by Aman H.D. Obsiye
Tuesday, June 23, 2015
Somalia’s looming constitutional crisis is heating up due to the newly emerging Galmudug State. In the first short essay, I warned that Somali Federalism has now confronted its greatest quagmire due to the choice of either having clan federalism or provincial federalism as its guiding star.
The Galmudug State Charter is rumored to have stipulated that its jurisdiction will encompass the provinces of Galguduud and Mudug, both in its entirety. Puntland State is not pleased with Galmudug’s jurisdictional claim of northern Mudug, in which Puntland lays claim to three of its five districts: Galdogob, Galkayo, and Jariban (see: Constitution of the Regional Puntland State of Somalia, Article 6. Section 1.). Puntland authorities have gone so far as to warn of potential civil war if its claims to northern Mudug are threatened. In this critical juncture of Somalia’s history, peaceful dialogue and conflict resolution mechanisms based on the rule of law is needed. In this second short essay, I will provide legal analysis concerning Mudug province and humbly propose a peaceful route that can reduce potential hostilities.
Who Has Constitutional Claim Over Mudug?
In order for us to discern whether Puntland or Galmudug have constitutional claim over Mudug province, we must analyze the highest law of the land: Somalia’s Provisional Constitution. The Constitutional requisite for establishing a federal member state is: “Based on a voluntary decision, two or more regions may merge to form a Federal Member State.” Provisional Fed. Const. June 12, 2012, art. 49, §6 (Som.). We must use the legal technique known as “statutory interpretation” to properly analyze and understand this statute.
“Plain Meaning” is one of the cannons of construction, which are vital legal tools used for analyzing statutes. It stipulates that the words used in the statute should be understood how a “reasonable and ordinary” person would interpret them. In addition, it holds that if the words in the statute are “clear and unambiguous,” no further interpretation or inquiry should be sought. Another cannon of construction we need for our analysis is “Noscitur a Sociis” (it is known from its associates), which provides guidance to ambiguous terms by reference to words associated with the rest of the statute.
If we properly interpret the term “more” (two or “more” regions . . . .), we will be able to answer who has constitutional claim over Mudug. When one uses the plain meaning of “more” and references it with the words associated in the statute, it is evident that “more” is interpreted to mean region(s). In essence, “two or more regions” is interpreted to mean two or more whole region(s). To interpret the statute to mean anything else would be intellectually dishonest.
Therefore, Federal Member States need two, three, four, etc. whole regions to establish its jurisdiction; not two regions and bits and pieces of another region(s). Puntland’s claim over three districts of Mudug, while isolating the other two districts, does not meet constitutional muster. Galmudug’s claim over all five districts, Mudug as a whole region, is constitutional.
THE CONSTITUTIONAL SOLUTION TO THE MUDUG CRISIS
Somalia is emerging from over two decades of civil strife and we must acknowledge the realities of post-1991 society. Yes, Puntland’s jurisdictional claim over northern Mudug is unconstitutional, but to deny the fact that northern Mudug is part of Puntland’s sociopolitical fabric would be asinine. The emerging crisis over Mudug’s status can set Somalia back many years if not handle appropriately. There are literally two options for Somalia: (1) revert back to civil strife, or (2) peaceful dialogue and compromise. The obvious choice is the latter. Africa’s first free and liberated president would famously say: “Forward Ever, Backwards Never” – Kwame Nkrumah. The new Somalia must encompass this maxim.
The only peaceful solution is for Somalia’s Provisional Constitution to be amended to read:
a. Based on a voluntary decision, one region or more may merge to form a Federal Member State.
b.The term “more” should be interpreted to mean districts, which are based on the ninety administrative districts of Somalia in 1991.
This simple amendment to the Constitution will immediately subdue any potential hostilities that may emerge if Puntland and Galmudug continue to be at logger heads over Mudug. This gives Puntland constitutional cover to legally claim jurisdiction of selective districts in northern Mudug, and allows Galmudug to meet the constitutional requisite to be an emerging federal member state. Besides averting potential hostilities in Mudug, this constitutional amendment may have other positive side effects, like speeding up the federation process by making the legal requisite one region instead of two.
The last conflict resolution mechanism that is needed is the “Gaalkacyo Act.” It is no secret that the city of Gaalkacyo is split in two, with Puntland only administratively controlling the north. The Gaalkacyo Act would stipulate that the city of Gaalkacyo would be administratively divided between Puntland and Galmudug. In essence, the administrative apparatuses of Puntland and Galmudug would collect taxes, police, and provide services to their respective spheres, but freedom of movement of the city’s inhabitants will not be hampered. This is not unprecedented. In the United States we have a Kansas City, Kansas and a Kansas City, Missouri. The new Somalia can have a Gaalkacyo, Puntland and a Gaalkacyo, Galmudug.
CONCLUSION
This may be the make or break moment for the new Somalia. If handled properly, future generations will look back to this moment as the catalyst where Somalis, through conflict resolution mechanisms based on the rule of law, emerged from decades of civil strife to reclaim their bother and sisterhood. I advise the policymakers of the Somali Federal Government, Puntland, and Galmudug, to be on the right side of history.
Soomaaliya Ha Noolaato.
Aman H.D. Obsiye is a Juris Doctor graduate of the University of Minnesota Law School.