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(Nairobi, May 22, 2014) – Somalia’s military courts since 2011 have tried hundreds of people beyond the courts’ legal mandate or in proceedings that fall short of international fair trial standards, Human Rights Watch said in a report released today. The government should urgently transfer civilian cases to the regular courts. International donors assisting in desperately needed improvements in Somalia’s justice system should not neglect reform of the military courts.

The 33-page report, “Courts of ‘Absolute Power’: Fair Trial Violations by Somalia’s Military Court,” documents violations of basic fair trial rights of defendants tried before military courts, including military personnel, suspected insurgents and supporters, police officers, and ordinary civilians. Human Rights Watch interviewed over 30 defendants and their relatives as well as military court officials, lawyers, and legal experts. They described how military court proceedings restrict defendants’ rights to obtain counsel of their choice, prepare and present a defense, receive a public hearing, not incriminate themselves, and appeal a conviction to a higher court. More than a dozen of those convicted over the last year have been sentenced to death and executed, magnifying the harm to basic rights.

“Summary trials by Somalia’s military courts may be convenient for the Somali authorities, but that can’t justify violating the rights of defendants,” said Leslie Lefkow, deputy Africa director, “Somalia needs to reform the military courts and move trials of civilians to civilian courts.”

In August 2011, following intensive fighting in Somalia’s capital, Mogadishu, and the withdrawal of the main Islamist opposition group, Al-Shabaab, from the city’s center, then-President Sheikh Sharif Sheikh Ahmed of the former Transitional Federal Government declared a state of emergency in areas vacated by Al-Shabaab. The decree granted the military court jurisdiction over all crimes committed in these areas – including by default over civilians. Although the state of emergency expired after three months, the military court has continued to try a range of defendants beyond those envisioned under the Military Code of Criminal Procedure.

The military court has tried Al-Shabaab-related cases, as well as cases traditionally difficult for civilian courts, such as prosecuting members of the police and intelligence agencies. African and international human rights standards largely prohibit trials of civilians before military courts, and increasingly call on countries to ensure that military court jurisdictions are restricted to military offenses by military personnel.

The Somali authorities and judiciary have justified trials of all Al-Shabaab-related cases, including those involving civilian defendants, on the grounds that the regular courts are unprotected and vulnerable to attack in the face of the country’s pressing security needs. While these are genuine concerns, this cannot justify the violation of defendants’ rights to a fair trial.

Only recently have military court judges sought to provide defendants with access to legal counsel. However, given the lack of lawyers in the south-central region controlled by the government and the court’s practice of carrying out mass trials, defendants often have very limited access to the lawyers assigned to them. In July 2013, for example, the mobile court heard dozens of cases over four days in Baidoa. One of the only qualified lawyers in the town was brought in at the last minute on the first day of the hearings to represent all the defendants; he was, unsurprisingly, not able to meet with every defendant, let alone have the opportunity to prepare an adequate defense. In addition, defense lawyers are restricted in their ability to adequately prepare a defense because of a lack of appropriate preparation time and information regarding charges.

One defense lawyer blamed the trial court judges for impeding his access to necessary documents and files: “If it was a civil court I could easily ask for a [written judgment], but these military tribunal guys think they have absolute power, and you can’t talk to them. You can’t ask them anything, and they don’t respect the human rights of people.”

While the procedures by which defendants end up appearing before the military court remain unclear, Human Rights Watch found that many defendants have been arrested during mass security sweeps by Somalia’s intelligence agency, the National Intelligence and Security Agency (NISA). NISA has on occasion held detainees for prolonged periods without judicial review.

“Restricting defendants’ access to legal counsel and their ability to present a defense heightens the risk of abuse in detention and weakens their chances of getting a fair trial,” Lefkow said. “The Somali authorities and donors should support a strong legal aid system that will ensure adequate legal counsel to all defendants throughout the country.”

The government of President Hassan Sheikh Mohamud and its international partners have made a commitment to support rebuilding the country’s justice system. While the focus of reform has been on the civilian courts, at least two donors are seeking to engage with the military courts.

Given the significant due process concerns with the military courts, President Hassan Sheikh should immediately commute pending death sentences as a first step toward placing a moratorium on the death penalty. The government and international donors should bolster the capacity, accountability, and security of the ordinary courts and expand appropriate training for all judges, prosecutors, and defense lawyers.

Military court judges should allow independent trial monitors and ensure better access for the public to court proceedings, security permitting. Somalia’s parliament should enact laws to provide better protections for defendants before all courts. These should include a legal aid law and a rights-respecting national security law that defines the different roles of national security agencies, as stipulated in the provisional constitution, and legislation to restrict military court jurisdiction.

“Rebuilding Somalia’s justice system will take time, but significant steps can be taken now,” Lefkow said. “The civilian courts need real bolstering and the military courts need to go back to trying military cases.” 

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