Post Conflict Constitutions and Settlement of Conflicts an Analysis of Public Particpation Process and the Federal System of Provisional Constitution of Somalia 2012.

Abstract

Since the fall of Siad Barre Somalia has had a difficult time establishing and preserving a functional state. The challenge has been ongoing for more than two decades. The approval of the provisional constitution in 2012 provided another lifeline to the hope of nation building. There has been a considerable debate on the possible instrumental role of the constitutions in post conflict areas. While such argument has been concerned with the content for some time, and justifiably so, there have been an increased discussion on how important the process is also crucial in post conflict constitution making. Regrettably, the quest for peace has been the overwhelming guide in post conflict constitution making at the expense of public participation. Unfortunately, the current political and security situation in Somalia illustrates how important public participation is in post conflict constitution making. This thesis examines the role played by the provisional constitution to settle the conflict. The thesis investigates the effectiveness of the public participation process used during the Somalia constitution making process and also examine if the federal system adopted was enough to suppress and end the conflict in Somalia. The thesis argues that unlike previous models where constitution making was a highly an elite driven enterprise and content oriented, contemporary constitution making put emphasis on the process and content alike. The centrality of public participation is emphasized if the constitution is to have its intended effect in post conflict situations. The public participation encapsulates the sovereignty of the people and increases the ownership of the document which is central in conferring legitimacy necessary in ending such conflicts. Equally, the content of the constitution which is always contentious remains important, however, such an adventure requires ingeniousness in designing a proper model and when process and content are augmented peace is likely achievable. In the case of Somalia, the thesis argues that the public participation process was elitists and did not recognize the public input. The process was devoid of a democratic process to make a democratic document. Leaders were selected using clan formula and patronage. The effects of these omissions have made peace a distant reality. Equally, the federal framework deployed in the provisional constitution, has created a more division to the already divided country. The thesis recommends the usage of Constitutionalism in the making the new constitution under which the process and the content will respond to the democratic principles of public participation. The study also recommends the usage of Consociational model in the federal structure to maintain peace and stability and avoid the clan competition.