Hiiraan Online

by Faisal Sheikh Ahmeddeer
Friday, March 15, 2013

Article 35 § 3 of the federal constitution provides: “ every person may not be compelled to self-incriminate and verdict may not  be based on the evidence acquired by means of coercion”. This article parallels the fourth amendment of United States Constitution which provides  that “ No State shall deprive life, liberty… without due process”., and the fifth Amendment of the United States Constitutions which prohibit self-incriminations. 

These constitutional provision were adopted for to protect individuals liberty while restricting the government’s arbitrary infringement of such rights.  The government left on its own and without checks, is likely to transgress against the people, and tyranny would be the order of the day. It is the courts which are tasked with interpretation of the constitution. Also, the executive is required to  ensure that every action taken falls within the federal constitutional framework because they have been sworn to protect the constitution of the country.

In the recent past, the regional administration of Puntland condemned young men and women for the murder of Sheikh Ahmed. The issue is whether the ruling was conducted in a manner that would guarantee the accused rights for the due process.  Article 35 § 3 of the Somalia federal constitution can be interpreted to prohibit individuals from self-incrimination and suppressing evidence obtained through coercive investigation techniques.

Self- incrimination is  defined as “ the giving of testimony which will likely subject one to criminal prosecution”. Merriam-Webster online dictionary. A person is compelled to self-incriminate when the person is coerced to give a testimony that would make him criminally liable. Nothing suggest that the Puntland police has not coerced these young people to give a testimony that would subject them to capital penalty. Even where the person has testified that he or she was involved in a criminal conduct, the court must obtain evidence to corroborate these testimony. For example, in a video that was recently circulated over the internet, Puntland Police could be seen questioning the suspected killer of late Sheikh Gamacay . The manner in which the alleged killer of the sheikh was interrogated was coercive in nature and intolerable. The suspect was not represented by competent counsel to ensure that the police use the proper procedure to interrogate and collect evidence, rather there were so many onlookers cheering on each time the suspect said something.

The judiciary should exercise self-restraint and hold the prosecution to a higher standards. Most of the cases that were recently decided, it appears that the judiciary is merely a part and parcel of the prosecution. Judicial independence, and impartiality is essential for the integrity of the judiciary before the public eyes.  The recent ruling , however, negate judicial independence because the judiciary did not clearly articulate the rational basis of the ruling

Unlike the executive, the only tool that judiciary has to convince members of the public that its rulings are impartial is sound decision well grounded in the rule of law. If you see any cases coming out from any federal or state court in the United States, it is well grounded in federal or state law. While Somalia is not comparable to the courts systems in the United States, the courts in Somalia must adopt a framework to make its ruling more clear, transparent and accessible to public.

In the recent cases involving the youth accused of murder, the announcement were made by the prosecutor. The prosecutor did not mention anything beyond general facts such as: the youth are members of Al-Shabaab; they testified that they committed the crime; and therefore they should be condemned to death. Judicial rulings are not made in hesitate and with a degree of urgency to satisfy public opinion. Justice is not about what the people want but rather what is right. It takes hours of discovery, evidence analysis, pre-trial conferences, and a final trial before the accused is convicted of a crime. Judicial decision making is long and thorough because individuals interest is at stake. Therefore judicial officers can not apply the law so fast to every situation.  They must use unbiased judgment based on credible evidence  before convicting a person.

A prosecutor said, “ it is easy to prosecute the guilty but  not the innocent”. The prosecution bears the burden of proving the accused committed the crime. The accused only has the burden to disproof evidence that introduced against. In the case of the youth implicated in the killing of Sheikh Ahmed, the prosecution has the burden of proving; one, they pulled the trigger; they planned the killing  They did not answer any of these questions. We don’t have judicial opinion, court transcripts, police reports, ballistic test, eye witness account, and others pieces of evidence.

The Judiciary  need to apply the constitutional provisions in a way that ensures those accused of a crime are afforded rights and privileged they are granted under the law. When  taking a life, the judiciary  need to specifically have clear and convincing evidence before condemning someone to death. If the judiciary does not apply the law correctly, then the judiciary is just but a name, a killing machine used to convict persons to satisfy the public thirty for revenge. The Puntland Judicial officers must act in manner that ensures public confidence in the judiciary . It is the judiciary where the weak and the marginalized members of the community have sort solution when the executive overstepped its limits. For example, through judicial actions minorities in America were able to exercise their constitutional rights.

The judiciary is tasked with the difficult task of interpreting the Constitution and applying so that rights of persons are guaranteed. Somalia judiciary system is operating under tough environment because judicial officers are appointed by the executive, and that they do not have life time tenure. A judicial could be hired or fired at the whims of the executive. If you have chosen to work as a judicial officers, then you should not be loyal only to the appointing authority but the members of the public.  If you don’t rule correctly, you are likely to cause more harm than good, and in the long run those incorrect decisions destroy the integrity and public trust in the judiciary.  If the judiciary exercise self-restraint, unbiased judgment and independence, then we would not see roadside announcement of court rulings.

Unfortunately no one is mentioning or even talking about this rulings.  The life and liberty of human should not be taken lightly. Every human life  is sacred even the life of the alleged murderer. Because these youth  have allegedly committed a murder does not mean that they have no rights. Before taking the life of human being the judiciary must afford them the due process of the law. Further, we must apply the constitutional principles we have developed in every case. Basing judgment on ad hoc or judge made laws is not proper.