50.50: Analysis

Religious backlash threatens Somaliland’s progressive rape law

Religious leaders have gutted a progressive sexual offences law, creating a new version that permits child marriage

Ytimacade.jpg
Yousef Timacade
19 August 2022, 9.31am
Girl at a market street in Hargeysa, Somaliland
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Egill Bjarnason / Alamy Stock Photo

A group of religious leaders in Somaliland is behind an attempt to replace a progressive sexual offences law passed in 2018 with a revised version that protects rapists rather than survivors and allows child marriage.

In August 2018, Somaliland president Muse Bihi Abdi signed Somaliland’s Rape and Sexual Offences Act into law. The first of its kind, the new law aimed to reduce rape and gender-based violence, which is said to have spiralled in recent years. Somaliland’s human rights organisations and the international community hailed it as a great feat for the president and his legacy – at the time he had been in office for less than a year.

But Bihi Abdi quickly reversed this legacy and, as a result, survivors of sexual violence are now in legal limbo.

Survivors remain dependent on the Somali penal code. Somaliland seceded from Somalia 31 years ago and functions as an independent state with its own government but is still considered internationally as part of Somalia. The Somali penal code is incompatible with the types of sexual offences which occur today and the circumstances in which they are committed. For example, it doesn’t deal with online abuse or intimate partner violence. This was the impetus for writing the 2018 law.

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Almost as soon as he had signed the 2018 law, Bihi Abdi bowed to criticism from some of the country’s religious leaders, claiming the new legislation contravened Islamic law, and allowed them to revise it. He then returned it to the House of Representatives, the country’s lower parliamentary house, which passed the revised version in 2020. It now sits waiting to be passed by the upper house and signed into law by the president.

First of all, the process used to revise the law was illegitimate. Opponents should have brought a lawsuit before the Constitutional Court, which makes decisions about legal interpretations, not the president. The president’s role, according to the Somaliland constitution, is to sign acts of parliament into law, or refuse to. Since he had already signed the 2018 act, and it had been approved by both houses of parliament prior to that, it should not have been retracted, revised and then sent back to parliament.

More worryingly, the revisions made by the religious leaders severely limit justice for survivors of rape and other sexual offences.

Rape conflated with ‘fornication’

Called the Rape, Fornication and Other Related Offences Bill, the revised version conflates rape with fornication by labelling it “forced fornication” (as opposed to “consensual fornication”, which the bill also covers). To any fair mind, the difference between extramarital sex and rape is clear, yet this revised bill states that rapists “will be liable to the punishment prescribed for fornication by Islamic Sharia Law”.

Moreover, misnaming rape as a form of adultery or fornication makes it even more difficult for victims to report it. Survivors find it harder to come forward for fear of being wrongfully implicated in fornication or adultery.

The modifications also permit rapists to pay “blood money” and/or be forgiven by the families of victims, in the event that the victim is either murdered by the rapist or dies from injuries sustained in the assault. Traditionally, offenders’ clan members contribute to such fines, so an individual rapist would not be particularly burdened by it. This encourages rape and femicide.

Moreover, the revised law fails to address numerous types of violence against women, including those which take place in the workplace and educational settings.

It’s hard to pick the worst element of the revisions but Article 22 is a top contender. It protects certain categories of accused individuals from arrest until the court finds them guilty. It stipulates that unless an accused’s guilt is proven, he cannot be arrested if he is a “good person with a good reputation within the community”. However, it fails to define what constitutes such a person. Does this include powerful individuals in business, those who teach the Koran, and those who work in government? Anyone accused of rape could presumably avoid arrest by claiming to be a ‘decent person’. They could then be free to intimidate the victim or destroy the crime scene as they wish, before a court proves them guilty.

Forced marriages for disabled persons and child marriages would be permitted under this law, despite the fact that both are expressly forbidden by Islamic law and international human rights treaties like the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women. The third clause of Article 12 of the revised law reads: “If a legal guardian deems that marriage is in the best interests of a minor, or a mentally ill woman, Sharia permits the marriage/nikah to occur without seeking consent from the minor and the mentally ill woman.”

It’s now clear that Somaliland is not a good place for women. Rape and sexual offences disproportionately affect women and girls, but a law meant to protect them has been revised beyond recognition by men in powerful positions. Many Somaliland women are educated and knowledgeable, but our patriarchal society forbids them from participating in politics and professional occupations, and they do not receive the same public assistance or private encouragement as men. Without doubt, if women had more opportunities for leadership, a law like this revised rape and sexual offences bill would have been resisted vigorously.

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