SOMALILAND.COM
EDITORIAL: 26 January 2007
Detaining Journalists under “Insult” laws
is an insult to the
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laws inconsistent with the Press Law are repealed (see Article 31).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
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
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
“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
http://www.somalilandlaw.com/Insult_Law___the_Press_in_Somaliland.pdf