Sexual violence must be subject to criminal justice, not traditional Xeer systems, says UN expert

The UN Independent Expert on the situation of human rights in Somalia, Bahame Tom Nyanduga, has called on the Government to enhance the capacity of the judiciary and police force in handling cases of sexual and gender-based violence, and to prohibit the handling of such cases by traditional clan elders.

He also urged the Government to implement the recommendations arising from Somalia’s 2016 Universal Periodic Review before the Human Rights Council, including the adoption of a moratorium on the death penalty.

At the end of his third mission to the country, Nyanduga noted that the Xeer Somali traditional dispute resolution system continues to play a key role in the country, given that rule of law institutions are still being established. However, he was concerned to learn that traditional elders adjudicate sexual and gender-based violence cases, such as rape, due to the absence of a fully functioning criminal justice system in many parts of Somalia.

“I call on the Government to prioritize the creation and implementation of a twin strategy: to enhance the capacity of the judiciary and the Somali Police force, and to prohibit clan and traditional elders from resolving or adjudicating such cases,” Nyanduga said. “There is also a crucial need to create human rights awareness among clan elders and religious leaders about women’s rights, as one way of facilitating change within communities.”

The Independent Expert also called for the adoption of the Sexual Offences Bill during the forthcoming session of Parliament to further guarantee the protection of women’s rights.

Nyanduga commended the Federal and regional authorities and Parliament for committing themselves to holding elections later this year, widening the electoral base and ensuring that a 30 per cent women representation is met. However, he expressed concern that representation of youth, minorities and persons with disabilities, is not similarly guaranteed.

The Independent Expert also reiterated the need to address the human rights challenges that journalists and media in Somalia face. He warned that the Media Law must not be used as a tool to harass journalists, but rather to ensure respect for the rights to freedom of opinion and expression.

He noted with satisfaction the Government’s commitment to adopt the National Human Rights Commission Bill, establishing an independent National Human Rights Institution before the end of its tenure, and urged that this commitment be met.

“However, another bill, the Counter Terrorism Bill, could potentially negatively affect the enjoyment of human rights,” Nyanduga said. “I urge the authorities to ensure that this bill conforms to international human rights guarantees in accordance with Somalia’s international human rights obligations and the revised Federal Constitution. To be effective in fighting terrorism, the law must be firmly entrenched in human rights.”

The Independent Expert commended the African Union Mission in Somalia (AMISOM) for the role it continues to play in Somalia. He noted its commitment to comply with human rights and international humanitarian law, including ensuring accountability for violations committed by its forces. Regarding the incident on the killing of the four civilians by AMISOM forces in Bullo Mareer, Lower Shabelle, the Independent Expert urged AMISOM to conduct thorough, independent investigations and make the findings of its inquiries public.

In this regard, the Independent Expert welcomed the plan by the UN and AMISOM to hold the first UN Human Rights Due Diligence Policy implementation review workshop on 26 and 27 April, urging that stronger collaboration on the ground will foster compliance with human rights and international humanitarian law, which is a shared objective for both the United Nations and the African Union.

Nyanduga began his visit to Somalia on 16 April. During his mission, he visited Mogadishu, Kismayo and Baidoa, and met the Speaker of the Federal Parliament, Federal Government authorities in Mogadishu, representatives of Jubbaland State, and the South West State. He also held talks with the AMISOM, and UN Assistance Mission in Somalia leadership, UN agencies in Somalia, NGOs, Civil Society Organizations, clan leaders and religious scholars in Jubbaland, and representatives of the media. His visit officially ended on 23 April.

OHCHR