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Sunday 14 July 2024

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Gulied Dafac: “Many children are rendered stateless by the law”

5 June, 2024
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Guuleed Dafac
Photo source: Frontline Defenders
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Dr. Guleid Jama “Dafac” engages in a conversation with Geeska regarding his research on rights of children living in unrecognized states, focusing on Somaliland, and discusses the path forward.

Children face a myriad of unique challenges that significantly impact their well-being and development. Some of the specific issues they confront include:

- Nearly 200 million children are currently living in the world's most dangerous war zones, representing a 20% increase from the previous year. These children are often subjected to the devastating consequences of conflict, such as physical injuries, emotional trauma, and forced displacement, and death. For example, in the ongoing genocidal war against Gaza by Israel, the number of children killed has tragically exceeded 15,000, while in the ongoing war in Ukraine, the number of children killed surpassed 2,000.

- In 2022, an alarming two million children under the age of five are projected to succumb to hunger-related causes. Factors like COVID-19, conflict, climate change, and forced migration all contribute to the widespread issue of food insecurity. Malnutrition not only hinders cognitive and physical development but also has a detrimental impact on children's overall well-being.

- Approximately 117 million children worldwide are currently out of school due to the ongoing pandemic, exacerbating the existing 260 million children who were already deprived of education before COVID-19 struck.

- Extended school closures have a disproportionate impact on girls, putting them at risk of dropping out, often due to early marriage. The lack of education not only limits children's future opportunities but also perpetuates cycles of poverty.

- Children of immigrants, particularly those with undocumented parents, face cognitive and language developmental challenges. Undocumented status can affect cognitive skills as early as age 2 or 3, leading to disadvantages in school readiness. Limited access to essential public programs, such as early childhood education, further hinders the development of immigrant children.

These obstacles underscore the critical need for targeted interventions, international cooperation, and advocacy to safeguard the rights and well-being of children worldwide, especially in unrecognized states.

Children living in unrecognized states encounter unique challenges that often go unnoticed by the international community. Despite residing in regions lacking political and legal recognition, these children possess inherent rights that must be acknowledged and protected. The concept of children's rights in such territories encompasses fundamental principles of dignity, equality, and respect, regardless of the state's status.

In unrecognized states, ensuring the implementation of children's rights is a complex issue. It requires navigating the complexities of international law, local governance, and the socio-political dynamics that shape these regions. The rights of these children are not just theoretical concepts but are crucial to their development, well-being, and future prospects.

Research and discussions, such as those held at the International Conference on Realising Children’s Development Rights in De Facto States, underscore the critical need for a collaborative approach to ensure that all children, even amidst political and legal conflicts, have equal access to development rights. This encompasses the fundamental rights to education, healthcare, and protection from harm, which are indispensable for their holistic growth and well-being.

The challenges faced by children in unrecognized states serve as a poignant reminder that children’s rights transcend borders and political disputes. It is a clarion call for researchers, activists, and policymakers to unite in finding innovative solutions that uphold these rights and provide every child with the opportunity to flourish.

Guleid Ahmed Jama “Dafac,” who is a distinguished lawyer, a fierce and firm human rights advocate, and the founder of the Human Rights Center (HRC) in Somaliland, spoke with Geeska. The HRC, an independent human rights watchdog organization, is dedicated to lobbying, advocacy, protection, monitoring, and documentation to advance human rights in Somaliland.

Dr. Jama earned his PhD from the Faculty of Law at Maastricht University. His groundbreaking dissertation, titled “Do Our Children Have Rights? Children’s Rights in the Unrecognized State of Somaliland,” delves into the crucial issue of children’s rights in Somaliland within the framework of international human rights law.

In the face of Somaliland’s lack of international recognition and its status as part of Somalia, the enforcement of international human rights law remains uncertain. This uncertainty exposes individuals to attacks on freedom of expression, gender-based violence, and various forms of discrimination, with children bearing a significant burden of the consequences. Dr. Jama’s research aims to address the pivotal question: “How do international and national laws protect the rights of children in Somaliland?”

In this interview, Guleid Jama, who is now the managing director of the regional Xaqdoon Law Firm, discusses about his research on strategies to safeguard children in unrecognized states, with a specific focus on Somaliland, and explored potential solutions and the next steps to take in this important endeavour.

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Abdiaziz Mahdi (AM): Firstly, I commend your diligent research on a topic that has been largely overlooked since Somaliland’s declaration of independence from Somalia. I am intrigued by your decision to focus your PhD dissertation on this particular subject. What inspired you to take this path?

Guleid Dafac (GD): Thank you. Not only in Somaliland but globally, human and children’s rights in unrecognised states are overlooked by research and advocacy. Specifically, children’s rights in Somaliland, even from a domestic law perspective, is not an area that attracts academic work.

I have been a human rights lawyer for over a decade. Human rights activism is a firefighting task. You deal with violations and attempt to do something about them. You do not often get the opportunity to sit back and focus on a topic. This research offered me the opportunity to pursue a question. It is a subject that is very close to my profession as a lawyer and passion as a human rights activist/defender.

AM: In 2022, the House of Representatives in Somaliland passed an amended Child Rights Protection Act. Could you elaborate on the key provisions of this Act and whether you believe it adequately safeguards the rights of children within Somaliland’s jurisdiction?

GD: The drafting process of the Child Rights Protection Act started in 2014. I was part of the initial drafting of this legislation. However, the version approved by the Parliament is different because it has gone through changes mostly pushed by people with authority, such as religionists. It consists of six chapters: general provisions, responsibilities, children’s rights, special care of children, right to free legal aid and crimes and punishments. The rights enshrined in the Act include, inter alia, the right to nationality, name and registration, life, and education.

The passage of the Child Rights Protection Act was good news and a testimony of the commitment and will of the authorities to protect children. It is the first time in Somaliland that the Children’s Bill of Rights is outlined in law. The constitution of Somaliland has a bill of rights that does not include children’s rights. So, this law fills a gap. However, the law contains ambiguities and loopholes. It reflects a clash that sometimes emerges among the plural system in Somaliland, namely clan laws called Xeer in Somali, Sharia and the state law. The Child Rights Protection Act is a relatively new law, and we will see how it is implemented in the future. There is a difference in Somaliland between the law in books and the law in practice. Laws are approved but mostly not enforced.

AM: Your thesis revealed a concerning lack of clarity in Somaliland’s laws regarding child abuse; you wrote that “Somaliland’s laws do not define what constitutes child sexual abuse.” This is particularly troubling given the conservative nature of our society and the prevalence of customary laws like Xeer, where speaking of this issue is itself regarded as taboo. How do you propose addressing this issue to ensure the protection of minors from abuse?

GD: Sexual abuse and anything related to it is taboo. The current state laws are contradictory and have ambiguities when it comes to the protection of children from sexual abuse. I think the laws concerning sexual abuse demonstrate the difficulties in navigating Somaliland’s plural legal system, where you have three systems that sometimes confront a core issue. It also seems that the literalist interpretation of Islam is influencing Sharia’s outlook, which is problematic in many ways. For example, a proposed amendment to the now-suspended Rape and Sexual Offences Act treats consensual sex and rape as the same and both criminal. This makes it very difficult for a person to be prosecuted for sexual abuse due to the requirement of eyewitnesses. The House of Representatives approved the amendment, and the Guurti, the upper house of Parliament, is currently working on it.

AM: The current nationality laws in Somaliland (as well as Somalia) contain language that discriminates against mothers in terms of transmitting nationality to their children and spouses on the same terms as the father. How do you believe this disparity hinders children’s rights to nationality within an unrecognised territory?

GD: The gendered language of the nationality laws creates statelessness among children whose fathers are not eligible for Somaliland or Somali citizenship. The citizenship laws integrate the clan norm, where men are counted as members of the clan—not women—within the state law. Therefore, many children are rendered stateless by the law. This is particularly difficult taking into account that the nationality provided by Somaliland is already challenged internationally due to a lack of recognition. Both Somaliland and Somalia need to revise their nationality laws and remove the discriminatory clauses. 

The nationality granted by Somaliland has effective internal functions. However, it is almost useless externally. Nationality documents such as passports need recognition from other states to be useful outside of the territory of the authority that provided it. That is why Somaliland nationality is very important inside Somaliland but not that useful outside of Somaliland. Those with money and privilege seek other nationalities. The majority are negatively affected by the lack of recognition, and their freedom of movement is affected.

AM: The ongoing dispute between Somaliland and Somalia over sovereignty has significant implications for the future of children born and raised in Somaliland. How do you envision these abstract debates affecting the concrete realities of these children’s lives?

GD: The contested nature of Somaliland makes almost everything about it contested. Children’s rights are not protected internationally. Children’s right to nationality is contested. They cannot travel outside for education purposes, and their future when they become adults is uncertain. We must not forget that the contested status is prone to violence. Over the last couple of years, wars erupted in unrecognised states. In early 2023, war erupted in Las Anod town of Somaliland, where children were killed and wounded, and their schools closed. The children’s wing of the Las Anod main hospital was hit by shelling, according to the Medicine Sans Frontier.

In Gaza, thousands of children were killed, and in Nagorno Karabakh, the territory was violently taken over by Azerbaijan. All of these and other examples, including the re-emergence of violence in Western Sahara, illustrate the vulnerabilities of these territories deteriorated by the lack of certainty in relation to the applicability of international law.

I remember in the early weeks of the Las Anod conflict, the UN human rights chief issued a statement addressing Somalia but talked about actions taken by Somaliland. Somalia was not able to do anything on the ground, but the human rights bodies of the UN were avoiding attributing wrongfulness to the authority on the grounds, Somaliland. 

AM: I am deeply concerned about the homeless children and children facing mental health challenges, who can often be found wandering around without protection. It is evident that Somaliland lacks adequate laws to protect individuals with mental health issues. What recommendations do you have in addressing this critical issue?

GD: My research did not focus on mental health or homeless children. However, in my overall research of children’s rights in Somaliland and relevant laws, it is clear that Somaliland should do more. It seems that the state does not properly take its obligation seriously. The state is responsible for the homeless children. But when you see media reports and statements from politicians, they do talk about these issues from the perspective of charity, not from the duty bearer’s point of view. I think the view among the Somali people that children are the property of their parents is deeply ingrained in the thinking of leaders. They must know that children are rights holders who have agency. The government is under a legal obligation to protect children in Somaliland. 

AM: Most of the population in Somaliland is considered Muslim, where having children outside of marriage is generally considered forbidden. I am concerned about how civil laws, both at the national and international levels, can ensure the rights of children born out of wedlock, particularly in a religiously conservative society like Somaliland.

GD: This is a very important point. For example, the nationality law does not grant automatic citizenship by birth to children who are born out of wedlock. The system illegalises children born not in a marriage. Also, these children cannot access inheritance, maintenance, and other protections. This goes with the child all the way to adulthood. It will pose challenges in accessing education, marriage, jobs, etc.

AM: Early and child marriage, as well as child labour, are prevalent issues in Somaliland. (Children are often exploited in various industries, such as working as waiters in busy restaurants, shining shoes without any protection, serving as Driver Assistants in the trucking industry, and even being recruited as soldiers). What can be done to solve this sad state of affairs?

GD: Unfortunately, the laws of Somaliland do not prohibit child marriage. The Sharia governs marriage. The current understanding of Sharia in Somaliland is that child marriage is permissible. The early draft of the Child Rights Protection Act prohibited child marriage. It was later removed from the law. 

I think child labour is complicated and not that simple. The law does not allow child labour. But what is child labour? That is not clear legally, but it is not clear socially as well.  

I think an area we are not aware of, as we should be, is children, mostly girls, working as maids. These are girls from very low-income families. Some are sent from rural areas to distant family members in the hope that they may go to schools. Instead, many end up in a very dangerous situation where brutal families exploit them, and they are very vulnerable to sexual abuse. 

AM: Moving forward, considering the current state of children’s rights in Somaliland, what steps can be taken to safeguard this vulnerable population?

GD: I think the answer to this question may differ at different levels and aspects. It is imperative that international law becomes inclusive and takes into account the rights of children living in unrecognised states. There are options for human rights bodies to consider children in unrecognised states. We recently visited the UN Committee on the Rights of the Child to discuss with them how inclusive they should become. In the closing statement of the chairperson, the Committee first time took note of this situation. It is one step forward, but more concrete actions are required. 

My thesis provides some recommendations, and it is available on the university website for those who want to read more about the subject.

Domestically, Somaliland has an opportunity to revise its laws, make them compliant with the UN Convention on the Rights of the Child, and accord more robust legal protection to children. Socially, there is a need to raise awareness. Children are rights holders. That perspective must be integrated into social and state institutions. 

I also think there is a need to research the various aspects of children’s rights in Somaliland. 

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