3.1. Legal and policy framework

A large corpus of international legal instruments provides guarantees and safeguards for the rights of prisoners. Among them, relevant for Somalia, are: the Universal Declaration of Human Rights (1949); 212 the International Covenant on Civil and Political Rights (1976) and the Convention Against Torture (1987), to both of which Somalia is a signatory;213 the Kampala Declaration on Prison Conditions in Africa (1996), and the United Nations Standard Minimum Rules for the Treatment of Prisoners (2015), also known as the Nelson Mandela Rules, among other sets of rules.214

The international standards set by these rules include: equality and inherent dignity of all individuals and prisoners, including before the court; the prohibition of slavery, and of inhumane or degrading treatment or punishment; the prohibition of torture, slavery and forced labour; the prohibition of arbitrary arrest and the requirement of a valid commitment order before incarcerating; the prohibition of any form of discrimination; the provision of adequate living conditions for all prisoners that uphold human dignity; the importance of communications between prisoners and their families; access to education; the principle of separation between male and female prisoners, between young and adults offenders; adequate living, sanitation and hygiene standards in prison cells as well as in all other prison areas; adequate access to food, water, and healthcare services; access to outdoor work or exercise.215

The relevant national legal framework in force in Somalia comprises: the Somali Penal Code (1962),216 the Criminal Procedure Code (1963),217 the Somali Prison Law (1972),218 the Somali Custodial Corps Act (1972), the Regulation for the Country’s Prisons (1984), the Provisional Federal Constitution (2012)219.220 Among others, rights and guarantees enshrined in these legal instruments, include:

• as per the Provisional Constitution (2012), basic principles and human rights, the presumption of innocence until proven guilty, the right to be brought before a court within 48 hours, the right to consult with a legal practitioner and appeal decisions, the principle that no one can be convicted of a crime that was not considered an offense at the time it was committed;221

• as per the Regulation for the Country’s Prison (1984), prisoners must undergo a health check upon arrival; children (14 – 18 age) and adults, as well as men and women must be kept segregated; set quality standards for prison cells, cleanings, personal hygiene, and external activities;222 standards for conduct of Custodial Corps;223

• as per the Somali Custodial Corps Act (1972), the Custodial Corps are tasked with the administration, investigation, and inspection of the prisons and rehabilitation centres in Somalia. The Custodial Corps are a military component of the National Security Architecture. The Custodial Corps are headed by the Commissioner General who is appointed by and report directly to the President of the Federal Republic. At the same time though, the correctional facilities fall under the jurisdiction of the Corrections Services Directorate of the Somali Ministry of Justice and Constitutional Affairs.224

• as per the Somali Prison Law (1972), the separation between male and female prisoners, with women supervised by female staff; the separation between young and adult offenders, between pre-trial detention and convicted prisoners, as well as between habitual and first-time offenders; ‘requirement’ to work; access to sufficient and adequate food, provided by the prison administration, but also possibility to receive it from private sources; access to education;225

• as per the Criminal procedure Code (1963), the presumption of innocence until proven guilty, the right to legal representation, conditions for the issuing of an arrest warrant and granting of bail, the principle of Habeas Corpus (personal liberty);226

• as per the Somalia Penal Code (1962), children under the age of 14 are not held legally accountable for their actions, while individuals between 14 and 18 years of age are considered responsible, but their punishments are typically less severe or moderated.227

• Moreover,

• Monitoring and supervision: the Commandant of the Custodial Corps, who is responsible for the administration and control of all prisons and other penal institutions, is supposed to visit and inspect prison facilities at least once a year, or have them so, and share a report with the Ministry of Justice; moreover, the Attorney General (or ‘his deputy’) is tasked with the supervision of prisons and penal institutions to ensure proper care and treatment of prisoners, in collaboration with the Commanding Officer (in charge of a given prison or penal institution).228

• Outstanding issues in the legal framework include:

• lack of explicit prohibition of torture: while the Somali Provisional constitution prohibits torture (Art. 15.2), and the Regulation for the Country’s Prisons strictly prohibits the use of excessive force or the implementation of unlawful punishments by prison administrative personnel (Art. 47), the Somali Prison Law does not explicitly prohibit the use of torture, differently from international human right standards.229 For more information see section below 3.4 Prison conditions and treatment of detainees in Mogadishu;

• solitary confinement not considered as a measure of last resort: the Somali Prison Law permits the use of solitary confinement without emphasising its exceptional nature;230 the Regulation for the Country’s Prison foresees that each establishment must have a solitary cell meant to discipline individuals who engage in misconduct.231 For more information see section below 3.4 Prison conditions and treatment of detainees in Mogadishu;

• outdated prison law: the 1971 Prison Law, which is under revision at the time of writing, does not meet modern prison needs and must be assessed against international human rights standards;232

• lack of harmonisation between the federal and the state level: different prison laws apply in different regions of Somalia, such as in Puntland and in Somaliland, therefore creating double standards;233

• lack of clarity in the repartition of competences between the federal and the member states level, as well as within the federal level – between the President and the Mo
• JCA - in the management and the supervision of the prison establishments.234