1962 | Somali Penal Code
Somalia’s 1962 Penal Code is still current law. It criminalizes rape and other forms of sexual violence as well as forced prostitution. Articles 398-9 provide that ‘carnal intercourse’ and ‘acts of lust omitted with violence’ are punishable with 5-15 years and 1-5 years imprisonment respectively. However the crimes are too narrowly defined to satisfy international law standards of protection from sexual and gender based violence. Articles 407-8 criminalize the compulsion or facilitation of prostitution and the exploitation of the proceeds of prostitution. Abduction for the purposes of lust or marriage is prohibited under art 401. In practice however it has been documented that women complaining about a rape may find themselves trapped by the Article 426 prohibition against adultery that makes no exception for the case of of rape.
A new sexual offences bill is currently being drafted by local and international NGOs in Somalia which will define the offences more broadly and the positive duties of the security forces, to prevent and punish, much more explicitly.
Also relevant for our focus on sexual crimes committed by security forces are Art 39(i) making abuse of power in the commission of a crime an aggravating circumstance and Article 33 which provides that when a superior officer orders the commission of an offence both the perpetrator and his superior will be liable. However in practice these provisions offer little more than theoretical protection. The Status of Mission Agreement between AMISOM and Somalia (see in this section) provides that foreign military personnel shall not be tried in Somalia but be in their home countries for any offences committed. This makes pursuit of those perpetrators absolutely beyond the reach of Somali victims. While the 2012 Constitution of Somalia (see in this section) stipulates that ‘human rights abuses alleged to have been committed by members of the armed forces against civilians shall be brought before a civilian court’ (Art 128) in practice offences are invariably dealt with by military courts and very few prosecutions for sexual abuse succeed.
Finally, shame and stigmatization deter most victims from seeking justice through formal courts.