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 The government news agency, quoting the Ministry of Justice said the pardon had been revoked since she had denied requesting her pardon.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.
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