By Adel Al-Dhahab
In 2000, a teenage son of a tribal leader in Yemen went to a market where he got into a dispute with another shopper. Being young, inexperienced and armed, when the other adult shopper attacked him, the boy used his gun and killed the man.
The city got fired up as rumours started everywhere: “The government will blow the house of the Sheik”, “The Sheik and his children escaped to their tribe ,”and “The government is about to send a big military campaign to arrest the son and his father”.
The next day, we headed toward the Sheik’s village seeking to mediate and find an alternative solution. But we were surprised to meet the Sheik inside the main street of that city with his wanted son and about 200 tribesmen. He was sitting in confidence on the granite.
After shaking hands and before we start any approach, the Sheik stood up and spoke loudly. “The case is simple, my son is a killer and by the virtue of law, he deserves the death sentences, but before I can hand over my son to government, all killers are to hand over themselves to government”. The Sheik added, ”We will not except a State that forces the law on some citizens but gives others a break.”
The story illustrate one of the reasons that makes Yemen anything but a country of law, and it gives explanation of what goes in the mind of both the government and offenders.
There is a famous statement for former Yemeni Prime Minister Bajamal, “The one who can’t be rich under President Ali Abduallah Saleh’s regime, can never be rich.”
In an interview, Dr. Mohamed Abdulmalik Almotwakil, the current spokesman of the opposition JMP coalition recounted,”We asked (foreign diplomats), do you think the regime is able to fight corruption?” The question was answered “It is obvious there is inability to fight corruption in Yemen, because the country was built on corruption, and if you try to remove one single stone, everything will collapse’.”
We can understand the answer to Mr. Almotwakil’s question, by remembering the case of the Sheik which ended in a predictable way. His son never handed himself over to the authorities and the case was resolved when the victim’s family accepted blood money as compensation.
Let’s assume that the Yemeni Attorney General will issue an arrest warrant, on the ground of corruption charges, against former or current (Minister, or Judge, or MP, or Governor, or Brigadier police or military officer or others). Any of these will say like the sheik, “Yes I have done it, but before I would return any money or hand over myself, all corrupted people should be prosecuted first”.
So what is the solution? Shall we deal with the matter by finding out who committed which crime first? Who should we prosecute first?
What we need to do is to consider adopting a solution that nations in similar circumstances as Yemen have adopted.
In countries where much blood was spilt, corruption was expanding, and gross human rights violation occurred, a general amnesty was granted to establish the role of law and encourage reconciliation. This is what Yemen needs. It is an amnesty that will wave all offenders from their offenses, whether political offenses, crime or corruption. It comes to selecting a cut-off date where every crime that happened before that date is waved and any crime that happens after that date will be prosecuted.
This solution was adopted by two Arab countries that had similar circumstances as Yemen, Algeria in 2006 and Iraq in February 2008. Moreover, amnesty is a mechanism recognized by the U.N which has a legacy in applying this solution in many countries during a process of reconciliation, reform, and establishing a country of law after local war or political collapses.
Amnesty is a solution that finds a compromise between the right of the nation to punish all offenders of the past, which is a difficult goal, in return for granting a new beginning where every offender will be held accountable.
The philosophy and justification of granting general amnesty
The law requires that every offender should be punished, equally. This protects the entire nation. But here we are talking about an exceptional situation where a significant percentage of citizens have been in trouble with the law. In such a case, bringing this large percentage to justice is simply impossible, would cost the nation heavily or will jeopardize the efforts of reconciliation and the process of restoring the role of law. In this circumstance, the interest of the nation lies in not punishing the criminals.
How the general amnesty can be applied
The best way to apply general amnesty is by offering it for people as referendum. This is the method that was adopted in Algeria in 2006. That means a law will be prepared that list crimes that would be waived. Then Yemeni voters will cast their ballet to decide on adopting this amnesty or not. The victims of corruption, political crimes and general violations is the nation, so the waiver in referendum is the nation. From a legal point of view, amnesty that comes by referendum has superior value than amnesty that comes by a law that Parliament might adopt.
Since all the political reform plans in Yemen suggested by the ruling party or opposition require amending the constitution, so if such solution will be adopted, then two ballet boxes are required. Accordingly we might name this solution, The Two Ballet Solution.
The second method is by parliament adopting a law that will grant all offenders of certain crimes exemption from punishment. (Tribal revenge might be added as it is something Yemenis suffer from). The amnesty might also waive the requirement to return stolen money. This method was adopted by Iraqi Parliament in 2008 when it passed an amnesty law. Experts believe the recovery of stability in Iraq took longer than expected because, among other reasons, adopting this law had been delayed for a long time- 2003 to 2008.
Who can benefit from such amnesty?
It might come to mind that such amnesty will only benefit members of the current regime that have been taking the country to disaster. Why should they be rewarded?
In fact all Yemenis will benefit from such a law. Let’s remember the different stages of violence that has been taking place in the country:
-The war of Independence 1963 to 1968
-Republican war 1962 to 1968
-What is known in history as (Abdulraqeeb movement)
-The assassination of the three presidents (1977to 1978)
-The attempt of Nasseri coup 1978
-The rebellion of central area 1978 to 1982
-January events 1986 and southern civil war
-1994 war and political violence before it.
-Intifada of Aldalee governorate 1994 to 2000
- Saada wars 2004 -present
-Other crimes, assassinations and tribal revenges.
Offenders are more than we can calculate. Many of these offenders are the opponents of today and adopting amnesty would diminish the threat of opening the files of the past. For example, MP Alsameei when he acted aggressively against the current government, we heard threats of reopening old files of criminal offenses against him. Let’s remember that by the virtue of law Ali Salim Albayidh and the other 16 members of the famous list are not allowed to practice politics or to occupy a public office or to be candidates because the law required them to clean their names first and by granting amnesty, they would achieve this capacity.
Moreover, many active and senior members of the current government are restricted by files that the intelligence services possess. These files and document detail their mistakes, corruption deals and so on. Large numbers of these people have been put on the shelf. These people want to seize the moment of the increase of political dynamic in the country and engage in the political process. Some of them want to establish a wing or working group within the ruling party. Some want to change parties. Some want to criticize the current situation loudly. So let’s free these men from the files of the past.
President Ali Abduallah Saleh said after the 2006 Presidential election, addressing members of ruling party, “If the other candidate won the election, you and I would be now before tribunals.” The message from President Saleh to members of ruling party was, without me, there is no safe haven for you; so fight for me, and fight for my relatives to keep power.
Adel Al-Dhahab is a Yemeni attorney currently residing in Canada. He could be reached at aldhahab@lawyemen.com