Djibouti

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Background

The Republic of Djibouti (Djibouti), located in the Horn of Africa, is a small but strategically significant country bordered by Eritrea to the north, Ethiopia to the west and South and Somalia to the Southeast, with a coastline along the Red Sea and Gulf of Aden. Situated on the Bab El Mandeb Strait, its history is shaped by its geographic position as a crossroads for trade and migration between Africa, the Middle East and Asia. It has a total land area of 23,180Km^2 , a median age of 24.9 years and population of about 1.1million people with about 73% living in the country's capital, Djibouti City.

• https://www.worldometers.info/world-population/djibouti-population/

• https://population.un.org/wpp/

• https://datareportal.com/reports/digital-2024-djibouti

The Legal system

Djibouti’s has a hybrid legal system based on a combination of Islamic law, customary law and civil law (primary based on the French Napoleon code as it existed in 1997) the primary sources of law in Djibouti include Sharia Law, the constitution, national legislation and international treaties.

Islam plays a central role in Djibouti's legal system, as the Constitution recognizes Islam as both the religion of the people and the state. Sharia is described as "the sole source of law" in the preamble of the Constitution, and this influence permeates the country's legal framework (Mustafe Mohamed, NYU). The importance of Sharia is further emphasized in various legal provisions, including the swearing-in oath of the President of the Supreme Court, which mandates that judicial officers respect Sharia alongside the Constitution and national laws

• Dullah Omar Institute ACJR Resource Centre Djibouti

• Researching the Legal System of the Republic of Djibouti by Mustafe Mohamed H. Dahir NYU

Legal Aid

State Sponsored legal aid: In Djibouti, the Ministry of Justice operates a Legal Aid Bureau, providing legal assistance primarily to vulnerable groups, including women, children, the elderly, and people living with HIV/AIDS. A law on legal aid was introduced in 2011, enabling those most vulnerable in society the ability to receive legal representation in national courts. This is often provided in the form of financial aid or legal assistance provided by the state to litigants whose income is insufficient to access justice. The threshold typically lies between 100000-15000 francs of maximum monthly resources for one to qualify, and depends on a number of factors such as a litigants number of dependent children. This financial aid may be requested before or after the matter begins, and covers all legal costs (lawyers, bailiffs etc.) Minors and those with HIV aids are granted Automatic legal aid regardless of ability to pay. The government also provides for criminal defense representation in major felonies, and other cases where there is proof of indigency. Article 4 of Act No. 52 provides for the right to legal assistance in any case. Legal assistance by a court-appointed lawyer must be offered to any person accused of a criminal offense who cannot afford to engage a lawyer of their choosing under Article 65-4.

NGOs pro bono legal aid: There are also a number of NGOs and other organisations that provide legal aid, primarily focusing on the legal needs of vulnerable populations like women or children. One of the oldest of these is the national Union of Djiboutian Women which is a non-governmental not for profit resulting from the independence movement of 1977 and which has several offices in djibouti. They campaign for the protection of women’s rights by providing them with legal assistance and lobbying for their rights . The International Organisation for Migration also has an office and provides referrals to legal aid for migrants in vulnerable situations. They also work closely with the Government to support health and hygiene structures.

• Constitution of the Republic of Djibouti: September 4, 1992

• https://www.womenconnect.org/web/djibouti/legal-aid#:~:text=According%20to%20Law%20No.,is%20insufficient%20to%20access%20justice.

• https://www.womenconnect.org/web/djibouti/legal-aid#:~:text=According%20to%20Law%20No.,is%20insufficient%20to%20access%20justice.

https://www.iom.int/countries/djibouti#:~:text=Contact%20Information,https://twitter.com/DjiboutiIom

Rights of the Accused

Right Against Unlawful Arrests, Searches and Seizures: Article 6: Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.
Article 10: of the Constitution states that arbitrary arrest or detention is unlawful and persons may be arrested or detained only in accordance with the law.

Right Against Unlawful Detention: Article 10……No one may be prosecuted, arrested, inculpated or condemned except by virtue of a law promulgated prior to the acts of which he is accused.
TITLE VI: INTERNATIONAL TREATIES, CONVENTIONS AND AGREEMENTS
Article 74 No one may be arbitrarily detained. The judicial power, guardian of individual liberty, assures the respect for this principle under the conditions provided by the law.

Right Not to be Tortured or Ill-Treated: Article 16: Prohibition of torture No one may be submitted to torture, or to inhuman, cruel, degrading or humiliating actions or treatment. Any individual, any agent of the State, or any public authority rendered culpable of such acts, either on their own initiative, or on instruction, shall be punished in accordance with the law.
Article 5: Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
Article 10 of the Constitution of the Republic of Djibouti establishes the principle that the human person may not be violated on any grounds. Therefore, in accordance with this article, the State party has the obligation to do everything possible to “respect and protect” the human person.

Right to Medical Care: Article 10: Anyone subjected to a custodial penalty shall be entitled to be examined by a doctor of their choice.
Article 16 of the Constitution prohibits torture and cruel, inhuman, degrading or humiliating treatment and protects every person against such acts. Among the constitutional protections afforded to detainees is the right of every individual to a medical examination. However, the law effectively fails to guarantee that detainees have access to independent medical attention.

Right to Presumption of Innocence: Article 10: All accused persons are presumed innocent until their culpability has been established by the competent jurisdiction….

Right Against Self-Incrimination: ROME STATUTE ART 55 2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned: (a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court; (b) To remain silent, without such silence being a consideration in the determination of guilt or innocence; (c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and (d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

Right to Counsel and Effective Assistance: Act No. 52/AN/94/3rd: The right to be assisted by counsel of one’s own choosing, is guaranteed at all stages of the proceedings. No one may be detained in a penal institution without a warrant issued by a judicial officer.
First established on 10 October 1994 on the establishment of a court of appeal and court of first instance and were subsequently included in various provisions of the Criminal Code and the Code of Criminal Procedure, which entered into force in 1995.

Right to a Fair Trial: Article 7 1. Every individual shall have the right to have his cause heard. This comprises: a. The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; b. The right to be presumed innocent until proved guilty by a competent court or tribunal; c. The right to defense, including the right to be defended by counsel of his choice; d. The right to be tried within a reasonable time by an impartial court or tribunal. 2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

• REPUBLIC OF DJIBOUTI

Pretrial Procedures

Police procedures : 1. Complaint/information: Most arrests occur following the filing of a criminal complaint. Investigators gather evidence and determine whether to detain the accused for questioning. Articles 61 et seq. of the Code of Criminal Procedure govern the conduct of preliminary investigations.

Pre-trial detention: Pre-trial detention is limited to cases where release could compromise the investigation or public policy, as per articles 133 ff. of the Code. Police custody is regulated and generally cannot exceed 48 hours, with a possible 24-hour extension upon the prosecutor's approval. If the arrest occurs before a judge, this deadline can be increased by an additional 24 hours. Police custody decisions can be made by criminal investigation officers, and custody duration depends on the location of the crime. The criminal investigation officer must record the date and time of custody and release in the detainee's statement.The Attorney General and public prosecutor also oversee police actions, ensuring no detention exceeds 48 hours without judicial approval. The judiciary must intervene in cases of arbitrary arrest or detention. Additionally, detainees are protected from torture, and complaints about mistreatment can be lodged, with perpetrators subject to legal consequences

Court Procedures

Initial Court Appearance: Following arrest, the defendant must be brought before the court within 48 hours for an initial appearance. At this stage, the charges are presented, and the court will determine whether the defendant should be granted bail or kept in detention.

Charging InstrumentThe charging instrument outlines the specific charges against the defendant. This can include an indictment or a summary of charges, depending on the case. It formally initiates the prosecution.

Preliminary Hearing: A preliminary hearing is held to determine whether there is enough evidence for the case to proceed to trial. The judge assesses the evidence and decides if the case should move forward or be dismissed.

Authorities Responsible for Criminal Proceedings and Investigations: Responsible for conducting criminal investigations, gathering evidence, and arresting suspects. Public Prosecutor’s Office: The prosecutor is responsible for overseeing the investigation, presenting the case in court, and ensuring that justice is served.Investigating Judge: The investigating judge oversees the investigation, ensuring it is conducted fairly and in accordance with the law.

Rights in prison