MOGADISHU, SOMALIA – The draft penal code sitting in Somalia’s parliament does something no Somali law has attempted since 1962. Article 454 repeals Law No. 5 outright, and the 455 articles that precede it rebuild the criminal law on a different foundation. The Italian-derived structure of the old penal code disappears. In its place the bill installs the classical Islamic tripartite scheme of hudud, qisas and tacsiir as the organising categories of criminal liability, defined at Article 2 and carried through Books Two and Three.
Prime Minister Hamza Abdi Barre made the case for it in plain terms at the National Judiciary Conference in Mogadishu in June, calling the 1962 statute a colonial relic misaligned with Somali religious and cultural values. The text reached parliament in January and cleared a first reading before the electoral and constitutional fight forced the government to shelve it. The bill has not gone away, and nobody in the ministry expects it to. When it returns, Somalia will be voting on the most consequential domestic law of the post-transition era.
What the Bill Actually Does to the Criminal Law
The catalogue of penalties at Article 40 is the quickest way to see the scale of the change. Alongside imprisonment, fines and confiscation, it lists death by qisas or hadd, death followed by public display of the body, stoning, cross-amputation, single amputation, flogging of no fewer than forty lashes, and banishment. Article 41 then confirms that execution may be carried out by firing squad or by stoning. None of these penalties exists in the code currently in force.
The specific offences that follow are built on the same logic. Article 119 prescribes stoning for zina where the offender has been married, and 100 lashes plus banishment where the offender has not. Article 128 prescribes amputation of the right hand for hadd theft, with the threshold set at 1.0625 grams of pure gold under Article 127. Under Article 125, hiraba is punishable by death, or by amputation of the right hand and left foot where the act causes serious injury. Drinking alcohol carries forty lashes for a Muslim under Article 123, with judicial discretion to reach eighty.
Article 131 creates an apostasy offence with no equivalent in the 1962 code. A Muslim who leaves Islam, adopts another faith, campaigns for others to leave, or publicly insults God, the Prophet or the Qur’an is given a court-defined period to repent, and faces death if he does not. Article 347 prescribes death for consensual sexual acts between men, an offence the current code punishes with three months to three years. Article 340 prescribes death for incest in its aggravated form. Whatever else the penal code does, these provisions place Somalia among the small group of states that apply hudud in codified form rather than referencing Sharia in the abstract.
Codification of this kind removes the discretion that has historically softened these punishments in practice. A judge working from a general reference to Sharia can weigh local custom, the reconciliation preferences of two families, and the evidentiary near-impossibility that classical jurists built into hudud offences on purpose. A judge working from Article 119 has a schedule of penalties, a statutory threshold and an appellate structure that will measure him against both.
Where the Penal Code Goes Backwards
Two provisions deserve attention precisely because nobody has offered a doctrinal defence of them. Article 38 sets the minimum age of criminal responsibility at seven. Children between seven and fifteen face measures rather than penalties, including up to five years in a social care facility, and full responsibility attaches at eighteen. The code now in force sets the threshold at fourteen. The Committee on the Rights of the Child treats fourteen as an absolute floor and states explicitly that no country should reduce an existing higher age. Somalia would be doing exactly that, in a text presented as reform.
The second problem is an absence rather than a provision. Female genital mutilation appears nowhere in the draft penal code, in any formulation, despite Article 15(4) of the Provisional Constitution prohibiting the practice and despite the Maputo Protocol obligation Somalia has repeatedly cited in its own reporting. The 1962 code was silent because FGM was not on any legislative agenda in 1962. A 2025 text that runs to 455 articles and legislates on bestiality, brothels and hate speech has no comparable excuse for the omission.
Other gaps in the text are narrower, though no less consequential. Article 339 raises the penalties for rape substantially, up to death where the perpetrator holds authority over the victim. Marital rape is still not covered, and complainants who cannot prove coercion remain exposed to the zina provisions. The classical diya and evidentiary rules annexed to the bill differentiate by sex. Fines throughout are denominated in United States dollars with a shilling equivalent. That is practical for a country whose currency has not been reissued in decades, and it sits oddly in a statute meant to outlast the present monetary arrangement.
The age provision deserves one further thought, because its practical effect will fall on children who are already the most exposed. Recruitment of minors by armed groups, street work in Mogadishu and displacement have produced a large population of children living outside any family structure. A threshold of seven brings them within the reach of a criminal process that has neither the juvenile facilities nor the trained personnel the same bill assumes.
The Modernisation Buried in the Same Text
It would be dishonest to read the bill only through its punishments, because a serious drafting effort is visible in the rest of it. The 1962 code has almost nothing to say about terrorism, cybercrime, trafficking or corruption, which is a real problem for prosecutors working in a country where all four are daily business. Here the new penal code supplies comprehensive chapters on each, including an illicit enrichment offence at Article 2(38) that maps onto Somalia’s obligations under the UN Convention against Corruption.
Article 430 is the clearest example of competent modern drafting. It creates an incitement and hatred offence covering ethnicity, religion, culture, sex, colour, birth, language, region, disability and health status, and it explicitly reaches broadcast media, social media platforms, stored programmes and internet material. For a country where clan incitement travels faster on Facebook than through any traditional channel, that provision addresses a genuine harm and does so in terms most rights lawyers would accept.
Article 3 of the penal code is stronger still. It states the legality principle without qualification and bars retroactive criminalisation. It also adds a lex mitior rule, so a later and more lenient law applies to the accused, and punishment ceases where conduct is later decriminalised. That is a rule-of-law provision the current code states more thinly. Article 453 makes the Somali text authentic, with Arabic used for interpretation, ending six decades in which the authoritative version of Somalia’s criminal law was Italian. For practitioners in Baidoa or Garowe, that single article may be the most useful thing in the bill. The penal code contains real advances, and they are inseparable from everything else in the same volume.
The cybercrime and trafficking chapters follow the same pattern of competence. They give prosecutors definitions that match how these crimes are actually committed in Somalia, through mobile money, informal remittance and social platforms, rather than through the paper instruments the 1962 drafters had in mind. A government interested in a narrower bill could pass those chapters on their own and command a comfortable majority for them.
A Mandate Problem Rather Than a Doctrinal One
The sharpest objection is that the government advancing it does not currently command the consent required to re-found the criminal law. Hassan Sheikh Mohamud’s term expired in May, he took a unilateral one-year extension, and Puntland and Jubaland have walked away from the mediation meant to resolve the dispute. Puntland has gone further and withdrawn recognition of the federal government over the constitutional amendments. A criminal code binds every citizen in every region, which makes it the last law that should be passed by a parliament whose own legitimacy the member states dispute.
Two provisions turn that mandate question into a practical danger. Article 2(32) defines a political crime as an offence or conspiracy against the head of state, the system of governance, or internal and external national security. Article 432 then punishes by death or life imprisonment anyone who commits, encourages, attempts or facilitates an act aimed at terrorising the government. The same article reaches facilitation by word, the spread of material to that end, and threats to commit a terrorist or political act. Read together, a broad definition of political crime and a capital offence that reaches facilitation by word give a contested government a formidable instrument against journalists and opponents. That risk is a function of who holds the courts, not of Islamic jurisprudence.
Somalia’s own legal tradition also cuts against the centralising instinct here. Sharia and xeer have operated for centuries as complementary, decentralised systems, and there is no evidence that Somali clans carried out stoning or amputation under that arrangement. Codifying one reading of one school in Mogadishu, then enforcing it through federal courts, replaces a plural practice with a state monopoly at the moment federal authority is weakest.
Consent is the missing element throughout. A criminal code of this reach would ordinarily arrive after public consultation, judicial training and agreement among the member states about which courts will apply it. None of those steps has been completed, and two member states are not currently attending the meetings where they might be.
The Bargain That Is Not on Offer
Supporters of the bill make one further argument, and it is the argument most worth testing. A Sharia-based penal code, the reasoning goes, removes al-Shabaab’s central ideological claim and opens the door to a negotiated settlement. The group has spent nearly two decades insisting that only it delivers Islamic justice. Take that away, and what is left is a criminal enterprise with no cause.
The problem is that al-Shabaab has never treated legal doctrine as the object of the war. The group runs its own courts, applies its own hudud, and rejects the constitutional order within which this bill sits. It has no interest in a code enacted by a parliament it considers illegitimate, and every incentive to argue that Mogadishu’s version is a counterfeit produced by a government that also hosts foreign troops. Al-Shabaab is waiting out the state rather than bargaining with it, and the group’s silence during this year’s political crisis fits that reading.
What the concession would buy instead is reasonably predictable. Western partners who funded justice reform for a decade will not underwrite stoning and amputation, and the money will move. Somali lawyers, doctors and civil servants who read the text will draw their own conclusions about where to raise their children. The withdrawal of external support is already the defining constraint on Mogadishu’s year. Passing this penal code in its present form would accelerate that withdrawal without buying a single day of peace from the insurgency it is meant to disarm.
There is also the awkward matter of comparison. Al-Shabaab courts already deliver hudud punishments quickly, at low cost and with a reputation for deciding property disputes without bribes, which is the actual source of their appeal in contested districts. A federal code that promises the same punishments invites a comparison Mogadishu cannot win, and it makes the state’s case on exactly the ground where the insurgency is strongest.
