(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
Homosexuality is illegal in Somalia. Article 409 of the 1964 Penal Code states that homosexuality (same-sex intercourse) is punishable ‘by imprisonment from three months to three years and an act of lust other than sexual intercourse is punishable by imprisonment from two months to two years’.
Article 410 provides a security measure that can be applied to crimes that violate Article 409 of the Penal Code. This allows police surveillance to be carried out in order to prevent re- offending.
On 1 August 2012 a provisional constitution was adopted by the Federal Republic of Somalia. It asserts Islam to be the religion of the State and as such, all laws must be compliant to Shari’a law. Article 4 states ‘After the Shari’a, the Constitution of the Federal Republic of Somalia is the supreme law of the country’. Islamic Shari’a Law deems homosexual acts punishable by the ‘death penalty or flogging’.
Equality is addressed in Article 11(2) of the constitution,
‘The State must not discriminate against any person on the basis of age, race, colour, tribe, ethnicity, culture, dialect, gender, birth, disability, religion, political opinion, occupation, or wealth’.
There is no mention of sexual orientation or gender identity.
The borders of the Federal Republic of Somalia include the regions of Somaliland and Puntland. Under the new constitution the Government will create Federal Member States, moving away from clan-based regions that formed since the previous Government was ousted in 1991. Those Federal Member States have yet to be decided, however the constitution holds that Member State Governments shall be ‘harmonised’ with the Federal Government creating a unified Somalia.
No official case law has been found.
PUBLIC ATTITUDES AND/OR STATE'S CAPACITY TO PROTECT
The United Nations resolution condemning ‘extrajudicial, summary or arbitrary executions’ calls on States to protect individuals’ right to life in a non discriminatory way. In November 2010, Somalia was one of 79 countries that voted in favour of an amendment to the resolution, removing discrimination based on sexual identity.
In 2008, the United Nations Declaration on Sexual Orientation and Gender Identity was passed. The declaration reaffirmed ‘the principle of non-discrimination, which requires that human rights apply equally to every human being regardless of sexual orientation or gender identity’. Somalia was one of 58 States who signed a Counter Statement to this declaration.
A member of the community based organisation, Queer Somalia said ‘My people don’t understand what a homosexual is. They only know that through their religious law, the solution is to kill’. Groups working for the protection of LGBTI rights are restricted to the extent that they have no official recognition in Somalia.
A report by Asylum Law on 22 February 2001 reported two women who were living together, declaring themselves as man and wife. On 19 February 2001 a court in Bosaso sentenced them to death by stoning for ‘exercising unnatural behaviour’. The media reported that several hundred people turned out to watch the hearing and cheered when the verdict was announced. This case was not officially reported.
Homosexuality is rarely discussed in Somalia. This has wider implications in terms of HIV/Aids particularly for ‘at risk’ populations, for example men who have sex with men (MSM). Somalia has refrained from providing information regarding indicators for MSM to the United Nations General Assembly Special Session (UNGASS).
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
No records could be found of any NGOs working within Somalia focusing on the rights of LGBTI persons. Readers who have more information on this are encouraged to get in touch with the contact below.
COUNTRY OF ORIGIN SPECIALISTS
We currently have no Country of Origin Specialists on LGBTI for Somalia, but would welcome suggestions.
Researched by: Christina Haneef
Email: csm [dot] haneefgooglemail [dot] com