by Aman Obsiye

Monday, May 7, 2018

Introduction

Though it purports to be federalist, Puntland carries itself as a quasi-secessionist entity when it suits her. When Puntland disagrees with the Federal Government of Somalia it cuts ties with it, seeking to undermine the national government on the world stage. A key characteristic of secessionism is the purposeful weakening of the nation’s sovereignty, and Puntland has once again displayed its quasi-secessionist character vis-à-vis the Bosaso port deal.

The current conflict between the UAE and Somalia has exposed the true nature of Puntland’s President, Abdiweli Gaas. In this short essay, I will be delving into Puntland’s political ideology, its similarities to Somaliland, federalism, and the unconstitutionality of the Bosaso port deal.

Puntland’s Political Ideology

Puntland’s political ideology is based on the notion of Hartiinimo, the unity of the Harti sub-clans within a regional state government (though many Hartis have concluded that all sub-clans are not created equal within the state). Puntland is the only federal member state that bases its jurisdiction on clan federalism, while all other federal member states base their jurisdiction on provincial federalism. The borders claimed by Puntland are literally based on clan borders, hence its claims over specific districts in Mudug, Sanaag, and Sool (for more info on Puntland’s clan federalism click here)

If you want to know what Puntland shall do tomorrow, just look at what Somaliland did yesterday.

Somaliland claimed its secession in 1991, while Puntland claimed its autonomy in 1998. The Somaliland flag was introduced in 1993, while Puntland introduced her flag in 2009. Somaliland adopted her constitution in 2000, while Puntland adopted her constitution in 2009. Somaliland held its first multiparty election in 2003, and Puntland was scheduled to host its first multiparty election in 2013, to no avail. Lastly, Somaliland entered into a port agreement with the UAE and Puntland did the same soon afterwards. As you can see, Puntland literally follows Somaliland’s lead step-by-step, and this explains its quasi-secessionist tendencies.

Federalism and Preemption

Federalism was shoved down the throat of the Somali nation and people by Puntland’s founding president Abdilahi Yusuf (AUN). Puntland boycotted the 2000 Arta Conference because it refused to accept a unitary state structure for Somalia. Fast forward to today, and Puntland has got exactly what it wanted, a federal Somalia. But Puntland has repeatedly proven that it does not truly abide by the tenants of federalism.

Federalism was invented by the United States. In U.S. Term Limits, Inc. v. Thornton, Justice Stevens stated: “[Federalism] was our Nation’s own discovery. The Farmers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.” What differentiates federalism from other forms of government is the dual-sovereign notion of the vertical separation of powers. This dual-sovereign concept encompasses two parallel entities, federal and state, governing in unison. I shall use American jurisprudence as a guide to illuminate the darkness of federalism as it relates to Somalia.

Preemption is a foundational legal doctrine of federalism. Preemption basically entails the superiority of federal law over state law, whether it be constitutional or legislative. In federal systems, the federal constitution supersedes state constitutions, and federal legislation supersedes state legislations. In the United States, we call this the Supremacy Clause, which implies that if disagreements occur between federal and state law, federal law reigns supreme and therefore preempts state law. Somalia’s constitution also incorporates this legal doctrine (see: Provisional Fed. Const. June 12, 2012, art. 4, §1 (Som.)).

There are two forms of preemption: express and implied preemption. Express preemption is when Congress passes a federal law and expressly states that it shall preempt state law. Implied preemption is when Congress does not expressly state in its federal legislation that it shall preempt state law, but by the law’s structure or purpose it can be implied that its intention is to preempt state law. In Florida Lime & Avocado Growers, Inc v. Paul, Justice Brennan stated that conflict arises under implied preemption when “compliance with both federal and state regulation is a physical impossibility.”

The Unconstitutionality of the Bosaso Port Deal

On March 12th 2018, Somalia’s federal parliament passed legislation banning DP World from operating ports throughout Somalia. DP World recently signed deals with Somaliland’s and Puntland’s regional authorities to operate Berbera and Bosaso ports, respectively. On April 28th 2018, Abdiweli Gaas stated that DP World shall be allowed to operate Bosaso port and invoked article 54 of Puntland’s constitution as legal justification. The issue we are faced with is whether “the matter on which the state asserts the right to act is in any way regulated by the federal government.” Rice v. Santa Fe Elevator Corp.

Articles 4 and 54(A) of Somalia’s Constitution expressly preempts the Bosaso port deal. Article 4 states that, “After the Shari’ah, the Constitution of the Federal Republic of Somalia is the supreme law of the country.” Article 54(A) states that, “The allocation of powers and resources shall be negotiated and agreed upon by the Federal Government and the Federal Member States, except in matters concerning: (A) Foreign Affairs . . ..” Therefore, article 4 coupled with article 54(A), expressly preempts Puntland law vis-à-vis DP World. Additionally, Puntland is preempted by implied preemption. Somalia’s Parliament passed federal legislation banning DP World from operating in Somalia. This federal legislation is intended to preempt, both, Puntland and Somaliland laws, because “compliance with both federal and state regulation is a physical impossibility.” Florida Lime.

In Crosby v. National Foreign Trade Council, the issue of preemption and the foreign affairs power arose. In Crosby, the state of Massachusetts passed a law concerning Burma (Myanmar) which conflicted with a federal law concerning Burma. The Court struck down Massachusetts’ law because federal law preempted it. Justice Souter eloquently explained:

“[T]he state Act undermines the President’s capacity, in this instance for effective diplomacy. It is not merely that the differences between the state and federal Acts in scope and type of sanctions threaten to complicate discussions; they compromise the very capacity of the President to speak for the Nation with one voice in dealing with other governments. [The] President’s maximum power to persuade rests on his capacity to bargain for the benefits of access to the entire national economy without exception for enclaves fenced off willy-nilly by inconsistent political tactics.” (emphasis added)

Gaas argues that article 142(1) of Somalia’s Constitution coupled with article 54(3) of Puntland’s Constitution allows him to give DP World access to Bosaso port. Article 142(1) of Somalia’s Constitution states, “Until such time that all Federal Member States of Somalia are established . . . Federal Member States existing prior to the provisional adoption of this Provisional Constitution . . . shall retain and exercise powers endowed by their own State Constitution.” Article 54(3) of Puntland’s Constitution states, “Puntland State may make agreements with national or foreign companies and give them the right to benefit from natural resources .” (emphasis added)

One can make an argument that article 142(1) of Somalia’s Constitution gives Puntland powers that are not under the exclusive control and authority of the Federal Government, such as (i) foreign affairs, (ii) national defense, (iii) citizenship and immigration, and (iv) monetary policy. (see: Provisional Fed. Const. June 12, 2012, art. 54 (Som.)). But the answer is simply found in Puntland’s own state constitution, which does not endow Puntland with the powers to allow DP World to operate Bosaso port.

Natural resources are resources that humans did not and cannot make, such as oil, gas, minerals, water, forests, timber, etc. Ports are not natural resources, but rather are man-made resources. Puntland cannot properly rely on article 54(3) of its constitution because it deals specifically with natural resources. Therefore, the Bosaso port deal is unconstitutional whether we analyze it under the tenants of federalism (preemption), or we analyze it under Puntland’s constitution.

Conclusion

Political leadership emanating from Puntland is particularly worrying. From June 2006 until December 2006, Somalia in its entirety was peaceful and stable. Northwestern Somalia was administered by Somaliland, northeastern by Puntland, and southcentral by the Union of Islamic Courts. There were no foreign troops, but law and order reigned from Zelia to Ras Kamboni. From June 2006 until December 2006, there were no suicide bombings, there was no terrorism, just peace and stability organically provided for Somalis by Somalis.

Then Puntland’s founding president Abdilahi Yusuf invited the Ethiopian military machine to occupy Somalia’s capital. The overwhelming majority of Somalis considered this to be an act of treason by Yusuf, rendering him Somalia’s version of Benedict Arnold. Overnight, Mogadishu went from peace to war. The countless inhumane atrocities, and crimes against humanity, that resulted from the Ethiopian occupation are well documented. Puntland’s current president, Abdiweli Gaas, seems to be following this precedence of using a foreign power to derail positive gains made in Somalia. The Bosaso port deal is unconstitutional, and Gaas knows this, but he still chooses to betray the Somali nation for the benefit of a foreign nation.

Aman Obsiye has a Juris Doctor and Masters of Public Policy from the University of Minnesota. He is the author of the academic research paper Rethinking the Somali State.