OPEN LETTER
TO:
Mr. Bethwel Kiplagat/Chairman
Somali
Reconciliation Conference
Inter-Governmental
Authority on Development
Secretariat
Intergovernmental
Authority on Development
P.O.
Box 2653,
Djibouti
Republic
of Djibouti
January
31, 2003
Dear Mr. Kiplagat,
We would
like to take this opportunity to express our views and our
concerns regarding the important efforts currently underway
on the Somali National Reconciliation Conference in Eldoret
(Kenya). We refer to conference procedural matters, individual
rights versus clan rights, the disastrous state of human
rights in the country, constitutional rights, judicial review,
war crimes tribunal, the land question, and the need for
affirmative action.
1.
Procedural Matters
We are
aware that the Somali crisis is entering a new stage in
its development as a result of the efforts of the regional
and international powers to bring an end to this tragedy.
It is reasonable to assume that there are plans to assist
the Somali people set up a transitional government in Eldoret
and formulate a new constitutional, political, economic,
social and cultural order for a future Somalia. These are
very important steps which take us back to 1950, for reflection,
when the United Nations Trusteeship Council assumed responsibility
for preparing Southern Somalia for independence under a
ten year United Nations Trusteeship Administration. The
work that was done, then, was extremely remarkable, in terms
of the constitutional rights that were guaranteed to every
Somali citizen.
Despite
this rich constitutional background, past reconciliation
talks on Somalia were fatally flawed from the beginning,
because a high proportion of the participants to the talks
were drawn from the club of armed militias. Clans represented
by armed militias were accommodated and received favorable
quotas in matters of representation and power sharing, at
the expense of the vast majority of peaceful communities
in the Benadir and in the inter-riverine region. We continue
to believe that those who raise national reconciliation
issues in an attempt to shut off any effort to resolve clan
quota in matters of representation evenhandedly err because
they do not take into account the background of injustice
in the country and the aspirations of the millions of peaceful
Somalis for equal rights and equal opportunity. Further,
there has been total disregard for transparency and fair
play in procedural matters in representation and power sharing,
which we believe are no less important than substantive
issues.
The
basis of our philosophy is that Somalia in its entirety
belongs to all who live in it, and that no government, can
have authority and enjoy legitimacy, unless it is based
on the will of all the Somali people, and that conference
participation, as much as clan representation, are central
arguments to the resolution of the Somali crisis.
2.
Individual Rights versus Clan Rights
Modern
societies protect individual rights above all else on the
understanding that all other rights are subordinated to
individual rights and freedoms because only the individual
is sacred and has dignity, not the group, nor the clan,
however defined. Clan rights, backed by a false majority,
under conditions that basically blackmail the success of
the peace talks, unless certain set asides are not guaranteed,
remain the obstacle to the resolution of the Somali crisis.
We have seen the dark nights of the military dictatorship
in Somalia (1969-90) and the anarchy and devastation that
followed (1990-present) and we understand that the group
rights model, if not followed to the letter, under an atmosphere
of equality, would result in the preservation of the nightmare
of clan hegemony, injustice, and institutional violence.
In fact, the United Nations Trusteeship Administration in
1950, and the Somali Constitution of 1960, did not even
address this type of model. It is fair to expect, in the
interest of the whole nation, that due attention be paid
to the more legitimate voices of the vast majority of peaceful
Somalis who derive hope and inspiration from the ideals
of democracy, freedom, and equal rights.
As points
of departure, for the resolution of the question of individual
rights versus clan rights, we recommend the adoption of
the annex of constitutional rights adopted by the Trusteeship
Administration for Southern Somalia in 1950, in conjunction
with the Somali Constitution of 1960. These two documents,
even though the Somali Constitution of 1960 needs further
improvement due to the absence of a bill of rights and judicial
review of acts of parliament, have nonetheless produced
concrete positive results during the administration of the
First Republic (1960-69).
A written
constitution underpinned by a bill of rights, both of which
are protected by judicial review, is the best known way
to prevent dictators, warlords, and clan oligarchies from
hijacking a nation.
3.
Universal Suffrage
Vast
sections of the Somali people are illegitimately stigmatized
as minorities, despite the fact that there has never been
any census in the country to establish who is a minority
and who is a majority. The same groups who continue to invoke
the majority/minority clause have always been in power in
the country since independence in 1960, and we know that
they have always blocked any attempts to carry out a census
in the country, the latest being the deliberately frustrated
UNDP Somalia Population Census Project of 1975. As far as
we are concerned, we understand that the roots of this alienating
plot goes back to the formation of the First Legislative
Assembly in Somalia in 1952, when the Italian Administering
Authority in collaboration with certain groups, worked to
label certain groups, such as the Benadiris, as minorities.
This was in response to the leading role that, in the early
years of the colonial administration, the Benadiri people
played in the formation of the three important national
liberation movements in the country, namely the Somali Youth
League, the Benadir Youth Union, and the Hizbia Dastur Mustaqbil
Somalia.
We believe
that there can be no substitute to universal national suffrage
as the only means by which any future Somali government
can claim legitimacy. Any plan which rejects universal suffrage
and which approves of a power sharing mechanism based on
franchise rights only within clan groups, living within
their group area, is undoing the work of a century of urbanization,
economic development, and national integration. Such constitutional
provisions, if ever adopted, would exclude millions of alienated
groups who do not belong to any of the armed militias, either
as voters or as candidates for electoral office.
Because
the Benadiri people bear the scars of alienation for over
fifty years, because we learnt the hard way that a government
which claims to represent the people of the country is different
from a government which consists of true representative
members of the people, we believe that the institution of
free and fair elections is a key to giving the alienated
groups the opportunity to defend their basic human rights.
Those who claim and thus reserve themselves the role of
majority status and hegemony will only have to show the
numbers and abide by the internationally recognized democratic
principle of one man, one vote.
In this
regard, a United Nations supervised national election, like
the one carried out in Liberia in July 1997, in the presence
of prestigious non-profit organizations, such as the Carter
Center, would help remove the unrelenting confusion and
mystification that is continuously raised over the distribution
of political representation in the country.
4.
Human Rights (Ref, Amnesty International letter to the
Eldoret Conference of November 7, 2002)
It is
documented that the most ferocious wars, destruction, and
pillage in Somalia, have taken place in the Benadir. Marauding
armed militia, belonging to various groups repeatedly raided
the defenseless population of the Benadir, systematically
looted their property and raped Benadiri women, even inside
the mosques. Extortions, kidnapping, and blackmail are,
up to now, the order of the day, as the men and women remain
helpless at the mercy of lawless bandits.
For
over ten years, the Benadir remains under the occupation
of armed militias from other regions of the country. The
native population are continuously harassed, are denied
the right to life, freedom of speech and movement, while
huge properties belonging to the Benadiri people of Mogadishu,
Merca, Brawa, and Kisimayo are still in the hands of thugs.
The Benadiri population, inside the country, and those in
the Diaspora, suffer immense psychological trauma, deriving
from the atrocities committed against their beloved ones,
and the ethnic cleansing against which they have no protection.
We do
not believe, as some would like to suggest, that raising
the question of human rights violations would disrupt the
current initiatives for the formation of a stable political
regime in the country. In the course of the past decade,
we have witnessed a persistent desire on the part of various
international organizations to tolerate and maintain a dialogue
with warlords on the basis that they hold authority over
segments of the population, even if such partnership did
not lead to the fulfillment of UN objectives to reach, assist,
and educate the masses. We have seen insensitivity to the
cries from the victims that by attributing a leading role
to the warlords, the international organizations were essentially
giving them political legitimacy and undue credit in the
eyes of the victims. More than often, as has been the case
in Somalia, such benevolent initiatives to work with warlords,
were deliberately frustrated, and ended up to reward and
strengthen the economic base of the perpetrators of injustice
with international economic assistance. No question that
this state of affairs has inevitably contributed to the
stalemate, confusion, and dismay, in the political system
in Somalia. It has had a demoralizing effect on the people
and created uncertainty in the search for an alternative.
5. War
Crimes Tribunal
In our
view, the formation of a war crimes tribunal for Somalia
is a key to turning around the perpetuated violations of
human rights in the country. It is very important, for the
victims and for the stability of the whole region, to send
a clear and sounding message, especially to non-state violators
of human rights in Somalia that nobody can be above or beyond
the reach of international law. Genuine reconciliation efforts,
oriented to build a stable political regime in the country,
ought to address first and foremost, the question of human
rights abuses and war crimes in the country.
We do
not believe, as suggested by some, that Somalia is currently
at a stage where we can talk about Truth Commissions because
that would imply that the current situation in the country
is set to look into the future, has guaranteed the basic
rights to representation, has recognized and is committed
to carry out the restitution of seized property and land,
and that a fair and effective judiciary is in place to protect
the innocent and punish the violators of human rights. Unfortunately,
none of these essential coordinates of the equation are
in place in Somalia today.
We feel
a pressing demand for the adoption of an organic act in
the country. Such an act would define the rights and duties
of the citizen, set forth the rights of persons under suspicion
of a crime or under arrest, the right to bail, and to a
speedy and public trial. The offices of human rights of
the UN and NGOs might be able to provide valuable assistance
in setting up the human rights standards, while the future
Somali government should endorse, sign, and abide by all
international laws on the protection of life and all human
rights. The future Somali state should become a signatory
to the upcoming International Criminal Court as an essential
means with which to deal with the numerous perpetual non-state
violators of human rights.
6.
Emergency Powers
For
the most part, close to one whole century, Somalia has been
ruled with emergency powers, from the advent of Italian
colonialism (1900) to the end of the military dictatorship
(1990). Because it is more than likely that any future regime,
which comes to office, will be tempted to use emergency
powers, it would be wise to make restrictive constitutional
provisions and thus condition the introduction of a state
of emergency on legislative approval. The conditions under
which emergency action can be exercised must include a)
a requirement that any declaration of a state of emergency
lapse unless it is specifically approved by the legislature
within a short period, b) prohibition of invasion of rights
except pursuant to statutory authorization, c) legislative
approval of the use of emergency powers must be by super-majority
vote, such as a two-third majority, d) any declaration of
state of emergency must lapse after a limited period of
time subject to renewal by the executive and re-approval
by the legislature.
Non-derogable
rights under any state of emergency, as specified clearly
in the International Covenant on Civil and Political Rights,
include: the right to life, the right to be free of torture
or cruel, inhuman, or degrading treatment, the right not
to be enslaved, the right not to be imprisoned for failure
to fulfill a contractual obligation, the right to recognition
as a person before the law, and the right to freedom of
thought, conscience, and religion. The future Somali Constitution
must forbid any discrimination on the ground of race, color,
sex, language, religion, or social origin. To preserve the
integrity of the system, and build consensus over national
issues, it is of fundamental importance to protect the right
to due process, and the right to see counsel and family.
There
is no reason why the Somali people who have suffered so
much, for one whole century under colonialism, military
dictatorship, and anarchy, should not have the right to
enjoy first generation civil and political rights, as well
as second generation economic, social and cultural rights,
and third generation environmental rights. They have paid
the price over and beyond.
7.
The Land Question
Land,
especially agricultural land, is at the heart of the Somali
crisis. On the eve of independence in 1960, the Italian
colonial plantation concessionaires owned 73,000 hectares
of gravity irrigable land, seized from poor peasants, along
both banks of the Shebelle and Juba rivers. The military
dictatorship seized an additional 35,000 hectares, belonging
to very vulnerable peasants along the banks of the two rivers.
In the course of the last decade, southern peasants were
harassed, robbed, their land occupied forcibly and their
property devastated by marauding armed militias, in an attempt
to forcibly expel them from their land. As we know, the
colonial administration, civil governments (1960-69), and
the military dictatorship (1969-90) seized the land with
the use of fraudulent land legislation, which favored and
encouraged the colonial agricultural policy based on the
cultivation of banana, under a protected quota system. As
more and more peasants were pushed to rain-fed agriculture,
and consequent urbanization, the nation’s food supply
became irreversibly jeopardized.
We are
not looking forward to a reconciliation conference which
is silent on the question of land grabbing from the vulnerable
native farmers. We look forward to a constructive peace
conference which will redress the historical injustices
of land grabbing, dating as far back as the colonial era,
all the way to the present, which left the vast majority
of native farmers, not only landless, but cheap labor at
the mercy of illegitimate banana plantations and other cash
crops. Any future constitution that fails to address this
fundamental problem of Somali agriculture will never endure.
Further,
legitimate equity arguments and national food supply considerations
call for a land reform policy based on the restitution of
the land and all forms of property back to their original
owners. A recourse to the past and recent history of Southern
Somalia, namely in the Benadir and the inter-riverine region,
provides ample information on the land question.
8.
Affirmative Action
There
is need to bridge the gap between the great wealth accumulated
by the few under the non-state regime of warlordism, military
dictatorship, and colonialism and the grinding poverty of
the toiling masses for whom life is a constant struggle
for mere existence. Failure to narrow this gap would leave
the vast majority of disinherited masses hostage to the
illegally acquired wealth of certain groups. An affirmative
action plan would do well to correct the economic aspects
of this problem.
The
laws of the country should grant groups which have been
discriminated against and alienated, namely those disadvantaged
natives, residing in the Benadir and in the inter-riverine
region, the necessary improvements to which they have been
denied for over a century. These two regions bear the trauma
of half a century of direct colonial rule, part of which
was painfully consumed under the Italian Fascist Regime,
three decades of clan rule, and a decade of destruction
and havoc.
Those
with sufficient economic power should be prevented from
utilizing the equality or non-discriminatory provisions
in the Bill of Rights, to obstruct corrective action. The
Bill of Rights will have to take account of the political,
social, and economic imbalances that exist in the country
today.
9.
Unitary State versus Federalism
We share
the underlying concerns that lead vast sections of the Somali
people to dismiss the unitary state because of fear of abuse
of power by the central authority. So much pain and suffering
have been caused to innocent civilians in the countryside
and in the cities by the military dictatorship that ordinary
citizens legitimately question the validity of a central
authority which cannot deliver and protect its own citizens.
This is the background against which we inevitably must
see the debate between a unitary state versus federalism
and it is driven by the inspiration of the vast majority
of defenseless citizens to escape the oppression of a despotic
unitary state.
Despite
this revolting reality, there are serious doubts about the
economic feasibility of four or five separate city-states,
under the present backward state of the economy. Further,
the same tenets of set asides, clan privileges, power concentration,
abuse of power, and mismanagement, that brought down the
unitary state are inherent in the existing breakaway city-states,
where power is concentrated in the hands of one or to two
clan families. The matter is further complicated by the
ambitions of certain powerful leaders to preserve their
personal and clan leadership at any cost, be it at the national
level or at the city-state level, and is based on fear of
loosing power and of majority rule rather than a rational
judgment of the real interests or needs of the people of
Somalia. Indeed, the dismissal of the unitary state is a
prelude to the downward proliferation of clan feuds and
hostilities in every corner of the country, as is already
the case in the existing city-states. The problems of the
Somali people, as far as the abuse of power is concerned,
hence, do not go away by throwing away the baby with the
dirty water.
There
is nothing to prove that a democratic decentralized unitary
state, of constitutional checks and balances, of separation
of powers, of a multi-party state, and of a judicial bill
of rights to guarantee public and private powers, with regional
autonomy, based on equal rights and equal opportunity for
all individuals, cannot serve the people of Somalia. The
future Somali State must have the duty to promote a single
national identity and loyalty, but at the same time, recognize,
protect, and develop the positive aspects of cultural and
linguistic pluralism.
10.
Closing Remarks
The
absence of a theoretical and practical alternative to the
resolution of the Somali tragedy does not necessarily create
a condition whereby the fundamental freedoms for all without
distinction as to race, gender, language, religion, and
political opinion can be traded for the formation of a government
in the country. That has never been the spirit of the drafters
of the Universal Declaration of human rights. These universal
values, which are binding on any form of regime that is
established in Somalia, cannot be postponed, nor can they
be left to the discretion of any group or any administration.
It is our hope, that the Inter-Governmental Authority on
Development in East Africa will not seek any plans to support
a political regime in Somalia, which deprives vast sections
of the Somali population, their sacred rights to freedom
and representation, without ever yielding to the demands
for preferential treatment and set asides. The record shows
that attempts to persuade the international community to
bail out warlordism out of the dead end in which it finds
itself, for over a decade now, did not work in the past.
We hope
that the current efforts to bring peace and stability to
Somalia will yield positive results for the majority of
the alienated groups in the country. We hope that the international
community and especially the neighboring countries of IGAD
will assist the Somali people build its nation. We look
forward to a Reconciliation Conference which will bring
justice, freedom, peace, and stability for all the people
of Somalia. May the future constitution of Somalia not become
another burden.
Sincerely,
Abdulaziz
Hagi Mohamed Hussein
Benadiri-Watch
Benadiri
Refuggee Community in the Diaspora
ahussen@msn.com
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