A U-turn for child rights in Somalia?

By Harleen Roop, Human Rights Volunteer

Somalia’s newly proposed Sexual Intercourse Related Crimes Bill contravenes international human rights law due to provisions with harrowing effects on children’s rights.

Photo source @Girls Not Brides

Somalia’s ratification on the UN Convention on the Rights of the Child

On the 20th January 2015, Somalia was applauded by the United Nations for ratifying the Convention on the Rights of the Child (CRC); marking an important step towards the promotion and protection of children’s rights.

Being the most widely ratified international human rights treaty, the CRC is a significant international legal document setting out children’s rights relating to life, health, education, family life, protection from violence and discrimination.

Somalia’s ratification of the CRC was welcomed by the then UN Special Representative of the Secretary-General for Somalia, Nicholas Kay, who stressed the importance of child protection as the nation recovered from decades of conflict.

Conflict between child rights under the CRC & Somalian national legislation

However, Somalia’s new Sexual Intercourse Related Crimes Bill threatens compliance with the CRC; it would allow marriage once a girl’s sexual organs mature and would permit forced marriage so long as the family provides their consent. Chief of child protection at UNICEF Somalia, Brendan Ross says the new Bill is a “shocking development, given that 2015 was a watershed moment for Somalia”.

The Bill has also faced criticism from UN bodies as the UN High Commissioner for Human Rights, Michelle Bachelet stated the Bill constitutes “serious breaches of international norms and standards” marking a “serious step backwards for the rights of victims of sexual violence, particularly young women and girls."

Similarly, the UN Special Representative of the Secretary-General on Sexual Violence in Conflict, Pramila Patten, described the Bill as a “major setback for victims of sexual violence in Somalia” containing provisions which grossly contravene international human rights law, urging for Somalia to instead act upon the previous Sexual Offences Bill.

In 2018, Somalia’s Sexual Offences Bill was drafted to address sexual and gender-based violence, a ground-breaking legislative document in comparison to the Somali Penal Code (1962) which is considered outdated and piecemeal. Despite such promising hopes, the new Sexual Intercourse Related Crimes Bill represents a shift towards a harrowing direction, violating children’s rights.

How does the Sexual Intercourse Related Crimes Bill implicate on wider child protection issues?

Not only does the new Bill contravene international human rights obligations, but evidence suggests school closures as a result of COVID-19 have led to an increase in child marriages in Somalia, putting children at an increased risk of forced marriage.

The UN defines child marriage (or early marriage) as any marriage where at least one of the parties is under the age of 18; the marriage becomes forced when one and/or both parties have not personally expressed their full and free consent to the union. The UN is clear that a child marriage is considered a form of forced marriage, as one and/or both parties have not expressed full, free and informed consent.

Globally, levels of child marriage are highest in sub-Saharan Africa, where 35% of young women were married before 18, followed by South Asia, where nearly 30% were married before 18. Child marriage threatens young girls and women’s personal autonomy and choice, whilst perpetuating poverty, inequality and representing an obstacle to global development.

Girls Not Brides outlines child marriage in Somalia stems largely from gender inequality and the belief that women and girls and inferior to men and boys. In Somalia, child marriage is also driven by religion, gender norms, family honour, armed conflict, displacement and peer pressure. Although Somalia has committed to eliminate child, early and forced marriage by 2030, the Sexual Intercourse Related Crimes Bill is deeply problematic as it contravenes the CRC.

Key legal notes

Convention on the Rights of the Child (CRC)

· Article 3 – In all actions concerning children, whether undertake by public or private social welfare institutes, courts, administrative authorities or legislative bodies, the best interest of the child shall be the primary consideration.

· Article 6 – Child’s right to life survival and development.

· Article 12 – State Parties shall assure children their rights to express their views freely

· Article 13 – Right to freedom of expression, including freedom to seek, receive or impart information through any media of the child’s choice.

· Article 19 – State Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence… including sexual abuse.

· Article 34 – States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.

What then, is the future of child rights in Somalia?

The new Bill sets an incredibly dangerous precedent; representing a willingness to contravene international law and failure to centre the protection, well-being and rights of the child. To promote, protect and facilitate children’s rights, particularly young girls, Somalia should re-evaluate the Sexual Intercourse Related Crimes Bill. The assumption of consent as a result of sexual maturity reflects a harmful perspective undermining children’s rights, threatening gender equality and prohibiting girls’ autonomy to provide full, free and informed consent.