widely as was possible. This led to the production of three consecutive versions of the draft review, each of which included refinements made because of the excellent consultations that took place.

However, critical to progress was to ensure that all Federal Member States fully participated in the process. With the continued support and commitment of our Minister and Prime Minister, every effort possible was made to ensure that the leadership of all FMS were kept informed of the process and consulted on both the process and actual review of the text of the constitution. Great progress was recorded until the Puntland Consultative Conference took place in Garowe from 15 - 17 March 2020. This conference issued a communiqué which stated that “called upon Puntland Government to postpone the review of the provisional constitution of the FGS until after the upcoming election following 2020/2021 in order to provide sufficient time and full consultation”. Until this took place, all FMS participated including both the Puntland and Jubaland administrations.

A key responsibility of the Ministry is to increase the understanding and involvement of the public in the review through civic education programs and public outreach undertakings. MoCA developed a clear roadmap for the constitutional review process which defined activities and timeframes in the CRP. Furthermore, the MoCA developed policies and strategies to conduct civic education and public outreach programs. In this

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regard, MoCA organized and liaised various political and technical forums and events that intended to facilitate interaction among Somalis whether they are government institutions in the federal and state spheres, civil society organizations or community groups.

To further enhance and strength the understanding of the Somali People to the insights of the constitution and federalism, the MoCA with the support of its International partners, developed educational and resourceful materials that would help build the understanding and knowledge of the Somali People about the Constitution.

I am pleased to report that the Ministry of Constitutional Affairs has over its term developed an effective administration with an emerging institutional memory and is confident that we are well positioned to conclude the CRP through to its adoption and implementation.

Mr. Mohamed Abukar ZubeyrDirector General, Ministry of Constitutional Affairs

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TRIBUTE TO LATE MINISTER ABDIRAHMAN HOSH JIBRIL

The Ministry of Constitutional Affairs commends and honors the contribution and record of progress by the late H.E. Minister Abdirahman Hosh Jibril. His leadership

provided the foundations for our work on the Constitutional Review Process because of the important milestones achieved. Late Minister Hosh first led the constitution making

process in 2011 and 2012 resulting in the adoption of the Provisional Constitution in August 2012. During the review process of the PC, Hosh, as a Minister of Constitutional Affairs again spearheaded the constitution review process from 2017 until his life came

an end in March 2019.

The charismatic leadership, great achievements and remarkable legacy he left behind still serve as a footprint and exemplary for the leadership of the Ministry. The

Ministry, therefore, pays tribute to and remembers his remarkable work that he was so passionately involved in. May Allah (SWT) grant him Jannah.

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1. INTRODUCTION

This report is a record of the performance of Ministry of Constitutional Affairs for the period between April 2017 to March 2021. It is intended to provide the incoming administration with an account of the:

(a) Organization and structure of the administration of the Ministry;(b) Activities and work undertaken by Ministry of Constitutional Affairs;(c) Progress made during the process of constitutional review;(d) The outstanding areas of review that require further attention; and(e) The challenges encountered during the process of the constitutional review.

The report will conclude with a proposal for consideration by the incoming administration for completing the process of review and the way forward.

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2. THE MINISTRY

2�1 INTRODUCTION TO THE MINISTRYThe Ministry of Constitutional Affairs (MoCA) is one of the key Ministries in the cabinet of Somali Federal Government pursuant to Articles 97 and 99 of the Provisional Constitution of Somalia adopted in 2012.

The rationale behind its establishment is that after years of stateless and anarchy, Somalia will be recovering and trying to restore peace and rebuild the state. The process of reconstructing the State Structure and reestablishing the order started from Arta, Djibouti, has ultimately allowed Somali leaders to agree on a government system that accommodates the diversity of Somalis and their opinions and promotes stability, peace and reconstruction. The adoption of Provisional Constitution of 2012 was great milestone for Somalis to have constitution after more than two decades of lawlessness. However, the Provisional Constitution is not complete because many matters relating to the political and government system were not settled. Furthermore, the adoption process is not complete until Somali People ratify the final version of agreed constitution. The Provisional Constitution sets out the review process after its adoption by National Constituent Assembly in August 2012.

The constitutional review process is not just a technical review to modify articles of the Constitution, but it is rather a process of reconciliation, trust building, reestablishing state institutions, restoring peace and promoting Somali citizens awareness and ensure their participation in the process.

In the light of above-mentioned realities, the role of the Ministry (MoCA), among others, is to provide the overall organizational facilitation for the smooth implementation of the review and implementation process of the constitution and strengthen the coordination of all institutions that are involved in the constitution review process in Somalia.

2�2 FUNCTIONS OF MINISTRY OF CONSTITUTIONAL AFFAIRS (MOCA)Fulfilling its responsibilities, the Ministry of Constitutional Affairs performs the following functions:

1. Facilitate the creation of environments and enabling the implementation and review process of the Constitution including:1.1 Facilitate the political negotiations between the Federal Government of

Somalia and the member states on issues requiring political agreement.1.2 Facilitate citizen participation in consultations and public education programs

relating to review and implementation of the Constitution. The process was participated by Federal Government, Member States, political organizations, civil society especially Women, and Youth groups, and the general Somali

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public to create an open, inclusive and integrated environment for the Constitution Review process in collaboration with the Parliament Oversight committee and the Independent Constitutional Review and Implementation Commission.

1.3 Support and facilitate funding the constitutional Review process programs from the Federal Government, Member States of the Federal Government and international donors.

1.4 Planning and coordinating the Federal Government budget for the Constitutional review, in accordance with the Financial Management Rules of the country.

1.5 Participation in the organization, collection and preparation of technical resources required to enable the review and implementation of the constitution to be fully integrated, in collaboration and consultation with the other mandated institutions.

1.6 Strengthening the coordination of relevant institutions in the constitutional review process and integrating all administrative operations that facilitate the implementation activities during the review process.

1.7 Promote and create an environment that enables collaboration and co-operation key institutions involved in the constitution review process.

2. Coordinate and compile the amendment proposals of the Federal Government institutions on the official position of the Federal Government regarding the review and implementation of the Constitution.

3. Facilitate the possibilities for a political environment to be prepared and hold a public referendum.2.3 ORGANOGRAM OF THE MINISTRY (MOCA)The organizational structure of the Ministry consists of the Ministry, Deputy Ministry, Director General, departmental directors, heads of units, civil servants, temporary staff and internships. The Ministry also employs advisors as deemed necessary to support the Ministry fulfill its responsibilities. The structure enables the Ministry to implement its duties effectively and efficiently.

2.3.1 Functions of the Minister and Deputy Minister

• The Minister is the highest official in the Ministry and leads the overall responsibility and functions of the Ministry. The Minister performs his/her duties according to Article 102 (1) of the Provisional Constitution and Article 6 (3) of Internal Rules of the Cabinet.

• The Minister sets policy, strategy of the Ministry and reports to the Prime Minister and the cabinet on the achievements and the progress of the Ministry.

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• The Minister advises cabinet on constitutional matters.

• Deputy Minister performs his duties according to Article 102 (2) of the Provisional Constitution and Article 6 (5) of Internal Rules of the Cabinet.

2.3.2 Director General

Duties include but not limited to:

• The Director General is the highest administrative official and functional head of the Ministry.

• Works under the guidance and direction of the Minister. S/he performs her/his duties according to the Provisional Constitution Articles 115 and 118, and the civil service law of No.11, December 5, 2006.

• Advises and assists the Minister in setting the policy and broader strategy of the Ministry and translates them into a workable action for implementation.

• Provides visionary and strategic leadership to the Ministry in pursuing its mission, developing short and long-term strategic plans, and in establishing strategic objectives for its programmes and services.

• Serve as a liaison between the Minister/Deputy Minister and the Directors of departments as well as provide regular report to the Ministers.

• Coordinate and directly supervise the work of all the departments as well as receive regular reports from the Directors of departments.

• Avail the necessary support and facilitations to the departments in order to implement their mandates effectively and efficiently.

• Monitor the progress of the Ministry with respect to relevant performance indicators and develop and oversee the implementation of evaluation plans.

• Establish and maintain close working relationships with relevant institutions and both levels of Government and other key partner institutions in order to identify priorities for the Ministry’s work and to develop collaborative program activities through strong strategic partnerships that support the Ministry’s mission and objectives.

• Assume overall responsibility for the management of the Ministry, ensuring that the Ministry meets all its requirements in connection with its operations and maintains the highest professional standards.

• Any other duties as deemed inevitable.

2.3.3 Departmental Directors

• The Ministry of Constitutional Affairs is structured into five departments as illustrated in the organogram in figure 1 below (i.e. Constitutional Coordination,

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Outreach, Admin & Finance, Planning & Development and Human Resources) led by Departmental Directors.

• Each department has subunits and sufficient staff members (civil servant and non-civil servant) with segregated duties and responsibilities to effectively implement and achieve its specific mandate.

• The Departmental Directors work under the direction and supervision of the Director General. They perform their duties according to the Provisional Constitution Articles 115 and 118, and the civil service law No.11, December 5, 2006.

• The Directors lead and supervise the day-to-day operational activities of their respective departments and ensure that the implementation of their departmental plans reflect the short and long-term strategic plans of the Ministry.

In fulfilling its mandate, the Ministry also has professional experts to assist the Ministry in the technical drafting and policy setting areas. Furthermore, experts were assigned to support the Ministry in preparing knowledge-based options on the contentious articles in the provisional constitution and advise on the mechanisms for settling the issues requiring political negotiations.

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Figure 1: MoCA Organigram

TECHNICAL ADVISORS

INTERNAL AUDIT

COMMITTEE OFEXPERTS

SENIOR ADVISORS

Gender &Marginalized

Group

ResourceUnit

Programs &Projects

Secretariat

ICT

HR System &Document

Management

INTERNALOUDIT

Training &CapacityBuilding

PLANNING &DEVELOPMENTDEPARTMENT

CONSTITUTIONALCOORDINATION

DEPERTMENT

OUTREACHDEPARTMENT

ADMIN &FINANCE

DEPARTMENT

HUMANRESOURCES

DEPARTMENT

MINISTER

DEPUTY MINISTER

DIRECTOR GENERAL

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2.3.4 Somali Ministers of Constitution since 1959 – 2021

Figure 2: Somali Ministers of Constitution since 1959 – 2021

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2.4 ACHIEVEMENTS OF THE MINISTRY (2017 – 2021)

2.4.1 Roadmap for Finalization of the Constitution Review

Soon after getting the mandate on 29th March 2017, Minister of Constitutional Affairs started to envision finalization of constitutional review process and adoption of the Constitution. After series of consultations with FMS, CSOs, and International donor partners, the Ministry produced a master plan which defines activities and roles in the constitutional review and respective timelines. Later on, the plan was reviewed, altered and replaced by a roadmap agreed by all key players on 14 November 2017 resulted from consultations with the stakeholders including the FMS and CSOs at large. The Ministry and the two committees (OC, ICRIC) developed the roadmap for finalization of the constitution review. The roadmap includes key tasks, roles and time lines to complete the constitution review process. To synergize their collective responsibility and endeavors in the review process, the three mandated institutions; Ministry of Constitution MoCA, Parliamentary Oversight Committee (OC) and Independent Commission (ICRIC) agreed a Memorandum of Understanding that outlines the main principles of the review and reflects role each party has to play in the process. (See annex A).

2.4.2 Establishment of MoCA Forums (MoCAF)

To ensure inclusiveness, participation and build consensus among all stakeholders in the review process, the Ministry held a consultative forum in Mogadishu on 12-16 May 2017, for MoCA of FMS. The establishment of MoCA forum aimed at engaging the FMS Ministries of Constitutional Affairs and Banadir Regional Administration to participate in the constitution review at executive level. Since then, seven forums have been successfully conducted that organized and led by the Federal Ministry of Constitutional Affairs.

The first forum was held in Mogadishu on 12-16 May 2017. The forum discussed during the meeting the importance of collaboration between MoCA FGS and MoCA FMS and therefore initiated to form the MoCA Forum (MoCAF). The meeting agreed to convene a regular meeting on a quarterly basis.

2.4.3 National Constitutional Convention

On 13th – 15th of May 2018, the three mandated institutions for the constitutional review organized and convened a National Constitutional Convention, a first in its kind since the adoption of the Provisional Constitution in 2012. The historic three day gathering took place in Mogadishu and brought together more than 500 representatives from the Federal Government, Federal Member States, International Community, Civil Society Groups and the Somali Diaspora. The Conference was aimed

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at broadening participation of public consultation, build consensus on the roadmap and strategies to finalize the review.

At the end of the discussions, the convention produced a declaration endorsing the roadmap and strategies presented. The conference underlined and affirmed the importance that the constitutional review process must be based on the principles of ‘Somali-owned, Somali-led’, inclusivity, continuity, transparency and accountability.

2.4.4 Public Outreach and Civic Education

As part of the Ministry’s mandate and in assuring its principle of promoting transparency and inclusivity. The MoCA had developed a comprehensive public outreach and civic education strategy with detailed awareness campaign plan related to the constitutional review. This undertaking was aimed at publicizing and educating the public on the Constitution Review Process and promoting understanding of the constitution by the people at large. One of the core responsibilities of MoCA is to facilitate and provide an enabling environment that guarantees an inclusive Constitutional Review Process that is participatory, peaceful and where everyone is free to express his\her views without fear of reprisals or oppression. The whole purpose of involving all stakeholders including everyone was to capture and incorporate their views thereby encouraging broader acceptance and validation of the constitution.

Over the past couples of years, the MoCA had made a number of engagement programs and extensive outreach on every stage of the process to the Federal and State Authorities as well as the civil society at large including but not limited to women, youth and disabilities across the country. The outreach campaigns were in the form of consultations, civic education, public forums, talk shows, town hall meetings, workshops, media campaigns and among others.

In an effort to ensure broader participation, the Ministry had also funded and conducted different workshops and trainings including ToTs for a number of individuals and institutions at both levels of government as well as civil society organizations to help the Ministry reach out to the people in their respective areas across the country.

It is with no doubt that this undertaking had witnessed a great deal of importance to the public as the awareness and general understating of people of their constitution and the review process at hand had increased significantly.

2.4.5 Coordination of Technical and Political Undertakings Related to the Constitutional Review Process

Despite the obstacles as outlined in the challenges section of this report, The MoCA has taken such a serious political ownership of the constitutional review

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process more than any previous term. This had been demonstrated by the inclusive Politics approach adopted with clear targets that it had set and the magnificent coordination and facilitation role it had played. There are three very important differences that deserve mention. Firstly, the three mandated institutions are the first bodies responsible for constitution making that have enjoyed the benefit of a productive collaboration. Secondly, this joint effort made it possible to undertake the consultations that were required of them with role players and stakeholders in both the member states and at a federal level. Thirdly, they have successfully completed the technical review and produced a third draft as the final draft of the reviewed constitution following draft one and two.

On a parallel and in an effort to meet the deadlines of the “must not fail priorities” set in the Mutual Accountability Framework (MAF) that was endorsed at the Somali Partnership Forum (SPF) on 2nd of October 2019, the MoCA had recorded a significant progress. The Ministry in collaboration with the Ministry of Interior, Federal Affairs and Reconciliation had organized inter-Ministerial engagements in the form of working sessions from 3rd – 18th of February 2020. The main purpose of these working sessions was to technically address the outstanding constitutional issues before they are politically negotiated and agreed upon by the FGS and FMS leadership. Issues included allocation of powers, resource sharing, fiscal federalism, Justice and corrections model, type of government, Status of the capital city and responsibilities for security.

However, given the very approaching deadline, some of these undertakings could not be achieved because of the outbreak of the COVID-19 pandemic and certain outstanding political differences. As a result, a strategy was developed following consultations to take forward the constitution review process cognizant of the political realities in Somalia.

The agreed strategy was focused on ‘banking’ or ‘safeguarding’ the progress made thus far. This was because there was insufficient time before the elections to address all issues that require political agreement. To do so, the tri-entities were required to consult all role players and stakeholders and bring to Parliament, for adoption, those articles that are not in contention.

To place on record, the Ministry did all that was required of it in terms of the agreed strategy. It had completed the required consultations in Mogadishu/BRA, Baidoa/SWS, Jowhar/HirShabelle and Dhusamareb/Galmudug. Following these consultations, the Ministry in collaboration with the other two mandated institutions held an inter-regional conference of all Ministers and Oversight Committees from both the member states and Federal Government to discuss how best to incorporate their input into the reviewed constitution.

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3. BACKGROUND AND CONTEXT TO CONSTITUTIONAL REVIEW

The Provisional Constitution was adopted in September 2012. The 9th Parliament was mandated to undertake a review of the constitution and transition the country towards its first election. The Oversight Committee of the 9th Parliament produced a comprehensive report on the options available in the review of the constitution. Unfortunately, political instability brought about by several votes of no-confidence resulted in distraction away from the task of constitutional review and a lack of sufficient time made it impossible for the review of the constitution to be completed before the 10th Parliament was elected.

The process of constitutional review during the 10th Parliament started only after the appointment of its Oversight Committee in August 2017. Then too, a decision was taken to start the process of review somehow afresh instead of building on the groundwork established by the 9th Parliament. The task of review during the 10th Parliament thus effectively started at the beginning of 2018.

Intensive work undertaken jointly by the three mandated institutions in both the process of consultation and at a technical level made it possible to compile a draft of the reviewed constitution. This draft was made the subject of a meeting of the three institutions including representatives from all the Federal Member States (with the exception of Jubaland). The outcome of this retreat in November 2019 allowed for the compilation of a 2nd Draft of the reviewed constitution at the beginning of 2020. The production of this draft of the review made it necessary for a further round of public consultations to be undertaken during February and March 2020. However, between April 2019 and February 2020, under Minister Salah’s guidance, MoCA took a number of initiatives to review the constitution from a substantive point of view. In April 2019, a Technical Working Group of experts was established in the Ministry to review the constitution with the intention of developing a report for the consideration and adoption by Cabinet. The Cabinet retreat did not take place because of pressing political challenges. Thus, in February 2020, an inter-ministerial workshop at the level of the Federal Government was undertaken for purposes of developing a common view on the contentious issue in the constitution.

This workshop was soon followed up by a further round of consultations in the federal member states. The three-institutions seized the opportunity of the attempts at political reconciliation through the various Dhusamareb Conferences to meet with political role players on the sidelines to gain support for the constitutional review. These consultations were following up with a more intensive series of engagements in each of the Federal Member States in October 2020. These engagements proved to be extremely productive

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and comprehensive. Unfortunately, however, the governments of Puntland and Jubaland declined to participate and did not allow the three-institutions to visit Garowe and Kismayo to undertake consultations. These consultations were then followed up with an Inter-regional Conference in November with the Ministers and Members of Parliament at both the federal and state levels to consider the feedback given. These were then incorporated into the 3rd draft of the review. The purpose of this was to pave the way towards the final process of adoption by the end of term in December 2020.

The appointment of his Excellency, the Prime Minister, Mohamed Hussein Roble proved to be of great value. The Prime Minister, as part of his induction process, met with the three institutions and promised his full political support for the process. The Prime Minister, in his visits to each of the Federal Member States, engaged with the key political leaders to secure their support for the review.

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4. STRATEGIC PERSPECTIVES

The strategy for constitutional review was guided by three elements:

• A strong strategic partnership between the three mandated institutions.

• The building of consensus by adopting an inclusive approach and engaging with role players and stakeholders.

• Adaptation as the needs emerged.

4.1 BUILDING STRATEGIC PARTNERSHIPS

The efforts of the late Minister Abdirahman Hosh Jibril in building partnerships between MoCA, the Oversight Committee and ICRIC into a cohesive partnership greatly assisted in ensuring for a most constructive collaboration between the three mandated institutions. The relationship between these three institutions is a major distinguishing factor from experiences of previous interactions in which unnecessary energy was spent on defining their respective roles and responsibilities. This partnership was blessed with the ability of focusing their collective energies on realizing their common objectives which was clearly defined by a Memorandum of Understanding signed at the beginning.

4.2 BUILDING CONSENSUS

The sound partnership between the three mandated institutions made it possible to focus their collective efforts into building consensus between all the role players and stakeholders both at the federal and member state level in their review of the constitution. This was done by regular regional consultations undertaken. The following activities were undertaken:

Table 1: Visits to the Federal Member States

NO FMS VISIT DATE DETAILS1� Hirshabelle State 30 January – 1

February 20185 – 9 March 20208 – 10 November 2020

Joint visits of the three National Constitution Review bodies (MoCA, OC, ICRIC) to Hirshabelle State for consultations.

2� Puntland State 21 -22 December 20179 - 11 February 2018

Joint visits of the three National Constitution Review bodies ( MoCA, OC, ICRIC) to Puntland State for consultations.

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NO FMS VISIT DATE DETAILS3� Southwest State 13 - 15 February 2018

15 – 16 March 20185 – 9 March 20208 – 10 November 2020

Joint visits of the three National Constitution Review bodies (MoCA, OC, ICRIC) to South West State for consultations.

4� Jubaland State 13 - 15 February 20186 – 8 April 2019

Joint visits of the three National Constitution Review bodies (MoCA, OC, ICRIC) to Jubaland state for consultations.

5� Galmudug State 5 – 9 March 202023 July 20208 – 10 November 2020

Joint visit of the three National Constitution Review bodies (MoCA, OC, ICRIC) to Galmudug State for consultations.

6� Banadir Regional Administration meeting

6 March 2018 A joint meeting of the three National Constitution Review bodies (MoCA, OC, ICRIC) with Banadir Regional Administration for consultation.

4.3 ADOPTION OF THE STRATEGY

The term of office is four years. The period during which mandated institutions are able to use is further severely constrained by several factors:

• The political environment remains fluid and challenging. Successive governments were confronted with motions of no-confidence, sometimes successfully.

• Oversight Committees were established only approximately 6 months after the election of Parliament. This means that it is nearly a year before an Oversight Committee is able to be effectively fully functional.

• The last year of a term of government focusses the energies of all political role players in the country, both at the federal and member state levels, on the elections and thus distracting attention away from processes such as constitutional review.

The consequence of the above factors has impacted on realizing the goals of the strategy within the time stipulated. This task is made more difficult by the need to hold rigorous consultations will all role players and stakeholders who are sometimes focused on other political priorities. What is evident from the experiences since 2012 is that projects of this nature are totally dependent on the political support they receive.

It is also worth noting the requirements of the current strategy. Given the delays occasion in the delivery of the project goals, it was agreed with the concerned stakeholders

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including donors that because it was not possible to complete the exercise of review of the constitution within the time available, it would make sense to focus the collective energies on safeguarding the progress recorded instead of seeking to negotiate all contentious issues. For this reason, the idea was to focus energies on all those technical amendments that were deemed not to be contentious. It is also noteworthy about 127 articles (of a total number of 156 articles in the constitution) required purely technical amendments. In addition to this, there was inevitable requirement for the purpose of consensus building which obliged the mandated institutions to secure complete consensus of these articles from all the Federal Member States before these could reach the doors of parliament.

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5. PROGRESS RECORDED

5.1 OVERVIEW OF THE 15 CHAPTERS• 2 Articles (23 and 62) remain the same with no changes made

• 45 Articles were amended

• 48 new Articles

• 61 Articles with technical amendments that improve the existing draft

• 7 Articles that require review for compliance with international conventions including Art 29(8) on the age of maturity. These are:

ෙ Human Dignity – Art 10

ෙ Equality – Art 11

ෙ Children – Art 29

ෙ Right of Access to Information – Art 32

ෙ Extradition of the Accused and Criminals - Art 36

ෙ Refugees and Asylum – Art 37

ෙ Limitation of Rights – Art 38

5.2 ANALYSIS OF THE 14 CHAPTERS

Table 2: Analysis of the 14 Chapters

CHAPTER PROPOSED AMENDMENTS EXPLAINEDCH 1: DECLARATION OF THE FEDERAL REPUBLIC OF SOMALIA

9 Articles

• Technical amendments that improve the existing draft were made to the articles.

• Art 8 on Citizenship which can be acquired through descent or naturalization. Federal parliament shall enact a law that defines how to obtain, suspend, or lose it.

• Art 9 on the Status of Mogadishu. 3 Options given. No contention here, but still subject to political agreement as to the appropriate option to be adopted.

CH 2: FUNDAMENTAL RIGHTS AND THE DUTIES OF THE CITIZEN

33 Articles (current 31 Articles)

• Article 23 with no changes made

• 2 Articles (14 and 41) were removed

• 21 Articles with technical amendments that improve the existing draft.

• 7 Articles are still to be reviewed for compliance with international conventions.

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CHAPTER PROPOSED AMENDMENTS EXPLAINEDCH 3: LAND, PROPERTY AND ENVIRONMENT

3 Articles with technical amendments that improve the existing draft.

CH 4: REPRESENTATION OF THE PEOPLE

4 Articles (two new articles)


• 2 new Articles were introduced proposing unified elections and additional requirements on the formation of the Political Parties.

CH 5: DEVOLUTION OF THE POWERS OF STATE IN THE FEDERAL REPUBLIC OF SOMALIA

8 Articles (4 new Articles)

• Art 48. The Structure of the Government proposes 3 government levels – The Provisional Constitution only has 2 levels, which is preferred by the FMS. This will require further negotiation and resolution.

• Art 52 and 53 – were amended.

• 4 articles were introduced – Allocation of Powers – Will require significant negotiations to agree on the powers and functions that are allocated to each level of government.

CH 6: THE FEDERAL PARLIAMENT


• Article 62 (current 58) remains the same with no change made.

• All the remaining Articles with technical amendments that improve the existing draft.

CH 7: THE PRESIDENT OF THE FEDERAL REPUBLIC

10 Articles with technical amendments that improve the existing draft

• 2 Articles will attract debate. These are:

• Art 90. The Responsibilities and Powers of the President – This involves the sharing of power between the President and Prime Minister.

• Art 92. Impeachment and Discharging of Duties of the President – This is a traditional challenge over several years in which arguments are made that Parliament is too powerful and has been responsible for the destabilization of government.

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CHAPTER PROPOSED AMENDMENTS EXPLAINEDCH 8: THE EXECUTIVE BRANCH

8 Articles (current 11 Articles) with technical amendments that improve the existing draft.Articles will attract debates. These relate to

• The Responsibilities and Executive Powers of the Prime Minister – This involves the sharing of power between the President and Prime Minister.

• No Confidence Motions, Impeachment and Discharging of Duties of the Prime Minister – This is also a traditional challenge over several years in which arguments are made that Parliament is too powerful and has been responsible for the destabilization of government.

CH 9: THE JUDICIAL AUTHORITY


• Articles 105, 106 and 107 have technical amendments that improve the existing draft.

• Art 108 suggests a new court structure and will attract debate from the FMS because of jurisdictional matters.

• 3 Articles deal with the Judicial Services Commission and the Constitutional Court will attract debate because of jurisdictional matters.

NEW CH 10: REGIONAL STATES

5 new Articles in a new Chapter

• Articles relating to the establishment of FMS, its Government structures and constitutions will attract some debate around the powers and functions of local government versus state governments.

CH 11: THE INDEPENDENT COMMISSIONS


• 7 Articles were removed


• There is no controversy or contention here, except for the fact that the number of structures is too many and not affordable. Some structures will need to be rationalized because they are not unsustainable and this will result in some of the articles being deleted.

CH 12: CIVIL SERVICE


• 3 Articles were amended.


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CHAPTER PROPOSED AMENDMENTS EXPLAINEDCHAPTER 13: PUBLIC FINANCE



• 2 Articles have technical improvements.

• 8 Articles were proposed.

CH 14: PEACE AND SECURITY




• 4 new Articles regarding the duties and responsibilities of the armed forces.

• Controversy will be limited because of the Baidoa Agreement on the Police Model which is already in place. This may however require some review.

NEW CH 15: TRADITIONAL CUSTOMARY LAW

3 new Articles that recognize the Somali traditional customary norms and traditional dispute resolution.

CHAPTER 16: MISCELLANEOUS PROVISIONS

8 Interim Articles were removed and the remaining 4 Articles were technically amended.

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5.3 ISSUES REQUIRING POLITICAL RESOLUTION1

1. Article 9. The Capital City of the Nation

2. Article 44. Natural Resources(a) Article 43. Land(b) Article 45. Environment

3. Article 46. The Power of the People

4. Article 47. Electoral System and Political Parties(a) Article 22. Right of Political Participation

5. Article 48. The Structure of the State(a) Article 120. Institutions of the Federal Member States(b) Article 121. Principles for Constitutions

6. Article 49. The Number and Boundaries of the Federal Member States and Districts

7. Article 51. Collaborative Relationships Between the Various Levels of Government in the Federal Republic of Somalia(a) Article 50. Principles of Federalism in the Federal Republic of Somalia(b) Article 111F. Inter-state Commission

8. Article 52. Cooperative Relationships Between the Various Federal Member State Governments

9. Article 54. Allocation of powers(a) Article 53. International Negotiations

10. Article 72. The Number of Members of the Upper House of the Federal Parliament

11. Article 90. The Responsibilities and Powers of the President of the Federal Republic of Somalia(a) Article 89. Election of the President of the Federal Republic of Somalia

12. Article 100. Responsibilities and Powers of the Prime Minister

13. Article 105. The Judicial Authority of the Federal Republic of Somalia

14. Article 108. National Court Structure(a) Article 109. The Proceedings of the National Courts(b) Article 109A. The Judicial Service Commission (JSC)

15. Article 111. The Formation of Independent Commissions

16. Article 122. Principles of Public Finance(a) Article 124. Federal Legislation on Financial Matters(b) Article 125. The National Reserve

1 This assessment was carried out on 16 September 2020

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Table 3: Specific Additional Issues that Requiring Political Resolution

Provisions of the Constitution that need to be negotiated

No Articles The Issue Comment1. Article 44:

Sharing of Natural Resources

“JFS Natural Resource Sharing will be negotiated by FGS and FMS.”

This will also relate to other articles such as article 43. Land and 45. Environment. There are previous agreements between FGS and FMS Governments such as:8. Baidoa Agreement on June

2018;9. Tuna Agreement on February

2018; and10. Petroleum Law (No.19 of

2020) and its amendment.

2. Article 54: Allocation of Powers

“Political and economic power-sharing will be negotiated by FGS and FMS…”

The allocation of powers is based on a proposal (See 6.2 and table 4) categorised into:1. Exclusive;

(a) FGS;(b) FMS; and(c) Local Governments.

2. Shared;3. Residual; and4. This will settle article 53

“International Negotiations” and the role of the FMS.

3. Article 111. The Formation of Independent Commissions

The Commissions which will exist at national level only and those that coexist at both levels will be discussed by FGS and FMS.

Some of the independent commissions are established at national level but operate countrywide. I.e. Human Rights Commission and Boundary and Federation Commission. Issues of formation of independent commissions in the national and state levels should be negotiated.

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Provisions of the Constitution that need to be negotiated

No Articles The Issue Comment4. Article 122:

Financial Management

“General financial principles will be discussed by FGS and FMS…”

There are options prepared for consideration on Financial management (See 6.5) which will cover article 124. “Federal Legislation on Financial Matters” and article 125. “The National Reserve”.

Necessary provisions for political negotiations not specified in the constitution

No Articles The Issue Comment1. Political

Representation and Participation

Article 46.47: System of Representation of Elections and Parties.

Art.46 (2). “The public representation system should be open and give everyone the opportunity to participate and their procedures and rules can be easily understood�”Article 47 “Laws concerning parties” elections “shall be defined by special laws”.

The country’s electoral system has already been reached (See annex F).

There is also the Electoral Law (Law No.23 of 2020). There is also a political party law (law No. 19 of 2016). This will affect article 22. “Right of Political Participation” the legislative competency of the levels of the government on the right to political participation.

2. Article 48. The Structure of the State

Article 48. “The Structure of the State” structural arrangements and the division of competencies to be determined�

The Provisional Constitution has only 2 levels, which is preferred by the FMS. This will require further negotiation and resolution. A resolution of this issue will affect article 120. “Institutions of the Federal Member States” and article 121. “Principles for Constitutions” of FMS.

3. Article 49: FMS Legislation

Article 49 (1): "The number and boundaries of the new Federal Member States shall be determined by the House of the People of the Federal Parliament"

It is important that the FGS and the FMS reach a political agreement on issues related to the number, boundaries and legitimacy of the FMS.

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Necessary provisions for political negotiations not specified in the constitution

No Articles The Issue Comment4. Articles 51

and 52: Relationship between the FGS and the FMS

Art. 51 (1) “Every level of government, whether equal or hierarchical, shall have a good working relationship.”

In order for the Parliament to develop a law on intergovernmental relations, it is necessary for the FGS and the FMS to agree on a partnership agreement. Reviewing these articles interrelated with article 50. “Principles of Federalism in the Federal Republic of Somalia” and article 111F. “Inter-state Commission”.

5. Article 72: Number of Members of the Upper House

“Members of the Upper House are. Elected by the people of FMS. A maximum of 54 from the 18 regions…”

It is necessary to agree on the method of dividing the number of members of the Upper House.

Points Requiring Political Completion

No Articles The Issue Comment1. Article 90,

100: Powers of the President and the Prime Minister

“The powers and responsibilities of the President include: ...”

We see it as a compromise between the powers of the President and the Prime Minister. The review of article 90 and 100 may effect on Article 89. “Election of the President of the Federal Republic of Somalia” where modification to the system of the government may change how to come to the presidency.

2. Article 105,108: Structure of the Judiciary

“The structure of the judiciary shall be enacted by the Federal Parliament.”

The Judiciary process has reached a political agreement (January 2018) but needs to be finalized. This will include also article 109. “The Proceedings of the National Courts” and article 109A. “The Judicial Service Commission”.

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Specific points to consider in FGS and FMS

No Articles The Issue Comment1. Article 9: Status

of the Capital Mogadishu

“...capital will be decided constitutional review, and special rule will both Houses of Parliament.”

According to Article 9 of the Capital Status Constitution is passed by parliament, so the Constitutional Commissions (OC and ICRIC) have prepared three options and submitted them to the PARLIAMENT, for enactment (See 6.9).

5�4 LIST OF NON-CONTENTIOUS ARTICLES

The following are articles that were identified as being non-contentious because they required no more than technical amendments that did not change the effect of the article. The articles were amended because they were either badly drafted or badly translated.

1. Art 1. The Federal Republic of Somalia

2. Art 2. State and Religion

3. Art 3. Founding Principles

4. Art 4. Supremacy of the Constitution

5. Art 5. Official Languages

6. Art 6. The Flag and National Symbols

7. Art 7. The Territory of the Federal Republic of Somalia

8. Art 8. The Public and the Citizenship

9. Art 10. Human Dignity

10. Art 11. Equality

11. Art 12. Application of the Fundamental Rights

12. Art 13. Right to Life

13. Art 14. Slavery, Servitude and Forced Labour

14. Art 15. Liberty and Security of the Person

15. Art 16. Freedom of Association

16. Art 17. Freedom of Religion and Belief

17. Art 18. Freedom of Expression and Opinions

18. Art 19. Inviolability of Home

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19. Art 20. Freedom of Assembly, Demonstration, Protest, and Petition

20. Art 21. Freedom of Movement and Residence

21. Art 23. Freedom of Trade, Occupation, and Profession

22. Art 24. Labour Relations

23. Art 25. Environment

24. Art 26. Property

25. Art 27. Economic and Social Rights

26. Art 28. Family Care

27. Art 29. Children

28. Art 30. Education

29. Art 31. Language and Culture

30. Art 32. Right of Access to Information

31. Art 33. Just Administrative Decisions

32. Art 34. Access to Courts and legal defence

33. Art 35. The Rights of the Accused

34. Art 36. Extradition of the Accused and Criminals

35. Art 37. Refugees and Asylum

36. Art 38. Limitation of Rights

37. Art 39. Redress of Violations of Human Rights

38. Art 40. Interpretation of the Fundamental Rights

39. Art 41. Human Rights Commission

40. Art 42: Duties of Citizens

41. Art 55. The Houses of the Federal Parliament

42. Art 56. Performance of the Federal Parliament

43. Art 57. Joint Sittings

44. Art 58. Membership Criteria for the Federal Parliament

45. Art 59. Disqualification of Member of Federal Parliament

46. Art 60. Term of Office

47. Art 61. Responsibilities of Members of Federal Parliament

48. Art 62. Joint Committees of the Federal Parliament

49. Art 63. The Legislative Powers of the House of the People

50. Art 64. The Number of the Members of the HoP

51. Art 65. The Speaker and Deputy Speakers of the HoP

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52. Art 66. Sessions of the HoP of the Federal Parliament

53. Art 67. Dissolution of the HoP of the Federal Parliament

54. Art 68. Rules of Procedure of the HoP of the Federal Parliament

55. Art 69. The Powers of the House of the People of the Federal Parliament

56. Art 70. The Immunity of the Members of the House of the People of the Federal Parliament

57. Art 71. The Upper House of the Federal Parliament

58. Art 73. The Speaker and Deputy Speaker of the UH

59. Art 74. Sessions of the UH of the Federal Parliament

60. Art 75. Rules of Procedure of UH of the Federal Parliament

61. Art 76. Decision-making in the Upper House of the Federal Parliament

62. Art 77. Presence of Ministers in the Sessions of the Upper House of the Federal Parliament

63. Art 78. The Immunity of the Members of the Upper House of the Federal Parliament

64. Art 79. Draft Legislation

65. Art 80. Initiating New Laws

66. Art 81. Political Resolutions

67. Art 82. Draft Laws Initiated in the HoP

68. Art 83. Draft Laws Initiated in the UH

69. Art 84. Publishing and Keeping Records of Laws

70. Art 85. Assent to Legislation

71. Art 86. Challenging Legislation

72. Art 87. The President of the Federal Republic of Somalia

73. Art 88. Eligibility Criteria for the position of President

74. Art 91. Term of Office of the President

75. Art 92. Impeachment and Discharging of Duties of the President

76. Art 93. Resignation of the President of the Federal Republic of Somalia

77. Art 94. Acting President of the Federal Republic of Somalia

78. Art 95. Vacancy in the Office of the President

79. Art 96. Oath of the President of the Federal Republic of Somalia

80. Art 97. The Council of Ministers

81. Art 98. Criteria for Membership of the Council of Ministers

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82. Art 99. Responsibilities of the Council of Ministers

83. Art 101. Deputy Prime Minister

84. Art 102. Functions of the Minister, Dep-Minister, & State Minister

85. Art 103. Caretaker Government

86. Art 104. Oath

87. Art 106. Judicial Independence

88. 107. Judicial Procedure

89. Art 109B. The Formation of the Constitutional Court

90. Art 109C. The Powers of the Constitutional Court

91. Art 110. General Principles

92. Art 111A. The Judicial Service Commission

93. Art 111B. The Human Rights Commission

94. Art 111C. The Anti-Corruption Commission

95. Art 111D. Parliamentary Service Commission

96. Art 111E. Boundaries and Federation Commission

97. Art 111G. National Independent Electoral Commission

98. Art 111H. National Security Commission

99. Art 111I. Truth and Reconciliation Commission

100. Art 111J. The Office of the Ombudsman

101. Art 112. Appointment of Independent Commissions

102. Art 113. Regulations of Independent Commissions

103. Art 114. The Independent Offices

104. Art 115. Civil Service Values

105. Art 116. Protection of the rights of civil servants

106. Art 117. Appointment of High-Ranking Officials

107. Art 118. Civil Servants and Public Employees

108. Art 119. Civil Service

109. Art 123. The Federal Central Bank

110. Art 126. Security of the Federal Republic of Somalia

111. Art 127. Principles for the Security Forces

112. Art 128. Abuse of Powers

113. Art 129. The Office of the Ombudsman

114. Art 130. Security Agencies Laws

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115. Art 131. State of Emergency

116. Art 132. Provisions Applicable to an Amendment to the Constitution Proposed After the Expiry of the First Term of the Federal Parliament

117. Art 133. Provisions Applicable to an Amendment to the Provisional Constitution Schedule One (C), or a Law Mentioned in Schedule One (D) of this Constitution, Proposed Before the Expiry of the First Term of the Federal Parliament: The Oversight Committee

118. Art 134. Provisions Applicable to an Amendment to the Constitution Proposed Before the Expiry of the First Term of the Federal Parliament: The Review and Implementation Commission

119. Art 135. Mandates and Prescribed Timelines for Priority Institutions and Independent Commissions the Federal Parliament Shall Establish

120. Art 136. Adoption of a Constitutional Amendment During the First Term of the House of the People; Adoption of the Final Constitution

121. Art 137. Review of the Constitution of the Federal Republic of Somalia After Ratification by Referendum

122. Art 138. Coming into Effect of this Constitution

123. Art 139. Continuation of the Laws

124. Art 140. International Obligations

125. Art 141. Referendums

126. Art 142. Existing Federal Member States in Somalia

127. Art 143. Repeal of the Transitional Federal Charter

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6. PROPOSALS DEVELOPED FOR CONSIDERATION

6�1 INTRODUCTION

The Ministry of Constitutional Affairs along and the Ministry of Interior and Federal Affairs of the Federal Government of Somalia has organized a working session from 3rd – 18th of February 2020 for line Ministries in relation to the constitutional review process. The working session focused on different thematic areas including: a) allocation of powers/functional assignments; b) natural resources; c) federal justice and corrections model; d) fiscal federalism; e) system/structure of government; f) status of capital city.

The first six days of the Inter-ministerial thematic working sessions addressed the functional assignments or allocation of powers and involved 18 Ministries2 excluding MOIFAR and MOCA. The time was most profitably spent because of the important strategic lessons learnt. Some of these were:

1. Most of the concerned Ministries did not before this occasion fully address matter of the allocation of powers as it pertained to their disciplines between the different levels of government and neither had they the opportunity of engaging each other on the matter as well.

2. The functional allocation of powers was not a mechanical process that was determined without first fully addressing the guiding principles to provide a scientific basis to the allocation of powers.

3. The functional allocation of powers was about how best to deliver service to the public rather than structuring government.

4. This report will seek to present three perspectives:a. The proposal tabled by MOIFAR;b. A consolidation of the views prepared by the line-function Ministries; andc. An attempt at a scientific or objective approach to the allocation of powers.

This report will further propose a draft chapter on the Devolution of Powers and the related chapter on Public Finance for consideration.

2 Directorate of Environment (OPM); Ministry of Energy and Water Resource; Ministry of Agriculture; Ministry of Posts, Telecommunication and Technology; Ministry of Livestock, Forestry and Range; Ministry of Petroleum and Mineral Resource; Ministry of Fishery and Marine Resource; Ministry of Agriculture; Ministry of Health and Social Care; Ministry of Labor and Social Affairs; Ministry of Humanitarian Affairs and Disaster Management. Women and Human Rights Development; Ministry of Education; Ministry of Public Works and Reconstruction; Ministry of Transport and Civil Aviation; The Ministry of Ports and Marine Transport; Ministry of Commerce and Industry; and Ministry of Finance.

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6.2 PROPOSED OPTION ON ALLOCATION OF POWERS

According to article. 54, the Constitution gives the Federal Government exclusive powers and responsibilities

• Foreign Affairs;

• National Defense;

• Citizenship and Immigration and

• Monetary Policy.

In addition, the constitution requires further dialogue on the sharing of other powers, responsibilities and resources with respect to countries that use federal systems or have federal characteristics, considering these requirements of allocation of powers between the different levels of government.

• Values, needs and aspirations of citizens

• A governmental level with sufficient capacity to perform the required service

• The challenges the government is facing in implementing national agendas

• Promoting citizen participation, accountability, etc.

• Priority prioritization of capabilities

Table 4: Special and shared powers of Federal Government and Federal member states

The Special Powers of the Federal Government - (44)

Special Powers of the State - (29)

The Powers of the FGS & FMS - (12)

The General Powers of the Government of Somalia is 85Any powers not expressly stated here by the Residual Powers, shall be owned by the Federal Government

GENERAL POWERS1. Protect and defend the

National Constitution2. Protect the unity of

the country, the dignity and sovereignty, the sovereignty and the democratic process

3. Establishing and implementing foreign policy

1. Establishing an administrative, democratic and social development system based on the rule of law, the protection and protection of the Federal and State constitutions

1. Fight erosion and protecting the environment

2. Development of sports and education related to sports

3. Grazing and conservation

4. Sources of water5. Animal care

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GENERAL POWERS4. Decision-making

and management in matters related to race and immigration

5. National Religious Affairs

6. To set laws that are necessary for political parties and elections

7. National Elections8. Establishment of

national land policy and its use pattern

9. Documentation of creative rights

10. Setting unified standards related to measurement and weight

11. Land, Sea and Air Boundaries

12. Capacity Building and assisting Regional Governments

13. Develop policy and implement disaster relief and disaster management strategies

14. The enactment of a human rights law

15. Control of drugs and misconduct

2. Establishing a land policy at the State level

3. Fire services4. Managing local

disasters5. The issuance and

implementation of laws concerning civil servants in accordance with the Federal Government standards

6. Family Issues7. Registration of birth,

death, marriage and issuance of identity documents

6. Protect people’s rights and take steps to prevent abuse

7. Planning and implementing development projects

8. Wildlife and wildlife conservation

9. Tourism development policy

ECONOMIC POWERS1. Setting monetary policy2. Establishing and

implementing national policies and plans for economic and social development

1. Establishment plans for the State Government’s economic and social development

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ECONOMIC POWERS3. Regulate interstate

and foreign commerce and register business entities that operate in two or more states

4. Develop policy and implementation of national research and technology plan

5. To issue environmental protection laws, natural resources, places and historical, cultural and cultural heritage of the country

6. Determining the sources of revenue and imposing special taxes on the Federal Government and establishing, approving and administering the general state budget

7. Setting up agricultural and irrigation policy

8. National statistics and data public, economic and social

9. Determining and managing the utilization of rivers and lakes that connect two or more State Governments or cross-national borders

10. Setting up energy policy including electricity and gas

2. The establishment and collection of taxes as a source of revenue for the State

3. To administer and administer the state budget in accordance with the Federal Constitution

4. Administer and register business entities that operate within the state

5. To focus on agricultural and irrigation policy and research

33


ECONOMIC POWERS11. Setting up policy

and regulating trade between the State and foreign trade

12. Ports and airports13. Setting up policy,

coordination and expansion of government-funded institutions

TRANSPORTATION AND INFRASTRUCTURE1. Setting rules,

developing and managing• Air traffic• Trains• Sea transport

2. Construction and maintenance of highways connecting two or more States

3. Managing the Communication and Setting of Communication and Information Laws• Post and

communication including: telecommunication services, internet, media and any form of communication

4. Register and issue a driver’s license

1. Regulation of public transport, state roads and street lighting

2. Regulation and administration of recreational centers, libraries, museums, playgrounds and cultural activities, public parks, tourism and beaches

3. Managing information at the state level

34


SECURITY AND JUSTICE1. Establishing and

administering national defense and internal security forces

2. Deploying State defense forces to manage the federal state security or national disaster and need to be urgently addressed

3. Police security services including setting standards for recruitment and training of police

4. Impose an emergency statewide or in part and remove it when the situation is over

5. To issue laws and regulations regulating weapons and ammunition

6. The Supreme Court and the Constitution

7. Prison Issues

1. Appeals Courts and 1st Class at district and regional level

2. Establishing and administering the State Police to ensure the peace and stability of the State

HEALTH AND SOCIAL CARE1. Policy development

and implementation of the national health plan

2. Developing laws, policies and procedures for health professionals

3. Preserve the quality of medicines

1. State-level health facilities and services, e.g.• Pharmacies• Ambulance service• Developing primary

health care2. Issuance of licenses

and restrictions on grocery stores

1. Immunization and prevention of communicable diseases

2. Monitoring the quality of health services

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HEALTH AND SOCIAL CARE3. Veterinary services,

(except professional laws)

4. Graves5. Markets and lounges6. Fishing7. Partnerships8. Sanitation and

sanitation9. Managing waste, dirt

and poisons10. Monitoring the

quality of food, hotels, restaurants and public housing

EDUCATION1. Setting education

policy, quality standards, syllabus, exams and granting of university permits

2. Higher education at universities, research institutions and other higher education institutions

1. Administration of elementary, middle, high and vocational schools

2. Administering adult education colleges

1. Monitoring the quality of education

The proposed unbundled allocation of powers of the following functions have been consolidated in a table in annex B.

• Health

• Education

• Water

• Energy

• Livestock

• Environment

• Agriculture and Irrigation

• Ports

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6.3 SEEKING A LOGICAL APPROACH TO THE ALLOCATION OF POWERS

The meeting also had the opportunity to explore best practices, and in particular, the principle of subsidiarity as implemented in the European Union and its application in Somalia. The following arguments were considered:

6.3.1 Principles Underlying FGS Competencies under Article 54

1. Article 54 of the Constitution states that Foreign Affairs, National Defence, Citizenship and Immigration and Monetary Policy are matters over which the Federal Government has exclusive competencies.

2. The underlying rationale for giving the Federal Government exclusive competency in respect of these matters is:

(a) Under international law, only the FGS is recognized as representing the State (e.g. foreign affairs) or matters that are integrally part of Somalia as an internationally recognized state ( e.g. citizenship and immigration).

(b) Matters that can only function at a national level and apply across all or more than a member state such as monetary policy (the principle of uniformity, national standards and equal treatment).

(c) Matters such as national defense motivated by the ‘one nation and national integrity’ principle.

3. Accordingly, in deciding what matters that should be a national competency (whether exclusive of shared) should be based on the following principles:

(a) status of Somalia as a single internationally recognized state(b) principle of uniformity

• to maintain economic unity• essential national standards• minimum standards for the rendering of services

(c) principle of one nation and national integrity• national security• prevent unreasonable action by a subnational government which is

prejudicial to the interests of another subnational government or the country as a whole

6.3.2 Principles Underlying FMS Competencies under Section 52

1. Art 52 implies that the matters in the list are shared powers. Thus, the FGS and FMS have to collaborate on these which range from water, agriculture, forestry, animal husbandry, environment, health education to traditional and religious matters etc.

2. The underlying rationale for requiring the FGS in a federal state to collaborate

37


with FMS on these and other matters that affect their territories is the principle of subsidiarity. The principle is that in matters that do not fall within the exclusive competence of the FGS, the allocation of competencies should be devolved to the most immediate levels of government to ensure both political autonomy and service delivery. This should be the core organizing principle for the allocation of powers and functions in a federal system.

3. In order to illustrate how these principles can be applied to the shared allocation of all of the matters in Article 52, we use education as an example of how this can be done. However, to do so, it is important to confirm that the sharing of a competency in respect of a matter (such as education) is not a simple division of powers – federal or regional, it is a carefully articulated regime sharing out different elements of the listed matter (such as education) between the spheres of government (federal, regional and district) and the different methods of government (legislation, policy and administration) and that the example is not in any way seeking to pre-empt the allocation that the FGS or FMSs may decide on in respect of the matter of education.

6.3.3 The Allocation of Competencies - Education as an Example

1. Education as a matter listed in section 52 has many facets that need to be disaggregated ranging from schools, training colleges, universities (including the governance of these institutions), curricula, grades, examination, certification, teaching profession, discipline, inspection etc.

2. The governing principles for the allocation of competencies are in the case of education: the FGS principle of uniformity and setting standards on the one hand, and the FMS principle of subsidiarity on the other. Applying these principles to the different facets of education in the allocation of competencies, it is possible to structure a shared competency that avoids overlap and conflict.

3. The competency may take the form of legislation (a legislative form of competency) or policy, budget allocation or oversight (an executive form of competency) or administration and implantation (an administrative competency). In other words, legislation, policy and administration are methods that give effect to competencies in respect of listed matters such as education. These different methods of competency may be allocated to the three spheres of government (national, regional and district) in any number of ways but always driven by what is the most appropriate sphere and method.

6.3.4 Allocation of Legislative Competencies

1. FGS legislative competence. Because uniformity in standards across the country (education grades, examination standards, certification and transportability of certification, teacher qualifications, establishment of tertiary institutions, compulsory scholar attendance (etc) is required to give equal effect to the right

38


to education in the Constitution and Somalia’s international obligations3, it is also economically necessary to do so in a developing economy which is so reliant on skills and knowledge.

2. FMS legislative competence. Applying the principle of subsidiarity, the most immediate level for the establishment and regulations within its territory is the FMS. The legislative competency could be to enact a FMS Schools Act to establish public schools, regulate private and religious schools, determine the governance structures of schools such as school boards, the employment and discipline of teachers, the appointment of school inspectors, discipline of children, additional curricula, school fees etc. In other words, the guts of a legislative competency on education would lie with the FMS.

6.3.5 Allocation of Executive Competencies

1. FGS executive competence. Again, the kind of policy or norms that is appropriate to be developed at federal level is the need to have uniformity of standards across the regions. And the kind of policies that would be federal in nature would be policies on learning, teaching and training materials, curricula, school calendars, managing sexual harassment, corporal punishment, rural education etc.

2. FMS executive competence. FMS executive competence would flow from the FMS Schools Act which would include decisions on the building of new schools, the extension of existing schools, and the closure of schools.

6.3.6 Allocation of Administrative Competencies

1. The administrative competence for education would primarily be devolved to the FMS, which would have the competence to administer the establishment, for the maintenance and closing of schools, the appointment of headmasters and teachers (of course this could be left to school boards under the regional state legislation), the transfer of teachers, inspection of schools, the processing of scholar, parent and teacher complaints.

2. Note that in some federal states, the regional state legislation imposes these administrative functions on district government or school boards. The power proposed in the text below will permit a FMS to devolve these powers to local government or school boards under the FMS Schools Act.

3. In conclusion, what the above illustrates is that the complex regulation of the competency for education can be harmonized across national and regional governments and across legislative, executive and administrative functions.

4. The work session was a good lesson in how best to deal with the negotiation between the FGS and FMS that was necessary.

3 International Convention on Economic, Social and Cultural Rights

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6.3.7 A Possible Approach to the Negotiations

When considering these principles, it became clear that our approach to the negotiations would include the agreements on a revised set of formulations in the existing Chapter 5 as per 6.2 that would need to be concluded in the following areas:

1. The structure of the government; specifically, whether it should have two or three levels.

2. Once this is done, Art 50 which addresses the principles of federalism should be settled.

3. These principles should be supported by the agreement to promote a cooperative relationship among the different levels of government. The value of this is that it promotes good cooperation by relying on an Inter-State Cooperative Council that would strengthen national unity, ensure peace and security, and promote national socio-economic development.

4. The next agreement to be concluded relates to the proposal that residual powers should be with the federal level. In return, Member States should be entitled to defined exclusive powers and shared power.

5. Agreement is required regarding the specific basis on which the Federal Government is able to intervene in a member state.

6.4 PROPOSED CHAPTER ON THE DEVOLUTION OF THE POWERS6.4.1 The Structure and Levels of government

1. The government of the Republic is composed of three levels:• The Federal Government level;• Federal Member State Government level; and• Local government level.

2. The Federal Member State Governments must be structurally established to fulfill their functions in accordance with this Constitution and their respective Member State constitutions.

6.4.2 The Number and Boundaries of the Member States and Districts

1. The Republic comprises the following Federal Member States:• Galmudug;• Hirshabelle;• Jubaland;• Puntland; • South West; and• Any new Member state established in terms of sub-articles (4) and (5).

2. Any territorial dispute between the Federal Member States or one arising from sub-article (1) must be resolved amicably by the Inter-State Cooperative Council.

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If that amicable attempt to resolve the dispute fails, that dispute may be referred to the Constitutional Court for determination.

3. Any determination by the Constitutional Court in terms of sub-article 4, any alteration to the boundaries of a Federal Member State may be made only if- An agreement is reached between the Federal Member States concerned; and if the residents of those States approve the alteration in a referendum.

4. On the recommendations of the Boundaries and Federation Commission, the Federal Parliament may decide on the admission of any new Member state to the Republic provided that the boundaries of any new Federal Member state are based on the boundaries of the administrative regions as they existed before 1991; and at least two or more of these administrative regions agree to merge and form a Federal Member State.

5. Sub-article (4) does not apply to the former administrative region of Banadir if it is granted the status of a Federal Member State.

6.4.3 Principles of Federalism of the Republic of Somalia

1. All levels and institutions of government must adhere to the following principles:(a) The powers and functions of each level of government are devolved in

accordance with this Constitution; and (b) the principle that powers and functions are exercised at the level where it is

most efficiently organized;(c) Each level and institution of government must enjoy an equitable share of

resources, revenues and services;(d) Each level must –

• preserve the peace and the nationality unity and indivisibility of the Republic

• cooperate with other levels and institutions of government;• Respect the constitutional status, institutions, powers and functions of

other levels and institutions of government;• Not assume powers or functions except those conferred on them by this

Constitution and the laws contemplated in sub-article (1);• Inform other levels of government of those policies and activities that may

have an impact on other levels and institution of government;• Work with other levels and institutions of government on the policies that

facilitate the planning and implementation of joint development projects;

2. The Federal Parliament and Federal Member State Parliaments must pass legislation devolving powers and functions in accordance with sub-article (1)(a)(ii); and give effect to the principles in sub-article (1)(b) and (c).

3. Disputes between Federal Government and Federal Member States, and among

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the Federal Member States must be resolved by dialogue, failing which, by a determination of the Constitutional Court.

6.4.4 Co-operative Relationship

1. The Federal Parliament must enact a special law to facilitate co-operation between the different levels and institutions of government and regulate the procedure for the resolution of disputes contemplated in article 50.

2. In order to ensure the existence and development of co-operative relations between the Federal Government and the Federal Member States, an Inter-State Co-operative Council is established to facilitate a unified political approach to those relations including strengthening national unity; ensuring security and peace of the country; promoting national socio-economic development and developing uniform market policies; promoting the welfare and improving the economy; and ensuring information sharing between the different levels of government.

6.4.5 Powers Exclusively Allocated to the Federal Government

1. The Federal Parliament has the exclusive power to (a) amend this Constitution; (b) pass legislation with regard to the matters listed in Schedule 2 (A); (c) in order to set national standards and frameworks, pass legislation with

regard to the matters listed in Schedule 2 (B); (d) assign any of its legislative or executive powers to any legislative body in

another level of government.

2. Subject to sub-article (13) (d), the Federal Government has the exclusive power to administer the laws contemplated in sub-article (13) (b) and to establish any necessary state institutions to do so.

3. Any power not exclusively allocated to a Federal Member State Government in terms of this Constitution is a power exclusively allocated to the Federal Government.

6.4.6 Powers Exclusively Allocated to Member State Governments

1. In respect of its region, a Member State Parliament has exclusive legislative and executive power with regard to the matters contained in – Schedule 2 (C) but only to the extent that legislation does not conflict with the laws passed by the Federal Parliament in terms of Schedule 2 (B) (1).

2. A Federal Member State Government has the exclusive power to- (a) Establish any necessary state institutions to administer the laws contemplated

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in sub-article (16);(b) Assign any of its legislative or executive powers to local governments in its

region.

3. In the absence of a Federal Member State law contemplated in sub-article (16), the Federal Legislature may pass a law giving effect to its legislated policy, national standard or guideline and enforce that law in the Federal Member State until the Federal Member State Parliament passes a law in terms of that sub-article.

6.4.7 Art 53: Federal Government Intervention

1. The Federal Government must-(a) Protect every Federal Member State against internal and external disturbance;

and(b) Ensure that each Federal Member State is able to function in accordance

with the Constitution.

2. The Federal Government may deploy the National Defense Force to address a deteriorating security situation within a Member State-

(a) if the security forces of a Federal Member State are not able control that situation and the Parliament of that Member State requests federal intervention;

(b) if a Federal Member State endangers the constitutional order of the Republic by violating the Constitution or refusing to abide by a decision of the Constitutional Court and the Upper House of the Federal Parliament votes with a two-thirds majority for federal intervention.

6.5 PROPOSED REVISED CHAPTER ON PUBLIC FINANCE6.5.1 Art 122 Principles of Public Finance

The following principles shall guide all aspects of public finance at all levels of Government:

1. There shall be transparency and accountability in the use of public resources;

2. Public resources shall be allocated equitably for the benefit of every citizen;

3. Public resources shall be used responsibly and sustainably to safeguard the interests of current and future generations;

4. There shall be efficiency, effectiveness and value for money in public expenditure; and

5. National resources shall be shared equitably between and within all levels of Government.

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6.5.2 Art 122 (A) Criteria for Determining Equitable Allocation of National Resources

1. The following criteria shall be taken into account in determining the equitable allocation of national resources:

(a) The need to ensure that each level of Government is able to undertake the functions assigned to them;

(b) The need to ensure that all citizens benefit from similar levels of services;(c) The need to promote equitable development in throughout the Republic of

Somalia;(d) The need to ensure that resources are allocated in a predictable manner, and

that levels of spending are consistent with macroeconomic stability; and(e) The need to cater for national obligations such as the repayment of public

debt.

2. The criteria referred to in sub-article (2) shall apply to the allocation of all national resources, including revenues arising from national taxes, natural resources and any other source of national revenue.

6.5.3 Art 122 (B) Independent Commission on Resource Sharing

1. There is established an Independent Commission on Resource Sharing.

2. The Commission shall consist of the following persons appointed by the President:(a) a Chairperson and Deputy Chairperson, who shall be nominated by the

President and approved by the Federal Parliament;(b) [5] persons who shall be nominated by the Federal Member States and

approved by the Federal Parliament; and(c) [2] persons who shall be nominated by the President and approved by the

Federal Parliament.

3. The persons nominated under sub-article (2) shall have extensive experience in financial and economic matters and shall not hold any public office.

4. The principal function of the Commission shall be to make recommendations concerning the basis for equitable sharing of national resources-

(a) between the Federal Government and Federal Member States; and(b) between Federal Member States.

5. In formulating its recommendations, the Commission shall be guided by the principles of resource sharing established in this Constitution.

6. The Commission shall submit an annual report to the President, the Federal Parliament and the Federal Member States half way through the financial year. The report shall-

(a) set out indicative resource shares for the Federal Government and each of the Federal Member States for the next [4] years, taking into account the

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requirement under this Constitution that resources are allocated in a fair and predictable manner;

(b) compare actual budget shares in the current financial year with the recommendations of the Commission; and

(c) propose budget shares for Federal Government and each of the Federal Member States for the next financial year.

7. The Federal Parliament shall consider the Commission’s report and pass a resolution to approve it, or to amend it.

8. If the Federal Parliament-(a) passes a resolution to approve the report within sixty days, the Federal

Government shall adopt the budget shares recommended by the Commission in the budget estimates for the next financial year; or

(b) passes a resolution to amend the report within sixty days, the Federal Government shall adopt the amended budget shares in the budget estimates for the next financial year; or

(c) does not pass a resolution on the report within sixty days, it shall be regarded as having been approved by the Parliament without amendment, and the Federal Government shall adopt the budget shares recommended by the Commission in the budget estimates for the next financial year.

6.5.4 Art 122 (C) Revenue Raising Powers

1. A law enacted by the Federal Parliament shall establish the national revenues to be imposed and regulated exclusively by the Federal Government.

2. No tax or fee may be levied, waived or varied at any level of Government except as provided for by legislation.

6.5.5 Art 122 (D) Consolidated Revenue Fund

1. There shall be a Consolidated Revenue Fund into which all revenue or other money raised or received by, or on behalf of, the Federal Government shall be paid.

2. The revenue or other money referred to in sub-article (1) does not include revenue or other money -

(a) that is payable by a federal law into a national public fund established for a specific purpose;

(b) that may, under a federal law, be retained by the government institution that receives the revenue or other money for the purposes of defraying its expenses.

3. Money may only be withdrawn from the Consolidated Revenue Fund –

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(a) to meet expenditures charged on the Fund by this Constitution or federal law;

(b) as authorized by an appropriation law or supplementary appropriation law; or

(c) as authorized by a Vote on Account in the event that the appropriation law in respect of any Financial Year has not come into operation by the beginning of that Financial Year.

4. No money shall be withdrawn from the Consolidated Revenue Fund unless the withdrawal has been recorded by the Auditor General.

5. No money shall be withdrawn from any national public fund other than the Consolidated Revenue Fund, unless authorized by a federal law and recorded by the Auditor General.

6.5.6 Art 122 (E) Public Borrowing

1. Subject to the provisions of this Constitution, the Federal Government may borrow from any source.

2. The Federal Government shall not borrow, guarantee, issue a security or raise a loan on behalf of itself, a Federal Member State or any other public institution, authority or person except as authorized by a federal law.

3. A law enacted by the Federal Parliament under sub-article (2) shall provide that the Federal Government shall-

(a) submit the general terms and conditions of any proposed loan or guarantee to Parliament for approval;

(b) place an annual ceiling on new borrowing and acquisition of guarantees by the Federal Government.

4. Federal Member States may only borrow from internal sources with the approval of the Federal Government.

6.5.7 Art 122 (F) Public Debt

1. The following shall be recorded in the public debt -(a) all borrowing undertaken by the Federal Government under article 122E (2),

whether through the acquisition of loans or the issuing of securities;(b) all guarantees issued by the Federal Government under article 122E (2);(c) all loans made by the Federal Government to a Federal Member State, any

other public institution, authority or person under article 122E (2).

2. Any moneys received by the Federal Government in respect to loans or loan repayments shall be paid into the Consolidated Revenue Fund, or any other public fund established for the purpose of the loan as authorized by a federal law.

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3. Public debt shall be charged to the Consolidated Revenue Fund, unless a federal law provides for charging all or part of the public debt to other public funds.

4. The Federal Government shall make an annual report to Parliament on the public debt.

6.5.8 Art 122 (G) Annual Budget Estimates

1. The annual budget estimates of the Federal Government shall be laid before the Federal Parliament at least two months before the end of the financial year preceding the year to which the annual budget relates.

2. The annual budget estimates of the Federal Government shall include –(a) estimates for all revenue, including national revenues or other monies raised

or received by the Federal Government that are to be shared with Federal Member States;

(b) estimates for all expenditure, including funds that are to be transferred to Federal Member States;

(c) proposals for financing any anticipated deficit during the budget year;(d) proposals regarding borrowing or any other form of public liability that will

increase public debt during the budget year.

3. A law enacted by the Federal Parliament shall provide for -(a) the structure, scope and contents of the budget of the Federal Government

and the Federal Member States;(b) the process and timetable for consultation on budget preparation between

the Federal Government and Federal Member states.

6.5.9 Art 122 (H) Appropriation Bill

1. The annual budget estimates approved by Parliament shall be contained in an Appropriation Bill.

2. The Appropriation Bill shall be laid before Parliament to authorise the withdrawal from the Consolidated Fund of the monies needed to fund the budget expenditures and to appropriate them for the purposes specified in the Bill;

3. If the Appropriation Bill in respect of any financial year has not been assented to before the start of that financial year, the President may authorise a Vote on Account to provide for withdrawal of monies from Consolidated Fund to meet the expenditure necessary to carry on the services of Government. A law enacted by the Federal Parliament shall provide for the operations of the Vote on Account.

4. Supplementary budget estimates may be laid before Parliament, if in respect of any financial year if -

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(a) the amount appropriated under the appropriation law for that financial year is for any purpose insufficient; or

(b) a need has arisen for expenditure for a purpose for which no amount has been appropriated.

5. The supplementary budget estimates approved by Parliament shall be contained in a supplementary appropriation law to authorize the withdrawal from the Consolidated Revenue Fund of the monies needed to fund the supplementary budget expenditures.

6.5.10 Art 122 (I) Financial Control and Accountability

1. The Federal Parliament shall enact a law to ensure expenditure control, preparation of accounts and transparency and accountability in the use of all public funds at all levels of Government.

2. The Federal Ministry of Finance shall, through the Accountant General’s office, be responsible for setting accounting standards for all public institutions, authorizing all payments by the Federal Government, causing financial records to be maintained and preparing Government’s annual financial statements.

3. Any public official who has been designated responsibility for the management of public money, assets and liabilities within a public institution shall bear ultimate responsibility for overspending and illegal or improper payment by the institution during his or her tenure, even if he or she has ceased to hold that office.

6.5.11 Art 122 (J) Public Procurement and Concessions

1. Public procurement, concessions and disposal of assets shall be conducted at all levels of Government in a way that maximizes efficiency, fairness, integrity, transparency, competition and cost effectiveness.

2. The Federal Parliament shall enact legislation to govern public procurement, concessions and disposal of assets at all levels of Government in line with principles stated in sub-article (1).

3. Federal Member States may only enter into concessions or disposal agreements in respect of national assets located within their boundaries with the prior approval of the Federal Government. Such approval shall be granted by the President of the Federal Republic on the recommendation of the Cabinet of the Federal Government.

6.5.12 Art 123(A) Central Bank

1. The Central Bank of Somalia shall be the central bank of the Republic of Somalia

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and it shall be the only authority to issue the currency of the Republic of Somalia.

2. The Central Bank of Somalia shall be responsible for –(a) maintaining domestic price stability in the interest of balanced and sustainable

economic growth of the Republic of Somalia; and(b) fostering and maintaining the efficient and effective operation of the banking

system.

3. The Central Bank of Somalia shall not be subject to the direction or control of any person or authority in the exercise of its powers or performance of its functions.

4. A law enacted by the Federal Parliament shall provide for the composition, powers, functions and operations of the Central Bank of Somalia.

6.5.13 Art 123 (B) Auditor General

1. The Office of the Auditor General shall be the supreme auditing institution for the assets of the Republic of Somalia.

2. The Office of the Auditor General shall be headed by the Auditor General and shall not be subject to the direction or control of any other person or authority in the exercise of its powers or performance of its functions.

3. The Office of the Auditor General shall-(a) audit Federal Government institutions for financial compliance and

performance;(b) audit all public accounts, funds, projects, programs, public offices and

public bodies, state owned enterprises and similar bodies of the Federal Government of Somalia;

(c) ensure that Federal funds that are transferred to the Federal Member States, including national revenues or other monies raised or received by the Federal Government and shared with Federal Member States, are audited;

(d) register all contracts, loans, guarantees, presidential decrees and other agreements of the Federal Government of Somalia that have financial implications;

(e) register the immoveable and moveable assets of the Federal Government of Somalia;

(f) record the withdrawal of monies from the Consolidated Revenue Fund and any other public fund.

4. The Office of the Auditor General shall provide reports directly to the House of the People, with copies to the President of the Republic, the Prime Minister of the Federal Government, the Minister of the Federal Government responsible for Finance, and the responsible head of the audited entity.

5. The Auditor General shall submit the reports to the Government Prosecutor if

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fraud, corruption or other financial impropriety is detected in the course of audit.

6. All reports issued by the Office of the Auditor General shall be prepared for publication, and the Auditor General shall decide which portion of a report shall be published.

7. A law enacted by the Federal Parliament shall provide for the composition, powers, functions and operations of the Office of the Auditor General.

6.6 PROPOSED CONSTITUTIONAL PRINCIPLES ON NATURAL RESOURCE REVENUE SHARING6.6.1 Principles Established in the Baidoa Agreement

The June 2018 Baidoa Agreement on Petroleum & Mineral Revenue Sharing establishes a number of revenue sharing principles that provide guidance to the Constitution redrafting process. These include:

1. ‘Consideration is given to different needs of regions with access to natural resources and those without’, which suggests that producing states should receive a special share of natural resource revenues to compensate for the impact of production.

2. ‘Ensure that essential services are delivered in an equitable manner’, which suggests that although consideration should be given to the different needs of producing and non-producing regions, overall fiscal disparity between Federal Member States should be modest.

3. ‘Cognizant that the sharing of natural resources should be based on future requirements of the country’, which suggests the desire to save a share of revenues and create an investment fund for future generations.

The Baidoa agreement also includes specific revenue share for a variety of petroleum and mineral revenues, divided across the Federal Government, Federal Member States and Banadir region (see annex C). It does not indicate the duration of the agreement.

6.6.2 Proposed Provisions on Natural Resources as an Expansion of Article 44 of the Provisional Constitution

The principles established in the Baidoa Agreement could be appropriately captured by an expansion of Article 44 of the 2012 Constitution (Natural Resources). Possible language is suggested as follows:

1. The allocation of the natural resources of the Federal Republic of Somalia shall be negotiated by, and agreed upon, by the Federal Government and the Federal Member States in accordance with this Constitution.

2. Such agreements shall be established between the Federal Government of Somalia and all Federal Member States, and shall be reviewed every five years.

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3. The agreements shall indicate responsibility for exploitation and management of natural resources and how natural resource revenues shall be shared between the Federal Government of Somalia and the Federal Member States.

4. Natural resource revenue sharing shall be based on the principle of the fair distribution of resources, while giving consideration to the special needs of producing regions.

5. A dedicated natural resource revenue fund shall be established so that a portion of natural resource revenues may be saved for future investment and economic sustainability.

6. Revenues shall be shared between the Federal Government and Federal Member States in line with the shares established in the natural resource agreements, after setting aside revenues into the dedicated natural resource revenue fund.

A decision will need to be taken as to whether Banadir Region, which is a party to the Baidoa Agreement, will be specifically identified in the Constitution as a party to the natural resource agreements.

6.7 OPTIONS ON THE FEDERAL JUSTICE AND CORRECTIONS MODEL6.7.1 Jowhar Agreement on Justice Model

The Minister of Justice of the FGS and Five Justice Ministers of the existing FMS preliminary agreed and signed “Political Agreement on Justice and Correction Model of Somalia” on 24th January 2018 in Jowhar, known as “Jowhar Version” (See annex D).

The Jowhar Version consists of 13 “Thirteen Sections” that are:

1. Structure of the Courts;

2. Jurisdiction of Constitutional Court/s;

3. Hierarchy of Ordinary Courts;

4. Jurisdiction and Competency of the Courts;

5. Judicial Service Commission (JSC);

6. Judicial Training Institute;

7. Attorney General Offices;

8. Work Liaison of Justice Ministries (FGS/FMS);

9. Custodial Corps;

10. Bar Associations;

11. Public Notaries;

12. Reform of the Constitution and Judicial Laws;

13. Judiciary Budget.

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After the Jowhar version agreement, there were some concerns expressed by the Federal Government considering the capacity, potential overlapping jurisdictions as well as financial and economic implications.

6.7.2 Federal Government’s Proposal on the Justice and Corrections Model

Following a debate and deliberations among members of the Council of Ministers, on August 6th 2018, the cabinet has finally adopted “The Political Agreement on Justice and Correction Model of Somalia” known as “Cabinet Version” (See annex E) with some changes and proposals made to “Jowhar Version” on the following:

1. Structure of the Courts;

2. Jurisdiction of Constitutional Court;

3. Hierarchy of Ordinary Courts;

4. Jurisdiction and Competency of the Courts;

5. Judicial Service Commission; and

6. Judicial Training Institute.

Table 5: Structure of the Courts

Jowhar Version Cabinet Version

Federal Constitutional CourtOne Federal Constitutional Court for all (FGS/FMS)

One Federal Supreme Court One Federal Supreme CourtFMS High Courts with Constitutional Benches

FMS Appellate Courts (FMS highest court)

FMS Appellate Courts FMS Regional Courts, andFMS Regional Courts, and FMS District CourtsFMS District Courts

Table 6: Hierarchy of the Ordinary Courts

Jowhar Version Cabinet VersionFirst Instance: District and Regional Courts;

First Instance: District and Regional Courts;

Second Instance: FMS Appellate Courts; Second Instance: FMS Appellate Courts; Third Instance: FMS High Courts; and with Constitutional Benches

Third Instance: Federal Supreme Court.

Final Instance: Federal Supreme Court.

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Table 7: Jurisdiction and Competency of the Courts

Jowhar Version Cabinet Version1. As indicated in the Provisional

Constitution of Somalia, Article 54, all cases related to foreign affairs, national defence, citizenship and immigration, monetary policy, safety of aviation, counterfeiting of national currency, crimes against the state and crimes committed by employees of the Federal Government while discharging their official duties and other powers negotiated and agreed upon by the Federal Government of Somalia and FMS will be only considered to fall down within jurisdiction of the FGS.

2. All other cases (criminal or civil) will fall down within jurisdiction of the FMS.

1. The cabinet version is as same as Jowhar version however, the cabinet proposed in its session that the Federal Government and FMS will further deliberate and agree on the jurisdictions during the negotiation process pertaining to the functional assignments between the FGS and FMS (reference from cabinet notes).

Table 8: Judicial Service Commission

Jowhar Version Cabinet Version1. As indicated in Articles “109A and

111A” of the Provisional Constitution of Somalia, the FGS will have “High Judicial Service Commission” while; Each one of FMS will have “High Judicial Management Committee”

2. Their powers and work relationship between them will be clarified in “Federal Law of Judicial Organizations” which will be drafted after this agreement is approved by the National Consultative Council of Somalia.

1. As designated in Articles “109A and 111A” of the Provisional Constitution of Somalia, there will be only one “Judicial Service Commission” for Both FGS and FMS;

2. Judicial Service Commission will have powers and responsibilities of recruitment, removal, firing, promotion and disciplinary actions against all judges at FGS and FMS including judges sitting in the Federal Constitutional Court and also Attorney General Offices.

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Table 9: Judicial Training Institute

Jowhar Version Cabinet Version1. There will be only one Federal Judicial

Training Institute to train judicial personnel. The Institute should come under Federal Ministry of Justice & Judicial Affairs and shall have a standardized curriculum for core subjects.

The cabinet version is as same as Jowhar version however, the cabinet proposed in its session that there shall be two Training Institutes:1. Training Institute of the newly

graduated legal professionals, this comes under the Ministry of Justice and Judicial Affairs of the FGS.

2. Judicial Training Institute, for capacity building of Judges, Attorney Generals and Lawyers which comes under the Judicial Service Commission.

(Reference from cabinet notes).

6.7.3 Proposed Option on the Federal Justice and Corrections Model

6.7.3.1 Structure of the Courts

The structure of the courts is dealt with in article 108 of the Provisional Constitution. The Cabinet version requires no amendment to the article. However, it is necessary to provide for specialist courts in the future such as labour courts, tax courts and election courts. The text would read as follows: “(d) any other specialist court established by a federal law.”

6.7.3.2 Jurisdiction of the Constitutional Court

Constitutional Court is established by article 108 with final authority on all constitutional matters (article 109(2)(b)) – accordingly, there is no need to amend the provisions of the Constitution in so far as the jurisdiction of the Court is concerned.

To the extent that this constitutes a source of contention, the justification for the Constitutional Court being the final court on constitutional matters is the Supremacy of the Constitution and the Rule of Law, a critical element of which is legal consistency and certainty across all jurisdictions.

However, in order to increase the participation of FMS in the process of constitutional adjudication, three proposals are made:

• Jurisdiction is given to the FMS High Court to hear all constitutional matters arising within the FMS as a court of first instance or on appeal from regional or district courts provided that the High Court decision is ‘open to appeal’ to the Constitutional Court for reasons related to legal consistency and certainty.

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But what is appealable and what discretion is given to courts to grant leave to appeal is a matter for court rules.

• Two FMS judges sit ad hoc on the Constitutional Court on any appeal from the FMS High Court concerning a constitutional matter.

• In addition, article 108 of the Constitution ought to be amended to make provision for the establishment of other specialized courts such as labour courts, tax courts, competition courts, in the future.

6.7.3.3 Hierarchy and Jurisdiction of the Courts

• District and Regional courts: These courts are courts of first instance in respect of all matter, whether criminal, civil or constitutional.

• FMS High Court: This court is an appeal court from the judgements of the district and regional courts. It is proposed that in respect of constitutional matters, the High Court ought also to be a court of first instance.

• National Supreme Court: This is a court of appeal in respect of all matters that are appealable from the FMS High Court, excluding constitutional matters.

• Constitutional Court: The Court performs its functions as currently outlined in article 109A read with 109C namely both an appeal court and a court of first and final instance in respect of certain limited cases.

6.7.3.4 Judicial Service Commission

The JSC is established under article 109A. Although the Council of Ministers and the Somali Law Society have endeavoured to appoint the members of the Somali Bar and three people with high reputation under article 109A (2)(d) and (f) to ensure representation from the FMS as a matter of practice, it is proposed, in order to further increase FMS representation on the appointment, discipline or transfer of judges, that on all issues affecting FMS judges, four members from the affected MS become ad hoc members of the JSC. The proposal is that the political head of the FMS, the chief justice of the FMS, a member of the FMS bar and a person representing civil society ought to should constitute the FMS ad hoc members of the JSC.

6.7.3.5 Supreme Court

Article 108 contemplates more than one level of federal courts. The Cabinet proposal is that there should only be one level – a national supreme court with appellate jurisdiction on all matters (subject again to court rules of what is appealable and the discretion of the courts to grant or refuse leave to appeal). To ensure legal consistency and certainty, it is essential to have a court of final jurisdiction to determine (subject again to what is appealable) disputes in respect of all matters.

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A possible variation is to make the FMS High Court the final court in respect of matters arising from FMS law and disputes involving FMS parties only subject to those matters or disputes that raise constitutional and human rights issues and disputes that affect more than FMS or parties in other FMS. An example may be a contractual dispute between two parties both resident in the FMS in which case the FMS High Court is the final court and a contractual dispute between parties from different FMS in which case the National Supreme Court would be the court of final instance.

6.8 OPTIONS ON THE ELECTORAL MODELThe Provisional Constitution of Somalia adopts a democratic system of governance on the basis of “inclusive representation of the people, a multiparty system…” where the power of self-governance begins and ends with the people who shall elect their representatives in a universal suffrage of an open, direct, secret and free ballot. The PC does not define the electoral system to allow citizens exercise this right and choose their representatives, however, it indicates the main principles that guide the electoral system:• Universal suffrage: Gives the right to all qualified citizens to participate in the

elections without discrimination (Art.22 and 46);• An open, direct, secret and free ballot: A mainstream electoral system with one-

person, one-vote. (Art. 64 and 72);• Prevents foreseeable crisis arising from the competition and the result of the

election. (Art.46);• Simple and understandable rules. (Art.46): Simple to implement and easy for voters

to understand.

As per the PC, the FGS shall hold elections in every 4 years on the basis of electoral law and constitution. However, without a defined electoral system and constituency delimitation, it is not an easy task to hold one-person, one-vote due to a variety of impediments that hinder to realise it in light of the said limitations, it became imperative to consider a number of a context related electoral models that can be deliberated and negotiated by the FGS and FMS leaders before it’s enacted into a law.

6.8.1 Considered Options on the Electoral Model

Few months after the formation of the government in 2017, the Federal Government of Somalia formed an Electoral Task Force; a group of national experts consisting of the Ministry of Interior, Federal Affairs and Reconciliation, National Independent Election Commission, and representatives from key stakeholders and institutions. The Task Force was established to search for viable options and design an agreeable electoral system on the basis of the constitutional principles and draft an election law.

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The electoral system is the rules and procedure which determine how a citizen can exercise his/her right to elect and be elected for a public position. In this regard, there are different electoral systems used around the globe i.e. plurality/majoritarian, proportional representation and mixed systems.

• Plurality (first past the post): winner takes all.

• Majoritarian: depends on the predetermined majority such as more than 50%.

• Proportionality: Each party will get seats equivalent to percentage of the votes they obtain from the valid votes.

• Mixed system is a combination of two or more systems.

The Task Force started to study the different types of electoral systems applied worldwide, consulted subject matter experts and reviewed historical background of Somalia elections (56; 59; 60; 64 and 68) and proposed options reflecting their findings to the National Security Council (later named National Consultative Council) for their consideration.

6.8.1.1 Options Considered (the electoral systems)

• List proportional representation system (List PR system): This is the system mostly used in Somalia since the independence and produces balanced results where each party wins seats equivalent to the percentage they get from the votes which reduces the disparity between a party’s share of the national vote and its share of the parliamentary seats. Following are the types proposed for the Somalia case:

ෙ Proportional representation closed list: in this type, voters only vote for the party they support and don’t have preference to choose between candidates.

ෙ Proportional representation open list: voters can vote for their preferred candidates from a list on the ballot paper. Candidates with highest votes in each political party list will be declared as winners of the seats of that party.

• First past the post (FPTP); the winner takes all: This electoral system is based on single member constituency. Candidate with most votes will be elected as a member of parliament (MP). Votes obtained by others will be wasted even if their aggregate votes are more than the elected MP.

• Mixed system: This is a system that combines both Proportional Representation and first Past the Post.

6.8.1.2 Other Options Considered (constituency delimitation)

Another problem which relates to designing a suitable electoral system is the

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delimitation of electoral districts; an electoral unit into which eligible electors are organized to elect representatives. Somalia aims to move beyond the traditional clan based formula towards a universal and equal suffrage, and party-based system. In this regard, following options were proposed for deliberation and consideration:

• Single constituency (nationwide). This means that the whole country constitutes one electoral district and 275 members of the House of the People represent all Somalia.

• Federal Member States. Each FMS will be an electoral district and seats are allocated to them by negotiations between the FGS and FMS leaders.

It is worth to mention that there is no one best model. Each of the options proposed has its own merits and demerits. However, following thorough analysis of the different types of electoral systems by the Electoral Task Force, a system which is deemed appropriate to the context of Somalia is proposed.

6.8.2 Proposed Option on the Electoral Model

Besides the studies and proposal of the different options explained above, the meeting of the National Security Council in Baidoa from 3rd to 5th June 2018 has after further deliberation agreed on proportional representation closed list and nationwide constituency (See annex F). An electoral law was then drafted and submitted to the federal Parliament accordingly. However, the Federal Parliament passed the electoral law with major amendments on 19th February 2020 and the president signed in to law on 20th February 2020. (See law no. 23 of February 2020). The passed law reintroduced Somalia’s clan power sharing formula, known as 4.5, instead of the single nationwide constituency, arguing that this system forms the basis of power sharing in Somali society. Additionally, the law replaced the PR closed list system with a First Past the Post (FPTP) model that divides the country into 275 clan constituencies—the same number of seats as in the House of the People of the Federal Parliament.

Following an impasse over the law passed by the Parliament arguing that one-person, one-vote elections cannot be held during the time left for the government tenure, the FGS and FMS leaders and the Mayor of Benadir Region agreed on a revised election model on 17th September 2020 in contrast to the electoral system stated in the law No.23 which later converted into law No.30 of September 2020 after approval of the Federal Parliament on 26th September 2020 and signature of the President on 11th October 2020.

6.9 STATUS OF THE CAPITAL CITY

According to Art. 9 of the provisional Constitution, The capital city of the Federal Republic of Somalia is Mogadishu. The status of the capital city of Somalia shall be determined in

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the constitutional review process, and the two houses of the Somali Federal Parliament shall enact a special law with regards to this issue. Also, Article 49 (1) stipulates that the House of the People of the Federal Parliament shall determine the number and boundaries of the Federal Member States. The constitution specifies or instructs that a federal law will regulate the issue of governing and financing of Mogadishu. The law will determine the extent to which citizens in Mogadishu will exercise self-governance and to what extent it will affect the Federal Government. In this regard, options related to types of federal capitals in the world were identified based on research and consultations conducted over a year on the legal frameworks and rules that govern capital cities in Federal countries.

6.9.1 Options on the Status of the Capital City

Historically and practically, there are three different ways of governing Capital cities in federations in the world. The following options highlight the most common ways in which cities are part of the country’s federal system. Each approach to Somalia can incorporate different alternatives to meet the unique needs and history of Somalia:

1. The Capital City as a Federal District

2. The Capital City as a City-State

3. The Capital City as a City within a Federal State

Selection A (A city under the Federal Government)

1. Mogadishu shall be a capital district for the Federal Government

2. The district capital shall not be a part of any Federal Member State

3. The Federal Government shall enact a democratic self-administration system that governs the Federal Capital District

4. The Federal Electoral Law should ensure the rights of the people living the district capital to elect representatives to the House of People; they should not lose their representation as a reason of living in the Federal District Capital.

Selection B (A Regional Capital)

1. The capital city of the Federal Government shall be a state government (Federal Member state);

2. The Capital City of the Federal shall not join another region or extend to another state.

3. The Administrative Council of the Federal Capital District and the Federal Government shall protect the collaborative relationship stated in this constitution. They will specifically agree on Taxation and other rules that regulate land and

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building owned or resided by the Federal Government that locates within the district capital.

Selection C (A Capital city locates under a Federal Member State)

1. The Capital City of the Federal shall be a city locates within a state (Federal Member State)

2. The state government that the capital city locates, with the consultation of the Federal Government shall issue a special law that describes the status of the Federal Capital

3. The Administrative Council of the Federal Capital District and the Federal Government shall protect the collaborative relationship stated in this constitution. They will specifically agree on Taxation and other rules that regulate land and building owned or resided by the Federal Government that locates within the district capital.

6.9.2 Proposed Option on the Status of the Capital City

According to Article 9 of the Provisional Constitution, Mogadishu is the capital of the Federal Republic of Somalia. Additionally, it is the largest city in the country with more than two million residents and the centre of politics and commerce in the country, dwelled by Federal Government institutions, embassies and international agencies. People from different parts of the country reside in the city. The capital is one of the issues that will be addressed explicitly in the federal constitution and any laws concerning the capital city.

While each of the three types of federal capitals explained earlier has its advantages and disadvantages, these choices are mere suggestions but not legally binding solution that must be followed to decide the status of Mogadishu in a federal Somalia.

In Somalia, any of the options listed above would be a good starting point for discussions on Article 9 of the Provisional Constitution, which will lead to determining the status of Mogadishu permanently.

However, as per the 9th Parliament’s Proposal and the outcomes from the consultations and the research on the most suitable form for governing Mogadishu, it is recommend the status of Mogadishu to be a regional capital since it is not feasible for Banadir Region to join another region. Other notable reasons for this recommendation include the need to secure the representation and participation rights of citizens living in Mogadishu and to enable them to play a more significant role in governing, financing, legislating issues pertaining the capital, and fulfilling their rights and obligations.

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7. CHALLENGES TO THE CONSTITUTIONAL REVIEW, WAY FORWARD AND CONCLUSION

7.1 CHALLENGES TO CONSTITUTIONAL REVIEWWhen expressing overall appreciation for the progress made, several interlocutors pointed out that much remains to be done and that many of the expected goals are still to be achieved. The reasons are complex, including perpetual political infighting/instability, inconsistent political interest, the need to increase perceived ownership and to strengthen institutional capacity, and diverging views on the roles and mandates of the different institutions that are entrusted to lead the process.

The key challenges encountered during the course of the CRP include the following:

• Inconsistencies of the election periods and the term of offices of the FGS and FMS have posed a major problem on the smooth running of the CRP. The differing elections in different time periods shifted the focus of all political role players in the country, both at the federal and member state levels on the elections and thus distracting attention away from the constitutional review.

• Prevailing mistrust, less commitment and political will: There was a lack of political ownership and space for the process of constitution making. Political leaders did not give the constitution making process the support it required because they were too preoccupied with political struggles over leadership and electoral formula debate, which took over a year. It is also important to note that in Somalia, when there are leadership changes, successor leaders rarely undertake to “own” the commitments and advances that are already made. The mistrust also resulted in the separation of powers and hierarchy not being respected. Therefore, the less commitment of the top leadership at both levels of government, power struggle, political instability, conflicting and competing interests as well as politicizing the process had become stumbling block to the revision of the Provisional Constitution.

• Some regional stakeholders namely Puntland and Jubaland had divergent views on the constitutional review process itself and did not manage their differences in a way to make the process unified and coherent for all Somalis.

• Incompleteness of the total composition of ICRIC had adversely affected the process as representatives from the FMS were not endorsed by the respective federal institutions. This led to escalate the concerns of some of the FMS.

• The lack of collaboration between the houses of the Federal Parliament i.e. the House of the People and Upper House as a result of unclear segregation of duties/responsibilities and power struggle had embedded the Parliament to play their role in the review of the Constitution.

• Even though there was vertical and horizontal cooperation between the different

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relevant institutions of the FGS and FMS, however, there was not a proper structural/institutional arrangement. The adoption of MoUs and roadmap cannot replace the legal and institutional framework on intergovernmental relations (IGR) with a focus on the negotiation of the contentious issues that require political agreement and a mechanism for dialogue.

• The lack of proper coordination mechanism between the donors and implementing partners is also seen as a challenge as it sometimes creates conflict, unnecessary competition and fight over the management of resources within the beneficiary institutions.

• Institutional capacity remained limited with regard to resources and institutional memory. The unbalanced capacities of the different institutions and the lack of consideration to the competency and meritocracy in the government system both at the Federal and State levels have weakened the capacity of the institutions to deliver effectively. This has in turn hampered the different relevant institutions to carry out their mandate smoothly.

7�2 WAY FORWARDBased on the challenges and lessons learnt during the process of the review and with reference to the 27th May 2021 National Consultative Council (NCC) agreement on the implementation of the indirect elections and the enclosed roadmap to finalize state building process of Somalia including but not limited to the constitutional review process (see annex G), the following recommendations and strategy are proposed as way forward which will best serve as the foundation of a detailed work plan to complete the review of the provisional constitution.

There are two elements that need to inform the way forward. These are –1. The ongoing implementation of the constitution and legal reform emanating from

this; and2. Completing the process of review of the constitution.

Consideration must be given to the establishment of all institutions and processes defined by the constitution that must be implemented. These will relate to –• Intergovernmental Structures,

There is a need to establish legislative/institutional framework on IGR with focus on dispute resolution between FGS and FMS, and a formal and ongoing mechanism for dialogue, representing views of the highest levels in the FGS and FMS, alongside civil society which meets regularly to resolve core issues on the broader contentious issues related to the federal settlement.

• Independent institutions,• Structures required by the chapter on Public Finance.

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Regarding the process of completion of the review, the following roadmap is proposed:• Work with the Ministry of Justice and develop proposals for the establishment of the

constitutional court.• Work with the MOIFAR to develop proposals for the establishment of structures for

intergovernmental relations. • Work with the Ministry of Finance to develop proposals for the establishment of

structures required by the chapter on public finance. • Development of the constitutions of member states and ensuring the harmonization

of these constitutions with the federal constitution. • In the period leading up to the establishment of the OC by the 11th Parliament

and their induction, it is proposed that a process of engagement with the Federal Member States take place for purposes of assisting with the development of their constitutional submissions that needs to be considered.

• Facilitating the interaction between the incoming structures of Federal Government with those in the member states to negotiate the remaining contentious issues as highlighted in this report that are yet to be deliberated and agreed upon.

Besides the two elements stated above, there are other recommendations that need to be taken into consideration:• Standardization and unification of the election periods and term of offices of both

levels of government to avoid the adverse consequences of the inconsistent election timeframes.

• Better coordination of the support through donors and implementing partners in a structured manner to avoid parallel efforts that can lead to conflict among the beneficiary institutions.

7.3 STRATEGY The immediate future of the Constitutional Review Process must be guided by a changed broader strategy. This changed focus must recognize the importance of addressing –1. The immediate adoption of the identified technical amendments, and then

proceeding to 2. Those areas of the constitution that require further political deliberation and

consensus. To achieve this, a number of activities will have to be undertaken. The first set of activities should best be undertaking immediately:

(a) The provision of technical support that will assist in ensuring –• that the draft amendments comply with international and human rights

conventions; and• quality draft text.

(b) Capacitate the different institutions at both levels of government to enable them carry out their respective mandates effectively.

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(c) Support of the Federal Member States in the development of their constitutional submissions on the review of the constitutional text.

(d) Engagement of the political role players in the Federal Member States to secure their support for the immediate adoption of the technical amendments and the 3rd draft of the reviewed constitutional text.

(e) Engagement of all the political role players including the Speakers of Parliament, both Federal and Member State Presidents, particularly Puntland and Jubaland, and the Prime Minister to agree to –• The immediate adoption of those technical amendments; and• Commit themselves to the further political deliberation and consensus

required to finalize the review of the constitution.• Ensure adoption of rules of procedure for adoption of the constitution. • Conclude the appointment of FMS representation in ICRIC.

(f) Encourage and engage political role players in the Federal Member States to participate in the political negotiations required to find agreement on the remaining constitutional text.

The second set of activities relates to the broader strategy and is best undertaken after the election of Parliament, the President and appointment of the Oversight Committee:1. Induction of the new OC team appointed.2. Support the negotiation of a new Memorandum of Understanding between the new

three mandated institutions partnerships.3. Develop a joint strategy and work plan in consultation with the relevant role players

at both federal and state levels.4. Engagement of the political role players at the federal level, including the President,

Prime Minister and line function Ministries to focus on addressing those articles in the constitution requiring political consideration.

5. Ensure the adoption of the constitution.6. Focus on the implementation of the constitution, especially those aspects that

support the establishment of a federal state such as the inter-governmental relations structure, financial and fiscal commission, judicial structures including the constitutional court, etc.

7�4 CONCLUSIONSomalia is determined to attain agreed constitution that reflects the aspiration and values of the Somali people. The three mandated institutions to constitutional review process have amalgamated their endeavors to complete the review before the end of the term of the government. The Ministry of Constitutional Affairs has played a leading role in organizing and coordinating the review, conducted programs to enhance public awareness and increase understanding of the constitution and participation of the review process.

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This report includes overview of the review process to the provisional constitution. The three mandated institutions classified the contentious issues that need political negotiation between the FGS and FMS and non-contentious issues that require fixing technical and languages error. About eighty one percent (81%)4 of the technical review has been finalized in the 3rd draft of the amendment proposal produced by the mandated institutions.

The report also entails proposed chapters and options on the contentious issues of the constitution review that require political negotiations namely devolution of powers, public finance, constitutional principles on natural resource revenue sharing, federal Justice and corrections model, electoral model and status of the capital city. The report further highlights the challenges that could not make the completion of the review of the constitution possible and on this note the report provides clear recommendations on the way forward.

The Ministry is hopeful that in the next term, leaders of Somali Government will finalize the review by agreeing on the areas of contention. In this report, the Ministry made available options for their discussions and considerations that will make easy for their

decision making.

4 Except 29 articles (19%) out of 156 articles require political negotiations.

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ANNEXE A:Memorandum of understanding between MoCA, OC & ICRIC

A MEMORANDUM OF UNDERSTANDING AND COLLABORATIONBETWEEN

THE MINISTRY OF CONSTITUTIONAL AFFAIRS, THE PARLIAMENTARY CONSTITUTIONAL REVIEW AND IMPLEMENTATION OVERSIGHT COMMITTEE AND THE INDEPENDENT

CONSTITUTIONAL REVIEW AND IMPLEMENTATION COMMISSION

13th November 2017The purpose of this Memorandum of Understanding is to define the cooperation between the Ministry of Constitutional Affairs, the Parliamentary Constitutional Review and Implementation Oversight Committee and the Independent Constitutional Review and Implementation Commission. This agreement is provided for in the Provisional Constitution, especially in Articles 133 and 134 and in Law No. 119 of 3rd July 2013.

The Provisional Constitution and the law of the Independent Constitutional Review and Implementation Commission shall be important sources for the task of implementing this understanding and collaboration agreement.

Basic PrinciplesAll the parties agree that the legitimacy and the significance of the work of the Constitution Review and Implementation shall be based on the following principles:

1� Somali Ownership: The parties to this agreement are all convinced about the necessity to make the Constitution a reflection of the aspiration of the Somali people. The parties are also committed to ensure that the people of the Federal Republic of Somalia own the Constitution and its process. The contents and the Constitutional improvements and the drafts shall be prepared in the Somali language.

2� Timeline: the three institutions agreed that the Constitutional Review Process shall be concluded in the time period specified in the work plan.

3� Continuation: The Review Process of the Constitution is not inceptive, and it is necessary to recognize the work done by the 9th Parliament. The Ministry of the Constitutional Affairs of the FGS, the Oversight Committee and the Independent [Review and Implementation] Commission noted [the need] to evaluate the time and the resources spent, and this shall never, in any way, be disregarded.

4� Inclusivity: The Somali people shall be consulted and shall be given an opportunity to express their views, whether directly or through their political representatives at the following levels:

a. The Federal Parliament of Somalia

b. The Federal Government of Somalia

c. The Federal Member States

d. The Banadir Region and the other regions in the country

e. The Civil Society Organizations

f. The Political Parties

5� Transparency: The Parties shall conduct their work and decision-making activities in a transparent manner, and must ensure that all the ongoing activities and their hearings to be open to all people. All consultations must exhibit that each segment of the society contributed its views into it.

6� Participation: The Parties are committed to enable an inclusive participation of the consultation process with the Somali public.

7� Accountability: The Parties comply with the Somali public and with the Federal Parliament of

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Somalia with regard to the tasks of review and implementation of the Constitution and their outcome.

8� Partnership and Cooperation: The Parties agree that the implementation and the quality of the process and its outcome will be subject to the level of cooperation and coordination of activities. The Parties commit to working together in a cooperative manner and to conjointly implement the review process and implement the Constitution.

Duties and Shared ResponsibilitiesThis Agreement is based upon sharing the duties and responsibilities by the three Institutions tasked with the Constitutional Process in order for them to carry out the below-mentioned functions:

1. Protecting the unity, national dignity and peace in the Federal Republic of Somalia.

2. Achieving the public interests and integrity of the Federal Republic of Somalia.

3. Conducting the tasks of the Constitutional Review Process in an effective, transparent manner based on accountability and confidentiality.

4. Complying with the Provisional Constitution, the Law of the Review and Implementation and the other Federal Government laws which are key to the Constitutional Process.

5. Safeguarding the Constitution and all the laws of the Federal Government Institutions

6. Collaborating, consulting and cooperating built upon confidence and good faith while honoring the agreed provisions and principles.

7. Planning and executing all the shared tasks and managing the budget.

The President of the Federal Republic of SomaliaThe role of the President, as stated in Article 87(C) of the Provisional Constitution, is that he is the guardian and promoter of the Constitution as he ensures that the Constitutional Review and Implementation Process honors the Provisional Constitution and the other laws of the country.

Duties and Responsibilities of the Ministry of Constitutional AffairThe duties and responsibilities of the Ministry of Constitutional Affairs, representing the Federal Government of Somalia, are:

1. To facilitate the creation of a conducive environment for the execution and effective mechanism regarding the Constitutional review and implementation, which can be achieved through:

a. Facilitating the political dialogue between Federal Government of Somalia and the Federal Member States regarding the allocation of the respective powers of the Federal Government and the FMSs, sharing of resources and revenues, the status of the capital city, security, the justice system in the country etc.

b. Facilitating the participation in the public consultation and outreach about the Constitution review and implementation done with the Federal Member States, other administrations under the control of the Federal Government, political parties, civil society, women, youth and across the Somali people in order to create a transparent and inclusive atmosphere for the Constitutional Review Process in partnership with the parliamentary Oversight Committee and the Independent Review and Implementation Commission.

c. Facilitating and planning the funding for the implementation of the constitutional process activities to be collected from the Federal Government, the Federal Member States, and International Donors in consultation with the parliamentary Oversight Committee and the Independent Commission.

d. It independently plans and administer the budget of the Ministry of Constitution, while respecting the laws of Financial Administration of the Federal Republic of Somalia.

e. Participation in the organization, resource mobilization and technical preparation necessary for enabling the tasks of review and implementation of the constitution and oversight of the constitution by the parliament and the independent commission.

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f. Strengthening the coordination between institutions that are engaged in the constitutional review process and coordination between all the administrative tasks that facilitate the performance of the tasks during the process of the review and implementation of the constitution in cooperation with the constitutional review commissions.

g. Enhancing and creating an atmosphere conducive to collaboration and partnership between important institutions that are involved in the constitutional review process.

2. To ensure the unified vision of the official position of the institutions of the Federal Government on the constitutional review and implementation task.

3. To prepare and enact a national referendum law which will be the basis for holding a public referendum to approve the constitution.

4. To facilitate conditions that enables to have a political atmosphere to prepare and hold a public referendum on the constitution.

Duties and Responsibilities of the Review and Oversight Committee of the Federal ParliamentThe Constitutional Review and Oversight Committee of the Federal Parliament shall perform its responsibilities and duties in accordance with Articles 133 and 134 of the Provisional Federal Constitution, which are:

1. It will monitor, guide and implement the tasks of the Independent Constitutional Review and Implementation Commission in accordance with the Provisional Constitution and the law establishing the Independent Constitutional Review and Implementation Commission.

2. It will submit to the Independent Constitutional Review and Implementation Commission a draft legislation, give it guidelines on how to prioritize them, in order to enhance cohesiveness and connection of the draft constitutional provisions.

3. It will conduct its own review of the draft laws and the accompanying report submitted by the Independent Constitutional Review and Implementation Commission.

4. It will inform and consult the civil society, religious scholars, women, youth, political organizations and all sections of the society on the contents of the proposal and report submitted by the Independent Constitutional Review and Implementation Commission in cooperation with the Ministry of Constitutional Affairs.

5. It will make sure that the public are given enough chance to take part in the discussions as much as possible.

6. It will consult the committees and other members of the Federal Parliament.

7. It will consult legislative bodies of Federal Member States.

8. It will independently plan and administer the budget of the Oversight and Constitutional Review Committee, while respecting the laws of Financial Management of the Federal Republic of Somalia.

9. It will prepare the work plan and the constitutional review process and the necessary budget to implement the activities of the constitutional review process in cooperation with the Ministry of Constitutional Affairs and the Independent Constitution Commission.

10. The Constitutional Review and Oversight Committee of the Federal Parliament will supervise, hold accountable the activities of the Ministry of Constitutional Affairs and the Independent Constitutional Review and Implementation Commission in accordance with the Provisional Constitution.

Responsibilities and Duties of the Independent Constitutional Review and Implementation Commission (ICRIC)

The Independent Constitutional Review and Implementation Commission will perform its functions and duties in accordance with Articles 133 and 134 of the Provisional Federal Constitution and Article 12 of the law establishing the Independent Constitutional Review and Implementation Commission that was issued on the 3rd July 2013, which includes:

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1. To perform its task as directed by the Constitutional Review and Oversight Committee of the Parliament, while preparing the constitutional amendments in accordance with the First Table (C), or proposing a draft legislation as stated in Table (D) or as otherwise needed.

2. To prepare a report based on research and data collection which indicates to articles, chapters or draft legislation which has been submitted for amendment,

3. To complete legal investigation or inquiry that is necessary for the performance of the task of constitutional review.

4. To submit the finalized or draft proposal for amendment to constitutional provisions along with a report to the Constitutional Review and Oversight Committee.

5. To submit to the Constitutional Review and Oversight Committee of the Parliament a quarterly report or if requested any new development in the constitutional review and implementation and any challenge impeding it to be addressed.

6. To independently administer the funds allocated and intended for the tasks of the Independent Constitutional Review and Implementation Commission while respecting the laws of financial management of the FRS.

7. To have enough staff according to the size of the budget, to perform their functions in accordance with the constitution and the laws of the country.

8. To perform any task assigned to it by the Constitutional Review and Oversight Committee of the Parliament.

Dispute Resolution Mechanism

1. The sides to this agreement, which are the Ministry of Constitutional Affairs, Constitutional Review and Oversight Committee of the Federal Parliament of Somalia and the Independent Constitutional Review and Implementation Commission, resolve their disputes (whether they are those related to execution or interpretation) with an understanding.

2. If they could not resolve their disputes, they refer it to the senior national leaders: the President of the FRS, the Speaker of the Upper House, the Speaker of the House of the People and the Prime Minister of the FGS.

SIGNED BY

Chairperson of the Constitutional Review and Oversight Committee of the FPS

Senator Abdi Hassan Awale (Qaybdid)

-------------------------------------

Chairperson of the Independent ConstitutionalReview and Implementation Commission

Dr. Mohamed Dahir Afrah

-------------------------------------

Minister of Constitutional AffairsAvv. Abdirahman Hosh Jibril

-------------------------------------------

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ANNEXE B:Functional assignments of Federal Government and Federal member Sates

FUNCTIONS/ATTRIBUTES FEDERAL STATE REGION/DISTRICT

HEALTH

LEADERSHIP AND GOVERNANCE:

Health policy and strategies formulation and review +++5 ++ +

Legislation and accountability to Parliament +++ +

Resource projections & allocation +++ ++ +

Macro-planning +++ + +

Micro planning + ++ +++

Inter-sectoral coordination +++ ++

Inter-state/zonal coordination ++ +++

Inter region/district coordination + ++ +++

Intra region/district coordination +++ ++

General management and administration +++ +++ +++

Setting Service Delivery Standards/Norms +++

Public private partnership (PPP) regulation +++

Public private partnership contracts +++ +++

Private sector regulation +++

Environmental health +++ ++

Disasters and emergencies +++ ++

Coordination of donor support and mutual accountability +++

HEALTH WORKFORCE:

HR policy and planning +++ ++

Health professions regulations +++ ++

Registration licensing and accreditation +++ ++

Medical colleges, nursing and paramedical schools +++ ++

Capacity development and training + +++ ++

Integrated supportive supervision + +++ +++

Human resource management (Motivation, incentives, appraisal) + +++ ++

SERVICE DELIVERY:

Delivery of Health services (Hospitals, MCH/HC, PHU) + ++ +++

Preventive and primary health care interventions ++ +++ +++

Emergency preparedness and response +++ +++ +++

5 +: Limited role; ++: Medium role; +++: Maximum role

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Health education and promotion + +++ +++

Community mobilization ++ ++ +++

Review/assessment of health services ++ +++ ++

Lab services + ++ +++

HEALTH INFORMATION:

Standardization of data collection tools +++ ++

Data collection + ++ +++

Data Analysis ++ +++ +++

Use of information and dissemination +++ +++ +++

Surveillance and diagnostics +++ +++ ++

Health Research +++ +++ ++

Surveys +++ +++ +

MEDICINES, SUPPLIES, TECHNOLOGY:

Medicine policies/Essential drug lists +++ ++

Regulation/Quality control +++ ++ +

Procurement +++ + +

Supply management ++ +++ ++

Use of new technologies – e Health, e-Management etc +++ +++ ++

INFRASTRUCTURE:

Infrastructure assessment and development plan ++ +++

Designs/standards +++

Rehabilitation + ++ +++

Construction + +++ +

HEALTH FINANCING:

Health financing policy/strategy +++ ++

Health financing interventions +++ +++ ++

Financial Management +++ +++ ++

EDUCATION

LEADERSHIP AND GOVERNANCE IN EDUCATION:

Legislation and accountability to Parliament and cabinets (Education policy and Act) +++ - -

Essential National standards (accreditations, Qualification frameworks, liaising standards etc) +++ ++ -

Examination & Certification - +++ -

Resource projections & allocation +++ - -

Macro-planning (ESSP-NDP) +++

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Micro planning +++

Inter-sectorial coordination (ESC) +++

Inter-state/zonal coordination - +++ -

Inter region/district coordination - - +++

Public private partnership (PPP) regulation +++

Public private partnership contracts +++ -

Private sector regulation +++

Emergencies management in education +++ +

Coordination of donor support and mutual accountability +++ + -

EDUCATION WORKFORCE (Human Resources):

HR policy and planning +++ ++ -

Education professions regulations +++ ++ -

Registration licensing and accreditation +++ ++ -

Capacity development and training +++ ++ +

Integrated supportive supervision - +++ -

Human resource management (Motivation, incentives, appraisal) ++ +++ ++

Terms and Conditions of Employment (national) ++ +++ +

Terms and conditions of non-citizen staffs +++ + -

SERVICE DELIVERY: Access to Quality Education

Governance and management of the education sector, +++ ++ +

Enrolment and access (for both formal and non-formal education), - - +++

Efficiencies of the education system, +++

Capacity building and training (staff) +++ +

Education cost and financing, +++ ++ +

Teacher qualifications, training and distribution, +++ - -

Learning outcomes and quality of education, - +++ ++

Equity in education + ++ +++

EDUCATION INFORMATION: EMIS

Standardization of data collection tools +++

Data collection +++

Data Analysis +++

Use of information and dissemination +++

Education Research and +++

Surveys +++

EDUCATION, SUPPLIES, TECHNOLOGY:

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Education supply policies/Essential supplies +++ ++

Regulation/Quality control +++

Procurement of education supplies +++ -

Supply management +++ ++

Use of new technologies – resources and innovation (digitalization) +++

INFRASTRUCTURE:

Infrastructure assessment and development plan +++

Essential standards/guidelines and Designs +++ ++ +

Rehabilitation/Construction - +++

Land and siting - - +++

EDUCATION FINANCING:

Education financing policy/strategy +++ ++ -

Education financing roles +++ ++ +

Financial Management + +++ -

Audit +++ ++ -

HIGHER EDUCATION:

National Higher education Commission +++ - -

Accreditation and inspection of HE +++ + -

Regulation of HE institutions +++ ++ -

Set admission criteria, policies and standards to HE +++ + -

Examination and certification. (Secondary tertiary education) +++ - -

WATER

LEGAL AND POLICY ISSUES:

Constitutional water principles +++

National level water legislation; +++

Policy formulation national level: +++

State level water legislation +++

State level water policy +++

DATA AND INFORMATION:

Collect, analyze and manage data and information; +++

Distribute, share and make assessable data and information across country; +++

Promote water data and information use in all sectors and thematic areas; +++

Feed data into national data and information management system; +++

73



Utilize data and information for water resources development; +++

STANDARDS, REGULATION AND LICENSING:

• Set national drinking water and WASH standards;• Set benchmarking criteria and standards for water sector

activities; • Set water quality standards in inter-state water bodies;• Set pollution discharge standards in inter-state water bodies; • Monitor and report interstate water bodies and major

projects;• Develop a national system for regulation of water permits

issuance;

+++

• Legalize and promote national level water and WASH standards;

• Set pollution and water quality standards in accordance to national levels;

• Follow national level systems and good practices in monitoring and reporting;

+++

WATER MANAGEMENT:

• International trans boundary waters;• Interstate ground- and surface waters; • Interstate basin development and management:• Establish water authorities for international and interstate

water bodies;• Define water protection and environmental zones of national

importance;• Develop allocation principles and linked management system

at national and inter-state levels; • National and Inter-state irrigation schemes;• National and Inter-state water infrastructure;

+++

• Support and participate in establishing water authorities for state and inter-state bodies;

• Develop state level allocation principles and linked management system;

• State water bodies – surface and ground;• Identify and design water and environmental protection

zones;• Support management of state level water infrastructure and

irrigation schemes;• State level water services and distribution schemes for urban

areas, health centers, schools, refugee camps;• Participate in and coordinate state level surface and ground

water resources assessments; • Development and promote participatory irrigation

management and support activities linked to Water User Associations

• Operation and maintenance of water facilities • Arrange

+++

PLANNING AND COORDINATION:

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• Develop long-term strategic state water resources supply, allocation and usage plans;

• Support national level and inter-state development projects;• Promote water collaboration and inter-state coordination;

+++

• Perform state level short- and long term water and WASH planning;

• Perform state level strategic water and WASH planning;• Work together with federal elves and other states in inter-

state and national planning efforts;• Interact and support federal level coordination of water

sector activities;

+++

RESEARCH AND CAPACITY DEVELOPMENT:

• Support applied research to resolve concerns linked to water resources management and WASH;

• Develop, offer and promote capacity development in water resources management and WASH;

• Develop technical guidelines and instructions;

+++

• In cooperation with other states and federal levels, promote capacity development among staff and innovation and new approaches;

+++

INTERNATIONAL ISSUES:

• Coordinate and collaborate with international organizations;• Promote international water project financing; +++

• Cooperate with international funding and expert organizations on water sector development +++

ENERGY

STATE LEVEL PLANNING, POLICY FORMULATION COORDINATION AND GUIDANCE:

State level planning, policy formulation coordination and guidance. • The import, export, generation, transmission, distribution,

supply and use of electrical energy;• To protect the interests of consumers, investors and other

stakeholders. • To protect the interests of energy users by ensuring that

demand is met with reliable, cost effective and high-quality energy services in an environmentally friendly manner.

• Prepares strategic and operational plans; • Plans generation and transmission expansion;

State-level legislative functionsParticipate in establishment of the Energy Authority (shared function)There is a board of energy authority of the Federal Government of Somalia that combine a membership of private sector, social sector.

+++

75



Federal level electrification,• The federal government is solely responsible the

electrification of rural and urban areas of the whole country • Electricity is the national security and it should be under the

Federal state

Off-grid solutions • For the time being, there no electricity grid exists any part

of the country. The off-grid solutions are under the private sector companies

• A public private partnership is mandatory for the government to control the security of the nation

Local mini grids• The local mini grids are mainly under the state level

+++

Overall planning, policy formulation, coordination and guidance • The electricity suppliers of the state level comprise power

systems and consumer affairs, reviews and advises on government policy on the electricity sub-sector;

• To protect the interests of consumers, investors and other stakeholders.

• Regulates electrical installation work including licensing of electricians and registration of electrical contractors;

Overall legislative and regulatory function. Establishment of the Electricity Authority (in cooperation with FMS)The state level will have a fully cooperation with the Federal level in terms of the electricity authority and will have an agent representor for the state level

National Transmission and main gridFederal will level will establish a common grid network for the whole country, but each state level will monitor and govern the transmission line and their distribution feeders

Technical guidance, scrutiny, clearance on the sector participantsState level will have their own technical guidance but for the sector participants, it is the responsibility of the federal level

Project financing for energy infrastructureManagement and accountability will be the role of the federal state but controlling and execution part is for the state level

Matters of international and transboundary nature in the energy sector.This part is fully responsible by the federal state as this is a matter of transboundary and the transboundary issues are also security issues.

+++

76



Setting standards of quality of energy infrastructureThe federal and state level have the same responsibility in this matter. Setting tariffs rates and general charges.In general, electricity is generated from different sources and different locations, setting tariffs and general charges can be managed by the state level.

+++

LIVESTOCK

Federal Ministry of Livestock Forestry and Range shall develop Policies, legislations strategies with consultation of FMS ministries in charge for livestock, forestry and range

+++

Access water for livestock and pastoralist +++

Establishment of safety networks for pastoral communities +++

Building efficient food safety systems on entire food chain of Livestock production and products +++

Secure and wealthy Nation anchored by an innovative, commercially oriented and competitive livestock sector and Forestry

+++

Disease surveillance &Disease control +++ +++

Disease reporting and Disease notification +++

Vaccination and Treatment +++ +++

Support diversification and the adoption of sustainable practices, promote risk management tools, strengthen land tenure rights and invest in infrastructure, innovation, training, education and extension services, conservation of wildlife

+++ +++

Quarantine Management +++

Export certification +++

Inspection +++ +++

Diagnosis and examination for Animal Disease +++

Community awareness for Livestock Insurance +++

Ensuring risk deduction for livestock insurance +++ +++

Branding & Pricing +++

Promotion of bee keeping & Poultry production +++ +++

Promotion of tannery industry +++ +++

Supporting Livestock Sector research and promoting technology delivery +++

Development, implementation and coordination of programmes in the Livestock, Forestry and Range sectors +++

Ensuring livestock contribution of food security and nutrition +++

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Improving and development the natural resource base of the ASALs, rendering pastoralists’ traditional livelihoods throughout the Country’s Rural areas increasingly tenuous

+++ +++

Livestock and its products Exportation & Importation permits +++

Federal Ministry of Livestock, Forest and Range shall establish Veterinary board with Consultation of FMS +++

ENVIRONMENT

Environmental Policies, legislations & standards +++ +++

Multi-lateral & Bilateral Environmental Agreements +++ +++

Environmental Impact Assessment or EIA (Environmental & Social Safeguard) +++ Category

2

Trans-boundary Natural Resources Management (air, lakes, rivers, water ways, and range land,) +++

Environmental Budget Allocations +++ +++ +++

Critical natural resources (Forest, Biodiversity, and mountains)

F (cli-mate,

biodiver-sity)

M (forest, within state)

Marine Protection and International Waters

Interna-tional

waters. Marine protec-tion be-yond 24 nautical

miles

(Marine protec-tion be-yond 24 nautical

miles etc.)

Environmental incentives and disincentives +++

Strategic environmental planning, monitoring and reporting +++

Pollution control +++

Federal land management, lease and utilization +++

Environmental mainstreaming +++ +++

Capacity development +++ +++

Resource mobilization +++ +++

Environment monitoring and reporting +++ +++

AGRICULTURE AND IRRIGATION

Agricultural and irrigation development will be sustainable and environmentally friendly and food security will be achieved

Regulations /standards +++ +++

Financing +++ +++

78



Staffing +++ +++

Provision +++ +++

Production +++ +++

Preparation of agricultural Policy and Regulations


Financing +++

Staffing +++

Provision +++

Production +++

Implementation of Policy and Regulations


Financing +++ +++

Staffing +++ +++

Provision +++ +++

Production +++ +++

Services Delivery


Financing +++

Staffing +++ +++

Provision +++ +++

Production +++ +++

Established or well defined national food safety regulation for both processed and unprocessed food

Regulations /standards +++

Financing +++

Staffing +++ +++

Provision +++

Production +++ +++

Agricultural Regulation information services


Financing +++

Staffing +++

Provision +++

Production +++

Risk analyses and bio security - Up to date, science based risk analyses and bio security policies


Financing +++

79



Staffing +++ +++

Provision +++ +++

Production +++ +++

Increase access to new knowledge and technology by the farmers and agro-pastoral communities


Financing +++

Staffing +++ +++ +++

Provision +++ +++ +++

Production +++ +++ +++

Spread of crop disease and pests effectively controlled; food safety products improved


Financing +++




Re-establishment of the collapsed entry points (Seaports, border points and airports) at Federal level.

Financing +++

Staffing +++

Provision +++

Production +++

National agricultural research centre and sub – stations Re-established.Generation of new technology and knowledge through the conducting of series experimentation and research achieved.Partnership with international agriculture research organizations established


Financing +++

Staffing +++ +++

Provision +++ +++

Production +++ +++

National Research Centre


Financing +++

Staffing +++ +++

Provision +++ +++

Production +++ +++

Generation of basic knowledge in Agriculture achieved.Research strategic plan formulated.

80




Financing +++

Staffing +++

Provision +++

Production +++

Public generation of agriculture technology that focus on the needs of the farmers


Financing +++

Staffing +++ +++

Provision +++ +++

Production +++ +++

Testing of improved agriculture technology in the field of conditions across different agro- climatic conditions of the country


Financing +++




Strong partnership with agriculture universities, the private sector and international research centers�


Financing +++ +++

Staffing +++ +++

Provision +++ +++

Production +++ +++Soil Fertility protected and improvedSoil degradation preventedImproved soil nutrient management across all types of agriculture cropsRegulations /standards +++ +++ +++

Financing +++ +++




Sustainable natural resources (agricultural land and water)management achieved


Financing +++ +++



81




Reliable &sustainable Irrigation services available for both small and medium scale farmers


Financing +++ +++




Adequate supply of well-trained Officers for the administrative and technical services for agricultural development, state farms and training centre Reestablishment of agricultural high institution


Financing +++ +++

Staffing +++

Provision +++ +++

Production +++

Metrological Information gathering to support climate smart agriculture


Financing +++ +++

Staffing +++ +++

Provision +++ +++

Production +++ +++

Market accessibility increased through the rehabilitation/ construction of shelter market; Commercialization of agri-products accelerated; agriculture trade enhanced.


Financing +++ +++

Staffing +++ +++



Reliable and timely agriculture data and information. Data- based planning & policy making enhanced


Financing +++ +++


Provision +++ +++

Production +++ +++

Access to agriculture credit aimed at the poor and growth of the farming and agribusiness enhanced

82




Financing +++ +++

Staffing +++ +++

Provision +++ +++

Production

Projects/Programs


Financing +++

Staffing +++ +++

Provision +++ +++

Production +++ +++

Coordination and collaboration among food security stakeholders improved


Financing +++ +++

Staffing +++ +++

Provision +++ +++

Production +++ +++

Monitoring & Evaluation


Financing +++

Staffing +++

Provision +++

Production +++

Marketing


Financing +++

Staffing +++

Provision +++

Production +++

PORTS

Policy, Regulations and Plans: National Transport policy; Ports infrastructure policy; Ports management regulations; Social and economic policies; Restructuring policy framework. Policy Setting, drafting and enacting national regulatory frameworks

+++

Maritime trade and industrial development policy +++

They will be consulted when drafting national regulations, policies, and development plans in maritime sector +++

Development plans at their respective areas +++

83



International Maritime Treaties, Agreements and Conventions

Signing, endorsing, ratification, amending national legislations and domesticating international regulations. +++

They will be consulted with when signing and ratifying international agreements that affect them +++

Multilateral

Becoming a member/party to International Organizations and Intergovernmental Bodies +++

Implementation of domesticated regulations at their respective regions +++

Bilateral Governing and Operating Ports in Somalia

Somali Ports Authority under the Ministry of FGS will govern and operate Major Ports in Somalia +++

They will be consulted with when Signing concessions for port investments and development projects that affect them +++

Port tariffs

Appoints port managers in consultation with FMS +++

Ownership and administration of land and water within port limits. +++

Jetty portsSets port tariffs for major and minor ports in consultation with stakeholders +++

Regulate their own economic activity and operations at their respective level. +++

Leasing and concession of Port Infrastructure

Sign concessions for port investments and consult with FMS when setting development projects +++

All ports managers fulfill their daily operations under the authority of SPA (See: Somali Ports Act, 1973) +++

Ports managers oversee and supervise operators or any other established entity under PPP +++

Repair and maintenance of port facilities +++

Human resource & administrative services within the Port +++• Shipping Agency, forwarding & clearing• Ship chandelling• Supply of services i.e. water, bunkering• Crew assistance• Republish and distribute cargo manifest to the customs, port

authorities and immigration • Agency for Liners

+++ +++

84



Registration and licenses/Permits

Ship registration (flag state control) +++

Ship Survey and inspection +++

Ship registration (flag state control) +++

Seafarers’ qualification and certification +++

Port state control +++

Seafarers’ qualification and certification

Port state control and coastal state control

Port state control and coastal state control +++ +++

Pipeline laying and re-laying

Pipeline laying and re-laying (In consultation with FMS) +++

Maritime education and Training centers

Maritime education and Training centers (Concurrent) +++ +++

Hydrographic Survey Services +++ +++

Maritime safety and Security• Maritime Safety Information (MSI) • Wreck and salvage• Search and Rescue• ISPS code• Accidents• Casualties investigation • Maritime crimes

+++ +++

Marine Aids to Navigation • Lighthouses • Beacons • Buoys • Lightships

+++ +++

Marine pollution• Oil spill response• Dumping waste • Port Reception Facilities• Ballast water

+++ +++

Maritime demesne (Coastal Land)Somali Maritime Administration dept.(See Law No.5 1989; Art. 10)

+++ +++

Audit +++ +++ +

85


ANNEXE C:Baidoa agreement (June 2018) on natural resource sharing (minerals and petroleum)

(The Government of Federal Republic of Somalia)

Ref, OPM, 0.27/04/18 Date: 05/06/2018

AGREEMENT ON OWNERSHIP, ADMINISTRATION AND SHARING OF REVENUES FROMNATURAL RESOURCES OF THE COUNTRY (PETROLEUM AND MINERALS)

Introduction – Fundamental PrinciplesThe Federal Government and the Federal Member States and the Benadir Regional Administration:

1� Having ensured providing the necessary services to the public for the development of the country in a balanced and fair manner;

2� Having recognized the importance of the revenue generated from the natural resources to serve the people of Somalia considering national interest and the varying needs of the producing and non-producing regions;

3� Having convinced that the sharing of the country’s resources to be based on the future needs of the country, the future generations, national defense and unity of the nation and give special consideration to the societal or environmental problems caused by the production of the resources;

4� Taking into account the need to protect, manage and fairly exploit of the petroleum and mineral resources;

5� Having recognized the importance that the Federal Government and the Federal Member States and future member states, should reach agreement on the ownership, management and sharing of the revenues from petroleum and minerals;

6� Having considered the need to revitalize the country’s economic sources to enable the government to have the capacity to pay the security and reconstruction expenditures of the country, most importantly the Federal Member States and future member states;

7� Having recognized the need for fair and transparent management of the revenues from Petroleum and Minerals;

8� Having seen articles 44 and 54 of the Provisional Constitution delineating that the Federal Government and Federal Member States should negotiate the allocation of power, ownership, management and sharing revenues from the natural resources of the country;

9� Having considered the general interest of the country and the people, we have agreed on the following articles:

Article 1: Ownership of the Natural ResourcesThe minerals and petroleum resources of the country, both in the sea and in the land belong to the Somali people. The Federal Government, Federal Member States and future member states are responsible on their behalf.

Article 2: Management of the Resources The Federal Government, Federal Member States and future Member States will jointly administer the management of petroleum and mineral resources through the establishment of institutions responsible

86


for the petroleum and mineral resources issues including.

2�1 National Resources Council: The National Resources Council is the highest council of negotiating the resource issues that need to be agreed upon and serve as the last resort on the issues that could not be resolved in the other management bodies. The Council comprises of leaders of the executives at both federal and state levels.

2�2 The Federal Ministry of Petroleum and Minerals: The Ministry of Petroleum and Minerals, in consultation with the State petroleum institutions, is responsible for the preparation of draft legislations, policy formulation, planning and signing of mining and petroleum patents at the federal level.

2�3 Federal Member State Ministries/Petroleum and Mineral Resources Institutions: Preparation of Bills, Policies and Planning related to petroleum and mineral issues at State level in accordance with the laws and the general policy of the country.

2�4 Somali Petroleum Authority (SPA): The Somali Petroleum Authority (SPA) is an inclusive body that will be established on a special law and will work on, negotiating agreements, licensing, monitoring, verification and implementation of Petroleum laws. The Administration of the Authority shall consist of two members representing the Federal Government and one member each from the Federal Member States and future member states. The members of the Authority shall be selected on the basis of their knowledge, skills, competency and integrity.

2�5 Somali National Oil Company (SONOC): a corporation co-owned by the Federal Government, Federal Member States and future member states will be established that will have the possession of the oil blocks of the country solely or in partnership with the global corporations. The corporation is responsible for upper stream, construction of the oil infrastructure, refining mid -stream and marketing of petroleum products. The management of the corporation shall consist of two members representing the Federal Government and one member each from of the Federal Member States and future member states. The Capital and allocation of shares of the corporation will be specified in a special law.

2�6 State Oil Companies (SOC): likewise, the Federal Member States will have companies that are responsible States business interests related to petroleum issues and represent the FMS shares in the Somali Oil Company. The duty of SOC is to construct and manage the oil infrastructure at the state level (Down Stream) and marketing of the amount of oil used for the domestic consumption or exporting as refined product.

Article 3: Revenue SharingMineral and petroleum resources revenues shall be shared and distributed in a balanced manner to the Federal Government, Federal Member States and the future member states.

Article 4: Financial Management of Petroleum and Mineral RevenueThe saving and management of revenues generated from petroleum and mineral resources shall be kept in a special account in the Central Bank of Somalia. Money can be withdrawn from the account on the decision of the National Resources Council in accordance with the financial management system of the country.

Signing of Agreement

Federal Government of SomaliaHon. Hassan Ali KhayrePrime Minister – FGS

Federal Member States & Benadir AdministrationHon. Abdiweli Mohamed A. GasPresident of Puntland

87


Hon. Ahmed Mohamed IslamPresident of Jubaland

Hon. Sharif Hassan Sheikh AdenPresident of ISWA Hon. Ahmed Duale GellePresident of Galmudug

Hon. Mohamed Abdi WarePresident of Hirshabelle

Hon. Abdirahman Omar OsmanGovernor of Benadir Regional Administration

Date. 05 June 2018.

---------End--------

Annex

1� Matrix of sharing oil revenues

Details FGS FMS(producing)

District (producing)

FMS (non-producing) Comment

Investment Fund

Ministries of Finance of FGS/FMS will make decisions

Offshore 55% 25% 10% 10%

Onshore 30% 30% 20% 20%

Royalty 40% 40% 10% 10%

Signing Bonus 40% 60%

Surface Rent 30% 50% 20%

License fee 50% 50%

Production Bonus 30% 50% 10% 10%

Corporate Income Tax 100%

Export Tax 60% 40%

Capital gains 50% 30% 20%

Seismic Data 50% 50%

Capacity Building 50% 50%

Local CommunityDevelopment % 30% 70%

88


2. Matrix of sharing mineral revenues

MINING

Details FGS FMS(producing)

District (producing)

FMS (non-producing) Comment

Investment Fund

Ministries of Finance of FGS/FMS will make decisions

Corporate income tax 100%

Capital gains tax 65% 35%

Mineral royalty 30% 40% 30%

Surface rental 20% 50% 30%

Licensing fees 50% 25% 25%

Community development 10% 30% 60%

Training 50% 50%

Net profit 50% 50%

89


ANNEXE D:Justice and corrections model (Jowhar agreement January 2018)

SOMALI FEDERAL GOVERNMENTMINISTRY OF JUSTICE AND JUDICIAL AFFAIRS

Political Agreement on “Justice and Corrections Model of Somalia” singed in Jowhar, Capital City of Hirshabelle Federal Member State of Somalia

January 23 - 24, 2018

Considering meetings and consultations with Justice Sector Institutions at federal and Federal Member States (FMS) levels which constant led by the Ministry of Justice and judicial Affairs of the Federal Government of Somalia (FGS) including; Justice and Corrections Model Conference on April 24th - 28th 2016, Task Force meeting on 12th – 18th December 2016 and other regular previous consultations that took place between Justice Sector Institutions in general and in particular manner; Taking into consideration, the National Security Council progress chaired by the President of the Federal Republic of Somalia which combines the membership of the Prime Minister, his deputy, the Heads of all FMS and Ministers from FGS, decision on 3rd December 2017, to adapt “Mix System of Judiciary” which was huge success base for all Justice Sector Institutions;

Lastly, having seeing the communiqué resulting from three consecutive day discussions that took place on January 22nd – 23rd 2018, participated by 17 task force members from Federal and FGS Justice Sector Institutions, who were responsible for detailing the process of Justice and Corrections Model of Somalia. We, as Ministers of Justice from federal and FMS, after review and discussions we have fully undersigned and agreed recommendations suggested by 17 task force members on “Justice and Corrections Model for Somalia”.

Moreover, we further agreed that this Political Agreement will have to wait for incorporation of this new agreement into the finalization of the constitutional review process. In the meantime, FMS have the option to continue their current judiciary systems as practiced in the country or begin the process of building their systems in any way which is applicable in their local requirements.

General View:FGS will issue unified laws governing justice and corrections model in the country to ensure coherent implementation of the model across federal and FMS levels. FMS will have independent judicial management, which is about handling of justice system.

Structure of the Courts

1. Constitutional Court

1. There should be one Federal Constitutional Court based in Mogadishu.

2. FMS should have a Constitutional Bench within their High Courts.

3. Any decision made by Constitutional Bench of FMS High Courts on constitutional matters would have no appeal, with the exception of cases relating to human rights in which appeal could be taken in to the Federal Constitutional Court.

90


2. Ordinary Courts of the Country

1. There will be one ordinary court at Federal level that is the Federal Supreme Court, which will deal with criminal, civil and administrative cases that fall within Federal jurisdiction and appeals taken from FMS high courts on cases relating specifically to federal jurisdiction responsibility.

2. The FMS High Court will have appellate jurisdiction over cases arising from appellate courts of the FMS, will have jurisdiction over cases regarding elections, administrative, constitutional cases at the FMS level and will also have third instance jurisdiction over Federal-level cases appealed from the first instance courts, as well as have jurisdiction over other cases that fall within its territorial jurisdiction as may be indicated in the laws of the country.

3. FMS appeal court will have jurisdiction to listen over appeal cases of FMS-level taken from first instance courts only.

4. FMS first instance courts have jurisdiction to listen over for all cases of federal and FMS levels as specified in the laws of the country and their jurisdiction power will be categorized district court level and regional court level.

5. Benadir Regional Administration judiciary shall be administered as it is currently, until decision on its status is taken as mentioned in the Provisional Constitution of the FGS (Article 9).

6. The structure and hierarchy of the ordinary courts would be:

I� First Instance: district and regional courts (which will get additional powers in order to decentralize rule of law and bring it closer to the people)

II� Second Instance: FMS Appeal courts (which will have jurisdiction to listen over appeals of FMS-level from the first instance court decision only)

III� Third instance: FMS High Court for each FMS that will be situated in FMS capital city.

IV� The Federal Supreme Court situated in Mogadishu.

3. Judicial Legal FrameworkFederal law on the organization of the judiciary would establish the structure, the territorial and subject matter jurisdiction of the courts. The Federal Supreme Court and FMS High Courts would ensure harmonized application of laws across the country. 4. Jurisdiction Levels

1. Criminal cases related to Federal-level areas of responsibility, including foreign affairs, national defense, citizenship and immigration, monetary policy, safety of aviation, counterfeiting of national currency, crimes against the state and crimes committed by employees of the federal government while discharging their official duties and other cases that fall within federal territorial jurisdiction as may be indicated in the laws of the country including civil cases are considered as Federal-level cases and federal cases start at FMS regional courts.

2. All other cases (criminal or civil) will fall within the jurisdiction of the FMS level.

3. Federal Supreme Court ensures smooth administration of FMS court cases, prepares procedures for cases taking place overseas and allows execution procedure of criminal offender sentenced overseas. The Federal Supreme Court also decides on extraditions requests.

4. Cases relating to elections, administrative and constitutional matters at FMS level would end at FMS High Court and shall have no appeal, except procedural review in the same court by considering as specified “No. 3” above in the Constitutional Court text.

5. Cases under federal jurisdiction responsibility matter will have appeal to the Federal Supreme Court.

91


5. High Judicial Service Council

1. There should be federal High Judicial Service Council with responsibilities to defend judicial independence, general oversight over justice institutions, accountability, developing judicial administrative procedures and standards for the country, selection criteria for judicial personals, their promotion, their discipline, proposing judicial needs and implementing judicial training curriculum.

2. The High Judicial Service Council will also be responsible for the recruitment, removal/firing, promotion and discipline of judges for the Federal Supreme Court, Federal Constitutional Court, Benadir Regional Administrative courts, and Attorney General Office at federal level.

3. The High Judicial Service Council will consist of (9) members as stipulated articles “109 (A) and 111(A)” of the Provisional Constitution of the Federal Republic of Somali. The members will be selected in accordance with the criteria and procedures referred to in these above Articles of the Constitution.

4. A review will be undertaken for members referred to in these above Articles of the Constitution and the federal High Judicial Service Council will consist of 3 former judges, 2 public lawyers, Federal Attorney General Officer, Chairperson of the National Human Right Commission, chairperson of the Federal Constitutional Court and the Chief justice of the Federal Supreme Court.

5. Also there should be one High Judicial Management Committee at each FMS with the responsibilities to implement and defend judicial independence, recruitment, professional development, removal/firing, promotion, transfer and discipline of members of the judiciary and support staff at FMS-level.

6. Judiciary Training InstituteThere shall be one Federal Judicial Training Institute to train judicial personnel. The Institute should come under federal Ministry of Justice & Judicial Affairs and shall have a standardized curriculum for core subjects.

7. National Attorney General Office

1. The National Attorney General Office shall be part of the judiciary and High Judicial Service Council is responsible for appointment, removal/firing, promotion and discipline of national attorney general office staff.

2. The National Attorney General Office shall be independent for its mandate duties and preparation of its budget as well as management of its office affairs.

3. The National Attorney General Office shall be based in Mogadishu but can have offices in each Federal Member State (FMS), who would be responsible for prosecuting Federal-level cases and bring them before the authorized Courts at FMS Level.

4. Each FMS should establish its own attorney service at FMS-level, who would be responsible for prosecuting FMS-level cases before the FMS Courts. FMS attorney office shall be independent for its mandate duties and preparation of its budget as well as management of its office affairs.

8. Ministries of Justice

1. The judiciary is independent from the executive and legislative branches of the government of both Federal and FMS levels at the side of management and budget.

2. The Ministry of Justice at Federal level is responsible for reviewing and drafting of Federal laws and the political view of justice, in consultation with the relevant justice institutions.

3. FMS Ministries of Justice are similarly responsible for reviewing and drafting of FMS laws and the political view of justice, in consultation with relevant justice institutions.

4. The Ministry of Justice at Federal level should provide technical support to FMS Ministries of Justice as needed, and maintain close relation with them.

5. The Ministry of Justice at Federal is responsible for holding and convening coordination meetings

92


with all relevant stakeholders, who have work relation with the Ministry of Justice.

6. The Federal and FMS Ministries of Justice have overall responsibility to make policies to provide justice service delivery for citizens.

9. Custodial Corps

1. The Custodial Corps are part of the National Security Forces and governed by one unified legal framework. Custodial Corps have close working relations with federal and federal member states ministries of justice.

2. The Custodial Corps will have one standardized training curriculum. Training locations shall be rotated among federal member states and federal government.

3. Custodial Corps will have professional training plan for the Federal Custodial Corps and all federal member states as well as unified procedures for prison rehabilitation.

4. Custodial Corps will have:

a. One Commissioner General and his deputies at federal level

b. One Commissioner and his deputies at FMS who will have close coordination with federal Custodial.

5. There shall be federal Central Prison led by the Commissioner of the Custodial Corps and FMS Central Prisons led by Regional Commanders of the Custodial Corps.

6. There shall be Juvenile Rehabilitation Centers with a complete service for the delinquent youth at Federal and FMS levels, which shall be independent from other prison centers led by Commissioner Generals in Federal and FMS levels.

10. Constitutional and Judicial Laws Reform

1. This Political agreement shall be incorporated into ongoing Constitutional review of Federal Government of Somalia.

2. Somali Judiciary and other justice institutions shall have harmonized laws. In close coordination with all relevant stakeholders at all levels judicial laws review and amendments will be undertaken in line with this Political Agreement.

3. FMS can develop necessary acts and laws that are not contradictory to the national judicial laws.

11. Bar Associations

1. The Bar Association is an independent organization established on a special harmonized legal framework and it consists of Somali Lawyers.

2. There shall be a Federal-level Bar Association and FMS-level Bar Associations which have regular collaboration.

3. After the Bar Association submits a person who needs a license under the procedures outlined in the Country’s Bar Association Act, the process of issuing authorization for work identification is two levels; “Federal and FMS level”, and shall be provided by members from Bar Associations, the High Judicial Service Council at federal-level or High Judicial Management Committee at each FMS-level, Federal Ministry of Justice or FMS Ministry of Justice chaired by the representative of the High Judicial Service Council or from High Judicial Management Committee in FMS level, and the license will issued by the Federal Supreme Court or FMS High Court, which shall be registered in the high/Supreme Court records (Alpha).

4. Requirements, qualifications, competencies, strengths and experience which qualify Licensed Lawyers and the registration fee charges are outlined in the Unified Lawyer’s Law.

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12. Public Notary

1. Public Notary is a special office based on combined procedures and unified legal framework for the members of the public Notary.

2. The person qualifying to receive the Public Notary License must be a lawyer who has a valid University degree in law, have sufficient legal experience and not practicing as an advocate in the courts.

3. There shall be federal and FMS Public Notaries, which will have close collaboration.

4. After the Ministry of Justice submits the person who needs Public Notary license that applied in accordance with the Public Notary Law, the process of issuing the Public Notary license will be two levels; “Federal and FMS level”, and approvals are done a committee members coming from the High Judicial Service Council at Federal or High Judicial Management Committee at FMS, Federal Ministry of Justice or FMS Ministry of Justice and the license is finally issued on decree by the Ministry of Justice.

5. Requirements, qualifications, competencies, strengths and experience which qualify Licensed Public Notary and the process for receipt of financial services/fees are described in the Country’s harmonized Public Notary Law.

13. Judiciary Budget

1. Somali Judiciary and other justice institutions have their own specific sources of budgets and the responsibility for budgeting would be:

a. Judiciary and other justice institutions of Federal-level their budget have to come under the budget for the Federal Republic of Somalia;

b. Judiciary and other justice institutions of FMS-level their budget have to come under the budget of each federal member state.

2. Federal government will provide financial and technical support for FMS that don’t have adequate budget capacity for their judiciary.

3. Federal Ministry of Justice will be in charge of relations with international agencies in close collaboration with Ministries of Justice of FMS.

With the presence of Hirshabele President Mr. Mohamed Abdi Waare, members of his council of ministers, members of international community, 17 members of technical committee of Justice and Corrections Model and other dignitaries, agreement is signed:

1. Minister, Hon. Hassan Hussein Haji Ministry of Justice and Judicial Affairs FGSSignature: _______________ Date:

4. Minister, Hon. Hassan Ibrahim Hassan Ministry of Justice, and Judicial Affairs of SouthwestSignature: _______________ Date:

2. Deputy Minister, Hon Dr. Abdifatah Hassan Husein (Walloore)Ministry of Justice, Religious Affairs and Rehabilitation, PuntlandSignature: _______________ Date:

5. Minister, Hon. Mohamed Abdi Mohamed Ministry of Justice and Judicial Affairs of GalmudugSignature: _______________ Date:

3. Minister, Hon. Adam Ibrahim Aw-HirsiMinistry of Justice, constitutional and Religious Affairs of JubalandSignature: _______________ Date:

6. Minister, Hon. Awale Iimow AbdiMinistry of Justice and Religious Affairs, Hirshabele.Signature: _______________ Date:

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ANNEXE E:Justice and corrections model (Cabinet version August 2018)

SOMALI FEDERAL GOVERNMENTMINISTRY OF JUSTICE AND JUDICIAL AFFAIRS

Political Agreement on “Justice and Corrections Model of Somalia” endorsed by Council of Ministers of the Government of Federal Republic of Somalia in Mogadishu

On 6th August, 2018

Considering meetings and consultations with Justice Sector Institutions at federal and Federal Member States (FMS) levels which constant led by the Ministry of Justice and judicial Affairs of the Federal Government of Somalia (FGS) including; Justice and Corrections Model Conference conducted on April 24th - 28th 2016, Task Force meeting on 12th – 18th December 2016 and other regular previous consultations that took place between Justice Sector Institutions in general and in particular manner; Taking into consideration, the National Security Council step progress chaired by the President of the Federal Republic of Somalia which combines the memberships of the Prime Minister, his deputy, the Heads of all FMS and Ministers from FGS, decided on 3rd December 2017, to adopt “Mix System of Judiciary” which was huge success base for all Justice Sector Institutions;

Also having seeing the communiqué resulting from three consecutive day discussions that took place on January 20nd – 22rd 2018 in Mogadishu, participated by 17 task force members from Federal and FGS Justice Sector Institutions, who were responsible for detailing the Justice and Corrections Model of Somalia based on this political agreement.

Finally referring and considering the “Political Agreement” on “Justice and Corrections Model of Somalia” singed in Jowhar, Capital City of Hirshabelle (a Federal Member State of Somalia) on January 23 - 24, 2018 which was preliminary agreed and signed together by the Ministers of Justice of both Federal and FMS levels and after reviewing and having more debates undersigned and agreed recommendations suggested by 17 task force members on “Justice and Corrections Model for Somalia”.

The Council of Ministers of the Government of Federal republic of Somalia finally adopted the “Political Agreement” on “Justice and Corrections Model of Somalia” on 6th August 2018 and recommended that this Political Agreement will be incorporated and included into the finalization of the constitutional review process. In the meantime, the constitutional review is under process and implementation of the agreed political, it is recommended to continue to act in the current judiciary systems as practiced in the country or begin the process of building new systems in any way which is applicable in the local requirements.

General view:FGS will issue unified laws governing justice and corrections model in the country to ensure coherent implementation of the model across federal and FMS levels. FMS will have independent judicial management, which is about handling of justice system in their locations.

1. Structure of the Courts

1. One Federal Constitutional Court

2. One Federal Supreme Court

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3. FMS Appellate Courts

4. FMS Regional Courts, and

5. FMS District Courts

2. Constitutional Court

1. There should be one Federal Constitutional Court based in Mogadishu.

2. The Federal Constitutional Court of the country has a jurisdiction to hear and make decisions on all linked constitutional affairs of both Federal and FMS levels.

3. When the Federal Constitutional Court is deciding on a constitutional case related to any one of the FMS, it will hear that case in the capital city of the concerned state.

3. Ordinary Courts of the Country

1. There will be one high ordinary court at Federal level that is “the Federal Supreme Court”, which will deals with criminal, civil and administrative cases those mentioned in the laws to start under its jurisdiction and appeals taken from FMS Appellate Courts.

2. The Federal Supreme Court when hearing and deciding appeal cases from FMS Appellate Courts and complaints which will be clearly indicated in the Federal Organization of Judiciary Act, it will hear those cases in the capital city of the concerned state.

3. There shall be also FMS Appellate Courts which will be the second instance of FMS Courts and will have the following jurisdictions to hear;

a. Appeals from FMS Courts of first instance

b. To hear other cases mentioned in the laws of the land to start under the jurisdictions of FMS Appellate Courts. If it’s necessary.

4. FMS Courts of first instance will have jurisdiction to listen and start with over all cases of federal and FMS levels as specified in the laws of the country and their jurisdiction power will be categorized district court level and regional court level.

5. Benadir Regional Administration judiciary shall be administered as it is currently, until decision on Mogadishu’s status is taken as mentioned in the Provisional Constitution of the FGS (Article 9).

6. The structure and hierarchy of the ordinary courts would be:

I� First Instance: district and regional courts (which will get additional powers in order to decentralize rule of law and bring it closer to the people)

II� Second Instance: FMS Appeal courts (which will have jurisdiction to listen over appeals from FMS first instance courts of both Federal and FMS level cases)

III� Third instance: The Federal Supreme Court situated in Mogadishu (which is the final third instance that ends up all judicial cases of the Federal Republic of Somalia (FRS).

4. Legal FrameworkThe Federal Organization of the Judiciary Act which will be initially drafted and amended by the FGS would establish detailed structure, territorial and subject matter jurisdiction of the courts and it will be limited there jurisdictions and hierarchy of the Courts. Federal High Judiciary Service Commission would ensure and is responsible to create harmonized legal framework of the judiciary and application of same laws across the country. The Federal Organization of the Judiciary Act will be also detailed in procedures and processes of judicial case management system of the country.5. Jurisdiction Levels

1. Criminal and civil cases related to Federal-level areas of responsibility, including foreign affairs, national defense, citizenship and immigration, monetary policy, safety of aviation, counterfeiting of national currency, crimes against the state and crimes committed by employees of the federal government while discharging their official duties and other cases that fall within federal territorial

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jurisdiction as may be indicated in this Political Agreement and laws of the country are considered as Federal-level cases and federal cases start at the Federal Supreme Court and FMS Regional Courts and this will be detailed in the Federal Organization of the Judiciary Act.

2. All other cases (criminal or civil) will fall within the jurisdiction of the FMS level.

3. Federal Supreme Court ensures smooth administration of FMS court cases, prepares procedures for cases taking place overseas and allows execution procedure of criminal offender sentenced overseas. The Federal Supreme Court also decides on extraditions requests.

4. All different cases that start at the FMS Courts and their different hierarchies will go through three instances, except managerial/administrative and electoral cases which start at the FMS Appellate Courts. All these cases can be appealed to the Federal Supreme Court through following procedures and conditions that will be detailed in the Federal Organization of the Judiciary Act.

6. High Judicial Service Council

1. There should be Federal High Judicial Service Council with responsibilities to defend judicial independence, general oversight over justice institutions, accountability, developing judicial administrative procedures and standards for the country, putting selection criteria for judicial personals, their promotion, their discipline, proposing judicial needs and implementing judicial training curriculum.

2. The High Judicial Service Council will also be responsible for the recruitment, removal/firing, promotion and discipline of judges for the Federal Supreme Court, Federal Constitutional Court, Benadir Regional Administrative courts, Judges of FMS Courts and Attorney General Office at federal level.

3. The High Judicial Service Council will consist of (9) members as stipulated articles “109 (A) and 111(A)” of the Provisional Constitution of the Federal Republic of Somali. The members will be selected in accordance with the criteria and procedures referred to in these above Articles of the Constitution.

4. The High Judicial Service Commission will be led and chaired by the Chief Justice who is the Chairperson of the Federal Supreme Court.

5. The High Judicial Service Commission will have offices in all capital cities of the FMSs, duties and procedural work of these offices will be detailed in the Federal Organization of the Judiciary Act. .

6. The High Judicial Service Commission is responsible and independently manages the functions of its office and in general develops the federal judicial budget.

7. Judicial Training InstituteThere shall be one Federal Judicial Training Institute which comes under the control of the Judicial Service Commission to train judicial personnel and also there shall be Training Institutive for the newly graduated legal professionals, this Institute should come under federal Ministry of Justice & Judicial Affairs and shall have a standardized curriculum for core subjects.

8. Federal Attorney General Office

1. The Federal Attorney General Office shall be part of the judiciary and High Judicial Service Council is responsible for appointment, removal/firing, promotion and discipline of federal attorney general office members.

2. The Federal Attorney General Office shall be based in Mogadishu but it can have offices in each Federal Member State (FMS), who would be responsible for prosecuting Federal-level cases and bring them before the authorized and competent Courts at FMS Level.

3. Each FMS should establish its own attorney service at FMS-level, who would be responsible for prosecuting FMS-level cases before the FMS Courts. FMS attorney office shall be independent for its mandate duties and preparation of its budget as well as management of its office affairs.

4. Duties and procedural work between the Federal Attorney General Office and FMS attorneys will

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be detailed in the Federal Organization of the Judiciary Act.

9. Ministries of Justice

1. The judiciary is independent from the executive and legislative branches of the government of both Federal and FMS levels at the side of management and budget.

2. The Ministry of Justice at Federal level is responsible for reviewing and drafting of Federal laws and the political view of justice, in consultation with the relevant justice institutions.

3. If needed, FMS Ministries of Justice are similarly responsible for reviewing and drafting of FMS laws and the political view of justice, in consultation with relevant justice institutions.

4. The Ministry of Justice at Federal level should provide technical support to FMS Ministries of Justice as needed, and maintain close relation with them.

5. The Ministry of Justice at Federal is responsible for holding and convening coordination meetings with all relevant stakeholders, who have work relation with the Ministry of Justice.

6. The Federal and FMS Ministries of Justice have overall responsibility to make policies to provide justice service delivery for citizens, oversight judicial institutions work, and access to legal aid services for persons who cannot afford to defend themselves before the courts as specified in the constitution.

10. Custodial Corps

1. The Custodial Corps are part of the National Security Forces and governed by one unified legal framework. Custodial Corps have close working relations with federal and federal member states ministries of justice.

2. The Custodial Corps will have one standardized training curriculum. Training locations shall be rotated among federal member states and federal government.

3. Custodial Corps will have professional training plan for the Federal Custodial Corps and all federal member states as well as unified procedures for prison rehabilitation.

4. Custodial Corps will have:

a. One Commissioner General and his deputies at federal level

b. One Commissioner and his deputies at FMS who will have close coordination with federal Custodial.

5. There shall be federal Central Prison led by the Commissioner of the Custodial Corps and FMS Central Prisons led by Regional Commanders of the Custodial Corps.

6. There shall be Juvenile Rehabilitation Centers with a complete service for the delinquent youth at Federal and FMS levels, which shall be independent from other prison centers led by Commissioner Generals in Federal and FMS levels.

11. Constitutional and Judicial Laws Reform

1. This Political agreement shall be incorporated into ongoing Constitutional review of Federal Government of Somalia.

2. Somali Judiciary and other justice institutions have unified laws. In close coordination with all relevant stakeholders at all levels judicial laws review and amendments will be undertaken in line with this Political Agreement.

3. FMS can develop necessary acts and laws that are not be contrary to the national judiciary laws.

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12. Bar Associations

1. The Bar Association is an independent organization established on a unique unified legal framework and it consists of Somali Lawyers.

2. There shall be a Federal-level Bar Association and FMS-level Bar Associations which have regular collaboration.

3. After the Bar Association submits a person who needs a license under the procedures outlined in the Country’s Bar Association Act, the process of issuing authorization for work identification is two levels; “Federal and FMS level”, and shall be provided by members from Bar Associations, the High Judicial Service Council at federal-level or High Judicial Management Committee at each FMS-level, Federal Ministry of Justice or FMS Ministry of Justice chaired by the representative of the High Judicial Service Council or from High Judicial Management Committee in FMS level, and the license will issued by the Federal Supreme Court or FMS High Court, which shall be registered in the records (Alba) of the respective court.

4. Requirements, qualifications, competencies, strengths and experience which qualify Licensed Lawyers and the taking of registration money process are outlined in the harmonized Lawyer’s Law.

13. Public Notary

1. Public Notary is a special office based on combined procedures and unified legal framework for the members of the public Notary.

2. The person qualifying to receive the Public Notary License must be a lawyer who has a valid University degree in law, have sufficient legal experience and not practicing as an advocate in the courts.

3. There shall be federal and FMS Public Notaries, which will have close collaboration.

4. After the Ministry of Justice submits the person who needs Public Notary license that applied in accordance with the Public Notary Law, the process of issuing the Public Notary license will be two levels; “Federal and FMS level”, and approvals are done a committee members coming from the High Judicial Service Council at Federal or High Judicial Management Committee at FMS, Federal Ministry of Justice or FMS Ministry of Justice and the license is finally issued on decree by the Ministry of Justice.

5. Requirements, qualifications, competencies, strengths and experience which qualify Licensed Public Notary and the process for receipt of financial services/fees are described in the Country’s Unified Public Notary Law.

14. Judiciary Budget

1. Somali Judiciary and other justice institutions have their own specific sources of budgets and the responsibility for budgeting would be:

a. Judiciary and other justice institutions of Federal-level their budget have to come under the budget for the Federal Republic of Somalia;

b. Judiciary and other justice institutions of FMS-level their budget have to come under the budget of each federal member state.

2. Federal government will provide financial and technical support for FMS that don’t have adequate budget capacity for their judiciary.

3. Federal Ministry of Justice will be in charge of relations with international agencies in close collaboration with Ministries of Justice of FMS.

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ANNEXE F:Baidoa agreement on the federal elections model (June 2018)

(The Government of Federal Republic of Somalia)

Ref, OPM, 0.27/03/18 Date: 05/06/2018

AGREEMENT ONELECTORAL SYSTEM FOR THE ELECTIONS OF THE FEDERAL REPUBLIC OF SOMALIA

FOR 2020Article 1: Parties to the Agreement

This agreement is reached by the Federal Government of Somalia, Federal Member States and Benadir Regional Administration.

Article 2: Introduction

The Conference of the National Security Council held in Baidoa on June 3 - 5, 2018,

Having considered the meeting of the National Security Council of February 6 - 10, 2018 which led to the establishment of the Federalisation Negotiation Technical Committee (FNTC);

Having seen Article 2.3 of the above agreement which instructed the Committee to do research on the electoral systems most appropriate to the country for the year 2020;

Having recognized the outcomes of international summits such as the London Conference of May 2017 and the Somalia Partnership Forum in Mogadishu in December 2017 of which the Federal Government of Somalia, the Federal Member States and the Benadir Regional Administration were part of where the Federal Government declared its decision to hold universal suffrage elections in 2020 and prepare the electoral law before the end of 2018;

Having studied the proposal of the FNTC on the most appropriate electoral model and electoral constituency in 2020;

Having seen Articles 47 and 64 of the Provisional Constitution of the Federal Republic of Somalia;

Having considered the country’s general interest of the people and the country and the need for lasting political stability that leads to governance system founded on the confidence of the Somali people and inclusive democratic system, they agreed on the following principles:

Article 3: Fundamental Principles on Electoral Process of the Federal Republic of Somalia in 2020:

1. The electoral model and electoral constituencies that the country shall adopt must ensure that the people can freely and democratically cast their votes (one person, one vote).

2. The electoral model should be a model that considers the security and economic conditions as well as balanced political representation.

3. The electoral model should be a model that encourages multi-party political system based on democratic system that considers balanced clan seat of the multi-party system closed list.

4. The electoral model must be a model that considers a process that protects the representation of

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the minorities and women.

5. The electoral model must be a model that advances solidarity of the society and the inviolability of the unity of Somalia.

6. The electoral model must be a model that builds confidence of the Somali people that their interests are represented through their elected representatives.

Based on the principles stated above, the Council agreed on the following:Article 1: The Electoral Model of the country shall be Closed List- Proportional Representation.

Article 2: The electoral system shall consider a balanced clan seat of the multi-party system closed list.

Article 3: Somalis that have right to vote must be registered, wherever it is possible, and make sure that they cast their votes freely. Article 4: The election shall take place all over the country, wherever it is possible in a unified way.

Article 5: The drafting and approval of the electoral law shall be concluded latest by December 2018.

Article 6: Government institutions responsible for the electoral issues are instructed to implement this agreement in compliance with the laws of the country.

Signing of Agreement

Federal Government of SomaliaHon. Hassan Ali KhayrePrime Minister – FGS

Federal Member States & Benadir AdministrationHon. Abdiweli Mohamed A. GasPresident of Puntland

Hon. Ahmed Mohamed IslamPresident of Jubaland

Hon. Sharif Hassan Sheikh AdenPresident of ISWA Hon. Ahmed Duale GellePresident of Galmudug

Hon. Mohamed Abdi WarePresident of Hirshabelle

Hon. Abdirahman Omar OsmanGovernor of Benadir Regional Administration

Date. 05 June 2018.

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ANNEXE G:National Consultative Council (NCC) agreement on the electoral process 2020/21 (27th May 2021)

The Federal Republic of SomaliaOffice of the Prime Minister

Ref/0239/05/2021 Date: 27/05/2021

Subject: The Electoral Process of 2020-2021

THE PRIME MINISTER OF THE GOVERNMENT OF THE FEDERAL REPUBLIC OF SOMALIA.

Having seen: Art. 100 (A and D) of the Provisional Constitution;

Having seen: The complete agreement of the National Consultative Council on the elections;

Having considered: The decision of the President delegating leadership of the elections to Prime Minister;

Having seen: The tremendous tasks before of the Government of FRS;

Issued the following articles:

1. From today May 27, 2021, the country has gone for election.

2. I instruct the Federal and State level institutions in charge of electoral matters to fulfill their duties in the implementation of the elections.

3. I appeal to the Somali people to support us hold free and fair elections in the country.

4. We call on the international community to support us in implementing the agreed electoral model.

This decree shall come into force upon the signature of the Prime Minister of the Government of the Federal Republic of Somalia.

Best regards,

H.E. Mohamed Hussein RoblePrime Minister of the Government of FRS

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NATIONAL CONSULTATIVE COUNCIL CONFERENCE ON THE ELECTORAL ISSUES

27 May 2021COMMUNIQUE

The summit brought together the leaders of the National Consultative Council, chaired by the Prime Minister of the Federal Government of Somalia, His Excellency Mohamed Hussein Roble, and attended by the President of Puntland Said Abdullahi Deni, the President of Jubaland Ahmed Sheikh Mohamed Islaam, the President of South West State Abdiaziz Hassan Mohamed, the President of Galmudug Ahmed Abdi Kariye, the President of Hirshabelle Ali Abdullahi Hussein, and the Governor Banadir Region Omar Mahamud Mohamed.

The conference took place in Mogadishu from 22 to 26 May 2021. The National Consultative Council discussed at length how to find solutions to the challenges of the implementation of the 17 September Agreement on holding elections for the federal constitutional bodies of Somalia.

The Council also reviewed the 16 February 2021 proposals of the Baidoa Technical Committee, in order to implement the technical points of the proposal of the Committee which consisted of:

1. Procedure for resolving the grievances related to the Electoral Management Committees;

2. A solution for the Electoral Management Committee of Somaliland;

3. Mechanism for resolving the dispute on the conduct of elections in Gedo Region.

4. Implementation of the women’s quota;

5. Timetable for holding the election.

The Council also discussed issues that it considered important for the conduct of the election, including general security of the country, electoral security and the roadmap for the completion of Somalia’s state-building process.

Thus, after lengthy discussions and deliberations, and considering the need for the election of the Federal Institutions of Somalia to be held within a certain period of time, to take place in a peaceful, consensual manner and leading the country to political stability, the National Consultative Council has decided the following:

1� Procedure for Resolving the Dispute on Electoral Management Committees

a. In line with the recommendations of the Baidoa Technical Committee, the Council decided, that complaint against members of the federal and state Electoral Management Committees be submitted to the Office of the Prime Minister of the Federal Government within 3 days. The 3 days shall start when the Leaders of the National Consultative Council sign this agreement.

b. The Prime Minister of the Federal Government of Somalia, upon receipt of the complaint against members of the committees, and when he verifies the evidence of the information which forms the basis of the complaint, shall request the petitioner to nominate a replacement and publish the information within 2 days.

c. The committees shall elect from among themselves their chairperson after their completion.

2� Resolving the Dispute on the Electoral Management Committee for Somaliland

a. The Prime Minister of the Federal Government shall be responsible for the process of the election of the seats of Somaliland, in consultation with the Speaker of the Upper House and the Deputy Prime Minister.

b. Speaker Abdi Hashi shall nominate four members of the Election Management Committee for the Seats of Somaliland (SEIT), one member of the election management committee at the Federal level for Somaliland (FEIT) and one member of the Dispute Resolution Committee.

3� Mechanism for Resolving the Dispute on Gedo RegionThe Leaders of the National Consultative Council adopted/approved the proposals of the Baidoa Technical Committee of 16 February 2021 on the roadmap for resolving the political and security disputes in Gedo Region, in general and specifically how the election can be conducted in Garbahaarey.

The Council resolved that:

a. The community of Gedo Region be called upon to work for peace, unity and community and the administrative solidarity and cohesiveness of Jubaland.

b. The Prime Minister of the Federal Government shall lead the security and reconciliation in Gedo Region so that the election can be held smoothly.

c. A Reconciliation Committee consisting of representatives of the Federal Member States, excluding Jubaland, shall be created.

• Working closely with the Prime Minister of the Federal Government, the Committee shall be responsible for creating an atmosphere of security and political stability conducive to holding a consensual election in Garbahaarey.

• In consultation with different sections of the community, the Committee shall propose two candidates for each position of Commissioner and Deputy Commissioner of Garbahaareey District.

• The Committee shall be appointed within 3 days from the signature of this agreement.

d. The President of Jubaland State shall appoint members of Garbahaarey District Administration that have been submitted by the Reconciliation Committee.

e. The Reconciliation Committee is instructed to complete a Gedo Region stabilization plan, to create the atmosphere for holding the election in Garbahaarey within 30 days starting from the appointment of the committee.

f. On electoral security in Garbahaarey:

• AMISOM Police shall be deployed in Garbahaarey town to ensure the security of the town and location of the election,

• The Reconciliation Committee and the new Administration appointed by Jubaland present recommendations on the close protection for the security of the electoral committee, delegates and candidates so that security can be reliable during the conduct of the election.

g. The Reconciliation Committee shall submit to the Prime Minister of the Federal Government the plan and timetable of the peace conference of the region and completion of the formation of the administration of Gedo Region, to be implemented within 60 days after the election.

4� Election Security ProtocolThe National Consultative Council has decided:

a. To establish a nine-member Security Committee to be responsible for electoral security. The committee shall be led by the Prime Minister of the Federal Government of Somalia, with its members being Federal Government and Federal Member States Police Commanders, together with the AMISOM Police Commissioner.

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b. That the Security Committee should prepare Special Forces to guard the polling stations where the election will take place, in particular the polling stations where the seats for Somaliland, the Speakers of both Houses of Parliament and the President of the Federal Republic of Somalia are to be elected.

c. To instruct all sections of the security forces at the Federal and Federal Member State levels not to interfere in political affairs and the conduct of elections.

d. That the Electoral Security Committee shall give regular reports to the National Consultative Council to update on the current situation of electoral security.

5� Implementation of Women Quota In accordance with the agreement of 17 September 2020, the Council unanimously agreed to protect the 30% women’s quota in both Houses of Parliament.

6� Timetable for Conducting the ElectionConsidering the delay in the timetable assigned to conduct the 2020/2021 Federal Election, the National Consultative Council, decided:

a. That the election be completed within 60 days, as stated in the 16 February Baidoa proposal.

b. That the Election Committee at the Federal level (FIEIT) issue the general timetable of the electoral implementation based on the timeline mentioned in paragraph (a).

c. That the Committees at the Federal Member States level (SIEIT) prepare a specific timetable for conducting the election in Federal Member States in accordance with the general timetable of the Federal level.

7� Maintaining Regular Cooperation of the National Consultative Council

a. The National Consultative Council shall be responsible for the implementation of this agreement and working on the general security of the country and electoral security.

b. The Council decided to hold regular meetings to ensure the implementation and the smooth process of conducting the election and resolving any challenges arising from the implementation of the election.

8� Roadmap for the Completion of the State-building Process of Somalia

a. The Council decided to prepare the roadmap for the priority plans to complete the state-building process of Somalia, taking into account that all priority plans must be completed within two years.

b. The Council decided to work regularly together on the implementation of the roadmap of completing the state-building process of Somalia, which is annexed to this agreement.

9� Appreciation

a. The National Consultative Council thanks the Prime Minister of the Federal Government of Somalia for his leadership role and for facilitating the conference.

b. The Council thanks the Political Stakeholders, Civil Society Organizations and various sections of the Somalia community for their role in achieving this agreement and in resolving the disputes that resulted from electoral issues.

c. The Council also thanks the International Community for their support to Somalia to find a solution to the dispute on the electoral issues.

---------End--------

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ANNEX – COMMUNIQUE OF THE NATIONAL CONSULTATIVE COUNCIL SUMMIT

Roadmap for Completing State-Building of Somalia

Introduction

In order to complete the state-building process of Somalia based on the Federal system, and to overcome recurrent challenges of political disputes, elected leaders of the constitutional authorities of the Federal Government and the Federal Member States must work to strengthen the unity and cohesiveness of the Somali people and the country. They must also work for the stabilization and security of the country in order to achieve a country that is compatible with the rest of the world.

In order to achieve the above-mentioned principles, the Council agreed to implement the Roadmap for crucial priority plans for state-building in Somalia, as outlined in the matrix below:

No Priority Plan Details Implementation Period Responsibility

1Completion of the Federal Constitution

To reach an agreement on the review committee and the process of completing the Constitutional Review

February 2022 Jointly FGS/FMS

To complete the technical articles of the Constitution April 2022 Jointly FGS/

FMS

To reach an agreement on the contentious political articles, such as:1. Powers and cooperation between

levels of government2. Resource sharing3. Justice System4. Protection of the Constitution

May 2022 Jointly FGS/FMS

To achieve a political agreement on the application of the Constitution before resolving the issue of Somaliland

June 2022 Jointly FGS/FMS

2

Completion of the pro-cess of build-ing the army and strength-ening secu-rity of the country

To achieve a joint agreement on the way to build the national army of Somalia, review of previous agreements and treaties on security


To reform the structure of the national army, and equip and prepare it to assume the responsibility for national security

March 2022 Jointly FGS/FMS

Liberation of areas under the control of terrorist groups September 2022 Jointly FGS/

FMS

3 The Issue of Somaliland

The FGS and FMSs should achieve an agreement on the process of talks on the Somaliland issue


To engage in the Somaliland talks August 2022 Jointly FGS/FMS

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No Priority Plan Details Implementation Period Responsibility

4Status of the Capital of Somalia

The Institutions of the FGS and FMSs to achieve a unified agreement on the status of the capital


5

Reconcilia-tion of the Somali Com-munity

To reconvene the National Reconciliation Commission February 2022 Jointly FGS/

FMS

Preparation of the National Reconciliation Plan May 2022 Jointly FGS/

FMS

Implementation of the Somali Community Reconciliation Programme December 2022 Jointly FGS/

FMS

6Donor funds and debt relief

To agree on dividing/sharing donor funds and develop a roadmap for debt relief


7

Implementa-tion of one person one vote election

To review and reach an agreement on all laws, the structures and policies of implementation of one person one vote elections


8

To complete the process of conducting the election (political parties, population census, boundaries, resources and election materials)

September 2023 Jointly FGS/FMS

Signatories of the Communique.

1. Prime Minister of the FGS Mohamed Hussein Roble ------------------------------

2. President of Puntland Said Abdullahi Deni ------------------------------

3. President of Jubaland Ahmed Sheikh Mohamed Islaam ------------------------------

4. President of South West Abdiaziz Hassan Mohamed ------------------------------

5. President of Galmudug Ahmed Abdi Kariye ------------------------------

6. President of Hirshabelle Ali Abdullahi Hussein ------------------------------

7. Governor of Banadir Region Omar Mahmud Mohamed ------------------------------

ABOUT THE MINISTRY OF CONSTITUTIONAL AFFAIRS

Documents

Transcript of ABOUT THE MINISTRY OF CONSTITUTIONAL AFFAIRS