DJIBOUTI

CASE N° DJI/09 - AHMED BOULALEH BARREH
CASE N° DJI/10 - ALI MAHAMADE HOUMED
CASE N° DJI/11 - MOUMIN BAHDON FARAH

Resolution adopted without a vote* by the Inter-Parliamentary Council at its 161st session
(Cairo, 16 September 1997)

The Inter-Parliamentary Council,

Having before it the case of Mr. Boulaleh Barreh, Mr. Mahamade Houmed and Mr. Bahdon Farah, of Djibouti, which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians in accordance with the " Procedure for the examination and treatment by the Inter-Parliamentary Union of communications concerning violations of human rights of parliamentarians ",

Taking note of the report of the Committee on the Human Rights of Parliamentarians (CL/161/10(a)-R.1), which contains a detailed outline of the case,

Taking account of a letter from the President of the National Assembly dated 8 September 1997,

Also taking account of the information provided by one of the sources at the hearing held on the occasion of the 98th Inter-Parliamentary Conference (September 1997),

Considering that Mr. Barreh, Mr. Houmed and Mr. Farah, members of the National Assembly, were expelled from their party, the RPP (Rassemblement du peuple pour le progrès), by its President, who is also the President of the Republic, and that they subsequently issued a press release launching a " solemn appeal to all activists ... and Djiboutians to come together and mobilise to thwart, by all legal and peaceful means, this deliberate policy of President Hassan Gouled Aptidon to rule by terror and force while trampling underfoot our Constitution and the republican institutions ",

Considering that, according to the President of the National Assembly, the Minister of Justice requested the lifting of their parliamentary immunity to permit their prosecution for offending the Head of State; that the Bureau of the National Assembly met on 12 and 15 June 1996 and, in conformity with the Standing Orders, decided to authorise their prosecution and adopted a resolution to that effect; that, by letter N° 141/AN/FW of 15 June 1996, he informed the Minister of Justice of that decision,

Considering that, according to the sources, the procedure for the lifting of their immunity was improper, that in particular the deputies concerned were not heard and that, contrary to the assertion of the President of the National Assembly, no resolution on the lifting of their parliamentary immunity was adopted and published in the Official Gazette of the Republic of Djibouti, as required under Article 64 of the Standing Orders,

Considering in this respect that, in its decision of 31 July 1996 on the appeal submitted by the deputies concerned, the Constitutional Council held that any decision of the National Assembly or its Bureau on a request for lifting of parliamentary immunity must be in the form of a resolution, and ruled that the letter from the President of the Assembly to the Minister of Justice informing him of the Bureau's decision did not constitute such a resolution; that it furthermore ruled that the lack of a hearing of the deputies concerned constituted a violation of the right of defence as guaranteed by national law,

Considering that, notwithstanding the ruling of the Constitutional Court which is binding on all the authorities, the three deputies were charged by the Public Prosecutor under Articles 187 and 188 of the Penal Code for insulting the Head of State; that they were sentenced by the Criminal Chamber of the Djibouti Court of Appeal on 7 August 1996 to a six-month prison term, a heavy fine and forfeiture of their civic rights for a period of five years; considering also that immediately afterwards they were arrested and taken to Gabode prison,

Considering that, on 17 November 1996, the Supreme Court upheld the ruling of the Court of first instance; that, however, according to the sources, the majority of the members of the Chamber of the Supreme Court which handed down the ruling were substitute members, not titular members as required by the provisions in force,

Considering also that, according to the sources, their trial was marred by numerous irregularities; that, before the trial, the Minister of Justice transferred and dismissed four judges of the court judging the matter without giving grounds and without the opinion of the High Council of the Magistrature, as would have been required,

Considering that, on the occasion of the month of Ramadan, the President of the Republic reduced their sentence and that they were consequently released but remain deprived of their civic rights, so that they will be unable to participate in the forthcoming parliamentary elections,

Noting that Article 175(2) of the Code of Penal Procedure provides that investigations shall be cancelled " should the rules specifically designed to ensure respect for the fundamental principles of the investigative procedure and the rights of the defence be violated ",

Considering that, according to the sources, the initiative for revision must come from the President or the Minister of Justice; that, in the sources' view, the lack of a resolution lifting the parliamentary immunity of Mr. Boulaleh, Mr. Mahamade and Mr. Bahdon, in addition to the violations of the rights of the defence, would constitute grounds for revision,

Considering further that, in a speech delivered on 26 June 1997 on the occasion of the 20th anniversary of the independence of Djibouti, the President of the Republic is said to have publicly granted his " pardon " to his fellow companions in the struggle for independence who worked to build the Nation,

Bearing in mind that, according to the sources, proceedings were instituted in early 1997 against two defence lawyers, Mr. Aref and Mr. Foulie, together with the President of the Constitutional Council, on the basis of reportedly unfounded accusations; that the latter person was dismissed; that many international organisations, including the Centre for the Independence of Judges and Lawyers, consider their prosecution arbitrary and linked to the case of the three deputies concerned,

Mindful of the fact that an incumbent member of Parliament wishing to give evidence to the Committee on this case at its Cairo session was prevented from travelling and had his passport confiscated,

1. Thanks the President of the National Assembly for his co-operation;

2. Emphasises that parliamentary immunity is granted to parliamentarians for the purpose of enabling them fully and freely to discharge their mandate and of protecting them against any politically motivated prosecution;

3. Also recalls that the invalidation of an MP's mandate is a very serious measure which must be taken in due legal form by the competent body according to the law and which must ensure that the parliamentarians concerned enjoy all the necessary guarantees for their defence;

4. Consequently expresses deep concern that the decision of the Constitutional Court of 31 July 1997, ruling that the rights of the defence were violated and the required resolution was lacking , has not been taken into consideration;

5. Regrets that the Committee has not received a copy of the resolution relating to the lifting of immunity of the deputies concerned, as published in the Official Gazette of the Republic of Djibouti;

6. Considers that, in issuing the press release that led to their conviction, the deputies concerned were merely exercising their fundamental right to freedom of expression, and fails therefore to understand how this could warrant their prosecution and conviction for insulting the Head of State, entailing a sanction so severe as to involve the loss of their civic rights;

7. Stresses that the right to freedom of speech is central to the functioning of parliamentary democracy and that Parliaments should consequently have a particular interest in ensuring that this right is made as extensive as possible and can be exercised without risk, in particular, of imprisonment;

8. Is concerned to note that this sentence will debar them from participating in the next legislative elections, to be held in December 1997;

9. Earnestly hopes therefore that the pardon which, on the occasion of the 20th anniversary of the independence of Djibouti, the President granted to his comrades-in-arms from the independence struggle will soon take effect and that, in any event, a review of their trial will be demanded by the competent authorities, and that measures will be taken to enable them to stand in the elections;

10. Is alarmed that an incumbent member of Parliament, without his immunity having been lifted, had his passport confiscated and was thus prevented from travelling to Cairo to convey information to the Committee, and urges the authorities promptly to lift any such restriction and fully restore the rights of the deputy concerned;

11. Expresses concern at the prosecution of the lawyers of the deputies in question and at the dismissal of the President of the Constitutional Court, and wishes to receive detailed information in this respect;

12. Requests the Secretary General to convey these considerations to the President of the National Assembly and to the competent judicial authorities;

13. Also requests the Secretary General to convey these concerns to the President of the Republic;

14. Requests the Committee on the Human Rights of Parliamentarians to continue examining the case and report to it at its next session (April 1998).

* The Djiboutian delegation expressed reservations with regard to the resolution adopted by the Inter-Parliamentary Council.

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