US embassy cable - 90MOGADISHU10556

C O N F I D E N T I A L SECTION 01 OF 02 MOGADISHU 10556 
 
 
E.O. 12356: DECL: OADR 
TAGS:  PGOV, PINS, PHUM, SO 
SUBJECT:  SECURITY DECREE CALLS PARTS OF CONSTITUTION INTO QUESTION 
 
REF:  MOGADISHU 
 
1.  (U) ON DECEMBER 5, RADIO MOGADISHU MADE THE 
FOLLOWING BROADCAST: 
 
2.  (U) TEXT FROM UNOFFICIAL USIS TRANSLATION. 
BEGIN TEXT: 
 
THE MINISTER OF JUSTICE, HUSSEIN SHIEKH ABDIRAHMAN 
MATTAN, GAVE DETAILS ON A NEW ANTI-BANDITRY LAW 
SIGNED BY THE PRESIDENT WHICH WILL BE PUBLISHED IN 
THE OFFICIAL BULLETIN.  THE MINISTER TOLD REPORTERS 
FROM THE LOCAL MEDIA THAT: 
 
-       ANYONE WHO ACTS IN A WAY THAT WEAKENS THE 
GOVERNMENT POLICY ON MAINTAINING SECURITY, UNITY, AND 
FUNCTIONALITY OF THE GOVERNMENT; AND COMMITS ARMED 
BANDITRY AND ROBBERY OF PUBLIC AND PRIVATE PROPERTY 
SHALL HAVE COMMITTTED A CRIME. 
 
-       ABOVE CRIME IS PUNISHABLE BY DEATH AND 
CONFISCATION OF ALL PROPERTY. 
 
-       ANYONE WHO ORGANIZES, ENCOURAGES, FACILITATES 
OR TAKES PART IN COMMITTING THE ABOVE CRIMES WILL BE 
SENTENCED FROM 10 YEARS TO LIFE IMPRISONMENT, ON 
CONDITION THAT THE CULPRIT SURRENDER LOOTED PROPERTY 
AND DID NOT COMMIT HOMICIDE.  ANYONE WHO ASSISTS THE 
CULPRIT IN ESCAPING OR HIDING WILL BE SENTENCED 3 TO 
5 YEARS.  ANYONE WHO PURCHASES LOOTED PROPERTY OR 
BROKERS OF SUCH PROPERTY WILL BE SENTENCED TO 3 TO 6 
YEARS AND FINED 1 TO 5 MILLION SHILLINGS. 
 
-       ANYONE WHO HIDES KNOWN INFORMATION ON 
BANDITRY WILL BE SENTENCED TO 1 TO 3 YEARS. 
 
-       IF SOMEONE GIVES ADVANCE INFORMATION ON ACTS 
OF BANDITRY AND SECURITY FORCES FOIL THE PLOT, THE 
INFORMANT WILL BE PARDONED. 
 
-       ANYONE WHO PROVIDES INFORMATION ON BANDITS 
WILL BE FINANCIALLY REWARDED FROM 200,000 TO 
2,000,000 SHILLINGS. 
 
-       ANYONE WHO USES HIS/HER VEHICLE FOR 
TRANSPORTING LOOTED PROPERTY WILL BE SENTENCED TO 3 
TO 5 YEARS. 
 
-       THE GOVERNOR OF THE REGION CAN KEEP THE 
CULPRIT IN DETENTION BETWEEN THREE MONTHS AND ONE 
YEAR, IF HE/SHE IS SEEN AS THREAT TO NATIONAL 
SECURITY.  THE DECISION WILL BE RATIFIED BY THE 
REGIONAL COURT WITHIN SEVEN DAYS. 
 
-       ANYONE INJURED OR KILLED DURING THE COURSE OF 
FIGHTING AGAINST ARMED BANDITS WILL BE COMPENSATED BY 
THE GOVERNMENT WITH A SUM OF 1 TO 10 MILLION 
SHILLINGS, WHILE THE SEVERANCE PAY OF THE DECEASED 
WILL BE GIVEN TO HIS IMMEDIATE FAMILY INCLUDING THE 
10 MILLION SHILLING BONUS. 
 
-       THE ATTORNEY GENERAL IS EMPOWERED TO APPOINT 
THE TRIAL JUDGES. 
 
-       THE BANDIT CAN BE ARRESTED WITHOUT WARRANT 
WITH NO RIGHT TO APPEAL. 
 
-       A DEVELOPMENT FUND TO GIVE THESE BONUSES WILL 
BE ESTABLISHED WITHIN THE POLICE FORCE. 
 
-       THIS LAW WILL BE VALID FOR ONE YEAR. 
 
-       ANY EXISTING LAWS THAT CONTRADICT THIS ONE IS 
NULL AND VOID. 
END TEXT. 
 
3.  (C) COMMENT.  IT IS NOT CLEAR WHETHER THE 
DECREE APPLIES ONLY TO MOGADISHU. 
 
NOTE: RECEIVED WITHOUT REF. NUMBER. CORRECTION TO FOLLOW. 
 
4.  (C)  THE DECREE IS BROAD AND VAGUE.  THE 
LANGUAGE APPLYING TO "ANYONE WHO ACTS IN A WAY 
THAT WEAKENS THE GOVERNMENT POLICY ON MAINTAINING 
SECURITY, UNITY, AND FUNCTIONALITY OF THE 
GOVERNMENT" AND ALLOWING THE DETENTION FOR UP 
TO ONE YEAR OF ANYONE "SEEN AS A THREAT TO NATIONAL 
SECURITY" COULD BE APPLIED TO ALMOST ANYONE OPPOSING 
THE GOVERNMENT; THAT IS TO SAY, TO ALMOST ANYBODY. 
 
5.  (C) SEVERAL SPECIFIC ARTICLES OF THE NEW 
CONSTITUTION ARE POTENTIALLY AFFECTED BY THIS 
DECREE.  ARTICLE 84, PARAGRAPH 1 ALLOWS THE 
PRESIDENT TO "ADOPT PREVENTATIVE MEASURES" IN 
SITUATIONS THAT "MAY PLACE THE SOVEREIGNTY, THE 
TERRITORIAL INTEGRITY, THE INTERNAL OR EXTERNAL 
SECURITY, OR THE FUNCTIONING OF THE COUNTRY INTO 
GRAVE DANGER."  PARAGRAPH 2 OF THE SAME ARTICLE, 
HOWEVER, SAYS SUCH MEASURES MUST BE PRESENTED TO 
THE PEOPLE'S ASSEMBLY WITHIN 30 DAYS FOR 
APPROVAL, AND THE LAW CANNOT BE VALID FOR MORE 
THAN SIX MONTHS, ACCORDING TO PARAGRAPH 3. 
 
6.  (C) ARTICLE 25, PARAGRAPH 2 PROHIBITS ARRESTS 
EXCEPT OF THOSE CAUGHT IN THE ACT OF COMMITING 
AN OFFENSE, OR BY ORDER OF A COURT.  ALTHOUGH 
THERE IS AN EXCEPTION FOR CASES OF "URGENT 
NECESSITY," SUCH ARRESTS MUST BE BROUGHT TO THE 
ATTENTION OF THE JUDICIARY WITHIN 48 HOURS SO THAT 
THE VALIDITY OF THE ARREST CAN BE EXAMINED. 
 
7.  (C) ARTICLE 27 ALLOWS EXPR/PRIATION OF PRIVATE 
PROPERTY ONLY FOR "REASONS OF PUBLIC INTEREST," 
AND IN EXCHANGE FOR JUST COMPENSATION. 
 
8.  (C) WHATEVER THE SPECIFIC VIOLENCE DONE TO THE 
PROVISIONS OF THE CONSTITUTION, THIS SORT OF 
DECREE, ALLOWING THE ARREST, WITHOUT WARRANT 
OR APPEAL, FOR A BROAD VARIETY OF OFFENSES, CLEARLY 
RUNS COUNTER TO THE SPIRIT OF THE DOCUMENT. 
 
9.  (C) THE NEW DECREE, ON TOP OF THE RECENT ARRESTS 
OF OPPOSITION FIGURES (SEPTEL), WILL UNDOUBTEDLY 
BE VIEWED BY THE OPPOSITION AS AN ACT OF BAD FAITH 
ON THE PART OF THE SIAD GOVERNMENT.  END COMMENT. 
 
BISHOP