US embassy cable - 05SANAA1244

C O N F I D E N T I A L SECTION 01 OF 02 SANAA 001244 
 
SIPDIS 
 
E.O. 12958: DECL: 05/08/2015 
TAGS: PHUM, YM 
SUBJECT: YEMEN GRAPPLES WITH POSSIBLE EXECUTION OF A MINOR 
 
Classified By: Ambassador Thomas C. Krajeski for Reasons 1.4 (b) and (d 
). 
 
1. (U) Summary.  On May 2, President Saleh suspended the 
death sentence of murder defendant Amina Ali Abdallah 
al-Tuhaif.  The suspension was a direct result of 
international and local pressure to revisit the case due to 
questions on whether or not Al-Tuhaif committed murder when 
she was a minor.  End Summary. 
 
2. (U) On May 2, Saleh temporarily commuted the death 
sentence of Amina Ali Abdallah al-Tuhaif and requested a full 
case review by the ROYG Minister of Justice, Dr. Adnan Omar 
al-Jafri.  Amina was convicted of the January 1999 murder of 
her husband,  Hezam Hassan Hezam Qabail.  Recently, the case 
garnered some local and international publicity as questions 
arose surrounding Amina's age at the time of the crime and an 
allegation that she was raped in prison. 
 
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Facts and Case History 
---------------------- 
 
3.(U)  Misinformation, propagated by the press, rumor and a 
poorly maintained 15-page handwritten court record, has 
muddied the facts surrounding the case.  According to the 
court record provided by European Union (EU) Delegation to 
the Republic of Yemen Senior Program Monitor, Mary Horves, 
the case revolves around a suspected affair that Amina had 
with her and her husband's cousin, Muhammad Ali Yahia Qabail. 
 It is alleged that one night in January 1998, for reasons 
that are unclear, Amina let Muhammed into her home.  There is 
no confirmed account of what transpired in the home but the 
next day Amina's husband, who was evidently strangled to 
death, was found in a well.  Amina and her cousin were 
subsequently arrested.  Both confessed to the crime. 
 
4. (U) During Amina's trial the prosecution asserted that she 
helped her cousin plan Hezam's murder and drag his body into 
the well.  The primary evidence against Amina was the 
confession, which she says was given under torture. (Note: It 
appears from the court record that this was the only evidence 
presented.  In Yemen almost 90% of convictions are based 
solely on confessions.  End Note).   According to Hovers, 
there are some questionable facts surrounding the case that 
were never presented in trial.  For example, both defendants 
gave very different accounts of that evening's events. 
Furthermore, there are some witnesses from Amina's village 
who told authorities that Hezam was actually killed over a 
land dispute. 
 
5. (U) Procedurally, Amina's case was tried in the northern 
governorate of Mahaweet in May 1999.  (Note: Mahaweet lacks 
any solid rule of law infrastructure.  As such, it is 
unlikely that she received any sort of sound due process even 
by Yemeni standards. End Note).  Her conviction was upheld by 
the Sanaa Appellate Court in July, 2001 and the Supreme Court 
in July, 2002.  Per Yemeni law, Saleh ratified the sentence 
shortly afterwards. 
 
6. (U) In 2002, minutes before her execution, Amina's 
sentence was held in abeyance when authorities physically 
noticed that she was pregnant.  Amina, through her attorney, 
Shada Nasir,  claims that the pregnancy was the result of 
being raped in prison.  (Note:  Prosecutors refuted the claim 
pointing out the Amina likely conceived when she escaped 
shortly before her execution.  End note).  Until now Amina 
has refused to identify her rapist.  Authorities immediately 
transferred Amina to the Sanaa Central Prison where she 
delivered and has been caring for her son.  Since her most 
recent reprieve, no interlocutor, including Nasir, knows the 
cases' legal status.  There are also unsubstantiated reports 
that Saleh has contacted the victim's family to settle the 
case. 
 
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How Old is Amina? 
----------------- 
 
7. (U) Controversy over the case revolves primarily around 
Amina's attorneys' claims that she was 14 years old at the 
time of the murder.  This would preclude her from the death 
penalty under Article 31 of the Yemeni Penal Code, which 
forbids executing anyone for a crime that they committed when 
they were under the age of 18.  In September 2000 a ROYG 
Ministry of Health (MOH) dentist examined Amina to determine 
her age. The examination put Amina at 17-18 years old in 
2000, between 15-16 years old at the time of the crime and 
between 12-13 years old at the time of her marriage.  Some 
witnesses from Amina's village contend that Amina was in fact 
11 years old at the time of her marriage, thus placing her at 
around 14 years old at the time of the crime.  Despite the 
examination results the sentence was not commuted. 
 
8. (SBU) The court determined that Amina was 18 years old in 
1998.  Sharaf ad-Din Mahbashi, Deputy Attorney General in 
charge of death penalty case review, explained to poloff that 
the MOH dentist's examination was flawed and he had no doubt 
that Amina was in fact 18 years old at the time of the crime. 
 Mahbashi also alluded to the fact that the court "may have" 
benchmarked Amina's first menstruation in 1995 to age 15 thus 
placing her at 18 years of age at the time of the crime. 
There are no records to substantiate Amina's age. 
 
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International Attention 
----------------------- 
 
9. (C) In late April, after Phoebe Kraus, a representative of 
the Italian NGO project "Action for Freedom" that is helping 
in Amina's defense, released information regarding the case 
to local and international press, EU embassies and 
international NGOs began to take action.  On Wednesday April 
27, the Dutch Ambassador, in his capacity as the EU Acting 
Charge d'Affairs (CDA), demarched the MFA against the death 
penalty in Amina's case.  According to Horves, all EU heads 
of mission ratified the demarche and are opposed to the 
execution.  Amnesty International (AI) has also taken up the 
case.  On May 7, Horves called poloff requesting a meeting 
between Ambassador and the EU CDA, Raus Dreyer, to discuss 
the EU stance on the case. 
 
10. (C) Several local NGOs, such as HOOD (the National 
Organization for Defending Rights and Freedoms), local and 
international newspapers (from as far as New Zealand) and 
some blogs have begun to cover the case.  According to Kraus, 
this publicity upset Minster of Human Rights Amat al-Alim 
Soswa, who has been working behind the scenes to resolve the 
issue.  However, Nasser Arrabyee, Special Assistant Soswa, 
confided to poloff that Soswa felt that pressure was 
"helpful" in having the case reviewed. 
 
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Comment: 
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11. (C) Like any death penalty case in the U.S., the 
allegations in this case are difficult to ascertain.  There 
are several questionable factors surrounding Amina's case. 
The fact that Amina was tried in a governorate where the rule 
of law is mostly absent is cause for concern.  Amina's 
allegation of torture is also likely true.  Amina's 
allegation of rape, however, is more questionable since it is 
possible that she was not in custody when she conceived. 
Soswa's behind the scenes mediation and international 
attention are the reasons that Saleh so readily stayed the 
execution and called for a review of the case.  Post expects 
that the ROYG will continue to attempt to resolve this case 
while considering the consequences of negative publicity 
linked to a possible re-trial and the traditional right of 
the victim's family to exact revenge.  Ambassador will meet 
with Soswa and the EU to further inquire on the case and post 
will continue to monitor developments.  End Comment 
Krajeski