On 4 Jan. 2006, we again have come to face the harsh reality of the remand into custody of our elected leaders. This in fact was expected, and I’m sure the hearts of our imprisoned leaders were expecting that to happen. I read in the news that the mayor designate – Dr. Berhanu Nega – threw angry words to the judge after hearing the decision of the latter that turned down the request for bail.

In the situation before us, as I believe people would understand, the political decision has been made when following the decision of the mindless regime, police and security forces loyal to Meles apprehended the elected leaders, journalists and activists by killing and maiming Ethiopians as they pleased on their way to apprehending these leaders. With this decision standing, the police handed over the empty dossiers of “investigation” to the prosecutors and the latter had written the charges under the dictation of the rulers of EPRDF. Without any exaggeration, when we look at the details of the charges, they look like propaganda accusations over state media that we are hearing day in day out. It is devoid of any objectivity and legal test.

The Ethiopian Constitution establishes the right to bail as one of the broadest rights in criminal justice proceedings. So in principle, any alleged criminal, what ever the nature of his crime(s) may be, stands the broadest chance, so to speak, of being released on bail. And the judge can demand, up on the release, adequate guarantee (usually deposit of amount of money) to ensure reappearance on hearing dates. The prohibition of bail is required to be exceptional and such denials are made to depend on the judge’s appreciation of the facts before him, the nature of the accused, etc. This reading of the Constitution is no genius revelation to me but is very clear from the black letter Law which in Article 19(6) states: “— the Court may deny bail—-”. The Criminal Procedure Code of 1961 employs a more restrictive ground on bail as compared to the Constitution and is incompatible with the spirit of the Constitution and the International Covenant on Civil and Political Rights of 1966, to which Ethiopia is a party. The Covenant under Article 9(3) provides: “It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial—.” As could be easily noted here, the nature of the crime, serious or not, is not made a ground for denial of bail rights. I think the court should have looked at the body of Ethiopian laws to reach at a fairer conclusion. The Criminal Procedure Code stands at odds with both of the later enacted laws of the Country.

There is also this pattern in the Ethiopian courts that the judges are more inclined to deny bail than to allow it even in ordinary allegations such as pick- pocketing, by reading the exceptions as rules. In these trumped up charges, with all that is going in to them, one may not expect the judge to break the cycle of judicial custom.

The highest of my purposes in this rather short note is the following: unless the pressures on the dictatorial regime by Ethiopians and foreign friends of Ethiopians make the regime come back to the page on which all Ethiopians (except the regime’s officials and “eat and beat” cadres and security hit-men) and foreign donors and other humanitarian friends are, and make it unconditionally release the political prisoners, the fate of the political prisoners would be determined by the judges. But I have high hope that the pressure and struggle of Ethiopians would free them before too long.

But even in the legal front, the emptiness of the charges makes me believe that the prosecution would not bring any shred of evidence to prove any of the crimes ganged up. I only hope that the attorneys will have enough access to the whole process, including possibly fabricated evidences, and to their clients (so far this has been at unbelievably despicable low level) to use the legal grounds as a possible anchor of justice. For that our leaders in prison should refrain from things that the court may take it to be out of order. One should recall here the fate of the late Professor Asrat Woldeyes who got six months in prison for court contempt for saying simple words with the effect that it was all too clear that the government decided that he was guilty before hand and that they should not shuttle him back and forth and that the court should quickly hand down the judgment so that he would rest in peace in prison. He later died because he was denied adequate medical attention until it was too late to save him.

That said, I believe that we have every right to expect justice from the judges during the trials – remember, they were sworn in to uphold justice. A eminent American scholar and law professor once remarked that judicial action only achieves legitimacy and generate assent “by responding to, indeed by stirring, the deep and durable demand for justice in our society.” I want to believe that the Ethiopian judiciary also understands and appreciates the merit of this great postulate. As I argued earlier above, if not released otherwise, justice from the court for the political prisoners, and for the Ethiopian electors personified in them, is the last and the only resort. We have to seize it as an opportunity worth utilizing best. It is a juncture, a historic one in that, through which the Ethiopian people and their democratic struggle have to pass. Also as I said above, given the emptiness of the charges there is an absolutely reliable chance for our days in court to be met with deserved success.

I thus will close by saying that the defense lawyers should advise the political prisoners that judges are very protective of their turfs. I am sure they are much more able than I am and I mean to remind them in case they would not pay attention as they deal with a lot of hurdles.

In the end, truth will triumph.