Somalia: Constitutional Proposals Put Children at Risk

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(Nairobi) – Somalia’s parliament should reject any proposed constitutional amendments that would weaken rights protections for children, Human Rights Watch said today.

On March 30, 2024, both houses of parliament are expected to vote on the proposed amendments, which would reduce the age of majority – increasing the risk of child marriage and lowered juvenile justice standards – and possibly permit certain forms of female genital mutilation.

“Somalia’s parliament should resist efforts to weaken constitutional protections for children, especially girls,” said Laetitia Bader, deputy Africa director at Human Rights Watch. “Somalia’s donors should press the government to carry through on its claims that it is taking significant steps to meet its international human rights commitments.”

Somalia’s 2012 provisional constitution has been under review for nearly a decade, but efforts to finalize the review have picked up since late 2023. In February, the Independent Constitutional Review and Implementation Commission sent parliament suggested amendments to the provisional constitution’s first four chapters, which includes articles on the age of majority and on the criminalization of female genital mutilation.

Under Somalia’s provisional constitution, a child is defined as a person under the age of 18. The proposed amendment states that the term child “refers to a person under the age of 15 years of maturity while the age of responsibility is 18 years, as defined in the law of the Federal Republic of Somalia.” Adopting this standard would be contrary to Somalia’s obligations under the United Nations Convention on the Rights of the Child, which defines a child as anyone under 18.

The proposed amendment to set the age of “maturity” at 15 would place girls in particular at greater risk of child marriage, which affects their health, notably reproductive health, their access to education, and their protection from other forms of abuse, Human Rights Watch said. Girls Not Brides, an international group that works to prevent child marriage, has reported that 17 percent of girls in Somalia were married before by 15, and 36 percent by 18.

The proposed amendments also include physical development as the determining factor in a person’s majority. This is contrary to international standards, which call upon governments to make determinations of adult competence based on “emotional, mental and intellectual maturity,” and not physical maturity.

The proposed amendments distinguish the 15-year age of maturity from an 18-year age of responsibility, suggesting that everyone under 18 would remain protected by juvenile justice standards. However, in practice, this new age of majority risks reinforcing existing ambiguities in Somali law around the age of majority that could heighten children’s vulnerabilities, Human Rights Watch said. Children in Somalia have long been subject to arrest, detention, and custodial sentences as adults, including in capital cases.

During President Hassan Sheikh Mohamud’s first term in office, Human Rights Watch found that authorities across Somalia had treated boys suspected of affiliation with the armed Islamist group Al-Shabab as adults in violation of international law. Intelligence agencies threatened, beat, and in some cases tortured boys in custody. Military courts have also tried children as adults.

The proposed constitutional amendments also raise concerns regarding other harmful practices, such as female genital mutilation (FGM). The UN Children’s Fund (UNICEF) has reported that Somalia has one of the highest rates of FGM in the world with 99 percent of girls and women ages 15 to 49 having undergone genital cutting.

Somalia’s provisional constitution is ambiguous with respect to female genital mutilation. It states that: “Female circumcision is a cruel and degrading customary practice and is tantamount to torture. The circumcision of girls is prohibited.” However, the provision does not define female circumcision, which may or may not be interpreted to mean the same thing as female genital mutilation.

The constitutional review should ensure that a complete ban on all forms of FGM is enshrined in the constitution, which would facilitate the government’s development of a legislative and policy framework to eradicate all forms of FGM, Human Rights Watch said.

The World Health Organization (WHO) has classifed four types of FGM. All forms of female genital mutilation are a form of violence and discrimination against women and girls, involving the partial or complete removal of external female genitalia or injuring female genital organs without medical cause. It has no health benefits and leads to immediate and long-term harm for women and girl’s physical, mental, sexual, and reproductive health, including death in some cases.

Human Rights Watch research in various countries across the world shows that women and girls experienced fear before being cut, and the cutting had a serious toll on their health, including excessive bleeding, shock, infection, complications during childbirth, complications during menstruation, lack of or reduced sexual pleasure, infertility, and other long-term gynecological issues. Depression, anxiety, post-traumatic stress disorder, and psychosexual problems are also common.

UN human rights treaty bodies have repeatedly called on Somalia to pass legislation criminalizing all forms of this harmful practice. In 2021, the Somali government committed during its review by the Committee on the Rights of the Child to “eradicating traditional harmful practices.”

“Somalia’s parliament appears poised to adopt amendments to the country’s constitution that could subject generations of children to harmful practices,” Bader said. “Constitutional reform should instead assist the government to better protect the rights of children.”