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 162nd session (Windhoek, 11 April 1998)

The Inter-Parliamentary Council,

Referring to the outline of the case, as contained in the report of the Committee on the Human Rights of Parliamentarians (CL/162/11(a)-R.1), and to the resolution adopted at its 161st session (September 1997) concerning the case of Mr. Ahmed Boulaleh Barreh, Mr. Ali Mahamade Houmed and Mr. Moumin Bahdon Farah, of Djibouti,

Taking account of the information and observations provided by the Djibouti delegation at the hearing held on the occasion of the 99th Inter-Parliamentary Conference (April 1998),

Recalling that Mr. Barreh, Mr. Houmed and Mr. Farah were sentenced on 7 August 1996 to six months' imprisonment, payment of a heavy fine and deprivation of their civic rights for five years under Articles 187 and 188 of the Penal Code for having insulted the Head of State by publishing on 25 May 1996 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 "; recalling also that they were arrested immediately and taken to Gabode prison,

Recalling that, according to the President of the National Assembly, following a request for the lifting of their parliamentary immunity presented by the Minister of Justice, 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,

Recalling 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,

Recalling in this respect that, in its decision of 31 July 1996 on the appeal of the deputies concerned against the decision to lift their immunity, 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 the Constitutional Council further ruled that the lack of a hearing of the deputies concerned constituted a violation of the right of defence as guaranteed by national law,

Recalling that, according to the sources, their trial was flawed by numerous irregularities; that, before the trial, the Minister of Justice reportedly transferred and dismissed four judges of the court dealing with the matter without giving grounds and without seeking the opinion of the High Council of the Magistrature, as would have been required under the law; that they were not summoned to the Court in due and proper form, for which reason none of them could appear,

Considering that, according to the Djibouti delegation, the judges had not been removed but, as their term had expired, had been replaced; that the other judges, who were moreover in favour of the deputies concerned, remained in office,

Recalling that, on 17 November 1996, the Supreme Court upheld the ruling of the Court of first instance; that, however, according to the sources, a 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,

Recalling 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 were unable to participate in the parliamentary elections which took place on 19 December 1997,

Noting that Article 175(2) of the Code of Criminal 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 ",

Noting moreover that Article 472(5) of the Code makes provision for a case to be reviewed when a decision is flawed by an obvious error of fact or of law such as to influence the sentence, and that paragraph 4 also provides for this possibility when " any new development or previously unknown fact such as might cast doubt on a convict's guilt arises or is revealed after sentencing ",

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

Considering in this connection that the Minister of Justice stated in his letter of 5 January 1998 that a revision could not be envisaged since " no new developments or previously unknown facts such as might cast doubt on their guilt have arisen or been revealed after their sentencing ",

Recalling 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 and that Mr. Aref was dismissed from the bar; 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,

Considering that, according to the Djibouti delegation, the above information was wrong and that it undertook to provide material in support of that claim,

Having noted the resolution adopted on 17 December 1997 by the European Parliament concerning the human rights situation in Djibouti, which inter alia requires of the Djibouti authorities " full respect for human rights and fundamental freedoms, particularly freedom of expression and the right to a fair trial respecting the rights of the defence ",

Aware that legislative elections were held on 19 December 1997 and that, on account of their condemnation, the MPs concerned were unable to take part in them,

1. Thanks the delegation of Djibouti for the information and the observations they supplied;
2. Emphasises once again 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, for which reason the relevant procedure must be taken in full accordance with prevailing legal norms;
3. Consequently reiterates its deep concern that the decision of the Constitutional Court of 31 July 1996, ruling that the rights of the defence were violated and the required resolution was lacking, has been disregarded;
4. Considers this situation to be covered by Article 472, paragraph 5, of the Code of Criminal Procedure quoted above, and cannot therefore share the view of the Minister of Justice, based solely on the applicability of Article 472, paragraph 4;
5. Consequently urges the competent authorities promptly to review the trial of the former MPs concerned;
6. Wishes, is such were not the case, that the former MPs concerned should be granted an amnesty;
7. Repeats its belief that, in issuing the press release that led to their conviction, Mr. Barreh, Mr. Houmed and Mr. Farah were merely exercising their fundamental right to freedom of expression, and deplores the fact that this conviction prevented them from taking part in the legislative elections held in December 1997;
8. Reaffirms that the right to freedom of speech - which must necessarily include the right to criticise the action of the Executive - 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, particularly of imprisonment;
9. Also remains concerned at the proceedings under way against the lawyers of the former MPs in question and at the dismissal of the President of the Constitutional Court, and awaits with interest the information which the Djibouti delegation undertook to provide in support of their claim that the information provided by the sources in this respect is wrong;
10. Requests the Secretary General to convey these considerations to the President of the National Assembly and to the competent judicial authorities;
11. Also requests the Secretary General to convey these concerns to the President of the Republic;
12. Requests the Committee on the Human Rights of Parliamentarians to continue examining the case and report to it at its next session (September 1998).

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