Issue No. 964

Part II/The Human Rights Deficit in Somalia's New Penal Code  

For the first time in over six decades, Somalia has overhauled its foundational criminal law - the 1962 Law No. 5. Now awaiting parliamentary and presidential approval, the Draft Somali Penal Code (SPC) nonetheless struggles with multiple hurdles and will likely face significant objection, not least, from Somalia’s Western partners and liberal-minded younger generation of Somalis disappointed with the new text’s failure to break away from its historical illiberal roots.  

This short briefing on the SPC, the second and final instalment, offers a critical human rights assessment of the SPC and reveals that the text delivers only superficial modernisation, maintains a disappointing continuity with archaic legal frameworks and fails to introduce the deep reforms needed to firmly anchor fundamental human rights in statute. 

Context

The trajectory of the draft Somali Penal Code (SPC) cannot be evaluated in isolation. It directly mirrors Somalia’s state-building challenges and the fragility of its political system. Today, every core realm of governance - from institutional design and rule-making to electoral and legal policy - is fiercely contested. It is within this volatile environment that Villa Somalia is attempting to pass the draft SPC. While the administration will undoubtedly use its political incumbency and clout to engineer parliamentary approval, top-down pressure alone cannot guarantee long-term viability. Without broad sociopolitical buy-in, the draft code cannot achieve lasting acceptance as the definitive law of the land. 

This is further aggravated by the immediate hurdle of unideal timing and eroding executive legitimacy. In May 2026, the administration of President Hassan Sheikh Mohamud unilaterally extended its tenure by one year, severely deepening domestic polarisation. This extension has precipitated a fundamental constitutional dilemma: can an administration deemed to be illegally in office by most political parties legitimately enact foundational new laws?

This dilemma reflects another related problem: a broader trend of creeping authoritarianism that now appears entrenched, marked by top-down policy-making, tightly controlled reform processes, and a weak commitment to consensus politics. Between 2024 and 2026, the incumbent administration pushed through major constitutional amendments to shift Somalia toward a semi-presidential system and weaken the federal system - manoeuvres explicitly designed to benefit the ruling Justice and Solidarity Party (JSP), which provoked a backlash from the opposition Somali Future Council (SFC) and two regional states – Puntland and Jubaland. The SFC and its regional allies still insist these constitutional changes are not valid.

Somalia's competitive politics have long been characterised by the absence of a broad, negotiated national political settlement, with the political class often reliant on piecemeal reforms and unstable, short-lived compacts. This has a direct bearing on policy-making, with successive governments failing to sufficiently ring-fence reform and modernisation initiatives from fractious, partisan political dynamics. This is especially strongest in the justice and electoral reform realms, resulting in a continuous cycle of unfinished reform tasks that are repeatedly deferred - effectively kicking the reform can down the road. 

Because the proposed penal code is designed to align with the newly revised constitution - which itself remains unratified by popular referendum and subject to intense political disputes - a profound question of legal validity arises. If the foundational constitutional document lacks broad public and political consensus, then, surely, any statutory reform built upon it must inherit that same deficit. Consequently, the central question hanging over Somalia's ongoing judicial modernisation is whether the SPC can ever be viewed as a genuinely valid, legitimate, and legally binding text.

Civil liberties 

The historic finalisation of the Somali constitution and the development of the draft SPC, no doubt, represent the twin pillars of Somalia's legal modernisation. However, severe legal friction occurs where the constitution's guarantees of civil liberties clash directly with the SPC’s punitive, colonial-era measures.

For example, Chapter 3 of the draft SPC creates a dangerous legal overlap by grouping legitimate national security threats - such as espionage, subversion, and treason - with ordinary, everyday civic expression. It fails to clearly separate state protection from civilian activities like independent journalism, opposition politics, diaspora commentary, and whistleblowing. Rather than requiring proof of actual, measurable harm to the nation, criminal liability is tied to vague, undefined concepts like injuring "national interest," "reputation," "public confidence," or the "status" of officials. Because the state retains the sole authority to define and measure these abstract terms, the law ceases to function as a public shield. Instead, it becomes an expansive instrument of top-down political control. 

Economic data leaks, wartime gag 

Several articles within the draft code criminalise free speech based on subjective consequences that are impossible to define objectively or predict in advance. Crucially, these provisions do not require the speech in question to be false, meaning that accurate, truthful reporting can be severely punished. 

Article 158, for example, punishes the dissemination of domestic economic data with 10 to 20 years in prison if a state official decides it reduces "national financial confidence." Accurate reporting on rising inflation, national debt, or currency instability could trigger this penalty.  

Article 163 subjects citizens abroad to criminal exposure if they circulate information regarding Somalia’s internal situation that a bureaucrat deems "harms the nation’s reputation" or "adversely affects national interests." 

Article 157 criminalises any wartime speech or reporting deemed an "exaggeration" that harms the vaguely defined national interest. 

Article 148(2) criminalises sharing information that completely lacks hostile intent, but is merely judged "likely to harm the country politically or economically."

The fundamental flaw running through these national security provisions is the total absence of two standard legal safeguards: a requirement of specific intent to cause harm, and an objective, evidence-based threshold of actual damage. Without these checks, criminal prosecution depends entirely on the subjective, or political reaction of state authorities rather than on the actual conduct or malice of the speaker. Consequently, citizens cannot know in advance whether reporting a basic factual reality will be viewed as a public service or a serious crime. This total unpredictability creates an institutional chilling effect, forcing rational journalists, analysts, and citizens to self-censor.

Libel and defamation 

A separate, highly punitive cluster of articles explicitly transforms standard criticism of public figures into a criminal insult against their personal dignity, systematically shielding powerful individuals and state bodies from accountability. 

And just a few notable examples: Article 144 explicitly punishes "public defamation to the dignity or status of the President."; Article 221 & 221(2) criminalises the defamation of any public official performing their duties, explicitly extending the ban to drawings, physical gestures, and even private statements; Articles 224 & 170 cover perceived insults to the "reputation or status" of political, administrative, or judicial institutions, punishing anyone who defames a national institution either directly or indirectly; Article 308 penalises any general insult affecting honour or dignity, explicitly including the attribution of facts that the state labels as false.

These defamation provisions are entirely incompatible with principles of open political debate. First, none of the drafted articles provides a legal defence of truth or public interest; a well-founded, factually accurate allegation of corruption or misconduct against an official remains fully punishable. Second, they completely invert the democratic norm that public officials must tolerate higher scrutiny than private citizens. Third, by criminalising indirect remarks and private conversations, they extend state surveillance and punishment into the private lives of the Somali populace. 

International conventions 

When measured against international treaties to which Somalia is a party - such as the International Covenant on Civil and Political Rights (ICCPR), the UN Convention Against Torture (CAT), and the African Charter on Human and Peoples' Rights (ACHPR) - the emerging legal framework yields a highly contradictory report card.

On paper, certain international benchmarks are met. The framework aligns with UN benchmarks by formally advancing the prohibition of Female Genital Mutilation (FGM) and prohibiting the recruitment of child soldiers. It also satisfies International Labour Organization (ILO) standards by formally codifying the right to form trade unions, the right to strike, and workplace gender equality.

However, major international benchmarks are completely missed. The SPC fails to abolish capital punishment, retaining the death penalty while merely attempting to limit its scope to intentional killing. Furthermore, the code lacks definitive language that completely bars the execution of minors, leaving a severe gap in juvenile protection. Simultaneously, weak civilian judicial infrastructure allows military courts to routinely try civilian terrorism cases, directly violating the fair, neutral trial guarantees of Article 14 of the ICCPR. 

Conclusion           

Somalia’s draft penal code is fundamentally incompatible with liberal governance norms and breaches fundamental human rights. By replicating archaic laws rooted in the country’s authoritarian past and blending them with a conservative Sharia model, the new text clashes with the secular foundations of Western jurisprudence. This creates a profound challenge, especially for international partners supportive of Somalia’s democratic state-building and justice reform. If international donors demand strict adherence to universal liberal norms, such as gender equality, free expression, and the total abolition of the death penalty and degrading physical punishments, they risk being accused of seeking to impose a perceived ‘liberal agenda.’

Conversely, if the Somali state enacts a legal code rooted deeply in a stricter version of Sharia to encourage local buy-in, it codifies illiberal practices that systematically violate international treaties and marginalises women and other vulnerable groups. This paradox leaves Somalia’s legal modernisation trapped in an ideological stalemate. So far, it remains unclear how the current government (or its successor) will navigate this dilemma: whether it can compromise its international standing to achieve domestic stability, or enforce abstract liberal ideals at the expense of its own cultural and political cohesion.