In a country where rape is “normal” and survivors almost never get justice, momentum is building for a new law.
BY AMANDA SPERBER-JUNE 7, 2016
MOGADISHU, Somalia — After Maryam was gang-raped in a camp for displaced people in 2012, she tried to report it to the police. She was still bleeding heavily when she arrived at the station, but instead of assisting the pregnant mother of six, the officers demanded that she go home and clean herself up. But first, they made her scrub her blood off the floor. She never filed an official report, lost her baby, and was raped again five months later.
For nearly two years, a law that would ensure a measure of justice for survivors of sexual violence like Maryam, whose ordeal was recorded in a 2014
report by Human Rights Watch, has been wending its way through the Somali Parliament. The Sexual Offenses Bill, which would be the country’s
first comprehensive law on sexual violence, still faces enormous impediments to passage and even greater impediments to implementation. But on May 17, it was endorsed by a group of high-level Somali officials, representatives from donor countries, and U.N. and African Union diplomats in what advocates described as an important step toward getting the draft law on the books.
“[W]e want the prosecution to make sure that [rape] is not dealt with under the traditional resolution mechanism,” Somali Deputy Prime Minister Mohamed Omar Arte said in urging the bill’s passage. “It has to be a crime that has been committed against the state so that it will not be possible for them to take it out of the court systems to deal with it at clan level/customary law.”
Current Somali law on sexual violence is based on the colonial-era penal code that dates back to the 1930s. Under this legislation, rape is not considered a crime against an individual like murder or assault. Instead it falls into a lesser category of “crime against morality” along with homosexuality and bestiality. There are no clear guidelines for prosecution, and no legal repercussions if the police elect not to investigate a reported sexual assault. Gang rape, child marriage, and sexual harassment are not acknowledged in the law.
“At present, if a woman who has experienced sexual violence wants to obtain justice through the legal system, she faces an extremely complicated and humiliating process, at the end of which a conviction is very unlikely,” said Antonia Mulvey, who founded Legal Action Worldwide, a law firm specializing in human rights that is providing technical support for the drafting of the Somali bill.
In the past, women who came forward to report sexual violence have been accused of prostitution and even
raped again in prison, according to testimonies collected by the Elman Peace and Human Rights Center, a Mogadishu-based nonprofit that assists victims of gender-based violence.
of gender-based violence.
“
Women are second-class citizens in Somalia. Sorry to say that,” said Abdifatah Hasssan Ali, the founder of Witness Somalia, a local NGO that monitors human rights abuses in the country.
Things are even worse in the huge swaths of the country where the national legal system is irrelevant. Outside the capital, the central government’s authority is radically diminished and a complex mixture of customary law — traditional, localized law among clans — and interpretations of Sharia law prevails. In these areas, women are often forced to marry their assailants, or a small fine is paid to their male relatives as recompense. In 2011, the Rome-based International Development Law Organization
estimated that 80 to 90 percent of criminal disputes in Somalia were handled through the customary system.
Somalia’s weak central government is the legacy of more than a quarter century of civil war, first among clan warlords and then between the Western-backed government and al-Shabab, a fundamentalist militant group that swore allegiance to al Qaeda in 2012. As recently as 2011, al-Shabab controlled much of the country, including part of Mogadishu. African Union (AU) peacekeepers have since recaptured much of the territory, and security has gradually improved. Still, there are almost daily small-scale attacks in the capital, and AU and Somali troops continue to suffer heavy losses, the result of deadly ambushes and attacks on forward-operating bases.
In the areas that remain under al-Shabab’s control, women and girls live under the constant threat of sexual and gender-based violence. According to Human Rights Watch, the militant group has abducted women and girls, raped them, and forced them to marry fighters or work as slaves. Meanwhile, African Union and Somali forces have been
accused of abuses of their own. (The roughly 20,000 AU forces stationed in the country would not be subject to the new law, since they must be tried in their home countries.)
As if to underscore the continued threat posed by al-Shabab, the high-level panel met to endorse the Somali Sexual Offenses Bill in a bulletproof container at Mogadishu International Airport, one of the only places in the capital deemed safe enough to hold such an event. (It costs thousands of dollars to move around the city in armored vehicles with security guards, so important meetings are regularly held at the heavily fortified airport compound.)
Related to the problem of the Somali government’s limited reach is the emergence of federal states — part of the country’s federalization process, set in motion at a reconciliation conference 12 years ago in Nairobi, Kenya — which have tended to resist national legislation. In many cases, states have simply refused to acknowledge laws passed in the capital.
“The biggest challenge with any legislation passed in Somalia right now is that it has very little force outside Mogadishu or possibly even within Mogadishu,” said Matt Bryden, the former head of the U.N. Monitoring Group on Somalia and Eritrea. Opposition from emerging state-level administrations meant that “a number of pieces of legislation have been passed and they have no meaningful impact on the ground. And that’s even before you take into account the weakness of law enforcement and the judicial system,” he said.
Of course, none of this will matter if the Parliament in Mogadishu doesn’t rally the votes to pass the sexual violence bill in the first place. After 17 months of drafting — during which time it was workshopped by civil society groups, lawyers, religious leaders, and parliamentarians who vetted it for compliance with Sharia law — the bill was finally submitted to the cabinet for debate in December. But many doubt whether Parliament will vote on it before August, when the current government’s mandate is set to expire. If it doesn’t go to a vote before then, the bill will need to be reintroduced by the next cabinet in accordance with parliamentary rules.
Arte, the deputy prime minister, said Parliament will “hopefully” pass the bill, but he cautioned that people should be “realistic.” According to Ali, of Witness Somalia, the next big step before taking on the massive job of implementation is to persuade Parliament to prioritize the bill. He said the government right now spends most of its energy on national legal frameworks and organizing election committees: internal politics. He acknowledged and appreciated the pomp and circumstance of the day but commented, “It’s like they have never attended such a forum once they are back in their offices.”
Part of the resistance to the bill is no doubt rooted in the deep-seated conservatism of Somalia’s male-dominated political class. Only 38 of Somalia’s 275 parliamentarians are women. But some of it boils down to semantics. Much of the wording of the bill, which was drafted in English as a result of the substantial input from international organizations, is getting lost in translation, said Zahra Samantar, Somalia’s minister of women and human rights. For example, there is no word for “gender” in Somali. Arabic was ultimately used in the translation, but in that language “gender” means “sex.” Settling on a wording that is clear and culturally sensitive is imperative, Samantar said, because “in order for there to be justice, he or she must know what type of crime has been committed.”
Despite the looming uphill battle for passage and implementation, Samantar described the draft law as a vital first step toward equality for a country that has been dubbed the “
worst place” on Earth to be a mother and where Human Rights Watch once described rape as “normal.” “This is a changing of a culture,” she said, referring to the bill as the beginning of at least a 20-year project aimed at transforming how Somalis understand women’s rights.
Mulvey, of Legal Action Worldwide, described the draft law in similar terms. She said that even two years ago it would have been difficult to imagine government officials discussing sexual violence in public, let alone seriously considering a law to ban it. She also described the bill as an important part of a larger push by Somali women to shape the political system that has long been biased against them.
“The situation now for women is far from ideal,” she said. “But Somali women have been fighting for a better future for themselves. You can see that in this election the minister of women, as a female leader, is pushing hard to make sexual violence and other issues relating to gender priorities. There are a lot of women’s groups undertaking impressive work…. We have seen a change in the political landscape where people are now at least willing to engage with and discuss issues relating to gender.”
One indication that the times are slowly changing is the emergence of not one, but two female candidates for president in the election, which is scheduled for August but will likely be delayed. That these women have the courage to run, and that people are rallying around them, is a huge step in the right direction.
Somalia is as close as it’s ever been to passing a law that criminalizes sexual violence, but the bill faces a long and treacherous road from bulletproof airport containers to the real world outside.
Image credit: MOHAMED ABDIWAHAB/AFP/Getty Images
BY JAMES OLIPHANT-Wed Jun 8, 2016
COLOMBO: Francis A Boyle, Professor of International Law at the University of Illinois and a renowned expert on human rights, war crimes, genocide, and the Right to Self-Determination, has joined the Tamil Peoples’ Council’s team to fight for an international Judicial Mechanism to investigate and try war crimes cases in Sri Lanka.
