Somalia.

Africa (Eastern Africa).

Somali.

9,800,000.

Retentionist.

Somalia and its autonomous regions retain the death penalty.
While many executions in Somalia should be considered extrajudicial executions -- for example, those carried out by al Shabaab -- because they are not carried out by a functioning government, official and semi-official governments in Somalia continue to carry out judicial executions, including the federal government, Somaliland, Puntland, and militia-controlled regions.

Executions have taken place in the federal states of Galmudug and Jubaland in 2024.

Somaliland and Puntland executed people in 2023.

.

Shooting.

The unrecognized Republic of Somaliland continues applying the old Somali Penal Code, under which executions are by shooting. The federal government has carried out executions by shooting. Extrajudicial tribunals associated with militias carry out executions by shooting. Death is by shooting under the Military Penal Code.

Comments.

Somalia recognizes Shari’a law (alongside existing law) and Islamic tribunals, Somalia recognizes Shari’a law (alongside existing law) and Islamic tribunals, which could authorize other methods of execution. Various methods of execution are used, including beheading and stoning, but these have been extrajudicial executions by militias. In fact, these executions were illegal under Shari’a law, and it may be wise to view them as acts of terrorism by militias to frighten and subjugate the population in areas under militia control.

At least 139.

There were at least 139 people on death row at the end of 2018. During the year, there were at least 15 new death sentences (seven imposed by the federal government of Somalia, seven in Puntland and one in Jubaland).

(This question was last updated on May 31, 2019.).

No.

The Charter of the Transitional Federal Government provides: “Everyone shall have the right to life and no person shall be deprived of his/her life.” It does not provide for any exceptions. The Transitional Federal Government does not have effective control of the country, and the only region with a functioning state is the breakaway Republic of Somaliland. That Republic’s Constitution provides: “Every person has the right to life, and shall only be deprived of life if convicted in a court of an offense in which the sentence laid down by law is death.” Puntland is a functioning semi-autonomous (or independent) state. A report by the U.S. Department of State suggests that Puntland’s Charter permits capital punishment. We have located a document that may be Puntland’s 2009 Constitution, under which “Every person has a right to his/her life; save for capital punishment imposed in accordance with the Law.”

Aggravated Murder.

We did not find a reference to aggravated murder in Somalia’s written secular law. Courts that practice customary law (Xeer) may pronounce death sentences “[i]f a murder is particularly violent…even if the family of victim would prefer the mak [payment of compensation].” (Under customary law, the punishment for killing (dil) is death, but the victim’s family often accepts compensation (mag/mak) in lieu of talion. The law does not formally distinguish between premeditated murder, murder, manslaughter, and unintentional killing. A proxy may be executed if the murderer flees and the victim’s family will not accept mag, but in practice the execution of a proxy is unlikely.) Under the Shafi’i school of Sunni Islam (which in the past has not been strictly applied in Somalia) a premeditated murder during an armed group robbery was treated similarly to aggravated murder in that it carried a heightened penalty.

Murder.

Under the 1962 Penal Code, still applicable in parts of Somalia, murder is punished by death. Under Xeer, the death penalty can apply for murder if the victim’s family does not accept mag. Under the Shafi’i school of Sunni Islam, the offender may be subject to death as qisas if “the killer intended to kill and employed some means likely to have that result,” unless the victim’s family accepts compensation.

Other Offenses Resulting in Death.

We did not find secular written law that prescribes the death penalty for homicide short of murder. Under Xeer, unintentional killing, manslaughter and unpremeditated murder could be punished by death if the victim’s family refused to accept mag. The Shafi’i school of Sunni Islam traditionally restricted statutory (hadd or qisas) penalties for killing to intentional killing.

Terrorism-Related Offenses Resulting in Death.

Under the 1962 Penal Code, still applicable in parts of Somalia, “carnage”—an act against the public safety and intended to result in death—is punished by death. Causing an epidemic, resulting in death, is punished by death. Under Xeer, any homicide might be punishable by death if the victim’s family does not accept mag, but there is no offense of “terrorism” as such. Under Shari’a law, hiraba (to “wage war against God and His Prophet, and strive to cause corruption on the earth…”) has been seen by some modern scholars as relevant to the offense of terrorism, but these discussions have not been dispositive, and the Shafi’i school (predominant in Somalia) may have been relatively uninvolved in the development of this concept. In any case, under the Shafi’i school there might not be statutory penalties (hadd or qisas) except for intentional murders.

Treason.

Under the 1962 Penal Code (still applicable in some parts of Somalia), the punishment for waging or leading armed aggression against the state, assisting the enemy, usurping military powers, interfering with intelligence (with effect of undermining the defense), espionage undermining the defense or threatening state security, or espionage-related offenses affecting allies is death.

Espionage.

Under the 1962 Penal Code (still applicable in some parts of Somalia), the punishment for interfering with intelligence (with effect of undermining the defense), espionage undermining the defense or threatening state security, or espionage-related offenses affecting allies is death.

Military Offenses Not Resulting in Death.

Under the 1963 Code of Military Criminal Law, which may be current in Somalia, initiation of unauthorized hostilities by a commander is punished by death if an engagement occurs, or if devastation (or loss of life) is a result. Intelligence-related offenses may be punished by death. A commander who causes the loss or capture of ships or aircraft (or service persons, by not being the last to abandon a ship) is punishable by death. Usurpation of command (when endangering an operation), or destruction or sabotage of military works, is punishable by death.

Other Offenses Not Resulting in Death.

Under the 1962 Penal Code, still applicable in some parts of Somalia, “pollution” of food or water before it reaches market, resulting in death, is punished by death.

Comments.

Defining the applicable law in Somalia is a difficult task due to several reasons. First, the different regions of Somalia seem to apply different laws. The 1962 Penal Code is still applicable in much of Somalia, but Puntland courts can apply customary law (Xeer), and the Transitional Federal Government (TGF) has authorized the application of Shari’a law by Islamic courts. Reports assess this move as an attempt to pacify the insurgency in the southern portions of Somalia, a move the insurgency has dismissed as “conspiracy against the Islamist fighters and their cause.” In late 2010, one news report suggested that the TGF has not fully (if at all) implemented Shari’a law, and Amnesty International has aptly characterized the implementation of Shari’a by militants in the south as unlawful, stating that “under the pretext of maintaining law and order, the armed groups aim at intimidating and instilling fear in the civilian population in order to assert their control over territory.” Further complicating what constitutes lawful application of Shari’a in Somalia is that, traditionally, Xeer law has controlled. It is permissible to apply religious law that “would settle the conflict in a way more in line with the customary usage of the community,” and courts can and sometimes must incorporate the testimony of religious leaders, but customary law takes precedent over religious law. The situation that exists today, in which the insurgency demands application of Shari’a law, is out of touch with traditional Somali practice.

In any case, the insurgency in the southern regions is not applying Shari’a law—it is merely applying Shari’a penalties without any grounding in lawful application of the Shafi’i school of Sunni Islam. For instance, insurgents have applied the death penalty for adultery. Under Shari’a law, a married person who commits adultery is liable to the death penalty. Stringent evidentiary requirements must be met for the death penalty to apply as hadd; in other situations, a ta’zir penalty can apply. (Typically, a ta’zir penalty cannot be as severe as a hadd penalty unless there are serious aggravating circumstances.) Essentially, for the death penalty for adultery to apply as hadd, the court must hear the eyewitness testimony of four witnesses of good character, or a freely given confession of the adulterer being charged. The adulterer must be married, and the hadd penalty cannot be applied if there is doubt as to the illegality of the accused person’s act or as to whether any testimony or confession was given freely by a person capable of legal consent. This would tend to suggest that when a 13 year old girl who was the victim of rape and whose “confession” was arguably involuntary, was subsequently executed by being dragged into a pit and stoned to death in front of a horrified and protesting crowd of Somalis (some of whom were assaulted or murdered by militants when they attempted to intervene) was not lawful under Shari’a. Nevertheless, that is exactly what happened after the lawless judgment of a tribunal in Al-Shabab controlled southern Somalia.

Insurgent militias have carried out executions for murder, supporting the TGF and espionage, among other charges, after little judicial process and often based on “confessions.” As Amnesty points out, militants do not assure due process. Additionally, some executions for “offenses” such as supporting the TGF during an insurgency are not recognized under Shari’a. Traditionally the right to kill opponents in a political struggle is limited to acts necessary to subdue them, and usually would not include a judicial death penalty for an opponent who is not engaging in armed resistance or flight. Nevertheless, both the insurgency and pro-TGF militias carry out murders of captured opponents.

The Shafi’i school of Sunni Islam is predominant in Somalia, but Somalis practice a moderate Sunni Islam that has been incorporated alongside traditional beliefs and customs. Other sources confirm that the Somali people have seen their customary law, as opposed to a strict Shari’a law, as Somali law, and that Xeer is predominantly a compensation-based system, allowing the death penalty only for offenses resulting in death.

We are unsure whether the death penalty is mandatory in Somalia. Where the 1962 Penal Code is applied, the death penalty might not be mandatory because the court is free to consider enumerated circumstances or “any other circumstance that the Judge considers to be such as to justify a lessening of the punishment.” This is also true under the Code of Military Criminal Law. We do not know whether the concurrent application of Shari’a principles limits the court’s discretion in cases involving the private right of retaliation for murder. The question of whether the death penalty is mandatory is complicated by the recent authorization of the Shari’a law by the Transitional Federal Government. Further complicating the issue is that traditionally, the Somali people have applied Shari’a as interactive with Xeer (applied in Puntland ), a compensatory justice regime in which a killer is executed if the victim’s family does not accept compensation. We do know that in Somaliland’s and Puntland’s constitutions the right of qisas (retributive execution for murder unless the victim’s family accepts a payment of compensation or forgives the offender) seems to be reserved to the victim’s family, and under the Xeer system offenses resulting in death are punished by death if the victim’s family does not accept compensation (mag). This suggests that the families of victims, rather than courts, may determine whether an individual will be executed for murder—and thus the death penalty for murder could be mandatory because the court cannot exercise discretion without the family’s permission.

Aggravated Murder.

Murder may be punished by death in systems influenced by customary or Shari’a law unless the victim’s family accepts compensation."

Murder.

Murder may be punished by death in systems influenced by customary or Shari’a law unless the victim’s family accepts compensation."

Other Offenses Resulting in Death.

Offenses resulting in death may be punished by death in systems influenced by customary law unless the victim’s family accepts compensation."

Terrorism-Related Offenses Resulting in Death.

Offenses resulting in death may be punished by death in systems influenced by customary or Shari’a (murder offenses) law unless the victim’s family accepts compensation."

Individuals Below Age 18 at Time of Crime.

Under the 1962 Penal Code (still applicable in Somaliland and some regions of Somalia), individuals who commit crimes while under the age of 18 receive reduced sentences. Somalia is a party to the ICCPR, which bars executions of individuals for crimes committed while under the age of 18, and is constitutionally binding in Somalia and Somaliland.

Pregnant Women.

The execution of nonpecuniary punishments is suspended for pregnant women under the 1962 Penal Code.

Women With Small Children.

The execution of nonpecuniary punishments is suspended for women with newly born infants under the 1962 Penal Code.

Mentally Ill.

Under the 1962 Penal Code (still applicable in Somaliland and some regions of Somalia), individuals are not liable for offenses committed while insane and unable to understand the nature or consequences of their actions, and receive reduced sentences for offenses committed under diminished capacity.

Comments.

The application of Shari’a law in some areas of Somalia could eventually lead to some protection of pregnant women and young mothers from the death penalty (as anathema to the Quran and Sunna), and of the intellectually disabled, insane or intoxicated, while potentially (but not necessarily) undermining the 18-year bright-line definition of maturity. However, the militants in southern Somalia do not seem intent on extending human rights protections. In Somaliland, where the Constitution’s recognition of international human rights law is quite broad, it is arguable that conventions and customs against executions of some individuals could also have legal significance."

Murder.

In January 2011, the TGF executed three soldiers for murder. In 2010, Puntland executed individuals for murder.

Comments.

There have been a number of extrajudicial executions in the past few years, for crimes such as espionage, treason, adultery and murder.

We did not find any recent significant published cases during our research.

The Charter of the Transitional Federal Government provides: “The Somali Republic shall recognize and enforce all international human rights conventions and treaties to which the Republic is a party.” The Republic of Somaliland’s Constitution provides: “The articles which relate to fundamental rights and freedoms shall be interpreted in a manner consistent with the international conventions on human rights and also with the international laws referred to in this Constitution.” Under Article 10(2) the “Republic of Somaliland recognizes and shall act in conformity with the United Nations Charter and with international law, and shall respect the Universal Declaration of Human Rights.” Puntland’s 2009 Constitution may provide for an office of a Human Rights Defender with the responsibility to “prevent violations of human rights, giving advice to the corresponding authorities,” and to promote among the population and authorities awareness and respect for rights “consecrated in the Constitution, Laws of the country, and stated in international protocols and conventions on Human Rights.”

We did not find any recent decisions or observations of the Human Rights Committee.

The Human Rights Council’s Universal Periodic Review of Somalia is scheduled for May 2011: http://www.upr-info.org/-Somalia-.html.

Individuals accused of capital crimes in Southern and Central Somalia do not benefit from standard trial procedures. The Transitional Federal Government may provide legal aid, but legal rights granted under the Transitional Federal Charter are not usually respected in some areas. In Somaliland, individuals who face serious charges and cannot afford an attorney are given free counsel. In Puntland, the right to legal aid exists, but is not respected.

We were unable to determine whether lawyers are available for indigent prisoners on appeal. According to the U.S. Department of State, only Somaliland extends any right to legal aid in practice.

We have no comments on the quality of legal representation.

In areas controlled by the Transitional Federal Government, the appellate process established by law (courts of first instance, appellate courts, Supreme Court and high commission of justice) have not been created. Legal process is carried on by a hodgepodge of local and traditional courts. In Puntland, courts of first instance, appeal and a Supreme Court existed and functioned, although inadequately. In Somaliland, there are courts of assizes (for serious offenses), a special appeals courts (which has two judges and two assessors) hearing cases from assizes, and a Supreme Court (which also functions as a Constitutional Court). Somalia’s courts are, in general, influenced by the Civil Law system rather than the Common Law approach due to predominantly French colonial control, although Somaliland itself was a British possession.

Under the old Constitution, the executive apparently possessed the prerogative of mercy, but we did not find any discussion of the matter in our copy of the Transitional Federal Charter. Somaliland’s Constitution states that the President’s prerogative of mercy cannot prejudice the just application of qisas and hadd penalties. Puntland’s Constitution states that the President’s prerogative of mercy is limited to punishments not mandated by Shari’a law.

The right to seek a pardon, as defined by international law, may not be fully extended in Somalia.

Use of jury trials is atypical.

The United Nations Development Program for Somalia is involved in developing the criminal justice system of the Transitional Federal Government, Puntland and Somaliland. Currently, Somaliland has the best functioning criminal justice system, but its courts are not independent, old laws conflict with constitutional protections, and there is a shortage of trained professionals. Puntland’s courts function, but suffer from inadequate capacity. The courts established by the Transitional Federal Charter for the TFG have not been instituted.

In much of Somalia, where militant groups condemn and execute individuals summarily, it may be fair to conclude that no one is on death row. There may be a death row in Mogadishu, since Amnesty records some death sentences handed down in 2009. (During our research, the official government’s control did not extend outside of the capital city.) We know that Somaliland has pronounced death sentences in the past, so individuals could be held under sentence of death in Somaliland; the same is true of Puntland.

Individuals accused of death eligible offenses in Southern and Central Somalia are summarily executed by militants. The U.S. Department of State reports that militias do maintain detention centers, where conditions are harsh and militia members frequently abuse detainees. Conditions are “dilapidated” and “inhumane.” The Transitional Federal Government in Mogadishu maintains a prison with about 400 inmates, where conditions “improved and wardens were generally responsive to human rights problems.” The TGF works with the U.N. Development Program for Somalia to improve its criminal justice system. Puntland and Somaliland permit independent monitoring. Monitors indicate that conditions at Puntland’s Garowe central prison are grave due to severe overcrowding rather than intentional abuses. In Somaliland, the UNDP formed a monitoring team composed of medical doctors, government officials and civil society representatives, and assisted in building new facilities and training wardens and judicial officials. Overall, “[prison] conditions remained harsh and life threatening in all regions.”

We did not find reports of foreign nationals currently held under sentence of death.

We did not find reports of foreign nationals currently held under sentence of death.

We do not know whether any women are currently held under sentence of death.

Individuals under the age of 18 are condemned and executed in the Southern and Central regions by militants. We did not find reports of such executions or sentences in areas controlled by the government, Puntland or Somaliland forces.

We are unable to provide data on the composition of death row.

The most significant change in the application of the death penalty in recent years is that Somalia’s Transitional Federal Government has authorized the application of Shari’a law, under pressure from militias that adjudicate harshly and arbitrarily in territory they control. In militant-controlled areas, extrajudicial killings by militias can occur, apparently after some perfunctory process by militia-controlled tribunals. In 2006, the situation may have been somewhat different, as the Islamic Court Union formed partially in opposition to U.S. measures that engaged warlords to eliminate local tribunals in Mogadishu that were associated with militia groups. These tribunals were, reportedly, funded by business and civil society groups in response to prolonged lawlessness, and these groups contracted militias to enforce the tribunals’ decisions. Some tribunals might have been characterized as having extremist tendencies, others could not. The ICU coalesced from local tribunals, eventually posed a threat to the Transitional Federal Government, and was removed by an Ethiopian invasion. Al-Shabab—a militia formerly associated with the ICU—is now dominant in southern Somalia, and claims ties with Al-Qaeda. Militia controlled tribunals apply a harsh and arbitrary version of something they call Shari’a law (and which is in fact not Shari’a law). In 2009, the TFG (led by a moderate who helped spearhead the ICU) responded to pressures from militant groups by authorizing the application of Shari’a law by Shari’a courts. Militants insist on the exclusive application of their abusive version of the Shari’a, amid fears in Puntland that its ability to continue securely applying its own interpretation of the Shari’a is threatened. The situation may be unlikely to affect Somaliland significantly, which established an independent (though unrecognized) state in 1991, and displays unwillingness to participate in a unified Somalia.

In Somaliland and Puntland, the rights of the accused may have been positively affected by UNDP programs over the past years.

None.

Reprieve
PO Box 72054
London EC3P 3BZ
United Kingdom
Tel 020 7553 8140
Fax 020 7553 8189
info@reprieve.org.uk
http://www.reprieve.org.uk.

We did not find any place to access Somali court judicial decisions, and legal scholars from Somaliland suggest that the Somali legal tradition does not involve publishing judicial opinions.

None.

None.