Somalia

Legal Code Summary

Penal Code established by Legislative Decree No.5/1962

Legal Code Text

Article 409 - “Whoever has carnal intercourse with a person of the same sex shall be punished, where the act does not constitute a more serious crime, with imprisonment from three months to three years. Where the act committed is an act of lust different from carnal intercourse, the punishment imposed shall be reduced by one-third.”

Article 410 - “A security measure may be added to a sentence for crimes referred to in Articles 407, 408, and 409.”

Article 406 - “Whoever, in a public place or a place open to the public, incites anyone to lewd acts, even in an indirect manner, shall be punished, where the act does not constitute a more serious offence, with imprisonment up to one year or with fine up to Sh. 2,000.”

ILGA Analysis & Notes

The political situation in Somalia has been complicated since the fall of the dictator Mohamed Siad Barre in 1991, and the appropriate enforcement of the national Penal Code is questionable. However, Somaliland in the north has declared itself independent, and it still applies the Penal Code. However, further south and central in the country, as recorded in Christman’s 2016 report, “Al-Shabaab’s beliefs stem from a Salafi-Wahhabi strand of Sunni Islam (an ultra conservative movement within Sunni Islam). They enforce a strict interpretation of Shariah law. Shariah law explicitly forbids homosexuality - the punishment for those ‘found guilty’ is at a judge’s discretion, and may be punished by death”. Writing in 2014, the Somali artist and writer Diriye Osman, now resident in the UK, says to come out in Somalia one must be prepared for, “...physical abuse, ceaseless harassment, imprisonment or death”. Osman’s own family threatened him with violence upon learning that he is gay. In early 2017, it is reported that al Shabaab (a militant group allied to al-Qaeda) murdered two individuals on account of their sexual orientation. In its 2nd UPR in early-2016, Somalia appears to have received only one recommendation (Canada) regarding SOGI: “Address widespread impunity—including for attacks against journalists, civil society and human rights defenders, women and LGBTI persons—by conducting timely and impartial investigations, investigating threats of violence, and prosecuting perpetrators”. The State ‘noted’ this recommendation, and no other comment was recorded in the Working Group’s report.