Al-Shabab Fears Somalia's Military Court, Judge Says
Al-Shabab militants relentlessly carry out attacks in Somalia, such as Wednesday's suicide car bombing in Mogadishu that killed at least 10 people. The group claimed responsibility for the assault on a security caravan.
When the group is not staging direct attacks, it uses intimidation to collect "zakat," or taxes, and fees from Somali businesses to finance its operations.
The violent group, which has been trying to impose an extreme version of Islam in Somalia since 2007, inspires terror. But its own members fear judgment in Somalia's military courtrooms, says a Somali military judge, who has prosecuted hundreds of such cases.
Hassan Ali Nur Shute, chairman of the Somali National Armed Forces military court, told VOA Somali that he interviewed an al-Shabab suspect who related that "members are told to take their lives when carrying out attacks" rather than stand trial in a military court.
"They know about the court," Shute said of al-Shabab militants. "They tell each other that they will face justice."
As chairman, Shute supervises 11 other military judges. Since 2017, they collectively have tried 659 alleged militants on charges of murder, terrorism, or both, Shute said. Of those, 455 – mostly al-Shabab militants, and a few affiliated with the Islamic State group – have been convicted.
Seventeen have been executed, including Hassan Aden Isak, who coordinated a double truck bombing in Mogadishu on Oct. 14, 2017, that killed 587 people. Isak was executed exactly a year later.
Ten other al-Shabab fighters remain on death row.
Somalia's military justice system requires a three-judge panel for any trial, whether for alleged militants or defendants from the armed forces. The overwhelming majority of cases are heard in Mogadishu, but military judges also travel to various Somali regions and towns. The hearings are public – sometimes even televised – with attorneys for the prosecution and defense. Decisions involving the death penalty must be unanimous, and Shute must approve each one.
Concerns about rights
But the system faces opposition, mainly from rights organizations and others that contend cases involving defendants with suspected terrorist ties should be transferred to civilian courts.
"The military court does not have legal jurisdiction over al-Shabab-related cases," said Laetitia Bader, Horn of Africa director for Human Rights Watch (HRW).
She said the system operates under an outdated 2011 presidential decree that declared a state of emergency in parts of Mogadishu vacated by al-Shabab.
"Although the state of emergency expired after three months, the military court has continued to try a range of defendants beyond those envisioned under the Military Code of Criminal Procedure," HRW wrote in a 2014 report challenging what it called the court's "absolute power."
Ali Halane, a Somali defense lawyer based in Mogadishu, also contends that military courts should not try defendants with alleged ties to al-Shabab or any other terrorist organization. He said the military justice system, set up in 1964, limits the court's jurisdiction to defendants who are members of the armed forces.
"These are civilians, citizens," Halane said of alleged al-Shabab defendants. "They have a right to be tried by courts trying civilians. And if they are fighting against the army, they should have access to a fair trial. They should find a neutral body."
Bader also worries that the military courts do not respect due process, one of the issues HRW raised in its 2014 report. She questioned the reliability of interrogations conducted while a suspect is in the custody of intelligence services. She fears detainees have limited access to legal counsel, noting that from 2011 to 2014 the court relied solely on confessions.
"Confessions are taken from individuals when they were held in detention facilities" or without "access to legal counsel, to their relatives, are particularly concerning," said Bader, who also raised concern about the speed of trials.
Shute defended the military court system's practices, saying al-Shabab is treated as military because it's an armed organization engaged in a deadly war aimed at toppling Somalia's government. He said the very reason the court was established was to deliver "swift justice."
Brigadier General Abdi Hassan Hussein, a former intelligence officer and former police commander of the Puntland region, also supports trying suspected al-Shabab defendants in the military court system. The official, also known as Abdi Yare, said some al-Shabab units are trained, organized, armed and uniformed like the military. They sometimes disguise themselves in military or police uniforms to undertake attacks.
Hussein said Somalia's Parliament should pass an anti-terrorism law to empower the military court.
Shute, now 35, holds a master's degree in law. He joined the military court system in 2011 and was appointed to the bench the following year.
Trying terrorism cases inevitably has exposed him to personal threats and loss.
On Jan. 2, 2018, his father Nur Shute visited the judge's office, advising him to leave government service and study abroad. An hour after his father left, Shute received a phone call that his dad had been assassinated. Al-Shabab claimed responsibility for the killing.
Shute also has lost colleagues to al-Shabab killings: Deputy Attorney General Mohamed Abdirahman Mursal in March 2019, criminal investigator Hassan Dhere in April 2018, and military court prosecutor Abdullahi Hussein Mohamed in October 2016. On the day of Mohamed's death, an al-Shabab spokesman had threatened retaliation for executions ordered by the court.
So, Shute considers himself a marked man. Always under guard, he travels in bullet-proof vehicles – which helped him survive a roadside explosion while returning from a military base in Lower Shabelle on Sept. 25, 2019. He lives separate from his family, fearing that they could be vulnerable if al-Shabab came knocking at the door. He said even his relatives and friends avoid his company, worried they could be impacted.
But the chairman said he remains committed to his work, bolstered by public reaction. And the court's Facebook page shows considerable public support for trying al-Shabab members.
He said the military courts' efforts help Somalis feel more secure.
"Ordinary people … have seen that al-Shabab can be prosecuted," Shute said. "They were not even mentioning al-Shabab's name out loud before. They used code words like 'Arsenal is playing today.'"
This report was developed from VOA Somali Service's "Investigative Dossier" program.