By Charles Ochen Okwir

9^th July 2012:

When British Prime Minister David Cameron was asked whether he agrees that “…it would be wrong for convicted prisoners to be able to vote”, his response, a swift one at that, left no doubt in anyone’s mind about his strong conservative values:

“Frankly, when people commit a crime and go to prison, they should lose their rights, including the right to vote…it makes me physically ill even to contemplate having to give the vote to anyone who is in prison” the Prime Minister said during a debate in parliament on January 11, 2011.

The context within which David Cameron delivered his response – “human rights for prisoners” – leads us beautifully into the hot subject of Saif al-Islam Gaddafi’s human rights.  The debate over his basic human rights was thrust back into the headlines recently by the arrest of International Criminal Court [ICC] lawyers who had gone to visit him in detention.

Perhaps the time has come again to ask one of the age-old questions that have exercised even the greatest of minds for generations – namely, the schizophrenic relation between the high values of law and justice, and the cold and brutal realities of politics that govern the environment within which those noble values are exercised and enjoyed.

In this high octane political case of Saif Gaddafi’s human rights, one may be compelled to ask: Is a man who, justifiably or not, is reviled by many, less entitled to enjoy his fundamental human rights even when both common law and convention give him the right to be presumed innocent until proved guilty?

That, it seems, is the question that Saif Gaddafi’s “close friend” Mishana Hosseinioun wanted the ICC to answer when she instructed Barristers Sir Geoffrey Nice QC and Rodney Dixon to apply for “leave to submit observations before the Pre-Trial Chamber” of the ICC on matters concerning her struggle for Saif Gaddafi’s human rights.

The Guiding Principle

Courtney Griffiths QC, the British lawyer who defended former Liberian President Charles Taylor, is very clear about what ought to be the guiding principle in any attempt to resolve this “rights vs politics” question.  “…I was taught at law school that whether you are a Princess or Prostitute, you are treated equally before and in the eyes of the law”, Courtney declared amidst deafening applause at a conference in London.

And it is the “squinted eyes” of Libya’s post-revolution judicial system that are causing Saif Gaddafi’s friends and relatives sleepless nights.  Mishana Hosseinioun’s Lawyers have, for instance, argued that her observations are “directly relevant” to the Chamber’s determination of whether Libya is “…willing or able to investigate and prosecute” Saif Gaddafi’s case.

It is patently obvious that the issues raised by Mishana’s lawyers go to the very heart of the debate about the independence, impartiality, and indeed fairness of the criminal proceedings in Libya.  The other preliminary issue of fundamental importance that is being raised is, of course, Saif Gaddafi’s pre-trial rights – and in particular, whether he has access to counsel, and is being treated properly in detention.

As we shall see, both camps are, unsurprisingly, advancing conflicting arguments that are premised on both law and hard-core politics.  The net result is an unhealthy sense of “uncertainty” which directly contravenes the unwritten, and yet crucially important confidence-building principle of “legitimate expectation” in any due process of law.

Libya’s Concrete Wall

In her application, Mishana Hosseinioun says she has been trying since January 2012 to get access to Saif Gaddafi, but has not been able to see him, “or even to make a single phone call to him”. This, Hosseinioun’s Lawyers argue, “…is an astonishing situation for a country whose authorities claim in their filings [at the ICC] to be adhering to international standards.”

The politics in that argument is clear:  It is that Libya’s rulers are, or at least ought to be aware, that they have no political basis to deny Mishana access Saif Gaddafi – especially if they want to promote the “new Libya” as a free and democratic state.  But the evidence betrays them – because it shows that Libya has erected a “concrete wall” that has made it virtually impossible for Mishana to make any meaningful progress.

When Mishana’s lawyers contacted the Zintan authorities [where Saif al-Islam Gaddafi is being detained] for example, they were told that the Prosecutor-General of Libya’s ruling National Transitional Council (NTC) needs to provide written permission for any visit or contact with Saif Gaddafi to be allowed.

In his filings at the ICC however, the “accused” Prosecutor-General says something completely different – he blames the same Zintan authorities for, as he put, “…not co-operating to facilitate access to Mr. Gaddafi.”  And it seems Mishana Hosseinioun is not the only one who has failed to break through Libya’s concrete wall.

Having failed to make direct contact, Mishana attempted to contact Saif through the International Committee of the Red Cross (ICRC). But the ICRC itself has not been able to gain access to Saif Gaddafi since its only visit in November 2011.  The ICRC also told Mishana that no link to Gaddafi’s family has been established since Saif was captured.

Mishana’s application for leave to submit observations to the ICC’s Pre-Trial Chamber was also accompanied by a separate annex detailing the steps – all thirty two of them, in which she tried and failed to get access to Saif.  Most notable among these was one where Mishana’s lawyer made a call to the Libyan Embassy in London to establish whether his client’s messages to the Prosecutor-General, to the Attorney General, and to the Justice Minister had been received.

In response, Ms. Salwa, an official at the Embassy, said they had “heard nothing back”.  When asked if there was any other way to contact the Prosecutor-General, or indeed any other government official, Ms. Salwa said this information “is not for you”.

Evidence has also emerged through this investigation to suggest that even lawyers acting for the Libyan authorities have not acted as a channel through which requests for access to Saif Gaddafi could be submitted to the Libyan authorities.  The search for a new route was therefore an absolute imperative.

London to Tripoli via Addis

Mishana also contacted the African Commission on Human and Peoples’ Rights in Addis-Ababa – requesting that matters concerning Saif Gaddafi’s human rights be heard by the African Court of Human Rights. The Commission then asked the Libyan authorities to submit their response on the issue of upholding Saif Gaddafi’s rights.  No direct response was ever received from the Libyan authorities.

However, in their ‘Admissibility Application’ at the ICC, the Libyan authorities maintained that Saif Gaddafi has been able “…to receive visits from NGOs and family members”.  Louis Moreno Ocampo, the ICC’s Chief Prosecutor at the time, also told the UN Security Council that Saif has “…received visits from the ICRC, NGOs and family members.”

Mishana however disputes all that – insisting in her application to submit observations to the ICC’s Pre-Trial Chamber that to the best of her knowledge, “…no access to family has been granted and that the ICRC has not had any visits since its one visit back in November 2011”.

On the question of Saif Gaddafi’s right to counsel, the Libyan authorities insist that that has been upheld because, in their own words, “…he was given access to ICC lawyers” as well as “…the option of retaining a domestic lawyer.”

However, the biggest flaw in Libya’s entire “access to a lawyer” argument is that it implicitly concedes that contrary to prescriptions of international human rights instruments, Saif Gaddafi was in fact not accorded the “right to choose” his own lawyers – whether international or domestic.

Torture Allegations

There is also dispute over allegations that Saif Gaddafi may be suffering physical abuse in detention.  The Libyan authorities dismiss such allegations as “irresponsible and patently false”, and that “…no evidence has been tendered to support them.”  In their submissions however, Mishana’s lawyers insist that their client “…could provide evidence which the Libyan authorities claim does not exist.”

All these things could suggest one of two things – both of which the NTC is no doubt keen to distance itself from.  First that it is presiding over a dysfunctional government, and two that it has a “flexible attitude” toward the strict observance of human rights.

On the evidence, it is perhaps fair to say that the jury is still out on both counts.  END.  Login to www.ugandacorrespondent.com every Monday to read our top stories mid-week for our updates

Charles Okwir is a freelance Ugandan journalist and political analyst currently based in the UK.  He is the author of Portrait of a Despot and is on attachment with Think Africa Press. Follow him on twitter at @COkwir.