1. ISSUES FOR CONSTITUTIONAL REFORM IN SOMALIA (1)
Cheryl SaunderS
Co-convenor, ConTransNet
13 JUNE 2018

2. Overview Idea of a Constitution Essentials of federalism
Dividing power in a federation
Money and resources in federations
Structures of government

3. Idea of a Constitution Fundamental law Provides for
Other law (including State Constitutions) consistent with it
More difficult to amend than ordinary law
Provides for
Structures of government (eg separation of powers, federalism)
Relations between people and government
Both limits and empowers
Usually enforced by independent judiciary
Supreme or Constitutional Court
Usually derives legitimacy from the people
Somali conceptions of a Constitution? Challenges in putting a Constitution into effect?
Case studies?

4. Essentials of Federalism
What is federalism?
Other systems compared
Key features of a federation
Other federal features
Federal systems around the world

5. What is federalism? Federalism involves organising a state so that:
There are at least two levels of government: a central government and constituent states
Each of the levels of government deals directly with the people, or a section of the people, on matters assigned to it by the Constitution
Each of the levels of government has autonomy in the exercise of the powers and responsibilities assigned to it by the Constitution
Each of the levels of government is accountable to the people for the exercise of its constitutional powers and responsibilities
Federalism thus combines self-rule and shared-rule
Somali context?

6. Other systems compared
In a unitary state a single, central government has final authority in all matters (even if it also decentralises some power). Eg, Tunisia, Sri Lanka
Devolution or regionalism offer varying degrees of decentralisation within an otherwise unitary state. Eg the United Kingdom, Italy, Papua New Guinea
Special autonomy arrangements give autonomy to a part of the country that otherwise operates as a unitary state. The position of Aceh in Indonesia is an example.
Questions, from the perspective of Somalia?

7. Key features of a federation
A Constitution, which typically cannot be changed by one level of government alone
Two or more levels of government that are protected by the Constitution, each with governing institutions of their own
A constitutional division of legislative, fiscal, executive and (sometimes) judicial power between the levels of government
Participation by the states/regions or their people in central decision making (typically through a second chamber of the central legislature)
Provision for resolving disputes through an independent, generally judicial, body.

8. Other features of federations to note
The design and operation of a federation can give all groups a sense of ownership of the state as a whole
A properly functioning federation requires a culture of mutual respect, trust and co-operation between the levels of government
Many federal Constitutions provide principles and institutions for intergovernmental co-operation
Federal Constitutions generally provide for revenue redistribution to the states/regions and for fiscal equalisation between them.
Freedom of movement within the federation
Protection of minorities within states/regions
State/regional Constitutions
Local government
The effect of emergencies

9. Federal systems around the world
There are around 25 federations in the world of 2018
And a range of other regionalised states, with some federal characteristics
Each federation is unique: tailored to the context of the state concerned
Some important variations
Federations that bring together independent States (eg US, Australia) and federations that require devolution within a formerly unitary state (eg South Africa, Ethiopia)
Federations that are multi-national or plurinational (Nepal, Switzerland) and federations that are relatively homogenous (Australia, Germany, Argentina)
Old established federations (US, Canada, India) and federations that are new or emerging (Nepal, Solomon Islands)

10. For discussion Questions arising from this session?
Points that need further elaboration?
On the basis of what has been discussed this morning, what changes, if any, would need to be made to the current provisional Constitution of Somalia to establish a federation?
What are the main challenges that Somalia would face in transition to a federation? Can they be overcome?