In Yemen, brutal repression cloaked in law

In the past two years, the Yemeni government has taken legislative and administrative steps to further restrict free expression. Coupled with longstanding tactics of violent repression, President’s Saleh administration is creating the worst press climate in two decades. A CPJ Special Report by Mohamed Abdel Dayem

Published September 29, 2010

SANA’A, Yemen
Billboard-sized banners of President Ali Abdullah Saleh hang across building façades and along main streets in this capital city. The posters depict a president in many poses—in military regalia, on horseback, in smartly tailored suits—but they always convey affirmative themes of national unity and progress. Poverty, corruption, social unrest, and extremism may beset this beautifully rugged country cradling the southern tip of the Arabian Peninsula, but Saleh’s government is determined to stay on message. And that means silencing critical news coverage.

Extrajudicial abductions, intimidation, threats, and crude censorship have marked the government’s record of repression for more than a decade, the Committee to Protect Journalists has found, but in the past two years Saleh’s administration has quietly moved to erect an elaborate legal structure intended to further restrict news coverage and provide a veneer of legitimacy for its brutal actions.

More in this report
• CPJ’s Recommendations
• Audio Report
• العربية
More on Yemen
• CPJ seeks editor’s release
• Full coverage

“The harassment will continue. These new legal measures are meant to justify repression and avoid embarrassment,” said Salah al-Saqldi, editor-in-chief of the news website Gulf Aden who was detained for nearly a year without trial on vague charges of “harming national unity” before being released in May.

The creation in 2009 of an exceptional court to prosecute so-called press offenses has been the centerpiece of the government’s legalistic efforts, but the campaign continues today with an array of legislative proposals that would set prohibitive financial barriers for broadcast and online news outlets, expand the definition of criminal defamation to include virtually any form of criticism of the president, and increase prison terms, in some cases up to 10 years.

Taken together, the government’s longstanding practice of violent repression and its new legalistic tactics are creating the worst climate for press freedom since the country’s unification in 1990, CPJ’s examination has found. “The specialized court and the government’s amendments, if they pass, give the authorities more ways than ever to restrict opposition journalists,” said Samia al-Aghbari, a contributor to numerous newspapers and news websites.

The government’s “red lines,” the unwritten but firmly established prohibitions against certain topics, are considerable: the war with Houthi rebels in the north, the repression of the largely peaceful Southern Movement, the failure to contain Al-Qaeda, and the widespread corruption within the country’s top leadership. Those who have crossed these lines have been subjected to incommunicado detention, confiscation of newspapers and news equipment, threats, and harassment in dozens of cases documented by CPJ over the past decade.

The new legislative push has been opaque. Proposed revisions to the country’s Press and Publications Law have not been clearly identified or publicized. The legislative proposals that have been more fully disclosed would result in overlapping and even contradictory regulations. Journalists, human rights defenders, and other citizens say the process has been marked by confusion and uncertainty.

The case of Mohamed al-Maqaleh, editor of the Yemeni Socialist Party news website Aleshteraki, illustrates the convergence of old and new tactics. Al-Maqaleh’s damning coverage of airstrikes that killed close to 100 civilians and injured hundreds more in the government’s ongoing war with Houthi rebels in the northwestern Saada region made him the target of a government-sponsored abduction in September 2009. After denying for five months that it was holding al-Maqaleh, the government finally disclosed in early 2010 that the journalist was indeed in state custody. Al-Maqaleh then faced criminal proceedings in two separate courts, including the special press court, before the cases were discontinued without resolution. He told CPJ that it was not clear whether the charges were actually dismissed or if they remain pending.

“Aleshteraki’s coverage made me a person to be silenced,” said al-Maqaleh, one of more than 30 journalists, media analysts, and lawyers interviewed by CPJ during its nine-day mission to the capital and the southern city of Aden.

Yemen has strategic and geopolitical importance that far outweighs its size and population. Located south of Saudi Arabia and separated from Somalia by the easily traversable Gulf of Aden, Yemen draws violent extremists from both countries and elsewhere who are seeking refuge. The country suffers from the highest poverty rate in the region, severe water shortages, a weak economy, dwindling oil reserves, and a central government that can exert little power beyond the country’s three main urban centers. These factors, among others, have contributed to a situation in which the government is confronting the possibility of failed statehood while trying to contain three distinct threats to its power: the civil war with Houthi rebels in the north; the Southern Movement, a confederation of groups seeking rights for politically marginalized southerners; and international terrorism, most recently highlighted by an Al-Qaeda branch’s unsuccessful effort to attack a U.S.-bound airliner in December 2009.

Coverage of these events—or more alarmingly the lack of coverage—has vast international repercussions. The ministers of justice and information did not respond to CPJ’s written requests for meetings to discuss policies that have severely restricted the flow of information. Neither did Justice Minister Ghazi al-Aghbari and Information Minsiter Hasan al-Lawzi respond to a series of written questions submitted by CPJ through the Yemeni Embassy in Washington.

An exceptional court for the press

“It is not permissible to establish exceptional courts under any circumstance,” Article 148 of the Yemeni Constitution states. Yet that is what the government did on May 11, 2009, when the country’s High Judicial Council announced the creation of the Specialized Press and Publications Court, an extraordinary tribunal to adjudicate media and publishing offenses.

The government has tried to skirt the constitutional prohibition by likening the press tribunal to courts dedicated to such things as traffic violations and civil business matters, said Mohammed Allawo, a former parliamentarian and lawyer who defends freedom of expression cases. He said there are three important distinctions between legitimate specialized courts and the press tribunal. First, specialized courts for traffic or commercial matters are organized by geography, meaning defendants appear in the jurisdiction where an alleged offense took place. Defendants in the press court appear at its only location, in the capital, Sana’a.

More important, the prosecutor general selectively picks cases to send to the press court, unlike legitimate specialized courts that handle all cases of a certain type. Because the prosecutor general is a political appointee of the minister of justice, the press court is effectively a tool of the executive branch. Third, while specialized courts enforce specific sections of the law—traffic courts address motor vehicle laws, for example—the press court has enforced not only the Press and Publications Law but has selectively applied the provisions on the penal code and other laws. Al-Maqaleh told CPJ that it was frequently unclear which law the press court judge was relying on to reach his determinations.

The press court’s first ruling, issued on October 31, 2009, reflected these politicized and arbitrary standards. Munir Mawari, a U.S.-based contributor to the independent weekly Al-Masdar, was found guilty in absentia on a defamation charge stemming from a 2008 commentary describing Saleh’s leadership style as a “weapon of mass destruction.” The court sentenced him to two years in prison and imposed a lifetime ban on practicing journalism in Yemen. Neither the Press and Publications Law nor the penal code provides for lifetime bans. The Press and Publications Law provides for no prison term in excess of one year, making it apparent that the press court drew the penalty from the penal code or other statutes.

In the same case, the court sentenced Samir Jubran, editor of Al-Masdar, to a one-year suspended term and a one-year ban on managing the newspaper. In interviews with CPJ, several journalists said the harsh sentences set a tone for the new press court and sent a message to the entire press corps. In all, the court has handled about 100 cases since its creation in 2009, according to the Yemeni Journalists’ Syndicate.

This press court was not the first to be established by the government over constitutional objections. In 1999, Saleh issued an executive order that created a Specialized Criminal Court to handle terrorism, piracy, hostage-taking, and other crimes said to involve national security. The extension of the court’s purview in 2004, again by presidential order, to include “crimes affecting state security and highly dangerous social and economic crimes” marked the beginning of a new stage where an extraordinary tribunal was being used to settle scores with real or perceived political adversaries, including journalists.

“There are no exceptional laws or courts for medicine, and there ought not be one for journalism,” said Allawo. “People must be charged with a crime under the general law and in an ordinary court or not at all.” Allawo himself was investigated by the press court’s special prosecutor in February after a newspaper published the proceedings of a seminar during which he criticized the press tribunal. The investigation was eventually transferred to a general prosecutor after his lawyers challenged the press court’s jurisdiction.

Legislative offensive on three fronts

The International Covenant on Civil and Political Rights guarantees the right “to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media.” Although Yemen is a party to the covenant, its constitution offers limited guarantees to freedom of expression. Article 41 states only that free expression is protected “within the limits of the law.”

The laws themselves are restrictive and may become increasingly so. In 2010, the Yemeni cabinet submitted to parliament amendments to the penal code and the Press and Publication Law that are alarming to journalists and advocates of freedom of expression. Additionally, a repressive bill designed to regulate television, radio, and online media is pending in parliament.

The penal code proposal would make it more difficult for opposition media, political parties, and political and social critics to speak out, CPJ’s review found. Most alarming is the proposed amendment to Article 197, which has been used to convict journalists in regular criminal courts, as well as in the Specialized Criminal Court and the Specialized Press and Publications Court.

As it currently stands, Article 197 provides punishments of up to two years in prison to any individual who “publicly insults the president in a manner that denigrates or prejudices his persona in society.” The existing article offers similar protections to foreign heads of state and to the institutions of the presidency, the cabinet, the army, the judiciary, and other organs of the state. If the proposed amendments pass, the vaguely worded prohibition would be expanded and the penalties magnified. The prohibition against publicly insulting the president would be changed to prosecute any individual who “depicts the personage of the president in any way that is unbefitting or invites sarcasm, mockery, slander or injury.” The term of incarceration would be increased to five years and the current maximum fine, a nominal 4,000 riyals (US$18), would be unspecified.

Proposed amendments to articles 136, 194 and 195 of the penal code would expand content prohibitions and increase prison terms. The ban on “transmitting” false news in Article 136 would be extended to include the vague offense of “preparing” such news. The prohibition against “creating fear among the people” and “harming the public good” would be broadened to include “national constants,” an apparent reference to the territorial integrity of Yemen. The prohibition in Article 194 against disseminating opinions that denigrate religious sects would be expanded to include the “provocation of regional, tribal, sectarian, or racial” partisanship. And a proposed amendment to Article 195 would double the current prison term of five years for the charge of denigrating Islam.

“They want to turn press offenses into major crimes by associating them with much harsher prison terms,” said Mohammed al-Mekhlafi, a lawyer who is former director and a current board member of the Yemen Observatory for Human Rights.

Separately, a new Audio-Visual and Electronic Media bill is being depicted by supporters as a liberalization measure that would promote private media ownership in a country where all television and radio stations are state-owned. (About half the population is illiterate, according to U.N. data, and newspapers enjoy only limited circulation. Television and radio are the primary sources of news.)

But CPJ’s review of the proposed audio-visual legislation shows it would impose such exorbitant registration fees that private broadcasters would be deterred. At the same time, the bill would impose licensing fees and extend state regulation to online outlets that now operate without such burdens. Article 33 states that online media— including news delivered via SMS, or short message service on mobile phones, a sector dominated by private outlets—would be subject to state control through a regulatory framework to be imposed by executive order. The bill also mirrors content restrictions and penalties already included in the Press and Publications Law and the penal code.

Article 5 prohibits the establishment or operation of television or radio broadcasts and news websites prior to receiving a license, in effect placing hundreds of existing online news outlets in violation of the law. Worse yet, CPJ’s review found, a license would be granted by a committee that would include officials from the state-owned broadcaster, ministry of information, and the security services.

Licensing fees would range from 9.6 million to 40.2 million riyals (US$40,000 to US$167,000), depending on the type of outlet. (Licenses must also be renewed every two, five, or 10 years depending on the nature of the outlet.) With per capita GDP of about US$1,356, according to U.N. data, few individuals or groups could raise such sums. Opposition political parties, which might be able to afford the fees, are specifically barred from applying under Article 30.

“The bill is little more than a long list of prohibitions, including outlandishly prohibitive monetary restrictions, with few corresponding rights or guarantees extended to journalists,” al-Mekhlafi told CPJ. The bill, which has drawn wide opposition from journalists and press freedom advocates, is pending in parliament.

Debate over another bill, which would amend the Press and Publications Law, has been marked by uncertainty. The government has not publicized its proposed revisions online or in state publications; at least a dozen prominent journalists told CPJ they had not seen a copy of the bill in which the proposed changes were clearly identified. The government did not respond to CPJ’s request for a copy of the proposed changes.

The most detailed explanation of the proposal has come from Abdel Bari Taher, former head of the Yemeni Journalists’ Syndicate, who undertook a line-by-line comparison of the proposed and existing texts. Taher wrote in a published analysis that the bill “retains all the drawbacks and defects of the old law, while preserving criminal articles and expanding them.” Taher said the measure would extend licensing practices currently in place for publications to individual correspondents, distributors, and points of sale. The bill would also extend existing content restrictions to “electronic” media, meaning online publications. While the proposal would eliminate prison terms for journalists under the press law, Article 116 implicitly allows for the imprisonment of journalists under the penal code or other laws.

Marwan Damaj, secretary-general of the Yemeni Journalists’ Syndicate, told CPJ that the provisions are “not only unfit to discuss or to improve upon, they also represent an attempt to use the law to close all gaps in the government’s repressive repertoire.” Bypassing direct negotiations with the government over the bill, the syndicate has instead drafted its own proposal in a bid to address deficiencies in the existing law.

The syndicate has proposed an overhaul of the current licensing procedure in which applicants wait years for licenses that may never come. Numerous journalists told CPJ that the administration uses the prolonged licensing process to prevent or obstruct critical news outlets. The syndicate’s proposal would make registration a simple administrative process in which the government would have to show cause for denial.

The syndicate’s proposal would also bar government seizures of publications except by court order. In practice, the Ministry of Information has routinely confiscated publications on its own authority, according to the syndicate and CPJ’s own research. The syndicate plan also addresses the multiplicity of laws now being used to prosecute journalists. Its proposal calls for journalists to be charged and tried exclusively in accordance with the Press and Publications Law.

Both the government’s proposal and the one submitted by the syndicate are pending in the upper and lower chambers of parliament, said Jamal Anam, the syndicate’s freedoms committee chairman. It remains unclear when they’ll be revived.

A newspaper under fire

No publication has been the target of greater government retaliation than Al-Ayyam, an independent daily based in the central Aden neighborhood known as Crater for its location in the basin of an extinct volcano. The bullet-scarred walls of Al-Ayyam’s office compound, sitting along an otherwise quiet residential street, are testament to its ordeal.

Al-Ayyam was founded by the influential Bashraheel family in 1958 and has been run by its members over the ensuing five decades. The only privately owned newspaper to be distributed in all 20 governorates of Yemen, Al-Ayyam was once the country’s highest-circulation publication, reaching more than 70,000 readers. Al-Ayyam’s popularity stemmed in part from its willingness to speak out on sensitive issues such as corruption and the southern unrest.

Using dramatically escalating tactics, the government has silenced the newspaper. On May 1, 2009, armed men in civilian clothing confiscated and burned 16,500 copies of the newspaper as they were being delivered to the capital. Two days later, government agents confiscated another 50,000 copies, the newspaper said. By May 4, government forces had surrounded the newspaper’s offices, blocking distribution of the paper, and allowing staff members to leave but not return. It marked the beginning of a crude publishing ban that remains in effect today. (Al-Ayyam was not the government’s sole target back in May 2009, only the most prominent. That same week government agents prevented seven other newspapers that covered the southern unrest from appearing on newsstands.)

The government siege of the compound, which includes not only Al-Ayyam’s offices but Bashraheel family homes, lasted another two weeks, ending only after a firefight between government forces and the paper’s guards left one passerby dead and two guards injured.

Police and security personnel surrounded Al-Ayyam’s compound again in January after journalists from a variety of outlets organized a sit-in outside the banned daily’s offices. Again, the confrontation ended in violence as government forces used machine guns and rocket-propelled grenades against the compound. Hisham Bashraheel, the paper’s editor-in-chief, and his two sons, sports editor Hani and executive manager Mohammad, were arrested and held for three to four months apiece. After his release, the 66-year-old Hisham faced a travel ban that prevented him from getting medical care outside Yemen for respiratory ailments, diabetes, ulcers, and a heart condition. The government lifted the ban only after months of sustained local and international pressure.

Al-Ayyam staffers face criminal charges in six separate cases filed in the country’s specialized tribunals, General Manager Bashraheel Bashraheel told CPJ. Twenty-four employees, including Hisham, Hani, and Mohammad Bashraheel, along with the manager of the paper’s printing facility and numerous security guards, are being tried in the Specialized Criminal Court on charges of “forming an armed gang” in relation to the January confrontation. That case is pending.

The other cases are being heard in the Press and Publications Court in Sana’a, where Editor-in-Chief Hisham Bashraheel is accused of “instigating separatism” and “inciting violence,” among other antistate counts. Prosecutors have allowed the cases to go dormant in recent months, although the charges have not been officially dismissed, the newspaper’s lawyers said.

Uncertainty about pending cases is common among journalists facing criminal charges. In May, amid much publicity, President Saleh issued what he called a “pardon” of all journalists. Although pardons typically apply only to those who have been convicted of crimes and exhausted their appeals, a number of journalists facing pending charges were released from custody in the ensuing days. But no official explanation of the president’s “pardon” was issued, and no formal court orders have followed.

At least three other journalists told CPJ that their cases have also gone dormant in recent months but have not been formally dismissed. Others said they had received contradictory information as to the status of their criminal charges. Official ambiguity is likely intentional: Several journalists with pending charges told CPJ they are keeping a low profile in their professional work so as not to have their cases revived.

Al-Ayyam, which once had the highest of profiles, is for now a memory. Three attempts by the paper to resume publishing in 2009 were met with wholesale confiscations by the government. The Bashraheels said they were assured by government officials that no future issue of Al-Ayyam would be allowed to circulate.

“The current situation for journalists in Yemen is bleak,” Bashraheel Bashraheel told CPJ. “The methods used against Al-Ayyam were extraordinary—we were shut down by military force—but they are in line with what is happening to other journalists in Yemen.”

And if parliament passes some or all of the pending legislation, it will make considerable inroads in creating legal cover for the government’s violent and repressive practices. “Laws that are designed to be gray and to centralize power in the hands of the minister of information,” Bashraheel said, “will no doubt kill what’s left of freedom of expression in this country.”

Mohamed Abdel Dayem is CPJ’s Middle East and North Africa program coordinator.

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CPJ’s Recommendations

To the government of Yemen

• Abolish the Specialized Press and Publications Court. All alleged offenses should be tried in ordinary courts of first instance in the jurisdiction in which they occurred.
• End the practice of trying journalists in the Specialized Criminal Court or any other extraordinary tribunal.
• End extrajudicial seizures and incommunicado detentions of journalists.
• Halt censorship of news media, including domestic and international online media.
• Publicly declare the government’s resolve to investigate attacks against journalists, including extrajudicial abductions. Apprehend and prosecute all those who perpetrate these acts.
• Abandon pending amendments to articles 136, 194, 195, and 197 of the penal code, which have been used to convict journalists of crimes. The amended articles significantly increase prison terms and fines associated with transmitting false news, denigrating religions, or criticizing the president, other organs of the state, and foreign heads of state.
• Abandon proposed amendments to the Press and Publications Law in their entirety. Develop new amendments in collaboration with the Yemeni Journalists’ Syndicate and other civil society representatives with the goal of enhancing journalistic freedom.
• Abandon the proposed Audio-Visual and Electronic Media Bill in its entirety and refrain from introducing new laws or executive orders aimed at restricting online expression.
• Revive a long-pending bill guaranteeing access to public information, or introduce an amendment to the press law to guarantee access to information.
• End the violent repression and legal harassment of Al-Ayyam. Allow the paper to resume publication and conclusively drop all pending criminal cases against its staffers.

To donor nations

• Relay to Yemeni officials though public and private channels that billions of dollars worth of military and economic assistance, along with security training and equipment, may not be used in any way to harass or silence critical media.
• Communicate to Yemeni officials that pending legislative measures designed to further restrict freedom of expression, if passed, would adversely affect policy toward Yemen.
• Legislatures, including the U.S. Congress, should consider Yemen’s deteriorating press freedom climate when formulating bilateral and multilateral policy.