Committee against Torture
Concluding observations on the initial report of Somalia *
1.The Committee considered the initial report of Somalia at its 1949th and 1952nd meetings, held on 8 and 9 November 2022, and adopted the present concluding observations at its 1969th meeting, held on 22 November 2022.
A.Introduction
2.The Committee expresses its appreciation to the State party for accepting the simplified reporting procedure and submitting its initial report thereunder, as this improves the cooperation between the State party and the Committee and focuses the examination of the report and the dialogue with the delegation. It regrets, however, that the State party’s report was submitted 28 years late.
3.The Committee appreciates having had the opportunity to engage in a constructive dialogue with the State party’s delegation, and the responses provided to the questions and concerns raised during the consideration of the initial report.
B.Positive aspects
4.The Committee welcomes the ratification of or accession to the following international instruments by the State party:
(a)The Convention on the Rights of the Child, in 2015;
(b)The Convention on the Rights of Persons with Disabilities, in 2019;
(c)The African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), in 2019;
(d)The United Nations Convention against Corruption, in 2021.
5.The Committee also welcomes the State party’s initiatives to revise its legislation in areas of relevance to the Convention, including:
(a)The enactment of the National Human Rights Commission Law, in 2016;
(b)The enactment of the National Disability Agency Law, in 2018.
6.The Committee commends the State party for its initiatives to amend its policies and procedures in order to afford greater protection of human rights and to apply the Convention, including:
(a)The establishment of the Ministry of Women and Human Rights Development, in 2013;
(b)The re-establishment of the National Commission for Refugees and Internally Displaced Persons, in 2013;
(c)The adoption of the National Action Plan on Ending Sexual Violence in Conflict, in 2014;
(d)The establishment of the Human Rights Interministerial Task Force.
C.Principal subjects of concern and recommendations
Definition and criminalization of torture
7.While taking note that torture is prohibited by article 15 (2) of the Provisional Federal Constitution, the Committee is seriously concerned that the State party has yet to establish a definition of torture as a specific offence. The Committee notes the State party’s statement that it is planning to complete a revision of its Penal Code of 1964 in 2023 and intends to include therein a definition of torture that is in accordance with article 1 of the Convention. However, it is concerned by reports according to which, in the absence of specific legislation, judicial authorities do not punish acts that could amount to torture. The Committee is concerned that there is no clear provision in the State party’s legislation to ensure that the prohibition against torture is absolute and non-derogable (arts. 1–2 and 4).
8. The Committee urges the State party to establish in its national law a definition and criminalization of torture that confirms fully with article 1 of the Convention, and that penalties for the crime of torture are commensurate with the gravity of the crime, as set out in article 4 (2) of the Convention. The State party should also ensure that the offence of torture is not subject to any statute of limitations. The State party should ensure that the principle of the absolute prohibition of torture is incorporated into its legislation and that it is strictly applied, in accordance with article 2 (2) of the Convention, and that, in accordance with article 2 (3) thereof, in no case may an order from a superior officer or authority be invoked as a justification for torture.
Fundamental legal safeguards
9.The Committee is concerned by reports about federal forces, particularly the National Intelligence and Security Agency, making arrests without warrants, detaining persons for prolonged periods, mistreating suspects during interrogations, keeping high-profile prisoners associated with Al-Shabaab in “safe houses” before officially charging them and not informing detainees of their right to bail. While taking note of article 34 of the Constitution, which enshrines the rights of suspects and detainees, the Committee notes with concern that these provisions do not contain specific criminal procedural safeguards to prevent torture and ill-treatment. In that regard, it regrets the lack of information available about the way in which the State party interprets the term “reasonable time” during which a person can be held in detention before being brought to trial (article 34 (2) of the Constitution); the measures taken to ensure the effective enjoyment by all detainees of their rights; the remedies available to detainees whose rights have been violated; and the measures taken to fight corruption among law enforcement officers and judiciaries. In the light of the information provided by the State party, the Committee observes a significant increase in the provision of free legal aid between 2016 and 2017, although it remains concerned at reports according to which free legal aid in the State party is still insufficient (arts. 2 and 16).
10. The State party should:
(a) Ensure that all persons arrested or detained are afforded, in law and in practice, all fundamental legal safeguards from the very beginning of their deprivation of liberty, including their rights to have prompt access to a lawyer and, if necessary, to free legal aid, particularly during the investigation and interrogation stages; to be informed, in a language that they understand, of their rights and of the reason for their arrest and the charges against them; to promptly inform a close relative or another third party about their arrest; to request and receive an independent medical examination free of charge or by a doctor of their choice; to challenge the lawfulness of their detention at any stage of the proceedings; and to be brought before a judge without delay;
(b) Ensure that all detainees are able to access effective mechanisms to complain about any failure to respect fundamental legal safeguards;
(c) Provide information to the Committee on the number of complaints received regarding failure to respect fundamental legal safeguards and on the outcome of such complaints, in the next periodic report.
National human rights institution
11.While taking note of the information provided by the State party regarding the National Human Rights Commission Law of 2016, which provides for the establishment of a national human rights institution in accordance with article 41 of the Constitution, the Committee regrets that the process for the establishment of the Commission has not yet been completed. In that regard, the Committee notes the State party’s commitment to ensure the establishment of the Commission before mid-2023 (art. 2)
12. The Committee urges the State party to expeditiously establish a national human rights institution in compliance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles) and ensure the provision of sufficient financial and human resources to enable it to carry out its mandate independently and effectively. In addition, the State party should ensure full consultation with and the participation of civil society when appointing officials to the national human rights institution; and that the institution ’ s mandate should include clear authority to conduct unannounced visits to any places in the territory of the State party in which any persons are, or could be, deprived of their liberty. The Committee invites the State party to seek technical and capacity-building support and advice from the Office of the United Nations High Commissioner for Human Rights.
Military court jurisdiction
13.The Committee notes with concern that military courts deal with and try civilian cases, including cases concerning juveniles, whereas such courts do not guarantee due process according to law, including providing defendants with legal representation and the right to appeal, and their proceedings lack transparency (art. 2).
14. The State party should consider adopting the necessary legislative amendments to remove the jurisdiction of the military courts over civilian cases and ensure that the ordinary courts alone have jurisdiction over cases involving serious violations of human rights, including acts of torture, committed against civilians. The State party should also introduce all the guarantees of fair trial in military courts, including legal representation for all defendants and the right to appeal.
Death penalty
15.The Committee notes that the State party has not abolished the death penalty. The Committee regrets the lack of information on the number of prisoners on death row, the average time spent on death row and on the legal provisions that allow for capital punishment. While taking note of assurances provided by the delegation according to which there are no executions in Somalia of persons aged less than 18 and of individuals convicted for political reasons, the Committee remains concerned by alternative reports according to which executions have been carried out without fair trials and that legislation provides for capital punishment for a number of offences, including political crimes, espionage and other acts deemed hostile to the State and crimes that involve endangering public safety. The Committee welcomes the State party’s assurances that it is intending to put an end to public executions and observes that such executions raise serious issues under the Convention (arts. 2, 11 and 16).
16. The Committee invites the State party to urgently discontinue public executions, to establish a moratorium on the death penalty with a view to its abolition and to take appropriate steps to commute all death sentences to prison sentences. The Committee further invites the State party to consider ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, and adopting legislative measures aimed at such an abolition.
Allegations of torture and ill-treatment
17.The Committee takes note of the establishment by the State party of the Police Oversight Committee to investigate abuses, including torture, committed by police officers and investigators. However, it is concerned about the continuing reports of police brutality and excessive use of force, threats, harassment and arbitrary arrests, especially against those suspected of having committed terrorist acts, human rights defenders and journalists. The Committee regrets that the State party could not provide answers to its questions on the conditions needed for the Police Oversight Committee to launch investigations into cases of torture, the number of cases investigated, the human and budgetary resources allocated to Police Oversight Committee and the way its mandate is coordinated with that of the Attorney General (arts. 12–13).
18. The State party should:
(a) Ensure that all acts of torture and ill-treatment, including excessive use of force, are promptly investigated in an impartial manner and that the suspected perpetrators are duly tried and, if found guilty, punished in a manner commensurate with the gravity of their acts;
(b) Ensure that the authorities launch investigations whenever there are reasonable grounds to believe that an act of torture or ill-treatment has been committed;
(c) Ensure that the Police Oversight Committee is provided with the necessary human and budgetary resources to investigate all alleged acts of torture;
(d) Ensure that, in cases of alleged torture or ill-treatment, suspected perpetrators are suspended from duty immediately for the duration of the investigation, particularly when there is a risk that they might otherwise be in a position to repeat the alleged act, carry out reprisals against the alleged victim or obstruct the investigation;
(e) Compile and publish comprehensive disaggregated statistical information relevant to all complaints and reports received of torture and ill-treatment, including information on whether such complaints led to investigations and, if so, by which authority, whether the investigations resulted in the imposition of disciplinary measures and/or prosecutions and whether the victims obtained redress, in a manner that will enable the State party to provide such information to the Committee and other relevant monitors in the future.
Counter-terrorism
19.The Committee is alarmed by allegations of torture and other serious human rights violations that occurred during anti-terrorist operations. In particular, according to information before the Committee, the army unit Danab, stationed in Balidoogle Airbase in Leego District, abducted and tortured a hundred young men between 2018 and 2022, carried out extrajudicial executions of 25 other young men and detained many young men in secret prisons without charges or trials. The Committee is also concerned at reports of the use of secret detention centres and torture by the National Intelligence and Security Agency and of acts of torture by the Somali National Army’s special forces (arts. 2, 11–13 and 16).
20. The Committee calls upon the State party to:
(a) Ensure that counter-terrorism laws comply fully with international human rights standards, including through the provision of all fundamental legal safeguards outlined in paragraph 13 of the Committee ’ s general comment No. 2 (2007), and that these safeguards are applied in practice;
(b) Ensure that all allegations of extrajudicial executions, torture and other serious human rights violations committed against persons accused of terrorism or acts against State security by national security services and by the Somali National Army, including the Danab unit stationed at Balidoogle Airbase in Leego , are promptly, impartially and effectively investigated and that perpetrators are prosecuted and duly punished;
(c) Ensure that no one is detained in a secret detention centre, as such facilities are per se a breach of the Convention and should be closed. The Committee urges the State party to investigate and disclose the existence of any such facilities and the authority under which any of them has been established;
(d) Review the use of incommunicado detention with a view to its abolition or limited application as a last resort in accordance with the law.
Confessions obtained under torture or ill-treatment
21.While taking note of the legal safeguards enshrined in the Criminal Procedure Code establishing the inadmissibility of evidence obtained under torture and other coercive measures, the Committee is concerned by reports of confessions being obtained under torture and ill-treatment by the National Intelligence and Security Agency and admitted by courts (art. 15).
22. The State party should adopt effective measures to guarantee that all individuals have access to effective remedies to complain about the obtention of confessions or statements made under torture or other ill-treatment and that all coerced confessions or other statements are inadmissible in practice, except when invoked against a person accused of torture as evidence that the statement was made. The State party should also ensure that judges receive training on how to detect and investigate cases in which confessions and other statements are obtained under torture. The Committee also invites the State party to carefully consider the Principles on Effective Interviewing for Investigations and Information Gathering (the Méndez Principles).
Conditions of detention
23.The Committee takes note of the information provided by the State party regarding its cooperation with the International Committee of the Red Cross on improving conditions in prisons. Yet, it is concerned that, despite the State party’s efforts in this regard, including the opening of the Mogadishu Prison and Courts Complex in 2019, overcrowding and poor prison conditions continue to be reported. Particularly dire conditions are reported in urban prisons following mass arrests and in Jubaland. The Committee notes with concern reports about prisons in areas controlled by Al-Shabaab having life-threatening conditions. In particular, the Committee is concerned about the reported lack of adequate sanitation and hygiene, the absence of medical care, the poor quality of food and the lack of clean drinking water in prisons across the territory of the State party. In that regard, the Committee regrets that the State party did not provide information about the concrete steps taken to improve the situation in prisons and to ensure that prisoners have access to adequate and sufficient food despite the two-year drought experienced by the State party. Furthermore, the absence of centralized prison registers is another issue of serious concern. In addition, the Committee is concerned at reports indicating that the strict separation of minors from adults in detention facilities, and of women on remand from those already convicted, is not always guaranteed. Lastly, it regrets that the State party did not provide the requested information about inter-prisoner violence and deaths in custody (arts. 2, 11 and 16).
24. The State party should:
(a) Intensify its efforts to improve the conditions of detention and alleviate overcrowding of penitentiary institutions, including through the application of non-custodial measures. In that connection, the Committee draws the State party ’ s attention to the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules );
(b) Guarantee that the basic needs of persons deprived of liberty are satisfied, including with regard to water, food and sanitation, and ensure proper medical and health care of prisoners, in accordance with rules 24–35 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules );
(c) Ensure the separation of pretrial detainees from convicted prisoners, including in women ’ s prisons, and minors from adults, in all places of detention;
(d) Establish a computerized central register of detention regarding all persons at all stages of their deprivation of liberty, accessible to any competent authority, and inform the Committee on the type of information recorded and on specific measures taken to ensure accurate record-keeping as an important safeguard against incommunicado and arbitrary detention and enforced disappearance;
(e) Collect information about ill-treatment committed in places of deprivation of liberty in territories under the control of Al-Shabaab and facilitate documentation of such abuses by other actors.
Monitoring of detention facilities
25.The Committee takes notes of monitoring visits conducted by the Parliamentary Upper House (Senate) Committee on Human Rights to prisons. However, it remains concerned at the lack of systematic oversight of places of detention by national and international monitors (arts. 2 and 11).
26. The State party should consider ratifying the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and ensure systematic oversight of all places of detention by national and international monitors. The State party should ensure independent, effective and regular monitoring and inspection of detention facilities without prior notice, and enable monitors to identify conditions, treatment or conduct in places of deprivation of liberty amounting to torture or ill-treatment, carry out confidential interviews with detainees and report on their findings to the authorities concerned.
Impunity
27.The Committee is concerned about reports of widespread impunity for acts of torture committed by police and military officers. In that connection, it regrets that the State party did not provide the requested information on complaints mechanisms available to victims of torture, the efforts taken to protect complainants and witnesses, and the legal framework governing disciplinary and criminal proceedings, The Committee further regrets the absence of disaggregated statistical data on complaints against torture and ill-treatment (arts. 11–13 and 16).
28. The State party should ensure that effective complaints mechanisms are available to all victims of torture and ill-treatment, that victims and witnesses are protected against retaliation, that prompt, impartial and effective investigations are carried out into all allegations of torture and all-treatment and that all perpetrators are subject to criminal punishment and/or disciplinary sanctions commensurate with the gravity of the offences. The State party should also compile and publish comprehensive disaggregated statistical information relevant to all complaints and reports received of torture or ill-treatment, including information on whether such complaints led to investigations and, if so, by which authority, whether the investigation resulted in the imposition of disciplinary measures and/or prosecutions and whether the victims obtained redress.
Gender-based violence
29.The Committee takes note of the State party’s efforts to combat gender-based violence, including the establishment of the Ministry of Women and Human Rights Development, the adoption of the National Action Plan on Ending Sexual Violence in Conflict and the drafting of a sexual offences bill. However, the Committee is concerned by high rates of sexual and gender-based violence and domestic violence against women and children committed with near-total impunity. The Committee recalls that, between 1 August 2019 and 30 June 2020, the United Nations recorded hundreds of incidents of sexual violence against women and girls attributed to unidentified armed men, clan militiamen, Al-Shabaab and Somali police and armed forces. Most recently, the Committee has received allegations of gender-based violence committed by Al-Shabaab, Danab forces, the forces of the President of Jubaland, Ahmed Mohamed Islam “Madobe”, and the Kenyan defence forces. The Committee is also concerned by reports according to which families and victims prefer complaining to traditional courts, where damages can be awarded to the male family member, or the perpetrator is requested to marry the victim. In addition, the Committee is gravely concerned by the extremely high rate of female genital mutilation in the country and the lack of legislation explicitly criminalizing this practice (arts. 2, 4, 12 and 16).
30. The State party should:
(a) Take effective measures to ensure that all cases of gender-based violence, especially those cases involving actions or omissions by State authorities or other entities that engage the international responsibility of the State party under the Convention, are thoroughly investigated, that all perpetrators are prosecuted and, if convicted, punished appropriately and that the victims or their families receive full rehabilitation and redress, including adequate compensation;
(b) Strengthen its efforts to eliminate female genital mutilation. The Committee recommends that the State party consider adopting legislation criminalizing female genital mutilation, along with launching an awareness-raising campaign on the dangers and prohibition of female genital mutilation;
(c) Document allegations of gender-based violence committed by Al-Shabaab.
Trafficking in persons and other contemporary forms of slavery
31.The Committee is concerned by reports of forced marriages, child marriages and sex trafficking and by the absence in domestic legislation of provisions prohibiting child marriage and offering children for commercial sex (art. 16).
32. The State party should ensure that its legislation prohibits all types of contemporary forms of slavery, including trafficking in persons, and forced and child marriage. The Committee recommends that the State party consider ratifying the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime.
Corporal punishment of children
33.The Committee observes with concern that corporal punishment of children is widely accepted and not prohibited in the home, alternative care settings, day care and schools, and detention centres (art. 16).
34. The State party should take measures to eliminate the practice of corporal punishment of children in line with the recent recommendations of the Committee on the Rights of the Child.
Hate crimes
35.The Committee regrets that the State party has not presented information on measures taken to prevent and combat hate crime, including violence against individuals on grounds of their real or perceived sexual orientation or gender identity (art. 16)
36. The State party should take measures to prevent and prosecute criminal acts motivated by discrimination, intolerance, hatred or negative stereotype by: (a) ensuring effective investigation, prosecution and punishment of perpetrators; and (b) collecting detailed information and statistics on the number and type of hate crimes, on the administrative and judicial measures taken to investigate and prosecute such crimes and on the sentences imposed. The State party should also provide redress to the victims, including rehabilitation.
Non-refoulement and illegal extraditions
37.The Committee is seriously concerned at reports that the State party may have acted in breach of the principle of non-refoulement during the period under review. While taking note of the provisions of article 37 (1) of the State party’s Constitution, which enshrines the non-refoulement principle, the Committee regrets that the State party did not provide information on the provisions of domestic legislation making the non-refoulement principle enforceable, such as mechanisms for appealing deportation decisions with suspensive effect. It also regrets that the State party did not provide statistics on the number of expulsions, deportations and extraditions. The Committee is also concerned at reports that the State party illegally extradited a person accused of terrorism to Ethiopia in violation of article 36 (1) of its Constitution, which requires that extraditions can only be made on the basis of an international treaty or convention, whereas the State party does not have an extradition agreement with Ethiopia. The Committee notes that, according to the State party, its domestic law only allows for extraditions to States with which extradition agreements have been concluded (arts. 3 and 8).
38. The State party should ensure that, in law and in practice, persons may not be expelled, returned or extradited to another State where there are substantial grounds for believing that they would be in danger of being subjected to torture or ill-treatment. The State party should make sure that all extraditions are conducted in accordance with the requirements of its Constitution and the extradition agreements to which it is a party.
Asylum-seekers, refugees and internally displaced persons
39.The Committee takes note of the establishment of the National Commission for Refugees and Internally Displaced Persons and the steps taken to adopt a national policy on refugees-returnees and internally displaced persons. It is, however, concerned about reports of internally displaced persons facing serious abuses, including sexual and gender-based violence, repeated cycles of forced evictions and limited access to health care, food and water. The Committee regrets the lack of statistics, disaggregated by age, sex and location, on the number of internally displaced persons and on the number of persons evicted from camps. The Committee regrets that the State party did not provide information on the human and budgetary resources allocated to camps for internally displaced persons. The Committee also regrets the lack of statistical information, disaggregated by age, sex and country of origin, on persons who have sought and been granted asylum (arts. 3 and 16).
40. The State party should strengthen the protection of asylum-seekers, refugees and internally displaced persons and prevent them from being mistreated. In particular, the State party should allocate sufficient human and financial resources, in cooperation with international partners, to camps for asylum-seekers, refugees and internally displaced persons to ensure their protection from abuses and access to sufficient and adequate food, water and sanitation and medical and psychological care. The State should make sure that no illegal evictions take place and those housed in camps are fully informed about their rights.
Training
41.The Committee takes note of the information provided by the State party about training programmes for law enforcement officials, judges, prosecutors and border guards. It regrets, however, the lack of responses from the State party to some of its specific questions in relation to the training of judges and prosecutors and forensic and medical staff, such as whether the available training programmes include a reference to the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol, as revised) and whether the State party has developed a methodology to assess the effectiveness of the existing training programmes, including as regards reducing the number of cases of torture and ill-treatment (arts. 2, 10 and 16).
42. The State party should:
(a) Provide instruction and further develop in-service training programmes to ensure that all public officials, in particular law enforcement and national security officers, military personnel, border guards, prison staff, judges and prosecutors, are well acquainted with the provisions of the Convention, especially the absolute prohibition of torture, and that they are aware that violations will not be tolerated and will be investigated and that those responsible will be prosecuted and, on conviction, appropriately punished;
(b) Ensure that all relevant staff, including forensic and medical staff, judges and prosecutors, are specifically trained to identify and document cases of torture and ill-treatment and that they report them to the respective competent authorities, in accordance with the Istanbul Protocol (as revised );
(c) Develop and implement a methodology to assess the effectiveness and impact of educational and training programmes relating to the Convention and the Istanbul Protocol (as revised).
Redress
43.The Committee regrets that the State party’s delegation did not provide specific information on redress, including the applicable legal framework and compensation measures ordered by the national courts and other State bodies and actually provided to the victims of torture or to their families. The Committee also regrets that the State party has not provided information on reparation programmes or on measures taken to support and facilitate the work of non-governmental organizations that seek to provide rehabilitation to victims of torture or ill-treatment (art. 14).
44. The State party should work to ensure, including through international cooperation, that all victims of torture and ill-treatment obtain redress, including the enforceable right to fair and adequate compensation and the means for as full a rehabilitation as possible. The Committee draws the attention of the State party to general comment No. 3 (2012), in which the Committee explains the content and scope of the obligations of States parties to provide full redress to victims of torture. The State party should compile and provide the Committee with information on redress and compensation measures, including the means of rehabilitation ordered by the courts or other State bodies and actually provided to victims of torture or ill-treatment.
Follow-up procedure
45. The Committee requests the State party to provide, by 25 November 2023, information on follow-up to the Committee ’ s recommendations on the definition and criminalization of torture, the national human rights institution and investigations into the alleged acts of torture (see paras. 8, 12 and 18 (a) above). In that context, the State party is invited to inform the Committee about its plans for implementing, within the coming reporting period, some or all of the remaining recommendations in the concluding observations.
Other issues
46. The Committee recommends that the State party consider making the declaration under article 22 of the Convention recognizing the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by the State party of the provisions of the Convention.
47. The State party is requested to widely disseminate the report submitted to the Committee and the present concluding observations, in appropriate languages, through official websites, the media and non-governmental organizations and to inform the Committee about its dissemination activities.
48. The State party is invited to submit a common core document in accordance with the requirements contained in the harmonized guidelines on reporting under the international human rights treaties.
49. The Committee requests the State party to submit its next periodic report, which will be its second periodic report, by 25 November 2026. For that purpose, and in view of the fact that the State party has agreed to report to the Committee under the simplified reporting procedure, the Committee will, in due course, transmit to the State party a list of issues prior to reporting. The State party ’ s replies to that list of issues will constitute its second periodic report under article 19 of the Convention, which the Committee urges the State party to submit in a timely fashion.