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 164th session (Brussels, 16 April 1999)

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/164/13(b)-R.1), and to the resolution adopted at its 163rd session (September 1998) concerning the case of Mr. Ahmed Boulaleh Barreh, Mr. Ali Mahamade Houmed and Mr. Moumin Bahdon Farah, of Djibouti,

Taking account of the communications from one of the sources dated 24 September 1998 and 17 January 1999,

Recalling that 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, whom they had accused of " ruling by terror and force while trampling underfoot our Constitution and republican institutions "; 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, seized of an appeal against that decision, the Constitutional Council, on 31 July 1996, ruled that the failure of the National Assembly Bureau to hear the deputies concerned constituted a violation of the right of defence as guaranteed by national law, and further held that the letter from the President of the Assembly to the Minister of Justice informing him of the Bureau's decision did not constitute a resolution as required under the National Assembly's Standing Orders,

Recalling that, notwithstanding Article 81 of the Djibouti Constitution, which stipulates that decisions by the Constitutional Council carry the weight of res judicata and are binding upon all authorities, including the judicial authorities, the trial went ahead and on 7 August 1996 Mr. Boulaleh Barreh, Mr. Mahamade Houmed and Mr. Bahdon Farah were sentenced to a six-month prison term, a heavy fine and forfeiture of their civic rights for five years,

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; that, however, according to the authorities, these provisions do not permit a review of their trial,

Recalling that, in January 1997, the President reduced the sentences and they were released but remained deprived of their political rights, as a result of which they were prevented from participating in the legislative elections of December 1997 and contesting the presidential elections of 9 April 1999,

Recalling further that, on 26 June 1996, Mr. Bahdon Farah was charged with misappropriating, at a time when he was Minister of Justice, 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 since his daughter bought from an import-export store a generating unit which, according to the authorities, had been stolen but in respect of which an invoice has been forwarded to the Committee,

Considering that, according to the sources, Mr. Boulaleh Barreh and Mr. Bahdon Farah were arrested on 1 September 1998 and held for questioning for several hours in connection with a case concerning a plot against State security; that, at the first hearing before the court on 5 September 1998, the case was adjourned to 12 September so as to enable the lawyer from France to prepare the defence; that, however, the latter being unable to obtain a visa, a Djiboutian lawyer was appointed by the court on 9 September; that, at the hearing on 12 September 1998, his request for a further adjournment of the case to enable him to prepare the defence was rejected and the judge, after deliberation, found Mr. Boulaleh Barreh and Mr. Bahdon Farah guilty of inciting " the armed forces to disobedience with a view to harming national defence " (Article 157 of the Penal Code) and gave them a one-year suspended prison sentence, two years of probation and a definitive fine of one million Djibouti francs,

Noting that, according to the sources, Mr. Bahdon Farah's passport was again confiscated on 1 October 1998, which has prevented him from travelling to Saudi Arabia to receive medical treatment,

Mindful of the fact that the defence counsel of the three former deputies, Mr. Aref, a well-known human rights advocate, was accused on 23 January 1997 of fraud and banned from exercising his profession and that, on 15 February 1999, he was sentenced to two years' imprisonment, including six months unsuspended; that, according to many reports, he is being held in Gabode Prison in inhuman conditions; for he is reportedly shut up in lavatories of the high-security part of the prison, a space one metre square without a roof; that the French lawyers who were to assist him in his trial were not authorised to travel to Djibouti, despite the existence of a Franco-Djiboutian legal assistance convention,

1. Regrets that the Djiboutian authorities have failed to respond to the requests for information addressed to them;
2. Reaffirms that, in making the offending statement, the former deputies concerned were merely exercising their fundamental right to freedom of speech, which would be quite meaningless if it did not permit criticism of the Executive, and considers that Parliament should have a particular interest in ensuring that its members may exercise this right essential to their function to the fullest possible extent and, in particular, without fear of criminal prosecution and imprisonment;
3. Remains concerned that Djiboutian justice has not taken account of the Constitutional Court's decision of 31 July 1996 which is binding on all organs of the State, including the Judiciary; is therefore compelled to consider that the trial of the former MPs concerned, on account of that failure alone, is flawed by irregularities;
4. Expresses particular concern at the repeated prosecution and sentencing of Mr. Bahdon Farah and the confiscation of his passport, and at the sentencing and imprisonment of the defence counsel of the former MPs concerned;
5. Calls on the new Head of State to grant an amnesty to the three former MPs concerned and their lawyer and to restore their rights in full;
6. Requests the Secretary General to convey these considerations to the newly-elected President of the Republic and the competent authorities;
7. Requests the Committee on the Human Rights of Parliamentarians to continue examining the case and report to it at its next session (October 1999).

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