Sunatimes.com - The government grossly violated the Constitution and International Laws in handing over ONLF senior leader Qalbi Dhagah to Ethiopia, an international legal expert has said noting the government failed to study the relevant laws before acceding to Ethiopia's request to surrender the embattled leader.

Somalia’s Provisional Constitution, UN Conventions and the regional bloc IGAD Convention on Extradition expressly sanctioned against such a move, the legal expert who requested not to be named for security reasons told Goobjoog News.

"Articles 4, 8, 35, 36 and 37 of the Provisional Constitution provides guidelines on dealing with a case as that of Qalbi Dhagah. Similarly, the UN Convention on Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the IGAD Convention on Extradition must be looked at clearly before a state party responds to an extradition request,” the source said.

Due process

Article 36, for instance, prescribes the manner in which the state can follow in matters relating to extradition. "Any person who has been accused or convicted may be extradited only in a manner prescribed by law and on the basis of an international treaty or convention which the Federal Republic of Somalia is party to, and which obliges the Federal State of Somalia to extradite the accused or convicted.”

Any accused or convicted person, Article 36 (b) reads, shall be extradited only in accordance with international law and practice, and on the basis of legislation governing extradition, which has been passed by the Federal Parliament.

The legal expert poked holes on the government’s reasoning relying on two agreements signed between Somalia and the Somali state in Ethiopia (Ogaden). "We need to establish the legal standing of these agreements. The question to pose would be, were they sanctioned at the state level between the two countries?

Legal merit

It appears from reading this documents, the legal expert said these were agreements between regions of both countries. Did Mahad Salad (then State Minister in the office of the president who signed the June 7, 2015, agreements) append his signature with the blessings of the state?

It follows therefore that the documents may not be interpreted as constituting a legally binding agreement by two countries recognized by international law, the expert said.

Both Mahad Salad and former Galmudug State President, both who signed the documents have dismissed the government’s argument noting the agreements were meant to address conflicts between regions in Somalia and Ethiopia and did not in any way constitute bilateral agreements between Somalia and Ethiopia.

Torture

Article 3 of the UN Convention Against Torture notes that state parties shall not extradite persons to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture. The second part of this article calls on state parties to take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. Human rights organizations including Human Rights Watch have pointed out several cases of human rights violations in Ethiopia including torture, detention without trial and use of state machinery to suppress dissent.

Ethiopia passed a controversial anti-terrorism law in 2009.

Exhaust domestic legal options

The legal expert further observes Somalia, as prescribed by international law could have sought to exhaust all the existing legal channels before handing over Qalbi Dhagah including trying him in Somali law courts for the crimes he is accused of. Even for terrorists, the expert notes legal recourse in the requested country (Somalia) must be taken into consideration particularly in instances where there is ground that the suspect could face torture in the requesting country (Ethiopia).

Citing the case of the radical Islamic cleric Abu Qatada in the UK and Jordan, the legal expert observed the UK was compelled under international law to ensure the cleric would not be tried based on evidence procured under duress. In the case, there was information that evidence secured by state agents through the torture of suspects was to be used against Abu Qatada during his trial in Jordan but the UK had to seek assurances from the Jordanian government that it did not intend to adduce the evidence against the cleric before it allowed he be handed over.

Abu Qatada was later (September 2014) exonerated of any wrong doings for his alleged involvement in a plot to bomb Christian sites in Jordan and other targets in 2000. Subsequently, the court also cleared him of involvement in a 1998 bomb plot.

Parliament will be expected to debate the Qalbi Dhagah case today as it resumes seating.