Violence Against Women and Girls

Female Genital Mutilation/Cutting (FGM/C)

According to 2011 data, over 96% of women in Somaliland between the ages of 15 and 49 had undergone FGM/C.63 In early 2018, a fatwa (religious ban) was issued by the Ministry of Religious Affairs of the Government of Somaliland stating as follows:

“It’s forbidden to perform any circumcision that is contrary to the religion which involves cutting and sewing up, like the pharaoh circumcision. Any girl who suffers from pharaoh circumcision will be eligible for compensation depending on the extent of the wound, and the violation caused. Anyone proven to be performing the practice will receive punishment depending on the extent of the violation.”

The content of this Fatwa exhibits a lack of commitment to addressing the root causes of FGM/C, and perpetuates the misconception that FGM/C is a matter of the Islamic faith. In reality, FGM/C is not defined as a religious obligation in any of the sacred Islamic texts and is practiced across many countries and cultures of different religious affiliations.64 However, the rise of political Islam, which relies heavily on the repression of women, has been more than happy to artificially include FGM/C in their long list of strategies to regulate women’s bodies, public presence, and social interaction.65 The Fatwa is further damaging because, by only establishing the Fatwa against certain types of FGM/C (type 2 and type 3), the Fatwa implicitly legitimizes type 1 FGM/C, which was and continues to be the most commonly practiced form of FGM/C in Somaliland. The fact that this legitimizing discourse has been issued from the Ministry of Religious Affairs’ position of moral authority, may prove to be a powerful push factor in favor of increasing or maintaining the practice of type 1 FGM/C in Somaliland.66 To date, the Somaliland government has not taken any further steps to clarify its position regarding either the fatwa or the FGM/C Zero tolerance campaign.

Sexual and Gender-Based Violence (SGBV)

Although the overall state policy framework purports to be supportive of women’s rights, the reality is that hardly any progress is being made toward addressing gender-based discrimination in Somaliland. The government has shown a particular reluctance to address the high prevalence of SGBV in the country, which is specifically exemplified by the perpetrator impunity within the traditional elders’ justice system in handling rape cases. The Somaliland government is still very consistent in maintaining the power of the traditional clan elders when it comes to

63 UNICEF, 2019 64 SIHA Network, 2018a 65 Healy & Bradbury, 2010; Jama, G, 2019; SIHA Network, 2015; SIHA Network, 2018b

66 SIHA Network, 2018a

personal status laws and any other legal or judicial areas that are connected to gender relations and the circumstances of women in society. In 2013, NAGAAD Network found that 60% of sexual violence cases were being sent to customary law courts, which are typically bastions of traditional and conservative gender norms, and consequently, unsympathetic toward attempts by women to assert their rights.67 Shari’a law courts – in the context of growing support for Salafi Islam in Somaliland – often prove to be hostile settings for survivors as well, because they must always be wary when bringing a case of sexual violence or rape to the court that the court may instead place the survivor on trial for adultery.68 Ultimately, the “culture of impunity”69 for sexual violence in Somaliland can be assigned to a variety of different influences and key emerging factors. The enforcement of statutory law is too weak to deal with the challenges of growing levels of indiscriminate sexual offences, and as long as law enforcement is unable, unequipped or unwilling to manage the sexual violence, SGBV will continue to persist in Somaliland.70 In the 2015 report, ‘The Other War: Gang Rape in Somaliland,’ SIHA identified the prevalence of clan interference and a corresponding lack of juridical independence as two of the primary reasons connected to the early release of convicted perpetrators of sexual violence.71

In 2018, the Somaliland government took significant steps by drafting and announcing the possibility of adopting the Sexual Offences Bill (SOB). However, to date there has been no progress toward actually integrating the bill into the Somaliland criminal code. Rather, as predicted in Guleid Ahmed Jama’s Legal Briefing, published April 2019, the Sexual Offences Bill has undergone significant changes to become more conservative and discriminatory toward women. Likely due to the heavy pressure exerted by the House of Elders, which seems to have peaked in April 2019, a new bill was drafted to replace the SOB of 2018. Women’s rights activists in the country at the time, report that they attempted to be included in the drafting process, but were informed that the President had given an exclusive mandate over the process to an established group of religious leaders. An unofficial copy of the text of this newly titled ‘Rape, Fornication, and Other Related Offences’ Bill, was released in September 2019. Focus group participants who work in the field of women’s rights in Somaliland have strongly condemned the newly proposed bill as a wholesale betrayal of the progressive steps taken in the original SOB.

Among some of the more disturbing changes, the new bill would allow guardians to force minors and ‘mentally ill women’ into marriage without obtaining the consent of the concerned minor or mentally ill woman. As the bill upholds the antiquated and misogynistic notion that rape cannot occur within a marriage, anyone forced into marriage, would also lose any legal grounds to accuse their spouse of rape. The new bill also includes vague legal definitions, which would severely compromise the court’s obligation to safeguard the rights of the survivor, and to hold perpetrators accountable. Article 22 of the proposed bill stipulates that an accused party should not be

67

68

69 NAGAAD Network, 2013

SIHA Network, 2015

Ibid. 70 Ibid. 71 Ibid.

arrested if that person “is a good person with a good reputation within the community.”72 This highly subjective exception to the procedure of taking an accused party into police custody, would exacerbate the already rampant issue of perpetrator impunity. Article 34 of the bill dictates that the only evidence admissible in court for the purposes of reaching a verdict on cases concerning ‘fornication/zina’ (defined in the bill as “any sexual intercourse between two unmarried people with their consent”) or rape are either “four witnesses who fulfill the conditions of a witness as stated by Sharia” or “a reliable/genuine confession” from the defendant.73 The article goes on to stipulate that other forms of evidence including medical reports, and evidence produced in the course of police investigations will be admissible for determining any penalties to be meted out in the case of a guilty verdict. It is a severe impediment for survivor justice when these forms of evidence are not be considered by the court when deliberating on the guilt or innocence of the defendant. If signed into law, this newly proposed bill would lay the groundwork for incorporating a militant Islamist ideology into the Somaliland statutory legal framework. Such a legal framework would compromise the already weak mechanisms for protecting women’s rights in Somaliland, and would facilitate increased criminalization of women on the basis of genderdiscriminatory norms.

72 Rape, Fornication and Other Related Offences Bill, 2020 73 Ibid.