Rape Crisis Will Not Resolve Itself Somaliland’s and Published by the Strategic Initiative for Women in the Horn of Africa.
Written
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
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.
7 The Other War – Gang Rape in Somaliland, SIHA Network, 2015
1 Somaliland National Human Rights Commission, Annual Report 22021Somaliland National Human Rights Commission, Annual Report 32021The Role and Limitations of the Criminal Justice System, Horizon Institute, 2018
Even when the case is processed through
Background Somaliland’s Rape Crisis Will Not Resolve Itself
5 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.
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.
8 The Other War – Gang Rape in Somaliland, SIHA Network, 2015
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 SomalilandBurao). 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
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 4 Somaliland Criminal Procedure Law, http://www.somalilandlaw. com/criminal_procedure_law.html
the pluralist nature of the justice system in AccordingSomaliland.
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.
We call upon the Government of Somaliland to
11 A Reflection on the Gender Equality Agenda in Somaliland, SIHA Network, 2020.
9 Horizon Institute’s report on prosecution of rape cases in Somaliland, 2018 10 A Reflection on the Gender Equality Agenda in Somaliland, SIHA Network, 2020.
3. Prepare and enact Family Law to protect women and girls in close consultation with women’s rights groups and CSOs.
5. Appoint female judges and increase female officers in police stations, prosecution offices, and law enforcement agencies.
We call upon the international community and the civil society to
Another barrier to justice, manifests in the limited resources dedicated to the Criminal Investigation Department (CID) and the police, which means that survivors and their families will need to pay a bribe in order for their case to be diligently investigated.9 These circumstances promote impunity by preventing perpetrators from being punished in accordance with the law. In addition to promoting impunity this creates a system of classes, where only the wealthy can afford to pay the bribes, and poor families cannot pay the bribes needed, even if they would like to investigate within the formal system. When crimes go unpunished, perpetrators are emboldened to commit more crimes and the credibility of the justice system is undermined. The decreased credibility of the justice system can lead survivors to be intimidated away from the formal justice system where they will be questioned by the police and during criminal prosecution – a process which can be retraumatizing even in the best of circumstances, but especially so when law enforcement and judicial personnel are not sensitized to survivors’ challenges and needs. However, during customary court proceedings, elders do not question the survivors.
the formal statutory court system there is a high risk that judges will be swayed by prevailing gender-based biases or succumb to pressure from traditional and religious elders to deviate from diligently following the criminal procedure code, as was the case in the judge’s analysis of the facts and evidence presented before the court in relation to the rape and murder of Hinda Omer. In this case, the Judge ignored provisions of the Criminal Procedure Code that require the court to decide on: (i) preliminary questions; and (ii) questions of fact and law concerning the charge. The Judge ignored relevant evidence and failed to uphold his mandate by basing his decision regarding a rape and murder trial on the deceased’s lifestyle choices prior to the rape and murder. In doing so, the Judge ignored relevant evidence and information, resulting in a clear miscarriage of justice.
Recommendations
8. Provide technical assistance and support to the Ministries to develop and implement appropriate national action plans for gender equality and women’s empowerment.
10. Increase support for anti-SGBV stakeholders, services, and service providers to sustain the gains made so far.
4. Review the traditional justice system and the statutory law. The traditional justice system should not be allowed to supersede statutory law, particularly relating to matters of sexual violence and family. This should end impunity by ensuring that perpetrators of sexual violence are tried and sentenced in accordance with statutory law.
The influence of misogynistic interpretations of Sharia law in Somaliland has been on the rise in connection with increased efforts by Islamist militants to expand their sphere of influence in the Horn of Africa region. As a result, Somaliland has seen an increase in Wahhabism,10 which promotes a fundamentalist interpretation of Sharia law that strongly disadvantages women and girls, and significantly compromises their access to security and justice.11 Religious militants regularly speak out against women and gender equality, particularly during Friday sermons. Discriminatory practices championed by militant Islamists have become common in Somaliland, depriving women of their fundamental rights to live a dignified life, and violating the basic human rights and freedoms of men and women enshrined in the constitution. Such actions are not only a threat to women’s human rights but also the stability and peace of the country as well as the democratic system of government that Somaliland has been establishing and cultivating for years.
2. Look to other Muslim countries that have enacted effective laws against sexual violence, such as Egypt, UAE, Turkey, and Indonesia, as examples of how such legal reform can be carried out successfully.
7. Provide technical assistance in law review and reform, to extend support to the Government of Somaliland to ensure that the laws are aligned to the Somaliland constitution as well as international standards set by the various international human rights instruments.
1. Enforce the Rape and Sexual Offences Act enacted in 2018. This law will be crucial for strengthening accountability for sexual offenses and discouraging future acts of violence against women and girls, thereby ending impunity for these crimes.
9. Provide funding for government programs in Somaliland aimed at changing attitudes and perceptions that perpetuate violence against women and girls.
6. Include women in the Judiciary Commission which has the mandate to appoint judges and other senior judicial officers.
Artwork by Nusreldin El Douma
