A matter of law [Archives:2005/829/Opinion]

March 31 2005

Many will view the release of Abdul-Karim Al-Khaiwani as an important victory for press freedom in Yemen. That the news came just a few hours after the issuance of a decision by the Sana'a Appeals Court to uphold the decision of the Primary Court raised many questions in many a skeptic's mind. Nevertheless, the long ordeal of Mr. Khaiwani and the many who worked diligently to support the efforts to release the journalist came as a relief and a tinkling of hope that perhaps press freedom got the upper hand. On the other hand, there are those who felt that the release instigated by a Presidential Pardon was a clear indication that the various statutes and ordinances instituting press freedom as an essential element of the democratization process unleashed in Yemen with the Unification Agreement of 1990 have taken on less legal force. Many questioned the poor showing made by the judicial system in interpreting the relevant laws and in safeguarding the marginal democracy the Republic of Yemen still enjoys. Mr. Al-Khaiwani perhaps perceived that his criticism of the executive branch of the government was bound to entangle him in legal conflict with the Government, but more likely felt that after the President of the Republic issued the decree banning the imprisonment of journalists, journalists can count on the strength of the President's wise decree. No one was under any doubt that the President was indeed sincere in issuing the decree, which many in the press saw as a blessing that reinforced the Constitution and all the other legislations guaranteeing press freedom.

Whatever may be said about the Khaiwani case, one is inclined to believe that the law in Yemen is still unable to activate the instruments that set the law in motion and reinforce its application in an equitable just manner. The problem of getting the law to mean exactly what is implied by the legislators is an old one in Yemen and many attribute this to the weakness of the Courts as well as the obvious lack of independence that the Courts should enjoy, if they are to adjudicate the cases before them in a judicious and fair manner. It is understandable that political clout in a society as complex as that of Yemen is bound to influence the directions that some cases might take in Court, but when it comes to issues of constitutional stipulations, the Courts should be more stringent in their interpretations. After all, if the Constitution of the Republic faces difficulty in reinforcement of its stipulations, then how could any other legislations find their way to proper reinforcement?

A broad look at many of the problems facing the Republic of Yemen will lead to a general conclusion that most of the obstacles to development may be rooted in the poor application of law and the inability of the Courts to give weight to legal statutes that regulate our society. This is more evident in the area of human and civil rights and manifests itself in the inability of the common citizen to have access to the services and avenues of social advancement that will encourage initiative, creativity and entrepreneurship.

One of the major problems in the security situation in Yemen lies in the widespread blood feuds that have undermined not only the security of the countryside but also the peace and tranquility of the rapidly growing major urban centers. Why are people amongst the clans and tribes that make up Yemen's complex social structure resorting to taking the law in their own hands? In such serious crimes, such as murder or intentionally afflicted bodily harm, there are strong religious guidelines that victims can count on to obtain justice from their attackers. Furthermore, these guidelines are further backed by the relevant stipulations in the criminal and penal laws of the Republic. Yet poor reinforcement of most of these laws and statutes has become the rule rather than the exception. With most of the people hardly knowing how to go about seeking justice for such crimes, they resort to the traditional customs of avenging their dead or injured relatives by killing any relative of the culprit, if they are unable to find the culprit himself. This often leads to the punishment of a crime meted out to persons who may not have anything at all to do with the original crime. Accordingly, the relatives of the victim of the revenge then are forced to pursue their revenge on the killers of their kin. A vicious cycle is created that could drag on for decades. This observer once heard an old man complain that his clan and a clan they are feuding with over the case of wedlock that was consummated without the traditional approval of the parents of the girl in question has dragged on for years. Both spouses were killed, but the ensuing revenge and counter revenge has led to the killing of 39 people from both clans over the time span of a generation. There are legal solutions to most of the cases that eventually lead to a spiral of revenge killings, but the legal proceedings are often slow, cumbersome and quite expensive. If that was not enough, even if the Court comes out with the right verdict in the case, then there is the problem of reinforcement, where again time consuming and expensive procedures may be involved or there is interference by powerful social dignitaries or politically strong personalities that stand in the way of reinforcement. With the seriousness that honor is given amongst the tribes, many tribesmen resort to taking their own revenge on anyone who might be related to their culprit, who might be under protection or hiding away somewhere or may even be in jail awaiting the final outcome of the proceedings against him.

If such is the case in serious crimes, one can easily surmise that less serious offenses, but nevertheless detrimental to the stability of society are also beset with legal entanglements and proceedings and poor reinforcement of Court decisions. Thus banks find it difficult to collect their debts and legal contracts rely more on the good faith of the contracting parties than on legal support.

The point to be said is that Al-Khaiwani's case could have been solved much earlier if the relevant laws and statutes were given their right interpretations as intended by the lawmakers and if the Courts really enjoyed the freedom and authority that modern democratic states normally accord the bench. This would have saved Yemen a lot of international embarrassment and assured the citizens that their rights are not simply superficial legal decor meant to placate those outside of Yemen, who eventually do learn the truth anyway.