Rule of Law Quick Scan Yemen The Rule of Law in Yemen: Prospects and Challenges Laila Al-Zwaini The Rule of Law in Yemen Prospects and Challenges Laila Al-Zwaini HiiL Rule of Law Quick Scan Series This document is part of HiiL’s Rule of Law Quick Scan Series. Each Quick Scan provides a brief overview of the status of rule of law in a country. September 2012 The main text of the Quick Scan was finalised in May 2012 HiiL Quick Scans | The Rule of Law in Yemen 2 Foreword This document is part of HiiL’s Rule of Law Quick Scan Series. Each Quick Scan provides a brief overview of the status of rule of law in a country. The Quick Scan Series is primarily meant for busy practitioners and academics who want to have a snapshot of the rule of law in a country, particularly with a view to understanding what the main trends and challenges regarding the rule of law are and where local and international stakeholders can possibly make a positive difference. Each Quick Scan is written by a reputable rule of law expert from academia and/ or practice, who is either from the concerned country or has spent many years living and working there. The Quick Scan Series aims to be neutral and balanced. To achieve this aim, the authors have consulted sources from a wide range of stakeholders, including the government, (inter)national NGOs, academia, and international organisations. They present differences of opinion or analysis, but do not pronounce judgement on which view is correct. In the context of their work on the Quick Scan they have visited the country and talked to different stakeholders, presented drafts and revised in view of the comments they received. All Quick Scans have the same format. Part A describes relevant historical, social, political and economic context. Part B analyses positive trends and challenges. Part C is an overview of relevant indicators on rule of law. To identify relevant trends and challenges in rule of law, the Quick Scans are guided by the conception of the rule of law developed by the World Justice Project Rule of Law Index. The Series is made possible by generous funding of the Dutch Ministry of Economic Affairs for the Innovative Rule of Law Initiative. The Hague, Ronald Janse HiiL September 2012 The main text of the Quick Scan was finalised in May 2012 HiiL Quick Scans | The Rule of Law in Yemen 3 The HiiL Rule of Law Quick Scan Series is published by HiiL. Content & realisation Quick Scan on the rule of law in Yemen: HiiL, The Hague, The Netherlands Editor in chief: Ronald Janse, HiiL, The Hague, The Netherlands Author: Laila Al-Zwaini Photography cover and on page 9, 56, 97: Malak Shaher, USAID/YMEP Published September 2012 Feedback, comments and suggestions: [email protected] © 2012 HiiL All reports, publications and other communication materials are subject to HiiL's Intellectual Property Policy Document, which can be found at www.hiil.org This report has been drafted with the greatest possible care and integrity, and is based on the author’s personal research, extended stays in Yemen, and participation to a number of international and bilateral rule of law donor programmes, which all took place between 1996 and 2006. However, given the difficulty of obtaining exact figures in general, and the outbreak of the Yemeni uprisings in 2011 at the outset of writing in particular, it was regrettably not possible to co-draft this report with Yemeni experts, as was envisaged, or to hold local consultative meetings. In light of the continually unfolding events in Yemen, the author therefore dares not claim full certitude of all data provided, and takes responsibility for any error that may have been inadvertently included, or fact overlooked. Website-references with no access-date mentioned, have been last accessed on 23 May 2012. About the author | Laila Al-Zwaini Laila Al-Zwaini (BA, MA in Arabic and Islamic Studies, Leiden; LL.B, LL.M, Leiden; Diploma in Law, SOAS, London), specialises in classical and modern shari`a, tribalism, legal pluralism, intellectual and social movements, religious authority, state formation, and human (women’s) rights in the Arab/Muslim world. She works as an independent scholar, trainer, and advisor, and also engages in public debates, media, art festivals, policy development, and Muslim women’s empowerment. Between 2007 and 2009, Al-Zwaini headed the Rule of Law Unit of the United Nations Assistance Mission in Afghanistan (UNAMA) in Kabul, where she interacted with leading Afghan and international partners, and ISAF. From 2001-2005 she co-directed the action-research project Rights at Home. An Approach to the Internalisation of Human Rights in Family Relations in Muslim Communities. This project was a collaboration between the International Institute for the Study of Islam in the Modern World (Leiden), and Muslim intellectuals, human rights trainers, and young community leaders in the Middle East, Africa, and South-East Asia. Between 1996 and 2006, Laila Al-Zwaini spent extensive periods in Yemen on rule of law-related field research and projects. She also advised various justice sector missions to Yemen, among others by the Netherlands, United Nations (OHCHR), and United Kingdom (DFID). Al-Zwaini co-authored A Bibliography of Islamic Law, 1980-1993 (1994), co-edited Legal Pluralism in the Arab World (1999), and wrote various academic articles, policy reports, and op-eds. She is also a member of WISE Global Muslim Women’s Shura Council. HiiL Quick Scans | The Rule of Law in Yemen 4 Table of Contents Part A: Overview of the Rule of Law in Yemen 9 General Background 10 1. Geography 10 2. History 10 3. Demography 11 4. Religion 11 5. Tribes and Tribalism 11 6. Economic Development 11 7. Government and Political System 12 8. Foreign Relations 13 9. Donor Assistance 13 Legal and Judicial System 15 Introduction 15 A. State Institutions 15 1. The Executive 15 1.1 Ministry of Justice 15 1.2 Ministry of Legal and Parliamentary Affairs 16 1.3 Ministry of Interior 17 1.3.1 Department of Tribal Affairs 17 1.4 Ministry of Human Rights 17 1.4.1 Justice and National Reconciliation Commission 18 1.4.2 Human Rights Authority 19 2. The Legislature 19 2.1 House of Representatives 19 2.1.1 Sharia Codification Committee 20 2.2 Shura Council 21 3. Administration of Justice 21 3.1 Courts 21 3.1.1 Courts of First Instances 22 3.1.2 Courts of Appeal 22 3.1.3 Supreme Court 22 3.1.4 Special Courts 23 3.1.4.1 Juvenile Courts 23 3.1.4.2 Commercial Courts 23 3.1.4.3 Public Funds (Property) Courts 24 3.1.4.4 Special Criminal Courts 24 3.1.4.5 Special Press and Publications Court 24 3.2 Judiciary 25 3.2.1 Profile of Judges 25 3.2.2 Tenure and Salaries 26 3.2.3 Rotation and Promotion 26 3.2.4 Removal 26 3.2.5 Court Staff 27 HiiL Quick Scans | The Rule of Law in Yemen 5 Table of Contents 3.3 Judicial Oversight and Inspection 27 3.3.1 Supreme Judicial Council 27 3.3.2 Judicial Inspection Board 28 3.3.3 Office of Court Administration 28 3.3.4 Inspections and Evaluations Office 28 3.4 Anti-Corruption Agencies (COCA and SNACC) and Public Funds Prosecution 28 3.4.1 COCA 28 3.4.2 SNACC 29 3.4.3 Public Funds Prosecution 30 4. Legal Education 30 4.1 Shari`a and Law Faculties 30 4.2 High Judicial Institute 31 5. Law Enforcement 31 5.1 Police 31 5.2 Public Prosecution (Niyaba) 32 5.3 Prisons 34 5.4 Internal Security Forces 34 5.4.1 Political Security Organisation 34 5.4.2 Central Security Office and Counter Terrorism Unit 34 5.4.3 National Security Bureau 35 5.4.4 Republican Guard 35 5.4.5 Coast Guard 35 B. Legislation 36 Introduction 36 1. Key National Laws 38 1.1 The Constitution 38 1.2 Law on Judicial Power 39 1.3 Criminal Code 39 1.4 Criminal Procedure Code 40 1.5 Civil Code 41 1.6 Civil Procedure Code 42 1.7 Personal Status Law 42 1.8 Juvenile Code 44 1.9 Arbitration Law 44 1.10 Local Governance Law 46 2. International Treaties Ratified 46 C. Legal Professionals 47 1. The Bar and Legal Aid 47 2. Notary Public 49 3. Women Legal Professionals 49 HiiL Quick Scans | The Rule of Law in Yemen 6 Table of Contents Non-State Justice: Tribal Customs and ‘Informal’ Shari`a 50 1. What is Non-State Justice? 50 2. Why Customary Law? 51 3. The Working of Tribal Mechanisms 51 4. Challenges of Tribal Justice 52 5. ‘Informal’ Shari`a 53 6. Linkages Between State and Non-State Justice 54 Part B: Positive Trends and Challenges Regarding the Rule of Law 56 Introduction 57 1. Structures of Power 59 1.1 Patronage 59 1.2 Tribes and State 59 1.3 Islam(ism) and State 60 1.4 Corruption 62 1.5 Transfer of Power 62 2. Justice Delivery 64 2.1 Judicial Independence 64 2.2 Legal Education and Judicial Training 65 2.3 Court Administration and Leadership 65 2.4 Housing, Furniture, and Technical Equipment 65 2.5 Court Archiving and Publication of Laws and Decisions 65 2.6 Security of Judges and Courts 66 2.7 Implementation of Court Decisions 66 2.8 Prison Conditions 67 2.9 Qat 67 2.10 Corruption 68 2.11 Access to Justice 68 2.12 Formal and Informal Justice 69 3.