Devastating Amnesty Int’l Report Heralds the End of Somaliland’s Secessionism – Part II

In a previous article entitled "Somaliland’s Definite Rejection from the World Community Underscored by Amnesty Int’l Report–Part I"
(http://www.americanchronicle.com/articles/view/95769),
I republished the new Amnesty International Report on Somalia that focuses on Human Rights’ violations in Somalia’s northern provinces that were forced to separate and form – due to malignant involvement of the racist Abyssinian tyranny – a secessionist, anti-Somali pseudo-state that nobody recognizes, "Somaliland". This Somali shame is predestined to end in the forthcoming elections that are the occasion for the Northern Somalis to express their willingness to get international recognition through merge with the other parts of Somalia and following a leading role that the Northern Somalis can effectively play in this regard.

In the present article, I republish further parts from the devastating Report; for better understanding of the Report’s scope and significance, I also include the Contents.

Somalia: Human Rights Challenges: Somaliland Facing Elections
http://www.amnesty.org/en/library/info/AFR52/001/2009

Index Number: AFR 52/001/2009
Date Published: 17 March 2009

In the lead up to, during and after the upcoming presidential and local elections, scheduled for 2009, both the Government of Somaliland and the international community should pay greater attention to the overall human rights situation in Somaliland and consider ways to protect human rights. Amnesty International has been monitoring, reporting on and promoting human rights in Somaliland since 1991. This report offers recommendations to improve the respect, protection and promotion of human rights in Somaliland.

Somalia: Human Rights Challenges: Somaliland Facing Elections
http://www.amnesty.org/en/library/asset/AFR52/001/2009/en/ec9271de-98aa-4ec4-a85e-500f901375a6/afr520012009en.pdf

Contents
1. Introduction..........................................................................................................2
2. Background .........................................................................................................3
3. Security Committees, Forced Returns and Unlawful Detentions................5
a. Security Committees ..........................................................................................5
b. Forced Returns ....................................................................................................7
c. Prisoners of Conscience: Journalists and Freedom of Expression ...............8
d. Prisoners of Conscience: Political Opposition Figures...................................8
4. Displaced Persons in Somaliland ....................................................................10
5. Human Rights in eastern Somaliland..............................................................13
6. Somaliland under International Law ..............................................................15
7. Defending Human Rights in Somaliland .......................................................17
8. Conclusion: Not Yet Equal Justice under Law as Elections Approach …..20
9. Recommandations...............................................................................................22
Appendix I ...............................................................................................................25
Appendix II ..............................................................................................................26

3. Security Committees, Forced Returns and Unlawful Detentions

Somaliland government officials have expressed reasonable concern over the 2008 suicide bomb attacks and other security-related matters, they have also on occasion attempted to use such concerns to justify arbitrary arrest, detention without charge or trial, and surveillance of members of civil society.4 In addition, in January 2009, Somaliland’s cabinet was reported to have unanimously approved a new anti-terror law, but neither the specifics of its content nor the process of parliamentary approval had been made clear at the time of writing of this report.

A. Security Committees

The Government of Somaliland continues to utilize its National Security Committee and Regional Security Committees (NSC and RSCs), regularized in the late 1990s, for the purposes of maintaining domestic security and carrying out arrests and detentions, without the normal oversight of national justice mechanisms. The National Security Committee is chaired by the Minister of the Internal Affairs whereas the Regional Security Committees are chaired by regional governors, who are appointed by the Minister of Internal Affairs.

Regional and district-level security committees are comprised of governors, mayors, police chiefs, and local security officials. These Security Committees are ostensibly authorized under and loosely based on the Public Order Law of 1963 and the Somali penal code carried over from the Republic of Somalia under Siad Barre. The use of the Security Committees was challenged by the Lower House of Parliament in a resolution in 1999, but although parliamentarians have condemned the extra-judicial powers of these Committees, no further action has been taken to review their legitimacy or curtail their use.

An undetermined number of individuals have been arrested and detained under the authority of Somaliland’s non-transparent National and Regional Security Committees, exercising extra-judicial powers, with a notable increase in reports of such arrests since the suicide bomb attacks of October 2008. By some accounts those detained by the National and Regional Security Committees could comprise more than a quarter of detainees throughout the territory. Information provided to Amnesty International indicates that a significant percentage of prisoners currently detained in Mandhera Prison, some 90 km outside Hargeisa, were arrested under NSC or RSC authority, bypassing Somaliland’s formal justice mechanisms entirely.

Detainees have generally been held for periods of six months to a year without charge or trial, with some held for more than three years, in clear violation of Somaliland’s Constitution and of the provisions of the International Covenant on Civil and Political Rights (ICCPR). It has also been reported that some prisoners, presumed to have been detained on the authority of National and Regional Security Committees, are detained incommunicado in Somaliland prisons while on remand awaiting trial.

The Universal Declaration of Human Rights (UDHR) provides the right to liberty (Article 3) and security of person and the right not to be arbitrarily arrested or detained (Article 9), as well as the right to the presumption of innocence and fair trial (Article 11). Under the ICCPR, "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law" (Article 9). Article 14 sets out the right to fair trial, including the principle that "Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law," and it sets out essential minimum procedural safeguards in this regard. Somaliland has a legal obligation under Article 10 of its Constitution to respect the UDHR and to comply with the ICCPR.

Somaliland’s legal obligations to respect, protect and promote human rights, as stated in its Constitution, also include: the right to liberty, and freedom from arbitrary arrest and detention (Article 25), presumption of innocence (Article 26), and rights to legal representation, the guarantee of appearance in court within 48 hours after arrest and limits on pre-trial detention, and detention only in locations determined by law (Article 27).

The process of bringing Somaliland’s laws into conformity with its Constitution is ongoing, and the Supreme Court is deemed the ultimate arbiter over constitutional and other legal disputes. But the Supreme Court has to date lacked the capacity to carry out such functions.5

In 2004, both opposition political parties reportedly wrote to the Supreme Court expressing concern about the activities of the Security Committees but received no response. In 2007 the Supreme Court reportedly refused to accept a case on behalf of nine individuals detained by Regional Security Committees, which challenged the legality of those committees’ actions.

Even if the Public Order Law of 1963 is considered valid in Somaliland, it would only allow authorities to enforce public order under current laws—including constitutional and international human rights provisions with regard to lawful arrests, detentions and trials.

Even if the Government were to officially declare a state of emergency, which to date it has not done, such a state of emergency and specific measures taken under it should be subject to the strict conditions imposed by international human rights standards and the Constitution, including the presentation of emergency decrees to both houses of parliament for ratification, and quarterly reviews. Moreover, the constitutional provision of article 10 would mean that Somaliland would have to comply with the procedural requirements for declaring a state of emergency and any derogation, notably submitting immediate notification of a declaration of a state of emergency to the United Nations, including information on the provisions it has derogated from and the reasons for such measures.6

On the basis of Somaliland’s constitutional requirements, the behaviour of the Security Committees should be bound by international human rights law, including the ICCPR and the African Charter on Human and People’s Rights (African Charter). While the ICCPR (Article 4) permits states in very tightly defined circumstances to take certain measures derogating from certain of their obligations under that treaty in times of public emergency, no such emergency has been declared in Somaliland.7 In any event, certain obligations under the ICCPR cannot be derogated from in any circumstances, even in time of public emergency.

These include the obligation to respect and protect the right to life, the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment, and the right to freedom of thought, conscience and religion, the right not to be arbitrarily arrested or detained, and fundamental elements of the right to fair trial including the presumption of innocence, as well as other norms of general international law.8

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Moreover, the UN Human Rights Committee, the body of independent experts established under the ICCPR to monitor its implementation by states, has stipulated that the obligation to limit any derogations to those strictly required by the exigencies of the situation applies also to each specific measure, which must also reflect the principle of proportionality.9 Somaliland has, under Article 10 of its Constitution, also accepted obligations under the African Charter, which contains no such provision for derogation.

Amnesty International has also received information regarding the general lack of independence and overall capacity of Somaliland’s national justice system, with many civil and criminal cases handled by local arbitration in what is often referred to as an "alternative justice system." In fact, Somaliland’s legal system functions at several levels—under Islamic law (Sharia), traditional or customary law (Xeer), and statutory national law, depending on the location and circumstances of a case. On numerous occasions clan elders have simply resolved cases and returned their verdicts to the local or regional court for endorsement.

While there are obvious oversight problems with this hybrid system, it has also been credited with the decreased application of the death penalty in Somaliland. Still, according to the Custodial Corps of the Ministry of Justice in Hargeisa, 38 persons were convicted and sentenced to death in 2006 and 2007 in Somaliland.

Nine persons were reportedly executed in 2006 and 2007 in Burao, Hargeisa and other locations. Amnesty International holds that the death penalty violates the right to life and is the ultimate cruel, inhuman and degrading punishment. It opposes the death penalty in all cases without exception regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to kill the prisoner.

B. Forced Returns

In October 2008 Somaliland security officials reportedly forcibly returned an Oromo man, who had been granted political asylum under the Egal administration, to Ethiopia where he is believed to be held in detention near the Ethiopian town of Harar.

The Government of Somaliland detained without access to legal remedy, then returned, five Ethiopian men originating from the Somali region of Ethiopia (known as the Ogaden) from Hargeisa to Ethiopia in October 2007, in clear violation of international human rights law.10

They may still be held incommunicado in military custody in Jijiga, Ethiopia, where they are at serious risk of torture or other ill-treatment. They had allegedly been arrested at the request of Ethiopian authorities in Hargeisa.11

Amnesty International has called on the Government of Somaliland to refrain from transferring anyone to the custody of another state unless that transfer is carried out under due process of law and in accordance with international standards, and not without the opportunity for the UN High Commissioner for Refugees (UNHCR) to have access to anyone who may be seeking asylum or protection.

Forced returns from Somaliland to Ethiopia represent a violation of Somaliland’s obligations under the 1951 Convention relating to the Status of Refugees, as well as the UN Convention against Torture and customary law. These actions and the reported presence of Ethiopian intelligence officials in Hargeisa have caused rampant fear among displaced persons fleeing southern and central Somalia and the Somali region and other regions of Ethiopia to Somaliland.

C. Prisoners of Conscience: Journalists and Freedom of Expression

Under Article 32 of Somaliland’s Constitution, "Every citizen shall have the freedom, in accordance with the law, to express his opinions orally, visually, artistically or in writing in any other way." In addition, "the press and other media are part of the fundamental freedoms of expression and are independent.

All acts to subjugate them are prohibited…."Article 19 Section 2 of the ICCPR states "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."

The Government of Somaliland has at times arbitrarily arrested journalists it perceives as having questioned its credibility or authority, detaining them for generally short periods of time.

On 5 September 2008 police arrested two Radio Las Anod journalists, Abdiasis Ahmed Suleyman and Mohamed Ali Elmi, reportedly for their criticism of administration policy in the region. They were detained for six days without charge.

Three journalists working for Somaliland’s independent Haatuf Media Network were arrested and charged on 2 January 2007. The journalists were detained after publishing a number of articles beginning in November 2006 alleging corruption on the part of the president and his family. Editor Ali Abdi Dini was charged with "offending the honor or prestige of the Head of State" and "instigation to disobey the law." Editor-in-Chief Yusuf Abdi Gabobe was charged with "resisting a public officer" during his arrest. On 4 March 2007, Gabobe was sentenced to two years’ imprisonment for "obstruction of a police officer," and Dini and Sheikh Ibrahim were sentenced to 29 months for "reporting false information about the government, discrediting the president and his family and creating inter-communal tension." On 29 March 2007 President Riyale issued a decree pardoning the three Haatuf journalists and they were released from Mandhera Prison.

D. Prisoners of Conscience: Political Opposition Figures

Dr. Mohamed Gabose, Mohamed Hashi Elmi and Jamal Aideed, the leader and deputies of the political association Qaran, were sentenced on 19 August 2007 to three years and nine months' imprisonment and banned from political activities for five years on charges of "seditious assembly," on the grounds that they held illegal public political meetings. They refused to participate in their trial in the absence of their defence lawyers, who also refused to participate, claiming a fair trial was impossible. Amnesty International considered the Qaran leaders prisoners of conscience, arrested and charged solely due to their peaceful intentions to participate in their country’s electoral process.12

Somaliland’s constitution allows for the formation of political parties and protects freedom of assembly and association, but limits the legal number of national parties to three; those which obtained the highest vote in the 2002 local elections are considered by the government the three "permanent" national political parties. This limit was established in order to avoid a multiplicity of parties created along clan lines, but no explicit provision was established to allow for new parties to emerge.

The three recognized parties which have been legally registered are: the ruling party of President Dahir Riyale Kahin, the United People’s Democratic Party (UDUB), the Justice and Welfare Party (UCID) led by Faisal Ali Hussein (Warabe), and Kulmiye (Unity) led by Ahmed Mohamed Silanyo.

Government officials argue that the debate over the legality of a fourth party is subject to judicial interpretation. However, no case has been brought before the courts, and Somaliland’s justice system, now under review and proposed reform, does not yet possess the capacity to address this issue.

Amnesty International was granted access to visit the Qaran leaders in Mandhera Prison in early December 2007. All three Qaran officials were released on 18 December 2007.

Amnesty International calls on the Government of Somaliland to respect, protect and promote human rights, in particular during the 2009 elections, including:
- The right to freedom of expression, which includes the right to receive information and ideas of all kinds; this requires a commitment by the government to respect the freedom of the press to enable it to carry out its role of providing information to the population of Somaliland.
- The right to freedom of association and peaceful assembly, and the right to take part in public affairs, freely and without fear.
- Freedom from discrimination on the grounds of clan, ethnicity or gender, or any other grounds.
- Freedom from arbitrary detention and right to fair trial
- The right to life, and freedom from torture and other cruel, inhuman or degrading treatment.

End Notes

1 Somaliland had, until early 2008, consisted of the regions of Awdal, Woqooyi Galbeed, Togdheer, Saahil, Sanaag and Sool. Somaliland’s President has since altered this configuration.

2 In addition other several minor bombings took place in 2008, resulting in civilian injuries in Hargeisa. These include small detonations at the Guurti office and the office of a cabinet minister, although it is unclear who carried out these attacks.

3 Amnesty International, Somalia (Somaliland/Puntland): Amnesty International condemns bomb attacks in Hargeisa and Bossaso, (AI index: AFR 52/018/2008).

4 For example, a prominent Somali journalist and a prominent Somali human rights advocate were detained in the wake of the suicide bomb attacks in October, but were released within days.

5 The court system in Somaliland has an insufficient number of professionally trained personnel, including lawyers and judges. It also lacks the basic resources necessary to hire staff or provision its offices.

6 Article 4, ICCPR, Human rights Committee General comment No, 29, para. 17

7 Article 4 of the ICCPR provides that in time of public emergency which threatens the life of the nation, and which is officially proclaimed and notified to the UN, states can take measures derogating from certain of their ICCPR obligations, but only to the extent strictly required by the exigencies of the situation and so long as such measures are not inconsistent with their other international legal obligations.

8 Any suspension of fair trial rights by a state must be strictly required by the situation. The principle of proportionality requires that the suspension of obligations must be reasonable in light of what is necessary to address an emergency threatening the life of the nation. It also requires that the necessity of the derogation must be reviewed at regular intervals by the legislative and executive branches.

9 Human Rights Committee, General comment No 29, states of emergency (Article 4 of the ICCPR), UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001

10 Amnesty International, Somaliland: Fear of torture/Incommunicado detention/forcible return , (AI index: AFR 25/026/2007);

11 The Ogaden National Liberation Front (ONLF) has been engaged in continual armed conflict against the Ethiopian armed forces in the Somali Region of Ethiopia for the past 14 years. Since May 2007, when the ONLF attacked a Chinese oil installation, and Ethiopian military operations mounted, Ogadeni refugees fleeing human rights violations have increasingly sought safety in Somaliland.

12 Amnesty International, Somaliland: Opposition party leaders jailed after unfair trial, defence lawyers fined and banned from practicing, (AI index: AFR 52/014/2007).