By Adan H Iman, Los Angeles

Last week the Somaliland Supreme Court upheld a lower court ruling that members of the media engaging in activities that relate to their journalistic activities can be charged under a Penal Code that can subject them to jail time. The High Court rejected an Appeals Court ruling that the Press Law enacted during the existence of Somaliland be applied. This Press law states that the media activities should be regulated through civil procedures.

The High Court sent the case, Rayale Vs Haatuf news, back to the lower court for trial under the penal code. The Rayale Administration, of all places, selected Mandhera Prison as the venue of the trial. The defense team protested the venue and boycotted participating in the trial. In a swift trail, which the defendants had no legal representation, the court sentenced four journalist-one in absentia and three already in jail for two months- a jail time of 2 to 3 years, a cruel and unusual punishment for writing an article or series of articles. The administration has handled this case anomalously, to say the least.

The ruling is troubling on two fronts: First the threat of jail time in the ruling is sufficient to depress the creative thinking of journalists, discourage them from serving the public interest by investigating activities of public officials and retard the development of the media. The decision gives political and public officials at the municipal, regional and national levels the instrument – threat of jail time- to intimidate and imprison journalists they suspect is behind their back.

The Somaliland Independent Media is less partisan than the United States press was during its early stages. In the late 18 th and early 19 th centuries American factional leaders and politicians used the press to attack their political opponents. The intensity of vitriolic attacks was mind boggling. Yet at no time in its 231 years history did the US government put a law in the books that criminalize the journalistic activities of its reporters. Because of this the US media is the best developed in the world with its reporters fully autonomous from interest groups and committed to the pursuit of the truth.

Considering that it is at it’s an early stage of development, the Somaliland media is relatively less adversarial and partisan. When Haatuf News Organization published the investigative stories under question in the case, I rebutted some of the allegation because I was personally familiar with some of the facts underlying the allegations. Haatuf News Organization published my opposing and critical views in their weekly English language Somaliland Times published in Hargeisa. The Somaliland media system is working and promising. I believe Haatuf News Organization will, as other organizations who face similar circumstances do, learn from the experience and institute guidelines on its reporting activities, train its reporters on those guidelines and ensure that stories submitted for publication are in compliance with those guidelines. Since political leaders will always challenge allegations of corruption, it is important that the media fully their document evidence not only to prevail in a court of law but also to win public support, a crucial factor in a democracy like Somaliland.

It is imperative to leave the media organizations alone to develop their capacities, to learn from its experience, self correct and move forward and not to impose from outside harsh regulations that will retard media’s development. The Rayale administration and the judges should focus on building capacities for public institutions including the court system. With the Press Law as the regulating tool, the media will develop, be completely autonomous from interest groups and serve the interest of the people well.

Penal Code

The other troubling aspect of the decision is the indiscriminate application of the Penal Codes by Somaliland judges. The Penal Codes have harsh penalties designed to pacify restive colonial subjects or oppressed peoples. If the intent of any law is to regulate and deter transgression by members of the media, the Press Law has the tooth to achieve that objective. The law imposes civil damages on anybody proven to have intentionally slandered another person. Imagine the effect a monetary fine would have on a small media organization in Hargeisa- it will bankrupt the entity. Why would we need to use a Penal Code that subjects indignities such as removing ones shoes, belt and locking up an individual into a crowed room, deprived of freedom, for months or even years- not for theft or assault or battery or murder but for writing of an article no matter how offensive the article is to some people?

Ibrahim Hashi Jama, a leading authority on Somaliland Constitution and Laws, who was a Legal Advisor at the Ministry of Justice’s Legislation & Legal Advice Department

in Mogadishu in the mid 1970s, argues that our judges should examine carefully if the provision of a law is consistent with the modern provisions of human rights enshrined in our constitution. He adds that in “balancing the freedom of the press and the freedom of others in matters like libel and insult, it is now widely accepted internationally that the way to protect the latter freedom is through civil laws and not criminal laws.”

Ibrahim Hashi Jama is dismayed by the high court decision and disagrees that the Press law is subordinate to any other law:

“Article 32 of the Constitution states that a law shall determine the regulation of media. The Media Law says that the activities of the media shall be dealt through civil procedure and also adds that any previous law inconsistent with the Media Law shall be null and void, then the penal code in so far as it affects the “legitimate” activities of the press is inapplicable. This does not mean that the Penal Code will not apply to journalists or the media if they commit crimes which are not linked to their journalistic activities, such as assault, theft...” (1)

The people of Somaliland elect representatives to enact laws. It is not for unelected judges to legislate from the bunch. Overriding this disastrous ruling should be the goal of every body. This is not a partisan issue. How can it be done? Ibrahim Hashi Jama suggests that “Parliament must pass a short law repealing specifically the offending Penal Code provisions and laying a clear regime for civil libel and for the President to sign it”. The “clear regime for civil libel” will be sufficient stick to deter Media transgression. Why should we go to the counterproductive route of jailing journalists in a democracy when civil penalties can do the job?

This High Court decision should not be allowed to stand.

(1) Ibrahim Hashi Jama was gracious enough to give me his reaction to the high Court decision over the weekend. Ibrahim has made major contribution to Somaliland jurisprudence through his translation into English the Constitution and Laws of the new nation making it available to readers in English, the most popular language in world. . This valuable work is available electronically at Somalilandlaw.org

Email: ahiman2@aol.com