SOMALILAND COURT OF APPEALS RULING: MINISTER OF AVIATION VERSUS Mr. ABDIFATAH MOHAMOUD AIDEED

Less than two weeks after the inauguration of Kulmiye government, and to the surprise of So maliland journalists, the spokesman of the Presidency, Mr. Abdillahi Mohamed Dahir, issued a terse warning to the media. The next day, on August 14, 2010, plain clothes men took Mr. Hash im Omer Goth to the office of the Criminal Investigation Department in Borama for questioning related to an article. From that day onwards, the local media has been under constant intimid ation and the situation has been deteriorating ever since. The crackdown of the local media r ecently attracted the attention of the Committee for the Protection of Journalist. It was at th e end of August, 2011, when the Executive Director, Mr. Joel Simon, wrote a scathing letter do cumenting the predicament of the media to the President of Somaliland, H.E. Mr. Ahmed Moham ed Mohamoud. Obviously, Mr. Joel’s letter seems to have the exact opposite effect.



Without an effective opposition parties in place and with an executive branch bent on exceedi ng the limits and bounds of its jurisdiction, the media automatically becomes the fourth pillar of our nation’s institutions so as to forestall the establishment of the least rudimentary forms of despotism and tyranny.



In the horn of Africa Region and the entire Middle East, the journalist is subjected to the worst human rights violations. Death or imprisonment is a constant reminder for those who challenge the government version of events. What else could we expect from a political culture dominate d by authoritarian and/or kleptocratic regimes?



Although the Freedoms of expression, Opinion, and speech are enshrined in a number of inter national covenants, the modalities thereof are not absolute by any definition. For The media to enjoy those rights and freedoms they have to shoulder the responsibilities and the obligations associated with it. Without that balance in place, the essence of free speech mutates into YE LLOW JOURNALISM. In Somaliland, a two faced humanoid caricature with a Mohawk haircut on one side, called Dhanxiir, satirises the prevalent political mood on any given week. Over the years, Somaliland media has enjoyed an enviable degree of freedom compared to most of the neighbouring countries in the region. Any efforts to change that environment will be counter productive. The flow of information is not subject to the whims of national governments.



THE FUNDAMENTAL RIGHTS OF MAN





The Creator endowed certain rights and freedoms on the Human Race, among them Life, libert y, and the enjoyment of property rights. These rights are ameliorated in a series of internatio nal agreements and any encroachment or abridgement of these inalienable rights isa non-star ter.





UNIVERSAL DECLARATION OF HUMAN RIGHTS:



The right to Freedom of Opinion and Expression is stated without any ambiguity under Article 19, of the Universal Declaration of Human Right, as follows:



“Article 19:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”



THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION:



Article 11, sections 1 and 2 of the Charter of Fundamental Right of the European Union enshrines the Freedoms of Expression and Opinion:



“Article 11

Freedom of expression and information

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

2. The freedom and pluralism of the media shall be respected.”



THE AFRICAN UNION CHARTER ON HUMAN AND PEOPLES’ RIGHTS:



Article 9, sections 1 and 2 of The African Union Charter on Human and Peoples’ Rights, address the freedom of Expression and opinion in the following manner:



“1. Every individual shall have the right to receive information.

2. Every individual shall have the right to express and disseminate his opinions within

the law.”



SOMALILAND CONSTITUTION AND THE FUNDAMENTAL FREEDOMS OF THE CITIZEN:



In conformity with the norms of international law, Part three of Somaliland Constitution (Articles 21-36) covers these universal rights and freedoms.



Coming back to the case of Saxaafi versus the Minister of Aviation, on September 12th 2011 the Chief Justice of the Appeals Court of Hargeisa delivered his final verdict on the above mentioned case. The Judge’s manners on the occasion were reminiscent of the Age of the Rights of the Devine Kings of the Dark Ages. The case is between the minister of Aviation of Somaliland, Mr. Mohamoud Hashi Abdi, and Mr. Abdifatah Mohamoud Aideed, the Editor-in-Chief of Saxaafi Newspaper, and it has been inching through the court system since the end of last year.



To this day, the Minister has failed to be candid about the issue of Kuwait’s grant US$10.00 Million and whether this money was deposited in the Central Bank of Somaliland. It is that simple. Nothing less, nothing more.



Without any legal recourse of substance, the Appeals Court Judge, Mr. Ahmed Salah, upheld the ruling of the Regional Court, with one minor change in the monetary fine:



“The Appeals Court Judge reduced the fine from US$1,000.00 to US$700.00 to be paid within ten days; or else in the event of failure of immediate payment of the said amount, the assets of Saxaafi Newspaper and the private of the defendant will be auctioned off!!”



EXCHANGE OF WORDS IN THE COURT ROOM:



Once the Appeals Judge completed his deliberations, the attorney for the defendant politely responded to the Judge and stated that, “He will appeal to the Supreme Court.”

In a high pitched angry tone, the Appeals judge interjected, “There is no appeal against my judgement.”

“The law entitles me that right.”The attorney for the defendant replied.

“I will fine you too.” The Appeals judge said.



The proceedings inside the Appeals Court of Somaliland are an ominous harbinger indicating the deterioration of our justice system on the one hand, and the constant stifling of the local media for the past 14 months or so.



First and foremost, the Judge Salah’s decision is an affront to legal profession and the administration of justice in a civilized society. The Appeals Judge should have known the ethos and the moral rectitude of his position and he should have excused himself from rendering a final judgement, let alone even look at the contents of the case file. Where conflict of interest is involved, Judge Salah was supposed to take the moral high ground. He shouldn’t have been oblivious to the fact that there is a filial affiliation between Him, the Plaintiff, Mr. Mohamoud Hashi Abdi, and the Assistant Regional Prosecutor Mr. Adan Salad Seed –acting Lawyer for Mr. Mohamoud Hashi Abdi. It is that plain and simple.



In February, 2011, Judge Ali Sudi Diriye of Hargeisa Regional Court made a similar ruling in the case of Mohamoud Abdi Jama V Hassan Osman Adan, Director of Hargeisa Electricity Board

And Elmi Roble Fure, Commissioner of Somaliland Police. Mr. Jama was sentenced to three years imprisonment and US$1,000.00.



The issues in these cases are: The interpretation of Libel, slander, or Defamation and the litigation of such under the Somaliland Media Law. The Courts deliberately disregarding the application of the media law instead of the criminal code. This is an intentional miscarriage of justice because these laws are outdated and not in conformity with the Constitution of Somaliland. The Indian and the Italian Penal Codes are relics of the Colonial era and the Somali state that ceased to exist in January, 1991.



In recent months, physical abuse imprisonment without trial and intimidation of journalists is becoming common. The crux of the matter is: The legal arbitration of libel, slander, and defamation against individual integrity, character, and credibility. These issues are settled in civil courts. The criminalization of the media profession is not a viable solution.