Women's Rights In The New Somalia- Best Practice .

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!!!!!!!!!!!!!!!!!!!!!Women’s Rights in the New Somalia:Best Practice Guidelines for MPs and CSOs!!!

Legal Aid Providers SupportingSurvivors of Gender Based Violencein Somalia!!

(Guidelines(for(MPs(and(CSOs!(!!

!Women’s Rights in the New Somalia: Best Practice Guidelines for MPs and CSOsJanuary 2014This report was prepared by Legal Action Worldwide (LAW).It was commissioned by IIDA Women’s Development Organization Project, and funded by theUnited Nations Development Programme men’s Development Organization (IIDA)IIDA is a non-profit organization that was founded in 1991 in Mogadishu by a group of Somaliwomen leaders to promote women’s political, economic and social rights. IIDA formulates womenled programs that are geared towards making a lasting impression on the lives of Somali women bothat home and in the Diaspora. Its mission is to promote peace and work towards non-violent means ofconflict resolution, to foster and ensure the integration of Somali women in all sectors of their society,to promote education for women and the youth, to enhance women's economic self-sustenance andimprove women’s health. IIDA is the largest grassroots movement in Somalia. It is able toresourcefully and successfully penetrate the grassroots, even in times when international organizationsare unable to do so due to security concerns.Legal Action WorldwideLAW is an independent, non-profit organisation comprised of a network and think tank of prominenthuman rights lawyers and advisors. It provides innovative legal assistance to the least representedpeople, especially women and children, in fragile and conflict-affected states. LAW mobilisesdomestic, regional and global legal expertise to improve access to justice and obtain redress forpeople suffering from human rights violations and abuses.Our main objectives are:! Improving Access to Justice & Obtaining Legal Redress! Increasing Legal Responsibility and Accountability! Reforming Legislation, Policy and PracticeOur four main pillars of activities are:A) Think Tank: LAW is comprised of a network and think tank of prominent human rightslawyers and advisors from the Middle East, Africa, Europe, America and South America whoadvise on the development of innovative legal strategies aimed at effecting legal change.B) Legal Assistance and Empowerment: LAW works with existing grassroots networks andgovernment institutions to increase rights awareness and knowledge of the availability oflegal avenues for redressC) Strategic casework: A successful civil or criminal case or complaint can establish importantlegal precedents or effect changes in domestic and global legislation and policy.D) Legal advocacy: LAW advocates domestically, regionally and internationally for change inlaws, policies and practices through high level panel discussions, bilateral consultations andthe use of social media.For more information on LAW see our website at http://legalactionworldwide.org!i!!!

!Contents!Page!!!!!!!!!!iiGlossary11. Executive Summary2Part I: Gender and the Somali Legal Framework52. The Somali Context2.1 Commitment to Gender Equality2.2 Somali Legal Framework2.2.1 Domestic Law2.2.2 Sharia Law2.2.3 International Law2.3 Provisional Constitution2.3.1 Implications of the Constitution on Women’s Rights2.3.2 Implementation to date555588101213Part II: Comparable Jurisdictions143. Best Practices and Lessons Learnt from Post Conflict and Comparable Societies3.1 Djibouti3.2 Kenya3.3 Rwanda3.4 South Africa3.5 Malaysia1414172023264. Strategies Used to Overcome Challenges4.1 Common Challenges4.2 Strategies Used to Promote Change4.2.1 Women’s groups across all sectors4.2.2 Quota Systems4.2.3 Gender Responsive Budgeting4.2.4 Implementation of Gender Equality within Sharia Law28282828282929Part III: Recommendations305. Recommendations for Somalia5.1 Recommendations for Constitutional Provisions5.1.1 Gender Quotas5.1.2 Rights that Address Specific Gender Issues5.1.3 Interpretation of Rights, Including How to Apply Customary andSharia Law5.1.4 Onus on State to Provide Certain Rights5.1.5 Relationship with International Law5.1.6 Gender Commission5.1.7 Gender equality within the Truth and Reconciliation Commission5.2 Ratification of International and Regional Conventions5.3 Suggested Legislation and Policies5.3.1 Improvement in Legislation Drafting Capabilities5.3.2 Suggested Legislation5.3.3 Suggested Policies5.4 Capacity Building for Women’s Groups303032336. Conclusions42!ii!!!3435363737383838384041

!AnnexesAnnex IAnnex IIAnnex IIIAnnex IVAnnex VAnnex VIAnnex VII43Full list of provisions in the Somali Constitution relating to WomenProvisions in the Djibouti Constitution Relevant to WomenProvisions in the Kenyan Constitution Relevant to WomenProvisions in the Rwandan Constitution Relevant to WomenProvisions in the South African Constitution Relevant to WomenProvisions in the Malaysian Constitution Relevant to WomenOther Muslim-majority countries considered for inclusiosnReferences!4347474950515154iii! !!

GlossaryANCLWThe African National Congress’s Women’s LeagueCEDAWConvention for the Elimination of Discrimination Against WomenCOGWOCoalition of Grassroots Women OrganisationsCRCConvention on the Rights of the ChildCSOCivil Society OrganisationFEPMAFemale Paramedical AssociationFFRPThe Forum of Women ParliamentariansFGMFemale Genital MutilationFIDAThe Federation for Women’s LawyersHIVHuman Immunodeficiency VirusHRVCHuman Rights Violation CommitteeICCPRInternational Covenant on Civil and Political RightsICESCRInternational Covenant on Economic Social and Cultural RightsICUIslamic Courts UnionIDLOInternational Development Law OrganisationIDPInternally Displaced PeopleMPFMinistry for the Advancement of Women, Family Welfare and SocialAffairsMPWSSelangor Women’s Permuafakatan CouncilMWFCDMinistry of Women, Family and Community DevelopmentNAPNational Action PlanNGONon-Governmental OrganisationsPHRNPeace and Human Rights NetworkRWPRwandan Patriotic FrontSFCCSomali Family and Child Care OrganizationSGBVSexual and Gender-Based ViolenceSSWCSave Somali Women and ChildrenSTD/ISexually Transmitted Disease/ InfectionSWASomali Women’s AgendaSWDCSomali Women Development CentreTFGTransitional Federal GovernmentUNFDNational Union of Djiboutian WomenUDHRUniversal Declaration of Human RightsUNSOMUnited Nations Operation in SomaliaWAWAWe Are Women ActivistsWNCThe Women’s National Council!1!

!1. EXECUTIVE SUMMARYThe progress of creating a Somali state has been long and particularly difficult for women.On 20 August 2012 the Somali parliament held its inaugural session as the firstinternationally recognised central government in Somalia in 21 years, after eight years oftransitional government. In the same month, 275 MPs were elected by elders to theparliament, including 38 women. The new constitutional system provides a rare opportunityto change the country’s direction in the field of women’s rights.‘A New Deal for Somalia’ conference, co-chaired by the Somali Federal Government and theEuropean Union (EU), was held in Brussels on 16 September 2013. At the conference,government and civil society representatives from all regions of Somalia adopted a ‘NewDeal Compact’, which establishes a framework for the country’s reconstruction andreconciliation. The Compact highlights the important role of Somali women in the peace andstate building process, and contains numerous commitments to protecting women’s rights.This Guide aims to assist the Somali Parliament in realising the aspirations in the New DealCompact. It provides recommendations which will enable MPs to begin the process ofdeveloping legal, governmental and social institutions to embrace principles of genderequality and commit to the practical realisation of all rights for all Somali citizens.Somali women face many of the same challenges as women have in other conflict and postconflict societies. This Guide looks at the experiences of five other African and Muslimcountries: Djibouti, Kenya, Rwanda, South Africa and Malaysia.1The experiences of thesecountries provide insight into how African and Muslim-majority countries have approachedissues of customary law, Sharia law and women’s rights in the context of post-conflictsituations, political transitions and/or international and domestic pressure for change. Each ofthese states have made positive developments in the realm of women’s rights, though allcontinue to experience setbacks and challenges. We outline the primary obstacles to progressstill experienced by these countries and discuss where and how these challenges have beenhandled effectively.Key Strategies Learned From Other ContextsSome countries have responded to the challenge of protecting and promoting women’s moreeffectively than others. In the context of African and Islamic societies, four key strategieshave emerged as providing the most effective support to protecting the rights of women:1. Women’s groups across all sectors: Advances in all of the countries examined are ina large part attributable to be the strength and persuasive power of their women’sorganisations. They are most effective when there is cooperation between womenwithin CSOs (civil society organisations) and the !!!!!!!!!!!!!!!!!!!!!!1!It is recognised that several prominent Muslim countries were not included in this guide. A full list of reasonsfor the exclusion of these countries and a discussion of relevant issues from the Afghan and Egyptian contexts isincluded in Annex VII. In brief: Afghanistan has not been effective in enforcing women’s rights and variousBills limiting the rights of women have been allowed to pass into law; Egypt’s constitution is still in its draftstages and currently contains no provisions safeguarding women’s equality; and Tunisia’s constitution is also indraft form and debates about whether it will be secular or religiously based are ongoing!2!!

!2. Quota systems: It is generally agreed that for women’s voices to be both heard andlistened to in male dominated institutions, they require a “critical mass” of aboutabout 30%.2 Quotas establish a culture of women in leadership more quickly andeffectively than waiting for one to develop naturally from a strongly patriarchalsociety.3. Gender responsive budgeting: Programmes need to be properly resourced ratherthan simply statements of policy or a passage of law without further action.3 Countriesthat effectively assess the budgets of all departments for their responsiveness togender issues, such as Rwanda, are progressing faster than countries that do not dothis in practice, such as South Africa.44. Implementation of gender equality in Sharia law: Women benefit from theappointment of females as judges in Islamic courts and from attempts to streamline aninterpretation of Sharia rules with principles of gender equality.Recommendations for SomaliaThis Guide highlights four areas for Somali MPs to focus their attention on for the realisationof women’s rights:1. Constitution Amendments: The Guide makes seven recommendations for amendmentsto be made to the constitution. They are: gender quotas, the insertion of rights that addressspecific gender issues, provisions on the interpretation of rights, onus placed on the State toprovide certain rights, provisions on the relationship of the constitution with customary law,provisions on the relationship of the constitution with Sharia law, provisions on therelationship of the constitution with international law, the establishment of a GenderCommission and the implementation of gender equality within the truth and reconciliationprocess. The Guide provides a simple and clear explanation of how to pass constitutionalamendments.2. International instruments to ratify: The Somali executive should ratify the Conventionon the Rights of the Child, and accede to the UN Convention for the Elimination of all formsof Discrimination Against Women (CEDAW), the Protocol to the African Charter on Humanand People’s Rights on the Rights of Women in Africa (Maputo Protocol) and the RomeStatute of the International Criminal Court. It should also implement a National Action Plan(NAP) on Resolution 1325, relating to the role of women in conflict management, conflictresolution, and sustainable peace.3. Legislation and policies should be developed for the protection and empowerment !!!!!!!!!!!!!!!!!!!2This number was the UN Economic and Social Council international target for 2005 and was endorsed in the UnitedNations Beijing Declaration and Platform for Action.3Including reduction in female poverty rates in Rwanda and increased access to education in Kenya.4African Development Bank, ‘South Africa: the National Gender Machinery, Gender Mainstreaming and the Fight againstGender Based Violence, Human Development Department, instreaming.pdf , (accessed 6 October 2013), p 14.3!!

! Laws to develop, in order of feasibility are: Sexual Offences Act, Workplace EqualityAct, Land Inheritance Act, Protection against Domestic Violence Act.The Somali National Gender Policy currently being developed should include: aNational Action Plan for the implementation of Resolution 1325, a Gender-BasedViolence policy, a Gender Mainstreaming and Institutional Capacity DevelopmentProgram, and an Economic Empowerment Policy, which includes a focus onempowering the most vulnerable, including women.4. Developing the capacity of women’s organisations in conjunction with CSOs andinternational development partners is very important.Somali MPs can learn from the experiences of these nations in pushing for reform. None ofthe examined societies changed instantaneously and all continue to face obstacles in theprogression towards true gender equality. However, all have begun the gradual progressiontowards lasting change. It is a critical time for Somalia, and the right time to push forlegislative, constitutional and policy change that will allow all rights of all Somali women tobe realised.Antonia MulveyExecutive Director, Legal Action Worldwide (LAW)Note: At the time this report was written, the line Ministry was the Ministry of Developmentand Social Affairs. A new Ministry of Women and Human Rights Development wasestablished in early 2014 and is now responsible for issues relating to the protection andempowerment of women. This Ministry has made significant progress in developing laws andpolicies for the advancement of women which are not included in this report. Further, it isnow suggested that legislation and amendments are introduced to Parliament by the Ministerof Women and Human Rights Development, rather than the deputy Minister of Justice assuggested in this report.4!!

!PART I: Gender andSomali Legal Frameworkparticipation, access to justice and protectionfrom sexual and gender based violence(SGBV), economic empowerment, andaccess to basic services such as health andeducation.7 The compact also recognises thatrespect for women’s rights is critical tonational healing and rebuilding, and thatwomen, as 52% of the Somali population,play an essential role in the reconciliationand peace-building process. The protectionand promotion of women is therefore not aperipheral issue, but an essential prerequisite to the reconstruction of the Somalistate.the2. THE SOMALI CONTEXT2.1 Commitment to Gender EqualityThe new Somali Federal Government hasrepeatedly committed itself to the attainmentof gender equality and the empowerment ofwomen.5 In September 2013, a “New DealCompact’ was designed through aconsultative process with Somali MPs,regional administrations, civil society,women’sgroupsandinternationaldevelopment partners. The compactincorporates prior commitments and policiesof the Somali government, and wasdescribed by President Hassan SheikhMohamud as ‘Somali led and Somaliowned.’6 This compact includes numerouscommitments to the recognition, protectionand promotion of women’s rights, as well asthe important place of women in politicaland social life. It seeks to address thecontributing factors to gender inequalitythrough strategic priorities, ng)at)Merka)beach)!2.2 Somali Legal FrameworkSomalia has a limited number of protectionsfor women under its domestic law and is asignatory to a handful of internationalconventions which guarantee certain rightsfor women. In practice, however, theseprotections and freedoms are generally notenforced.2.2.1 Domestic LawSomalia’s legal system is a combination ofcivil law, customary law (Xeer) and Sharialaw. The codified law is an amalgamation ofBritish common law and Italian civil law.Currently, it does not provide !!!!!!!!!!!!5The Federal Republic of Somalia, ‘The SomaliCompact’, adopted at the A New Deal for Somaliaconference, Brussels, 16 September 2013; FederalGovernment of Somali Republic, ‘Vision 2016:Principles and Recommendations’ Mogadishu,Somalia, September 2- 6 2013.6H. Mohamud, speech made at the New Deal forSomalia Conference, 16 September !!!!!!!!!!!!!!!!7The Federal Republic of Somalia, ‘The SomaliCompact’, adopted at the A New Deal for Somaliaconference, Brussels, 16 September 2013, p 11.5!!

!comprehensive legal framework and hashistorically been inadequately enforced.The limited legislative protections forwomen that do exist are mainly contained inthe following legislation: The Civil Code 1973The Civil Code gives women the right toindependently own and control their ownproperty.In August 2012, the new Somali governmentinitiated a judicial reform process to pavethe way for the re-establishment ofindependent courts.10 The government isalso mandated to pass new legislation inorder to develop a comprehensive formallegal code. Unfortunately, from 2012 untilthe time this report was written, no newlegislation had been passed. This ispredominantly due to a lack of legislativedrafting capacity within the government, aswell as uncertainty relating to whichgovernmental body has responsibility fordrafting the laws. The low technical qualityof the laws that have been put beforeParliament has forced the passing ofnumerous Bills to be postponed.11 The Family Code 1975The Family Code provides someprotections for women, includingproviding equal inheritance rights,setting the marriageable age at 18(though women can marry at 16 withparental consent), and requiring courtauthorisation for men to take more thanone wife. However, it also stipulatesthat men head the family and the wife isobliged to follow her husband.8 Further,the provisions on equal inheritancerights were seen many actors ascontradicting Sharia law and as such thelegislation has been rarely used.!! Penal Code 1963Rape is included as an ‘unnaturaloffence’ under a section on ‘Crimesagainst Morals and Decency’ in thePenal Code. The majority of other sexualoffences, including sexual assault, sexualoffences relating to children and gangrape are not dealt with under the PenalCode. There is no guidance in thelegislation on burden of proof,admissibility and evaluation of evidenceor what may be considered aggravatingfactors. Laws against “hurt” in the PenalCode, which could theoretically apply tofemale genital mutilation (FGM), are notapplied in this way in practice.9!!One of the Bills currently being developed isaimed at protecting women’s rights in !!!!!!!!!!!!!!!!10A. Khalif, ‘Somalia takes first step towards judicialreforms’, Africa Review, 6 April first-step-of-the-journey-to-judicial-ref

women leaders to promote women’s political, economic and social rights. IIDA formulates women-led programs that are geared towards making a lasting impression on the lives of Somali women both at home and in the Diaspora. Its mission

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