SIHA is calling for action from both parties within and outside Somalia to prevent stoning and other form of torture and violence from continuing to cripple the ability of Somali people to lead viable lives
23 October 2014
In a series of actions that violate human rights norms and humanitarian, customary, domestic, and Islamic forms of law, al-Shabab militants operating in rural areas of Lower Shebelle region of Somalia recently stoned to death Safia Ahmed Jimale, a 33-year old mother found guilty of adultery (zina) and 18-year old Hasan Ahmad Ali, who was found guilty of rape.
'The stoning emphasizes the continued suffering of Somali civilians in the name of dubious and militant interpretations of Islamic law,’ said Hala Elkarib, Director of SIHA. The stoning also represents a broader trend, which SIHA regularly confronts, whereby militancy is used by select groups despite the presence and validity of peaceful and social-justice oriented interpretations of Islam which carry currency for far larger segments of the global Muslim population.
Further, in Ms. Jimale’s case, she was alleged by al-Shabaab authorities to have confessed to the crime of adultery. A confession by an alleged adulterer negates the obligation of the accusing tribunal to ‘prove’ that the adultery occurred, with proof of adultery typically relying on the testimony of four witnesses said to have directly witnessed the illicit act. In Somalia and other areas of the world where stoning has occurred, the confessions of the accused have often been fabricated to make up for a lack acceptable proof the act occurred. In 2008, 13-year old Aisha Duhulow’s filing of a police report after she was gang raped by three armed men was considered by al-Shabab as evidence of her ‘confession’ to the crime of adultery and led to her execution by stoning. Similar ‘confessions’ have led to stoning sentences in other contexts in recent years. The tribunal verdict issued in regards to Mr. Ali demonstrates that even in absence of a supposed confession, the proving of accused’s guilt as mandated by Islamic law is not a priority – Mr. Ali denied that he had raped anyone, had said the sex was consensual, yet was judged guilty and executed nonetheless without the required witnesses which Islamic law says are necessary to file a guilty verdict on charges of adultery or rape.
Additionally, SIHA has established that Ms. Jimale was mentally unfit to stand trial, make confessions for crimes, or receive punishment for crimes. A small-scale trader from Barawe who witnessed Ms. Jimale’s execution told SIHA that it was widely-known in Barawe that Ms. Jimale was mentally unwell, and that her family repeatedly communicated this fact with al-Shabab prior to the sentencing and execution. In Islamic law, mentally unwell individuals, referred to as majnun, are said to lack legal responsibility (taklif) for their actions, and thus are not eligible for the punishments mandated by Islamic law for mentally well adults. Violations of Islamic law committed by majnun, such as the alleged adultery committed by Ms. Jimale, are viewed in Islamic jurisprudence as unintentional acts and are therefore not punishable. Despite there being a clear process in place in Islamic jurisprudence for establishing the mental capacity of the accused to stand trial, no such process appears to have been engaged in by al-Shabab tribunal members prior to the stoning.
A closer look at classical and Islamic jurisprudence emerging from madhhahib as early as the 8th century reveals scholarship discouraging the brutality of stoning. It is unacceptable that in the 21st century the decisions to stone a person to death is still being made in any part of the Muslim world despite a wealth of accumulated knowledge, wisdom and interpretations of Islam not supporting the practice.
The brutality of stoning lacks, therefore, a foundation in Islamic law, and acts of stoning carried out against Somali citizens ought to be understood not as something which select groups are compelled to do because of religious affiliation but more simply as the preference of some to employ violence as a means of intimidation and population control.
SIHA is calling for action from both parties within and outside Somalia to prevent stoning and other form of torture and violence from continuing to cripple the ability of Somali people to lead viable lives and contribute to the rebuilding of their country.
TO THE INTERNATIONAL MUSLIM COMMUNITY:
The continuation of stoning carried out in the name of Islam must be challenged by Muslim communities and countries around the world. Stoning is not part of the legal system in most Muslim countries=">; these States should share their experience with countries in the Horn of Africa which are resistant or unable to pursue abolishing the practice.
TO INTERNATIONAL HUMAN RIGHTS ACTORS AND POLICY MAKERS:
Respond proactively to incidents of stoning and other terror occurring in Somalia and advocate for the referencing the universality of human rights protections like the UN Convention Against Torture which is binding whether or not a State or party is present as a signatory;
Develop means of receiving information from communities which have experienced violence through strengthened communication and funding channels to locally based human rights defenders and organizations;
Maintain pressure on the Government of Somalia as well as the African Union Mission to Somalia (AMISOM) to improve on their capacity to improve security in regions across Somalia;
Ensure AMISOM forces work towards the establishing security of Somalia and avoid becoming perpetrators in human rights violations themselves. Encourage, by liaising with donor nations contributing to AMISOM, the development of stronger oversight and justice mechanisms for any armed forced discovered to be committing human rights violations, particularly sexual violence and extrajudicial killing.
TO THE GOVERNMENT OF SOMALIA:
Ensure that the Human Rights Commission mandated by the Constitution receives necessary parliamentary support to become an effective body by which human rights violations like stoning can be investigated and perpetrators of human right violations brought to relevant judiciary bodies;
Work to build and maintain security corridors by which qualified human rights agencies, humanitarian actors, and key stakeholders can gain better access to key regions in southern Somalia where significant human right violations are known to occur in an atmosphere of impunity. Increasing the ‘footprint’ of human right and humanitarian actors is an established means of deterring extremism and supporting isolated communities suffering under it.
In terms of Human Rights Law (HRL), the broadly reaching Universal Declaration of Human Rights (UDHR) in instructive regarding punishments like stoning; acts of torture committed by any party constitute violations of a variety of articles of the UDHR, particularly those protecting against violations of human dignity (Article 1), protecting against torture and cruel punishment (Article 5), and guaranteeing fair trial (Article 10) and Article 30, which broadly prohibits acts of individual States or groups to attempt to destroy or invalidate human rights contained in the UDHR. In Customary International Law (CIL), the most relevant instrument regarding stoning is likely the UN Convention Against Torture, which is increasingly becoming absorbed into customary law world over and also underpins other international prohibitions (see: Article 5, African Charter on Human and Peoples Rights) against punishments like stoning. Given that Somalia is beset by a non-international armed conflict, International Humanitarian Law (IHL), is also a key consideration. At the time of Ms. Jimale’s execution in Barawe, al-Shabab was the de facto controlling force in what was at the time their last stronghold in southern Somalia. IHL regarding occupying forces is most clearly spelled out in the 1907 Hague Regulations and the Fourth Geneva Convention. Under these obligations, occupying forces ‘must respect the laws in force in the occupied territory,’ ‘must take measures to restore and ensure, as far as possible, public order and safety,’ and must comply with a variety of prohibitions against torture="> and other forms of ill treatment, all regulations which are violated by the stoning of civilians.
Somali domestic law, represented by the Provisional Constitution adopted in 2012, also has important prohibitions against violence against women, torture, and inhumane treatment (Article 15.2). Additionally, the Constitution mandates the forming, in the face of clear incidents of human right violations occurring within Somalia, of a Human Rights Commission charged with identifying and investigating allegations of human rights violations (Article 41.1-2). Yet, despite extreme violence and human rights violations occurring throughout Somalia since the adoption of the Constitution, the Somali Parliament has consistently lagged behind to form a viable Human Rights Commission and to clearly define leadership, roles, and objectives of the Commission.