Committee against Torture
3 November 2011
The Committee against Torture this afternoon heard the response of Djibouti to questions raised by Committee Experts on the initial report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on Wednesday, 2 November, the delegation, led by Abdi Ismael Hersi, Secretary-General of the Ministry of Justice, said that the National Human Rights Commission was established in April 2008 and was comprised of members of the judiciary and civil society as well as politicians. The Convention against Torture had supremacy over national law, and the Government intended to implement the Convention’s definition of torture into national legislation when time allowed. The delegation confirmed that a lawyer was allowed to be present from the point of arrest, and also that any confession produced through torture would be disallowed as evidence, resulting in the court case being halted. The delegation elaborated on prison reform, including action to ease overcrowding and improve medical care and facilities for women and children. The delegation also answered questions on migrants, extradition proceedings, female genital mutilation, rape sanctions, solitary confinement, the founding of a juvenile justice system, and on specific cases of alleged torture.
The Committee will submit its conclusions and recommendations on the report of Djibouti at the end of the session on Friday, 25 November, 2011.
The delegation from Djibouti included representatives from the Ministry of Justice, the Department of Legislation and Reform, the National Human Rights Commission of Djibouti and the Permanent Mission of Djibouti to the United Nations Office at Geneva.
The next public meeting will be at 10 a.m. on Friday, 4 November when the Committee will begin its consideration of the fifth periodic report of Germany (CAT/C/DEU/5).
Response of Djibouti
ABDI ISMAEL HERSI, Secretary-General of the Ministry of Justice, said that the National Human Rights Commission was established in April 2008, following a general workshop held in Djibouti on the human rights situation and future prospects. The Commission had a broad membership comprised of persons from the justice sector, the Bar Association, members of the National Assembly and a large number from civil society.
The Convention against Torture had supremacy over national law. That also meant that ratified conventions and instruments could be invoked before Djibouti legislation without there being any other instrument that subsumed it. The absence of a definition of torture in Djibouti criminal law was recognized and until now it had not been built into national legislation. Mr. Hersi told the Committee that Djibouti had established a commission called the National Legal and Judicial Reform Committee. Djibouti had ratified, invoked or acceded to a large number of international treaties, and that commission, inter alia, would be entrusted with building the provisions of international legislation into domestic legislation, including the Convention against Torture and in particular the definition of torture.
A lawyer’s presence was possible from the point of arrest and throughout all legal proceedings, a point of law echoed in the constitution. That point led to a question about the existence of a Bar Association in Djibouti. There was indeed such an association, of which the current clerk was a woman lawyer.
If it was found that a confession had been obtained through an act of torture the judge overseeing the case would halt all legal proceedings and the person who had carried out the acts would be prosecuted. Furthermore, over the past few years there had been awareness-building and training programmes for law enforcement officers, those working in the legal system and members of the judiciary, focused mainly on human rights.
Over the last five years Djibouti had made sustained efforts to improve prisons. The Ministry of Justice had created a prison-monitoring unit to promote and protect the rights of detainees. Before, prison-monitoring was conducted by the police, through the Ministry of the Interior. New administrative buildings had been constructed for the Gabode prison, including a new wing for women and a department for reintegrating women into society. The children’s detention unit had also been improved and teachers had been brought in so detained children could continue to be educated. A 30-bed infirmary had been built, staffed by two doctors and four nurses, including two women nurses. Two new vehicles, including an ambulance, had been provided to transport sick detainees to hospital at any time. Like many other prisons around the world, the Gabode prison had substantially overreached its capacity, and action was being carried out to increase capacity by reopening abandoned prisons around the country. A first-time delinquent offender would always be imprisoned near to his place of origin. The delegate said he hoped when the next report was presented the delegation would be able to tell a different story.
Prison rules provided that a prisoner could be put in solitary confinement as a disciplinary measure if he broke the rules of the prison. Solitary confinement of less than 10 days was decided by the prison, but for periods of longer than 10 days, the punishment of solitary confinement had to be decided by the convicting judge.
The delegation was asked if they would sign up to the Istanbul Protocol and the Convention’s Optional Protocol, and replied that they would look at joining both at a good time.
In the last five years the Government of Djibouti had committed to conducting a great deal of training and awareness-raising of public officials, security forces and the army on humanitarian law, particularly working with partners such as the Regional Office of the High Commissioner for Human Rights and other concerned institutions. The best people who completed that training would receive promotion.
Any person held in custody may, on request, be examined by a doctor. If a person had been subject to an act of torture, or rape, that person may by law request a specific medical examination that must be provided.
Djibouti was in a different economic situation to its neighbours, and had huge numbers of refugees and migrants. Djibouti was a country of transit, not of destination. Djibouti had taken fairly interesting legislative measures, including a 2010 law related to the fight against human trafficking. In parallel Djibouti had undertaken additional measures to fight human trafficking, supported by the International Office for Migration, which three years ago opened an office in Djibouti.
Djibouti’s extradition procedure was purely judicial; only the judge of the Court of Appeal, part of the Francophone-based system, was responsible for making decisions on extradition. A person could not be extradited if the country requesting the extradition applied a more serious penalty than would be applied in Djibouti – for example capital punishment or torture. A convention put into place by regional countries, including Ethiopia, Eritrea, Uganda and others, had been signed by Djibouti.
A member of the delegation, who worked in the field of human rights, spoke about the National Commission for Human Rights of Djibouti, which grew out of a 2008 workshop. The State funded the commission with the necessary means, especially to have an officer in each region of Djibouti. The Commission could also visit prisons and detention centres.
Military justice no longer existed in Djibouti. There had been two military courts, which had now been abolished. Now military staff alleged to have committed a crime came under the civilian justice mechanism. If persons felt they had been treated unfairly or were too poor to get legal advice, they could use the Government hotline.
Djibouti was a tiny country in a region of unrest, and had a lot of illegal migrants. It was necessary to have provisions for migrants who were not necessarily refugees. Djibouti had consulted experts on migrants from the United Nations system, and had also implemented essential training to all persons who might have to deal with migrants. Migration could not be stopped, but it could be made more human. For example, in one year’s time, the United Nations Refugee Agency (UNHCR) and other migrant organizations had held 10 training courses, which dealt with all aspects of human trafficking. Experts from Ethiopia and Somalia, although not Eritrea, had gathered together to attend workshops on related issues such as HIV AIDS and persons especially vulnerable to trafficking. A centre had been opened where potential migrants could be informed of the risks of human trafficking they could encounter on their journey, for example from the Horn of Africa to Yemen and the Gulf States.
Rape was defined as any act of sexual penetration of any nature committed against a person under a constrained threat, etcetera. It carried a sentence of ten years imprisonment, which was quite a severe punishment. The victim and perpetrator could come to a compensation settlement, but the crime of rape could not be pardoned. However the Government believed it was best to prevent rape happening, and booklets and guidelines were issued to tell people it was a serious crime that would be punished. They also provided information, for example telling a parent that if their child was raped they had to quickly visit a doctor to get a medical certificate. Information was also provided to women victims of gender-based domestic and sexual violence.
Until recently there was no specific juvenile justice: children who committed crimes came under normal justice procedures. Various treaty bodies had recommended that Djibouti make changes, and the State party in 2010 had set up a juvenile justice system. Children at risk of becoming delinquents were often recognized.
Mr. Mohammad Ahmed, known as ‘Jabha’, which meant ‘a rebel’ in Arabic, had been arrested in the north of Djibouti during a conflict between rebels and the Government, for the crime of insurrection. A Government representative visited him in the Gabode prison. Mr. Ahmed was ill with severe gastroenteritis which made him vomit and feverish, so the prison authorities took him to hospital to receive proper medical care. The Government had neither heard of him being victim to any act of torture, or saw any marks on his body. Mr. Ahmed was currently still in the civilian penitentiary, but his trial had been brought forward so he could receive speedy justice.
The Government had no knowledge of the imprisonment of the Yemeni Mohammed Al Sabad, no knowledge of his transfer to Djibouti, no knowledge of him being held anywhere in Djibouti, or on him being moved from Djibouti to another country as he maintained. Djibouti confirmed that none of its Government entities had neither arrested, nor moved, nor held that person. There was no airline between Djibouti and Tanzania, and the boarding card he used to say he’d been moved from Djibouti by air was not confirmed by the Civil Aviation Authority. Those allegations were unsubstantiated.
The refugee situation in Djibouti was getting worse, and the refugee camps were overflowing.
Follow-Up Questions by Committee Experts
ALESSIO BRUNI, Committee Expert who served as Rapporteur for the report of Djibouti, thanked the delegation for providing a lot of very useful information. Mr. Bruni asked if the mention of the Reform Commission was a commitment for putting the Convention’s definition of torture into legislation, and said that the Committee would like that to be put into writing.
Mr. Bruni asked about the reopening of three old prisons outside the capital city, in order to reduce prison overcrowding. Had there been attempts to adapt those old prisons to decent standards of detention? Non-governmental organizations had spoken about the very poor standard of prisons, and the state of health of prisoners, so the Committee was pleased to hear about reforms being implemented by the State party.
The Committee would wait and see what happened with the case of the Yemeni citizen, Mohammed Al Sabad, and would follow it up in the future.
Persons arrested following the protests of 18 February alleged that they were tortured while in detention. Could the delegation provide more information on that?
Mr. Bruni raised the case of the Ethiopian pilots who landed in Djibouti in 2005 and sought refuge there, but who were apparently expelled by the Djibouti authorities back to Ethiopia, where they were tortured. The authorities said the pilots were repatriated with their consent, but the Committee doubted that and the pilots’ families denied it. Was the delegation aware of the case and could they give further details?
CLAUDIO GROSSMAN, Chairperson and Committee Expert who served as Co-Rapporteur for the report of Djibouti, asked about female genital mutilation, which was illegal in Djibouti. However, what was important was what happened in practice, and often the law was not followed. What resources were being put into achieving respect of the Convention and to fight the violation of female genital mutilation? Were there financial resources, initiatives, civil society programmes, and specific data on the practice?
A Committee Expert told the delegation she appreciated the importance they had placed on punishing the crime of rape, and commended them for asserting that it could not be pardoned. The Expert asked about accessibility for rape victims to doctors who could then refer them to forensic doctors.
An Expert asked about legislation on aliens’ residence, and said a law on statelessness, and on asylum seekers, would be useful. She also asked what legal provisions were available for women and for rural people. An Expert asked about the extensive imprisonment of juveniles.
Response by the Delegation
The delegation replied that there had been reform to the family code, including legislation for women. For example women could now seek divorce on an equal footing to men. The delegate elaborated that about 60 per cent of the population of Djibouti lived in the capital city. Therefore most legal instances were to be found in the capital, although the Government had worked on facilitating access to justice for all citizens, especially over the past two years. A travelling magistrate had been established, who went out to the remoter areas of the country. The family was the basis of society, and therefore legal provisions for families were a priority. For example if a wife asked for divorce, but had to travel to the capital city to get it, the equality of citizens did not exist.
Juvenile delinquents were held in a supervised education centre that still met conditions of confinement, not in prison. Teachers provided an education to those juveniles and children. If a juvenile finished his sentence but had no parents, he or she would be placed in a Youth Protection Centre, although that Centre was insufficient and overcrowded. Fortunately there was not a high rate of juvenile delinquency, although there were difficult circumstances of high unemployment and low protection for young persons.
Punishment for female genital mutilation entered into Djibouti criminal code in 1992 and the 1992 Constitution preserved the physical and mental integrity of the person. However the provisions of that article had not been implemented, because the judicial authorities had not recorded any complaint. In view of that and the recommendations of treaty bodies, Djibouti had expanded the legal provisions so that today associations could lodge complaints against any person perpetrating such acts. There was growing awareness, but certain acts could not be regulated by law. The man or the woman in the street had been told that female genital mutilation was part of Sharia law. An evolution had to take place. Advocacy, education and awareness-raising had to create a real will to abolish the phenomenon. Female genital mutilation existed in the East African community and throughout Africa. Djibouti had organized regional conferences with religious authorities and other parties that stood in the way of abolishing female genital mutilation. The Government had spared no effort to protect girls and young women from female genital mutilation, was encouraging prosecution of it and had issued pamphlets to inform the public about potential sanctions.
Regarding the case of the Ethiopian pilots, a delegate noted that Djibouti was host to thousands of refugees, but said an example of the importance Djibouti placed on those who fled prosecution was the 2008 war between Eritrean and Djibouti. That war began when soldiers deserted the Eritrean army, and sought refuge in Djibouti. The Eritrean Government asked Djibouti to return those soldiers. When that did not happen Eritrea attacked Djibouti, leaving many persons dead and injured.
There was no torture of the persons arrested following the protests of 18 February.
MOHAMED SIAD DOUALE, Permanent Representative of Djibouti to the United Nations Office at Geneva, said that Djibouti was determined to resolve outstanding issues, which were mainly due to a lack of resources. The Government wanted to make roots in human rights, and that was why training was given such importance. The rich and relevant dialogue was a precious tool that would guide Djibouti in implementing the Convention.
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