Man 'physically incapable' of rape

Ahmed Abubaker, 19, wishes he can turn back the clock and reverse his decision to return to Malta from Gozo the day before his hospital appointment... except he had no alternative.

His decision, coupled with a streak of bad luck, landed him in prison charged with gang rape, a crime he claims he could not commit because a catheter is inserted into his penis, and he has recurring health problems.

"I never abused anybody. How could I have raped a woman when I have a plastic tube in my penis?" he told The Sunday Times over the phone from his prison cell.

The case has been referred to the the Commission for the Administration of Justice to establish whether the magistrate was in possession of all the relevant information before proceeding with the case.

Meanwhile, a doctor from the Committee for the Prevention of Torture examined the Somali and established he is physically incapable of raping anyone, The Sunday Times has learnt.

The man's plight was first brought to light by Fr Mark Montebello, who heads the NGO Mid-Dlam għad-Dawl that works with prisoners and their families. It has since been picked up by the British newspaper Independent Catholic News, and is making the rounds via e-mail.

Mr Abubaker, who landed in Malta in June 2004 and has since been granted humanitarian status, was living in Gozo and doing light work because of his condition, caused by an injury he sustained when he was shot in Somalia.

On March 19, 2007, Mr Abubaker was due for an 8 a.m. appointment at St Luke's Hospital. To ensure he would make it, he decided to catch the ferry to Malta the previous day.

"I had nowhere to stay the night so I went to Valletta in the hope of finding my fellow countrymen. I found Somalis who told me I could sleep in their compound at the Marsa Open Centre," he said in broken Maltese, as he tried to find the right words to tell his story in a foreign language. He recounts how that night he went to sleep around 8 p.m. in one of his 'friend's' beds, while they went out to drink.

"I had no alarm clock so I asked them to wake me up. The next thing I know is that police stormed the compound at 11 a.m. - I had overslept and my friends had been too drunk to wake me up. If I had not overslept I wouldn't be in prison today," he said.

Mr Abubaker, together with three other men from Somalia and Sudan, was charged with the gang rape of a 26-year-old Maltese woman.

On March 21, 2007, The Times reported that the woman was raped at about 3.30 a.m. on March 19. She had just left a bar, where she was having a drink in the company of a foreigner who lived at the open centre, when the incident occurred.

"I was peeing blood and had a catheter, but nobody wanted to listen. I have been in prison for 16 months and my situation is deteriorating. My life is spent in prison and in hospital. I'm tired and have had enough," he said.

Fr Montebello said Mr Abubaker has appeared in court several times and he has had no lawyer or translator, because the lawyer provided by legal aid rarely turned up.

"Moreover, the magistrate involved had no idea the man charged with rape had a catheter, until I raised the issue," Fr Montebello said.

This information has been corroborated by other lawyers, but in the meantime police have charged Mr Abubaker with new offences related to suspicious cheques.

The Sunday Times sent questions to the police, asking, among others, what charges have been brought against Mr Abubaker; how many times had the man has appeared in court; and why was his appointed lawyer hardly ever in court to represent him. No replies had been received at the time of going to print.

In the meantime, Mr Abubaker has protested his innocence and asked how he could have been involved with any cheques when they were found in the pillow case on the bed where he just spent one night.

Fr Montebello said: "No evidence on any of the charges has been presented in court that incriminates him. If this case is not dropped completely, then he should at least be given bail. It's outrageous how we can keep a man in prison for so long when he has done nothing.

"He is being denied his fundamental human rights, and nobody is being sensitive to his failing health," he added.

Mr Abubaker made a final plea: "If the courts have proof that I raped someone or falsified cheques, then sentence me, but there is no proof and they want to keep me in prison."