Thursday, May 7, 2009

What's the truth behind Ethiopia's "coup" plot?

Barry Malone, Reuters

May 7, 2009

ADDIS ABABA (May 6) - A plot is defined as “a plan made in secret”, but even by the usual shadowy nature of such matters around Africa, the recent conspiracy to overthrow the Ethiopian government has been hard to see clearly.

The story broke two weeks ago when the government of Prime Minister Meles Zenawi said 40 men had been arrested for planning a coup after police found guns, bombs and “written strategies” at their homes. But a few days later the government communication office was asking journalists not to use the word coup anymore. The “desperados”, they said, had planned to “overthrow” the government by using assassinations and bombings to create enough chaos to get supporters on the streets to topple the government.

The sensitivity surrounding the language and the details of what was actually going on highlight the caution that still exists in sub-Saharan Africa’s second most populous country after a disputed 2005 election ended with police and soldiers killing about 200 opposition street protesters who were marching on government buildings.

Understandably, many Ethiopians are sceptical that people would take to the streets again. And others question whether the will is still there to march against a government that most analysts consider the most effective the desperately poor nation Horn of Africa has ever had.

The suspected involvement of an Ethiopian-American university professor was a detail that caught the interest of the international media. Berhanu Nega, who called the accusation “baseless”, was elected mayor of Addis Ababa after the 2005 poll but was imprisoned along with about 100 other opposition members when the government accused them of orchestrating the street protests.

He was released in 2007 after a pardon deal and soon fled to America, where he teaches economics at Bucknell University in Philadelphia. Another leader released as part of that pardon, 36-year-old former judge Birtukan Mideksa, was rearrested last year after the government said she violated the terms of the pardon. She remains in prison.

Ethiopians love to talk politics in the bars and cafes of capital Addis Ababa — often in very hushed tones, which is perhaps a hangover from 17 years of brutally repressive communist rule that ended when the rebel group led by Meles came to power in 1991.

And the “coup” is now the subject of those whispered chats. Some say there was a real threat to the government that came from Berhanu and his allies in the sizeable and vocal diaspora. Some say there was dissent in the military and Berhanu simply provided a convenient excuse for the government to move against that in its early stages.

And one opposition leader even told me that the government may have invented the coup plot so it could arrest potential politicians ahead of national elections due in 2010.

“Without third party verification I can’t believe there was a plot,” said Bulcha Demeksa, leader of the Oromo Federalist Democratic Movement.

Amnesty International now says the government is arresting more people in secret.

This intriguing story will surely develop over the weeks to come as the Ethiopian government has said it is preparing evidence that will be presented before “an independent judiciary” and has promised the 40 accused will appear in an Addis Ababa court next week.

What sort of truth will emerge from the shadows?


Ken Menkhaus, John Prendergast, and Colin Thomas-Jensen

May 7, 2009

For the first time in a long time, Americans are paying attention to what their government does in Somalia. Following last month’s hostage drama off the coast of Somalia, President Barack Obama is under increasing political pressure to address the threat of piracy in the Gulf of Aden. While short-term measures to curb pirate attacks are certainly necessary, the Obama administration must not allow the politics of the piracy problem to distract it from putting in place a long-term strategy to help Somalis forge a state that, with measured external support, can fight piracy, promote peace and reconciliation, and combat the threat of terrorism within its borders.

Historically, the international community’s engagement with Somalia has more often made matters worse for both Somalis and external actors. Rather than invest in the time-consuming and undoubtedly frustrating process of helping Somalis forge consensus and build functioning state institutions, the United States, the United Nations, and others have often backed governments based on narrow coalitions, or they have opted to partner with questionable nonstate actors in pursuit of near-term counterterrorism goals. This approach has frequently stoked further conflict and human rights abuses. Fourteen attempts in the past 19 years to reconstitute state authority in Somalia have failed, with ordinary Somalis bearing the brunt of these ill-advised, poorly executed, underresourced efforts. The latest effort—a five-year transition to democratic elections administered by a Transitional Federal Government, or TFG—nearly collapsed after two years of Ethiopian occupation and brutal counterinsurgency warfare. Ethiopia has now withdrawn, and a new, more broad-based TFG offers some hope, but the human rights crisis in Somalia remains acute and continues to deepen, the threat of Islamist extremism that the U.S.-backed incursion sought to neutralize persists, and piracy continues despite the deployment of a multinational armada.

Although the situation on the ground remains critical, we believe that the election of a new president, Sheikh Sharif Ahmed, and the establishment of a moderate Islamist government under his authority—“TFG version 2.0”—are potentially the best chance Somalia has had to pull itself out of nearly two decades of state collapse. For this effort to succeed, however, the Obama administration must resist calls for immediate, unilateral military action against terrorist and pirate targets on Somali soil and chart a new course in its approach to Somalia that privileges Somali-driven political processes, prioritizes inclusive governance, and respects Somali preferences. It not only needs to reshape U.S. policies toward Somalia, but must also press other external actors not to proceed with policies that are either flawed or intentionally destructive. This short paper describes the current state of international engagement with the TFG and offers recommendations for improvement.

Analysis: The current state of play

The establishment of a new TFG in January 2009 featuring a more broad-based coalition and moderate Islamist leadership is a significant step forward. That, along with the withdrawal of Ethiopian occupying forces in January, was a setback for the jihadist group al-shabaab, which had emerged as the strongest insurgency force against both Ethiopian forces and the TFG. The shabaab continues to control the largest swath of territory in southern Somalia, but it has been unable to exploit the vacuum left by the departing Ethiopians, and faces growing armed resistance from clan militias. While many Somalis were skeptical that the new TFG could succeed, they recognized that Sheikh Sharif and his newly formed government were more closely aligned with their long-term interests than the shabaab.
However, the TFG has thus far enjoyed only limited progress in establishing itself as a functional authority. Its main successes have been in negotiating alliances with clan militias and authorities—which have helped to block the shabaab—and developing a more accountable, transparent customs revenue collection system at the seaport, which has earned support from businesspeople and generated at least a modest flow of revenues to pay some TFG salaries. It is also reaching out to elements of the shabaab and other Islamist rejectionists in the hopes of broadening its coalition and weakening the jihadists. But the government’s civil service has yet to become functional, and crime and insecurity remain high. Armed groups which were supposed to be integrated into a joint security force continue to remain separate militias answering to separate commanders. Shabaab insurgents, whose numbers now include foreign fighters, continue to launch attacks on the African Union mission in Somalia, or AMISOM, protecting key government installations in the capital.

Meanwhile, one of the world’s worst humanitarian disasters continues to unfold. Three and a half million Somalis need emergency assistance (nearly as many as in Darfur), and humanitarian access is terrible: Forty-nine aid workers have been killed in 2008 and 2009 and scores more kidnapped. The TFG is still, for the most part, a government on paper, and would face difficulty remaining in Mogadishu without the protection of AMISOM forces.

International actors have rhetorically committed to making the TFG work, and the U.N. Special Representative Ahmedou Ould Abdallah has been especially active in generating external support for the TFG. A major donor conference on Somalia was held on April 23 in Brussels, where these priority needs were discussed and donors pledged more than $200 million to support AMISOM and strengthen TFG security forces. The key question for policymakers is how to condition and monitor the dispersal of those funds. In a report from the U.N. secretary general to the Security Council this week, the United Nations emphasized the need for strong donor support to the TFG, especially in the security sector. This is a priority shared by the TFG leadership. The United Nations is specifically calling for the international community to provide funding for training and equipping the TFG police and security forces, and for stipends for 10,000 police officers.

Significantly, the secretary general’s report does not recommend replacing the 4,000-strong AMISOM force with a 23,000-strong U.N. peacekeeping operation. A proposed U.N. force has been on the table for well over a year, but although the proposal had strong backing from the Bush administration, the Obama administration’s support has been lukewarm, and rightly so. The United Nations itself concluded that such a force would be counterproductive at this time, by catalyzing armed insurgents and thereby endangering rather than protecting the TFG. The TFG’s security against the shabaab will have to come largely from its own capacity to recruit and maintain the loyalty of its own security forces, albeit with generous external financial backing.

Establishing security: Challenges and policy implications
The immediate policy dilemma for international donors is one of sequencing: Must a security force first create conditions in which a civil government can survive and operate? Or must government authorities first establish a capacity to control security forces? Some may see a preference for checks and balances—and constraints on government security forces—as a normative agenda for human rights groups. But in Somalia it is also a cold realist calculation—abusive security forces will undermine, not protect, the TFG. And as in 2007 and 2008, such forces will strengthen public support for the shabaab and other opposition and extremist groups.
The international community has already had one calamitous experience providing direct salary support to the TFG police in 2007 and 2008, when the government was under different leadership. The TFG police under then-President Abdullahi Yusuf committed grave human rights abuses against the Mogadishu population. The police commissioner during this period, Abdi Qeybdid, is still in place despite a track record of abusive behavior, lack of confidence among ordinary Somalis, and protests by human rights groups. Moreover, key branches of the transitional government—the judiciary, the interior ministry, and others—that are supposed to exercise oversight of police and other security forces are not yet functional. What the United Nations and some donors are proposing, then, is the strengthening of security forces in a context where the new government appears to lack the ability to hold them accountable. The U.N. secretary general’s report is clear on this, identifying its strategic objective as “to assist the TFG in creating security conditions in which the process of building the country’s state institutions can take root.”
The good news is that the TFG has made some progress on its own, and the international community may finally have a more credible partner than the previous TFG or its predecessors. A bank account has been established in Djibouti and an interdepartmental financial oversight body has been established to monitor the use of funds. Revenues from the port are reportedly now flowing to the central government, and although corruption has not been eliminated, it has been reduced. From these funds, the TFG announced this month that it had begun to pay salaries to its security forces. The key challenges for the United States and other external actors in the immediate term are help to ensure that the TFG continues to pay its security forces, provides training and nonlethal equipment conditioned on their improved conduct, and establishes oversight mechanisms to ensure that funding does not support abusive forces or political score-settling.

This daunting task is further complicated by the diversity of security threats facing the TFG, which include the following:

Insurgency by the shabaab and other radical groups

The shabaab and other Islamic extremist movements in Somalia are an existential threat to the TFG and a major security concern for neighboring states and the West. As noted above, these extremist groups have lost much of their credibility in Somali circles now that Ethiopian occupying forces have withdrawn and the old TFG leadership has been replaced with new, moderate Islamist leaders. A portion of the shabaab—some argue most of the movement—are not ideologically committed hardliners, but rather tactical allies who could be negotiated with and brought into an expanding TFG power-sharing circle. If this group can be successfully weaned from the shabaab through negotiations, it would leave the recalcitrant hardliners exposed and weakened, and easier to defeat outright.

This is the two-pronged approach that President Sharif and his supporters are seeking to employ, and the TFG has reportedly already enjoyed some successes in pulling some armed groups away from the insurgency. The most important contribution the international community can make to this effort is to protect and expand political space for Sharif to negotiate—even with individuals who might raise eyebrows in some corners. Ethiopia’s security concerns are especially important to address in this regard. The United States and its allies must avoid the temptation to arbitrarily “redline” individuals and groups to whom Sharif will attempt to reach out. The acceptability of Somali armed opposition groups should be judged principally on their positions on a few core positions: Do they accept peaceful coexistence with their neighbors, especially Ethiopia? Do they reject affiliation and alliance with Al Qaeda? Do they renounce terrorist attacks and assassinations against domestic rivals and foreigners?

Even as it negotiates with part of the insurgency, the TFG will unavoidably have to fight to defeat the most hardline, foreign-backed wing of the shabaab. Direct external aid to TFG security forces is seen by many as unavoidable if the TFG is to defeat the hardliners and expand its authority in south and central Somalia, and the United Nations has asked donors to provide training, equipment, and stipends to the emerging TFG security forces. However, this places the United Nations and other external actors again in the position of a direct backer of one party in an ongoing civil war, a fact which contributes significantly to the targeting of international humanitarian aid workers by insurgents. External donors must be very clear about what they are doing if providing direct support to national security forces: They are choosing sides in a war.

Fragmentation of ad hoc militia

The TFG has forged alliances and understandings with a range of local, mainly clan-based militias that have resisted the shabaab encroachment but that remain outside the TFG military. Bringing these groups into the formal TFG national security forces is a high priority, as they otherwise are vulnerable to defection to opposition groups and pose a potential armed obstacle to extension of TFG authority. To maintain these fragile alliances the TFG primarily needs cash to provide regular salaries. This should mainly be the responsibility of the TFG, not external donors. External donors should ensure that their funding does not provide salary support for clan paramilitaries, which are largely unaccountable.

Criminal violence and lack of public order

Reducing criminality and establishing public order is a critical matter of legitimacy and credibility for the TFG in the eyes of the Somali public, and it is the principal yardstick that Somalis will use to assess the TFG’s performance. A more effective police force is a necessary first step. The international community already has established police support, and is likely to provide stipends as well, but the burden rests with the TFG to ensure that the police are a source of order and not predation. Under the old TFG, the police were a menace to the public. Until Police Commissioner Abdi Qeybdid is removed from office, it is not clear that citizens of Mogadishu will have any confidence in the police force. International donors must press hard for accountability in the ranks of the Somali police as a precondition for aid.

The TFG is likely to relax rules on the operation of private security forces employed by businesses, which in the past have been important sources of security for neighborhoods adjacent to the business compounds. Additionally, the TFG may opt to encourage the re-establishment of nonradical, local Islamic courts, which were the foundation for the dramatic improvements in security under the Islamic Courts Union in 2006. Under the courts’ brief rule, Somalis were willing to trade some of their personal freedoms for greater security. Donor states can play a constructive role by protecting political space for Sheikh Sharif and his government to pursue this option if they so choose, rather than reacting in alarm at the prospect of courts based on sharia law. At the same time, donors can support Somali-driven efforts to reduce the incompatibilities of sharia court proceedings and rulings with international judicial and human rights standards.

The lowest order of threat to the TFG, the Somali people, the region, and the United States is actually the security item enjoying the greatest attention right now—piracy. Even so, the continued epidemic of piracy off the Somali coast is a problem and a test of the capacity of the TFG to extend its authority. Proposals to provide external assistance to the TFG for the establishment of a coast guard are premature, do not reflect the security priorities of the Somali people, and are unlikely to work. Indeed, training up coast guard officers could easily produce unintended consequences, as that new skill set will be more valuable in the piracy sector than in the public sector, producing defections from the coast guard. A more appropriate approach for the TFG will be to tackle piracy onshore. That will require time, funds, and extensive negotiations. External actors will have only limited roles to play in this internal Somali process.

Antipiracy measures would attract much greater support among Somalis if those efforts were accompanied by international action to end illegal fishing off Somalia’s coast. Like the shabaab during the Ethiopian occupation, pirates have managed to cloak their criminal agenda beneath a veil of Somali nationalism. Although illegal fishing has undoubtedly decreased due to the effectiveness of Somali pirates, international commercial fishing boats have for years violated Somalia’s territorial integrity and severely disrupted local Somali livelihoods.

Upending the status quo: Next steps for the Obama administration
Given the significant national security interests that the United States has in Somalia with respect to counterterrorism, and the international political and commercial pressure generated due to piracy, the Obama administration should more deeply engage in Somalia’s state reconstruction. The United States should appoint a senior diplomat along with a small diplomatic team to work with the U.N. mediation team. The American officials can provide focused, low-key support to this process of state reconstruction through the TFG. If this support is too visible or forceful, it will undermine President Sharif’s efforts to reach out to disaffected clans and constituencies. In this space, the United States should work within the already established International Contact Group to maintain the focus on the transition and help ensure that President Sharif does not embark on a failed attempt at empire-building like so many before him.

The immediate priorities and recommendations for the United States should be the following:

1. Improve security: Support locally owned efforts to improve security and public order and reduce the threat posed by armed insurgents.
Somalia’s most urgent need is unquestionably improved security. There are multiple security threats in Somalia, each of which requires a distinct response. Some security threats in the country are amenable to carefully calibrated external support—others are not. In all cases, local ownership of security policies is essential if those responses are to be sustainable, effective, and viewed in the eyes of local communities as legitimate. External aid is important, but it must not be allowed to overtake local responsibility to finance essential security operations. Moreover, direct support to the Transitional Security Forces must be conditioned on increasing inclusiveness of the TFG and effective steps to curb human rights abuses, including a commitment to investigate allegations of abuse and removal of officials implicated in serious abuses. The United States and other donors should establish oversight mechanisms under the auspices of the Joint Security Committee and AMISOM and must be prepared to halt funding if, as was the case last year, TFG forces engage in widespread human rights violations and other forms of criminal behavior.

2. End impunity: Support Somali efforts to seek justice for war crimes and end a culture of impunity.
The Ethiopian intervention in late 2006 calcified a brutal insurgency that in turn provoked a heavy-handed and vicious counterinsurgency campaign. Without fear of punishment, all sides committed atrocities against civilians. Continued impunity is an affront to the victims and fuel for further conflict. A necessary first step is a credible investigation of crimes committed. As a permanent member of the U.N. Security Council, the United States should call for a U.N. Commission of Inquiry to investigate and document war crimes and crimes against humanity. Ultimately the question of how to hold perpetrators accountable must be answered by Somalis themselves, but a credible external investigation must occur to begin the process.

3. Focus on the transition and governance: Help President Sharif refocus on transitional tasks and improve governance in order to enlarge participation in the political process and defuse armed opposition as Somalia prepares for possible elections in 2011.

Under former President Abdullahi Yusuf, the TFG ignored the “T” (transition). Yusuf and his allies (including the Ethiopians) sought to destroy their enemies without building functioning Somali institutions or advancing key transitional tasks. The success of the transition now depends on whether President Sharif can establish credible, inclusive, and consultative national commissions to complete the transition.

As with transitional governments in other settings, the TFG will face complex problems related to constitutional choices on systems of representation, central and local government division of labor, checks and balances, and many other matters that will have a powerful impact on the question of “who rules” in Somalia in the future. It will also face daunting technical challenges with regard to other key transitional tasks, especially those related to the work of the electoral commission. Here the outside world has considerable experience and expertise that can be offered to Somali representatives. Again, donors must be careful not to erode Somali ownership of decision making on these matters by overloading the transitional process with outside consultants and preset templates that may not fit in a Somali political setting.

4. Manage external spoilers: Somalia is a theater for regional meddling and proxy conflict, and the United States must seek to end cross-border adventurism and neutralize sources of support for groups inside Somalia seeking to undermine the peace process.

Eritrea, Libya, Qatar, and Iran, among others, are actively supporting groups that oppose the TFG, and the Obama administration should construct a diplomatic strategy to erode that support. The Security Council has already authorized sanctions against individuals and groups that obstruct the peace process, and as an immediate first step the United States should work with other members of the Security Council to build consensus for sanctions against those individuals and groups identified by the U.N. group of experts to be implemented if they become spoilers to the peace process.
Ethiopia’s cautious support for Sheikh Sharif is promising, but there will be great temptation for Ethiopia to intervene again if the shabaab and other extremist elements make further gains, or if the TFG’s outreach to the opposition includes figures Ethiopia deems unacceptable. Renewed Ethiopian military activities in Somalia would undermine and likely collapse the TFG and fuel the insurgency. Simmering tensions between Ethiopia and Eritrea continue to destabilize the subregion and undermine Somalis’ state-building efforts. The United States should resume serious efforts to fully implement the Ethiopia-Eritrea peace deal, demarcate the Ethiopia/Eritrea border, and normalize relations between the two countries. Without a resolution of the Ethiopian-Eritrean impasse, Somalia is likely to remain a site of ongoing proxy war between the two.

Somalia has become the poster child for transnational threats emanating from Africa. By sea, pirates much more dangerous than their predecessors from centuries past prowl the Indian Ocean and Red Sea waterways and make tens of millions of dollars in ransom. By land, extremist militias connected to Al Qaeda units ensure that Somalia remains anarchic and the only country in the world without a functioning central government.
In fighting terrorism on land and piracy at sea, U.S. national security interests will be better secured if we aligned ourselves more with the interest of most Somalis in better security and effective governance. Helping to build the house and using the back door will be much more effective than barging into the front door of a house that has yet to be built.

Wednesday, May 6, 2009

Ethiopia: On Forgiveness, Reconciliation, and Pardon

Alemayehu Fentaw

Dear Reader: This article is a revised version of the one first published in Sudan Tribune on 10 April 2009. By the way, I was not able to post anything on my website for the past five or so months, as all blogs along with a few targeted Diaspora websites were blocked in Ethiopia. I really appreciate the measure taken by the government to unblock all of the websites without any discrimination based on their content. This is a step in the right direction if the government cares to respect in deed the freedom of expression that its constitution upholds in words.

Revocation of the pardon granted to Ms. Birtukan Mideksa has been a subject of bitter debate recently between those who admonish it as unlawful and retrograde, on the one hand and those who approve of it as not only lawful, but also as a measure that advances the causes of justice and rule of law, on the other. The government news agency, quoting the Ministry of Justice said the pardon had been revoked since she had denied requesting her pardon. Of course, Ms. Birtukan’s trouble started when she spoke to her supporters in Sweden about the process of negotiation which had taken place between the opposition leaders and government, mediated by a “council of elders” led by Prof. Ephraim Isaac, before their pardon was granted. The government seems to prefer to lay emphasis on a petition signed by the prisoners, admitting guilt collectively and individually for the crime they had committed and asking for pardon, which implies that their release was part of the normal legal procedure of pardon, rather than part of a negotiated political deal.

The revocation strikes me as not only ridiculous but idiotic. To assume that this affair is “a tale told by an idiot, full of sound and fury, signifying nothing” of political substance and that the solution to this madness is simply revocation and re-incarceration of the woman is to entirely misread the problem.

My aim here is neither to engage in partisan politicking nor in high-profile philosophical and legal discourse, but to point out the serious flaws and irregularities observed in the whole process, from grant to revocation, of the pardon with a view to making out a case for quick amends as an academic lawyer as well as peace and human rights activist.

I. Forgiveness: A Philosophical Aporia?
Jacques Derrida, one of the most influential and prolific contemporary philosopher, raises a compelling question as to whether or not to forgive somebody who has caused us significant suffering or pain. For Derrida, the crux of the matter consists in the proposition that if one forgives something that is actually forgivable, then one simply engages in a calculative reasoning and hence does not really forgive. Derrida contends that according to its own internal logic, genuine forgiving must involve the impossible: that is, the forgiving of an ‘unforgivable’ transgression. There is hence a sense in which forgiving must be ‘unconscious’ and it must remain outside of political and juridical rationality. This unconditional ‘forgiveness’ explicitly precludes the necessity of an apology or repentance by the guilty party, although Derrida acknowledges that this pure notion of forgiveness must always exist in tension with a more conditional forgiveness where apologies are actually demanded. However, he argues that this conditional forgiveness amounts more to pardon and reconciliation than to genuine forgiveness.

The paradox of forgiveness depends upon a radical disjunction between self and other. Derrida explicitly states that “genuine forgiveness must engage two singularities: the guilty and the victim. As soon as a third party intervenes, one can again speak of amnesty, reconciliation, reparation, etc., but certainly not of forgiveness in the strict sense”. Given that he also acknowledges that it is difficult to conceive of any such face-to-face encounter without a third-party – as language itself must play such a mediating role – forgiveness is caught in an aporia that ensures its empirical actuality appears to be decidedly unlikely. To recap, the reason why Derrida’s notion of forgiveness is caught in such an inextricable paradox is because absolute forgiveness requires a radically singular confrontation between self and other, while conditional forgiveness requires the breaching of categories such as self and other, either by a mediator, or simply by the recognition of the ways in which we are always already intertwined with the other. Indeed Derrida argues that when we know anything of the other, or even understand their motivation in however minimal a way, this absolute forgiveness can no longer take place. Derrida can offer no resolution in regard to the impasse that obtains between these two notions (between possible and impossible forgiving, between a pardon where apologies are asked for and a more absolute forgiveness). He will only insist that an oscillation between both sides of the aporia is necessary for responsibility.

The upshot of this all is that to punish is the easiest thing to do for the powers that be. Even if the human impossibility of absolute forgiveness cannot be denied, it is still possible to forgive in various forms. Derrida helps us appreciate the limits set by human nature. What is so attractive to society and government in punishment? Nietzsche understood the way punishment is “over determined by utilities of every sort” and survives now under this, now under that interpretation of its purposes – because the desire to punish (and thereby subordinate, coerce, transform) other persons is so deeply rooted in human nature.

II. Reconciliation: A Traditional Dispute Resolution Mechanism
In what might be called a major departure from the received constitutional tradition of the country, the Constitution of the Federal Democratic Republic of Ethiopia provides the framework for the independent validity of non-state or unofficial laws such as customary and religious laws in some fields of social activity. Both formal and informal legal pluralism are discernible in Ethiopia. According to Andre Hoekema formal pluralism “is a legal concept referring to the inclusion within the legal order of a principle of recognizing ‘other’ law.” Article 34 (5) of the federal constitution provides that ”This constitution shall not preclude the adjudication of disputes relating to personal and family laws in accordance with religious and customary law, with the consent of the parties to the dispute. Particulars shall be determined by law.” Article 78(5) also stipulates, “Pursuant to sub-article (5) of Article 34, the House of Peoples’ Representatives and State Councils can establish or give official recognition to religious and customary courts that had state recognition and functioned prior to the adoption of the constitution shall be organized on the basis of recognition accorded to them by this constitution.”

As can be gleaned from the above-cited constitutional provisions, formal legal pluralism under Ethiopia’s new constitutional order is confined to certain matters: only personal status and family law. The state legal system, however, carried on to monopolize competence over criminal matters. Only family and personal law have been singled out for recognition. Nevertheless, this does not rule out the existence and active role of customary criminal courts, which are by far the most important institutions of dispute settlement as some researches indicate. With respect to family matters, there is a dual family law system: the state recognizes official and non- official forums. The official forums consist of courts that are organized in a hierarchical order: the Regional/Federal First Instance Courts, the Regional/Federal High Court and the Regional/Federal Supreme Court in that order of superiority. To name but a few of the nonofficial forums in Ethiopia: the Shemagelle (Council Elders) and the Family Council (Yebetezemed Gubae) in Tigray and Amhara, the Luba Basa in Oromia, the Xeer in Somalia, the Shari’a courts, and the Church tribunals. In addition, the choice whether to take a dispute to regular state courts or to one of those non-official forums is entirely left to the parties.

However, it is this self-same traditional method of conflict resolution, which is commonly used to resolve family and personal law matters, that has been extended to such high stakes political dispute. Orly Halpern, [correspondent] of the Christian Science Monitor, in an article entitled “In Ethiopia, elders dissolve a crisis in a traditional way” told the story of a Harvard-educated Ethiopian scholar Ephraim Isaac who helped resolve his country’s two-year political crisis using a traditional peacemaking method. In the words of Halpern, “It was a deadlock that no amount of outside pressure seemed able to loosen, and the life sentences threatened to escalate the crisis. So it was clear to Mr. Isaac that his people needed a strong dose of traditional peacemaking methods. He led a nonpartisan Ethiopian “council of elders” that quickly negotiated a deal acceptable to both sides: clemency in exchange for admission of guilt and promise to respect the rule of law.”

III. Pardon: A Legal or Extra-Legal Procedure?
Black’s Law Dictionary defines pardon as “the act or instance of nullifying punishment or other legal consequences of a crime.” It further distinguishes between full pardon (aka, absolute or unconditional) and conditional pardon. It defines full pardon as “a pardon that releases the wrongdoer from punishment and restores the offender’s civil rights without qualification.” Article 71(7) of the FDRE Constitution confers on the President the power to grant pardon in accordance with conditions and procedures established by law. Under the Procedure of Pardon Proclamation No. 395/2004, the President’s pardon power extends only to federal crimes. All requests for pardon for federal offences are directed to the Board of Pardon for investigation. The Board of Pardon prepares and submits its recommendations to the President for final disposition of each application. As per Article 4(1) of the Proclamation, The Board has the power to “submit to the President recommendations that the penalty be remitted conditionally or unconditionally, in whole or in part, or that the penalty be of a lesser nature or gravity, or that the penalty be confirmed when it is found unpardonable after examining applications for pardon made pursuant to relevant law.” Therefore, Presidential pardon may take several forms, including full pardon, conditional pardon, partial pardon, commutation (reduction) of penalty, remission of fine or restitution, and reprieve.

In my opinion, the entire process of granting and revoking Ms. Mideksa’s pardon was wrought with numerous major defects from a strictly legal point of view. First, lack of vested interest or standing on part of the party that initiated and eventually submitted the petition to the Board of Pardon. In other words, the pardon was not pleaded by the real party in interest. It was mediated by the council of elders, signed by the convicts, and transmitted to the Board of Pardon by the Prime Minister. Pursuant to Article 12 (1) of the Procedure of Pardon Proclamation, the only persons who have standing to plead pardon on behalf of a convicted and sentenced person include own spouse, close relatives, representative or lawyer. Second, the application for pardon was signed before final judgment was entered contrary to an explicit provision of the Procedure of Pardon Proclamation. Third, the mediation (shuttle diplomacy) that had taken by the “council of elders” has no place in the normal pardon procedure. Fourth, default on part of the Board of Pardon to serve a written notice on the pardoned as per Article 17(1). Fifth, default to respect the twenty days’ period, as she could have availed herself of the opportunity to write her reply to the satisfaction of the Board of Pardon (Art. 17(2). Sixth, confusing criminal liability for civil liability (one pillar of Criminal Law is the principle of individualization of criminal responsibility), which is unbecoming of an academic lawyer was the mark of the petition for pardon as well as the certificate of pardon, as in both of these documents the petitioners purport to admit being guilty collectively and individually of the wrongs that they had committed. “Joint and several liability” is a concept unheard of in criminal law.

Seventh, a full pardon cannot be revoked once granted and accepted by the grantee unless it is found out that it was obtained through fraud. Even when a pardon is alleged to have been obtained fraudulently, there’s no way to revoke it without tendering a written notice and before the expiry of the twenty days’ period.

Eighth, the various government organs themselves did not seem to be clear with their respective competences. Recall official statements issued by the Federal Police, the Ministry of Justice, and the Office of the President. The different organs made different releases explaining the reasons for the revocation. One said the pardon was revoked as it was obtained through fraud whilst the other alleged that the pardoned failed to comply with one of the conditions under which the pardon was granted. This ambiguity heightens the suspicion that partisan utilitarian considerations have taken precedence over legal considerations of the common good. While one official statement would seem to have based the revocation on grounds of fraud or deceit by virtue of Article 16 (2) while the other bases the decision of revocation on grounds of non-compliance with conditions for granting the pardon in accordance with Sub-Article (3) of the same. How can the executive allude to two different causes of revocation alternatively?

Finally, the manner in which the woman was arrested might have been unlawful provided that the arresting officers did not have an arrest warrant. Besides, to re-incarcerate her before a decision to revoke her pardon under sections (2) or (3) of Article 17 has been taken by the Board after proper investigation of the allegation, with due regard to her written reply is a clear violation of the provision under Sub-Art (4) of the same.

In conclusion, the object and purpose of the FDRE Criminal Code, under its Article 1, is “to ensure order, peace and the security the State, its' peoples, and inhabitants for the public good.” Also, in the words of Article 11 of the Procedure of Pardon Proclamation, “the main purpose of granting pardon is to ensure the welfare and interest of the public”. Therefore, what has been done in the interest of public order, peace and security cannot be undone at least without good enough reason.

For me the release of the 38 political prisoners cannot be an outcome of a traditional peacemaking process (a reconciliation mediated by a “council of elders”) and a normal procedure of pardon simultaneously. I believe that the government allowed the “council of elders” to get involved and settle the dispute in a traditional way in good faith and the right thing to do for the executive organ at the time when they reached agreement with the prisoners was to order the Minister of Justice to withdraw charges against them in his capacity as the Attorney General in pursuance of Article 42(1) (d) of the Criminal Procedure Code, which reads “the public prosecutor is instructed not to institute proceedings in the public interest by the Minister by order under his hand.” This was not done, maybe because the Prime Minister was too intelligent to be advised by the then Minister of Justice and Attorney General, who is also chief legal advisor, ex officio, of the Federal government on how to proceed with the matter. Or perhaps, the Prime Minister wanted to see the detainees convicted so that he can use it as a political scorecard against them whenever he finds it important. Or, the PM has acted in the manner he did in order to expedite the rather protracted normal legal procedure. Whatever might have been the case, to leave the single mother behind bars will not do any good to the democratization process in Ethiopia, nor will any party emerge victorious by playing the same foul game.

Family of Ethiopia 'plotters' arrested too: Amnesty

By Barry Malone

ADDIS ABABA, May 6 (Reuters) - Relatives of a group accused of plotting to overthrow the Ethiopian government have been unfairly arrested by association in the Horn of Africa country, a rights group says.

Prime Minister Meles Zenawi's government said last month a group led by an Ethiopian-American professor had planned to use assassinations and bombings to provoke street protests and topple the government.

Addis Ababa says it arrested 40 former and current army personnel and members of a disbanded opposition group from a "terror network" it said was formed by Berhanu Nega, an opposition leader now teaching economics in the United States.

"Several may have been detained solely for their family ties to men who have expressed political opposition to the government," said Michelle Kagari of Amnesty International in a statement late on Tuesday.

"They should be released immediately."

The arrests represent the biggest roundup of opposition figures in Ethiopia since more than 100 opposition members were imprisoned after a disputed 2005 election.

They were released in a 2007 pardon deal but Birtukan Mideksa, the leader of the Unity for Democracy and Justice party, was rearrested last year after the government said she violated the terms of her pardon.

Amnesty say she is a "prisoner of conscience" and should be released.
The rights group also demanded those detained be named and said one -- the 80-year-old father of a London-based opposition leader -- was in urgent need of medical care.

Opposition parties routinely accuse the government of harassment and say their candidates were intimidated during local elections in April of last year.

The government denies that.

Ethiopia will hold national elections in June 2010 and opposition leaders have said the arrests are an attempt to jail potential candidates ahead of that poll.

The Ethiopian government's head of information, Bereket Simon, told Reuters that nobody would be arrested for being related to someone opposed to the government.

"Evidence is being prepared and will be considered by an independent judiciary," he said.

The accused are due to appear in court on May 11th. (Editing by Jon Hemming)

Tuesday, May 5, 2009

Ethiopia opposition says anti-govt plot invented

By Barry Malone | May 6, 2009

ADDIS ABABA, May 5 (Reuters) - An Ethiopian opposition leader said on Tuesday an anti-government plot had been invented as an excuse to arrest potential candidates ahead of national elections next year.

"Without third party verification I can't believe there was a plot," Bulcha Demeksa, leader of one of the largest opposition parties, the Oromo Federalist Democratic Movement, told Reuters.

"This government is just looking for an excuse to imprison potential politicians."

Prime Minister Meles Zenawi's government said last month a group led by an Ethiopian-American professor had planned to use assassinations and bombings to provoke street protests and topple the government.

Addis Ababa arrested 40 former and current army personnel and members of a disbanded opposition group from a "terror network" it said was formed by Berhanu Nega, an opposition leader now teaching economics in the United States.

The Bucknell University lecturer, who has publicly said he wants to overthrow the Ethiopian government, has called the accusations "baseless".

"When Berhanu says he wants to overthrow the government, it is just words," said Bulcha.

"He couldn't have organised these people from the U.S."

Former Ethiopian president Negaso Gidada, now an independent member of parliament, also told Reuters he doubted Berhanu's involvement, but said the government was using the alleged plot to root out dissenters in its military.

"There is no democracy in Ethiopia," added Negaso, citing recent legislation governing the activities of charities and the media that rights groups have condemned as repressive.


The Ethiopian government's head of information, Bereket Simon, told Reuters that evidence was being prepared and the accused would appear in court on May 11.

"Nobody has any right to prejudge the evidence and undermine the rule of law," he said.

Opposition parties routinely accuse the government of harassment and say their candidates were intimidated during local elections in April of last year.

The government denies that.

Another opposition leader, Birtukan Mideksa, a former judge who heads the Unity for Democracy and Justice party, has been in solitary confinement since December.

She was jailed after a disputed 2005 poll, with Berhanu and other opposition leaders, when the government accused them of instigating riots in Addis Ababa in an attempt to take power.

About 200 opposition protesters were killed by soldiers and police in violence that followed.

Mideksa and Berhanu were released in a 2007 pardon, but she was re-arrested last year after the government said she had violated the terms of the pardon.

Meles was hailed as part of a new generation of African leaders in the 1990s, but rights groups have increasingly criticised the rebel-turned-leader for cracking down on opposition in sub-Saharan Africa's second most populous nation.

The party that wins next June's parliamentary election will pick the prime minister. Meles is expected to win comfortably.

Ethiopia's political climate is closely watched by foreign investors showing increasing interest in agriculture, horticulture and real estate prospects.

The nation's economic progress has been hampered of late by high inflation and a fall in foreign exchange inflows.

The country is one of the world's poorest, ranked 170 out of 177 on the United Nations Human Development Index, and one of the largest recipients of international aid.

"Humanitarian aid should be continued, but development assistance should be conditional on a country being democratic," said Bulcha. "How can you imprison and kill your people and have the world treat you like a democracy?" (Editing by Andrew Cawthorne)