COMMON ANALYSIS
Last update: June 2022
*Minor updates: August 2023

This profile refers to people who are accused of ordinary crimes (e.g. crimes against property, life, physical integrity). This profile does not intend to cover acts which are not criminalised according to international standards (see for example profile 3.12. LGBTIQ persons). It also refers to people who are accused of treason or espionage by the Somali authorities, as well as of crimes that endanger public safety.

COI summary

Administration of justice in Somalia relies on customary law (xeer), Sharia law and the Penal Code. State law is more likely to be implemented in urban settings, while in rural areas it has virtually no relevance, with cases adjudicated solely on the basis of customary law or Sharia. However, these legal traditions are important even in large cities, with many issues dealt with on the basis of these alternative forms of law, rather than state law [Targeting, 3.2., p. 52].

The official justice system handles in principle all cases, civil and criminal [Actors, 2.3., p. 28]. For example, rape is punishable with 5 to 15 years imprisonment under the Penal Code [Targeting, 2.2., p. 33].

Under the xeer, a collective payment of blood compensation (diya) is applied for cases of death, physical harm, theft, rape and defamation [Actors, 2.3.2., p. 31].

Based on Sharia, in cases of murder or bodily harm, retaliation (qisas) may only be demanded if the offence was proved to be intentional. But, even in these cases, general rules of evidence are stricter than otherwise. Moreover, after the Islamic judge’s assessment, victims are given the opportunity to choose between retaliation (qisas) and compensation (diya). Reportedly, Somalis seem to prefer compensation over retaliation in cases of bodily harm, and retaliation instead in cases of intentional homicide. [Actors, 2.3.3., p. 34]

Sharia courts, or Islamic scholars or judges, for the so-called hadd crimes, including theft and highway robbery, may impose corporal punishments. However, traditionally the application of hadd has been severely limited by the strict requirements for evidence [Actors, 2.3.3., p. 34]. For the definition and examples of hadd crimes, see profile 3.8. Individuals (perceived as) contravening social or religious laws/tenets.

Al-Shabaab courts, applying Sharia law in its strictest form in the territory controlled by the militant group [Actors, 4.4., p. 66], as well as beyond it, through mobile courts, complement this picture [Actors, 2.3., p. 28].

In all territories controlled by Al-Shabaab, Sharia is not only implemented strictly, but also violently and punishments can include corporal punishments in case of theft (hand amputation), banditry and drug abuse (punished with lashing), as well as drug dealing (punished with lashing). [Actors, 4.4., p. 66]

The government of Somalia and other Somali state actors continue to impose and carry out death sentences for political crimes, such as treason and espionage, as well as crimes that endanger public safety [Actors, 2.3.4., p. 35]. Reprisal against criminal gangs also led to extrajudicial killings in Mogadishu [Security 2023, 1.2., p. 23, 77].

For more information on death penalty or execution in Somalia, see section 4.1. Article 15(a) QD: death penalty or execution.

Conclusions and guidance 

   Do the acts qualify as persecution under Article 9 QD?   

In general, prosecution through the official justice system, would not amount to persecution. Capital and corporal punishments, irrespective of the nature of the crime, are considered to amount to persecution. Violations of the due process of law and/or disproportionate or discriminatory punishments could also amount to such severe violations of basic human rights.

   What is the level of risk of persecution (well-founded fear)?   

The individual assessment of whether there is a reasonable degree of likelihood for the applicant to face persecution in the whole of Somalia, including South-Central Somalia, Puntland and Somaliland, should take into account individual circumstances, such as the legal framework and the justice system applied, the nature of the crime for which they may be accused and the envisaged punishment, etc.

   Are the reasons for persecution falling within Article 10 QD (nexus)?   

In the case of individuals accused of ordinary crimes, there would in general be no nexus to a Convention ground. However, where a well-founded fear of persecution is established in relation to the envisaged punishment under Sharia law, persecution may be for reasons of religion. In individual cases, the prosecution may (also) be motivated by another Convention ground or initiated or conducted on a discriminatory basis related to a Convention ground.

With regard to treason, espionage or crimes that endanger public safety, persecution may be for reasons of (imputed) political opinion.

Where no nexus is substantiated, see sections 4.1. Article 15(a) QD: death penalty or execution and 4.2. Article 15(b) QD: torture or inhuman or degrading treatment or punishment, respectively.

Exclusion considerations could be relevant to this profile (see chapter 7. Exclusion).