Introduction
From the last months of the former
transitional government of President Sherif (2009-2012) there was
meetings/negotiations between the Somali federal government and the regional “authority”
of Somaliland regions. The government of former President Sherif and the government of President Hassan
Sheik which has been given a full recognition by the international Community
like the UN, EU, US, Arab League as the “sole representative” of the sovereignty
of the Somali Republic have both taken a “wrong legal, political approach” and
strategy in meetings/negotiations vis-vis the regional “Somaliland” authority.
Last Monday/Tuesday (8-9 June 2013) we
had another meeting/negotiations in Turkey between two delegations representing
the “two parties” as their spokesmen telling the Media and the Somali people-citizens.
First of all
let me start with (1) what are the legal Constitutional principles which must
guide the meetings/negotiations,(2) the format of the meetings,(3) including
the Agendas during the negotiations.
Legal
Constitutional Principles.
One of the Somali federal government founding
legal principles is the Rule of the Law (art 3).In other words every act/policy
of the Somali government must be based on the Law and in this special case on what the Constitution says.
The article (4.C1) on the Supremacy of the Constitution says: “After the Shari’ah(Islamic
Law principles) the Constitution of the Federal Republic of Somalia is the
Supreme Law of the Country. It binds and guides Policy initiatives and
decisions in all department of government.”
More to that
at article (7) titled:” The territory of the federal Republic of Somalia “at (C1)”
is written that “The sovereignty of the Fderal Republic of Somalia extends over
all the territory of the federal Republic of Somalia which includes The Land,
Territorial sea, the Islands, the Subsoil, the Airspace and the Continental shelf
and any Land and Waters that join the federal Republic of Somalia. In
accordance with a law that shall be passed by the federal parliament. Also (C2)
says:” the Territory of the federal Republic of Somalia is Inviolable and Indivisible”;
At (C4) says”
The boundaries of the federal Republic of Somalia shall be those described in
the 1960 Constitution of Somalia”.
All this
articles must be the guiding Constitutional principles of the Somali Federal
Republic government in any act/policy or even negotiations. But unfortunately we
can see that maybe for naivety or incompetence doubled by negligence they have
not been considerate even before and during the so-called
meetings/negotiations.
The format of the meetings were totally
wrong because there not any consideration on what are meant this meetings/negotiations.
On what protocols the two delegations were meeting? What is the legal definition
of the Somali federal Republic in these meetings? That Somalia is the “sole sovereign
power of Somalia which has been recognized under International Law”? What is
the Legal definition of “Somaliland”? Where its territory and jurisdiction is situated?
Under what legal definition they are at the meetings? Who recognized them?
The Agendas of the meetings have never
been agreed before hand and prepared by the Somali federal government.The
Somali federal government has not got a clear plan of negotiations and what is
the end-game except the concept of Unity and the recognition it enjoys as
representative of Somalia including the regions of Somaliland and its people-citizens.
While the regional authority of “Somaliland” has a clear two fold game plan of
first getting “recognized” by participating in this meetings as a representative
of “part of the Somali territory and its authority” which can be used as a “Legal precedent “ in a Legal
case at international Forums/Courts. The meetings are hosted by a third party
like Turkey. Secondly to push as a second alternative in the negotiations for a
Confederate system of Governance between Somalia and the regional authority of “Somaliland”.
As Confederate I mean two different States with different sovereignty but under
a Confederate system for Somalia. In that way “Somaliland” regions authority
could have the rights to make new “ concessional Rights” for the Oil and Gas of
the Awdal regions and Sool and Sanag regions which are also claimed by the self
declared regional authority of Khatuma State which it says its part and parcel
of the Somali Federal Republic.
The game
plan of “Somaliland” regional Leaders came clear when they told the representative
of the UN Mission for Somalia that he cannot work and open office in Hargeisa
the capital city of the regional authority. In other words they are saying they
are not in his mandate as they are not part and parcel of Somalia. What has
always missed in their arguments was the legal basis for the “secession or
separation”. Because their narrative was always based on political arguments
like the Civil wars and the Human Rights abuses the Clan communities have suffered
in the 80 under the Siad Barre regime. Now through these meetings/negotiations
they are getting ammunition for a future legal challenge in International
Courts of Law by being “party” to these meetings/negotiations.
The Somali Provisional Constitution.
The Somali provisional constitution
is the supreme law of the land and is quite clear what is says about Somali sovereignty
and the legitimate representative of Somalia.
The Somali provisional Constitution although is incomplete the Constituent
Assembly of the Elders have delegated the federal Parliament “to remake the
Final draft”. But the Clan- Community representative as MP members of the
regions of “Somaliland” are in the Somali federal parliament. In the executive
they have they own share of seats as Ministers and also in the Judiciary.
The Act of Union of 1961 between the Colonial British Somaliland regions
of Somalia and the Italian regions of Somalia are still valid and part of the
Somali legal systems. The government of Hassan Sheik must be careful to handle
legal issues like this
meetings/negotiations concerning the Unity of the Somali “federal “Republic. I
use the word “federal” between brackets because till this Constitution is
approved in an Act of an elected Parliament and
in a national Referendum, we are still”the
Republic of Somalia legally”.
Back to the Drawing Board.
The government of Hassan Sheik Mohamud must go back to the drawing
board and prepare a “White paper” on this negotiations with the regional
authorities of “Somaliland”. When I say a “White paper” I mean a document on the Strategy and Goals approved
by the Council of Ministers or even
submitted and approved by the Somali federal Parliament. This strategy must be
told to all Somali people-citizens who are the national stake-holders including
all Clan- community from all regions of Somalia.
The strategy must be sub-divided in (1) Legal issues(2) Political issues
(3) and Cultural and Economic issues which have been explored and researched by
Somali professionals on those sectors.
If the things go on as they
are now mixing political issues and legal issues and “ recognizing” indirectly
the authority of the regions of “Somaliland” as “ party” or “legal entity”
different from the “indivisible sovereignty” of the Somali federal Republic there will be a “legal catastrophe” for the
Unity and Territorial integrity of the Nation-State called Somalia. Just to give you an example the
control of the Airspace of Somalia falls under the jurisdiction of the Somali Federal
Republic not regional Authorities who have the powers to deal directly with International
organizations like the International Civil Authority.
But in the meetings/negotiations the authority of the regions of
Somaliland has requested to control its regional “Airspace” as it was a “Sovereign
Legal Entity”. What I know is the two “ parties” they even nominated a
technical committee to deliberate later
on the subject.
This is not a “technical issue” but a “legal” one linked to the sovereignty
of the Republic as our Constitution mentions itself. If there are different
airspaces controlled by different authorities it will mean different Sovereign powers
having Jurisdiction on the Somali Republic territory. If the Somaliland
authority have its own Civil Aviation authority who shares the Powers to
control the air spaces of that region it will also mean two different Sovereign
States.
I hope the Somali federal government would understand that they do not
have the “legal authority” to Change the Territorial integrity and Unity of
Somalia if it’s not mandated by an Act of parliament and a National Referendum which
all Somali people-citizens have voted in a free and fair manner.
I suspect some of the
entourage of President Hassan Sheik, the so- called Salafist group called “Damu
Jadid”party, which controls this meetings/ negotiations as Ministers who are the natural allies of the
Somali Salafist Business cartels allied to what I call the hegemonic group of
Ethiopia-IGAD are behind this “Legal catastrophe” .This “legal -political
catastrophe “ in which the sovereignty ,territorial integrity and Unity of the
Somali federal Republic is amended/changed is illegal and in contravention of
the Somali Federal Constitution.
I do not believe the “Ruling Elites” of Mogadishu is not aware of this
Big Blunder/Legal treason but there is a “legal soft coup” they planned and executed
without the Knowledge of the Somali people-citizens. My conclusions is this
meetings/negotiations are all linked and part of the Old Plans of Ethiopia –IGAD
group and their sponsors of China,Iran,Russia,France and Italy to subdivide the
Somali Republic in five or six new Sovereign states to get its Oil and Gas.
Wait and see.
