Legal Framework and Strategies for Protecting Persons With Disabilities

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Abstract 

According to the world report summary by WHO in December 2011, the estimated number of persons with disability ranges 1b or 15% of the world’s population, whereas the estimated number of persons living with disabilities in Somalia is believed to be 12-15% of the Somalia population as indicated by Rohwerder on asset.publishing.service.gov.uk in 2018. Probably many countries around the world have ratified the CRPD convention and respect the rights of Persons With Disabilities (PWDs) while quite a large number of countries ignored the rights of PWDs and give no protection any kind of welfare to PWDs.

Like any other persons living on earth PWDs have rights as indicated in the UDHR and in every constitution of every country around the world. The right to equality is the basic principle of human dignity as in natural justice. PWDs have rights and freedom which protects them and these rights and    freedoms need respected

This research paper or article however shall set prospective legal frameworks and strategies as mechanisms to provide protection to the rights of PWDs living in Somalia and tries to give pace or room for potential approaches to resolving the challenges, problems, and barriers faced by PWDs in getting access to justice.

Introduction

Somalia experiences prevalence and havocs of endless civil war, political instability, economic crisis, and very weak political administration for decades. The absence of political stability and strong powerful administration still remains intact and being the major factor, that resulted in the loss of national heritage. The country is in the process of recovering and making some progressive steps towards reforming and putting the renovation of the public services and facilities in place.

 

The most prominent and most potentials for good governance practice is the renovation of a very powerful rule of law which is the only mechanism and the tool for the beacon of justice. Every Somali citizen complains about the lack of justice in the system of administration as it is based on clan power-sharing, a very high level of corruption, bribery, smuggling, nepotism, racialism, and social discrimination. The forgotten human rights observation and violation of individual rights.

In this regard discrimination and marginalization of vulnerable group such as PWDs need to be put in place. The laws of the country didn’t put specific rights for PWDs in place that they face discrimination at every ground family members, community level and both in public and private institutions.

Local agencies such as Somali Disability Empowerment Network SODEN and others of their counterparts in collaboration with the international donor organization are on their way to set and establish a venue for advocating PWDs’ rights in Somalia. There are some joint programs that are funded by international donors and implemented by such local organizations as Expanded Access to Justice (EAJ) funded by USAID/ABA/PACT Somalia, Inclusive Education for PWDs by Save the Children and another Norwegian organization, and others like programs. All these programs are potentially meant to support PWDs in Somalia. The EAJ being the most prominent and most certain program that focuses on PWDs’ accessibility to getting justice in either of the existing justice pathways the customary law (xeer been), the Islamic Sharia, and the Formal Justice System (FJS).

The Islamic sharia and the customary laws of the country give protection to PWDs comprehensively. For instant, the Somali culture and customs norms give protection and respect to PWDs, although sometimes one may realize that the xeer system culturally shows positive discrimination against PWDs. For instant, people believe that PWDs can’t do anything, they can’t learn, they can’t work, they should not participate in decisions, politics, and even get no job opportunities. The culture of the people respects them.

positively, but on the other way around it discriminates. The Islamic sharia perfectly protected PWDs’ rights as it fully provided protection, job opportunities, right to education, health, right to participation and leadership, it treats them equally as others without disability. The FJS of the country or the laws of the country are very old and can’t withstand the situation of the country which experiences decades of destruction.

The Legal Frame Work

In order to set a legal framework for the purpose of protecting PWDs at the court of law and the xeer systems, this study demonstrates the articles available in the Somalia laws/the legal provisions to address/stipulate generally articles that prescribe the vulnerable groups generally and in particular to the PWDs. The penal code of Somalia of 1962, the criminal procedure code of f1962, the civil code, the civil procedure code of 1963, and the organization of the judiciary law 1963 address the vulnerable groups in various articles and in similar ways respectively. These articles can be used to defend PWDs at the court of law.

The Somalia Criminal Procedure Code

Art. 13 paragraph 2 and 3 hereto prescribe thus;

  1. the accused is presumed innocent until the conviction has become final.
  2. An  accused, after having been finally convicted or acquitted or after orders not

to  proceed   with the case have been lawfully given, cannot be charged again on

the same facts, even if those acts may be regarded as constituting a different offense, except under the provisions of the following paragraph of this Article or under the provisions of paragraph 2 of Article 77.

Article 15

The Defense

The accused may be defended by one or more defense Counsels.

In the cases indicated in sub-­‐paragraph (b) of paragraph 2 of Article 14 of the Law on the Organization of the Judiciary, the court shall appoint an ex officio defense Counsel for the accused whenever the accused has not appointed his own defence Counsels.

art. 103 par. 1/b indicates that the court should instantly take the responsibility of appoint a defender for the accused where the accused has no capacity to.

Article 103

The Opening of the Trial and the Charge against the Accused

The President of a Court:

having noted the presence of the accused and of the Attorney General, and

there having been appointed a defense Counsel for the accused when so required in accordance with the provisions of sub-­‐paragraph b) of paragraph 2 of Article 14 of the Law on the Organization of the Judiciary, when the accused, for whatever cause, has no defense Counsel,

Article 104

The Plea of the Accused

An accused may, in respect of each count:

raise any of the objections listed in Article 105;

plead guilty;

plead not guilty.

A refusal to plead shall be considered as a plea of not guilty.

Except when a plea of guilty is entered, defense Counsel may enter a plea on behalf of the accused.

Article 183

Deaf and Dumb Witnesses

In order to question, examine or administering an oath or affirmation to a person who is deaf or dumb or deaf and dumb, the following procedure shall be followed:

deaf persons shall be given the oath or affirmation and questions in writing; they shall take the oath or make the affirmation, and reply to the questions orally;

dumb persons shall be questioned orally and persons shall reply in writing; the oath or affirmation shall be read to them by the presiding Judge and then given to them in writing and they shall sign it;

deaf and dumb persons shall be given questions in writing and shall reply in writing; the oath or affirmation shall be given in writing and they shall sign it.

If a deaf, dumb, or deaf and dumb person does not know how to read or write, the Judge shall appoint one or more interpreters, preferably chosen from among persons who are accustomed to communicating with such person.

The Somalia Penal Code

Section I: Liability.

Art.   47.   (Capacity of   Understanding and at  Volition).   –    1.  –  No one may be punished for an act constituting an offense if,   at the time when he committed it, he was not liable.

Arl.  50. (Total  Mental  Deficiency).  –   Whoever,   at the moment when he committed an act,  was by reason of infirmity,  in  a   state of mind such as to preclude the capacity of understanding and of volition,  shall not be liable [47 P.C.].

Arl.  51. (Partial  Mental  Deficiency).  –  Whoever,  at the moment when he committed an act, was, by reason of infirmity, in a  state of mind such as largely to diminish, without precluding, his capacity of understanding or of volition [47 P.C.],  shall be liable for the offense committed,  but the punishment shall be reduced [119 P.C.].

Arl.  58. (Deaf  and  Dumb  Condition).

  1. – A  deaf and dumb  person who,  at the time when he committed an  act,  had not  the  capacity of understanding or of volition [47, 173, 176  P.C.],  by  reason of  his infirmity, shall not be liable.
  2. – If the capacity of understanding or of volition  [47  P.C.]  was  largely diminished, but not entirely nonexistent, the punishment shall be  reduced [118, 173 P.C]

Art.  59.    (Persons    Under   Fourteen    Years of  Age).   –

Whoever, at the time he committed an act,  had not attained fourteen years of age  [177 P.C.], shall not be liable [47 P.C.].

Art.  60.   (Persons   Under  Eighteen   Years of  Age).  –

  1. • Whoever, at the time  he  committed an  act,  had  attained  fourteen  years  of  age  but not eighteen years, shall be liable [47 P.C.] if he had the capacity of understanding and  of  volition, but   the   punishment   shall   be   reduced [119 P.C.]

2.3. The organization of the judiciary law

Art 8. Duties of the Office of the Attorney General

  1. it shall l be the ‹duty of the Office of the Attorney Genera1 to ensure in respect for the proceeding art. 7/c,  protect the  rights of  the  State and be part of the case of vulnerable organs and incapacitated persons. To this end, the Attorney
  2. shall either directly or through his deputies  or  through Police  officers  or  I inspectors-  authorized  by under the , instructional conduct all civil  proceedings;

b}    where   public  interest  is  involved,  he shall    institute   or  conduct,   or  intervene  in  civil proceedings

  1. c) as provided by,  appeals  in civil  and criminal matters

The investigation and suppression of crimes shall be carried out by the police under’ the direction of the Office of the Attorney G General

2.4. The Somalia civil code:

Issues of the minor, insane person, psychiatric person

Art. 109.

The minor person has no control over everything and what he can identify  is void .

Article 110

  1. A person who is a minor and can discern, whatever he does or deals with his [1]property, is valid if it is for his own benefit, but not if it is not for his own benefit.
  2. If such transactions are for the benefit of the minor, they may be revoked in the interests of the juvenile, but the right to cancel them may not be claimed if the minor agrees to the transaction after adult, or authorized by his or her legal guardian to administer his or her property in accordance with the Act

Article 112.

It takes away the self-control of the insane, the mentally retarded, the stupid and the paralyzed, and returns them in accordance with the procedure set out in the Act.

Article 113.

  1. any contract entered into by an insane person and the mentally ill shall be null and void if it is carried out after the ruling on self-determination has been registered.
  2. If it was carried out prior to the registration of the decision, the decision to self-govern shall be null and void if the parent’s or mental health situation is unknown at the time of the agreement or the other party is not aware of it.

[1] Organization of the judicial law of Somalia of 1972 art. 8 the duty of the AGO.

Somalia civil code of 1973. art. 109, 110, 112, 113, 114, 115, 116, 117, 118

Article 114

  1. Dealings made by a person who cannot control himself or herself as a result of stupidity or innocence, after the registration of a self-governing person, shall be governed by the rules of a minor who has no ability to discriminate.

Deals made before the decision is recorded, are null or void unless they result in collusion.

Article 115

  1. The act of impartiality or will made by a person who is pure or foolish shall be valid if the Court approves it.

A trustee who is authorized to manage his property shall be subject to any administrative action as long as it does not violate the law.

Article 116

  1. If the person is deaf, dumb, or blind, and is unable to express his or her illness because of the disease, the Court may appoint a Legal Assistant to assist him or her in the administration of his or her interests.
  2. Any administrative action taken against a person who has been appointed as a Legal Assistant may be revoked, provided that such administration was established without the assistance of the Legal Assistant after the record of the support decision has been registered.

Article 117

Administrative actions carried out in a legal by legal councils  and stakeholders is the law shall be passed if it is off

Article 118

A person who is not in a position to do so has the right to ask for the contract to be annulled, without the risk of being sentenced to pay damages if he commits any serious crime that conceals his incapacity.

As indicated in the above articles in the various laws or codes utilized legally in Somalia, the legal provision hereto addressed may be the probable measures to use at the court of law while an attorney or defends or represents PWDs at court.

Probably, the constitution of Somalia sets personal individual citizens rights which PWDs are party to therein. The basic principles of UDHR being equity for all before the rule of law, it avoids perpetration and or breach of or any violation of human rights, which is basically fundamental rights. This doctrine deters total discrimination against any person living on earth wherever, whenever and whoever. The stipulation of zero discrimination and the admissibility of no race, no color, no religion, no culture, and the benefiting of this opportunity has formed global integration and interaction.

The Islamic Sharia

The Islamic sharia is major and supreme law of the land. As a Muslim community, Somalia has always believed in the Islamic sharia. In regard to this study,  the Islamic sharia has protected PWDs as mentioned in several verses and chapters of the Holy Quran. For instant in surat-ul Al-nisa, surat-ul-Alnuur, surat-ul-Alfath and surat-ul-Abasa was stated that there no burden on the vulnerable groups such as the blind (the disable in general) the sick and the likes like the elderly. ليس علي الاعمي حرج ولا علي المريض حرج ولا

علي الاعرج حرج This verse clearly state that the vulnerable groups are protected by the Islam, on the other hand  the Islamic religion grantees PWDs the rights to education, health, marriage, Haj, worship as others do, the right to decision making participation and

leadership. In some narrations mention that one of the followers prophet Mohamed Salalahu Alayhi Waslam (Abdalla bin Umaya) who was blind was once appointed as the acting chancellor of Madina town the central administration for the Islamic government at that time. He was also once appointed to be the chancellor for Yemen Regional Administration. On the other hand Surat-ul-Abasa was revealed because of him, as disable man yet very honest, loyal, and influential leader

وما يدريك لعله يزكي  ان جاءه الاعمي   عبس وتولي

In this case the Islamic sharia grantees equality amongst all people regardless of their status in live and in person. More will be discussed in the next study on the Islamic sharia.

The Somalia Customary law (the Xeer Soomaali system)

Intern. Conf. on Social Science (Dec 2018) The Xeer’s oral tradition and emphasis on long-lasting relationships make it effective in a different way. my research argues that Xeer is the most effective way to mediate and resolve the conflict in Somalia given how well it works within Somaliland and Puntland. This paper also focuses on the role and effectiveness of clan elders in confronting socio-economic, and legal disputes. This study describes the process and the mechanisms utilized by clan elders (traditional mediators) in resolving conflicts within the Somali community. I explain the kinds of disputes, explore the ways elders interpret clan customs and demonstrate why certain approaches are effective, which may benefit international actors as well. Xeer and clan elders have the power to put aside differences and grant peace back to the community, if empowered as in the example of Somaliland and Puntland.

Somalia is a country uniquely distinguished by homogeneity people who share a common heritage of identity, not limited to, but, ethnicity, language, culture, religion, norms and values in their ways of life. Dating back to ancient history, this universal bond as has been exclusively the core of their overall distinctiveness. The clan tree has been an essential pillar of their unity and sometimes outplayed a division item depending on the periphery of changing periods, paradigm and trends of issues in the lens of history. In Somalia, throughout recorded history, ethnicity and cultural architect based on clan and tribal customs and values, enormously superseded any contemporary governance systems. Before colonialism, Somali life was nomadic in nature and without complexity. Individuals and families belonged to a clan, which provided the only necessary government for survival in nomadic culture. “The Somali family is the ultimate source of both personal security and identity. The family is deeply valued and serves as a safety net—a sort of social welfare—for many Somalis; thus, it is important to protect family honor” (Putman and Noor, 1993).

In this context, it clear that the Somalia Xeer system has ever been used to resolve disputes between individuals, families, and clan level. Though it has not been articulated or coded it has traditionally survived between clan based agreements, decisions, solving disputes, contracts and the likes and it worked just like the common law of the UK and the US.

It the protection of the PWDs, these group are among the family members and they are hurt or they hurt, they can access to justice though xeer system whether the subject matter be tort, civil or criminal whatsoever the case might be, the case law are available within the community elders in form informal court system. People have always respected the decision, the result, adjucation and execution of the case, for instant they may decide certain remedial amount of  number of animal, or money on the basis of the subject matter.

The Convention of the Rights of Persons with Disabilities

UNDESA (2016)  The Convention on the Rights of Persons with Disabilities and its Optional Protocol (A/RES/61/106) was adopted on 13 December 2006 at the United Nations Headquarters in New York, and was opened for signature on 30 March 2007. There were 82 signatories to the Convention, 44 signatories to the Optional Protocol, and 1 ratification of the Convention. This is the highest number of signatories in history to a UN Convention on its opening day. It is the first comprehensive human rights treaty of the 21st century and is the first human rights convention to be open for signature by regional integration organizations. The Convention entered into force on 3 May 2008.

The Convention follows decades of work by the United Nations to change attitudes and approaches to persons with disabilities. It takes to a new height the movement from viewing persons with disabilities as “objects”  of charity, medical treatment and social protection towards viewing persons with disabilities as “subjects” with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society.

The Convention is intended as a human rights instrument with an explicit, social development dimension. It adopts a broad categorization of persons with disabilities and reaffirms that all persons with all types of disabilities must enjoy all human rights and fundamental freedoms. It clarifies and qualifies how all categories of rights apply to persons with disabilities and identifies areas where adaptations have to be made for persons with disabilities to effectively exercise their rights and areas where their rights have been violated, and where protection of rights must be reinforced.

The Convention was negotiated during eight sessions of an Ad Hoc Committee of the General Assembly from 2002 to 2006, making it  the fastest negotiated human rights treaty.

The Guiding Principles

Below  are the eight guiding principles that underlie the Convention and each of the principles has its own articles that lie under it. However these are the main guiding principle that should be followed and respected. Somalia has not ratified the convention yet as it is under process as an a Bill before the parliament. It is expected that the 11

parliament of the country to pass the act so that the government should ratify and it will bound to Somalia government as the act shall be effectively used and function well.

Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons

Non-discrimination

Full and effective participation and inclusion in society

Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity

Equality of opportunity

Accessibility

Equality between men and women

Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities

In consideration to the above guiding principle can be part of the lawyer’s argument at court when defending any individual PWDs who has been injured or whose rights have been violated.

Findings and Conclusion

After having practiced the three plural justice pathways in the court and in the xeer system, during the conduct of this research, the lawyer found out that it is advisable to utilize a new system of a legal framework that would be more convenient to solve problems and defend PWDs at court and the xeer forum during problem-solving or defending PWDs at the court of law. For instant

The best alternative when using the xeer system to resolve case might be a Mixed system; the mixed system means that, so long the community respects both the xeer the Islamic sharia at this level of practicing or exercising the xeer system the forum should consist of both the traditional elders and the religious-affiliated groups who are both respected in the community and the adjudication or the decision will be fair

This paper also emphasizes that Signing of a consent letter; the plaintiff/client who contacted who would be helped and provided legal aid and assistance should sign a consent letter which will be binding to them when necessary for evidence and verification at court during the representation.

The only pillar missing in the Somalia justice system is the enforceability after adjudication or the court decision. Enforceability strategies; when the case is completed and the final decision is released and both parties accepted,  both parties should be  requested to sign the agreement between them or the final decision reached at so that  the agreement can be binding to both parties.

Witness signature; post-decision,  it is advisable that the elder who are the mediators of the case to sign the final decision and agreement as  witness, the religious leaders should also sign the document to be very strongly binding, other wise, as we always see the case may not end as either of the parties may withdraw from the agreement and may violate the subject decision as it was oral. This shall make the final decision more strong and bound between parties.

Liability has undertaken; the liability of the breach of the agreement or the contract by either parties of the case to be liable by elders of both parties who are the signatories of the final decision.

 

 

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