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Somalia: New Constitution Approved

(Aug. 9, 2012) On August 1, 2012, Somalia's special, 825-member National Constituent Assembly approved a new constitution for the country by a large majority – over 96% of the 645 votes cast. (Dan Taglioli, Somalia Special Assembly Approves New National Constitution, PAPER CHASE NEWSBURST (Aug. 1, 2012).) Traditional elders, who had selected the members of the assembly in a process backed by the United Nations, will also choose a new parliament, which in turn will choose Somalia's new leader on August 20. (Id.; Somali Leaders Back New Constitution, BBC NEWS (Aug. 1, 2012).) On that date, the mandate of the Transitional Federal Government will expire. (Taglioli, supra.)

Some significant features of the Provisional Constitution of the Somali Republic are:

    • inclusion of a bill of rights that declares everyone to be equal, regardless of clan or religion;
    • the stipulation that Islam is the only religion of the state, disallowing the propagation of any other religion in Somalia (as has heretofore also been the case);
    • the clear stipulation that Sharia (Islamic law) is the legal foundation of the country and all laws must be in compliance with it;
    • the outlawing of female genital mutilation;
    • protection of the right to an abortion in order to save the mother's life;
    • a proscription against the use of children in armed conflict;
    • inclusion of citizens' right to education up to the secondary school level;
    • provision for the establishment of a Truth and Reconciliation Commission;
    • emphasis on the peaceful settlement of territorial disputes; and
    • provision of a federal system for Somalia (but such matters as the status of Mogadishu, the capital, and of the borders and the distribution of power and resources between the regions were left undecided). (Somali Leaders Back New Constitution, supra [including an “Analysis” column, by Mary Harper]; Somali Assembly Endorses Draft Constitution, ALJAZEERA (Aug. 1, 2012).)

Although the constitution applies immediately, it was originally planned that it be put to a national referendum in order to take effect. However, the referendum was cancelled because of the impossibility of holding it in areas controlled by al-Shabab. Instead, the constitution will become effective once it is ratified by the new parliament. (Somali Leaders Back New Constitution, supra.) Al-Shabab, the Islamist militia that controls some key regions of Somalia, has continued to carry out terrorist attacks in the capital and other areas where it no longer exerts full control. (Somali Leaders Back New Constitution, supra.)

In part because of this unstable situation, in the view of Mary Harper, a Somalia analyst with the BBC, “the constitution appears to exist in a parallel universe, a fantasy land, when compared with the reality on the ground in Somalia, with universal access to education and the end of female genital mutilation unlikely to happen anytime soon.” (Id.)

Ratification of the new constitution can only occur after the new 275-member parliament is selected to replace the current parliament, which is double that size. In addition to electing a new President of Somalia, the new legislature will elect a Speaker and deputy speakers before the period of the Transitional Federal Government comes to a close. (Somalia's Newly-Endorsed Constitution Widely Hailed, XINHUANET (Aug. 2, 2012).)