Mbarek Daoudi, a Sahrawi activist who has been detained for 15 months as of December 2014, and is awaiting trial before a military court.

Photo courtesy of the family

(Rabat) – Moroccan authorities should release a Sahrawi activist who has been held awaiting trial for more than 15 months. Mbarek Daoudi, who faces weapons charges that he contests, appeared before a military court on January 30, 2014, but proceedings since then have been postponed indefinitely.

The 58-year-old Sahrawi activist has been on a hunger strike since early November to protest his detention conditions and the delay in starting his trial. After his arrest in late September 2013, he told his lawyers that police had beaten and insulted him, and forced him to sign a “confession.”

“If Morocco has evidence of criminal wrongdoing against Mbarek Daoudi, the authorities should try him fairly and without further delay before a civilian court,” said Sarah Leah Whitson, Middle East and North Africa director. “In the meantime, they should release Daoudi.”

Daoudi’s son Omar told Human Rights Watch that his father is subsisting on sugar and tea and that his health has deteriorated considerably. He shares a group cell with common criminal prisoners.

Morocco’s courts have demonstrated a pattern of convicting Western Sahara activists on criminal charges in unfair trials. The trials have been tainted, notably by the courts’ failure to investigate defendant claims that their confessions had been made under police torture or ill-treatment or had been falsified, or that the police had coerced them to sign the statements without reading them.

In a move welcomed by human rights activists, the government of Morocco in March proposed reforms to the military justice law that would end the jurisdiction of military courts over civilian defendants. The lower and upper chambers of parliament approved the amendments in July and October respectively, but they have yet to be published in Morocco’s Official Bulletin, following which they will take effect.

Daoudi is the only Sahrawi civilian facing trial before a military tribunal, according to his lawyer, Mohamed Fadhel Leili. Another civilian, Mamadou Traore, a migrant from Mali, also faces a military trial for allegedly throwing a stone that caused the death of a member of the Auxiliary Forces near Nador in July 2012. Under the military justice code, as it currently stands, offenses against members of the security forces are prosecuted under military jurisdiction. The military court in Rabat opened Traore’s trial in February, and then postponed it indefinitely; he has been detained for two-and-a-half years.

Since Daoudi retired in 2008 from a career in the Moroccan army, he has been a vocal advocate of self-determination for Western Sahara, the territory claimed by Morocco that lies just south of Guelmim, a provincial capital that is his hometown. Daoudi has hosted political meetings at his home and received foreign delegations supportive of Western Saharan self-determination.

Guelmim has experienced sporadic clashes between members of its Sahrawi and non-Sahrawi population.

On September 28, 2013, police searched Daoudi’s home and another family property in the nearby village of Legsabi. They reported seizing 35 cartridges for a hunting rifle, an antique cannon, and a long metal tube, and arrested Daoudi. After the police held him for three days for interrogation, Daoudi signed a statement in which he confessed to possessing these items and intending to manufacture a weapon – apparently using the metal tube -- despite knowing that it was illegal.

According to his lawyer, Leili, Daoudi denies the charges against him and maintains that the police forced him to sign his statement. Daoudi insists, says Leili, that the cartridges the police found were for a legally owned hunting rifle that he had sold, that the cannon is an antique left to him by his grandfather, and that he had no plans to use the metal tube to craft a weapon.           

On October 2, 2013, the military prosecution charged Daoudi with possession of ordnance without a license and attempting to manufacture a firearm, in violation of a March 31, 1937 decree (article 11) and September 2, 1958 decree (article 1), along with article 114 of the penal code, which criminalizes taking concrete steps toward committing a crime whether it is carried out or not. Article 2 of the 1958 decree gives military courts jurisdiction over anyone accused of unauthorized possession of certain types of weapons, and provides for a prison term of between 5 and 20 years.

Authorities transferred Daoudi to Salé Prison to be near the country’s only military court, 785 kilometers from his family in Guelmim. The court opened his trial on January 30, only to adjourn it immediately to await the delivery of the material evidence, Leili said. But in the 11 months since, the court has neither held another hearing nor agreed to provisionally release Daoudi.

All five of Daoudi’s sons have been arrested since 2013: Omar and Taha were arrested in August of that year, on the same day that they attended a local soccer match at which clashes erupted between Sahrawis and non-Sahrawis. They were convicted the following month, then released after serving their sentences. Ibrahim and Mohamed are serving terms in Inezgane and Tiznit prisons respectively on theft charges. A fifth son, Hassan, was charged with common criminal offenses while still a minor and was not imprisoned.

A military court convicted 25 other Sahrawi civilians, including several who are human rights activists, in an unfair group trial in February 2013 for their alleged role in violence surrounding the dismantling by security forces of a Sahrawi protest tent encampment in Gdeim Izik, Western Sahara, in November 2010, during which 11 security force members and two civilians were killed. Twenty-two of the defendants are serving sentences of between 20 years and life in prison.

Referring civilians to trial in a military court contravenes a basic norm of international law, which requires trying civilians in civil courts, Human Rights Watch said. In Morocco, military court verdicts are not subject to appeal, in contrast to ordinary court verdicts, although the Court of Cassation can quash them.

Morocco’s Code of Penal Procedure limits pretrial detention to a total of 12 months, but once the case has been referred to trial – as happened in Daoudi’s case -- the law does not limit the amount of time the defendant can remain in custody.

The International Covenant on Civil and Political Rights, which Morocco has ratified, states in article 9(3) that “anyone arrested or detained on a criminal charge … shall be entitled to trial within a reasonable time or to release.”

“Morocco has made a commitment to end military trials for civilians,” Whitson said. “It should now activate this reform and also remedy the plight of civilians like Mbarek Daoudi and Mamadou Traore, who await trial in military court while languishing in long-term detention.”