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Legal Aid Providers Supporting Gender Based Violence Survivors in Somalia: Report and Recommendations

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Somalia
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LAW
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Foreword

This is the first comprehensive report about legal aid services for survivors of gender based violence (GBV) in Somalia. The report identifies who is doing what, where and how. It provides an overview of the legal frameworks in place, key successes that can be replicated and recommendations on how immense challenges can be overcome.

Somalia is a very difficult environment for providing legal aid services to survivors of GBV.
There are security challenges that affect legal services across Somalia, but particularly in South Central Somalia, where survivors, lawyers, witnesses, journalists and family members have been threatened, harassed and arrested for reporting GBV offences. Legal aid providers regularly receive death threats towards their staff and offer rewards for the murder of their clients. Fear of reprisals to staff, survivors, witnesses and medical personnel rise if perpetrators are from the security forces. It is not surprising that survivors are hesitant to report cases of GBV.

The lack of women in the justice sector is also detrimental to survivors reporting cases or pursuing prosecution. In Somalia there is a clear link between the number of women in senior positions in the Criminal Investigation Department (CID) of the police, and the Attorney General’s office and the increase in reporting, investigations, prosecutions and convictions of perpetrators.

Many negative practices have developed within the legal systems of each region which adversely affect the ability of survivors of GBV to access the formal legal system. In many cases, these negative practices have become accepted as policy, though in reality this is not the case. These practices and a lack of understanding amongst legal aid providers and other justice actors about what law and policy provides represents a major challenge in all regions.

There are also enormous social, cultural and religious barriers in reporting GBV cases.
Survivors are often reluctant to pursue prosecution or civil cases against the perpetrator due to the social stigma associated with rape. In rural and remote areas across Somalia the customary law (Xeer) is used to resolve the majority of disputes. In GBV cases, these decisions are rarely survivor-centred.

Despite this bleak picture there are thirteen NGO legal aid providers across Somalia who provide four key services to GBV survivors. Firstly, providing criminal defence or civil representation to clients who cannot afford to represent themselves in court; secondly, representing and assisting victims of crime to participate in prosecutions against the accused; thirdly, providing general legal information and advice; and fourthly, providing representation and assistance in alternative dispute resolution through the customary system.

These legal aid providers have had significant successes in providing needed services for GBV survivors. Survivors are better served through ‘one stop’ medico-legal response centres, in which they can receive medical treatment, legal assistance, and report an offence to the CID all in one place. This results in an increase in GBV prosecutions and convictions. In 2013, 326 rapes were reported to the ‘one-stop’ centre in Hargeisa, Somaliland; the Attorney General’s office proceeded with 171 cases and 54 people were convicted. Where legal aid providers and the police, including the CID, have a good relationship, this results in more comprehensive, impartial and survivor-centred investigations.

In regions where there are higher number of women lawyers there is an increase in the number of reports, prosecutions and convictions for GBV offences. In Somaliland, there are 10 female Deputy Prosecutors and 75 women working in the legal, compared to only five women in 2008. In Puntland there are now 21 women lawyers, compared to one before 2012.

Engagement by legal aid providers with customary and religious leaders through regular consultations and workshops can result in an increase in their support for the provider’s activities. The significant support for Female Genital Mutilation (FGM) Bill in Puntland and the fatwa prohibiting FGM is an example of effective engagement.
Survivors are better protected where safe houses are established, particularly in South Central Somalia. The use of mobile phones, hotlines and radio programmes have improved survivors and community understanding of GBV and how to obtain legal services.

The recognition by the Somali government(s) through pledges, action plans and communiques that GBV is a real problem which needs to be addressed has also had an impact. Advocacy undertaken by legal aid providers and women’s groups has contributed to this step forward.

The achievements by legal aid providers are remarkable. However, there is more to be done if the system and practices are to be changed to provide legal redress, safety and security for survivors of GBV. The successes need to be replicated and expanded across Somalia and lawyers must be empowered to take proactive action to instigate or advocate for transformations.

It is critical that the international community provide long term and strategic support to develop legal aid providers’ capacity to push for systemic change. It is also essential that the international community does not reinforce negative and discriminatory practices relating to GBV in Somalia or allow them to turn into policies. There is no policy that only Madina Hospital in Mogadishu can issue medical certificates for evidence of rape in courts – it is practice. In the absence of effective civilian/administrative courts we should not strengthen military courts to hear cases of sexual violence. It is unconstitutional, not in the best interests of survivors and it is not international best practice.

Supporting the establishment of transparent and fair government institutions to address GBV offences is crucial and we see from the experience of Somaliland that this will ultimately effect long term change. However, this must not be at the expense of legal aid providers. The answer lies in a dual track process. If this is undertaken effectively, it could have a real impact on survivors of GBV and could prevent the commission of GBV offences.

Now is the time to capitalise on the commitment and enthusiasm of the legal community to address the impunity for perpetrators of GBV and to provide a system that promotes the best interest of the survivor. We hope that we can all work together to achieve this change.

Antonia Mulvey Executive Director,
Legal Action Worldwide
mulvey@legalactionworldwide.org

October 2014