DJIBOUTI: ARBITRARY DETENTION OF SENIOR GOVERNMENT OFFICIAL ABDOULKARIM ADEN CHER

The International League Against Arbitrary Detention urges the government of Djibouti to take all necessary measures to implement Opinion No. 67/2024 of the United Nations Working Group on Arbitrary Detention concerning Abdoulkarim Aden Cher, calling on the government of Djibouti to release him immediately and unconditionally, without conditions, and to grant him an enforceable right to compensation and other reparations in accordance with international law.

Read the full opinion of the WGAD concerning Abdoulkarim Aden Cher (Djibouti): Opinion No. 67/2024.

DETENTION OF A SENIOR OFFICIAL WHO CRITICIZED THE GOVERNMENT

Abdoulkarim Aden Cher is a Djiboutian citizen and senior government official born in 1986. He served as Minister of Budget from May 2019 to January 2022.

According to the source, Mr. Aden Cher's detention comes amid multiple arbitrary detentions of political opponents, human rights activists, and journalists, and a lack of transparency during the last presidential elections. Although he had previously expressed critical views of the government, Mr. Aden Cher held several senior government positions. On January 2, 2022, he was reportedly suddenly dismissed from his position as Minister of Budget by presidential decree.

His arrest reportedly took place on March 3, 2022, after he published a political pamphlet critical of the government on social media. The authorities reportedly arrested Mr. Aden Cher on suspicion of embezzlement of public funds, corruption, and influence peddling, following the publication of a report by the General State Inspectorate on public spending on March 1, 2022. On March 6, 2022, the Attorney General reportedly issued a statement presenting Mr. Aden Cher as the main instigator of a system of embezzlement within the Ministry of Budget.

On March 7, 2022, Mr. Aden Cher was reportedly brought before an investigating judge, who indicted him, released him, and placed him under judicial supervision.

In response to the Attorney General's statement, Mr. Aden Cher reportedly denounced the politically motivated prosecution in an interview broadcast on social media in March 2022. On 23 March 2022, Mr. Aden Cher was reportedly placed in pretrial detention following an appeal against the investigating judge's decision to place him under judicial supervision. His detention was reportedly based on suspicions of passive corruption, influence peddling, and obstruction of justice by a person in a position of public authority in the exercise of his duties, pursuant to articles 24, 200, 201, 206, and 208 of the Criminal Code. Since then, Mr. Aden Cher has reportedly been held in pretrial detention at Gabode Central Prison in Djibouti. After more than two years without progress in the investigation, the investigating judge reportedly referred the case to the Attorney General on 28 March 2024, 10 days after Mr. Aden Cher's lawyers referred it to the Working Group on Arbitrary Detention.

The Working Group gave the Government of Djibouti the opportunity to respond to the source's allegations, which it did on 29 August and 3 September 2024.

ARREST WITHOUT A WARRANT, FAILURE TO BRING THE DETAINEE PROMPTLY BEFORE A JUDGE, AND PROLONGED PRE-TRIAL DETENTION

The source argued that Mr. Aden Cher was detained without a proper legal basis and that the State had violated the procedure applicable to criminal acts committed in the exercise of ministerial functions. Furthermore, no warrant had been presented to him at the time of his arrest. Although the Government responded to the source's argument concerning procedure, the Working Group refrained from examining this issue, which falls under domestic law. However, the Government did not provide details on the issuance and presentation of a warrant to Mr. Aden Cher at the time of his arrest. Thus, the Working Group considered that no warrant had been presented to him and that Mr. Aden Cher had not been informed of the reasons for his arrest until he appeared in court, in violation of article 9 (1) of the Covenant. The Working Group also concluded that the presentation of Mr. Aden Cher before a judge four days after his arrest violated his right to be brought before a judge without delay, as provided for in article 9 (3) of the Covenant.

In addition, the source alleged that Mr. Aden Cher's prolonged pretrial detention violated his rights. In its response, the Government justified the extension of pretrial detention on the grounds that the Code of Criminal Procedure did not provide for any restrictions on its duration. The Working Group recalled that pretrial detention must remain exceptional, reasonable, and justified in light of the particular circumstances of the detainee, and that compliance with domestic law did not exempt a State from its obligations under international human rights law. The Working Group therefore considered that the pretrial detention of Mr. Aden Cher, which had lasted for more than two and a half years, violated article 9 (3) of the Covenant.

The Working Group therefore concluded that the arrest and detention of Mr. Aden Cher had no legal basis and were therefore arbitrary under category I.

DETAINED FOR EXERCISING HIS RIGHTS TO FREEDOM OF EXPRESSION AND PARTICIPATION IN PUBLIC AFFAIRS

According to the source, Mr. Aden Cher's arrest and pretrial detention each followed the expression of his opinions on social media. This timing proved that Mr. Aden Cher had been arrested and detained for exercising his freedom of expression and his right to participate in public affairs. The Government refuted these allegations and explained that Mr. Aden Cher had been arrested for embezzlement of public funds, corruption, influence peddling, and obstruction of justice, following the publication of an audit report. In view of the timing of Mr. Aden Cher's detention and the observations of civil society and the Human Rights Committee on the shrinking civic space in Djibouti, the Working Group considered that Mr. Aden Cher's detention was a result of his expression of opinions critical of the Government. Therefore, his deprivation of liberty was arbitrary under category II, as it violated articles 19 and 25 (a) of the Covenant and articles 19 and 21 (1) of the Universal Declaration of Human Rights, which protect the rights to freedom of expression and freedom to take part in the conduct of public affairs in one's country, respectively.

VIOLATIONS OF THE RIGHT OF ACCESS TO A LAWYER AND THE PRESUMPTION OF INNOCENCE

Since Mr. Aden Cher's detention was arbitrary under category II, the Working Group reiterated that no trial should have taken place. However, the Working Group examined the violations of the right to a fair trial alleged by the source and the Government's responses.

First, the source claimed that Mr. Aden Cher had only been given access to a lawyer at the end of his four days in police custody, just minutes before he was brought before a judge. As a result, he had been unable to communicate freely with his lawyer and had not had sufficient time to prepare his defense. In the absence of a specific response from the Government to these allegations, the Working Group concluded that Mr. Aden Cher had been deprived of his right to a lawyer immediately after his arrest, in violation of article 14 (3) (b) of the Covenant and his right to a fair trial under article 11 of the Universal Declaration of Human Rights.

Furthermore, by publicly declaring Mr. Aden Cher to be the instigator of a fraudulent system of embezzlement of public funds after his arrest and before his indictment, the Attorney General had, according to the source, violated the presumption of innocence. On this point, the Working Group considered that the Government had not responded to the source's allegation and found that there had been a violation of Mr. Aden Cher's right to the presumption of innocence, protected by article 11 of the Universal Declaration of Human Rights and article 14 (2) of the Covenant.

Consequently, the violations of the right to a fair trial were so serious that they rendered Mr. Aden Cher's detention arbitrary under category III.

DISCRIMINATED AGAINST ON THE BASIS OF HIS POLITICAL OPINIONS

With regard to category V, the Working Group based its examination on its previous conclusion under category II, the context of repression of opinions critical of the Government, and the absence of any argument by the Government contradicting the source's allegations regarding the discriminatory nature of Mr. Aden Cher's deprivation of liberty. It therefore concluded that Mr. Aden Cher had been arrested and detained on discriminatory grounds based on his political opinions, in violation of articles 2, 7, and 19 of the Universal Declaration of Human Rights and articles 2 (1), 19, and 26 of the Covenant.

His deprivation of liberty was therefore arbitrary within the meaning of category V.

CONCLUSIONS OF THE WORKING GROUP ON ARBITRARY DETENTION

In view of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Abdoulkarim Aden Cher was arbitrary and fell within categories I, II, III, and V, as his deprivation of liberty was contrary to articles 2, 3, 7, 9, 10, 11, 19, and 21 of the Declaration of Human Rights and articles 2, 9, 14, 19, 25, and 26 of the International Covenant on Civil and Political Rights.

The Working Group called on the Government of Djibouti to conduct a thorough investigation into the circumstances of these violations. In addition, the Working Group requested the Government of Djibouti to take all necessary measures to remedy Mr. Aden Cher's situation without delay and bring it into conformity with relevant international standards. The Working Group considered that, taking into account all the circumstances of the case, the appropriate solution would be to release him immediately and grant him an enforceable right to compensation and other reparations, in accordance with international law.