International Development Law Organization

Somalia: After a Constitution, What Next?

“Whenever I visited Mogadishu before, I wouldn’t be allowed to leave the airport,” says IDLO’s Somalia representative in the region, Adam-Shirwa Jama. “These days, it’s a little easier and I can even venture out for meetings”.

Elsewhere, this might not sound like much. But in the blown-out capital of a country which, while edging toward reform, is still largely a collapsed state, the ability to travel into town matters: it is a measure of Somalia’s tentative return to functional nationhood.

Although the ousted al-Shabaab militia continues to pose a lethal threat, improving security has allowed a measure of reconstruction to take place. The flak jackets are coming off. Amid a wave of investment and diplomatic support, diaspora Somalis are trickling back in.

In the last two years, Mogadishu has even regained that lost attribute: a mayor. Overall, emerging from a fraught transition period, most of Somalia’s basic state institutions — presidency, government, parliament — are now in place. 

Still lacking, of course, is any electoral democracy in the modern sense: with large parts of the country outside government control, and persistent volatility where that control exists, no popular vote is seen possible in the short-to-medium term. 

Political jobs in Somalia tend to be filled through negotiation, or else through balloting within small, overlapping circles of notables. This lack of formal popular legitimacy places a high price on consensus — and on the skills needed to bring it about.

“I may not have Somali nationality,” says IDLO’s Mr Jama, a UK-educated lawyer. “But I’m a Somali. I understand the country; I understand its dynamics and its intricacies. When I talk to Somalis, I do it in their language — which makes them much more receptive.”

This cultural affinity is helping IDLO navigate what remains a fractious polity. An early partner of Somalia’s restored civilian authorities; the organization has worked closely with local experts on the country’s draft constitution. It has listened and advised, compared and explained, bringing three decades of legal expertise to bear on the Somali constitutional process. 

IDLO’s involvement, while never intrusive, has helped get closer to a text that is in line with international human rights standards. The review process is continuing, but there is momentum now for women — in part thanks to fearless lobbying by Somali women themselves — to be guaranteed representation; momentum to ensure that female circumcision remains outlawed; that children may not be used in armed conflict; that provisions on religion — no faith other than Islam may be propagated in Somalia — are less restrictively formulated than they might have been. 

It also fell to IDLO to popularize this broadly progressive draft at several ‘town hall meetings’. In what might be termed a constitutional traveling show, the organization held consultative sessions for a cross-section of Somali constituencies to have their say: Mogadishu residents, refugees, diaspora elites.

All well and good, no doubt, and recognized as such by key Somali officials in recent conversations with Mr Jama. But with all this work behind it, is there still much left for IDLO to do in the country?

A great deal, as it turns out. The Somali parliament has four years to debate the draft constitution, until — it is hoped — it can be put to a national referendum. Much more legal and technical assistance will be required before that happens. 

“There are still many gaps in the draft, and we need to support parliament to fill those gaps,” Mr Jama explains. “We must look, for example, at how sub-national units may be accommodated.” 

The reference is clear: there is still resistance to a centralized state in Somalia, where powerful clans continue to hold sway, regional differences are hard-wired, and secession (by the unrecognized state of Somaliland in the north) is a fact.

“We also need to look at implementation,” Mr Jama adds. “Institutions need to be set up for the Constitution to come into force. Legislation needs to be passed. There’s a lot of work to do.” 

Most observers will agree: while the constitution has been broadly welcomed, some analysts have described it as existing in a parallel universe, or fantasy land. There is still a chasm between its vision of what Somalia should be, and what it is: a splintered state struggling to be reborn. 

A synthesis has yet to emerge between competing legal systems — traditional, Sharia and secular. A judiciary, both in terms of human resources and infrastructure, must be rebuilt. All in all, Somalia’s to-do list is vast. Yet the framework to tackle it is finally in place; the auspices, by all accounts, are the best seen for years. And as luck would have it, many of the items of that list are things IDLO is well equipped to help with. 

The organization, of course, strongly believes that it is for the Somalis themselves to chart their own future. But equally, as they do so, they know whom to call for back-up.