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In my testimony, I drew some parallels with the
South African Treason Trials of half a Century ago but expressed my fear that
the Ethiopian Judges may outdo their South African Counterparts by convicting
rather than acquitting the accused. The conviction, in a way, was not
unexpected for the judges have already ordered the accused to defend the cases
against them where there was actually none to defend.
What is surprising is the summary fashion with
which the Judges delivered the conviction half way through the trials blatantly
holding that the accused have refused to defend themselves despite their
insistence that they be given access to the documents, materials and the
facilities necessary for their defense.2
In the course of several adjournments leading to their conviction, the judges
have refused3:
1) to allow the defendants to have access to
the trial transcripts, including the testimony of the witnesses.
2) to order the return of the items that have
been confiscated from the defendants by prison officials. These items included
the notes that they have been taking during the proceedings, diaries and other
documents and evidence.
3) to grant the defendants’ request for access
to the data and documents that have been confiscated from their offices and
premises.
4) to examine their complaints that some of the
defendants couldn’t appear because of the grave injuries they sustained as a
result of sever abuses and inhumane treatment in prison.
On the day of the
conviction, the accused persistently demanded to be given the opportunity but
were persistently refused by the judges who chose to listen, instead, from their
jailers as to whether the defendants had all they needed to defend themselves.
Having received, as can be expected, a positive response from the prison guards,
the judges retired to their chambers and came back with their guilty verdict.
In doing so, the judges
have registered their names and the trials in the record of the worst partisan
and unfair trials in history that includes, among others, Stalin’s Trials of the
1930’s (aka, Moscow Trials).
Testimony before the Joint Meeting of the Committee on Development and Sub
Committee on Human Rights of the European Parliament
5 June 2007
Human Rights and
Democratisation in Ethiopia, Two years after the May 15 Elections
Dadimos Haile, (LL.B, LL.M,
S.J.D), Scholar in Residence, Institute for Development Policy and Management,
University of Antwerp
Honourable Chairs, Mr. Borrell and Madame Flautre, Honourable Members of the
European Parliament, thank you very much for giving me the opportunity to speak
at this important hearing. It has been a little less then two years since I
first attended a meeting of the Development Committee and listened to the
passionate pleas of Dr. Brehanu Nega, the mayor-elect of Addis Ababa, the
Honourable Mrs. Gomes and other members of the European Election Observation
Mission in Ethiopia. Dr. Brehanu is in jail since, but the European Parliament
has remained one of the few places where he and his fellow prisoners of
conscience and other victims of post-electoral repression in Ethiopia are not
forgotten. I would like to express my heartfelt gratitude to Mrs. Gomes, Mr.
Wijkman, Mrs. Auken, Madame Flautre, Mrs. Morgantini, among many other MEPs and
their able professional staff for that.
I must also add that it is a privilege for me to be on the same panel as the
courageous individuals who are here today. The Honourable MP, Dr. Mulualem
Tarekegn who has the courage and integrity to refuse to be part of an
institution that does not allow her to serve the people who elected her; Judge
Woldemichael Meshesha, Vice-president of the Commission of Inquiry that
investigated the tragic aftermath of the May 2005 elections. Judge Woldemichael,
Judge Frehiwot Samuel, the Commission’s president, and the majority of the
Commissioners have demonstrated the highest form of civic courage by refusing to
bend the law and the truth per the dictates of those in power. I would also like
to take this opportunity to express my respect to the great journalist-friend of
Ethiopia Anthony Mitchell, who died in a recent plane crash in Cameroon and my
sympathies to his family. Anthony was the first to trace Judge Woldemichael –
after the latter fled the country with the ‘dangerous truth’ – and break the
story to the larger world. Finally, I regret that Ms. Alemzuria Teshome is
unable to tell you her tragic personal story today because she was denied visa.
She is a remarkably lady of courage, who defied those who killed her mom and
then tried to force her to mourn in silence.
I had intended to comment on the ongoing prosecution of pro-democracy leaders
and members, ant-poverty activists and journalists from a human rights
perspective. That is too easy to do. I’m a lawyer by training, have served on
the bench in Ethiopia and can enumerate the catalogue of violations of the due
process and fair trial guarantees that adorn the Ethiopian Constitution and are
provided for in the international and regional instruments to which Ethiopia is
a party. However, talking about fair and unfair trials in the present case would
be grossly misleading and would dignify what is, perhaps, the most elaborate
travesty of justice of the 21st century. So, I thought I would be
able to give you a better picture of what is going on in Ethiopia if I draw some
parallels with a well known historical example.
Parallels with the South African Treason Trials
About half a century ago, the Apartheid government of South Africa rounded up
156 people including almost the entire leadership of ANC – its President, Chief
Albert Luthuli, Nelson Mandela and Walter Sisulu and other opposition groups,
trade unionists, prominent lawyers. The detainees also included four publishers
of news papers and periodicals and two lawyers who had consulted with the
prisoners. The principal charge against all of them was a conspiracy to
overthrow the state and establish communism.
While that trial was ongoing, the South African police brutally suppressed a
mass protest killing sixty-nine people and wounding close to two hundred. The
event is remembered as the Sharpeville massacre.
One would think that times have changed since and that the “international
community” will not tolerate regimes that perpetrate such abuses against their
citizens. Alas! The South African treason trial and the Sharpeville massacre
offer interesting parallels but pale in comparison to what happened and is
happening in Ethiopia at the beginning of the 21st century both in
the magnitude of the repression and the extent to which the legal system is
abused. What’s more, there seems to be little evolution in the policies of the
world’s powerful democracies except that the vocabulary of appeasement has
changed from “constructive engagement” to “dialogue” with the oppressor.
The Ethiopian government has arbitrarily detained not just 200 – not even
1000 civilians – but over twenty thousand suspected supporters and sympathizers
of the opposition, members of the civil society and journalists. The security
forces have also killed almost three times and wounded four times as many people
as those killed and wounded at Sharpeville. Both the Sharpeville massacre in
South Africa and the June and November killings in Ethiopia were followed by
more rather than less repression. Yet, in South Africa, the authorities had at
least the reticence not to charge the opposition for the death of peaceful
demonstrators. In fact they had set up a Committee to examine victims’
complaints and had, at least in principle, agreed to compensate them, albeit,
without accepting responsibility.
By contrast, the Ethiopian authorities – unrestrained by law or common
decency – had charged the opposition, among others, for the death and
destruction caused by the security crackdown in June and November 2005. They did
not even bother to await the findings of the Commission of Inquiry that they had
established to investigate into the relevant events.
As in the South African Treason Trials, the accused in Ethiopia include
nearly all of the leaders of the main opposition party, prominent civil society
leaders, the country’s most known human rights defender and advocate of
non-violence, journalists and publishers of newspapers and other periodicals.
Further, the Ethiopian authorities have also detained one of the lawyers who
were in contact with the detainees and charged with some off the same serious
offence after he had met a visiting dignitary, Commissioner Louis Michel. He was
acquitted of the most serious charge and released on bail after almost a year in
detention but still faces a potential conviction for a lesser offence.
Perhaps the most interesting parallel, however, is to be found in the nature
of the claims that served as the basis of the principal charges in both the
South African Treason trials and the ongoing criminal proceedings in Ethiopia.
The Prosecution’s case in the South African Treason Trials mainly rested on
what is known as the Freedom Charter adopted at the Congress of the People by
the ANC and three other organizations. The Charter state, in part, ‘We, the
people of South Africa, declare for all our country and the world to know: That
South Africa belongs to all who live in it, black and white, and that no
government can justly claim authority unless it is based on the will of all the
people.’ The prosecution attempted to show that the Freedom Charter was a
Communist tract and that the only way it could be achieved was by overthrowing
the present government.
The crucial element that served as a pretext for the
current criminal proceedings in Ethiopia is the refusal of the leaders of the
Coalition for Unity and Democracy Party (CUDP) to meet the deadline set by the
ruling party for joining parliament unless their basic eight-point demands were
satisfied. Those demands, for your information, consisted of an investigation
into the killings of dozens of civilians in June 2005, the relaxation of the
restrictive parliamentary rules adopted by the outgoing parliament just after
the election, ensuring the neutrality of the army, law enforcement agencies, the
public media, the judiciary and the likes. The prosecution alleged that those
conditions are so radical, just as the Freedom Charter was considered to be by
the apartheid Prosecutor, that their implementation presupposes the
dismantlement of the constitutional order. Therefore, the subsequent call for
civil disobedience to pressure the ruling party into accepting those demands
amounted to an incitement to overthrow the constitution and the constitutional
order.
One just needs to look at the relevant texts from the
public call for civil disobedience that was introduced to prove the principal
charge of criminal conspiracy and attempt to overthrow the constitution and the
constitutional order (which is a capital offence) in order to understand
ludicrousness of the whole affair. It reads, “The purpose of the struggle
shall not be state power. The purpose of this struggle is to build a lasting
democratic political order. Its short term objective is to persuade the EPRDF to
accept the eight pre-conditions put forth by CUDP” The statement continues ‘The
spirit of the struggle is to show that public office should only be assumed with
the consent of the people and a government who rejects this and seeks to rule by
force will not obtain the co-operation of the people, and if it does not obtain
such cooperation it cannot govern the people.” (pages 8 and 9, Exhibit 29)
For the Apartheid Prosecutor, a communist subversion could
be inferred from the mere use of the word ‘Comrades’. For his Ethiopian
counterpart, the fact that peaceful protestors were making the victory sign (the
campaign symbol of CUDP) and references to the protest movements in Ukraine and
Georgia – which the rest of the world considers as legitimate – clearly showed
the existence of a conspiracy between the opposition leaders and the protestors
and an attempt to overthrow the government through violence. All of the charges
in the remaining counts were backed by similarly ridiculous allegations and
evidence.
The parallels end here
Honourable Chairs, members of the European Parliament,
The parallels with the South African Treason Trials,
however, end here. The accused in the South African Treason Trial were duly
granted bail and remained free for the duration of the trial whereas the accused
in Ethiopia have been presumed guilty even before they were charged, their
parliamentary immunity revoked and denied bail. Moreover, even the Judges
appointed by the Apartheid government lacked the stomach to allow the farce to
continue and eventually interrupted the process acquitting all the accused of
all the charges. In Ethiopia, however, the judges are poised to convict most of
the accused for multiple offences carrying capital punishment after having
decided that the prosecution has proved its case beyond reasonable doubt during
a marathon hearing that ended on April 9 2005.
The preposterous charges, “evidence” and judicial
analysis
The analysis and reasoning of the judges closely mirrors
the Prosecution’s allegations rather than the contents of the “evidence” before
them and, therefore, are as farcical.
With respect to the charge of conspiracy and attempt to
overthrow the constitutional order, for example, the judges came up with
bizarre theory of causation, unheard of in any court of law. They surmised that
there is a direct cause and effect relationship between the fear expressed by
the opposition saying that the ruling party may rig the elections, their
subsequent complaints and the popular protest that ensued. Hence, the
opposition leaders can be convicted of the above offence irrespective of whether
not the elections were actually rigged by the ruling party and the existence of
other proximate causes, such as the June killings, the massive detentions and
the ruling party’s refusal to meet the opposition’s demands, and despite the
latter’s explicit rejection of violence and a desire to take power.
The majority of the judges also held that the two civil
society leaders, Daniel Bekele and Netsanet Demisse, can be convicted of the
same offence because, among other things, they were said to have warned their
trainees of possible power cuts by the ruling party during the counting of votes
and distributed flashlights as trainers of election monitors.
Criticisms of the Electoral Board and predictions about the
protest that would follow if the Electoral Board takes a partisan decisions is
the basis of a possible conviction for the offence of obstruction of
constitutional powers through threats, which entails a maximum of 15 years
imprisonment.
The third offence for which five of the accused can be
convicted and sentenced to death is armed rebellion. The judges held that
notes written by unknown authors citing some of the accused as coordinators of
would be rebels and the dubious testimony of witnesses, including that of a
former prison chief, suffice to establish guilt.
The last charge that accused are ordered to defend concerns
the offence of impairment of the defensive power of the state, which
entails a possible death sentence. The judges reasoned that the following
conducts warrant a conviction: reminding the armed forces that their loyalty
should be to the nation and to the Constitution and not to the ruling party and
calling them not to turn their arms against civilians and the fact that a single
military truck was said to have been destroyed by protestors.
Conclusion
Honorable Chairs, Members of the European Parliament,
As incredible as the above story might sound, it reflects
the tragic reality about the ‘trials’ that the Ethiopian government doesn’t want
you to be told as was demonstrated in its recently reported and successful
effort at having the report prepared by an EU appointed trial observer
suppressed. Paradoxically, the European Commission also obliged and decided that
the report shall remain confidential pending the “trials”.
I hope that I have made it clear to you why I felt that the
usual fair trial and due process standards that are applicable to trials proper
would be woefully inadequate to evaluate what is going in Ethiopia. I hope you
will also understand the cynicism that many people feel when representatives of
the free world call for the fair and speedy trial of people who should have
never been put to trial in the first place, while treating those responsible for
heinous abuses as privileged partners for dialogue.
In conclusion, the story that my colleagues and I recounted
today raises disturbing issues regarding the policies of influential
international actors that includes EU policy makers. The EU and some of its
leading member states have been and remain very important sources of financial
and political support for the regime in Ethiopia. This, despite the findings of
the 200 member strong EU Election Observation Mission regarding the serious
electoral irregularities and human right violations and despite the fact that
democracy and human rights are clearly stated in the Cotonou agreement as the
cornerstones of EU’s partnership with ACP-countries. I think it is legitimate to
ask why the EU spends enormous resources and energy on Election Monitoring if
its decision makers can simply ignore the findings of the monitors. How can such
Missions are considered credible and respected by the stake holders in future
elections if they are not respected within their own institutions. It is also
important to ask the purposes of maintaining the high sounding principles and
sanctions for non-compliance enshrined in the Cotonou agreement if they are not
applicable to extreme situations such as the one being witnessed in Ethiopia? EU
policy makers owe explanation, if not to Ethiopians, to the majority of European
tax payers who, I believe, do not wish to be associated with repressive regimes
let alone to finance them.
I thrust that you will remain, as parliamentarians and in
your individual capacities, steadfast in your support for democracy and human
rights in Ethiopia. I hope you will reiterate the demands contained in previous
resolutions of the European Parliament, which the Ethiopian Government, the
Commission and the Council, have failed to implement so far. These include the
unconditional release of all political prisoners, accountability for past and
ongoing human rights violations, the release of Trial Observation report
prepared by an observer commissioned by the EU and the implementation of the
relevant provisions of the Cotonou agreement.
Thank you!!
[1]
Defendants have the right, to
have adequate time and facilities to prepare their defence. Article
20(4) of the 1994Constitution reads: “Accused persons have the right to
full access to any evidence presented against them, to examine witnesses
testifying against them, to adduce or to have evidence produced in their
own defence, and to obtain the attendance of and examination of
witnesses on their behalf before the court.” The above rights is also
one of the minimum minimorum guarantees of fair trial under
international human rights instruments to which Ethiopia is a party.
Article 11(1) of the Universal Declaration of Human Rights, for example,
states “everyone charged with a penal offence has the right to be
presumed innocent until proved guilty according to law in a public trial
at which he has had all the guarantees necessary for his defense.”
Article 11(1).
Artcle
14(3) of International Covenant on Civil and Political Rights, on the
other hand, provides, in relevant part, that “in the determination of
any criminal charge against him, everyone shall be entitled to the
following minimum guarantees, in full equality:
(b) To
have adequate time and facilities for the preparation of his defence and
to communicate with counsel of his own choosing;
(d) To
be tried in his presence, and to defend himself in person or through
legal assistance of his own choosing;
(e) To
examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;”
[2] See Mesfin Wolde-Mariam, A
brief note on the June 11 hearing and its legality, Letter from prison,
at
http://www.mdhe.org/doc/Pro.MWM-letter-from-kality-eng-june07.pdf
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