international treaties on human rights and the death penalty:
International Covenant on Civil and Political Rights
1st Optional Protocol to the Covenant
Convention on the Rights of the Child
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
The Penal Code of Somalia represents an amalgam of various legal systems and traditions.
In Somalia, until 1991, there were at least three types of courts: that of the State, that of Islam and the traditional courts which were all charged with settling disputes between people of the same clan.
When, in 1991, the “clans” overthrew the dictator Siad Barre, the Country was torn apart by a bloody power struggle between fighting clans, which has seen thousands of victims.
After thirteen years of chaos, attempts at establishing a government and two years of peace talks held under the auspices of the international community which sought to consider the principal divisions between clans, in October 2004, the transitional Parliament elected Abdullahi Yusuf Ahmed as the new President of the Country and gave life to a Transitional Federal Government (TFG). The elections were held in Kenya because Mogadishu was considered too dangerous.
Since then, thanks to institutional power struggles in the Country and rampant corruption, all attempts failed to bring peace, stability and democracy to Somalia.
Under the circumstances, the violent insurgency led by Al-Shabaab and other groups like Hizbul Islam became even more violent, and the role of Islamic tribunals was strengthened, having its jurisdiction expanded to common crimes with its sentences being difficult to appeal. The courts were seen by an increasingly larger portion of the population as the only force capable of bringing order after twenty years of total chaos.
In Somalia, at the end of 2006, troops of the transition government in Mogadishu defeated the Islamic Courts with the help of the Ethiopian military. But the rebels took on guerrilla tactics that proved very hard to combat, and Islamist fighters from the hard-line Al-Shabaab insurgency run most of south and central Somalia imposing laws inspired by the most severe conceptions of Islam, while the UN-backed government only controlled parts of the capital. Many Somali religious leaders and other Islamic scholars disputed their interpretation and practice of Islamic law. “When a person is sentenced to being stoned to death, there are several conditions which must be met. This is not something which can be concluded in two or three days, and there must be evidence or eyewitnesses who establish criminal identity, but al-Shabaab provides neither clear evidence nor witnesses. They are killing people senselessly,” Somali religious leader Sheikh Dahir Abdi Abdul told Somalia Report.
"The application of punishment is a matter for the legitimate state, and is not the right of any group, whether it chooses to implement the death penalty or to implement the hudud provisions," said Sheikh Abdulqadir Somow, spokesman for the Supreme Council of Ahlu Sunna Wal Jamaa scholars, part of the Federation of Sufi Orders in Somalia. Sheikh Somow said Al-Shabaab has committed crimes and murder against innocent civilians under the guise of spying charges. He said there is disagreement among Islamic jurists about judgments against people convicted of spying, but killing them is not endorsed by Islamic law. "This group has committed more than a crime, and if you look at the way in which it is killing people, its actions have no legal cover, but are contrary to Islamic law," he told Sabahionline. "The Al-Shabaab group is seeking to terrorise Somali citizens with these rulings." In April 2009, in an attempt at national reconciliation, the Somali parliament unanimously approved a government proposal to officially introduce Sharia law in the Country. Opposition commanders, particularly those of the hard-line Al-Shabaab group, had previously dismissed the plan for lawmakers to introduce the Sharia as “conspiracy against the Islamist fighters and their cause.”
In August 2009, the Transitional Federal Government established a military court to try soldiers accused of criminal offences. However, the military court functions with no guarantee of basic fair trial standards, such as the right to have a legal representation in court and, for those convicted, the right to appeal and seek pardon or commutation of sentence. On 13 August 2011, the TFG president, Sheikh Sharif Sheikh Ahmed, declared a state of emergency in areas of Mogadishu vacated by Al-Shabaab. Under the emergency decree, signed by the president but not approved by the Parliament, the military court was given jurisdiction over all abuses committed in areas under the state of emergency, including jurisdiction over crimes committed by civilians, in violation of Article 57 of Somalia’s Transitional Federal Charter that stipulates that military courts should have jurisdiction only over military offences committed by members of the armed forces. There have been some improvements since 2011, including an attempt to ensure basic legal counsel, and the re-establishment of a Supreme Court to hear appeals in late 2012. Yet, concerns remain over the right to be tried by an independent and competent tribunal, the right to prepare a defence, and especially the use of military courts to try civilians. Under international and regional standards, the jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel. However, the military courts continue to exercise very broad jurisdiction over individuals and criminal offences.
As of 23 January 2012, according to the military courts, there were more than 50 people in custody including TFG soldiers and Al-Shabaab agents who had been sentenced to death. Ever since the establishment of the military courts they have carried out executions although the executions mostly concerned TFG soldiers who committed crimes.
A new Provisional Constitution was passed in August 2012, which designates Somalia as a federation. Following the end of the interim mandate of the Transitional Federal Government (TFG) the same month, the Federal Government of Somalia, the first permanent central Government in the country since the start of the civil war, was also formed.
The Federal Republic of Somalia is officially divided into eighteen administrative regions. On a de facto basis, northern Somalia is divided up among the autonomous regions of Puntland (which considers itself an autonomous state) and Somaliland (a self-declared but unrecognized sovereign state). In central Somalia, Galmudug is an autonomous region that considers itself an autonomous state within the larger Federal Republic of Somalia, as well as Jubaland in the far south. In 2014, a new South West State was likewise established. In April 2015, a formation conference was also launched for a new Central Regions State.
On 10 September 2012, Somali parliamentarians elected Hassan Sheikh Mohamud to the country's highest office in the first presidential elections held inside Somalia in over two decades. Mohamud defeated former Transitional Federal Government President Sheikh Sharif Sheikh Ahmed in the second round of voting, 190 to 79. Lawmakers voted at the Police Academy in Mogadishu, where 271 out of 275 members of parliament were in attendance.
The self-proclaimed Republic of Somaliland is the only part of the ruined Country of Somalia to have established peace, a Government and a multiparty political system.
Parliamentary elections were held in September 2005 and the new Republic awaits international recognition. Somaliland, whose judicial system is based on the old Somali Penal Code, maintains the death penalty, although many local human rights’ groups have called for its abolition. In recent years, many of those condemned to death have had their sentences commuted thanks to the payment of “blood money” (diya) according to Sharia law.
The traditional clan system and customary law Xeer are very strong in the semi-autonomous State of Puntland, and are usually used in criminal or other proceedings. Under this system, elders serve as judges and help mediate cases using precedents. The clans help the police and courts in their work. In case of intentional homicide, there are severe penalties in terms of both Diya payment and imprisonment. When the clans agree during negotiations that a perpetrator should be killed, the agreement is taken to court. The court refers the matter to the president for approval. The president signs the agreement and returns it to the court. The clans' agreement is final and cannot be appealed. The police monitor the implementation of the decision to execute, but it is a relative of the victim who performs the execution. This will reduce the number of extra-judicial killings taking place in some towns in Puntland.
At least 14 executions were carried out in 2016, including 3 for acts of terrorism. In 2015, executions were at least 25, including 9 for terrorism. At least 20 executions were carried out in 2014, including 13 for acts of terrorism. In 2013, there were at least 27 executions. In 2012 there were at least 7 executions, in 2011 at least 11 and in 2010 at least 8. Only in 2009 there were no executions.
In 2016, at least 75 people were sentenced to death, according to Hands off Cain data, most of them for terrorism (22 by the Federal Government, 8 in Somaliland and 45 in Puntland). Of at least 14 executions carried out in 2016, 4 occurred under the authority of the Federal Government (3 for terrorism), 9 in Somaliland and 1 in Puntland. At the end of the year there were at least 100 people under death sentence.
The beheadings carried out by the Islamist extremists of Al-Shabaab – “Youth” in Arabic – that control part of south-central Somalia are classified as “extra-judicial executions”. The group seeks to overthrow the western-backed interim government and take over the Country imposing a rigid application of Sharia. Somalis have been shocked by the movement's strict interpretation of Islamic law. The movement decapitated several people on charges of being Christians, spies or apostates of Islam. Sentences by stoning were carried out once again by the Islamic rebels Al-Shabaab in 2011 and 2012. After the victims are executed, Al-Shabaab members bury them in sites called “the infidels’ cemeteries,” residents of areas formerly occupied by Al-Shabaab.
On 12 September 2013, some 160 Somali religious scholars issued a fatwa denouncing Al-Shabaab, saying the group had no place in Islam. Observers say it is the first time Somali religious leaders have come up with a fatwa against the group. At a conference on the phenomenon of extremism in Mogadishu, the scholars said it condemned Al-Shabaab’s use of violence. Despite being pushed out of key cities in the past years, it still remains in control of smaller towns and large swathes of the countryside.
On 18 April 2013, Somali Cabinet Ministers approved the anti-terrorism bill in an effort to eliminate “terrorist” groups throughout the country.
Cabinet approval of the draft of the anti-terrorism law came after the April 14th suicide bomb attack at the Court of Banadir that killed more than 30 people and wounded 58 others, for which Al-Shabaab claimed responsibility. The new law criminalizes any telecom firm or money remittance agency dealing with members of Al-Shabaab fighters. Hotel owners and car rentals are also required to identify their clients to see if they are involved in any terrorist networks.
In March 2014, Human Rights Watch (HRW) released a report detailing how Somalia’s military court proceedings "fall short of international fair trial standards". Relatives of defendants and independent observers have very limited access to the hearings, allowing the court to operate without oversight. A central concern was the speed at which death sentences have been carried out, preventing defendants from filing an appeal and the president to review the case for a possible pardon or commutation. Under international law, the death penalty is permitted only after a rigorous judicial process - a fair trial in which the defendant has adequate time to prepare a defence and appeal the sentence, among other requirements. Somalia’s new military court chairman, Col Abdirahman Mohamed Turyare, has boasted of flagrant violations of these requirements under international law.
On 11 August, he told the media that his court was waging a "new war against terrorists." “Our role is to firmly impose treason laws against the terrorists who cause problems,” he said in an interview with sabahionline. Turyare added that parents of Al-Shabaab suspects would be arrested and he claimed some were already in detention. "It is failure to exercise responsibility of parent-ship. It is your responsibility as father or mother to report to the police that your children are missing or went to terrorist group," he said. In 2014, as of 3 August, at least 9 Islamic militants convicted of terrorism were executed in Somalia.
On 14 August 2016, President Hassan Sheikh Mohamud signed into law the Human Rights Commission bill, which effectively opens the avenue for the creation of the Human Rights Commission in Somalia. While signing the bill at Villa Somalia, Mogadishu, President Mohamud said the move was an indication of the importance of the bill and the need to uphold the rights of any person living in Somalia. “The commission will be the highest organ in the Federal Government of Somalia, which protects the rights of citizens. Everyone will be accountable to the law in accordance with the constitution of Somalia,” said the President in a press release.
The war of terror
According to the laws of the States and Regions of the Federal Republic of Somalia, all terrorism cases are held at military courts.
Somalia’s military courts proceedings fall short of international fair trial standards. A central concern is the speed at which death sentences have been carried out, preventing defendants from filing an appeal and the president to review the case for a possible pardon or commutation. Also the United Nations Human Rights Office voiced its concern at the “hasty” judicial process that led to some executions. “Under international law, the death penalty should only be applied after the most rigorous judicial process,” said Rupert Colville, spokesperson for the Office of the High Commissioner for Human Rights (OHCHR).
On 2 April 2015, Somalia’s cabinet approved new legislation aimed at curbing the menace of terrorism in the country and giving special powers to security forces. The bill submitted by the Ministry of national security was unanimously passed in a high-level ministerial meeting chaired by Prime Minister Omar Abdirashid in Mogadishu. According to a press statement from the Prime minister’s office, the new bill is aimed to empower law enforcement agencies in the country to effectively handle terror-related cases immediately. The move comes one week after Al-Shabaab militants launched a deadly attack on a Mogadishu hotel, leaving at least 20 people – including a top diplomat – dead. Anti-terror law was first introduced by the former cabinet in 2014 but it failed to proceed to the country’s parliament for approval. If passed by the Parliament, the law is expected to target groups such as the Al-Qaeda-linked militant Al-Shabaab.
At least 14 executions were carried out in 2016, including 3 for acts of terrorism. In 2015, executions for terrorism were 25, including 9 for terrorism.
On 22 January 2016, Somalia was reviewed under the UPR of the UN Human Rights Council. Regarding the death penalty, the Attorney General stated that eliminating this penalty was something that required a long process, since the Somali Provisional Constitution prescribes that the Sharia Law is the paramount law, and the Sharia prescribes the death penalty for a limited number of crimes. He added that Somalia was committed to engage in community dialogue on how to address it and was reviewing penal procedure codes to reduce the number of crimes for which the death penalty was applied, and was looking into alternative penalties, such as life sentencing, for the other capital crimes.
On December 19, 2016, Somalia voted in favour of the Resolution on a Moratorium on the Use of the Death Penalty at the UN General Assembly but did not co-sponsored such as in 2014 and 2012. In 2008 and 2010, it voted in favour.