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 163rd session (Moscow, 12 September 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/163/12(a)-R.1), and to the resolution adopted at its 162nd session (April 1998) concerning the case of Mr. Ahmed Boulaleh Barreh, Mr. Ali Mahamade Houmed and Mr. Moumin Bahdon Farah, of Djibouti,

Taking account of the letter from the President of the National Assembly dated 24 June 1998 and the documents conveyed, and the observations supplied by a member of the Djibouti delegation at the hearing held on the occasion of the 100th Inter-Parliamentary Conference,

Also taking into account the communications from one of the sources dated 19 and 30 June, 31 August and 3 September 1998,

Recalling that, according to the parliamentary authorities, the Bureau of the National Assembly met on 12 and 15 June 1996 to decide on a request for the lifting of the parliamentary immunity of Mr. Boulaleh Barreh, Mr. Mahamade Houmed and Mr. Bahdon Farah to permit their prosecution for insulting the Head of State; that the Bureau decided to authorise their prosecution and adopted a resolution to that effect; that, by letter N° 141/AN/FW of 15 June 1996, the President of the National Assembly 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 authorities, 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 of the Assembly,

Recalling in this respect that, in its decision of 31 July 1996, 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 failure to hear the deputies concerned constituted a violation of the right of defence as guaranteed by national law,

Mindful of Article 81 of the Djibouti Constitution, which stipulates that decisions by the Constitutional Council carry the weight of res judicata and are binding upon the public authorities, all administrative and jurisdictional authorities, and all legal entities or individuals,

Considering that, according to the parliamentary authorities, the deputies concerned committed a procedural error as they did not contest the resolution itself but only letter N° 141/AN/FW of 15 June 1996; recalling in this connection that, according to the sources, no such resolution exists,

Considering that the Committee was provided with a copy of the summary record of the National Assembly Bureau meetings of 12 and 15 June at which the demand for the lifting of the immunity of the MPs in question was examined and decided upon,

Recalling that, according to the sources, their trial was marred by numerous irregularities; that the authorities refute this,

Noting that Article 175(2) of the Code of Criminal Procedure provides for nullity of the investigation " 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,

Considering further that on 26 June 1996, Mr. Bahdon Farah was charged with misappropriating two small pieces of ivory which had been seized by the gendarmerie and that two years later, on 16 June 1998, he was found guilty of that offence and given a suspended two-month prison sentence; that, moreover, Mr. Bahdon Farah, is being prosecuted on charges of receiving as his daughter bought from an import-export store a generating unit which, according to the authorities, had been stolen; that on 10 May 1998 his passport was reportedly confiscated; considering finally that Mr. Bahdon Farah and Mr. Boulaleh Barreh are currently being questioned about an alleged coup d'Etat attempt,

Mindful of 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 ",

1. Thanks the President of the National Assembly for the comprehensive information and observations he supplied;
2. Also thanks Mr. Dini from the Djibouti delegation for his co-operation and the observations he provided;
3. Recalls that its main concern regarding the case in question is the fact that the decision of the Constitutional Council of 31 July 1996, ruling that the rights of the defence were violated and the required resolution was lacking, has been disregarded;
4. Cannot agree with the argument of the parliamentary authorities that the former deputies concerned committed a procedural error in contesting letter N° 141/AN/FW of 15 June 1996 and not the resolution on the lifting of their immunity, since it cannot be disputed that the Constitutional Council gave a ruling on the question of the regularity of the procedure and that its rulings have binding force on all other State authorities, including the judiciary;
5. Can but consider therefore that the ensuing trial of the former MPs concerned is flawed and that action should be taken to redress the situation;
6. Notes that Mr. Bahdon Farah has been convicted for misappropriating seized goods and that he has further been prosecuted on charges of retaining a stolen item, and would appreciate a copy of the relevant judgment and indictment;
7. Wishes to receive fuller information about the investigation of the charges against Mr. Bahdon Farah and Mr. Boulaleh Barreh of backing an armed rebellion;
8. Also wishes to know why Mr. Bahdon Farah's passport was confiscated;
9. Requests the Secretary General to convey these considerations and requests for information to the President of the National Assembly;
10. Requests the Committee on the Human Rights of Parliamentarians to continue examining the case and report to it at its next session (April 1999).

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