Fundamentals of law vs political crises in Ethiopia

By Fita Chala

January 4, 2006

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The purpose of this piece is to provide fundamental insights of key legal issues that are relevant currently, simplify them, and also show their application by the EPRDF government and its courts. Before we state that the EPRDF committed flagrant violation of domestic and international laws, there is a need to understand what they are and how they should be applied.

Let us start our discussion with Constitution.

Constitution is not God-given, like The Ten Commandments, it is man-made, therefore, it is subject to revision. But if a constitution was formed without the consent and participation of its subjects and was imposed by a political party, group, entity or foreign force, and if it does not serve the best interests of the people, it should not be followed. And any law that stems from such kind of constitution is the fruit of the poisonous tree.

But for the sake of the argument, let us assume that the current Ethiopian constitution, which was prepared by the EPRDF government and has many provisions identical to the Universal Declaration of Human Rights, satisfies some of the requirement of a genuine constitution. We can also use this Constitution to our advantage because according to Article 9 (4) and Article 13(2) it allow interpretation of the laws of the country in accordance with the principles of the Universal Declaration of Human Rights, International Covenants on Human Rights and International instruments adopted by Ethiopia.

Even though the Constitution does not guarantee separation of power it provides the following basic civil and human rights, which usually are called “Bill of Rights”: Every person has the right to life (ART 15); Every one has the right to protection against bodily harm (Art 16); No person may be subjected to arbitrary arrest, and no person may be detained without a charge or conviction against him (Art. 17) Everyone has the right to protection against cruel, inhuman or degrading treatment or punishment (Art 18); Persons arrested have the right to be brought before a court within 48 hours of their arrest. (Art. 19); The court shall ensure arrested person’s right to a speedy trial (Art. 19);Accused persons have the right to a public trial by an ordinary court of law; During proceedings accused persons have the right to be presumed innocent until proved guilty (Art. 20); Everyone has the right to hold opinions without interference (Art 29);. Everyone has the right to assemble and to demonstrate together with others peaceably and unarmed, and to petition (Art 30).

Let us see now the general definitions of the offenses with which opposition leaders and supporters are charged, and also the procedure that should be applied in their case. The definitions are not purely mine. They are taken from the Black’s Law Dictionary and other renowned authorities and they are simplified to be readable to non-lawyers.

Treason:

Treason is a serious crime. You may commit this offense if you attempt and apply overt acts to overthrow a government of the state to which you owe allegiance; or if you betray your state into the hands of a foreign power. This crime is usually committed through levying against such government or by giving aid or comfort to the enemy. Ato Meles charged some of the opposition leaders with “treason” falsely claiming that they provided support to Ethiopian Patriotic Front (a.k.a. “Kefagn”), a paramilitary group supported by Eritrean government. Is there any evidence that these opposition leaders aided the Eritrean government to weaken Ethiopia? However, there are evidences showing that the EPRDF hand- in- hand with Sahabia and the Eritrean government has diligently worked against the interest of the Ethiopian people. That is called aiding and abetting and also treason.

Another charge against opposition leaders and supporters is Crimes of violence. This offense is committed by the use, attempted use, or threatened use of physical force against the person or property of another. Crimes of violence include, assault, battery, killing, murder, rape, kidnapping, house breaking in the night time, etc. Did the oppositional party leaders, who are unarmed, mostly scholars, pacifists and renowned individuals, those hundreds of unarmed individuals who were killed by EPRDF security forces and those 40-50,000 unarmed young people who are languishing in detention centers and concentration camps committed those crimes mentioned above. Did they call their supporters or their members to commit violence? The answer is no. They called for peaceful disobedience. Then the question arises whether Ato Meles Zenawi, his cabinet and the security forces committed any of those crimes.

From the outset, the detained and non-detained leaders of opposition parties stated that their intent is to change the EPRDF government by peaceful and legal means: by participating in democratic election, by wooing the electorate not to vote for EPRDF and by campaigning in a manner allowed by the law. Domestic and international observers agree that until the election day the election process was fair in most districts. Nevertheless, credible international human rights observers also reported that sporadic intimidations, arrest, detention and even killing of opposition members, supporters and sympathizers had been committed by EPRDF security forces. This explains that the EPRDF, UEDF and CUD had entered the race with different objectives and political programs. The EPRDF, relying on its security forces and the Election Board it had set up more than a decade ago, declared that it is going to win the election; aware of the hatred the Ethiopian people felt towards the EPRDF, the CUD also declared that it would come out as a winner, as well; the UEDF, however, frequently talked about the election as another tool to move forward the anti-EPRDF struggle.

According to the indictment some of the 131 “suspects” committed insurrection, a form of rebellion, or rising of citizens in resistance to their government. Insurrection has two elements: it shall be committed against the lawful authority of a state and shall be manifested by acts of violence. Is EPRDF a lawful authority of the state of Ethiopia? Did any of the 131 citizens, some of them reside abroad, committed acts of violence. Again, opposition leaders called for non-violent struggle and peaceful disobedience. They had never called for the immediate overthrow of EPRDF by force. If so, why they had run for election, called for recount and had filed a petition in court. There is no independent evidence that establishes beyond a reasonable doubt that leaders of CUD, UEDF or other opposition party leaders who participated in the election intended, acted or conspired to illegally overthrow the government. Furthermore, there is no clear, convincing and independent evidence that establishes an incitement to overthrow the government. We have not seen, so far, when, where and how the crime the oppositional party leaders charged with were committed.

The incarcerated opposition leaders, members and supporters diligently and zealously represented the interest of the people. They stated that the election was rigged, the EPRDF had stolen the election, so they could not accept the EPRDF-established National Election Board results. Therefore, they could not take the allocated parliamentary or regional seats either. They also stated that the people should stand up for their rights in a non-violent way. Some of them even wrote open letters to Ato Zenawi stating their intention. For the sake of the country and also the EPRDF itself, they even suggested a National Unity Government, which was rejected by Ato Meles Zenawi. Then they asked the people to follow their guidelines about the type, manner and the timing of the non-violent struggle or we can call it civil disobedience until the EPRDF respects the vote of the Ethiopian people. Non-violent struggle or civil disobedience is universally accepted method used to pressure a government to respect your demands and rights. Article 30 of the Ethiopian Constitution allows civil disobedience. When opposition leaders called for a strike, disengagement with EPRDF, boycotting of EPRDF-affiliated businesses, they and their followers were exercising their constitutional rights. There is no evidence that these leaders called for riots or violence in major cities as a result of which hundreds were killed. A credible alternative theory has suggested that cadres of the EPRDF were the ones who committed the crime of violence in the cities. As stated earlier, there is no evidence showing that opposition leaders called for an immediate overthrow of the EPRDF by the use of violence. If there is any testimonial evidence to that effect we need to scrutinize it because it may be the result of torture or other inhuman treatment; if there appears to be a written or electronic evidence that may be doctored by the EPRDF, or obtained illegally.

Ato Meles also added Crimes Against Humanity and Genocide to the list.

Crimes Against Humanity are offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhuman acts committed against any civilian population, or persecution on political, racial, or religious ground.

Genocide is a serious international crime. If a killing or serious bodily injury is committed against members of an ethnic or religious group with an intent to destroy in whole or in part that group then that act is genocide. Genocide is also committed in non- violence way, namely, if the imposed condition of life on that group bring about its physical destruction. Genocide is usually committed either by government forces or armed groups. According to the indictment, some of the 131 “suspects” with an intent to “annihilate Tigreans and also EPRDF members and supporters, they conspired and ordered that Nur Hussien Edris, a Tigrean, be beaten; that the house of two Tigreans, namely, Col. Araya Gebreyohannes and Woizerit Abeba Eshete, be burned…” Even from the wording of the charge you can see that theses charges are fabricated. Does the EPRDF have solid evidence showing an order from Hailu Shawel, Berhanu Nega or any of the 131 citizens to kill or maim Tigreans and/ or destroy their properties? No. What the EPRDF might have is, again, fabricated testimony, photographs and video cassettes. Because, in calling for peaceful disobedience, these leaders specifically and repeatedly stated that any racially-motivated action or inaction is prohibited and that no violence should be used.

We come to our final question of law: Due process rights of the suspects. Due process is a right of a person to know timely why he is accused, when and where his hearing will take place. It also provides the accused to have a day in impartial court, to be represented by a competent attorney and also to present any evidence on his behalf. Due process also requires that the accused is innocent until he is found guilty and also that a guilty verdict must be proven beyond a reasonable doubt and that it must be supported by the evidence presented. In a single sentence you find Ato Meles Zenawi acting like a criminal investigator, a witness, a prosecutor, and also a judge. Then you may ask yourself: oh poor “suspects”, how would they get fair trial in a court of law ? You may not get the answer now. However, these facts may help you to guess the outcome. A special tribunal has been set up to try theese opposition leaders who had stayed for weeks almost in communicado. Article 78 of the Ethiopian Constitution prohibits establishment of special or ad hoc courts which take judicial powers away form the regular courts which do not follow legally prescribed procedures. Therefore, from the outset, the special tribunal is illegal.

By the way, that court set in a hall somewhere in Sidist Kilo nearby the Palace, where Ato Meles resides, instead of its usual place in Lideta. Who asked for change of venue? You may guess. I assume the change of venue was necessary to accommodate Ato Meles Zenawi, who may at this time, personally prosecute (or persecute) the case without traveling back and forth to Lideta. His “Assistant Prosecutor” is a lawyer from a government broadcasting agency, not a usual prosecutor working in the Ministry of Justice. He asked for additional days to present evidence, the court allowed that. However, the court denied the release of opposition leaders on bail. So, no fair trial, so far. That alone tells you a lot who is violating the laws of the country.

Laws are made and enforced to serve a society. Along with religious and other norms, they are tools used to maintain harmony in the society. As above mentioned, the main source of law in a country is the constitution which is usually called the supreme law of the land. In democratic countries, where there is a rule of law, democratically-elected lawmakers pass laws that defines clearly and precisely what conducts are considered to be criminal. The executive branch initiates prosecution through a prosecutor and judges or juries say the final word whether a crime was really committed and whether the charged person is guilty or innocent. This is true if a separation of power is provided in the Constitution. The Ethiopian Constitution does not provide that. The Constitution is formed to fit one party, I even dare to go further: to fit one person, Ato Meles Zenawi. This is witnessed during the handling of Sye Abreha’s case, the composition and operation of the Election Board and the Supreme Court and the passing of recent laws by the Parliament. However, if this article was about separation of power, clear examples and cases would have been provided. But what we have been talking about is other issues: whether there is a “rule of law” in Ethiopia and whether the recent initiation of criminal procedures against opposition leaders, is in accordance with Ethiopian law or universally accepted human rights which Ethiopia signed and ratified.

In democratic countries- which has similar constitutions as the Ethiopians have, i.e. which interpret the constitution under the guidelines of universally accepted human rights- there is a tool called prosecutorial discretion. Prosecutors in such legal system do not need a call, a letter or a warning from the prime minister, the president or other chief of the executive branch to initiate or terminate a criminal proceeding. They do have independence to act in accordance with the laws of the country. However, in dictatorial or authoritarian regimes this is not true. Sometimes the ruler, whether you call him a president or prime minister, jolts down the indictment and play the role of a prosecutor. I assume that this is what happened in our case. The six-page-indictment against the 131 citizens is laughable. A true example of frivolous lawsuit or malicious prosecution.

All of these may answer the question about whom to charge for committing crimes. Given the facts corroborated by silent and outspoken independent observers, Ato Meles and his proté gé s should rather be the criminal suspects. Ato Meles violated the constitution when he had declared state of emergency because there was no clear danger that threatened the Ethiopian nation. As a commander – in-chief- of the armed forces and also as a chief police of Addis Ababa during the state of emergency, he should also be responsible for crimes of violence and crimes against humanity. He should also be held responsible for crimes against humanity because he and his security forces continuously persecuted opposition party members, their supporters, sympathizers and also their family members. He should also be held accountable for his failure to respect the constitutional rights of the jailed opposition leaders and thousands of people arrested and held in inhuman conditions in concentration camps. (See Article 12 of the Ethiopian Constitution) He failed to bring them to court with a time allowed by the constitution, he failed to provide them, timely, with a charging document, he failed to house them in human condition, provide them with proper medical care and failed to respect their constitutional rights to be released on bail and defend their charges. He also failed to respect their right to consult freely with their attorneys and family members. Ato Meles repeatedly called the opposition leaders as criminals even before the court makes its rulings. He stated that the arrested detained individuals had committed treason and therefore they might face death penalty. Ato Meles said, “the violence has marred the image of Ethiopia…” I agree. Since Ato Meles’s action for the last 14 years were against the interest of the Ethiopian people, he himself should be charged with treason, and not Hialu Shawel, Professon Mesfin, Drs. Yakob, Degefe Berhanu or other jailed opposition members. I dare say this because these leaders, those opposition party members or supporters who were either killed, beaten or jailed were charged because they had simply exercised their rights to take parts in the election and other political process freely, as stated in Art 38 of the Ethiopian Constitution. That is not a crime.

WHEREFORE, for all the reason stated, and as per Article 78 of the Constitution, if the tribunal, which was set up to handle the foregoing cases, want to be named as Ethiopian Court, it should free all political prisoners. Further, the current Ethiopian parliament should be dissolved because it is a result of a Poisonous Tree, it failed to follow the Constitution and its own rules, failed to carry its activities according to the principles accepted by other democratic parliaments, failed to conduct its investigations when it witnessed security forces committed human rights violations and also because it failed to request timely a joint session of the House of the Federation and of the House of Peoples’ Representatives to take appropriate measures when authorities are unable to arrest violations of human rights.
THENAFTER new election should be written and independent election board should be set up whose task should be to guarantee a free and fair election. Until then a transitional but unity government should be formed.

Fita Chala can be reached at [email protected]