Somaliland’s
Rape Crisis Will Not Resolve Itself
Written and Published by the Strategic Initiative for Women in the Horn of Africa.
Artwork: Nusreldin El Douma Design: Julian Kemigisha Writing and Publication: SIHA Network Published: June 2022 All rights reserved. No part of this publication may be reprinted or reproduced or utilized in any form or by any means electronic, mechanical or other means now known or hereafter invented including copying and recording, or in any information storage retrieval system, without permission in writing from the publishers. Strategic Initiative for Women in the Horn of Africa PO Box 2793 Kampala – Uganda www.sihanet.org ©SIHA Network 2022
Somaliland’s Rape Crisis Will Not Resolve Itself Background The Somaliland National Human Rights Commission’s annual report for the year 2021 provides insight into the country’s human rights situation. According to the report, gender-based violence continues to rob women of their fundamental rights, and rape is on the rise. The report cites statistics shared by the attorney general’s office, which indicate that 188 cases of rape were reported in 2021. The figure was 142 in 2020 and 136 in 2019, representing a 4% increase in 2020 and a 24% increase in 2021.1 Due to the many barriers that hinder the reporting of sexual and gender-based violence (SGBV) crimes, the true rate of rape in Somaliland is likely much higher. According to the report, 98 of the 188 total rape cases occurred in the Togdheer and Marodijeh regions.2 These two regions which encompass the country’s capital and second capital cities, accounted for more than half of all rape incidents, and the most recent two heinous rape and killing incidents also occurred in these two cities (Hargeisa and Burao). Somaliland is not a recognized sovereign country, and the international community considers it to be a part of Somalia, which is one of the few countries in Africa and in the world that has neither ratified the Maputo Protocol nor the Convention on the Elimination of all forms of Discrimination Against Women. In Somaliland, rape and other sexual offenses are punishable under the outdated Penal Code, but survivors rarely report their cases, and few reported cases result in conviction.3 Somaliland National Human Rights Commission, Annual Report 2021 2 Somaliland National Human Rights Commission, Annual Report 2021 3 The Role and Limitations of the Criminal Justice System, Horizon Institute, 2018 1
The Rape and Sexual Offences Act, which was passed in 2018 but has yet to be implemented, was the result of a long and ongoing struggle in Somaliland to end sexual violence. The goal was to address the barriers to justice for rape survivors, as well as to reform the outdated penal code with best practices for ending impunity for SGBV crimes. Its enforcement was halted as a result of pressure from conservative religious elders who have significant influence in Somaliland society. Rape and other forms of SGBV are a real and growing crisis in Somaliland for women and girls despite the low reporting rates, which are primarily due to the stigma surrounding SGBV and the lack of faith in the formal judicial system. Consequences for the survivor encompass physical and psychological damage and can lead to migration or even suicide. Unaware or unwilling to see the toll this takes on survivors, many families of survivors prefer to keep the incident hidden and ‘resolve’ the case informally, believing that this will save the family and/or the survivor from shame.
Analysis The criminal justice system in Somaliland is based on a penal code adapted from the Italian civil law penal code used in colonial Somalia and a Criminal Procedure Code adapted from India’s colonial-era common law Criminal Procedure used in Somaliland when it was a British Protectorate—both of which were drafted before the 1960s and have never been revised.4 This outdated legal framework is further undermined by Somaliland Criminal Procedure Law, http://www.somalilandlaw. com/criminal_procedure_law.html 4
the pluralist nature of the justice system in Somaliland. According to Horizon Institute, the prosecution of rape is particularly challenging because Somaliland’s pluralist legal system makes it far from straightforward. It is a multi-layered justice system without clear divisions between the three, at times overlapping and at times conflicting, types of law – Xeer, Sharia, and statutory law.5 Xeer6 is a very powerful, clan-based form of customary law which is susceptible to gender-based bias and is the most common of Somaliland’s three legal systems applied when addressing SGBV cases. Under Xeer, perpetrators of rape are not arrested, rather the survivor (or the survivor’s family) is given compensation in the form of ‘blood money,’ which is collected from among the perpetrator’s clan.7 This is seen as a means to prevent inter-clan conflict because the payment of compensation is understood to dissuade retaliatory attacks. Women and girls are also often married to the perpetrators of SGBV as a means of ‘resolving’ the issue, especially in rural areas.8 Both scenarios prevent survivors from receiving assistance or justice, and when survivors are forced to marry their attacker, they are condemned to a life of repeated trauma. At times, cases reported formally, are turned over to the Xeer or Sharia courts by the judicial officers, judges and police officers from within the formal legal justice system. Even when the case is processed through Horizon Institute’s report on prosecution of rape cases in Somaliland, 2018 6 Xeer; it is unwritten traditional legal system of Somalis. It is a powerful system in Somaliland in which elders serve as judges and help mediate cases using precedents. 7 The Other War – Gang Rape in Somaliland, SIHA Network, 2015 8 The Other War – Gang Rape in Somaliland, SIHA Network, 2015 5