Objectivity and impartiality are critical to a fair rendition of the various elements of the two substitute amendments, and this author shall attempt to provide such an analysis. In the interest of full disclosure, however, the reader should know this author supports Chairman Smith’s substitute amendment, and briefly explains his reasons at the end in a postscript.

The comparative analysis focuses on legislative objectives, legislative findings, proposed action plan to assist Ethiopia and sanctions for noncompliance.

The differences in legislative findings on human rights in the two versions are significant and wide-ranging. Smith’s findings place the entire burden of human rights violations squarely on the shoulders of the government. He holds the regime exclusively responsible for the denial of due process to opposition detainees and the deteriorating economic situation in the country. He is critical of the government’s human rights record, and makes no effort to explain away the human rights abuses that have occurred in the country. (See Smith, sec. 3-5.)

On a more subtle level, Smith frames the issue of human rights violations in Ethiopia as part of a comprehensive interplay of policy and institutional failures, including repressive government actions and policies, inept judicial officers and ineffective judicial institutions, general official indifference to the rule of law and unbridled use of security forces to violently suppress all opposition. The Ethiopian judiciary is criticized for its failure to protect the rights of the accused sua sponte (i.e. the court on its own power), and for its complicity with the government in denying due process to defendants by conducting closed proceedings, limiting or denying attorney-client consultations and disregarding the presumption of innocence accorded to those accused of political crimes.

Payne’s amendment takes a radically different view of the current and historical human rights situation in Ethiopia, and seeks to excuse the current regime’s record by condemning the Derg-era human rights violations. (See Payne, sec. 3 (1)) Payne portrays the defeat of the “brutal dictatorship of Mengistu’s regime” by the EPDRF as the dawning of a new age of human rights and participatory democracy in Ethiopia. (See Payne, sec. (2). Payne’s findings broadly acknowledge and commend the EPDRF and the current regime for creating a “spirit of a new start” in “the building of a democratic Ethiopia.”

Payne’s findings imply that any human rights violations that have occurred since the takeover of the EPDRF government in 1991 were episodic and not systematic or significant. (See Payne, sec. 3 (9)). Although Payne acknowledges a “significant deterioration of human rights conditions” after the May 15, 2005 elections, and disapproves of the killing of nearly 80 demonstrators by government security forces and detention of opposition leaders and thousands of others, he curiously seems to hold demonstrators and opposition leaders responsible for their misfortunes. In other words, following Payne’s findings, had the Coalition for Unity and Democracy (CUD) abstained from civil disobedience protests and not challenged the election results, there would have been few human rights violations by the government in the post-election period! (See Payne, sec. 4 (1). This conclusion is somewhat analogous to a provocation defense sometimes raised in domestic abuse prosecutions where the husband pleads to the court that his wife is responsible for the injuries he inflicted upon her because she has a bad habit of talking back to him and challenging his commands.

Payne’s amendment makes no finding on the current status of detainees or the ongoing arrests and detentions of persons suspected of opposition to the government, the nature and gravity of the charges leveled against opposition leaders, the general atmosphere of fear, loathing and intimidation throughout the country, and the need to guarantee due process to the prisoners of conscience or international oversight of their trial.

Payne makes specific findings with respect to the “marginalization” of “the Oromos” and Ethiopian Somalis, implying that with the exception of these groups, others do not feel marginalized. (See Payne, sec. 3 (4) (5). Acknowledgement is made of the fact that members of the original EPDRF coalition “were forced to leave,” but the impression is left that only the OLF has been the object of military action by the government. The manifest implication of this finding is that other groups who were forced to leave, or who remained “outside the political process” have not suffered military action or persecution by the government. (See Payne, sec. 3 (4)).

It is puzzling that Payne makes no findings that “marginalization” is a direct outcome of the government’s policy of “ethnic federalism” — a gentler and kinder version of bantustanization or tribal homelands – which has been used to force Ethiopians to declare their ethnic identities and establish narrow ethnic allegiances. One could conclude from Payne’s findings that Ethiopia’s “ethnic federalism” is the most significant recent innovation in the general political theory of federalism. It is remarkable that a distinguished member of the American federal government could find any merit in the fictitious notion of “ethnic federalism.”

Payne’s overall findings suggest that he has a threshold of human rights abuses to trigger his outrage. Unfortunately, the killing of scores of demonstrators and incarceration of hundreds of opposition leaders and thousands of opponents is insufficient to provoke his moral outrage and demand immediate remedial action.

Deficiencies in Legal/Political Processes

Smith’s amendment finds significant flaws and deficiencies in the political and judicial processes in the country. As alluded above, some of Smith’s legislative findings accuse the Ethiopian courts for acting inconsistently with Ethiopian law and constitutional protections. The election board is criticized for what amounts to a dereliction of duty by failing or refusing to perform an impartial investigation of allegations of election irregularities, and for undermining opposition efforts to pursue their election complaints. The government is blamed for failing to release election results in a timely fashion, and expelling internationally respected nongovernmental organizations for political reasons.

Smith encourages Ethiopian opposition parties to follow through on court challenges of the May 15, 2005 elections, and urges reorganization of the National Election Board to be more representative of the spectrum of political parties and perspectives in the country, and to become more independent in its investigative functions and decision-making.

Payne’s findings on the performance of the EPDRF and the government it has led since 1991 are largely favorable. The EPDRF is credited with bringing “stability” and much improved human rights conditions in Ethiopia. (See Payne, sec. 3 (9)). It is given credit “for significantly changing the political structure” and “shifting political dominance among groups,” creating “ethnic federalism,” and a “multiparty system,” and is approvingly described as “the best organized political party in the country” with wide support in the countryside. It is also commended for conducting a “transparent, competitive and relatively fair and fair election” in May, 2005, and for establishing a commission to investigate the post-election killings of demonstrators. Casting a shadow on this illustrious achievement, according to Payne’s findings, was the threat of dissension within EPDRF and challenges to Zenawi’s power (which was resolved through “restructuring and ouster” of dissenting leaders). (See Payne, sec. 5 (a) (1), (4), (5), (6) (16))

Payne’s findings on opposition groups are far less favorable. They are characterized as “suffering from internal divisions” and “lacking clear policy objectives.” They are said to suffer from government and exile group interference. They are generally portrayed as a negative political force responsible for election boycotts, civil disobedience protests and causing election turmoil. (See Payne, sec. (a) (2) (5) (10) (12)). It is noteworthy that Payne is dismissive of Ethiopians in the Disapora, and by inference particularly those “exiles” in the United States. He finds little role for “exile” groups of Ethiopians in the political or economic life of their homeland.

Repression of Free Press Institutions

Smith’s findings are critical of the Ethiopian government’s treatment of press institutions and journalists. The findings lament the fact that the government’s “repressive media law,” which threatens capital punishment for its violation, has had a chilling effect on the free press and spawned rampant self-censorship. The government’s monopoly of the electronic media (radio and television and internet) and lack of progress towards licensing of private radio are singled out for special criticism. Smith’s amendment encourages the Ethiopian government to support freedom of the press by allowing print and broadcast media to operate without censorship, facilitate and expedite the licensing of independent radio and television, and provide unimpeded access to the Internet. Smith specifically urges the government to revise Press Proclamation No. 34 of 1992 with the aim of repealing criminal defamation provisions and other speech-related crimes.
Payne’s findings on the operation of a free press merely pays lip service to the severity of government control and censorship. He finds that while “foreign journalists continue to operate freely,” independent Ethiopian journalists continue to face harassment, prosecution, detention and exile. This parallel universe of a free foreign press operating alongside a decimated independent Ethiopian press does not seem to present any contradictions for Payne requiring immediate remedial. (See Payne, sec. 4 (6) (7)).

Economic Issues

Smith’s amendment finds economic conditions in Ethiopia have worsened “measurably” over recent years due to the government’s inability to formulate and implement effective policies and regulations and control corruption. The Ethiopian economy is deemed to be mostly “unfree”, largely due to a cumbersome bureaucracy that deters investment, a judicial system that does not offer sufficient protection for property rights, and a system of higher tariffs on imported products. The government’s refusal to change its policy of state ownership of all land and insistence on land leases is said to prevent financing opportunities for farmers, and contribute to the suboptimal performance of the agricultural sector. Lack of water is considered a major reason for the recurrent famine in the country, but Smith finds that food insecurity in Ethiopia is exacerbated by misguided government policies, including prohibitions on the private ownership of land, excessive taxation of farmers, and the high cost of fertilizer sold by companies affiliated with the government.

Payne’s findings on the economic situation in Ethiopia merely acknowledge that the country remains poor country despite strong performance of the agricultural sector. His findings simply lack the depth and breadth of understanding of the complex economic issues facing the country.

LEGISLATIVE ACTION PLAN TO ASSIST ETHIOPIA ACHIEVE DEMOCRACY AND GOOD GOVERNANCE, AND OVERCOME ITS HUMAN RIGHTS, ECONOMIC DEVELOPMENT AND POLITICAL PROBLEMS

To promote and preserve human rights in Ethiopia, Smith proposes various types of support and mechanisms: financial and technical assistance to independent human rights monitoring organizations working in Ethiopia, training to government officials and other leaders/activists on international human rights standards, readmission of the International Republican Institute (IRI), the National Democratic Institute (NDA) and the International Foundation for Electoral Systems (IFES) to continue their work in developing democratic institutions and practices, and use of the office of the United Nations Special Rapporteur on Torture to conduct an investigation of the conditions of prisoners of conscience in government custody.

Smith also provides for training assistance to strengthen local, regional, and national parliaments and governments, political parties and civil society groups in Ethiopia. Such assistance is expected to facilitate ongoing communication between political parties and the government and improve voter/party/candidate registration to ensure the credibility of the next election in Ethiopia. Assistance is also available to enhance the independence and competence of the Ethiopian judicial system, particularly to support institutionalization of procedural due process.

Smith’s amendment further provides additional technical assistance to the government in such areas as budgeting, taxation, debt management and banking. Assistance will be available to develop the Nile and Awash River resources and hydroelectric power and irrigations systems to prevent future famines. There is additional assistance in Smith’s bill to promote use of financing programs for joint United States and Ethiopian commercial ventures. The bill also aims to remove obstructions that have prevented Ethiopia from participating in such programs as the United States Millennium Challenge Account.

Payne seeks to promote human rights in Ethiopia by creating a Victims Support Network for Ethiopia, which will provide assistance to families of individuals killed in demonstrations and others injured by security personnel, as well as financial support for the legal defense of prisoners of conscience, human rights groups and others actively monitoring the status of detainees. Payne proposes a Judicial Watch Network to monitor court proceedings throughout Ethiopia, and insulate and strengthen the judiciary from undue government usurpations.

Payne aims to promote democracy and good governance by providing assistance to strengthen local, regional and national parliaments and government agencies in Ethiopia in the form of training provided by such organizations as the National Democratic Institute (NDI), the International Republican Institute (IRI) and the International Foundation for Electoral Systems (IFES). These organizations are expected to undertake various tasks, including training of local groups in election monitoring and voter registration, and establish programs focused on reconciliation efforts between the government and groups outside the political process.
Payne’s amendment provides economic development assistance by increasing funds to support the education sector, especially in rural areas of Ethiopia, and by providing technical and financial support for irrigation and improved management of the Nile River and other water resources.

Sanctions

Smith’s amendment requires suspension of all joint military activities between the Ethiopian and U.S. governments other than anti-terrorism and peace-keeping activities. Travel restrictions will be imposed on any Ethiopian official or member of the security forces involved in the shooting of demonstrators. Non-compliance with the legislation could also result in the denial of non-essential United States assistance (all aid except humanitarian assistance, emergency food programs, assistance to combat HIV/AIDS, fistula treatment, health service planning, child/motherhood programs, etc.).

Payne’s amendment provides for denial of visa to any government official or member of the security forces involved in the shooting of demonstrators, unless waived by the U.S. President.

Commentary

The Ethiopian Government is Unlikely to Agree to Smith’s Demand for the Immediate and Unconditional Release of Political Prisoners and Prisoners of Conscience and Free Operation of Human Rights Groups, or Accept Economic Development Measures Prescribed in the Bill.

In his Mark-up Statement, Smith asserted that “H.R. 4423 is not merely a punitive measure,” but seeks to use “technical assistance and other support” to change the human rights situation and contribute to Ethiopia’s economic and political development. The first order of business for Smith is the “immediate and unconditional release of all political prisoners and prisoner’s of conscience.” This is to be followed by reactivation of international and local human rights organizations to operate in the country, and deployment of the U.S. Special Rapporteur on Torture to undertake an investigation of the conditions of the prisoners of conscience. It is highly unlikely that the Ethiopian government will accept either of these proposals.

First, the government has painted itself into a corner by detaining opposition leaders on charges of genocide, treason, incitement and so on. These are patently bogus charges. Amnesty International has characterized the genocide charges “absurd.” If the government were to release the political prisoners now, it would be an admission that they were held arbitrarily and improperly in the first place. Unlawful detentions are a violation of international human rights standards, and the government is unlikely to admit such culpability.

Second, release of opposition leaders in the foreseeable future would be tantamount to handing the opposition a political and moral victory. The prisoners will emerge from detention triumphantly as heroes who valiantly faced persecution and sacrificed their liberties for the cause of democracy and human rights. They will gain considerable popularity and moral authority among the people, and inspire others to become even more defiant of the government. The government can not take such a risk.

Third, releasing the prisoners now would create the impression that the government is giving in or buckling to U.S. pressure. The government does not want to be seen as weak and irresolute. It wants to maintain the appearance of standing up to U.S. pressure, and even pretend that it does not want or need U.S. aid. The government can not appear to be an American lackey.

Fourth, the government will not agree to the free operation of domestic and international human rights groups with monitoring and civil society training missions. Such organizations will in effect function as watchdogs limiting the government’s scope of action in controlling opposition groups and parties, and in ensuring observance of Ethiopian law and constitutional mandates and compliance with international human rights conventions. The government can not withstand such scrutiny or accountability.

As to Smith’s proposals for economic freedom, particularly private ownership of land, they are unlikely to be accepted by the government. Presumably, the government’s objection to private ownership of land is based on fears of protracted litigation by pre-Derg land owners who may seek to reclaim their land or seek compensation, and/or because the government believes the peasants who currently have possessory use of the land will sell it and move to the city if they had full ownership rights, creating large numbers of displaced and landless peasants in the urban areas. Regardless of the economic merits of these contentions, the government is unlikely to allow private ownership of land because control of the land is its principal means of controlling the economic lifeline of the rural population, and its most effective strategy in disempowering this population and perpetuating its dependency on government handouts.

Changes required in the bill in other areas of government economic policy such as budgeting, taxation, debt management, bank supervision and corruption control are likely to be rejected as well because these issues require implementation of complex regulatory systems and structures. For instance, Smith’s amendment aims to provide policy assistance to address key economic obstacles arising from deficiencies in the system of taxation. This may involve overhaul of the Ethiopian tax system — which by some accounts is antiquated, irrational and afflicted by massive corruption — to achieve substantial efficiency and spur economic growth. It is unlikely that the government will be open to abolition of certain taxes and tariffs that are considered disincentives to foreign investments, or introduce substantial changes in the system of taxation, tariff and custom duties to bring about significant gains for the country’s economy.

Smith’s proposals for technical and economic assistance to enable Ethiopia to participate in the U. S. Millennium Challenge Account, develop the Nile and Awash River resources and undertake other hydroelectric power and irrigation projects to prevent future famines and joint commercial ventures all seem to make eminent good sense. It is unlikely that such massive national projects could be undertaken in the context of an “unfree” economy.

Why the Ethiopian Government Will Tacitly Endorse Payne’s Substitute Amendment

It appears Payne’s amendment has received the tacit approval, if not the active support, of the Ethiopian government. Some of the reasons for the government’s acceptance of Payne’s version seem obvious. Manifestly, Payne’s version “waters down” Smith’s robust provisions, which require significant policy changes and accountability on the part of the Ethiopian government. Under Payne’s version, the government is required to perform window dressing without undertaking any real changes in its policies or practices.

Payne’s amendment may be acceptable to the government because Payne does not really find any significant problems with Zenawi or the current regime, and in fact suggests that Zenawi and the EPDRF are the only viable option for the country today. Payne portrays the current regime as the only hope of political salvation and stability for the country. In the background of Payne’s findings on human rights violations and political repression in Ethiopia stands a shadowy specter of chaos and anarchy, which will consume Ethiopia should Zenawi and the current regime be removed from power. The government may find Payne’s apologia a valuable political and ideological tool.

Payne may not be alone in his messianic appraisal of Zenawi and his regime. British Prime Minister Blair handpicked Zenawi for his Commission for Africa because he believed Zenawi was one of the new breed of progressive leaders who will take Africa to new heights. It may be that Payne subscribes to the same view that in the meager field of real leaders and parties on the African continent, Zenawi’s government may be the only hope for Ethiopia. He is wrong.

Dislike and distrust of Ethiopian opposition groups may provide common ground for Payne and the Ethiopian government to oppose Smith’s bill. The fact that Payne’s amendment castigates and discredits opposition groups should be a welcome development for the government. Payne seems to have had unpleasant personal experiences with some Ethiopian groups in the United States over this bill. Judging from his comments at the last full subcommittee hearing, he seemed quite bitter and critical of the tactics used by these groups in advocating their support for Smith’s bill.

On the other hand, there is speculation that Payne’s own opposition to Smith’s bill may be based on ideological grounds. It is well known that the Congressional Black Caucus in the U.S. House of Representatives has played and continues to play a critical role in the formulation of U.S. policy in Africa. Payne, as a former chair of the Caucus, may find it difficult to accept the idea of republicans championing the cause of freedom and human rights in a black African country. One hopes such speculation is groundless, for the cause of human rights and justice knows of no racial or ideological boundaries.

There is also other speculation that Payne has grown sympathetic and fond of the current regime because of his long term involvement with them, and wants to protect the regime from critical external scrutiny. Payne’s almost romantic fascination with the EPDRF and its efforts in dislodging the Derg regime, and his depiction of the regime as Ethiopia’s salvation should bring considerable delight to Zenawi and company.

Payne has not been vocal in explaining his version of H.R. 4423, nor has he articulated in detail his reasons for opposing Smith’s bill. For those who have had an opportunity to observe him at the hearings or other forums, he appears uncomfortable with the subject matter and overly defensive about his role.

In contrast, Smith has been forthright, passionate and candid in his views and comments on the situation in Ethiopia. His questions at the hearings were incisive, skillful and unrelenting, his observations keen and to the point, and his knowledge of the current situation in Ethiopia prodigious.

Postscript

There are many supporters of Smith’s version of H.R. 4423, particularly in the United States. I support Smith’s version because his bill upholds the principles of human rights and civil liberties, and private property ownership rights in Ethiopia. It is my professional creed that every person is entitled to due process of law regardless of the nature of the accusations or the gravity of the alleged crime. This means the accused is presumed to be absolutely innocent until proven guilty, that s/he has the right to counsel paid for by the government if s/he can not afford one, that s/he is entitled to a speedy and public trial and that no person shall be convicted unless there is proof beyond a reasonable doubt. International human rights groups report that the prisoners of conscience in Zenawi’s jails are denied these and many other rights. I call upon Zenawi and his government to release all political prisoners and prisoners of conscience in Ethiopia immediately and unconditionally!!!

In the same vein, I believe that private property ownership is a natural right, and that no person shall be deprived of it without due process of law and just compensation. I reject wholly the socialistic principle that only the state can own land. The government must make changes to allow exclusive ownership of land in private hands.

I have defended these principles of civil liberties, human rights and property rights not only in American courtrooms but also in the court of public opinion. Smith’s bill deserves the support of all who believe in the preservation of civil liberties and human rights, and value the growth of democratic institutions, practices and culture in Ethiopia.

POST-POSTSCRIPT

This author remains perplexed by the singular fact that Representative Payne has not demanded and insisted upon the immediate and unconditional release of opposition leaders and other prisoners of conscience in Ethiopia. Payne knows that there is not a single government or international human rights organization that has recognized the legitimacy of the detention of opposition leaders in the aftermath of the May 15 elections.

Similarly, the stony silence of our brothers and sisters in the Congressional Black Caucus in the dialogue over H.R. 4423 and the detention of opposition leaders has, in the words of Martin Luther King, cast a “shadow of deep disappointment” upon a large segment of the Ethiopian community in the U.S. But we should be careful not to harbor resentment; rather we should reach out to the Caucus members and convert them to the cause of human rights and justice in Ethiopia with Dr. King’s message:

“Oppressed people cannot remain oppressed forever. The yearning for freedom eventually manifests itself, and that is what has happened to the American Negro. Something within has reminded him of his birthright of freedom, and something without has reminded him that it can be gained. The Negro has many pent-up resentments and latent frustrations, and he must release them. So let him march; let him make prayer pilgrimages to the city hall; let him go on freedom rides and try to understand why he must do so. If his repressed emotions are not released in nonviolent ways, they will seek expression through violence; this is not a threat but a fact of history.”

The yearning for freedom that African Americans experienced four decades ago is the same yearning that Ethiopians are experiencing today. Let’s share Dr. King’s message with our brothers and sisters on the Congressional Black Caucus in the spirit of solidarity for justice.

Whether H.R. 4423 will be enacted into law remains to be seen. It is abundantly clear, however, that regardless of the outcome of the bill, Ethiopians in the United States have gained a new consciousness and unflinching resolve to defend and sustain human rights and democracy in their homeland, and participate in its economic development. Those who continue to flagrantly abuse and trample upon the human rights of their citizens should heed the regretful observations of Japanese Admiral Isoroku Yamamoto after the ill-fated attack on Pearl Harbor: “I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve.”

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Al Mariam, Ph.D., J.D. (Esq.) is professor of political science and a defense attorney in California. Readers are invited to visit and share their comments at: https://almariamforthedefense.wordpress.com/
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[1]. Refers to the two versions of H.R. 4423 presented before the House Subcommittee on Africa, Global Human Rights and International Operations [hereinafter “Subcommittee”]: “Amendment in the Nature of a Substitute to HR 4423 Offered by Mr. Smith of New Jersey,” April 6, 2006; and “Amendment in the Nature of a Substitute to HR 4423 Offered by Mr. Payne of New Jersey,” April 6, 2006. Specific references to the two versions in the discussion will be captioned “Smith, sec.__”, and “Payne, sec__.”

[2]. “Legislative findings” in a bill often provide insight on the facts and circumstances supporting the proposed legislation and component provisions. Such findings also provide insight into the thought processes of lawmakers (technically referred to as ‘legislative intent’) and are used in judicial interpretation (technically referred to as “statutory construction”) of a bill once it is enacted into law.

[3]. See Mark-Up Statement for H.R. 4423, Rep. Christopher H. Smith, Chairman, Subcommittee on Africa, Global Human Rights and International Operations, April 6, 2006. “Mark-Up” refers to the preparation of a bill in final form in a congressional committee before it is reported out for a vote by the legislative body. Smith’s “Mark-Up Statement” was provided before H.R. 4423 was reported out of his Subcommittee to the House Committee on International Relations.