Somalia to debate abortion, circumcision in constitution
Friday 27 Jul 2012 11:30 a.m.
Somali prime minister Abdiwali Mohamed Ali waves as he arrives at a football stadium (Photo: Reuters)
By Abdi Guled and Jason Straziuso
Somali leaders are debating a new constitution that protects the right to have an abortion to save the life of the mother, and an international law group says the draft guarantees more fundamental rights than the US Constitution.
That is one reason some women are celebrating the document and hardline conservatives are protesting some of its more liberal promises.
But some of the rights introduced, such as the right to medical care or clean, potable water, will be hard for the government to guarantee in a country where basic needs like food are not always met. While other elements, such as banning the circumcision of girls, a practice the UN says more than 95 percent of women have undergone, will take years to banish.
Somali leaders - 825 of them - began a nine-day meeting on Wednesday to examine, debate and vote on the constitution, a document that's been years in the making. A vote by the group, known as the National Constituent Assembly, is likely to be held late next week and is a key step in a flurry of political activity in Somalia over the next month.
The UN mandate for Somalia's current government expires on Aug. 20, and Somali leaders are to vote on the constitution, vote in a new 275-member parliament and then vote on a president all before then. If the assembly votes down the constitution, the new parliament will have to debate it and then vote on it.
Somali Prime Minister Abdiwali Mohamed Ali, who for years lived in western New York, called the gathering of Somali leaders a milestone and said the new constitution "is a symbol of justice and equality for our people and country." He said that the new constitution is only meant to be temporary. The eventual goal is to pass a constitution by countrywide vote, but the security, money and organisation needed to hold a nationwide vote is still years away. Al-Shabab militants were pushed out of Mogadishu last year but still rule south-central Somalia.
The current constitution is the Transitional Federal Charter, which was written in 2004. Meant only as a temporary charter, it contains fewer rights than are spelled out in the new draft constitution.
The draft constitution makes it clear that Islamic law is the basis for Somalia's legal foundation. No religion other than Islam can be propagated in the country and all laws must be compliant with Shariah - Islamic - law. Despite those clauses, the constitution also says that "every person is free to practice his or her religion," though no other religions are mentioned in the document.
The draft guarantees minority rights but does not mention homosexuality. It says no marriage is legal without the consent "of both the man and woman," a formula that appears to define marriage as a heterosexual institution but one that also forbids child marriage.
Augustine P. Mahiga, the UN representative for Somalia, said the constitution will "bring Somalia into the 21st century on issues such as fundamental human rights and freedoms, including empowerment of women."
But women's rights in a country as conservative as Somalia is sparking debate between conservative hard-liners, progressive leaders and women. Draft language in some government documents stipulates that 30 percent of the parliament seats should be held by women, but the draft constitution offers no such guarantee.
"Our religion does not allow women to hold an elected position in the country," Sheikh Mohamed Abdi, the leader of a Mogadishu mosque. "So this is a clear contradiction to the teaching of Islam."
The prime minister's office, in an emailed news release, sent out a picture showing a woman holding up a sign at the meeting of 825 leaders on Wednesday: "Where is our 30 percent?" it said in English.
"We believe this is the best constitution we have ever seen in Somalia," said Salado Nur, a member of the assembly. "We hope the violation of women's rights will decrease or be stopped completely."
The English translation of the Somali language constitution is 88 pages long. It was drafted by international law experts and members of the Somalia Diaspora who have lived in the US, Canada, Britain and Australia, said Kym Smithies, a UN spokeswoman.
That international expertise and the overseas experience of the Somali ex-pats may explain the draft's numerous individual rights.
The International Development Law Organisation, a group that offers legal expertise and resources to governments and civil society groups, said earlier this month that it compared Somalia's draft constitution for the presence of fundamental rights to those from 53 of the 56 member states of the Organisation of the Islamic Conference, as well as the constitutions of Italy and the US.
"Notably, across the 45 fundamental rights surveyed, the draft Somali constitution guarantees 36, which places Somalia in the top five of the countries surveyed in terms of these rights," the group said. "The Somali (draft constitution) guarantees six more fundamental rights than the Constitution of Italy, and 15 more than the Constitution of the United States of America."
For all of the rights that the constitution enshrines, its most controversial issue for some members of the constituent assembly is that it does not expressly cite Mogadishu as Somalia's capital.
"Mogadishu has been Somalia's capital for the past hundreds of years and that has been stipulated in all of Somalia's constitutions and charters," Yusuf Nor, a high school teacher in Mogadishu said. "Why not just say Mogadishu is the capital of Somalia? What is the problem with that?"
Somalia adopted an initial constitution after gaining independence from Britain and Italy in 1960 and updated it in 1979. But Somalia's government structure broke down completely in 1991, when the country fell into civil war, and the country has not seen a true federal government since.
The international community is now working to help legitimis8e a new federal government that can assert control over the country, a task made more difficult by years of warfare and corruption.
Also, the new draft constitution appears to make promises that will be hard for the government to keep. In a country where basic needs like food are not always met, the constitution says that every person has the right to clean, potable water. Every person has the right to health care, even if they cannot pay for it, the draft says, another difficult-to-fulfil promise.
No marriage is legal without the consent of both the man and the woman, it says. No child may perform work that is not suitable for a child's age - another clause that defies reality in a country where an enormous number of children work. Each child is to be protected from armed conflict, it says. Somalia has a history of child soldiers on both the government and insurgent side.
"All citizens, regardless of sex, religion, social or economic status, political opinion, clan, disability, occupation, birth or dialect shall have equal rights and duties before the law," it says. Circumcision of girls is "a cruel and degrading customary practice, and is tantamount to torture. The circumcision of girls is prohibited."
The draft constitution says that abortion is contrary to Shariah law and is prohibited "except in cases of necessity, especially to save the life of the mother."
Sheema Sen Gupta, head of child protection at UNICEF Somalia, lauded the government's work to ban female circumcision. "There is however a need now to work closely with the religious leaders who have been very supportive of our efforts to end this practice and with community elders to ensure that it is abandoned as soon as possible," she said.