First Bill against rape – a milestone for women’s rights in Somaliland
By Lyse Nathalie Menyimana (Legal Researcher, Africa)
While a great number of (African) countries have adopted domestic legislation outlawing rape and related offences, some still do not offer such legal protections.
On 8 January 2018, Somaliland, a self-declared region of Somalia, passed a Bill against rape in the Lower House of Parliament that will prohibit all gender-based violence against women; thus marking a day to remember for children and women’s rights advocates. Notably, Somalia itself still does not have a national law against sexual violence.
Somaliland is a region located in the Northeastern part of Somalia; it declared independence from Somalia in 1991 but is still not internationally recognised as a State by the international community. Indeed, it has a working political system, a trained military and police as well as its own currency. It has even been argued that the proposed law is a way for the self-declared Republic to prove to the international community that it is a constant democracy composed of functioning institutions, and thus should be granted recognition.
The Bill that is currently under scrutiny is one of a kind in Somaliland. Rape used to be provided for as just a simple article in the penal code with no specifics. The new proposed act gives it more weight.
‘We have been working on this Bill since 2011. It has gone through different processes, but we are very happy that it has been adopted,’ affirmed Nafisa Yusuf Mohamed, executive director of Nagaad, a women’s organisation based in Somaliland.
Before the adoption of the new law, the victim could be forced by their own family to marry their rapist to avoid shame. Mediation was also a remedy to rape, whereby elders would mediate between the families of the rapist and the victim. The new law would criminalise mediation and other previously used methods of confronting rape cases other than legal redress. Notably, countries such as Greece, Iraq and Libya have laws that allow a rapist to avoid prosecution if they marry the victim or if the latter forgives the former.
The new proposed law provides for a number of sentences for perpetrators of crimes, such as attempted rape, which would bear a four to seven-year sentence; while rapists who use force or threats would get 15 to 20 years. Perpetrators who would cause bodily harm or infect their victim with HIV would get life imprisonment. The sentence is higher if the victim is younger than 15 years. Although rape cases are the least reported crimes, and most cases involve gang rape, the new law would include a specific provision on gang rape, which was not in the existing penal code.
The law would not only provide justice for the victims, it would also grant to law enforcement agencies the powers to investigate and prosecute the accused.
The Bill was passed by the Lower House of Parliament, but still needs approval from the Upper House as well as presidential assent before it can be enacted into law. Concerns are raised to the fact that there might be strong resistance in the Upper House since they hold more traditional/conservative views.
Even though it is a big achievement to get a Bill into parliament, the Chairperson of Human Rights Centre Somaliland, Guled Ahmed Jama, emphasised that the deficiency of the Bill lies in the fact that ‘it does not make lack of consent the key determinant of rape, the victim rather has to prove use of force, intimidation or threat.’
It has also been pointed out that the protection and support given to victims is critically important, so they can trust the system. Concerns have also been raised on whether the country would be capable of implementing the Bill as it requires resources such as significant training of the police. However, we should deem the country’s first commitment to ending rape, a ground-breaking moment, before we analyse any potential issues that may arise from implementation. The passing of the Bill through the Lower House demonstrates a shift in public opinion regarding cultural and community-based remedies to rape, and the eagerness to translate this into a Bill should not be underestimated.