Djibouti :

The Lawyers Committee for Human Rights

February 1999
Aref Mohamed Aref-Djibouti

The Lawyers Committee for Human Rights is seriously concerned by the recent imprisonment of lawyer and human rights advocate Aref Mohamed Aref.

On February 15, 1999 Mr. Aref was sentenced to two and a half years imprisonment on charges of attempted fraud that are widely believed to have been fabricated by the authorities.

The Lawyers Committee is concerned about the procedural irregularities leading up to and during the trial and believes that the conviction is an attempt by the Djibouti government to silence a prominent actor in the struggle for human rights in Djibouti.

Djibouti is a small nation situated between Eritrea, Ethiopia, and Somalia on the East Coast of Africa. Although the Djibouti Constitution provides for a multi-party democracy, there has been one President and one party in power since 1977.

The next Presidential elections are to be held in May 1999. Although the existing President will not run again, he has put forward his son as a candidate. In the months leading up to the national elections, the Djibouti government has shown its intention to silence opposition voices.

In the first week of February, a legal public assembly held by the main opposition party was broken up by military force.

The case against Mr. Aref, who has advocated the rights of opposition political parties and has defended those charged with political crimes, should be considered in this context and in the light of the U.S. State Department's observation that in Djibouti "the judiciary is not independent of the executive." Mr. Aref has been repeatedly harassed and threatened in connection to his human rights activities.

Among other forms of harassment, he was imprisoned for two years in 1991, and in 1997 the Djibouti government suspended him from the practice of law in the country.

Despite these hindrances, he has continued to pursue human rights advocacy by acting as an observer in the International Criminal Tribunal for Rwanda and by participating in the Amnesty International delegation to the 1998 Rome Conference on the International Criminal Court.
However, as he was attempting to go to France in December 1998 to attend ceremonies commemorating the Fiftieth Anniversary of the Universal Declaration of Human Rights, the Djibouti government confiscated his passport.

Background In August 1994, Mr. Aref acted on behalf of a flour merchant in a contract action. In March 1995, his client made a disciplinary complaint to the President of the Djibouti Bar Association alleging that Mr. Aref did not pursue his cause with sufficient vigor.

When Mr. Aref explained his actions the matter was dropped by his client and by the President of the Bar. However, one year later, a new President conveyed the matter to the Prosecutor-General and on January 23, 1997, Mr. Aref was accused of fraud despite the absence of any criminal or civil complaint by his client.

The investigating magistrate appointed to deal with the case was unable to specify either the charges against Mr. Aref, or the person who he is alleged to have defrauded. Mr. Aref argued that this failure was sufficient grounds for nullifying the charges and that the magistrate should be declared incompetent for proceeding on these grounds.

Although the Court of Criminal Appeal rejected those arguments, the Supreme Court of Djibouti issued an interim order requesting further information on the case.
However, despite this order, the Prosecutor's Office required Mr. Aref to appear before the Court of Appeal on October 6, 1997 in relation to attempted fraud (and not actual fraud as previously charged).

Despite the existence of a bilateral judicial co-operation accord between France and Djibouti permitting French lawyers the same standing before a Djibouti court as a local lawyer, the Djibouti Minister of Justice has recently begun to require that French lawyers seek permission to plead before a court in each and every individual case.

When Mr. Aref sought legal representation from two French lawyers for his appearance on October 6, one of them was refused permission on the basis of his conduct during his previous visit to Djibouti, namely his participation with Mr. Aref in the defense of four opposition parliamentarians for "offenses against the President of the Republic.

When that lawyer attempted to enter Djibouti, he was refused entry, detained for several hours and returned immediately to France.

In the meantime, another member of the French Bar took up Mr. Aref's cause and convinced the Ministry of Justice to request an adjournment of the case until the Supreme Court had made its final order concerning the procedural irregularities leading up to the charges.

Despite the absence of a final order, on February 15, 1999 the Magistrates Court resumed the hearing against Mr. Aref. The irregularities preceding the trial were compounded by the fact that Mr. Aref was not permitted any legal representation for his defense.

Unable to find a lawyer in Djibouti, Mr. Aref requested representation by French lawyers from three non-governmental organizations, namely Amnesty International, Lawyers Without Borders, and the National Federation of the Union of Young Advocates.

Two of the lawyers who agreed to defend Mr. Aref were refused entry visas. A third lawyer gained entry, but was refused permission to appear before the Court, leaving Mr. Aref with no representation at all. After five minutes of deliberation by the presiding judge, Mr. Aref was sentenced to two and a half years imprisonment with a six month non-parole period.

He is currently being detained in solitary confinement in a cell too small to permit him to lie flat and he has not been permitted to see his lawyer or his family.

Furthermore, there is information suggesting that he will be transferred to a prison far from the capital in order to ensure his isolation. International Law The African Charter on Human and People's Rights, to which Djibouti is a party, guarantees in Article 7 (1)(c) "the right to a defense, including the right to be defended by counsel of [an individual's] choice."

Furthermore, the United Nations Basic Principles on the Role of Lawyers requires governments to ensure that such access is granted to any prisoner as does the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment [Principles on Detention].

By denying Mr. Aref access to the lawyers of his choice during his trial and imprisonment, the government of Djibouti has violated its obligations under all of these instruments.
Moreover, although Djibouti is not a party to the International Covenant on Civil and Political Rights, that instrument elaborates the benchmarks for the conduct a fair trial, one of which is the defendant's right to counsel of his or her choice, and another of which is the defendant's right to be informed of the details of the charges against him or her.

The inability of the investigating magistrate to specify those charges is still the subject of a decision of the Supreme Court of Djibouti, yet Mr. Aref has been convicted on one of those accusations.

This casts serious doubt on Mr. Aref's ability to enjoy the right to a fair trial guaranteed by both the African Charter and the Universal Declaration of Human Rights.

In addition, the government of Djibouti is required by international law to ensure that lawyers are able to perform their professional functions without intimidation or harassment, and that they "shall not suffer, or be threatened with prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties" (Principle 16, Basic Principles on the Role of Lawyers).

The pursuit of the action against Mr. Aref prior to the finding of the Supreme Court on the validity of the charges, his suspension from legal practice, the confiscation of his passport and now his detention violates not only the principle stated above but also Article 11 of the Declaration on Human Rights Defenders, adopted by the UN General Assembly in December 1998, which requires States to protect and promote the rights of those exercising their profession in the furtherance of human rights.

Finally, the conditions of his detention, the prevention of access to his family or his lawyer and the threatened transfer to a prison far from his family violates several provisions of both the United Nations Standard Minimum Rules for the Treatment of Prisoners and the Principles on Detention.

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