BACKGROUND AND STATUS OF POLICIES AND LEGISLATIONS
Civil society organizations (CSOs) in Somalia continue to play a pivotal role in the country’s democratic transition. Despite the multiple challenges and risks they face, CSOs have been at the forefront in advocating for inclusive and democratic governance processes, protection of human rights and strengthening accountability and the rule of law in Somalia. Among the key legislations CSOs have been engaged with and their status are outlined below:
Sexual Offences Bill (SOB)
Date discussed: 11 August 2020
Reasons for failure: controversial clauses were included in the bill
A brief history of the bill
Years of conflict and the collapse of the basic functions of government have brought about a system where women and girls, many displaced and living in IDP camps or in less privileged neighbourhoods, are inherently vulnerable to rape and other forms of sexual violence. As such, sexual violence remains pervasive across much of the country. In 2019, the UN in Somalia verified cases of conflict-related sexual violence perpetrated against 220 girls and 19 women.
Victims of SGBV don’t often get justice as the perpetrators often get the option to either forcibly marry their victim or pay a small compensation legitimized by the Xeer (customary law – informal justice system led by clan elders). The current formal justice system also fails to protect the survivors and prosecute the perpetrators of sexual and gender-based violence adequately, as it uses outdated Penal Code inherited from the Italian colony in 1960s.
Responding to these concerns and due the increasing number of reported rape cases, sexual assault and domestic violence every year, CSOs drafted Somalia’s first Sexual Offences Bill, a piece of legislation, designed to adequately address and reduce sexual and gender-based crimes in the country. The Bill criminalizes a wide range of sexual offences, provides critical support to survivors, and clearly defines the roles and responsibilities of those investigating and prosecuting sexual violence.
Following series of civil society advocacy efforts, Somalia’s cabinet approved the landmark Sexual Offences Bill and passed it over to the Parliament for legislation in 2018. Unfortunately, parliament did not see it a priority and hence did not take steps towards enacting the Bill. After much lobbying, Somalia’s parliament replaced the long-awaited legislation with a new Bill permitting child and forced marriage; the amended Bill was rejected by MPs on August 11. In September 2020, almost 30 MPs signed a motion asking the leadership of the House to table the SOB for debate andvoting. However, the Speaker of the Parliament and his Deputy opposed the move on the ground that the Bill is not consistent with the Constitution and culture.
CSOs are concerned that this lack of prioritization of SOB is attributable to fact that the Bill is not addressing issues seen as priority by the dominant class including political leadership. The SOB is the first of its kind in Somalia and if it is passed and implemented, it will criminalize sexual offences, includingchild marriage and trafficking; this is anticipated to, in turn, lead to reduction in prevalence of sexual and gender-based violence.
Brief History of the bill:
For decades, Somalia has been a dangerous place for freedom of expression and free press. The increasingly hostile environment has left many journalists living in fear of both the government and armed militant groups. At least over a dozen journalists have been killed since President Mohamed Abdullahi Mohamed came to power in 2017, while others have survived assassination attempts or been targeted for arrests, intimidation and censorship. According to the Committee to Protect Journalists, more than 70 journalists have been killed in Somalia since 1992. Most died in targeted murders while others were caught in attacks while on assignment. Amnesty International accused Somalia governments of not investigating attacks on journalists and censoring critical reports.
In response to these challenges, CSOs teamed up with media institutions to introduce a Media Bill that protects free press in Somalia; however, both the current and former administrations have been reluctant to pass such a Bill. Rather, in May 2017 the Lower House passed a law which seeks to regulate media practice in Somalia; this was subsequently approved by the Upper House in January 2020.
Despite protests and calls for revisions by civil society and media practitioners, the President of Somalia Mohamed Abdullahi Farmajo signed the controversial Media Bill into law on 26 August; this move has been opposed and criticized by media associations and civil society. Civil Society and media groups are continuing to advocate for a media law that promotes free speech and protects the rights of journalists.
On a positive note and in a move that appears to be aimed at guaranteeing media freedom and protecting journalists, the Attorney General of Somalia appointed a special prosecutor on the killings of journalists on 8 September 2020.
Constitutional Review Process
Following Somalia’s shift from a unitary state to a federal state in 2004, the country adopted a provisional constitution aligned with a federal system in August 2012. The promulgation of a new and permanent constitution was expected before the country holds a ‘one-person, one-vote election’ in 2020. However, the review process – which will have to address a number of unresolved issues such as the future status of Mogadishu and the sharing of powers and resources between the federal government and the Federal Member States – has taken too long since the parties have failed to reach agreement on contentious issues; amongst the actors that have attempted to broker an agreement between the different parties are the civil society.
As a result of CSOs’ calls for the inclusive constitutional review process, CSOs were incorporated/co-opted in the review process by led by the Ministry of Constitutional Affairs (MOCA); however, it remains unclear whether CSOs’ views are adequately incorporated into the final version.
The review process is led by the Independent Constitutional Review and Implementation Commission (ICRIC) which drafts amendments to the Provisional Constitution after carrying out political and public consultations; these amendments are then presented to the Joint Parliamentary Oversight Committee (OC) for reviewand presentation to the Federal Parliament. The OC can make amendments.
Free and fair elections
Status: Political agreement reached and passed
Despite the very challenging political and security environment Somalia, CSOs in Somalia have – for many years – been advocating for a multi-party democracy where free and fair elections, characterized by universal suffrage, can take place; need for universal suffrage is further made urgent since only very few citizens have participated in a direct election in their lifetimes. However, because of the country’s clan-based political system and lack of trust among communities, Somalia’s electoral process was based on indirect elections. In the 2016 elections, 14,025 delegates selected by 135 titled elders voted for 275 MPs in the Lower House of Parliament.
Since 2016, political divisions have hampered Somalia’s political development and democratisation development process. Disputes over power and resource sharing between the federal government and its member states have resulted in a standoff, which has, in turn, dashed all hopes of transition to a one-person-one-vote in 2020. Last week’s deal between Somalia’s federal and state leaders only expanded the delegates from 14,025 in 2016 to 27,775 in the upcoming 2020-2021 elections, revealing challenges with the country’s democratisation process. Under the deal, which is currently awaiting parliamentary approval, CSOs will have a narrow role of working with clan elders in the selection of clan delegates.
To date, these political negotiations have been largely elite-driven. Civil society and political parties have a key role to play in ensuring ordinary Somali voices are included in political discourses.
In the 2016 elections, CSOs observed the entire election process (before, during and after the election) in an impartial manner. Their role was only submitting reports of their observations – and not intervene in any instances of suspected malpractice – toe centralized data centre where observers were sending real-time SMS reports. This data was then analysed to measure the extent to which the electoral process has been free, fair and compliant with various regulations. The CSO’s post-election report published in 2017 proposes ways in which electoral procedures and more generally the democratization process in Somalia can be further strengthened. Expanding the role of CSOs in the elections process would have provided them with an opportunity to check if their recommendations from observing 2016 have been implemented. Civil society engagement in the electoral process ensures public oversight, transparency and accountability and increases public confidence in the credibility and integrity of the electoral process and its outcome
The long-awaited universal polls would have been critical to shifting the country away from a clan-based political system to one that gives voice to the citizens, marginalized communities, internally displaced, women, and youth and a clear observatory role to civil society.