MEKELLE UNIVERSITY

COLLEGE OF LAW AND GOVERNANCE

SCHOOL OF LAW

HOW THE RAPE CASES ARE BEING HANDLED

IN SOMALILAND
CRIMINAL JUSTICE SYSTEM

October- 2019

Research Paper in Preparation of 2nd Degree :

Prepared by:- EID ABDI SAED AWED
Who is Owner Awed Law Firm in Somaliland?
And a member of Somaliland Lawyers
Association (SOLLA)
Email:- awedlawfirm23@gmail.com
eid_saed@yahoo.com

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Contents
1. Introduction .........................................................................................................................................................3
2. Limitations ...........................................................................................................................................................4
3. Literature Review ......................................................................................................................................................4
3.1 Definition of Rape Violence: ...............................................................................................................................4
3.2 Laws relating to Rape proceedings ......................................................................................................................4
3.3 Suspended law—(Somaliland’s Sexual Offences Law) ......................................................................................4
3.4 Somali Penal Code ...............................................................................................................................................4
3.5 Art. 398 (Carnal Violence) ..................................................................................................................................5
3.6 By the Black’s Law Dictionary ...........................................................................................................................5
4. EVIDENTIARY CHALLENGES WEAKEN PROSECUTIONS ............................................................................5
4.1 Challenges faced in the rape cases .......................................................................................................................5
4.2 Medical Exam carries these details: .....................................................................................................................6
4.3 Resources for Investigation .................................................................................................................................8
4.4 Medical Exam in the Rural Towns ......................................................................................................................9
4.5 Convictions without Genuine Proof ..........................................................................................................9
4.6 Withdrawal of Rape Cases ...................................................................................................................................9
4.7 Withdrawal at the Police Stations ........................................................................................................................9
4.8 Withdrawal during the Medical Examinations ..................................................................................................10
4.9 Withdrawal in the Prosecution and Courts ........................................................................................................11
5.0 The Legal Systems that Affect the Rape Cases .....................................................................................................12
5.1 Customary Law..................................................................................................................................................12
5.2 Sharia Law .........................................................................................................................................................13
6. Conclusions .............................................................................................................................................................13
7. Recommendations ...................................................................................................................................................14
 Protection of Privacy ....................................................................................................................................14
 To enhance Police Skills for interviewing Victims .....................................................................................14
 To get legal assistance for the rape victim at the Hearing ........................................................................14
 Establishment of Forensic Medical Examination System .........................................................................14
 To Avoid Traditional Resolutions for the Rape Case ................................................................................14
 Awareness Raising for Formal Criminal Justice System ..........................................................................15

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 Acknowledgement
Firstly, I’m giving here big thanks to Allah who has all the power we
are doing our activities. Second, I’m very pleased to give my highest
acknowledgements to everyone who supported me during my
research. I give my dedication of this paper my mother who
supported me day and night without tire. My mother gave me big
chance to prepare my second degree. Finally, I give my
acknowledgment to all the Lawyers, Prosecutors, Judge, Investigators
and Police Officers who facilitated me to prepare this paper.

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Investigation of Proceedings of Rape Cases System and Surrounding
Circumstances

1. Introduction
Rape crime is always committed hidden. That means, the offenders of the rape acts
always avoid peoples’ awareness. At the same time, the rape cases are not reported to the
police. In Somaliland, the rape cases increased in the last years. In this research we have
examined the procedure of these rape cases are dealt with in our criminal justice system.
One of the chore aims of my research is to get an answer to questions relating to how
criminal rape cases are prosecuted and adjudicated. It’s obvious that the rape cases are
applicable the same law codes similar to the other criminal cases. But there’s difference
of adjudicating rapes cases other than the criminal cases in general. In context, all
criminal cases are proved without doubt but the rape cases seem different with that
context. For example, all criminal cases are proved in accordance with the (Without
Reasonable Doubt) standard. But for the rape cases the proof is not conforming to the
Without Reasonable Doubt Standard. In this research, I will focus on the exact procedure
that the prosecutors and investigators follow for proving the rape cases and its legality
recognizing international criminal law and domestic criminal law standards.
Prosecuting rape case offenders the courts face difficulties in recognizing violence
against women, especially sexual violence. “Women are most often sexually assaulted by
men they know. Yet, cases involving known perpetrators are least likely to reach trial.
Many researchers have pointed out that “real rape” continues to be understood as
committed by a stranger, involving weapon and causing external injury”. (Raped? Sexual
Assault in Criminal Proceedings, Heine Kainulainen, P 266).
In Somaliland, mostly, the civil society NGO even the Government institutions do not
often make researches relating to the rape offences. In this regard, I’m very interested in
to find out additional information from judges and prosecutors besides the defense
lawyers I am a member of them. Many judges and prosecutors identified the need for
additional advanced medical exam material for making genuine evidence against the
people accused with rape.

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2. Limitations

I find difficult to make interview with the Forensic Doctors due to their feeling to avoid
case intervention.
Also time and cost caused another limitation to reach far distant districts as well as
outside Hargeisa.
My weakness in this study was lack of interview with the forensic doctors as well as
victims and offenders due to time and cost limits. In the future I would like to further my
study to reach these important sides to find out more accurate study.

3. Literature Review
3.1 Definition of Rape Violence:
3.2 Laws relating to Rape proceedings
Problems caused by lack of updated law in the Somaliland criminal justice system
3.3 Suspended law—(Somaliland’s Sexual Offences Law)
In January 2018, Somaliland House of Representatives passed the Sexual Offences Bill.
The Upper House—(The Guurti) also passed this Bill and finally, the President signed it
to be a law and should be published to public. After its publication, the community
became aware of this law and large public resistance happened afterwards.
The Sheiks and other knowledgeable community sectors including the lawyers hold press
conferences against this law. Finally, the Government declared to suspend the
implementation of this law and currently, it’s not applicable in the courts.
After its declaration of independence in 1991, Somaliland inherited outdated Penal Code
that applicable since 1960s in former Somali State included Somaliland. The Criminal
Procedure Code is also very outdated in terms of cases relating to Sexual Violence
Offences.
In this regard, the adjudication of rape cases is in very difficult situation due to lack of
applicable and updated criminal rules.
This suspended Sexual Offences Law defines rape as: “any person who commits sexual
assault without the consent of the victim or sexual assault that is carried out by physical
force, coercion or threat.”
If the offender is found guilty of rape, this law increases the punishment of the rape
convicted persons up to 15 years and also up to 20 years of imprisonment if it’s found an
aggravated circumstance such as raping of juvenile person less than 15 years of age.

3.4 Somali Penal Code

In Somaliland Criminal Justice System it’s widely applied the Somali Penal Code ratified
in 1960s. Article 398 defines: “Penetration of the male sexual organ shall constitute
carnal intercourse”.

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3.5 Art. 398 (Carnal Violence)
The Penal Code defines rape as Carnal Violence and it says: “Whoever with violence or
threats has carnal intercourse with a person of the other sex, shall be punished with
imprisonment for five to fifteen years”.
The penal law defines rape as: “penetration of the male sexual organ shall constitute
carnal intercourse”.

3.6 By the Black’s Law Dictionary

Black’s law dictionary define rape as “the unlawful carnal knowledge of a woman
by a man forcibly and against her will. That is, without her consent and against
her utmost resistance”.

4. EVIDENTIARY CHALLENGES WEAKEN PROSECUTIONS

4.1 Challenges faced in the rape cases

In my research, I find out that all the rape cases reported to the police are transferred to
the Criminal Investigation Department—(C.I.D). In this department there’s section
relating to the Sexual Based Violations. The investigators in this section make interview
with victim, most of the staff in this section and men. They make direct interview and the
victim feels shame mostly. Her privacy is not protected. The victim also undergo physical
exam by the CID sexual section members. The investigators obtain the information from

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the victim orally and the physical exam they make with the victim no any additional
examination available with them.
Then, the case transferred to the Regional Prosecutor Office. The Prosecutor referred the
case to the Public Hospitals.
The Public Hospitals produce a report letter they provide physical explanations and
medical results relating to the condition of the victim they examined.

As you see in this sample letter which I hid the victim’s name was made by the Berbera
Public Hospital. I take this sample because all the letters made by doctors in Somaliland
are similar.
4.2 Medical Exam carries these details:

 The victim was in good feeling without fear and threat and her body didn’t contain
any physical damages; and she didn’t cry and was in good condition.
 There was no physical injuries in her bodies, such as red marks on skin, no cracks
or swollen marks;
 We find her clothes got torn in the neck;
 Her reproduction organ did not contain any breaks, scars, or other injuries;
 She was not virgin her virginity broke long time ago.
 Her anal virginity broken and 2 injuries sustained;
 Medical exam proved that there was male sperms on her body;

According to the Articles 110 and 163 of Criminal Procedure Code, the Prosecutors has
the duty to proof the following elements:
1. That a crime was committed;
2. That the accused committed it;
3. To proof beyond reasonable doubt;

In this medical exam sample, in proves only the 1st element. That a crime was committed,
but it fails to prove all elements. It doesn’t carry any details relating to the accused person
or any other offender who committed the crime against the victim. Also the element of to
proof beyond reasonable doubt is failed to conform.

As one element of the elements of a crime broken, there’s no standing criminal

proceeding about this case.

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Also criminal proceeding of rape needs to satisfy the entire required element in Article
398 of Penal Code.
(1) The act was accompanied by violence or threats;
(2) The victim was incapable of giving consent;
(3) The accused impersonated another person; or
(4) The accused was a public officer, such as a law enforcement official, and the victim
was under his arrest or custody.

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The judiciary members I interviewed agreed that the main challenge faced in the rape
cases is the lack of evidence. As we know its difficult find out direct evidence because
the crime scene is always a private place or a remote area we cannot find witnesses.
In this regard, there is need for forensic examination to proof who is who, or who is the
offender.

If the case is not proved properly and in accordance with the law, the case is quashed and
the offender gets liberty. While the victim faces ordeal situation.

When the criminal proceeding fail to prove, the customary law play its role to seek civil
damages for the victim. The clans take “Haal” or traditional damages among themselves
to compensate to the victim clan. In customary damages, the victim has no valuable price
equivalent for her suffering. Sometimes in the remote areas she face traditional marriage
with the offender.
4.3 Resources for Investigation

The police particularly those involved in the rape cases investigations don’t have proper
material for their task. They operate with inadequate sources such as infrastructure and
transportation. Most of the rape investigators are unable to visit the crime scene. They
just rely on the victim’s info without seeking additional circumstantial evidence and
supportive facts.

Investigators’ material for investigation tool is not competent to conform to the required
standards.

Also there’s no adequate office material for the rape investigators.

”Abdi Hayd, at the time the Regional Commander in the Saahil Region, discussed
similar problems in Berbera. The CID has a small office which has far too much
traffic, with people going in and out all day. There is no privacy. People might not
even want to go there, with everyone knowing their business and pointing at them,
as this leads to stigma.
Hargeisa CID’s Dahir Ibrahim commented that investigators, even in Hargeisa,
have little to no resources. For the eight staff in my office, we only have one
computer. So if there are multiple rape victims in our office, they have to sit out in
the courtyard to give their statement and wait for the computer to be free. The
victim may live far away, so getting her to court is a concern. Even to get to our
office, she has to pay for her transport. If we had vehicles, we could pick up the
victim and the perpetrator. Even though the CID sex crimes unit does not have a
dedicated vehicle, each office is responsible for investigating rape cases in the
rural areas of their designated region”. (Horizon, Seeking Justice for Rape in
Somaliland, p 32).

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Lack of enough transportation causes the investigators be absent to reach the victim’s
residence in the rural areas. Lack of fuel and good vehicles to the rural areas is the most
problem they give you.

This is another problem face the rape victims to get their case be heard.

4.4 Medical Exam in the Rural Towns

Although it is not enough alone to prove a criminal case, in the rural towns there is no
medical services. So, the rape victims do not get any medical exam in the rural areas. The
cases in that areas fell under lack of proof and the victim and her families rely on mostly
on the traditional problem solutions.

4.5 Convictions without Genuine Proof

In criminal proceedings burden of proof is on the prosecutors. The prosecutors do not

have better material for proofing guilty. They rely on the evidence brought by the
investigators and the information given by the victims. The judges reach judgment as
they see fit. One of the judges I met said we rely on the medical exam paper and the
information given by the victim. Added “if the victim recognizes the offender its just
enough to convict him”. The so-called convicted is sentenced five to 15 years of
imprisonment.

4.6 Withdrawal of Rape Cases

Often rape cases are withdrawn from the formal criminal justice system through
agreements based on customary system. In my research most of the judges and lawyers I
met said that there are many Notarized agreements between victim’s family and the
alleged family. Lack of proper investigations and proper case proceedings lead the
contending parties to reach outside court agreement written in the notary public offices.
These withdrawals of rape cases happen not only in the courts but also it take place in the
prosecutor office and the police stations as well.
4.7 Withdrawal at the Police Stations

The police stations are the first contact that the victim and her relatives resort.
One example of the rape withdrawals has taken place in Salahley—(a district in southern
Hargeisa). According to New Horizon report the case happen as the following:
“The point of first contact with the formal justice system for many rape victims
and their families is their local police. Yet, reported cases often do not make it any
further because officers are vulnerable to pressure from elders to drop rape cases.
Yurub Osman, a village committee member, described the rape of a nine-year-old
girl in Salahley.
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 This was very serious because the girl was very young and really injured. The man
was taken to the police station and they held him there. But her family involved
the elders and they came to an understanding. Two days later the man was
released. There was compensation under a customary agreement; this is why the
man was released. The police should arrest the men accused of rape and take them
to court, but that’s not what happens here. The elders have the last say here”.

Besides improper judiciary system, another reason that causes rape cases withdrawals is
the compensation given to the traditional elders. Traditional elders have burden of clan
blood compensations so, they want to reduce the load by accepting money given by the
alleged clan of the offender.

One of the investigators I met said that the rape reporters are not appearing again after the
first day they come to the CID. Later, we notice that the case settled through traditional
methods.
This investigator added: “when this happens the some of the victims commit suicide
because they caught themselves fire. Some of them sustained heavy bodily injuries”.

4.8 Withdrawal during the Medical Examinations

During the medical examinations, most of victims withdraw their cases. According to the
Horizon report:
”Women also abandon their cases during investigations after they receive medical
care. Hospitals in Somaliland provide free medical care to rape victims. Before a
doctor or midwife will examine her, however, the CID must refer her. Therefore,
to receive free health services, she must first report the offence. But, NHRC’s
Hodan Mohamed noted, a woman might drop her case after receiving treatment.
They take the free medical treatment – pregnancy test, HIV test, etc – and then
disappear and the case comes to an end.
Hodan Aideed, a midwife at Manhal Hospital in Las Anod, confirmed that a
victim may even refuse to be examined. She may be shy and is likely still
traumatised from the incident, especially if she is a young woman. For example, a
year ago there was a girl brought from a rural village and she refused to be
examined. Kaysar Ismail, the IDP in Hargeisa, understands the rationale from the
perspective of the woman who had been raped. They believe that instead of 2,000
people knowing, if the case goes to court, it would be better if only 200 people
know. CID’s Dahir Ibrahim said decisions often hinge on pregnancy and
HIV/AIDS. If they don’t have HIV or aren’t pregnant, then they resort to the
customary system. Their main concern, when they go through the formal justice
system, is whether their reputation will be ruined. Often, they will only follow
through if there is HIV or pregnancy, and then they want justice”.

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4.9 Withdrawal in the Prosecution and Courts

If the withdrawal takes place during the case in the office of prosecutor, the courts don’t
refuse to accept the withdrawal, because the offender is in remand custody and the case is
in Pre-trial process. When the parties conclude a notarized agreement to settle the case
the court ordered them to refer to the prosecutor. When the judge receives the satisfaction
by the prosecutor then he ordered to release the accused. All of the judges and
prosecutors I met confirmed this in my research.
Recently, the courts and prosecutors refuse to accept traditional elders’ agreements but
the victim and other judiciary personal involved in the case face difficulties.
According to Horizon report in 2018:

“When we reject an agreement, sometimes the victim is taken either to Djibouti or

Ethiopia where no one can come after her and we are unable to locate her.
Although the courts tell us that we still need to bring the witnesses forward from
the victim’s case, they do not allow us to continue the case unless the victim is
present. If we can’t do this, the court will close the case and the accused will be
released. Once the judge says there is no evidence for the crime, the accused and
others who are involved will automatically believe he is innocent. These
[customary] agreements have made our work very difficult. As prosecutors, when
we cannot find the victim and the court releases the accused, we do not request an
appeal. If there is no victim, how can we appeal?”

4.10 Some Analytical Point of View

From the rape victim's point of view, again, how she is treated in the criminal
proceedings, is a vital matter. The police may be the first person to whom a woman tells
about a rape. The police may also be the last legal authority to deal with the case, as the
criminal proceedings may end already at the stage of the pre-trial investigation. The
reason for this may be that the police have been unable to solve the offence or that the
victim has withdrawn from the investigation.

The main objective of this research is to get recommendation for these problems.
The research is based on the all notices rape cases in 2019. The study consists of pre-trial
investigation material gathered from some police units, as well as police and prosecutors
interviews conducted by me.

Total of police officers were 7, five of them were

investigators while two out of five investigators were the
specialists assigned for the rape cases received by the
CID—(Criminal Investigation Department).
6 out of 25 were female from the lawyers and the
prosecutors.

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 The most problem faced in
this research was lack of full
collaboration with the police
officers, the prosecutors and
the judges in term of giving
the exam number of rape
cases during 2019. But they
gave me general information
and they also answered fully
with my questionnaires.

5.0 The Legal Systems that Affect the Rape Cases

5.1 Customary Law

Somaliland has three ‘parallel’ legal systems—(Statutory Law, Customary Law and
Sharia Law).

“Historically, in the absence of a centralised authority in the pastoralist

Somali society, elders applied Xeer to resolve conflicts between clans and
to regulate access to resources and land.3 Somaliland now has a centralised
authority and a formal justice system, but elders still regularly use Xeer to
settle disputes. Unlike formal law or Sharia law, customary law is not
universal among Somalis, but specific between any two clans or sub-clans.
In the case of a dispute, the male members and elders from the involved
clans or sub-clans negotiate based on the Xeer that is specific to their two
clans or sub-clans. For example, if the two clans concerned have
historically handled a crime in a certain way in the past, they will do the
same for the current conflict. Moreover, customary law provides a
collective outcome, not individual punishment or redress for crimes. Rape
is often dealt with through payment of compensation to the victim’s family,
or sometimes through marriage of the victim to the perpetrator if she
becomes pregnant as a result of the rape or if she and the perpetrator were
in a romantic relationship at the time of the rape.” (Horizon).

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5.2 Sharia Law

There are many religious clerks in Somaliland, they use different schools of Fiqh or
Jurisprudence.
According to Horizon report in 2018: “Sharia law, which was in use in
Somaliland before it became a British Protectorate, directly influences the
formal justice system, including criminal law, because Article 5.2 of the
Constitution requires that “the laws of the nation shall be grounded on and
shall not be contrary to Islamic Al-Sharia.” As such, Sharia law should take
precedent over the formal justice system and even Xeer, but this only
happens in practice if the presiding judge in a case has expertise in Sharia
law.9 Religious leaders throughout Somaliland also settle issues arising
from marriage, divorce and succession”.

6. Conclusions

In my research, it was identified the following problems and their recommended

solutions will be next.

 Lack of proper Forensic Medical Examination tools;

 Victims face lack of protection of privacy during police interview;
 Lack of capacity building for the police investigators;
 Lack of office infrastructure on the police such as transportation and investigation
material;
 Lack of update laws relating to the rape cases;
 Except Hargeisa other regional and district criminal system offices accept
traditional and customary method of settlement in the rape cases;
 Lack of proper evidence to prove rape cases;
 Convictions based on poor evidence;
 Lack of evidence causes release of offenders;
 Agreements make outside courts cause victims to kill themselves;
 Some parents and traditional elders take victim outside jurisdiction to avoid
adjudication;
 People live in the rural areas don’t enjoy access to justice in rape cases;
 Delay of the judiciary process causes dissatisfaction;
 Lack of public knowledge of the formal justice system;

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7. Recommendations
In my paper I identified different problem that face the rape cases in Somaliland Criminal
Justice System and they are the following.

 Protection of Privacy
In Pre-trial stage of proceeding, hearing the victim is very important. Because the
information the victim provides is very crucial for submitting the case to hearing.
In order that the information is to be recorded well, the victim should have privacy
for giving her report confidentially.

 To enhance Police Skills for interviewing Victims

In Somaliland, women, if got raped they face trauma within the community and
they often feel uncomfortable to recall the events she experienced. When women
victims are in a sensitive situation, the police are needed to have special skills for
dealing with the women in fear. To receive the rape victim woman in a skillful
way creates easy way she can recall painful remembrance. So, the police should
have training to build polite behavior for dealing with raped women life with
Trauma.

 To get legal assistance for the rape victim at the Hearing

In my research, the lawyers agreed that their attendance is no longer need during
Pre-trial interviewing process by the police. But they emphasized that their role is
very important in the trial stage in order to give the raped women legal assistance
and support. I recommend that the women victim to be given legal support even
when the victim is questioned by the police. It’s very crucial for the victims to
have legal support in both Pre-trial and Trial stages of the case.

 Establishment of Forensic Medical Examination System

In my research one of the problems I identified is the poor system for conducting
Forensic and Medical Examination with not only the victims but the offenders as
well. In many places, hospitals do not have tools for making medical and forensic
examinations. So, it’s recommended to establish good infrastructure for these
examinations.

 To Avoid Traditional Resolutions for the Rape Case

It’s recommended to implement the laws and policies that prohibit the elders to
interfere the rape cases in courts or in the police or in the prosecutors’ office.

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 Awareness Raising for Formal Criminal Justice System
It’s recommended to make awareness raising activities in order that the public
should know their right to resort the law system. Specially, to contact the police
stations. Also the police station staff should know how to accept victims.

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