Legal protections are routinely flouted in Somali Region, even where the regional judiciary attempts to enforce the rights of those who have been detained or mistreated. While there are a range of factors contributing to the lack of independence and enforcement power of the judiciary, including corruption and insufficient capacity, the most significant and damaging reason remains the supremacy of the security forces, particularly the federal security forces and their regional allies within the administration. Its ridiculous to say theres an independent judiciary in our region, a former regional judge told Human Rights Watch. All of the region is under emergency rule. The military has the last word on all matters, whether administrative or humanitarian.203
Even regional government officials have little or no power to enforce the law or protect themselves from abuses by federal security forces. A former government employee detained in 2004 and again in 2005 after trying to stand as an independent candidate for the regional parliament, told Human Rights Watch how he had been unable to secure his legal rights while in military detention:
A judicial official expressed deep frustration at the lack of independence of the courts and regional institutions, noting that even when the regional courts issued release orders, they were often ignored. He said, If [the federal government] followed the law it would be good, but even the law theyve created is not being followed.205
Another former judge from Somali Region told Human Rights Watch he ordered the release of a group of detainees arbitrarily accused of being ONLF supporters, only to find himself detained on the orders of a high-ranking regional official. He explained how accusations of ONLF involvement were frequently used to settle political power struggles:
While the vast majority of detainees appear to be arrested for perceived connection to the ONLF or because of the use of this allegation to settle scores, there are several other explanations given for some of the numerous arbitrary arrests and prolonged detentions without charge in Somali Region. Among these is the justice systems general lack of capacity to handle the scale of cases.
Even where detainees have been charged with a criminal offense, an additional constraint on their ever being brought to court is the legal jurisdiction over security cases and lack of capacity within the police and judicial systems, which results in a serious backlog in the judicial review of detention cases. According to a former judge, until three years ago the regional courts were able to exercise jurisdiction over security cases, but this changed with a federal proclamation that established federal high courts in a number of states, including Somali Region.207 However the only federal high court in the vicinity of Somali Region is in Dire Dawa and it is difficult, if not impossible, for many detainees to travel there, due to lack of means, insecurity, and other reasons. There is no budget for witnesses or for investigation support, for instance for transporting witnesses to court, a government official told Human Rights Watch. The lack of judicial capacity is echoed in the police force, where many police lack training in conducting investigations and, as a former member of the judiciary said to Human Rights Watch, [The] police cant even finalize a file for prosecution.208
While lack of capacity may indeed be a factor delaying the judicial process for some detainees, it is no barrier in politically motivated cases. Detentions and manipulation of judicial processes are used to further personal rivalries, score-settling and revenge. In a case that exemplifies the absence of judicial independence, Jijigas regional court on May 12, 2008 sentenced two high profile defendents, Suldan Fowsi Mohammed Ali and Ibrahim Haad, to 22 and 16 years in prison respectively, despite the courts lack of jurisdiction over security cases.209 Suldan Fowsi, a traditional elder who helped negotiate with the ONLF for the release of the Chinese oil workers in April 2007, was arrested on August 28, 2007 prior to the UN assessment missions arrival (see above). Initially he was held in incommunicado detention in one of Jijigas military camps, but was then transferred to Jail Ogaden in October 2007, where he has since been detained. In May 2008 he was reportedly charged with responsibility for the May 2007 grenade attacks in Dhagahbur and Jijiga, although Human Rights Watch has not been able to obtain the precise details of the charges against him.210
Credible sources told Human Rights Watch that the federal court in Dire Dawa had requested that the case be transferred several times, but members of the regional administration refused.211 Aside from jurisdictional questions, the trial appears to have fallen well short of the due process guarantees required by Ethiopian and international law. Among other concerns, Suldan Fowsi had no legal counsel and was denied the opportunity to defend himself.212
Corruption is also a factor at the lower wereda and kebele administrative levels. According to a former judge, regional officials apparently receive a budget allocation based on the numbers of prisoners, creating an incentive for higher numbers of detainees.213 Detainees also routinely report having to pay bribes of 1,000 to 5,000 Ethiopian Birr (about US$110 to $550 in early 2008) to police and military for their release, creating a substantial incentive for security forces to keep individuals in detention.214
In August 2007 the regional parliament of Somali Regional State unanimously endorsed two decisions that are not only discriminatory on their face, violating Ethiopian and international human rights law, but amount to institutionalized collective punishment of communities perceived to support or sympathize with the ONLF.
One law penalizes families and clans of ONLF members and requires that they pay compensation for the lives of any individuals killed by the ONLF:
There is a long tradition of clan compensation (diya or blood money, usually in the form of livestock) for violations of Somali customary law, known as xeer. The parliamentary decision passed by the regional parliament manipulates the element of communal responsibility involved in the xeer system. It penalizes entire communities for the actions of some individual members, regardless of whether the families or sub-clans have any control over those individuals.
As this report has described, when there is any suspicion of even the vaguest connection to the ONLF, individuals in Somali Region are already at great risk of being subjected to serious human rights violations, including extrajudicial executions, rape, torture, and arbitrary detention. The parliamentary provision effectively formalizes the economic attacks and punishment of communities, and the additional language noting that ONLF members deaths will not be compensated reinforces the understanding that the provision is not about compensationit is about punishment.
The decision also subverts the xeer because ordinarily xeer cases proceed according to a process that includes investigation by the aggrieved party, the mediation or arbitration of a dispute by respected elders who essentially act as judges, and a procedure whereby pleas of guilt and innocence and examination of the evidence take place. The parliamentary decision, in contrast, can easily be used to target individuals, families, and communities on personal or political grounds; indeed, in the course of this research Human Rights Watch heard many descriptions of the ways in which allegations of ONLF connections are already manipulated in this way.
The second parliamentary decision provides for the suspension of all state budget allocation to administrative areas where the ONLF is active. It states:
Penalizing whole districts in this manner is blatantly discriminatory. The decision was implemented against certain weredas in late-2007, but it is unclear whether it continues to be implemented. The very existence of such legislation indicates that the intent of key regional and federal policymakers is to actively and comprehensively impose collective punishment on communities in a manner that violates fundamental legal norms.
203 Human Rights Watch telephone interview with former regional judge (location withheld), May 15, 2008.
204 Human Rights Watch telephone interview with former government official (location withheld), November 22, 2007.
205 Human Rights Watch interview with judicial official, (name and location withheld), December 5, 2007.
206 Human Rights Watch interview with former judge, (name and location withheld), September 28, 2007.
207 Human Rights Watch interview with former regional official (name and location of interview withheld), December 5, 2007. See also Proclamation to Provide for the Establishment of Federal High Courts in Some Regions, Proclamation No. 322/2003, and Proclamation No. 325/1993, Federal Negarit Gazeta of the Federal Democratic Republic of Ethiopia, Addis Ababa.
208 Human Rights Watch interview with former regional official (name and location of interview withheld), December 5, 2007.
209 Human Rights Watch telephone interviews with human rights activist, judicial official and relative of Sultan Fowsi, May 14, 16 and 20, 2008.
210 There are indications that the sudden charges, trial and sentencing are personal score-settling by a powerful regional official. in early April the regional security chief, Abdi Mohamed Omar verbally attacked Suldan Fowsi in the course of an interview with the VOAs Somali service. See Ogaden: Ethiopian courts sentences are mockery of justice, Ogaden Human Rights Committee press release, OHCR/PRM/0208, May 14, 2008.
211 Human Rights Watch telephone interview with relative of Suldan Fowsi, May 20, 2008. See also Ogaden: Ethiopian courts sentences are mockery of justice, Ogaden Human Rights Committee press release.
212 Human Rights Watch telephone interview with relative of Suldan Fowsi, May 20, 2008.
213 Human Rights Watch interview with regional official, (name, location, and date of interview withheld).
214 Human Rights Watch interviews with numerous former detainees, Kenya and Somalia, September and October 2007.
215 Decisions passed in the 5th session of the 3rd house of parliament held from 22/12/98 24/12/98 [Ethiopian calendar], Office of the parliament, Somali Regional State. Document on file with Human Rights Watch.