Addressing Sexual Offenses in Somalia and Somaliland: Legal Challenges and Legislative Responses

DISCLAIMER This publication is produced with funding from the UN Trust Fund to End Violence against Women. However, the views expressed and the content included do not imply official endorsement or acceptance by the United Nations.

Cover photo: Suleiman Hassan Design: Marce Digital

Published: August 2024

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means without prior approval in writing from The Research Team and SIHA Network. This Paper is not a legally binding document. It is a collaborative informational and assessment document and does not reflect the views of any of the contributing partners in all its contents.

Any errors are the sole responsibility of the authors.

Copyright © 2024 SIHA Network

2

Addressing Sexual Offenses in Somalia and Somaliland Legal Challenges and Legislative Responses

ACKNOWLEDGEMENTS This briefing paper was prepared by Guleid Ahmed Jama. The paper provides a comprehensive overview of the legal frameworks addressing sexual violence in Somalia and Somaliland.

Special thanks go to the SIHA Somalia and Somaliland staff who helped to coordinate the project and provided guidance throughout the process.

Sincere gratitude to the SIHA Regional Team including Hala Al-Karib, the Regional Director; Faizat Badmus-Busari, the Regional Programme Manager; Mercy Owuor, the Regional Projects & MEAL Coordinator; Sandra Nassali, the Regional Advocacy and Communications Coordinator; and Faith James, the Regional Research and Advocacy Officer for their contributions and guidance throughout the process.

Finally, this paper would not have been possible without the funding from UN Trust Fund. The paper provides a conclusive analysis and recommendations on sexual violence prevention and response in both countries.

3

Addressing Sexual Offenses in Somalia and Somaliland Legal Challenges and Legislative Responses

CONTENTS Acknowledgements............................................................................................................................................3 INTRODUCTION.....................................................................................................................................................5 SOMALIA.....................................................................................................................................................................5 Somalia’s international law obligation......................................................................................6 The existing legal framework..........................................................................................................6 The Sexual Offences Bill: A Legislative Conundrum........................................................7 Conclusion....................................................................................................................................................9 Recommendations.................................................................................................................................10 SOMALILAND...........................................................................................................................................................11 Legal framework......................................................................................................................................11 Somaliland criminal law......................................................................................................................12 Sexual Offences Act (2018).................................................................................................................12 The Rape, Zina and Related Offences Bill...............................................................................13 Conclusion....................................................................................................................................................14 Recommendations.................................................................................................................................14

4

Addressing Sexual Offenses in Somalia and Somaliland Legal Challenges and Legislative Responses

INTRODUCTION This briefing paper aims to provide a comprehensive overview of the legal frameworks addressing sexual violence in Somalia and Somaliland. It also seeks to shed light on existing laws and the processes undertaken by the respective governments to address sexual offenses legislatively. The paper highlights the inherent challenges within the judicial structures of both regions, where the coexistence of multiple legal systems, including, Xeer (clan law), and formal law often leads to ambiguity and lack of clarity. Additionally, it explores the persistence of the outdated Penal Code of Somalia (1963) in both territories, while acknowledging the efforts of activists and progressive government officials who have faced significant opposition from religious groups in their attempts to pass comprehensive anti-sexual violence offences legislation.

Section two of this paper focuses on the situation in Somalia, providing a conclusive analysis and recommendations on sexual violence prevention and response, while section three delves into the context of Somaliland, concluding with its own set of recommendations.

SOMALIA Following the collapse of the central government of Somalia in 1991, most parts of Somalia descended into civil war, rendering the country unable and unwilling to fulfil its legal obligations under international human rights law. Consequently, women and girls in Somalia face significant challenges in obtaining full protection and enjoyment of their rights. Various actors, including armed groups, violate the rights of women and girls, with the weakness and absence of a functional judiciary and law enforcement exacerbating the situation. As a result, women and children are particularly vulnerable to sexual and gender-based violence (SGBV), including rape and other forms of sexual violence. This risk is especially prevalent within internally displaced persons (IDP) settlements.

According to a 2021 advocacy brief by UNFPA, women, adolescent girls, and children accounted for 95 percent of reported Gender Based Violence (GBV) incidents in 2020, with 75 percent of survivors belonging to displaced communities. The Human Rights Report for Somalia 2021 also reveals distressing accounts of women and girls being raped by government forces, militia members, and individuals disguised in attire resembling government or other uniforms. While some perpetrators were apprehended by the military, impunity remains the norm.

5

Addressing Sexual Offenses in Somalia and Somaliland Legal Challenges and Legislative Responses

The report further highlights that a significant number of rapes against women and girls in certain parts of South-Central Somalia occur at checkpoints or in nearby farms and villages believed to be under the control of local militias.

Globally, Somalia has the tenth highest rate of child marriage, according to Girls Not Brides. A startling 8 percent of girls are married before the age of 15, and 45 percent are married before turning 18. Furthermore, an United Nations analysis indicates that over 45 percent of young women in Somalia are married off before the age of 18. The introduction of the new Bills, (2020 & 2023 versions) which is being pushed to take the place of the SOB, raises concerns as it legalizes child marriage, among other troubling provisions.

Somalia’s international law obligation As a member state of various human rights treaties, including the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, and the United Nations Convention on the Rights of the Child, Somalia is bound by legal obligations under international law. These treaties, as well as customary international human rights law impose on Somalia the responsibility to enact legislative, administrative, and judicial measures to eliminate all forms of violence against girls and women within its jurisdiction. It is also worth noting that Somalia remains one of the few countries in the world that has not yet ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, also known as the Maputo Protocol.

The existing legal framework Somalia operates under a hybrid legal system, which incorporates formal, Sharia, and Xeer (clan) laws). This multi-dimensional legal system has its merits and demerits, but in terms of women’s rights, the patriarchal influence within this framework is quite pronounced. As a result, women’s rights are often undermined, and survivors of sexual violence find it hard to attain justice. With formal institutions being frail or non-existent in many parts of the country, Xeer law tends to dictate the handling of sexual offenses. Under Xeer, the crime is not attributed to the individual, but rather to their clan (criminal responsibility). The clan of the perpetrator is required to compensate the survivor’s clan. Regrettably, the survivor is not deemed an involved party in the proceedings and is usually left out of the discussions. In many parts of the southern and central regions of Somalia, the violent extremist group, al-Shabaab enforces a harsh interpretation of Islam. Women residing in these regions often face

6

Addressing Sexual Offenses in Somalia and Somaliland Legal Challenges and Legislative Responses

dreadful acts which are justified using this extremist and distorted understanding of Islam. For example, women can be subjected to death by stoning for ‘crimes’ such as adultery.

Somalia’s formal law for addressing crimes, including sexual offenses, is governed by the Somali Penal Code (1963). However, this code is antiquated and only criminalizes a limited range of sexual acts, such as rape. The definitions of rape and other sexual offenses within the Penal Code are also contradicted and outdated, lacking adequate consideration of the principle of consent.

Sexual offences identified and penalised by the Penal Code: ◆◆

Article 398: Carnal violence (rape).

◆◆

Article 399: Acts of lust committed with violence.

◆◆

Article 400: Unnatural offences committed with violence.

◆◆

Article 401: Abduction for the purpose of lust or marriage.

◆◆

Article 402: Obscene acts:

◆◆

Article 403: Publication of obscene acts.

◆◆

Article 404: Definition.

◆◆

Article 405: Prostitution.

◆◆

Article 406: Incitement to lewd acts.

◆◆

Article 407: Instigation, aiding, or exploitation of prostitution.

The Sexual Offences Bill: A Legislative Conundrum To address the legal deficiencies and outdated nature of the Penal Code and move toward compliance with its international legal obligations, the Council of Ministers of Somalia sanctioned the Sexual Offences Bill in 2018. The Bill was submitted to the Parliament of Somalia for further deliberation. Under the Provisional Constitution of the Federal Government of Somalia (2012), any Bills passed by the Cabinet must be presented to the Parliament, which has the authority to approve, reject or amend them. Despite its importance, the Sexual Offences Bill has remained stagnant in the lower house of the Parliament (the People’s House) for several years without debate, thus delaying the implementation of a critical piece of legislation.

The draft Bill endorsed by the Cabinet, which was strongly advocated for by human rights activists, included many provisions that protect women and girls, and criminalise various acts of sexual offences. The offenses addressed in the Bill included:

7

Addressing Sexual Offenses in Somalia and Somaliland Legal Challenges and Legislative Responses

◆◆

Sexual assault (Art. 7 and 8).

◆◆

Rape (Art. 9).

◆◆

Gang rape (Art. 10).

◆◆

Instigation of sexual offence (Art. 11)

◆◆

Sexual exploitation (Art. 12.)

◆◆

Slavery (Art. 13).

◆◆

Sexual slavery (Art. 14).

◆◆

Abuse of power (Art. 15).

◆◆

Sex tourism (Art. 16).

◆◆

Sex trafficking (Art. 17).

◆◆

Forced marriage (Art. 18).

◆◆

Sexual harassment (Art. 19).

◆◆

Use of drug for sexual offence (Art. 20).

◆◆

Kidnapping for sexual purpose (Art. 21).

◆◆

Publication of Pornography (Art. 23).

◆◆

Child marriage (Art. 26).

In 2020, a new proposal titled the Sexual Intercourse and Related Crimes Bill (SIB) was introduced to the House, the origins of which remain uncertain. This new Bill, which received public support from religious groups and was intended to supersede the Sexual Offences Bill proposed by the Cabinet, was heavily criticized by civil society and women’s rights advocates. The religious groups supported the new Bill while simultaneously attacking the Sexual Offences Bill, accusing it of being ‘unIslamic. The Sexual Intercourse and Related Crimes Bill deviates from the original intent and objectives of the Sexual Offences Bill, potentially allowing sexual offenses to go unpunished. If passed, this would exacerbate the already concerning situation in Somalia.

Additionally, the Federal Government of Somalia developed a Rape and Immorality Bill in 2023. This new legislation is not an amended version of the Sexual Offences Bill (2018), which was unanimously approved by the Cabinet but never presented to the House of the People. Instead, it is entirely new legislation aimed at addressing sexual offenses within the framework of the country’s legal and cultural context.

The Bill’s stated aims are to prevent rape, immorality, and other related violations in accordance with the tenets of Islamic Sharia, the Constitution of the Federal Republic of Somalia, and international human rights standards that do not contradict Islamic Sharia law. However, several concerns have been raised regarding this Bill. These

8

Addressing Sexual Offenses in Somalia and Somaliland Legal Challenges and Legislative Responses

concerns include the definition of the age of a child, the definition of the crime of rape, and the application of Sharia law for punishment.

The proposed legislation has sparked significant debate and concern among various stakeholders. Critics argue that the Bill’s provisions, particularly those related to immorality, could exacerbate gender inequalities and undermine women’s rights.

The Bill’s reliance on cultural definitions of immorality, which are often aligned with patriarchal norms, is also seen as a step backward in the fight for gender equality and women’s empowerment in Somalia. Moreover, the use of Sharia law for punishment raises concerns about the potential for harsh and unjust penalties that may not align with international human rights standards.

If passed, the Offences of Rape and Immorality Bill (2023) could exacerbate the already concerning situation in Somalia. The country’s legal framework needs to protect all citizens, particularly vulnerable groups such as women and children, from sexual offenses and related violations. However, this Bill, as currently drafted, may do more harm than good by entrenching patriarchal norms and potentially violating human rights. It is crucial for lawmakers to consider these concerns and ensure that any new legislation upholds the principles of justice, equality, and human rights for all

Conclusion The criminal laws in Somalia are insufficient to tackle and address issues of sexual violence. The existing Penal Code applicable in both territories is outdated and narrow in scope. The attempts to enact new and modern laws that are in compliance with international human rights law have been challenged by growing influence of Wahabi extremists. The Federal Government of Somalia (and its Federal Member States) are under international legal obligation to protect girls and women from sexual violence and to enact laws, but also to take other measures including administrative and judicial. The government’s failure to pass the Sexual Offences Bill and its subsequent attempt to push a draft that is in clear violation of international human rights law is in direct conflict with the commitments and obligations it has undertaken by ratifying international human rights treaties including the UN Convention on the Rights of the Child.

9

Addressing Sexual Offenses in Somalia and Somaliland Legal Challenges and Legislative Responses

Recommendations For the Federal Government of Somalia: ◆◆

Enhance the security sector’s zero tolerance stance against sexual violence and contribute to the strengthening of government institutional ability to effectively prevent and respond to sexual violence.

◆◆

Create SGBV risk mitigation strategies, particularly for rape, and establish comprehensive SGBV referral center

◆◆

Ensure that forensic labs are available so that rape offenders can be identified with ease.

◆◆

Create quarterly and annual reports and build a special data center for documentation and analysis of trends in rape occurrence.

◆◆

Strengthen the capacity of the police and other justice-related sectors to address SGBV issues and implement a survivor-centred approach.

◆◆

Take tangible steps to prevent sexual violence against women and children, including adopting a new national action plan that will put an end to gender-based and sexual violence.

◆◆

Implement and enforce the Sexual Offences Act in Puntland.

For Parliament of Somalia ◆◆

Immediately approve the Sexual Offences Bill since it was an outcome of a 5-year consultation process with key stakeholders such as women and human rights organizations, religious and cultural leaders, including individuals affected by sexual violence.

◆◆

Discard the Sexual Intercourse and Related Crimes Bill (SIB), 2020 and the Rape and Immorality Bill2023

◆◆

Follow the example of progressive Muslim nations such as Djibouti and Indonesia, that have enacted all-inclusive SOBs to combat sexual offenses.

For religious and traditional leaders.

10

◆◆

Stop interfering in cases of sexual violence and allow the justice system to decide on these cases.

◆◆

Support the passage of laws prohibiting SGBV.

◆◆

Cease from labelling female parliamentarians and rights campaigners as disbelievers when discussing the women’s human rights agenda in Parliament.

Addressing Sexual Offenses in Somalia and Somaliland Legal Challenges and Legislative Responses

For developmental partners. ◆◆

Maintain and expand the amount of support given to SGBV stakeholders, services, and service providers.

SOMALILAND The British Protectorate of Somaliland gained independence on 26 June 1960 and joined a union with Somalia which was granted independence by Italy on 1 July 1960. The union created a civilian democratically elected government. In 1969, the military took overpower by coup, ousted the civilian administration and rescinded the constitution. In the late 1970s and early 1980s, rebel groups emerged to oppose the military government. The government collapsed in 1991 when the military regime was ousted from power. Following the central government’s collapse that year, delegates gathered in the northern town of Burao and unilaterally declared the Northern Regions of Somalia, formerly under British protectorate, as an independent country no longer part of Somalia. The declaration of independence has not been accepted by African Union and the United Nations. However, Somaliland has maintained a separate existence, with its arms of governance including a judiciary, a parliament and an executive. Several laws have been enacted by its parliament and it insist its independence. Despite the relative strength of Somaliland’s governance with justice institution, women and girls are not protected and their rights are violated. Sexual and gender-based violence is increasing and there are no proper legal protections in place.

According to the Somaliland National Human Rights Commission 2023 Annual Report, rape cases have been on the rise, with statistics showing an increase of 22.8% in 2023. The report indicates 752 reported rape cases in 2023, of which only 271 reached the prosecution office, meaning 63.9% of cases were resolved outside the judicial system.

Legal framework In Somaliland a system characterized by plurality of laws exists as well. However, the government presence is relatively better compared with Somalia. Yet, still sexual offences are resolved through Xeer even in urban settings where there are a relatively larger presence of the courts and police. Similar to Somalia, Somaliland applies the Somali Penal Code. The constitution of Somaliland (2001) obligates the government of Somaliland to respect international human rights treaties signed

by Somalia before 1991, and that the Bill of Rights under the constitution shall be interpreted in a manner consistent with international human rights law.

11

Addressing Sexual Offenses in Somalia and Somaliland Legal Challenges and Legislative Responses

Moreover, there is a transitional clause (Art. 130) in the constitution which permits the government of Somaliland to continue applying Somalia’s pre-1991 law. That is why Somaliland still applies the Penal Code. The constitution, however, imposes the Parliament the legal obligation to enact laws that do not conflict with human rights and that are consistent with international human rights law. Somaliland is not recognised internationally. Therefore, it is not party to any international human rights treaty. The constitution, however, endorses human rights treaties signed by Somalia before 1991 and the Universal Declaration of Human Rights as well as the UN Charter.

Somaliland criminal law Somaliland uses the Somali Penal Code. Article 130(5) of the constitution says: All the laws which were current, and which did not conflict with the Islamic Sharia, individual rights and fundamental freedoms shall remain in force in the country of the Republic of Somaliland until the promulgation of laws which are in accord with the Constitution of the Republic of Somaliland. At the same time, laws which conform to the Constitution shall be prepared, and each such law shall be presented within minimum time scales set by the House.

In 2018, the Somaliland parliament passed the Sexual Offences Act to replace the Penal Code provisions related to sexual offences.

Sexual Offences Act (2018) The Rape and Sexual Offenses Act was signed by the president in August 2018 after both Houses of the Parliament approved it. The law, which was passed for the first time in Somaliland, aims to lower the country’s steadily rising rape rate against women and girls. The impetus for the creation of this special law was the Somali Penal Code, which is incompatible with modern understandings of consent, the kinds of rapes that occur today, the circumstances in which they are committed, and the penalties for rapists. However, it was met with opposition from religious leaders, and consequently the presidentsuspended it, a move that was unconstitutional.

12

Addressing Sexual Offenses in Somalia and Somaliland Legal Challenges and Legislative Responses

The Act covers the following sexual abuses: ◆◆

Rape, including gang rape and rape as a result of abuse of power (4, 5, 6)

◆◆

Sexual exploitation (7)

◆◆

Sexual assault (8)

◆◆

Forced marriage (9)

◆◆

Abuse of responsibility (10)

◆◆

Drugging a person for the purpose of sexual abuse (11)

◆◆

Abduction and arbitrary detention for sexual abuse (12)

◆◆

Exposure of pornography to children (13).

◆◆

Obscene acts (14).

◆◆

Recording, distribution and publication of videos of sexual offences (15).

The Rape, Zina and Related Offences Bill The President assigned the Ministry of Religious Affairs to draft an amendment to the constitution with religious leaders. Although it is the mandate of the Ministry of Employment, Social and Family Affairs, the Ministry of Religious Affairs handed over the process to religious leaders without consulting of women and civil society groups. An amendment to the Rape Sexual Offences Act was approved by the Cabinet in 2019 and forwarded to the House of Representatives, which approved it and sent it to the upper house of the Parliament (Guurti). The amendment is now before the Guurti.

The Rape, Zina and Related Offences Bill conflates consensual sex with rape and includes shocking provisions like allowing child marriages and blood money payments for rape and femicide. According to Article 12, “If a minor or mentally ill person is ever considered by his custodian to be in his or her best interest to marry, the Bill allows him or her to marry without permission.” This encourages the marriage of children and those with mental illnesses who need assistance and care without their consent. The amendments also allow rapists to pay “blood money” and/or be forgiven by victims’ families if the victim is murdered by the rapist or dies as a result of injuries sustained during the assault.

The revised version will make it difficult for rape and sexual violence survivors to report cases because several forms of violence are misclassified as acts of adultery or fornication. These survivors often grapple with the stigma and taboo surrounding reporting rape. The revised Bill also does not address numerous types of violence against women, including that which occurs in the workplace, educational settings, and other places.

13

Addressing Sexual Offenses in Somalia and Somaliland Legal Challenges and Legislative Responses

Under the Rape, Zina and Related Offences Bill, forced marriages and child marriages would be permitted, even though both are expressly prohibited by Islamic law, international human rights treaties such as the Convention on the Rights of the Child and the CEDAW. The Constitution must also be respected and upheld since it guarantees the application of international law in Somaliland in accordance with the interpretation of the international bill of rights. This is evident in Article 21 of the Constitution which invalidates provisions that violate international law.

Conclusion Somaliland is under legal obligation in its constitution to abide by international human rights law and to eradicate violence against women. The Sexual Offences Act passed in 2018 is legally a valid law that must be enforced. The amendment submitted later is in violation of international human rights law and does not comply with Somaliland’s commitment to play a responsible role in international arena. Somaliland’s government must become proactive and make the protection of girls and women a central tenet of its policies.

Recommendations To the government of Somaliland:

14

◆◆

Implement and enforce rigorous training programs for the Police and other justice-related sectors to strengthen their capacity in identifying, preventing, and responding to sexual violence.

◆◆

Allocate resources to enhance the infrastructure and operational capabilities of government institutions dedicated to addressing sexual violence

◆◆

Create SGBV risk mitigation strategies, particularly for rape, and establish comprehensive SGBV referral centers.

◆◆

Ensure that forensic labs are available so that rape offenders can be identified with ease.

◆◆

Create quarterly and annual reports and build a special data center for rape.

◆◆

Strengthen the capacity of the police and other justice-related sectors to address SGBV issues.

◆◆

Take tangible steps to prevent sexual violence against women and children, including adopting a new national action plan that will put an end to gender-based and sexual violence.

Addressing Sexual Offenses in Somalia and Somaliland Legal Challenges and Legislative Responses

For Parliament of Somaliland ◆◆

Immediately discard and reject the Rape, Zina and Related Offences Act.

◆◆

Follow the example of Muslim nations such as Djibouti and Indonesia, that have enacted all-inclusive SOBs to combat sexual offenses.

For religious and traditional leaders. ◆◆

Stop interfering in cases of sexual violence and allow the justice system to decide on these cases.

◆◆

Support the passage of laws prohibiting SGBV.

◆◆

Cease from labelling female parliamentarians and rights campaigners as disbelievers when discussing the women’s human rights agenda in Parliament.

For developmental partners. ◆◆

15

Maintain and expand the amount of support given to SGBV stakeholders, services, and service providers.

Addressing Sexual Offenses in Somalia and Somaliland Legal Challenges and Legislative Responses