Fining the President: Yemen’s Judges Fight Political Patronage

2014-02-24    |   

Fining the President: Yemen’s Judges Fight Political Patronage

On September 16, 2013, Yemen’s interim President Abd Rabbo Mansur Hadi issued Presidential Decree No. 54 of 2013, which ordered the appointment of members to the country’s 11-member Supreme National Anti-Corruption Commission (SNACC).

The decree provoked widespread controversy due to the extensive legal violations it presented. Less than a month after its issue, an expedited legal suit calling for the decree’s nullification was filed before the Administrative Court in Sanaa. According to the allegations presented in court, the presidential decree violated both the Constitution and Yemen’s anti-corruption laws. The plaintiffs in the case were Muhammad Saif Masoud al-Sharjabi, Abd al-Karim Hail Salaam, Abad Muhammad Qaid al-Ansi and Hamid Ali al-Lahbi.

The Administrative Court considered the case for over three months. On January 1, 2014, Judge Raghda Abd al-Rahman Abd al-Wahed issued a ruling stating that the presidential decree was void on the grounds that it violated the Anti-Corruption Act, No. 39 of 2006. The defendant, President Hadi, was also fined YER (Yemeni riyals) 200,000 [US$900] for “excessive litigation”. The court’s legal opinion indicated that the president had issued the decree without taking into account established legal procedures for forming the commission. In doing so, he had violated a ruling that the court had issued the previous May, and neglected procedures requiring nominations for the commission to be made through the Shura Council.[1]

Abd al-Wahed’s ruling attracted widespread and unprecedented attention throughout Yemen. The media addressed the issue extensively, convening debates and discussions that are ongoing. The ruling was distinctively deemed one of the most important judicial decisions in the modern history of Yemen’s judiciary, let alone  Yemen’s post-revolution transitional period.

The ruling lays out the judiciary’s unqualified power to check the presidency – which is without question, the highest state post in Yemen. Presidential decrees have usually been exempt from debate or criticism, then what does it mean to counter such power?

The ruling strikes a decisive blow against the system of patronage that governs Yemeni politics. This system has implicitly informed most of the political appointments made by President Hadi and the current national unity government. This is clearly demonstrated by the political affiliations of SNACC nominees listed in the contested decree.

It is worth mentioning that Abd al-Wahed’s ruling was not the only such case in 2013. Abd al-Karim Hail Salaam, one of the plaintiffs in the anti-corruption case, also brought a legal suit before the Administrative Court, challenging the practice of patronage in appointments made to positions in the Ministry of Higher Education. Another was the case brought by Judge Abd al-Wahhab Qatran before the Administrative Bureau of the High Court contesting a presidential decree promoting certain members of the judiciary branch. The promotions, the plaintiff claimed, constituted an attempt to control the judiciary by stacking the courts. Considered together, these cases reflect a growing trend by which the judiciary has emerged as an important means to confront corruption and patronage, and promote a reassessment of standards of merit for political appointments.

As stated in the petition they submitted to the court, the plaintiffs in the SNACC case based their challenge to the decree on the premise that they are “Yemeni citizens concerned first and foremost with rule of law, not status or interest…as the rule of law is not merely a guarantee of equal opportunity among individuals, but it is also the sole legitimate foundation of [political] authority”.[2] The text makes clear the plaintiffs’ belief that the presidential decree is injurious to the equal rights of all citizens while upholding a system of favoritism and patronage.

Their statement accuses the defendant (in this case, the president) of breaking his oath to uphold the law, as indicated by Article 110 of the Constitution. Article 110 states: “the President works to enact the will of the people, to uphold the Constitution and the laws, and to preserve national unity”.

More specifically, the plaintiffs argued that the president’s decision to appoint SNACC members is held to be in violation of anti-corruption legislation (Law No. 39 of 2006). Among the law’s most significant conditions is that the members of the commission should possess “the expertise, integrity and qualifications to represent civil society organizations, the private sector, and women on the commission”. Moreover, the law stipulates that their nominations should be presented before the Shura Council in agreement with these standards, with no room for deviation or exception.

The plaintiffs also alleged that through the decree, the president openly infringed upon the powers of the legislative branch by denying the Shura Council’s right to nominate the commission’s members. The plaintiffs’ statement also pointed out the lack of transparency in the nomination process, noting that “the contested decree did not state upon what basis the choices of the members it named were made”.[3]  It further alleged that the president’s selection of individuals “who did not submit their qualifications to the Shura Council for consideration, and who include Afrah Baduliyan and Hassan Ziwar, is evidence of his lack of compliance with any legal standard in his nomination of the members”. As a whole, the decree revealed a lack of adherence to standards of transparency that are essential and critical through such procedures. Given that the commission is connected to an institution whose very function is combating corruption, irregularities in its procedures deeply undermine its effectiveness on both symbolic and functional levels.

The plaintiffs demanded that the court invalidate the decree, characterizing the issue as a matter of urgency. By way of justification, they referred to “the principles of both gravity and of urgency. The allegations establish the gravity of the contested decree, which represents a violation of the Constitution and of the law, rendering its reversal probable. Its urgency derives from the fact that if implemented, the decree would prevent the application of established conditions and standards for nomination to such a body and thereby violates the plaintiffs’ constitutionally guaranteed right to equal opportunity,” which, they added, “was their natural right”.

After over three months of consideration, the court, represented by Abd al-Wahed, handed down a decision that affirmed and fulfilled the plaintiffs’ chief aims. The primary basis for the ruling rested on both the Constitution and the laws regulating the anti-corruption body. The court arrived at this decision despite arguments submitted by the Ministry of Legal Affairs in defense of the presidential decree.

The ministry has since disclosed that it intends to appeal the verdict, basing its argument on the claim that Yemen’s transitional government derives its legitimacy from the 2011 Gulf Cooperation Council Initiative and the implementation agreement that accompanied it. The initiative had facilitated former President Ali Abdallah Saleh’s departure from power and the formation of the current government.[4]

In that light, it would appear that the Ministry of Legal Affairs, which is now being run by former human rights activist Muhammad al-Makhlafi, is concerned less with upholding the law than it is with justifying its violation. As the GCC Initiative and the implementation agreement that resulted from it have taken hold, they have repeatedly been used to justify the violations of the president and the government. Given the worsening climate of patronage in all recently issued governmental decrees and appointments, it is becoming clear that these concepts spell out a decline in the rule of law and in the notion of sovereignty.

This article is an edited translation from Arabic.


[1] See: “The Administrative Court Annuls Presidential Decree Establishing Anti-Corruption Commission”, Yemen Press, dated January 13, 2013.

[2] Text of the petition filed in the expedited case cancelling Presidential Decree No. 54 of 2013 on September 16, 2013, which determined the composition of the 11-member Supreme National Anti-Corruption Commission, in violation of the Constitution and the anti-corruption law. A moratorium has been placed on its implementation pending the decision of the court.

[3] Ibid.
[4] See: “The Government intends to appeal the ruling of the Administrative Court invalidating the presidential decree for the formation of the Supreme National Anti-Corruption Commission on the legal and constitutional bases of the Gulf Initiative”, Yemenat News, dated January 14, 2014.

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