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SOMALIA SEXUAL OFFENCES BILL HAILED AS VITAL STEP TOWARDS LASTING CHANGE

Somali women

Legislation addressing rape and other sexual violence – often committed by armed forces – will be presented to cabinet by year end

The first bill to define and address sexual offences in Somalia is expected to be presented to the cabinet before the end of this year, updating legislation that has been in place since 1930.

The bill will define rape as a crime against a person, rather than a crime against morality, as it characterised at present. It will criminalise gang rape and introduce legislation against child marriage, human trafficking, sexual harassment and offences committed against vulnerable groups such as internally displaced people.

The new law will also outline the role public officials and police should play in investigating and prosecuting cases, in addition to criminalising the obstruction of justice, protecting the identity of injured parties and witnesses, and – in a major shift for Somalia’s clan-based society – prohibiting the out-of-court settlement of sexual offences cases.

However, due to religious sensibilities, the bill does not address marital rape or domestic violence. The latter is widespread in Somalia.

“If you want to affect real change this is not the solution, but it is one part, a very important process,” said Antonia Mulvey, the executive director of Legal Action Worldwide (Law), a Nairobi-based NGO working with the Somali government to draft the bill.

“Without the legal framework in place we are not going to be able to make the other changes. People argue that we are unable to arrest, prosecute or convict because they don’t have the legal framework. This gives them the legal framework.”

The UN reported nearly 800 cases of sexual and gender-based violence in Mogadishu alone over a six-month period last year, although the majority of abuses go unreported. One-third of the victims are children.

Tahlil Ahmed, a senior legal adviser from Somalia who supports Law, said:“We intended to criminalise all aspects of violence without mentioning domestic [violence] because some people believe they have that right, that you are undermining Islam.”

LAW has issued a report explaining that sharia law, which is in force in Somalia, does not conflict with women’s rights.

“Beating your wife and hurting her is not permissible in Islam, as is widely thought,” said Ahmed. “Hurting your wife is wrong in Islam.”

Abdifatah Hassan Ali, who works with the Somali Women Development Centre, said: “Islam uplifts women’s rights in every aspect of life. There is misinterpretation of the Islamic teachings made by the Somali community, and they use it as a tool to oppress women.”

Hassan Ali said the ingrained Somali culture of women as second-class citizens was a challenge to drafting the bill. “Men see sexual offences as an issue for women – they don’t consider it an area in which they should be involved,” he said. Disseminating the message to men will be a critical aspect of implementation, should the bill be passed, he said.

Crimes committed by security forces have been left out of the bill, as they were deemed too sensitive to mention and could have prevented the new legislation from being passed.

The UN estimates that sexual violence committed by armed forces ranges from 30% to 70% of total offences.

In addition to the national army, the African Union has a force of 22,000 troops in Somalia. A Human Rights Watch report found that AU troops have gang-raped women and girls as young as 12 and traded food aid for sex.

The sexual offences bill is not among the 23 priority pieces of legislation going before the Somali parliament before the end of this year’s session. Mulvey has been meeting European donor countries and urging them to push the government to add the sexual offences bill to the priority list.

Report by Amanda Sperber for the Guardian

HOW DO YOU STOP RAPE IN A BROKEN STATE?

Somalia is giving it a try

In 2011, a Thomson Reuters poll found that Somalia was ranked among the top five most dangerous countries to be a woman. Fewer than three years later, Human Rights Watch concluded that two decades of civil conflict in the country had created a large population of civilians vulnerable to sexualized violence, in a report titled “Here, Rape is Normal.”

Eight-hundred cases of sexualized violence were said to have occurred in Mogadishu alone in the first six months of 2013,according to a statement by the UN Secretary General—and those were just the ones actually reported. The true number, the UN said, was likely much higher given the universal realities of underreporting rape.

Sexualized violence in Somalia is, as these facts and figures show, an alarming issue. Years of conflict and food insecurity have led to huge numbers of displaced people becoming particularly susceptible to sexualized violence and exploitation. Children, says UNICEF, make up a third of Somalia’s victims of sexualized violence. Armed gunmen beat, rape, shoot, and stab women and girls with complete impunity, according to news reports.

Somalia is attempting to address existing legislation on sexualized violence by implementing a new bill. Somaliland is due to approve the legislation soon. Here, women gather in Somaliland on Election Day in 2010. (Teresa Krug)

“Prosecutions and convictions for rape and other forms of sexual violence are rare in Somalia,” says a 2013 report from Amnesty International, which calls the violence an “epidemic.” Impunity, Amnesty says, allows perpetrators to know that “they can commit such crimes and get away with it.” A complete lack of legislation or a system equipped to deal with prosecutions exacerbates the issue. Impunity reigns as systems are simply not in place to record, process, and try crimes of sexualized violence.

Yet it is with this impunity where change is not only possible, but essential to stop this rampant violence against women. And now, finally, there is hope manifesting at a national, legal level.

The Somali Sexual Offenses Bill, due to go before the Somali federal government in early April, aims to address the narrow scope of existing legislation on sexualized violence in the country. The bill is being seen as a model for Muslim majority countries emerging from conflict. After all, according to Somalia’s provisional constitution, all laws must be in compliance with Islamic law.

Antonia Mulvey, executive director of the non-governmental organization Legal Action Worldwide (LAW), pointed out, “The Quran and Sunnah, the primary sources of Sharia law, contain numerous pronouncements of women’s rights and freedoms. The Sexual Offenses Bill seeks to ensure that these rights are fully implemented.”

According to LAW—the technical advisers and main drafters of the bill for the Somali Ministry of Women and Human Rights Development, the ministry responsible for driving forward human rights reforms—current Somali legislation contains an outdated definition of rape, which refers only to “carnal violence,” thus not acknowledging other forms of rape. It also contains no age of consent, an omission that leaves children particularly vulnerable to abuse.

The question is, however, can a new law actually be enforced in a country in which the government is severely limited in reach and terrorism affects much of daily life?

A country outside the bounds of law
Journalists writing about Somalia often use “Black Hawk Down,” famine, and piracy to sum up the last two complicated decades the country has undergone. But today, Somalia’s struggles are very different.

The fractured country has little to no functional internal structure. The Somali federal government rules over an area that does not extend much farther than the outskirts of the capital, Mogadishu. The most functional part of the country, the breakaway republic of Somaliland, is not internationally recognized. Declaring itself independent in 1991, thereby largely avoiding much of the chaos of the following years, Somaliland today has a functioning police force, military, and civil service. Despite this, it and the other semi-autonomous region of Puntland are subject to the federal government based in Mogadishu. Though the terrorist organization Al-Shabaab was driven from its urban strongholds in 2012—largely due to heavy international assistance—the group continues to stage regular, deadly attacks on Mogadishu, according to news reports.

Still, despite the lack of state structure and security, independent commerce and trade have seen a boom in recent years, according to news reports. This has largely been fueled by a rise in the number of Somalis returning from Europe and the U.S., eager to contribute to the rebuilding of their country of origin.

Amid this uncertainty, the Somali government has attempted to rapidly modernize an outdated legal system that resulted from the merging of a former British protectorate and an Italian colony in 1960. LAW states that much of the existing Somali legislation is rooted in provisions based on the Italian penal code of 1930. And during the past two chaotic decades,most of the country’s criminal justice was dispensed by traditional Islamic or customary courts.

Customary and Sharia law still govern many aspects of life in Somalia. Customary law in Somalia generally refers to the uncodified set of conventions and procedures passed down orally through generations of clan elders, according to the U.K.-based peace-building non-governmental organization Conciliation Resources. This kind of law is not universal, but changes according to varying factors such as clan relations, societal status, etc. The lack of a strong, centralized state has lent extra authority to these clan laws and religious courts, which often provide the only form of functioning justice.

Rape cases in these courts usually involve clan representatives discussing appropriate compensation for the victim’s family or community, rather than focusing on the wishes or rights of the victim or punishment of the perpetrator, according to rights groups. Women are often forced to marry the perpetrator. Even if a perpetrator is found guilty and sentenced to a custodial term, traditional law allows for them to pay a fine relative to the length of time imposed and be released immediately, UN service IRIN News has reported.

Shift from rape as a ‘moral’ crime
Traditional Islamic courts, along with the existing Somali penal code, treat sexual offenses as crimes against morals and decency rather than as crimes against the individual, says Roisin Mangan, LAW’s legal officer.

But the Sexual Offenses Bill aims to rectify this. The bill includes provisions criminalizing forced marriage and child marriage, and replaces the outdated definition of rape. It also improves upon existing legislation by listing offenses that would be covered by the bill and providing appropriate sentencing guidelines. The bill also aims to offer further protection to vulnerable women and children by placing obligations on people in positions of power, such as health workers and police, to report, investigate, and prosecute all cases of sexualized violence.

The bill has been crafted to ensure a combination of international best practices and Sharia law, in accordance with theprovisional constitution which states that all laws must be compliant with Islamic law. For this reason, it does not decriminalize adultery, a crime known as zina in Islamic law.

The concept of zina could complicate the implementation of the bill. Zina is typically considered to be sexual contact outside of marriage. The definition itself does not distinguish between rape and consensual adultery. Thus, in order to secure a rape conviction where the defendant pleads not guilty, Islamic law requires the testimony of no less than four male Muslim witnesses, according to the 2011 book “Defining Rape: Emerging Obligations for States Under International Law” by human rights expert Maria Erikkson.

In order to comply with the constitution, this complication could mean a rape victim would fail to procure a conviction without producing four male witness or, potentially, that the primacy of DNA evidence over witnesses would be left for the judiciary to adjudicate on a case-by-case basis. This lack of legal clarity is far from ideal and could possibly act as another deterrent to rape victims coming forward.

Pakistan has demonstrated the difficulties that can often occur in this instance. Last year, Pakistan’s parliament held aheated debate on whether this witness requirement trumped incriminating DNA evidence. In 2013, Pakistan’s Council of Islamic Ideology, a constitutional body which regulates the country’s laws in relation to Islamic law, stated that DNA evidence could only be considered supplementary evidence—the primary evidence still being considered four witnesses.

Despite a complex process of implementation that will need to take place once passed, the bill is moving forward. Somaliland’s administration, with its previous track record of attempting to introduce rape law reforms, including banning customary courts from adjudicating rape cases, is due to approve the legislation this month, with Mogadishu expected to follow soon. LAW also has an in-country implementation team of Somali experts ready to work with key government ministries and religious and cultural leaders on capacity building and institution strengthening.

Potential barriers to success
Somalia’s fractured political state means three separate government ministries in the three regions will be responsible for the bill’s implementation. This three-pronged approach means the bill is most likely to be successful in Somaliland, where LAW’s Mulvey estimates the judicial, prosecutorial, and investigative processes are more advanced.

This approach also means, according to Mulvey, that implementation is “likely to occur immediately, without waiting for further political stabilization in any of Somalia’s regions.”

Legal complexities will not be the greatest barrier to this bill’s implementation. The general lack of security in Somalia, as well as the cultural norms that have made rape rampant, are sure to be huge hindrances. The Somali federal government depends almost entirely on international assistance for its survival, including on the African peacekeeping force AMISOMto provide limited security. Strengthing the Somali military is a government priority but it is made difficult by underdeveloped systems and complicated by clan loyalties, according to news reports. The Atlantic Council of Canadanotes that one of the most serious issues in the country is that the government seems unable to protect its citizens from the general insecurity that reigns.

And although the obstacles are substantial, these difficulties also serve to emphasize the importance of prioritizing women’s rights in Somalia.

“Security is a legitimate and very serious concern that will affect implementation,” Mulvey says, “but the issue of sexual violence in Somalia is urgent.” Addressing it, she says, cannot wait: “It must take place now.”

Report by : Louise Hogan

First published on Women Under Siege Website