By Yousef Timacade
On August 25, 2018, the president has passed the House of Representatives’ Rape and Sexual Offenses Act 78/2018. The act, which was passed for the first time in Somaliland, aims to reduce the nation’s rape rate against women and girls, which is rising every year.
The president dared to sign it while holding office for less than a year, and that was a positive step. It was welcomed by the international community and Somaliland’s human rights organizations, and it might be a great fit for his legacy.
The Somali Penal Code, which is incompatible with the types of rapes that occur today, the circumstances in which they are committed, and the punishments for rapists, was the impetus for the creation of this special law. Using Somalia’s laws, from which we seceded 31 years ago, is a shame to the country. By now, we ought to have created a contemporary criminal code for Somaliland. Although 31 years is a considerable time, using the old Somalia penal code was only temporary, as stated in article 130(5) of the Somaliland constitution.
However, the President’s acceptance of the misinterpretation of this law by some of the country’s religious leaders was illegitimate because, in accordance with the Somaliland constitution, a bill only becomes a law after it has been approved by both houses of parliament and signed by the head of state. Therefore, since the president signed it, it is legitimate and wasn’t supposed to be discussed or amended for a year. Religious leaders who believed it to be a statute that went against Islamic law, one that the president signed and put into effect, could have brought a lawsuit before the Constitutional Court, which makes decisions about constitutional disputes and law interpretations.
I’m wondering whether the President aware that the revised version violates the rights of rape and sexual assault victims by limiting their rights and enforcing lighter punishments for offenders regardless of the specifics of the horrific crime?
I’m also wondering whether he know that the this version calls rape as forced fornication/adultery? Al though we aware of the fact that the difference between adultery and rape is clear. The truth is, whenever rape takes on the nature of adultery or fornication it becomes difficult to have witnesses, as the religion has made it difficult for witnesses who stand against those who commit adultery, and to report, since rape was recognized as forced Adultery in this Law.
As a result, victims’ access to justice is hampered, rape crimes rise, and survivors find it harder to come forward for fear of embarrassment or from being falsely implicated in the fornication or adultery consensus. The modifications also permit rape offenders to be released if the relatives of the victims get blood money recompense in accordance with Article 4 and the other conditions of this law due to death. These limit victims’ access to justice and provide families and traditional elders a chance to resolve issues of rape, which has traditionally limited victims’ access to direct justice, especially women. Because the victim of the rape can receive a reward and the offender is not burdened because the compensation is shared among the clan members, it encourages rape.
Furthermore, rape, forced adultery, and sexual touching are all considered forms of violence against women according to Article 11 of this law. In general, numerous types of violence against women, including that which takes place in the workplace, educational settings, and other places, are not addressed by the Act. Such abuses and comparable violations, such as a workplace authority engaging in sexual exploitation with one of his or her employees, are not prohibited by this revised law.
However, rape and fornication have distinct meanings, their penalties should be distinct and cannot be combined. The judge will be troubled by this act’s ambiguity because it is not obvious in any rape case. It does not include the death penalty or life in prison; instead, it offers open and negotiated penalties, which is misleading justice. It also stipulates less severe penalties for rape and stricter requirements for fornication. 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 Shari’a allows him or her to marry without permission.” This encourages marriage for children and those with mental illnesses who need assistance and care.
The worst element of the revisions to this law is that it emphasizes that unless the accused’s guilt is proven, he cannot be imprisoned if he is known to standards of decency and dignity. The person who reported the rape should face punishment in order to safeguard the honor of respectable and moral people. By establishing a social class, this measure breaches Article 8 of the Somaliland constitution. And it says nothing about the individuals who are decent or respectable. Does this include individuals in business, those who teach the Koran, and those who work in government, and so on?
The idea is to prevent the accused, sometimes known as “decency individuals,” from being arrested until their accusation is proven, or until the court deems them to be rape offenders. Any accused person may use this article (22) as a justification and avoid arrest by claiming he or she is acting in good faith. The accused is also free to leave the crime scene before and throughout the trial because he is not detained under this article as a decent person would be.
Forced marriages and child marriages are now permitted under this rule, despite the fact that both are expressly forbidden by Islamic law and international human rights treaties like the CRC and the CEDAW. However, it must respect and uphold the constitution because it guarantees the application of international law in Somaliland in accordance with the interpretation of the international bill of rights. Provisions that are in conflict to international law are void, according to Article 21 of the Constitution.
In conclusion, Somalilanders are not good for women. Although women bear the brunt of this nation, they do not receive the same assistance and encouragement as men. They do not acquire occupations as males do. They don’t participate in politics at all. Women are educated and knowledgeable, but the patriarchal society forbids them. The majority of the justifications are religious and cultural justifications for mistreating them. Not the fact that women are still not organized and lack the strength to resist men, but rather the government’s lack of support for them, is the underlying problem. Without doubt, if women had more opportunities, Somaliland would advance ten times faster, and sexual violence would not have existed if women had been given leadership roles in the criminal justice system.
Rape, among other things, disproportionately affects women and girls, according to reports from the national human rights commission and the human rights protection organizations. The recent case in Sanaag, in which an American scientist claimed to have been raped in Somaliland, exposes the prevalence of rape and sexual violence in the nation. It also brings to light the predicament of the poor, invisible women and girls in that area and others who live in areas without courts when those who can make their voices heard are being raped without fear.
Mr. President, it is time for you to address rape as a national issue and put an end to impunity. Now is the time to adopt broad institutional and legal reforms to eliminate sexual and gender-based violence.
Yousef Timacade is lawyer, legal analyst and commentator. He has a master’s degree in law and a master’s degree in executive management, and has been working with national and international non governmental organizations for the last ten years in the areas of program management, research, and human rights.