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Detaining Journalists under “Insult” laws is an insult to the Somaliland Constitution

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Detaining Journalists under “Insult” laws is an insult to the Somaliland Constitution

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Expelling the Infidel: Historical Look at Somali Resistance to Ethiopia

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Using Insult Laws is an Insult to the Somaliland Media and Public – the detention and trial of Haatuf Journalists

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EDITORIAL: 26 January 2007

Detaining Journalists under “Insult” laws is an insult to the Somaliland Constitution

Somaliland Law.com adds its voice to those of the many organisations and individuals who have called for the immediate release of the Haatuf Media Network Chairman, Mr Yusuf Abdi Gabobe, and, the editor of the Somali language Hargeisa daily, Haatuf , Mr Ali Abdi Dini who have been detained since 2 January 2007.

We make no comments on the contents of the allegedly “offending” articles which related to alleged corrupt practices of the President and his spouse, but we are clear that these were about legitimate subjects to be covered by a free press and that any complaints about such coverage should be dealt with under the Somaliland Press Law 2004. The Press Law states unequivocally that no journalist shall be detained for undertaking his journalistic activities unless otherwise ordered by a competent court (Article 8(1)) and that all other laws inconsistent with the Press Law are repealed (see Article 31). This does not that mean that journalists can break the law at will; all it means is that if what they have published was alleged to be contrary to the Press Law (which covers issues of veracity and balance of the published materials) then the matter will be dealt according to this Law, which expressly rules out any criminal sanctions.

The reference to authorisation by a court in case of any possible detention does not, in our view, detract from the non-criminal self regulation system set up under the Press Law, but reinforces the freedom of the press by making it conditional on any alleged “crimes” committed by journalists being considered by a competent court before the arrest and detention of journalists. Furthermore the Constitution and the Criminal Procedure Code both make it clear that no one shall be arrested or his property searched without a warrant. Yet that is exactly what happened to the Haatuf journalists.

We are deeply disappointed that the District Court, the
Regional Court
and the
Appeal Court
have so far all failed to order the release of the journalists, and condemn unreservedly the use of insult and sedition charges against the press. These old provisions in the 1961 Penal Code (which is based on 1930s Italian Rocco Code) are contrary to the bills of rights in the Somaliland Constitution, the Somaliland Press Law and international human rights law relating to freedom of expression. We have set out these arguments in a lengthy article published in this website.

We are appalled to learn that the Appeal Court which had a chance to re-affirm the application of the Press Law to press activities ruled on 24 January 2007 that the Press Law is simply a sub-ordinate legislation (xeer-hoosaad) confined to regulating the press and would have only affected the Penal Code if it dealt with all the crimes that the Press might commit and their punishments, such as the laws relating to “contraband or corruption”. With respect, this is plainly wrong. Firstly the Press Law is not “sub-ordinate legislation” – it is an Act of Parliament, like any other and is linked to the freedom of the media article in the Constitution. Secondly, journalists, like any other citizens, are subject to the criminal laws when they commit crimes; all that the Press law says is that when there is a complaint about their press activities i.e what they write in the newspaper in this case, this will be dealt with under the Press Code and the civil laws and not the criminal laws, and therefore any law which previously criminalised these activities is now null and void.

Article 220 of the Penal Code (offending the honour of the President) which forms the basis of the charges against the journalists talks about not only offending the honour and dignity of the President, but also makes it a crime for anyone to “hold him responsible for the acts of the Government”. This is plainly contrary to the Somaliland Constitution where the President is the head of the Government. The other sedition charges when applied specially to the Press are also unconstitutional. It is surprising therefore that none of the lower courts thought fit to refer this matter and the question of the reach of the Press Law to the
Somaliland Constitutional Court
, which has an exclusive jurisdiction in dealing with incompatibility of laws and the Constitution. This should be done immediately, and in the meantime the journalists should be freed.

In these circumstances any any rush on the part of the Regional Court to convict the journalists of these criminal offences, and specially of insulting the President would be seen as a punishment of the free press, and an act of subjugation which is contrary to Article 32(3) of the Somaliland Constitution.

We look forward to the
Somaliland Constitutional Court
and its new Chairman upholding the Constitution and the new and modern laws of the country in preference to the outdated insult and sedition laws which can be used so capriciously against the press and the public. We should take heed of the current international opinion about insult laws such that of the Inter-American Commission on Human Rights which has condemned them as follows:

“The use of desacato (offending the honour) laws to protect the honor of public functionaries acting in their official capacities unjustifiably grants a right to protection to public officials that is not available to other members of society. This distinction inverts the fundamental principle in a democratic society that holds the Government subject to controls, such as public scrutiny, in order to preclude or control abuse of its coercive powers. …Contrary to the rationale underlying desacato laws, in democratic societies, political and public figures must be more, not less, open to public scrutiny and criticism.”

Ibrahim Hashi Jama


For an article developing these arguments and written before the Appeal Court decision, see: Using Insult Laws is..........

And, also can be found at


Source: www.somalilandlaw.com

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