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Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Somalia (RATIFICATION: 1961)

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The Committee notes with deep concern that the Government’s report, due since 1992, has not been received. In light of its urgent appeal launched to the Government in 2019, the Committee proceeds with the examination of the application of the Convention on the basis of the information at its disposal. The Committee welcomes the ratification by Somalia of the Violence and Harassment Convention, 2019 (No. 190) on 8 March 2021.

Pending legislative reforms. The Committee notes, from the Government’s report sent to the United Nations Human Rights Committee in 2021, that: (1) a draft Labour Code was adopted and was pending enactment; and (2) a draft Sexual Offences Law, which criminalizes sexual harassment, was approved by the Cabinet in 2018 (CCPR/C/SOM/1, 30 June 2022, paragraphs 85 and 86). In this regard, the Committee notes that, in her report, the Independent Expert on the situation of human rights in Somalia recommended that the Government adopt the revised Labour Code, conduct inspections and produce an annual report on compliance with labour standards by public and private entities (A/HRC/51/65, 19 August 2022, paragraph 111 (d)). In addition, the Committee notes that, in the context of the Universal Periodic Review (UPR), the Government states that the draft of the new Constitution and the draft of the new Penal Code were expected to be ready by 2022 (A/HRC/WG.6/38/SOM/1, 26 February 2021, paragraphs 7 and 24). While being aware of the peace, security and humanitarian challenges faced by the country and its people, the Committee requests the Government to provide information on any progress made in the adoption process of: (i) the draft Labour Code; (ii) the draft Sexual Offences Law; (iii) the draft Constitution; and (iv) the draft Penal Code, and to indicate the relevant provisions of these texts in relation to equality and discrimination, including harassment and sexual harassment. Please provide copies of these texts once adopted.

Article 1 of the Convention. Protection of against discrimination. Definition and prohibition. The Committee notes that the Provisional Constitution of 2012 provides that: (1) “all workers […] have a special right of protection from [...], segregation and discrimination in the workplace” (article 24(5)); (2) “all citizens, regardless of sex, religion, social or economic status, political opinion, clan, disability, occupation, birth or dialect shall have equal rights and duties before the law” (article 11 (1)); (3) “the State must not discriminate against any person on the basis of age, race, colour, tribe, ethnicity, culture, dialect, gender, birth, disability, religion, political opinion, occupation, or wealth” (article 11(3)); and (4) “discrimination is deemed to occur if the effect of an action impairs or restricts a person’s rights, even if the actor did not intend this effect” (article 11(2)). While welcoming the implicit reference to indirect discrimination in article 11(2) of the Constitution, the Committee recalls that the definition of discrimination included in Article 1(1)(a) of the Convention encompasses any discrimination, in law or in practice, direct or indirect, whether consisting of acts or omissions, that may affect equality of opportunity and treatment in employment and occupation, and covers discrimination both by public authorities and private actors, such as an employer or a co-worker. The Committee notes that the lists of prohibited grounds of discrimination contained in article 11(1) and 11 (3) of the Constitution differ between each other and do not include all the grounds of discrimination prohibited under in Article 1(1)(a) of the Convention, in particular social origin – which differs from social status. The Committee emphasizes that clear and comprehensive definitions of what constitutes discrimination in employment and occupation are instrumental in identifying and addressing the many manifestations in which it may occur, including both direct and indirect manifestations affecting equality of opportunity and treatment and discrimination-based harassment as a serious form of discrimination. It also recalls that constitutional provisions providing for equality of opportunity and treatment, although important, have generally not proven to be sufficient to address specific cases of discrimination in employment and occupation. A more detailed legislative framework is also required (see , paragraph 851). The Committee invites the Government to include in the new draft Constitution provisions explicitly defining and prohibiting discrimination in line with the Convention and covering, at least, all grounds listed in Article 1(1)(a) of the Convention and any other grounds the Government wishes to address and to provide information on any steps taken in this regard. Within the framework of the ongoing legislative reforms, the Committee encourages the Government to consider including in the future Labour Code, or in a specific legislation, such provisions covering all aspects of employment and occupation, including access to employment.

Articles 2, 3 and 5. Equality of opportunity and treatment between men and women. Special measures. The Committee recalls the observations made by the Federation of Somali Trade Unions (FESTU) in 2018, according to which, in practice, Somali women workers face serious obstacles to full and equal participation in the workplace. The union adds that, at a time when widespread violence has thrust many women into the role of breadwinner for their families, women workers do not get the rights and the benefits allowed by the Convention and by the Constitution of Somalia as well as the necessary protection from those who do not want to see women working. The Committee notes that article 24(5) of the Provisional Constitution provides for a special right to protection for all workers, in particular women, from sexual abuse, segregation and discrimination in the workplace and also states that every labour law and practice shall comply with gender equality in the workplace. The Provisional Constitution also provides, pursuant to article 27(5), that “it shall be ensured that women, the aged, the disabled and minorities who have long suffered discrimination get the necessary support to realize their socio-economic rights”. The Committee notes from the Government’s report to the UPR of the United Nations Human Rights Council that the National Gender Policy was reviewed and contains a roadmap towards gender equality and women’s empowerment (A/HRC/WG.6/38/SOM/1, 26 February 2021, paragraph 46). At the same time, the Committee notes from the report of the Independent Expert on the situation of human rights in Somalia that inequality in Somali society is entrenched, reinforced by clannism robbing women of equal participation in public life, access to justice, healthcare, equal opportunities to education, employment, and protection from economic and political violence. The report also indicates that no legislative progress has been made [from 1 July 2021 to 30 June 2022] to advance gender equality and empower women in Somalia. (A/HRC/51/65, 19 August 2022, paragraphs 66 and 75). The Committee requests the Government to provide information on any measures taken to address the obstacles faced by women to fully enjoy equality of opportunity and treatment in employment and occupation and on the results achieved and, in particular, any measures taken or envisaged to implement: (i) the National Gender Policy; (ii) the Somali Women’s Charter published in 2019 by the Ministry of Women and Human Rights Development; and (iii) article 24 (c) and article 27(5) of the Provisional Constitution. It also requests the Government to provide any available statistical data, disaggregated by sex, on the employment of men and women in the various economic sectors of the economy.

Equality of opportunity and treatment irrespective of social origin. Minority clans. The Committee refers to its previous comments about measures which may affect the application of the Convention by limiting equality of opportunity and/or treatment in employment and training in the private and public (including military and paramilitary) sectors for the Issaq Clan or other clans. It recalls that discrimination against a clan, or grouping of families, would be covered by the Convention's prohibition of discrimination on the basis of, inter alia, social origin and political opinion, especially when based on support for a political opposition. The Committee notes from the compilation report prepared in 2021 for the UPR of the United Nations Human Rights Council that : (1) minority clans continued to be marginalized; (2) they were squatters, with no land rights or shelter; and 3) school dropout rates for children of minority clans were high, particularly for girls (A/HRC/WG.6/38/SOM/2, 26 February 2021, paragraph 16). The Committee requests the Government to provide information on any measures taken to ensure that men and women belonging to minority clans enjoy equality of opportunity and treatment in employment and occupation on an equal footing with the rest of the population. It also encourages the Government to undertake an assessment of their situation in employment and occupation in cooperation with the social partners and the interested groups, and to provide information on the findings and the follow-up actions envisaged.

Article 3(a). Cooperation with workers’ and employers’ organizations. Recalling the Government’s earlier indication about promotional activities undertaken in collaboration with the social partners, the Committee reiterates its request for information on the educational and informational programmes designed, in collaboration with employers' and workers' organizations, to improve awareness of features of discrimination and to promote equality of opportunity and treatment, including a list of those carried out and information on the means used for disseminating them.