Sunday, October 10, 2010

The Unbearable Lightness of Pardon: Reflections on Birtukan’s Second Sailing

Alemayehu Fentaw

“… if I grant forgiveness on condition that the other confess… then my forgiveness begins to let itself be contaminated by an economy, a calculation that corrupts it.”
J. Derrida


Looking at the blogosphere and papers, the re-release of Judge Birtukan Mideksa, leader of the Unity for Democracy and Justice Party, Ethiopia’s largest opposition party, from prison on 6th of October 2010 has proven to be a no less potent topic for controversy than her re-incarceration on 29th of December 2008 among pundits and analysts. Although speculation was rife amidst pundits and analysts to the effect that Birtukan would be re-released from Qaliti prison any time soon this year, what contributed to the controversy is the manner in which her re-release was secured. Even if her re-release somehow was expected some way, no one expected that it would come the way it did up until Prime Minister Meles Zenawi hinted at the possibility of re-release and the only acceptable procedure that would secure her re-release from re-incarceration in his lecture at Columbia University on 22nd of September 2010.

In what follows, I shall attempt to unmask the motives behind the selection of the procedure that secured her release again and its ramifications on her political career. In so doing, I shall trace the latest decision by the government to release Birtukan for a second time in just about two years since her re-incarceration back to a couple of posts on Aiga Forum in January and September 2010 and link it to the abovementioned hint made in public by the Prime Minister and to an article published in the Reporter on 2nd of October 2010, just about 3 days before her actual release, or a couple of days before the decision was made or communicated to the prison officials with a view to showing a pattern in the scheme of things preceding the taking of the decision for her re-release.

What struck me as odd, if not suspicious, was the Prime Minister’s point-blank suggestion that the only sure way for Birtukan to secure her release is to request for pardon again. To the best of my knowledge, the first time the suggestion for entering a plea for pardon for a second time by none other than Birtukan, let alone the possibility, was made in public forums. And the forum was none other than Aiga and the writer was no one but Mekonnen Kassa, Chair of EPRDF Supporters’ Forum in the US, as it turned out to be.

Mekonnen writes "Unless granting Birtukan a pardon is prohibited by law, which I am sure is not the case, Birtukan herself, her family members, or her lawyer are legally authorized to petition for a pardon again. I have read “The Proclamation to Provide for the Procedure of Granting a Pardon” and nowhere in Proclamation No. 395/2004 is Birtukan prohibited from petitioning for Pardon again and again. To the contrary, Article 14, sub Article 1 and 2 stipulate that she has the right to petition for a pardon any time after her sentence became effective, and if her petition is rejected, she can apply again every six month,” and expect to be pardoned, as Jesus Christ said, “Not seven times, but, I tell you, seventy-seven times.” If her family members, her lawyer, or the Ministry of Justice and Federal Prison Commission can petition for pardon on her behalf, then why insist on Birtukan herself applying for pardon again? Couldn’t her mother petition for pardon on behalf of her imprisoned daughter? Hasn’t her mother herself petitioned for pardon? Wasn’t the Ministry of Justice or the Federal Prison Commission, instead of Birtukan, able to enter a plea for pardon on her behalf? The motive is blackmail pure and simple.

Mekonnen drives his point home in no uncertain terms: "If all who claim to care for Birtukan are genuine and as they claim miss her and desperately need her leadership, then the right thing to do is to advise her to petition for pardon and follow through the legal process. And if Birtukan were sincere about her first plea for pardon but believed it did not follow the legal process properly; herein lays her chance to do it the right way. Birtukan herself is the only “master of her fate.”"

Now, we've PM Meles Zenawi speaking before the World Leaders' Forum at Columbia University saying "Given her past practice, I wouldn't be surprised if she asked for pardon again. And given the practice of the government, I wouldn't be surprised if the government were to pardon her again." What is it that has changed since the PM, just last year, told journalists in unequivocal terms that "there will never be an agreement with anybody to release Birtukan. Ever. Full stop. That's a dead issue." Wasn’t it non-starter enough? Is the agreement the government reached with the ‘Council of Elders’ led by Professor Ephraim Isaac to secure release of the prisoner not really “an agreement with anybody”?

In an answer to a question posed to him during the Q&A session at Columbia University, Meles explained that Birtukan “went abroad and issued a statement to the effect that she did not ask for a pardon, and she was not given a pardon. Our pardon law says that if a pardon is sought under false pretenses or given under false pretenses, it is automatically null and void. So if she didn’t ask for a pardon, then the pardon given to her was completely illegal. When she came back from abroad, the police told her that her statement would necessarily lead to her being detained again unless she were to admit that she did indeed seek pardon and was indeed given pardon, then the pardon given to her is legally invalid. She was given a month to think about it… Many friends including ambassadors talked to her to try and convince her…if she denied receiving a pardon, she would be put back in prison. She did not feel convinced that she should retract the statement she issued in Sweden. At that point, we had no option but to detain her.”

On the facts of the case, the PM’s statement is tendentious at best and mendacious at worst. On the merits of his argument, it is simple-minded and ill-advised to believe that the government had been left with no other option than to detain her when, she denied, if at all she did, her petitioning a pardon. As can be gleaned from her apologia entitled ‘Kale’, which she made public just two days before she was thrown back to jail, she underscored the fact that she did never deny her requesting a pardon by signing a document together with her comrades under the persuasion of the ‘Council of Elders’ that mediated the deal that secured her release. As an academic lawyer, I know full well that, first, she was released not as a result of a pardon stricto sensu, but as a consequence of a reconciliation mediated by a ‘Council of Elders’ led by Professor Ephraim Isaac. Second, even if it might be considered as a pardon, a full pardon cannot be revoked once granted and accepted by the grantee unless it is shown to have been 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. Third, 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,” which is reaffirmed in the words of Article 11 of the Procedure of Pardon Proclamation, whose purported chief aim 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.

Therefore, it would seem that these formalities are intended for no apparent reason than to disgrace and humiliate the country’s one and only one rising, young, female political leader in the eyes of the public. In view of this any movement for her release should have set aside any attempt to get her to submit a plea for pardon for the second time at all, or should she do that, under at least less harsh terms and conditions than the present, if it is not possible to secure an unconditional release for her. What should have been done in order to secure her release without compromising her dignity as a human being and integrity as a political leader was for the ‘Council of Elders’ to get the Ministry of Justice and Federal Prison Commission to apply for pardon on her behalf under Article 12(2) of Proclamation No. 395/2004 and avoid giving unnecessary publicity to the embarrassing terms and conditions of her re-release. The Elders Council can get Birtukan’s mother or lawyer to formally file the petition for pardon on her behalf to avoid the embarrassment. It is still mind-boggling how the so-called ‘Council of Elders’ failed to make it a point to impose on both the government and the prisoner to refrain from any act of naming and shaming one another. However, my hunch tells me that the government is incorrigibly irresponsible to abide by any terms and conditions, if any, of the deal and the elder helplessly incapable of imposing them on the former. The elders should be reminded of one cardinal principle of conflict resolution that mediators should be impartial, but not neutral. Being partial means defending one side or the other. Being impartial is working with both parties to a dispute – the mediators’ hearts might go out to that they feel has been wronged, naturally - however, their work is to bring the parties to the table to talk, to get them into dialogue about what they can do to improve the situation. Mediators are not advocates for either side, but for finding common ground: it is not about justice for one but justice for all.

A case in point is when a group of well-intentioned scholars abroad and at home communicated Professor Ephraim Isaac, chair of the so-called ‘council of elders’, of their intention to initiate a process of signing a petition by the public that would be submitted to the President, he warned them: “Please do not interfere with whatever process is going on..... Your message is already throwing a wrench into a process that has gone forward now for a few weeks.... I have nothing else to say at this time” Of course, the legal force of such a petition might be weak as it is not required by the pardon proclamation. But Ephraim’s reaction leaves us wondering what his personal motives are and whether he is full well aware that he might end up in just giving credence to the Government’s wrongdoings.

For those of us who watched ETV, the only national TV, running news of the release of Birtukan, it was clear that she entered a plea for pardon under duress. The story of both of the pardons granted to Birukan on two occasions is easier to tell. The first pardon was part of a larger deal, reconciliation, mediated by the council of elders, whose terms were breached by the Government of Ethiopia in the interest of realpolitik whilst the second was also a deal, but one done between unequal parties, too powerful to deal with and is tantamount to one done under duress pure and simple. Her televised statements, if not confessions, were telling enough of the ordeal she went through.

Another curious piece of writing in the run up to the re-release of Birtukan was that of Ambassador Tesfaye Habisso. The problem with Tesfaye is that he conflates forgiveness with pardon and pardon with reconciliation. Despite our differences on analytic concepts, his grave mistake, albeit not unpardonable, is that he adamantly resists admitting that drawing such distinctions entails legal consequences. I wouldn’t advise him to go to law school at this age of his, though he still persist in adamant defiance of such fine conceptual distinctions I made elsewhere. In his own words, “Does it really matter whether they asked to be pardoned in accordance with the traditional “shimiglina” method (elders’ mediation) or via the modern, legal pardon procedure as long as it secured them clemency and freedom? To me, it doesn’t make a difference at all.”

Having pointed out two of the courses of action that Birtukan might possibly take to secure her release, Ambassador Tesfaye, not unlike Mekonnen Kassa, explicitly opts for the second option. He suggests that “the only reasonable recourse for B. Mideksa now seems legal action to regain her freedom, an up-hill task even for a lawyer like Birtukan, I guess, or to plead again for forgiveness from the President via the Board of Pardons, which seems a more preferable option under the prevailing circumstances.”

Although Tesfaye recommends Birtukan to petition for pardon once again, not every six month unlike Mekonnen, he calls on “all Ethiopians here and abroad … [to] loudly make their united voices heard by sending their humble petition to the FDRE President to re-issue her the “full pardon” that he granted her previously out of compassion and for the sake of her daughter and mother.” If pardon is his preferred course of action, then where in the pardon law are all Ethiopians vested with standing to petition for pardon on behalf of a lifer? Or is it only intended to shift the blame to the President and redirect the public attention to him, rather than, to the Prime Minister?

In order to make his case for the re-granting of a pardon to Birtukan, Tesfaye also indulges in a faulty analogy where he likens her case to that of the Lockerbie bomber who was recently released from prison in Scotland. He writes, “Even the Lockerbie bomber and the Libyan national sentenced to 27 years behind bars by the Scottish supreme court for an atrocious crime of killing over 270 persons was set free and sent back to his homeland to receive a tumultuous welcome by the Libyan people, including their leader Col. Gadaffi. It was indeed a great gesture of compassion to the culprit extended by the people of Scotland and their judiciary;” What’s the case of the PanAm monster got to do with Birtukan? Maybe, the closest analogy to he could have drawn was Daw Aung San Suu Kyi and the argument by analogy he could have made was that it was illegal for Myanmar to incarcerate Suu Kyi as was Birtukan for Ethiopia, but he was wiser not to indulge in such a risky analogy.

At any rate, the decision to release Judge Birtukan from jail once again might have helped the Government of Ethiopia to save face for a brief period of time but it is still unclear if the decision has helped it overcome one of the hurdles it needlessly put in the way of the ongoing democratization process since the demise of totalitarianism in 1991, inasmuch as it does not ensure the existence of political pluralism, free press and independent judiciary in the country.

In short, Birtukan was never the master of the ship in her second sailing out of Qaliti as well as her first as Mekonnen or the smart Prime Minister would have us believe. Apparently, in both of her sailings out of prison, the master of the ship was none other than the Prime Minister. One thing that the granting of pardon in both instances proved to all of us is nothing but the unbearable lightness of pardons. In spite of the cruel and inhumane treatment Birtukan received in the hands of her jailors, one thing that is certain is that she will remain to be a source of inspiration for all who work to advance basic human rights in Ethiopia and the world over.