Issue No. 556

The Death Penalty in Somalia
 

Somalia’s Provisional Constitution, Article 13, guarantees its citizens the right to life. Yet the Somali Penal Code, enacted in 1962, used by all of Somalia, as well as the semi-autonomous Federal Member State of Puntland, and de facto independent Somaliland, retains the death penalty for some 20 identified crimes. In addition to murder, these include crimes against the state—treason, espionage, bearing arms against the state, and disclosure of state secrets, as well as crimes endangering public safety. Although an amended penal code has been under consideration since 2017, the current state of that draft as pertains to the death penalty remains unclear. Under law, Somalia executes by shooting, in a non-public venue, though this has not always been respected. Somalia is also prohibited from executing anyone under the age of 14, though this has also been violated.
 
Somalia’s recorded executions fell by 71%, and its recorded death sentences fell by 62% from 2021 to 2022. Somalia is believed to have carried out 6 executions and handed out 10 death sentences in 2022, according to Amnesty International. One particularly concerning case in 2022 saw four teenagers sentenced to death by a military court in Puntland for their involvement in armed groups. Defendants in these military courts are often tried without legal representation or the right to appeal. Whether ‘justice’ is served in these courts is highly questionable. 
 
This was not the first time authorities in Puntland have handed down death sentences to teenagers. In April 2017, five boys aged between 14 and 17 were executed after being convicted of involvement in the Al-Shabaab assassinations of three senior Puntland officials. Serious concerns were raised at the time about the veracity of their confessions with family members reporting that the boys were tortured into professing guilt. Executing children on the basis of questionable evidence is reprehensible.
 
Somalia has already exceeded its numbers for 2022 in early 2023—with at least one soldier sentenced to death in January, four soldiers executed in February in Mogadishu, and 13 Al-Shabaab and Daesh militants, as well as 6 soldiers, executed in March in Garowe in Puntland, all for murder or terrorist activities. A further 139 people remain on death row, according to the World Coalition Against the Death Penalty, sitting in limbo as they await possible execution. 
 
There is no definitive evidence that the death penalty serves as a deterrent to violent crime. There is, however, a great deal of field evidence in Somalia that militant deaths at the hands of military forces generate martyrs, and martyrs raise recruits for Al-Shabaab and other violent extremist organisations.
 
Many countries have taken these lessons to heart. The African Union reported that only 3 of 55 countries carried out executions in Africa in 2022— Egypt and South Sudan, in addition to Somalia. While 23 countries in Sub-Saharan Africa have formally abolished the death penalty, including Djibouti, Rwanda and South Africa. Kenya is abolitionist in practice. But Somalia, and Ethiopia, remain legally retentionist. 
 
It may be understandable that Somalia has not given consideration of the death penalty high priority while it remains immersed in planning and carrying out armed offensives against Al-Shabaab in its central and southern regions, but there are reasons why it should. First, it has nothing to lose and everything to gain by demonstrating to the international community its intention to act humanely towards perpetrators of all kinds within its evolving justice system. Second, it can only benefit from avoiding actions on the part of Somali authorities that might encourage new militant recruits. And, perhaps most important, rejecting the death penalty means respecting the lives of all Somalis. It shows the Somali public that the Federal Government of Somalia cares about justice, and exercises mercy.
 
Balancing justice and peace is a nuanced and complex endeavour. There is a sense among some that if Al-Shabaab is to be disrupted, some form of discussion will eventually have to take place, as Somalia’s President Hassan Sheikh Mohamed admitted in April. Resolution of armed conflict in Somalia may require pardoning or commuting the sentences of those who have committed heinous crimes. Think back to the 1998 Good Friday Agreement that pardoned terrorists on either side of the republican-loyalist divide and brought peace to Northern Ireland. If the Federal Government of Somalia is serious about disrupting Al-Shabaab and ensuring sustainable peace, it should begin to prepare the country for difficult choices; one immediate step it can take is to abolish the death penalty. 
 
All of that said, no one expects Al-Shabaab to be merciful. International organisations cannot possibly track the number of extrajudicial executions carried out by violent extremist organisations in Somalia and the Horn of Africa writ large; there are simply too many. To Al-Shabaab leaders, death is simply the price to be paid for disobeying their ideology—or their extortion, or simply the price to be paid for being ‘infidels.’ But is this horrific example one to which an aspiring nation-state should compare itself? As Bernice King, daughter of US civil rights leader Martin Luther King, said, “Allowing the state to kill its citizens for any reason diminishes our humanity and sets a sadistic and dangerous precedent that is unworthy of a civilised society.”