YEMEN GRAPPLES WITH POSSIBLE EXECUTION OF A MINOR

C O N F I D E N T I A L SECTION 01 OF 02 SANAA 001244

SIPDIS

E.O. 12958: DECL: 05/08/2015
TAGS: PHUM YM
SUBJECT: YEMEN GRAPPLES WITH POSSIBLE EXECUTION OF A MINOR

Classified By: Ambassador Thomas C. Krajeski for Reasons 1.4 (b) and (d
).


1. (U) Summary. On May 2, President Saleh suspended the
death sentence of murder defendant Amina Ali Abdallah
al-Tuhaif. The suspension was a direct result of
international and local pressure to revisit the case due to
questions on whether or not Al-Tuhaif committed murder when
she was a minor. End Summary.


2. (U) On May 2, Saleh temporarily commuted the death
sentence of Amina Ali Abdallah al-Tuhaif and requested a full
case review by the ROYG Minister of Justice, Dr. Adnan Omar
al-Jafri. Amina was convicted of the January 1999 murder of
her husband, Hezam Hassan Hezam Qabail. Recently, the case
garnered some local and international publicity as questions
arose surrounding Amina's age at the time of the crime and an
allegation that she was raped in prison.

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Facts and Case History
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3.(U) Misinformation, propagated by the press, rumor and a
poorly maintained 15-page handwritten court record, has
muddied the facts surrounding the case. According to the
court record provided by European Union (EU) Delegation to
the Republic of Yemen Senior Program Monitor, Mary Horves,
the case revolves around a suspected affair that Amina had
with her and her husband's cousin, Muhammad Ali Yahia Qabail.
It is alleged that one night in January 1998, for reasons
that are unclear, Amina let Muhammed into her home. There is
no confirmed account of what transpired in the home but the
next day Amina's husband, who was evidently strangled to
death, was found in a well. Amina and her cousin were
subsequently arrested. Both confessed to the crime.


4. (U) During Amina's trial the prosecution asserted that she
helped her cousin plan Hezam's murder and drag his body into
the well. The primary evidence against Amina was the
confession, which she says was given under torture. (Note: It
appears from the court record that this was the only evidence
presented. In Yemen almost 90% of convictions are based
solely on confessions. End Note). According to Hovers,
there are some questionable facts surrounding the case that
were never presented in trial. For example, both defendants
gave very different accounts of that evening's events.
Furthermore, there are some witnesses from Amina's village
who told authorities that Hezam was actually killed over a
land dispute.


5. (U) Procedurally, Amina's case was tried in the northern
governorate of Mahaweet in May 1999. (Note: Mahaweet lacks
any solid rule of law infrastructure. As such, it is
unlikely that she received any sort of sound due process even
by Yemeni standards. End Note). Her conviction was upheld by
the Sanaa Appellate Court in July, 2001 and the Supreme Court
in July, 2002. Per Yemeni law, Saleh ratified the sentence
shortly afterwards.


6. (U) In 2002, minutes before her execution, Amina's
sentence was held in abeyance when authorities physically
noticed that she was pregnant. Amina, through her attorney,
Shada Nasir, claims that the pregnancy was the result of
being raped in prison. (Note: Prosecutors refuted the claim
pointing out the Amina likely conceived when she escaped
shortly before her execution. End note). Until now Amina
has refused to identify her rapist. Authorities immediately
transferred Amina to the Sanaa Central Prison where she
delivered and has been caring for her son. Since her most
recent reprieve, no interlocutor, including Nasir, knows the
cases' legal status. There are also unsubstantiated reports
that Saleh has contacted the victim's family to settle the
case.

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How Old is Amina?
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7. (U) Controversy over the case revolves primarily around
Amina's attorneys' claims that she was 14 years old at the
time of the murder. This would preclude her from the death
penalty under Article 31 of the Yemeni Penal Code, which
forbids executing anyone for a crime that they committed when
they were under the age of 18. In September 2000 a ROYG
Ministry of Health (MOH) dentist examined Amina to determine
her age. The examination put Amina at 17-18 years old in
2000, between 15-16 years old at the time of the crime and
between 12-13 years old at the time of her marriage. Some
witnesses from Amina's village contend that Amina was in fact
11 years old at the time of her marriage, thus placing her at
around 14 years old at the time of the crime. Despite the
examination results the sentence was not commuted.


8. (SBU) The court determined that Amina was 18 years old in

1998. Sharaf ad-Din Mahbashi, Deputy Attorney General in
charge of death penalty case review, explained to poloff that
the MOH dentist's examination was flawed and he had no doubt
that Amina was in fact 18 years old at the time of the crime.
Mahbashi also alluded to the fact that the court "may have"
benchmarked Amina's first menstruation in 1995 to age 15 thus
placing her at 18 years of age at the time of the crime.
There are no records to substantiate Amina's age.

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International Attention
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9. (C) In late April, after Phoebe Kraus, a representative of
the Italian NGO project "Action for Freedom" that is helping
in Amina's defense, released information regarding the case
to local and international press, EU embassies and
international NGOs began to take action. On Wednesday April
27, the Dutch Ambassador, in his capacity as the EU Acting
Charge d'Affairs (CDA),demarched the MFA against the death
penalty in Amina's case. According to Horves, all EU heads
of mission ratified the demarche and are opposed to the
execution. Amnesty International (AI) has also taken up the
case. On May 7, Horves called poloff requesting a meeting
between Ambassador and the EU CDA, Raus Dreyer, to discuss
the EU stance on the case.


10. (C) Several local NGOs, such as HOOD (the National
Organization for Defending Rights and Freedoms),local and
international newspapers (from as far as New Zealand) and
some blogs have begun to cover the case. According to Kraus,
this publicity upset Minster of Human Rights Amat al-Alim
Soswa, who has been working behind the scenes to resolve the
issue. However, Nasser Arrabyee, Special Assistant Soswa,
confided to poloff that Soswa felt that pressure was
"helpful" in having the case reviewed.

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Comment:
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11. (C) Like any death penalty case in the U.S., the
allegations in this case are difficult to ascertain. There
are several questionable factors surrounding Amina's case.
The fact that Amina was tried in a governorate where the rule
of law is mostly absent is cause for concern. Amina's
allegation of torture is also likely true. Amina's
allegation of rape, however, is more questionable since it is
possible that she was not in custody when she conceived.
Soswa's behind the scenes mediation and international
attention are the reasons that Saleh so readily stayed the
execution and called for a review of the case. Post expects
that the ROYG will continue to attempt to resolve this case
while considering the consequences of negative publicity
linked to a possible re-trial and the traditional right of
the victim's family to exact revenge. Ambassador will meet
with Soswa and the EU to further inquire on the case and post
will continue to monitor developments. End Comment
Krajeski