Somaliland could replace its ‘historic’ rape law with a shocking version

 

The 2018 law faced backlash from religious leaders and the president allowed them to revise it to permit child marriages, blood money payments for rape and femicide, among other stunning provisions.

In August 2018, Somaliland president Muse Bihi Abdi signed Somaliland’s first ever Rape and Sexual Offenses Act into law. It aimed to reduce the nation's rape rate against women and girls, which is rising every year. Somaliland's human rights organisations and the international community hailed it as a great feat for the president’s legacy. At the time, he had held office for less than a year. But Bihi quickly undid this legacy and as a result, survivors of sexual violence are in legal limbo to this day. 

Survivors are dependent on the Somali penal code which we inherited from Somalia, a country from which we seceded 31 years ago. That penal code is incompatible with the types of sexual offences which occur today and the circumstances in which they are committed. This was the impetus for writing the 2018 law.  

Instead, almost as soon as he signed it, Abdi accepted the misinterpretation of the 2018 law by some of the country's religious leaders and allowed them to revise the law. 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 by the president.

First of all, this process for revising the law was illegitimate. Religious leaders who believed the 2018 law went against Islamic law should have brought a lawsuit before the Constitutional Court, which makes decisions about law 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 be retracted, revised and sent back to parliament. 

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

Rape conflated with fornication and adultery

The revised version conflates rape with fornication by labelling it “forced fornication”.  To any fair mind, the difference between adultery, fornication 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 is difficult for victims to report it. Survivors find it harder to come forward for fear of embarrassment or being wrongfully implicated in fornication or adultery.

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

Moreover, numerous types of violence against women, including those which takes place in the workplace, educational settings, and other places, are not addressed by the revised law. 

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 the accused's guilt is proven, he cannot be imprisoned if he is known to be a person of decency and dignity, but does not define who belongs in this social class it establishes. Does this include individuals in business, those who teach the Koran, and those who work in government? Any accused person may use this to avoid arrest by claiming he or she is a decent person. Then they can do with the victim or 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 says, “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 Somalilanders are not good for women. Rape, among other things, disproportionately affects women and girls but a law meant to protect them was revised beyond recognition by men in powerful positions. Many Somaliland women are educated and knowledgeable, but the patriarchal society forbids them from participating in politics, 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 fornication bill would have been resisted vigorously.