人权事务委员会审议吉布提的报告（部分翻译）

人权事务委员会

2013年10月17日

Presentation of the Report
 
ABDI ISMAEL HERSI, Secretary-General of the Ministry of Justice of Djibouti, said he was happy to share with the Human Rights Committee the achievements of Djibouti in the area of civil and political rights.  The report had been prepared in an inclusive and consultative manner, including through a televised round table.
 
Since Djibouti’s independence in 1977, it had adhered to various international institutions, including accession to the fundamental principles of the Universal Declaration of Human Rights and the African Charter on Human and Peoples’ Rights.  Djibouti was now a member of a wide array of international conventions, but two still remained to be ratified – one on migrants and their families and another on forced disappearances; they were presently being studied.
 
In 2002, Djibouti had acceded to the International Covenant on Civil and Political Rights.  Provisions of the Covenant had been transposed to the Constitution and the national legislation.  The Constitution guaranteed the rights to life, freedom, security and integrity of the person, the right to non-discrimination and the equality of all in front of the law, the rights to a fair judicial process, and a number of others.  International norms were omnipresent throughout the positive law of Djibouti, with emphasis on the equality of all in front of the law regardless of their language, origin, race, sex or religion.
 
Djibouti considered the freedom and security of the human being to be sacred; the State had the obligation to respect and protect it.  In that context, the death penalty had been abolished during the last constitutional review in 2010.
 
With regard to the right to a fair and equitable trial, a judicial system had been put in place to ensure there was no double jeopardy, lawyers were always present in all stages of procedures, and there was now one judge per 8,000 inhabitants.  Torture and cruel and inhuman treatment were prohibited under the penal code.  Citizens of Djibouti were guaranteed freedom of opinion and expression, while respecting the rights of others.   The Constitution also provided for the organization of citizens into associations and syndicates, provided that they were in conformity with laws and regulations.  All adult citizens had the rights to vote and stand in elections under the electoral law and the law on political parties. 
 
Institutional provisions were being gradually put in place, most notably through the establishment of the Constitutional Council, the Ombudsman in charge of the resolution of disputes between the administration and the public, the National Commission of Human Rights, as well as of the specialized units for human rights issues in police and gendarmerie corps.
 
Some of the recent major achievements of Djibouti had been the country’s participation in the second cycle of the Universal Periodic Review in April 2013 and the adoption of laws on corruption and universal health insurance.
 
Responses by the Delegation to the List of Issues
 
On the constitutional legal framework, the delegation said that the Constitution contained references to fundamental rights, in line with the Covenant.  The National Human Rights Commission, created in 2008, was helping all public authorities dealing with human rights, but also had the right to visit all places of detention and look into all alleged cases of human rights violations.  The Constitution guaranteed the equality of men and women in front of the law.  Efforts had been made to promote the role of women in decision making and increase their involvement in the political, social and economic spheres in the country.  Homosexuality was not criminalized.  As for the treatment of refugees, Djibouti had always been the land which welcomed refugees and there was no difference in the way refugees from various countries were dealt with.  They may have been more Somalis than others, but that was the result of the situation in that country.  Torture was banned under the Constitution and any such acts were severely punished.   Information campaigns and training sessions were under way to ensure that law enforcement officers were fully aware of their responsibilities and rules of engagement. 
 
Once a person was detained, he/she would enjoy the help of a lawyer and there had been no reported cases when a person was not given legal counsel if they could not afford it.  There was also always a possibility of an appeal.  Judicial processes were indeed lengthy in Djibouti, but the number of judges was increasing with the view of dealing with cases within a more reasonable time frame. 
 
The President had the authority to give amnesty to certain categories of prisoners.  As for the situation of the prisons, they could easily be visited and inspected; efforts were being made so that inmates were given food three times a day, secured running water and provided with toiletries.
 
Regarding juvenile justice, Djibouti had been working on creating special courts for children, while public campaigns were being conducted to promote the rights of the child among the population at large. 
 
Efforts were also underway to translate all the pertinent international human rights legislation into local languages.
 
Questions by the Experts
 
An Expert asked whether the judges were applying the provisions of the International Covenant on Civil and Political Rights in their work.  High illiteracy rates were hampering with the general population’s understanding of the Covenant and its Optional Protocols.  That could be the reason that there had never been appeals by Djiboutian citizens to the international human rights bodies. Was the Covenant translated and accessible to the local population?
 
The Expert asked how many judges and lawyers had attended the workshops on the Covenants and how many workshops had taken place so far.
 
The Expert regretted the absence of any non-governmental organizations from Djibouti at the current session. 
 
What mechanisms were in place to apply the concluding recommendations of the current session of the Committee? 
 
The Expert asked for more details about the functioning of the National Human Rights Commission.  What were the findings of the Commission’s visits to places of detention, and were there any recommendations? 
 
What kinds of complaints were being submitted to the Ombudsman and what was he doing with those complaints?  How did the process look like and what was the Government doing about his recommendations?
 
Another Expert asked about the discrepancies between the Covenant and the Sharia law, and how they could be resolved, especially in succession, polygamy and adoption.  Regarding adoption and the care of orphaned children,  the National Human Rights Commission should take into consideration that two options existed for dealing with that issue, one of adoption and another of “kafala”.  The Committee on the Rights on the Child had suggested that countries could adopt either of the two systems. 
 
The Sharia law allowed parents, and the father in particular, to decide on the succession. The wide discrepancy between the Sharia and the provisions of the Covenant on that matter should be eliminated. 
 
On the issue of polygamy, which was regulated under the Family Law in Djibouti, the Expert asked if there were any campaigns to explain to the public that the conditions set by the Sharia to exercise polygamy were so strict that they made it almost impossible to have polygamy in practice.
 
The Expert asked about the number of renovated prisons, new prisons and the exact number of prisoners in the main prison, where 80 per cent of the country’s prison population were incarnated.   How were the medical services and the hygiene conditions in that and in other prisons?
 
The Expert asked about the already prohibited practice of female genital mutilation.  Could any more steps be taken, and could the relevant provisions of the existing criminal code be more firmly implemented?  Was marital rape considered as an offense?  Exceptions to the prohibition of abortion had not yet been extended to abortions as a result of rape – were there plans to make such changes?
 
What were the practical applications of provisions on gender equality?  The Expert reminded that a number of provisions under the Family Code could still be considered as discriminatory, which the Committee on the Elimination of Discrimination against Women had noted two years earlier.  Could the Family Code be revised and what obstacles existed in that respect?  While the minimal age for marriage stood at 18, exceptions were possible.  Who would decide if such exceptions would be granted?
 
The Expert pointed out that the use of corporal punishment was not explicitly prohibited in the national legislation.  Were there any provisions, or examples, of corporal punishment against children being sanctioned and prosecuted? 
 
An Expert asked about the treatment of refugees.  While refugees from some parts of Somalia were almost immediately granted refugee status, there might be some issues and loopholes regarding refugee status determination and asylum seekers.  Which specific measures was the Government taking to prevent sexual exploitation of refugees and asylum seekers?
 
How many people had been placed in pre-trial detention over the previous four years, and how many people were currently kept in pre-trial, and for how long?
 
An Expert noted with satisfaction that Djibouti had ratified both the Covenant and the two Optional Protocols, and had also abolished the death penalty.  The Government’s commitment to the right to life should be extended to other areas as well. 
 
The torture and killing of Diria Ibrahim Bourali was raised by the Expert.  Mr. Bourali had been arrested in April 2011, and had died four days later after being allegedly tortured by law enforcement officers, whose names were known.  Had an independent and impartial investigation been carried out, and what was its outcome?
 
The Expert said that he was baffled by the laconic responses by the delegation on the issues of illegal detention, torture and ill treatment, including of editors of the website La Voix du Peuple, opposition politicians, and Yemeni and Eritrean nationals.  What actions were being taken by the State party to address those issues of torture and ill treatment, and how many persons had been prosecuted for such offences?  Was any medical or psychological assistance provided to the victims of torture?   Were there provisions for the victims of torture to complain to the National Human Rights Commission, and was there any data on such complaints received?  Was there any impact of training for judges and police officers by the International Red Cross?
 
Another Expert asked if there was a judicial review mechanism to monitor the need and necessity to incarcerate people with mental disabilities.  Were the reports that some such people were detained in regular prisons, and not in psychiatric hospitals, true?
 
The Expert asked about provisions for the prohibition of marital rape and violence in marriage.  Would the State be willing to consider reviewing its own statues in that respect?
 
An Expert asked about the independence of the National Human Rights Commission, given that its members were appointed by the President.  How many people were able to approach the Commission, especially from outside of urban areas?  How much legitimacy did the Commission enjoy in the country?
 
What were the specific responsibilities of the Ombudsman and the National Human Rights Commission, and were there any overlaps, an Expert asked.

Responses by the Delegation
 
ABDI ISMAEL HERSI, Secretary-General of the Ministry of Justice of Djibouti, said that the Constitution provided that duly ratified treaties and conventions took precedence over domestic laws and could be directly implemented in Djibouti.  The country’s positive law was new, as Djibouti was a new entrant to the community of nations, having become independent only in 1977.  Djibouti in 1977 had been in a state of legal limbo, and the order or priorities had had to be decided.  The country’s positive law was not complete and was in constant flux; international law was being promoted through accession and ratification – Djibouti saw that as a way to move ahead with the national legislation.  Experts’ recommendations and comments would be taken on board by the Government, as Djibouti was eager to move ahead.
 
Regarding the applicability and transposition of the Covenant and its judicial provisions, the Government was aware that it needed to provide improvements and fine tune the existing structures.   Djibouti was eager to receive assistance in shaping its national legislation.
 
On the participation of non-governmental organizations (NGOs) in drafting the report, the Government was not in a position to explain why the NGOs had not taken part.  The Government had tried to raise awareness through the media and a myriad of professional and structural associations  had been invited to assist the Government in drafting the report.  Unfortunately, only a few, mostly foreign, NGOs had taken the time and expressed genuine concern about the situation in Djibouti.  Information received by the Experts should be weighed carefully, because sometimes NGOs were trying to downplay the information provided to the Committee by the State. 
 
The Minister of Justice was in charge of human rights.  An inter-ministerial committee was monitoring international and regional instruments to which Djibouti had acceded.  That committee monitored those recommendations and suggestions issued by various treaty bodies, including the Human Rights Committee. 
 
The National Human Rights Commission was functioning and was independent vis-à-vis the Government and other State institutions.  The President of the Commission, who was a member of the delegation, explained that the Commission had been born following the recommendations of the workshop involving judges, prosecutors and other relevant actors in 2008.  The Commission included members with a decision-making authority and those without it. The former ones came from civil society, judiciary, medical and other spheres.  The Commission had a budget provided  by the Government, but the budget was independent and autonomous, from which the 20 members of the Commission and the staff were paid. 
 
The delegate explained that the Commission had visited a number of detained and allegedly tortured persons.  A fully detailed report, including autopsy, had been published on one of the cases raised by the Experts.  It was unfortunate that the reactions of the NGOs had to be looked at through the political prism.  Torture was by no means systematic, but it was sometimes made to appear so by certain NGOs, which often included members of the opposition.  The Commission was working on those issues with other stakeholders, including NGOs.  Members of the society, including those from vulnerable sections, were often coming to raise their concerns with the Commission, which was regularly recorded. 
 
On the effectiveness of the Commission, there were instances when the Commission had visited inmates and concluded that their detention had been unwarranted, after which they were released.  The Ombudsman only dealt with disputes between the State administration and the public, while the Commission dealt with a large range of human rights issues across the country.  The Commission was sometimes criticized, and was striving to be more independent, in accordance with the Paris Principles.
 
A delegate said that, under the Sharia law, a female inherited half of the amount that a male inherited, given that more responsibilities were carried out by men.  Parents, primarily fathers, could make donations as they wished, which was used for regulating the question of inheritance.  Polygamy was authorized by the Family Code, and the spouse had to be informed of any new marriages of the husband.  Regarding female genital mutilation,  the practice unfortunately still existed and was wide-spread, but the situation was evolving, and most young girls between 6 and 11 years of age were no longer being mutilated. 
 
Many actions had been undertaken in the field of female genital mutilation, but the results were difficult to quantify and progress was not so palpable.  Female genital mutilation was intimately linked to mentality, but there were still high hopes for the legislation in place.  Efforts would have to be made at the family level as well.  So far, no cases had been brought to courts and no perpetrators had been prosecuted.    Sometimes, the pretext was that this was a religious act.  A number of seminars and conferences had been held on that issue in Djibouti, and the outcomes had been that such practice was in no way demanded by Islam.  Ministries responsible for promoting women’s rights had drafted strategies for fighting female genital mutilation.  Associations tasked with promoting girls’ and women’s rights could represent the child in the court, and the law was there, but one could not simply just decree an end to it.  That would require a more profound societal change.
 
Regarding the consent to marriage, a woman had a say herself, and possible opposition by her guardian could not prevent her from marrying the man of her choosing.
 
The head of delegation said that the Family Code had been drafted in a particular cultural setting – it should not be forgotten that Djibouti was a Muslim country with a strong nomadic presence.  When it had become independent, Djibouti had been in a catastrophic situation with regard to education and having a skilled labour force.  Today, education was free at the elementary school level. 
 
Regarding adoption, in Djibouti, somebody who would take in a child would become their guardian.   Djibouti was ready to modify its Family Code, while not straying too much from its traditional values.  Hopefully, some more tangible results could be presented at the following session of the Human Rights Committee.
 
A delegate said that there had to be some prudence when using outside sources of information, which should be taken and scrutinized more carefully.  Regarding the situation of refugees in Djibouti, the country was taking in the most refugees per square meter in the world, as the United Nations High Commissioner for Refugees (UNHCR) had stated.  Djibouti’s maximum capacity had been reached and the country was trying to clear up the bottlenecks.  Officials responsible for dealing with the refugees had been trained with the help of UNHCR.  On sexual violence against refugees, Djibouti now had a dual strategy – encouraging victims to file reports, while also setting up mobile courts to try the perpetrators.  Police presence had been reinforced around the camps. 
 
Questions by the Experts
 
The Chair of the Committee referred to the blanket dismissal of outside sources by the delegation, and said that it would be much better if the delegation could provide factual responses and use as much as it could its presence at the current Committee session.   The delegation also had a possibility to provide answers in writing within 48 hours.
 
Responses by the Delegation
 
A delegate spoke about the progress made in improving the functioning of the justice system in Djibouti.   The country had enacted a new law on legal aid, ensuring that all defendants would have access to a lawyer.   Djibouti had procedures in place on how to deal with apprehended persons; special police officers had been trained to investigate cases and to ensure that nobody would be in detention for more than 48 hours without appearing before a judge.  During the period of detention, legal aid or medical examination could be demanded, but could not always be granted as Djibouti was still a developing country.  The delegate was surprised to hear that some detainees had reportedly been held for several years.  Normally, detainees would be kept for just several days, and to the maximum of one month, when the person would need to be charged or automatically released.
 
Conditions in prisons had been improved, but Djibouti remained ready to do whatever was possible with the available resources.  The Office of the High Commissioner for Human Rights had conducted a number of visits to Djibouti’s prison facilities.
 
When it came to rape, which was a crime in Djibouti, perpetrators who had been caught were brought before a judge for trial as soon as possible, and sometimes the same day. 
 
The capacity of prisons in Djibouti was between 500 and 600 prisoners.  The central prison had been designed for between 350 and 400 prisoners and was overpopulated; at the peak, it housed up to 600 detainees.   Some resources had been freed up to refurbish prisons in Djibouti, and some already sentenced detainees had been transferred with their prior consent.  Those prisoners then had a possibility to work and be paid for their work in the new prisons.   A previous unique characteristic of prisons in Djibouti had been that 80 per cent of the prison population at one point was foreigners, which was now a thing of the past. 
 
The International Committee of the Red Cross had visited prisons in Djibouti and helped out with improving conditions in them.   The doors of Djibouti prisons were opened to anyone who wanted to come and visit them.   Every year, the United States Ambassador in Djibouti visited prisons in the country and would subsequently make recommendations.  Detainees and prisoners in Djibouti were cared for and provided with medical care.  One doctor and one nurse were assigned to prisons, which was not enough, but showed that Djibouti was aware of the obligations which the country had to meet.  Djibouti was doing its most to make substantial steps in the right direction, especially bearing in mind the country’s recent history. 
 
There were programmes in place for the social reintegration of prisoners, and mechanisms were in place to monitor them by parole officers. 
 
Speaking of individual cases which had been raised by the experts the previous day, the head of delegation said that people promoting human rights should be extremely careful and vigilant about information they were providing.   At times, they did not have high awareness of what was happening in practice. 
 
Questions by the Experts
 
An Expert stated that the Human Rights Committee took its work very seriously and received information from responsible sources, including from the Committee against Torture.   Djibouti should extend an invitation to various human rights standing bodies, including to the Special Rapporteur against torture.  That way, it would be ensured that there was no distorted information about what was taking place in Djibouti.  The delegate stressed that the interactive dialogue required a high level of transparency, and asked when the National Human Rights Commission would comply with the Paris Principles.
 
Another Expert said that polygamy was authorized by the Family Code, and reiterated that very strict conditions existed regulating that practice and would need to be looked at.  If those conditions were fully considered, that could lead to a virtual end of polygamy.
 
Trafficking in persons was raised by an Expert, who said that the issue had already been addressed by the Committee on the Elimination of Discrimination against Women and the Committee against Torture.   Had the national action plan to combat trafficking in persons been adopted?  Was reliable data on the size of the problem being collected, and what kind of assistance was being provided to the victims of trafficking?
 
On the rights of the child, the Expert asked about steps taken to protect children from child labour, and what was being done to improve the overall protection of children.  Was the Labour Code, which prohibited the employment of children, being implemented?
 
Regarding the protection of minorities, the Expert inquired about the perception that the Afar ethnic group faced discrimination in various respects. 
 
An Expert asked about the independence of the judiciary.   The courts were reported not to be independent from the Government, and there were reports about many prosecutions being politically motivated and many anti-Government protesters being arbitrarily arrested during protests in 2011.  Reported cases of torture of detainees and the denial of their access to lawyers were also raised.   The Expert asked about a number of specific cases in which Government opponents had reportedly not been treated in accordance with the law.
 
The Expert asked about the process of registration of labor unions.   Strikes were reported to have been brutally repressed by the Government, and trade union activists were reportedly considered as enemies of the State.  Some of those issues had been already raised by the International Labor Organization and the International Trade Union Confederation.   The Expert referred to a number of cases when labourers on strike had been arrested. 
 
An Expert inquired how many non-State media outlets existed in Djibouti.  What percentage of the population had access to the Internet?  Were opposition media outlets being closed down?  The Expert also asked about the reported detention of journalists.  Why had Djibouti not accepted some of the recommendations of the Universal Periodic Review? 
 
A long list of opposition leaders had been arrested in Djibouti around the time of the presidential elections of 2011 and the parliamentary elections of 2013, on which the Expert requested an explanation.
 
Another Expert asked why the Government would not allow a critical coverage of its affairs.  What were the limits of expression for human rights defenders? 
 
What was being done to ensure that births were being registered, as otherwise those children would run the risk of being stateless?  What were the reasons for withdrawing nationality in law and in practice?  Could that be caused by political reasons?
 
An Expert raised the issue of juvenile courts and asked for more details.
 
Responses by the Delegation
 
The head of delegation said that the review exercise was something completely new to Djibouti, which was why the delegation might not yet have mastered it fully.  The delegation was, nonetheless, doing all it could to provide a comprehensive overview.
 
The National Human Rights Commission was composed of members from different spheres of society.  A delegate explained that the Human Rights Commission was involved in the drafting of reports to the treaty bodies.  Viewpoints of civil society had also been included in the reports.  The Commission took part in preparing reports for various human rights committees.  The Commission thought it would be more effective to be an integral part of the drafting process rather than prepare separate, shadow reports. 
 
Freedom of movement of citizens, regardless of their origin and political views, had to be ensured, which was why the leaders of some opposition parties could leave the country.  There was no knowledge of anybody not being allowed to leave the country. 
 
Regarding the independence of the judiciary, magistrates were public officials and belonged to the core with a particular status in the country, aimed at ensuring their neutrality.  The Ministry of Justice was responsible for formulating judicial policies, but anything related to careers of magistrates or judges depended on the Higher Council of the Judiciary.  That Council involved magistrates and judges elected by their peers, but also by outside representatives selected on the basis of their qualities.  The pay of magistrates and judges was good, especially compared to senior civil servants, which helped ensure their independence.  Equally importantly, the judges themselves needed to be ready and willing to be independent.
 
Djibouti needed technical assistance in the legal area; the Faculty of Law at Djibouti University was only a few years old and the country’s young jurists still had to be trained abroad, often under very different conditions.  The average age for magistrates in Djibouti was 28.  There was a good proportion – 35 per cent – of women in the judiciary, and more than 60 per cent of women were working as civil registrars.
Concerning elections, Djibouti was divided into regions, with the city of Djibouti having a special status.  In regional elections, candidates could be on electoral lists individually, which was a relatively new phenomenon.  Conditions existed regarding the nationality, place of residence and age; after meeting those, any Djiboutian man or woman could stand in regional elections.  Most international observers had said that the elections had taken place in conformity with the law. 
 
On why the Special Rapporteur on Torture had not yet been invited to Djibouti, the Government was looking into the possibility of inviting him to visit the country as soon as possible.  Sources of information were generally heeded by those receiving the information and could be also looked at by the Special Rapporteur.
 
On freedom of expression and organization, nothing prevented citizens from having access to justice.  The delegation had no knowledge of anyone who had been prosecuted because of their opinion, and there was general trust in the justice system to do its job.  There were eight duly registered political parties, and each of them could have their own media outlets to promote their opinions as long as that was not something which was threatening law and order.
 
Djibouti did not have any private radio and television stations because it was a small country with very limited viewership and listenership.  Such conditions were not motivating enough for entrepreneurs to set up such businesses and make profit from it.  Given people’s modest economic resources and illiteracy, people did not have the courage to set up private newspapers either, even though conditions for that existed under the law.
 
Laws in Djibouti recognized and supported rights of organization and association, and there were no barriers for an active existence of trade unions.  People were also free to gather and express themselves in public spaces.  Nonetheless, when there were hundreds of people protesting in the streets, that would often lead to looting as people were generally poor.
 
The nationality of Djibouti was given in accordance to the nationality code, and only one case of the withdrawal of nationality had been recorded recently, because the person in question had used fraudulent means to acquire the nationality in the first place.
 
Foreign lawyers were allowed to appear before Djibouti’s courts, for which there was a provision of reciprocity with a number of countries.  The foreign lawyers would need to have national counterparts in Djibouti and could not simply come in and start practicing law without preconditions.
 
Concluding Remarks
 
ABDI ISMAEL HERSI, Secretary-General of the Ministry of Justice, said that it was with great pleasure that the delegation of Djibouti had addressed the Committee for the first time, and it would take back home the wise advice provided by the Committee Members.  Perhaps not all the questions had been answered orally, which was why within 48 hours, written responses would be provided.  Djibouti was committed to collaborating with the Committee in the future.
 
NIGEL RODLEY, Chairperson of the Committee, expressed regret that the responses by the delegation had had to be cut somewhat short due to time limitations.  There had clearly been some positive developments in the State party, such as the ratification of the Second Optional Protocol and the abolition of the death penalty.  The Committee Members’ concerns were related to torture and it would be interesting to see, in writing, if there had been any prosecution of those responsible for human rights violations.  While the efforts to address the problem of overcrowding in prisons were praised, more information would be welcome on that matter.  Anything more than 48 hours in detention without charges was problematic, and that would certainly be addressed in the Committee’s concluding remarks.   Securing freedom of expression and association remained an issue of key importance. 
 
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