INTRODUCTION.
This is a brief legal analysis about some of the provisions on the Amendment of the rape, fornication/Adultery and relevant violence act, the lawyer only focused on provisions, which need to be reviewed to become a law that can punish the rape offenders and fight against the rape crimes.
1. COMBINATION OF TWO LAWS
As the name implies, this Act contains two Combined Laws dealing with ADULTERY / FORNICATION (which the Law prioritizes) and Rape (which the Act recognized as Forced Fornication or Adultery). This Law in its entirety is against Adultery/fornication, and most of the punishments are following the Zina’s Islamic punishments.
The Sharia (Islamic law), the Koran and Hadith explicitly addressed adultery and fornication, and there are verses in the Koran that directly state in detail, but this law was envisioned and framed to combat rape crimes, which is regularly happening in Somaliland as individual and gang rapes.
2. RAPE AND ADULTERY/FORNICATION
According to the law in general, and particularly the title of Article 4, Paragraph T. this Act calls rape forced fornication or adultery. Al though we aware of the fact that the difference between adultery and rape is clear. The truth is, whenever rape takes on the nature of adultery or fornication it becomes difficult:
- To have witnesses, as the religion has made it difficult for witnesses who stand against those who commit adultery.
- To report, since rape was recognized as forced Adultery. This will make it harder for the victims to report, for fear of being shamed, or for the victims to be accused of being part of the fornication or adultery consensus, and this further complicates the victim’s access to justice, and will increase the rape crimes.
3. THE LAW ALLOWS TO PARDON OR TO ACCEPT BLOOD MONEY WHEN RAPE AND MURDER COINCIDE
As a result of death, the law permit rape offenders to be released if the relatives of the victim receive compensation in the form of blood money, in accordance with Article 4, Paragraph T, Sections 5, 6 and the other provisions of this law.
These paragraphs are in contrary to the victim’s access to justice and enable families and traditional elders to address the issue of rape, which has previously hampered access to direct justice for victims, especially women. It increases rape since the person who dies at their hands can be compensated. Compensation/Blood money is collected among clan members, and this is not a heavy burden to the offender.
4. THE MENTALLY ILL PERSON AND CHILDREN WHO COMMIT FORNICATION UNDER THE CONSENSUAL FORNICATION
Under the consensual fornication, Article 4, paragraph 6 states, “If a Minor or mentally ill person commits fornication or adultery with another person, no punishment is due, but the guardian of the minor or the mentally ill person shall impose disciplinary action in accordance with the Shari’ah.”
The question is, can the minor and mentally ill people enter a consensual fornication? Can they make consent legally? And can we call them Zina/fornication offenders? Since consent is desirable fornication to happen in Islam.
On the other hand, the provision specified that they are making fornication with “another person” which means even the old and mentally fit people. The provision didn’t specify the person they are making with fornication is with their counterparts. If they are making their counterparts we can say they are minor and mentally ill and no punishment is due, but if they are making with someone old and mentally fit as the provision underlined, we can’t call legally the minor and mentally ill made fornication with that person, but legally the old and mentally fit person raped the child and the mentally ill person, and needs to be punished rape against child and mentally ill who can’t make consent.
This paragraph is detrimental to children and those are mentally ill who cannot make consents under the law. This paragraph needs to be reviewed and removed under the consensual fornication article.
Furthermore, the law didn’t specify or define the word “mentally ill person” in its definition section, this needs to be defined, since anyone who commits adultery can be declared insane so they will not be punished.
5. DOUBLE SENTENCE OF THE ACCUSED
Pursuant to Article 4, Paragraph T, Section 5, if the person who commits a crime of rape, transmits the disease to a person raped for incurable diseases such as HIV / AIDS, which results in the death of the victim after the offender is sentenced. The convict shall receive, if the previous conviction was not the death penalty, the retribution of the death penalty, if in exchange for blood money or pardon by the heirs of the victim.
It is against the principles of justice for an accused person to be sentenced twice for the same crime unless he has committed other acts of crime. In other words, what if the victim dies when the convict has completed his sentence? Therefore, it is appropriate to sentence the defendant at one time, no matter how far.
6. MULTIPLE SENTENCING OPTIONS FOR THE JUDGE TO CHOOSE
Article 4, Paragraph 5 reads as follows: “Anyone who deliberately and cruelly fornicates or commits adultery for the sole purpose of spreading the society the HIV/AIDS disease which he is a carrier shall be liable to be tried as a bandit as commanded in the verse 33 of Sura (Chapter) Ma’idah of the Holy Koran. This verse obligates four verdicts, namely, Death, hanging, deportation and the amputation of arms and limbs on opposite sides. It is not clear which sentence the defendant should be sentenced for, and this has given the judge the option to follow if he so desires. The judge can take the decision to deport as the accused can return to the country soon. The strongest mode of punishment should be identified without giving any option to the judge.
7. VIOLENCE AGAINST WOMEN
The law generally defines violence against women as consent adultery, forced adultery (rape) and sexual touching, as defined in Article 11 (2) of this law. In general, the Act does not address the various forms of violence against women, such as those in the workplace, educational premises, etc. For example, if an official in charge of an office or workplace requests sexual exploitation with one of his or her employees and if he or she refuses to do so, and the official fires the employee, such abuses and similar offenses are not a crime under this law.
8. ISSUES THAT NOT RELEVANT TO THIS LAW
Article 12, which is about the Forced Marriage, and Article 16 on the public nudity don’t relate to the facts of this law which is to tackle the rape crimes. Issues of Marriage are focused on family laws, which Somaliland practices the Islamic law of family. Those articles should be removed from this act.
9. CONVICT WHO HAS BEEN RETRIBUTED IN CAPITAL PUNISHMENT AND BLOOD MONEY
According to Article 14, a person found guilty of having sexual intercourse with another person, facilitate the act on behalf of another person or commit rape through incantation will be executed, which means death penalty. The second paragraph of this article also states that the person who was sentenced the death penalty in retribution is also required to pay blood money. This article also needs a major review. The offender was already executed, who is paying the blood money.
10. MARRIAGE OF THE MENTALLY ILL PEOPLE AND THE CHILDREN
This law recognized children under the age of 15, in accordance with Article 2, paragraph 11, which is contrary to the Somaliland children’s rights law passed by the Somaliland legislature and International Children’s Rights Law while Somaliland is signatory of International Human Rights Law in accordance with Article 10, Paragraph2 of the Somaliland Constitution.
According to Article 12, paragraph 3 “If a minor or mentally ill person is ever considered by his custodian in his or her best interest to marry, the Shari’a allows him or her to marry without consent.” This encourages the marriage of minors and mentally ill people who need maintenance and care.
11. INCREASED PUNISHMENTS
Some of the penalties of this law are very lenient/kind which do not seem to reflect the crime committed by the defendant. For example, Article 15 which deals with “kidnapping for the purpose of sexual intercourse and unlawful detention” the crime committed here is two major offenses (rape and Kidnapping) so the punishment should be commensurate.
it is better to be reviewed the various penalties set out in the Act for which the punishments of many provisions are less severe, others are ambiguity, while other punishments is difficult to the judges the one to follow, since in many provisions, the law stated to follow the punishments of rape offenders through Islamic sharia and imprisonment as well.
12. EVIDENCE OF RAPE THAT CAN BE LOST IN SHORT PERIOD OF TIME
Article 19, paragraph 1 “The case of rape offenses shall be filed in accordance with the law and there shall be no time limit for the filing and prosecution of rape and related offenses”. As there is no time limit the article does not specify how to protect the evidence of rape which can be lost after a short period of time such as the first 48 hours. The act should highlight how to protect the evidence that can be lost in a short period of time.
13. WHO TO REPORT TO RAPE CASES
Article 20 states who to submit a rape complaint or report to be the police, prosecution and the court. According to Article 21 of the Penal Code, a rape case can be referred to the police or the prosecution because it is a crime against the Nation. No need to submit it directly to the court.
14. A PERSON WHO IS KNOWN TO STANDARDS OF DECENCY AND DIGNITY CAN’T BE ARRESTED.
Article 22, Paragraph Sh. Underlined that the accused cannot be arrested if he is person who is known to standards of decency and dignity unless it’s proved of something (rape crime). On the other hand, the person who claimed the rape should be disciplined to protect the dignity of the good and decent people)
Firstly, this paragraph creates a social class that is contrary to Article 8 of the Somaliland constitution. Secondly, this paragraph doesn’t define who are those decency or dignity people? Does it mean the Koranic teachers (which can be yes as it tastes and in accordance with the context where there is many Koranic teachers accused of rape in their girl child students), or Government officials and etc.
The objective of this paragraph is that the accused called decency individuals are not liable to be arrest until their accusation is proved, which means until the court announce them as rape offenders.
This paragraph can be used as a defense, and every accused can claim him as a decency/dignity person to be free from arrest. Furthermore, the accused can flee from the place of incident pre and during the trial since he is not arrested as a decency person under this paragraph.
15. WOMEN ARE NOT ALLOWED TO BEAR WITNESSES
Article 34, paragraph 2 (T) identified the Acceptable evidence that the court shall impose a sentence of imprisonment or fine under this Act. This includes the witness of 2 males or more who met witness requirements set out in Sharia.
Although it is difficult at first to find a witness to a Rape, which may result in a lawsuit being filed in the absence of a witness. This article does not recognize women as witnesses even if they have any information about the incident. For example if one of two women is raped and the second one escaped from the rapists, the court will not listen as witness to the escaped one due to this paragraph 2 of article 34 which allows only two male and more as witnesses. Furthermore, this is discrimination against women which the Somaliland constitution prohibited.
16. FORENSICS WILL NOT BE RECOGNIZED AS EVIDENCE
Article 34, Paragraph 2 (J) states that the admissible evidence includes the medical report about the victim which indicates the occurrence of sexual penetration and if there is any visible physical injuries. The paragraph added that only medical report can’t be used to clarify whether rape occurred or not.
Such an investigation is the strongest. The matching DNA samples from crime scenes and suspects is rapidly becoming a key source of evidence for use in the justice system. This paragraph denied any evidence obtained through forensic system/, medical investigation if there is no any other evidence, which means if the medical report is the only evidence to a rape, the court will not accept as evidence.