After over two decades of transitional governance, Somalia’s National Constituent Assembly adopted a provisional constitution, with 96 percent approval, that would introduce sweeping individual protections to a country that has struggled to form a legitimate government.
The constitution went into effect on August 20, 2012, following the expiration of the Transitional Federal Government and the appointment of a new parliament. The event marks a momentous occasion for Somalia, a country often described as a “failed state.” Although the document enshrines some fundamental human rights, other procedures and provisions raise legal conflicts that could limit the effectiveness of the constitution’s mandates to protect the rights of individuals.
To gauge popular support and gain legitimacy for the constitution, Somalia originally planned to hold a national referendum, but logistical issues—partly attributable to the presence of the militant Islamic group al-Shabab—thwarted the government’s democratic ambition. Instead, the current plan calls for the new parliament to vote on ratification, an alternative that leaves the democratic nature of the process unclear. The disjointed nature of Somalia’s varying array of autonomous semi-states has lead to a UN-sanctioned process where clan elders appoint the new parliament. This result—a product of Somalia’s fractured governmental and political system under which some regions have declared autonomy and others have been controlled by al-Shabab forces—further separates the people from the constitution.
Although aspirations of open democratic governance will not be met at present, the constitution’s guarantees of rights will immediately become law. The Somali Bill of Rights provides the primary framework for individual rights and explicitly guarantees the foundational concept of equality regardless of clan or religious affiliation—a shift that overcomes significant historical roadblocks to social equality. This guarantee reflects a foundational basic universal human right established in Article 2 of both the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), to which Somalia is a party.
Expanding from this central concept, the new constitution provides for progressive protections of women’s and children’s rights in both social and political spheres. In matters related to health and personal security, the constitution bans the common local practice of female genital mutilation (also known as female circumcision) and provides for the right to an abortion when a woman’s life is at stake. Demonstrating progressive political policy, the Somali constitution also guarantees the right of women to hold elected office and stipulates that women must hold thirty percent of seats in parliament. On the issue of children’s rights, the Somali provisional constitution guarantees the right to education through secondary school, and places an explicit ban on the use of children in armed conflict.
Nevertheless, the constitution does fall short of significant international norms by stipulating a religious preference. It specifies that “no religion other than Islam can be propagated.” Further conflicting with the right to religious freedom—guaranteed by, among other documents, Article 18 of the ICCPR—the constitution sets forth that Sharia law forms the basis of the legal system. Aside from possibly restricting religious freedom, this leaves a constitution based on Islam to govern both non-Muslims and Muslims alike. The provision could further restrict the effect of the guarantees of individual rights for vulnerable populations, as it explicitly states that all laws not in accordance with the general principles of Sharia are invalid. Some Somalis have already objected to these rights on the grounds that they are not in accordance with Sharia. The primary objections relate to the previously discussed guarantees of thirty-percent female representation in parliament and the right to abortions in cases where the mother’s life is at risk. Similarly, opposition also exists to the ban on female circumcision, which is estimated to affect ninety-eight percent of Somali women.
Despite the possible conflicts, the provisions represent an express step by Somalia toward confronting the lack of individual protections in the country and overcoming the difficulties of the past—so much so that the constitution also establishes a Truth and Reconciliation Commission. This effort to revisit the effect of past human rights abuses and violence on the individual as well as the language of the constitution, similar to the approach made famous in post-Apartheid South Africa, conceptualizes the inviolability of the individual as a crucial element of the new government. To what extent these concepts of justice and human rights are made accessible to the Somali people in practice, however, will hinge on whether and to what extent the new government is successful in implementing these innovations.