Kuwaiti Appeals Court (Source: Aljarida)
KUWAIT
Our Concerns
- Legal framework which severely restricts the right to freedom of opinion and expression used to prosecute dissenting voices including human rights defenders, journalists and political opponents;
- Unabated discrimination and marginalisation of the Bidoon community.
In January, Kuwait put an end to its de facto moratorium on the death penalty by executing seven people – including a member of the royal family – on charges of murder. This was the first reported use of the death penalty in the country since 2013. Kuwait’s decision to resume its use of capital punishment closely followed the end of a six-year de facto moratorium on the death penalty in Bahrain, reflecting a broader increase in executions across the Gulf region.
Furthermore, in 2017, freedom of expression has been further restricted in the country, as the Kuwaiti authorities have continued to arrest and prosecute peaceful activists and any person who criticises the authorities on social media, under the pretext of protecting “national security” and “public order”. Although Kuwait retains a well-established parliamentary system, in 2017, the global public raised concern over a new series of politically-motivated trials against members of the opposition, which was seen as an attempt by the authorities to silence dissenting voices.
Over the past year, and with oil revenues remaining considerably low, the Kuwaiti government faced mounting criticism over cuts to state subsidies and the welfare system, as well as allegations of corruption. The occurrence of frequent disputes between the government and parliament over austerity measures caused numerous cabinet reshuffles and the resignation of the entire government on October 30, 2017.
While facing political turmoil internally, the Kuwaiti authorities actively engaged with regional partners to limit the risk of instability in the Gulf. Kuwait, which has long been a neutral conciliatory actor in the region, acted as the main mediator in the diplomatic standoff between Qatar and three other members of the Gulf Council Cooperation (GCC). Warning against an escalation to the conflict, the Kuwaiti Emir hosted several GCC meetings in the capital and called for talks to resolve the dispute, without success.
Lastly, over the past year, Kuwait has not made any improvement to resolve the longstanding issue of stateless people – also known as the “Bidoon” – while systematically attempting to silence any criticism on the matter. On August 1, 2017, prominent Bidoon activist Abdulhakim Al Fadhli was released from prison after serving a one-year sentence for his participation in peaceful protests. Al Fadhli was forced to sign a declaration to cease all participation in demonstrations as a condition for his release, and he was threatened with a suspended additional prison sentence and a deportation order.
Violations of the right to freedom of expression
I n 2017, the Kuwaiti authorities continued to restrict the right to freedom of opinion and expression by prosecuting peaceful activists, journalists and political opponents on the basis of flawed legislation. Legislation including the 2006 Press and Communications Law, the 2015 Cybercrime Law and the 1971 Law on State Security criminalise peaceful criticism such as “insult to the emir”.
Moreover, the Nationality Law – which contains provisions that allow for the revocation of citizenship for acts such as “threatening the higher interests of the State or its security” – is used by the Kuwaiti authorities to strip government critics of their citizenship. Lastly, the amendments made to the Electoral Law in 2016 – which bar all those convicted of defamation or blasphemy from running or voting in elections – illustrate yet another serious sanction against political opponents peacefully expressing their opinion, since these amendments prevent convicted opposition members of parliament from contesting in future election rounds.
“In 2017, the Kuwaiti authorities continued to restrict the right to freedom of opinion and expression by prosecuting peaceful activists, journalists and political opponents on the basis of flawed legislation.”
On April 24, 2017, upon Alkarama’s request, the UN Working Group on Arbitrary Detention (WGAD) adopted Opinion No. 20/2017 on the case of prominent opposition figure and ex-parliamentarian Musallam Al Barrak. The WGAD qualified his detention as “arbitrary” as it directly resulted from the exercise of his right to freedom of opinion and expression. The UN experts strongly criticised the use of National Security Law No. 31/1970, which amends provisions of the Penal Code, and which is used to severely restrict freedom of speech.
While the decision was adopted following Al Barrak’s release from prison on April 21, 2017 – after serving his two-year sentence – it remains significant as it serves to exemplify the Kuwaiti authorities’ crackdown on peaceful dissent, and recommends ways to improve national legislation to guarantee the promotion and protection of the rights to freedom of opinion and expression. For example, the UN experts harshly criticised article 25 of the Kuwaiti National Security Law, under which Musallam Al Barrak was sentenced in 2015 for having delivered a speech critical of Kuwait’s policies and the emir. This provision punishes with a maximum of five years in prison “anyone who publicly or in a public place […] challenges the rights or the authority of the emir, commits lèse majesty, or disrespects the emir.”
Hence, the WGAD expressed concern over “its nature as a lèse majesté law” and emphasised that it was in breach of article 19 of the International Covenant for Civil and Political Rights (ICCPR), which guarantees freedom of expression, and requested that article 25 be amended or repealed. It further recalled the Human Rights Committee’s comment that “all public figures, including […] heads of state and government, are legitimately subject to criticism and political opposition.”
Acts of retaliation against the political opposition
On November 27, 2017, a Kuwaiti appeal court sentenced 68 Kuwaiti opposition activists and parliamentarians to prison terms ranging from one to nine years. Those convicted – including eight former MPs and three current deputies – were prosecuted for “storming the National Assembly building in November 2011” during a demonstration against political corruption.
Back then, Kuwaiti media revealed prominent cases of corruption, including politicians and parliamentarians, which sparked peaceful demonstrations across the country calling on the authorities to launch investigations and to hold those responsible to account. On November 16, 2011, hundreds of protesters gathered in front of the National Assembly building after the parliament refused to launch an investigation into corruption allegations regarding then Prime Minister Sheikh Nasser Mohammed Al Ahmed Al Sabah. Pushed by the police, which came with batons to block the march and disperse the demonstrations, dozens of demonstrators joined by several oppositions MPs sought shelter inside the National Assembly building. The demonstrators left a few hours later, after the intervention of a mediator.
The Public Prosecution then launched an investigation against 70 individuals who entered the building, accusing them of, among others things, “illegal gathering”, “assaulting public officers” and “causing damage to public property”. On December 9, 2013, the accused were acquitted of all charges by the court of first instance, which found that the protesters’ acts were related to the expression of their political opinions, and that there was no evidence that any of the defendants “had the intention to undermine the public order, threaten national unity or had other criminal intents.”
On December 18, 2013, the Public Prosecution appealed this ruling, arguing that the court of first instance showed signs of bias and used a faulty reasoning in its interpretation of the law. On November 27, 2017, after a four-year long litigation, the court overturned the previous decision and sentenced 68 MPs and activists to prison terms, arguing that the accused “abused their right to freedom of opinion and expression to endanger public security and to cause chaos”. Several of those convicted claimed they were not granted the opportunity to defend themselves, while others were tried in absentia. Although a final ruling from the court of cassation is still pending, the sentences were implemented immediately.
Constitutional Court rules against DNA Law
In October 5, 2017, Kuwait’s Constitutional Court repealed Law No. 78/2015 on compulsory DNA collection, declaring that some of its provisions contravened the rights to privacy and personal liberty enshrined in the Constitution.
Passed in July 2015, the law on compulsory DNA collection was, according to the Kuwaiti authorities, introduced as part of a wider counter-terrorism legal framework as an immediate response to the deadly terrorist attack of June 26, 2015 against the Imam Sadiq mosque in Kuwait City, in which 27 people were killed and more than 200 wounded. The law not only made DNA collection compulsory, but also prescribed “one year in prison and ten thousand dinars fine for anyone who deliberately and without any excuse refrains from giving a sample of his DNA.” The Ministry of Interior was vested with the establishment and management of the DNA database.
In its contribution to the List of Issues and shadow report to the HR Committee, Alkarama had expressed its concern that this law would violate the right to privacy as enshrined in article 17 of the ICCPR. In July 2016, after reviewing Kuwait’s compliance with the ICCPR, the HR Committee, echoing Alkarama’s concern, published its concluding observations and recommended that the authorities limit DNA collection to individuals suspected of having committed serious crimes and only on the basis of a court decision. Moreover, it also raised the necessity of allowing individuals to challenge the state’s request and further asked that an oversight mechanism, independent from the Ministry of Interior, be established to monitor the collection and use of DNA samples.
The review by the UN Committee not only brought international attention to the issue, but also initiated an active discussion within Kuwaiti society. In October 2016, the Kuwaiti parliament announced that it would revise the law, and the Emir requested that the parliament reassess the scope of the law, limiting compulsory DNA collection to criminal suspects only. Following lobbying by local civil society and petitions filed by Kuwaiti citizens demanding the cancellation of the law, the Constitutional Court decided to repeal it on October 5, 2017.The Court ultimately declared that the law contravened the Kuwaiti Constitution, which protects the right to privacy in articles 30 and 31.