Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, schools, penal system and alternative care settings.

The Penal Code punishes assault which does not result in injury except when the perpetrator is the parent (articles 439 and 442); the punishments for more serious violence against persons are reduced when the perpetrator is the parent. These provisions should be amended/repealed so and explicit prohibition enacted of all corporal punishment by parents and others with children in their care. The Government should ratify the UN Convention on the Rights of the Child.

All laws authorising or regulating the infliction of corporal punishment on children in schools should be repealed, and explicit prohibition enacted in relation to all education settings, public and private. There should be no provision for corporal punishment as a sentence for crime, including under Shari’a law, and explicit prohibition should be enacted in relation to disciplinary measures in all institutions accommodating children in conflict with the law. Explicit prohibition should also be enacted in legislation applicable to all alternative care settings, including public and private day care, residential institutions, foster care, etc.

Note
Islamic law, customary law and secular criminal law are applicable in Somalia but there is no coherent, functioning national legal system. The Transitional Federal Government (TFG) is the internationally recognised Government of Somalia, and in 2009 the Transitional Federal Parliament voted to implement Shari’a as the national law. According to the newly elected President, this would be a “moderate” interpretation of Shari’a, but the TFG controls only a part of the capital city of Mogadishu: other areas in South/Central Somalia are under the control of armed opposition groups, mostly al-Shabaab and Hizbul Islam, which impose a strict interpretation of Islamic law. In the north, the autonomous region of Puntland and the self-declared independent Republic of Somaliland are relatively more stable, with functioning governments and legal systems.

Under the Transitional Federal Government, secular legislation in force includes the Transitional Federal Charter (2004), the Constitution (1960) and the Penal Code (1962); in 2011, a draft new Federal Constitution was under discussion.

In Puntland, the law is based on Shari’a and efforts have been made to harmonise customary law with international human rights standards and Shari’a. The Penal Code (1962) is applicable and in 2010 a new Puntland Constitution was drafted and was due to be put to a public referendum. In January 2011, the Puntland Government announced it was breaking its ties with the TFG until a legitimate federal authority is in place in Mogadishu which properly represents Puntland as part of the Federation of Somalia. In Somaliland, applicable law includes the Somaliland Constitution (2001) and the Penal Code (1962); Somaliland is slowly replacing pre-1991 laws to harmonise legislation with the Somaliland Constitution.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 439 of the Penal Code (1962) punishes assault but article 442(2) states: “The parent who commits the act referred to in article 439 shall not be punishable.” Article 442(1) of the Code prescribes reduced punishments for homicide and hurt when the perpetrator is the parent. Articles 431 and 432 punish abuse of measures of correction or discipline and ill-treatment of children and members of the family.

Corporal punishment appears to be unlawful in the home in Somaliland. Although the Penal Code is applicable there, the Constitution of the Republic of Somaliland states in article 24(2): “Every person shall have the right to security of his person. physical punishment and any other injury to the person is prohibited.” Article 128 states that the Constitution “shall be the supreme law of the land, and any law which does not conform to it shall be null and void”.

Schools

Corporal punishment is lawful in schools. In Puntland, the Ministry of Education issued a Decree stating that corporal punishment should not be used but there is no prohibition in law. It is possibly unlawful in Somaliland under article 24 of the Constitution of the Republic of Somaliland (see above).

Penal system

Corporal punishment is lawful as a sentence for crime under Islamic law, except possibly in Somaliland.

The Somali Penal Code and the national Juvenile Courts and Reformatories Law (1970) make no provision for judicial corporal punishment. In Somaliland, the Constitution explicitly prohibits physical punishment (article 24) and it is reportedly prohibited in the Juvenile Justice Law (2007) (UNICEF, November 2010), but we have yet to confirm that prohibition applies to offences under Islamic law. A new juvenile justice law is being drafted in Puntland.

We have no details of the application of corporal punishment under Islamic law as envisaged when the Transitional Federal Parliament voted to adopt Sharia as the national law in 2009. There are numerous reports of the imposition of harsh punishments in Somalia. Many – but not all –concern extrajudicial punishments imposed by the armed opposition groups in South/Central Somalia (e.g. see A/HRC/12/44, 17 September 2009, Report of the independent expert on the situation of human rights in Somalia, Shamsul Bari). There are also reports of amputations and flogging (e.g. see A/HRC/13/65, 23 March 2010, Report of the independent expert on the situation of human rights in Somalia, Shamsul Bari; A/HRC/12/44, 17 September 2009, Report of the independent expert on the situation of human rights in Somalia, Shamsul Bari; Human Rights Watch (2010), Harsh War, Harsh Peace: Abuses by al-Shabaab, the Transitional Federal Government, and AMISOM in Somalia,  NY: Human Rights Watch). Amputations carried out by al-Shabaab and Hizbul Islam are often in public before large crowds including children (www.handsoffcain.info, accessed 21 February 2011).

There is no explicit prohibition of corporal punishment as a disciplinary measure in penal institutions, though the Transitional Charter of the Somali Republic prohibits “physical or moral violence or action against a person subject to restriction of personal liberty” (article 16). It is unlawful in Somaliland under article 24 of the Constitution of the Republic of Somaliland (see above).

Alternative care

Corporal punishment is lawful in alternative care settings with the possible exception of Somaliland under article 24 of the Constitution of the Republic of Somaliland (see above).

Prevalence research

According to statistics from UNICEF, of girls and women aged 15-49, 76% think that a husband is justified in hitting or beating his wife under certain circumstances. (UNICEF (2009), Progress for Children: A report card on child protection, NY: UNICEF)

Figures provided by the NGO Somalia Child Protection and Development (SOCPD) state that in one study 30% of adults and 40% of children reported some form of beating being administered. (Reported by Somalia Child Protection and Development, August 2004)

Recommendations by human rights treaty bodies

Somalia has not ratified the UN Convention on the Rights of the Child.

Universal Periodic Review

Somalia was examined in the first cycle of the Universal Periodic Review in 2011. The Government accepted the recommendation to stop amputations and floggings in the context of the conflict (SPR/UNOG/000431/11, Information provided by the Government on pending recommendations, para. 98.71). Examination in the second cycle is scheduled for 2016.