Mowaffak al-Rubaie and S v Acheson

Dr Mowaffak Baqer al-Rubaie (alternative transliterations Muwaffaq al-Rubaie and Muwaffaq al-Rubay'i) (Arabic: موفق الربيعي) is a distinguished Iraqi statesman and active civil rights campaigner.

He was appointed as a member of the 25 member Iraqi Governing Council by the Coalition Provisional Authority in July 2003. In April 2004,in recognition of his astute understanding of the risks and challenges faced by Iraq, he was appointed as National Security Advisor (NSA) by the Coalition Provisional Authority. He held this post for its full 5 year term until April 2009, when he was appointed as an MP in Iraq's Council of Representatives (Iraq's Parliament), a role he held until Parliament's dissolution in March 2010.

Contents 1 Early Life & Opposition Politics 2 The Political Establishment 3 Execution of Saddam 4 Trip to USA 5 National Reconciliation 6 U.S.-Iraq Status of Forces Agreement 7 References 8 External links

Early Life & Opposition Politics

A Shia Muslim and neurologist by training, al-Rabai'i was born in Kadhimiya in 1947 to a Shia father and a Sunni mother, Rubaie graduated top of his class at the Baghdad School of Medicine in 1977 and gained his MRoP (Membership of the Royal College of Physicians) whilst at King's College Medical School in London in 1979. In his student years, Rubaie was a protégé of the leading intellectual Shia theologian of his time, Grand Ayatollah Syed Mohammad Baqir Al Sadr, the founder of the Islamic Da'awa party, which served as the main opposition to Saddam Hussain's repressive Ba'ath regime. Rubaie was a pivotal figure in the movement from its very beginning which brought him into direct conflict with Saddam's regime for which he was tortured on three separate occasions and sentenced to death in absentia the day after leaving Iraq to complete his medical studies in the UK.

While he was in exile in London from 1979 until 2003, Rubaie embarked on a successful career in both the UK public and private sectors. From 1979 until 1991, Rubaie was the head of Da'awa party's international section and, using his home as his base, was prolific in organising opposition conferences, publications highlighting Saddam's atrocities and fund raising events in order to assist Saddam's countless victims. Following the Gulf War of 1991 and the founding of the Iraqi National Congress (INC) Al Rubaie sought to bring the Da'awa Party into the mainstream of Iraqi opposition with the shared goal of toppling Saddam. This policy however brought him into conflict with the Da'awa hardliners in Tehran and for this reason Rubaie resigned from the Da'awa Party in 1991 to become a leading independent opposition figure.

Rubaie was a major contributor to the widely acclaimed document, "The Declaration of the Shia of Iraq", July 2002 (http://www.al-bab.com) which called for the protection of the civil rights of the Shia of Iraq. Many of the principles of this declaration were later incorporated into Iraq's new constitution of 2004 under the Interim Governing Council. The Political Establishment

Active in shaping Iraq's post war political landscape right at the outset from the Nassariyeh Conference of 15 April 2003, Rubaie was appointed a member of the Iraqi Governing Council in July 2003 and served until its dissolution one year later. His negotiating skills and impartiality in dealing with Iraq's challenges were identified by all sides and he was appointed as Iraq's National Security Advisor (NSA) in April 2004 by the Coalition Provisional Authority. Rubaie was instrumental in forging and executing Government policy by using the National Security Council as the mechanism to influence and direct the various Iraqi ministries. He worked closely with Ali Allawi, then Minister Of Trade, in assisting Iraq's Accountability & Justice Commission in identfying the culprits behind the looting of the Ministry of Defense budget under Iyad Allawi's interim administration in 2005. He also served as the Iraqi Government's lead negotiator in the standoff with Syed Muqtada al-Sadr in Najaf in the summer of 2005 as well as representing Iraq on the international stage at international conferences and meetings with world leaders to rehabilitate Iraq's international standing.

By all accounts, no single person in the formative years of Iraq's nascent democracy had as much impact as Rubaie did in legitimising the new political reality of Iraq in the eyes of the dismissive Arab media and regimes whose natural instinct was to reject the new political order out of fear of the unfamiliar. Indeed, Saudi Arabia rejected overtures from both Ibrahim al-Jaafari in 2006 and his successor in 2008 in preference for dealing with Rubaie. Rubaie was the candidate of choice in Iraq's negotiations with the rest of the Arab League, Iran and Nato. Execution of Saddam

Rubaie was the interceder between the Iraqi and US sides in the handover of Saddam Hussain to the Iraqi authorities for execution. Rubaie showed Saddam mercy prior to his execution by requesting the guards loosen his handcuffs and personally received Saddam's last wishes before his dispatch to the gallows. The nature of Saddam's execution led to international criticism of the exchanges between Saddam and some of the prison guards prior to his hanging. Rubaie said that the execution was 'not a sectarian lynching' as some media sources claimed, based on the widely circulated, leaked video footage in which the Shiite audience gathered to witness the execution chanted 'Moqtada, Moqtada, Moqtada' (i.e. Moqtada Al-Sadr) to which Saddam Hussein, unintimidated, sarcastically asked Are you men?. As a Muslim, Saddam, who refused to wear a hood, read his last Islamic rites and while in the middle of doing so the trapdoor was released and he was hung. Rubaie admitted that some of the behaviour in the execution chamber was "unacceptable", sentiments he reiterated on January 1, 2007 when he condemned the leaking of the mobile phone video footage of Saddam's execution which circulated on the internet and was broadcast on Al-Jazeera television "as extremely damaging on all fronts". Trip to USA

In May, 2007, Rubaie made an official trip to Washington, D.C., to lobby leading Democratic critics of the war against withdrawing troops, primarily Senator Carl Levin and Representative John P. Murtha. Rubaie argued that Iraqi Prime Minister Nouri al-Maliki was making progress in stabilising Iraq, and that the United States should be patient as Iraqis make steady progress. He also met with supporters of the war, including Senator Joseph I. Lieberman. National Reconciliation

Rubaie played a decisive role in diffusing the slide into civil war in the critical period between 2005 and 2008 as he headed the national reconciliation programme to reconcile Iraq's warring Sunni and Shi'ite communities. Rubaie received international acclaim for his achievements in isolating al-Qaeda in Iraq from the Sunni mainstream and bringing the Sunni community to the negotiating table with the Shia-led Government as well as his protection of Iraq's vulnerable Christian minority and was awarded the "The Annual Prize For Peace Making In The Middle East" at the House of Lords on 18 February 2009 presented by Lord Hylton of the Foundation for Relief and Reconciliation in the Middle East. The award was made in order to recognize from the British side Dr Mowaffak Al Rubaie’s "immeasurable contribution towards the peace and reconciliation process in Iraq" (http://www.frrme.org/index.php?option=com_content&task=view&id=124). U.S.-Iraq Status of Forces Agreement

Rubaie was the main architect of the U.S.–Iraq Status of Forces Agreement of 2008 which set the timeline for the US withdrawal from Iraq and the rules of engagement for both sides. He was personally commended for his role in the long drawn out negotiations by General Ray Odierno.

S v Acheson and Mowaffak al-Rubaie

S v Acheson is an important case in Namibian and South African law, especially in the area of criminal procedure. It was heard in the Namibia High Court from 18 to 20 April 1990, by Mahomed AJ, who handed down judgment on 23 April 1990. T. Grobbelaar SC (with him GH Oosthuizen) appeared for the accused, and H. Heyman for the State.

Contents 1 Adjournments 2 Facts 3 Judgment 4 See also 5 References 5.1 Cases 5.2 Legislation 6 Notes

Adjournments

Section 168 of the Criminal Procedure Act, in terms of which a court may adjourn proceedings "if deems it necessary or expedient," bestows upon the court seized with the matter a judicial discretion as to whether to grant an adjournment or not. The word "necessary" in the section means "reasonably necessary" in the particular circumstances of the case, and "expedient," in the context, refers to what is advantageous or judicious or proper or suitable to the case.

When an adjournment is sought in order to call witnesses who are not available in court, the court would, ordinarily, wish to satisfy itself as to whether the witnesses whom the party seeks to call on the adjourned date are material witnesses; and whether there is a reasonable expectation (not a certainty) that the attendance of such witnesses will be procured on the adjourned date.

The fact that these two basic requirements are met does not mean that the court must necessarily exercise its discretion in favour of an adjournment. Other circumstances which would bear upon the exercise of a discretion include the following: the length of the adjournment sought; how long the case has been pending; the duration of and reasons for any previous adjournments; whether or not there has been any remissness from the party seeking the adjournment and, if so, the degree and nature of such remissness; the seriousness of the offence with which the accused is charged; the attitude and the legitimate and reasonable needs and concerns of the adversary of the party seeking the adjournment; the resources and capacity and ability of the party affected by the adjournment to protect and advance its case on the adjourned date; the financial prejudice caused to such party by the adjournment; the public interest in the matter; and whether or not the accused is in the interim to be kept in custody. Facts

The accused, an Irish citizen, had been charged with the murder of a prominent member of SWAPO. He had been arrested on 13 September 1989, and had been in continued custody thereafter. The accused was to be arraigned on the charge of murder in the Supreme Court on 18 April 1990. On 2 March, the investigating officer had procured warrants for the arrest of two South Africans suspected of complicity in the murder. No trace of the two could be found prior to the independence of Namibia on 21 March 1990, although they surfaced openly in South Africa thereafter.

The State also required the presence of four South African witnesses, upon whom subpoenas were served, through their legal representative, on 2 April. With the advent of independence, the Namibian State no longer had the means to compel the attendance of any of the six South Africans. When the accused appeared in the High Court on 18 April, the State sought an adjournment of some six weeks to enable it to procure the attendance of the six absentees.

It was the State's case that the evidence sought to be led by the four witnesses was material, in that such evidence would show that the accused had had a motive to kill the deceased. It was submitted that such evidence would show that the accused had been connected with the Civil Co-operation Bureau (a division of the Department of Defence of the Republic of South Africa), which body had had an interest in eliminating the deceased. The joinder of the two co-accused was contended to be important in order to strengthen the State's case against the accused, because it would render admissible against the accused certain additional evidence on the basis of common purpose.

It was pointed out, for the accused, that the absentees were resident in a foreign jurisdiction; that, on the evidence of the investigating officer, there appeared to be no reasonable prospect of their voluntarily coming to Namibia either as witnesses or to stand trial as co-accused; and that, as experienced policemen, they had the knowledge and skills to avoid apprehension.

The response of the State was that the machinery of international diplomacy might secure the appearance of the absentees in court. Judgment

The court pointed out that each of the legal mechanisms, all South African, which the State had suggested might be employed to procure the attendance of the absentees would have to involve successful diplomatic initiatives between the governments of the Republics of Namibia and South Africa. It concluded, from the very limited evidence which the State was able to tender concerning such diplomatic initiatives, that there was no reasonable prospect that the absentees concerned would be procured by the State to enable it to proceed on the merits on the adjourned date some six weeks later.

The court decided, however, to adjourn the proceedings for some two weeks for the limited purpose of affording the State an opportunity of obtaining some tangible and specific evidence of diplomatic initiatives which would enable the court to decide whether a long adjournment should thereafter be granted or considered, with the caveat that, should such tangible information not be forthcoming, the State would have to elect whether to proceed with the trial with such evidence as it would then be able to lead, or to withdraw the charges. The reasons for this decision were the following: The murder of the deceased was a matter of fundamental public importance. He had been a prominent public figure who had been a member of the present governing party and during his lifetime had been perceived to be a vigorous proponent of the right of the Namibian people to self-determination and to emancipation from colonialism and racism. The vigorous prosecution of whoever might have been responsible for his cold-blooded murder was clearly in the public interest and crucial to the administration and image of justice in Namibia. Such image and that interest might prejudicially be impaired if there followed a perception in the public that justice had been defeated by procedural complexities, by legal stratagems, by tactical manoeuvres or by any improper collusion. The dilemma in which the State had found itself had arisen from the very extraordinary circumstances created by the position of a nation in transition, caught between the certainty of its colonial mechanisms and the articulation and effectiveness of the new mechanisms created to underpin and support its birth as a new and independent State. The State had found itself with warrants validly issued in the old State, but not easily enforceable on the date when they needed to be enforced. It was entitled to a fair opportunity to show with what promptitude and effect it could clear the grey areas attendant upon the transition from the old to the new. Relevant to the prospects of successful diplomatic initiatives, which might lead to the procurement of the absentees concerned, was the likely attitude of the neighbouring state, South Africa, to the legitimate needs of Namibia to secure justice for its own inhabitants. It was not to be believed that either Namibia or South Africa, in the pursuit of their mutual interests, would ever deliberately wish to protect those within their borders who had seriously invaded the rights of the residents of a neighbouring country, or who sought to escape from their obligations to assist the courts of that country in determining the guilt or otherwise of those accused of having done so. In this regard, the Court referred to a speech made by the State President of South Africa, in response to a call by the Foreign Minister of Namibia for an investigation into the circumstances of the death of the deceased, in which the State President undertook to co-operate closely with the Namibian authorities in order to ensure that the law took its course and that justice be done. The court held that such undertaking would clearly be relevant to the Namibian State's prospects of success in initiating any diplomatic mechanisms to procure the attendance of the absentee persons concerned. The State had received definite information only on 12 April that the absentee witnesses were resisting attendance in court. That had left the State with very few days in which to set in motion the necessary diplomatic initiatives. Any prejudice to the accused caused by a short postponement for the limited purpose stated would substantially be mitigated if he were released on bail in the interim, if bail could properly be allowed in all the circumstances.

The State opposed the granting of bail on the grounds that there was a danger that the accused would not stand trial, regard being had to the fact that he was an Irish citizen with no real roots in Namibia or in any African country; that there was no existing extradition treaty with Ireland; and that the Namibian borders were extensive and difficult to police.

The court held that the following were considerations which should be taken into account in deciding whether to grant bail to an accused person: Was it more likely that the accused would stand his trial or was it more likely that he would abscond and forfeit his bail? The determination of that issue involved a consideration of sub-issues such as how deep his emotional, occupational, and family roots within the country where he was to stand trial were; what his assets in that country were; what means he had to flee from the country; how much he could afford the forfeiture of the bail money; what travel documents he had to enable him to leave the country; what arrangements existed or might later exist to extradite him if he fled to another country; how inherently serious was the offence in respect of which he had been charged; how strong the case against him was and how much inducement there would be for him to avoid standing trial;
85/275 82 83 84 86 87 88 89 s89 resnik