Ethiopia’s Somalia Policy: A Very Brief Critique

 

Part II of the Foreign Affairs and National Security Policy and Strategy (hereinafter referred to as the 'FANSPS') of the Federal Democratic Republic of Ethiopia, under a section devoted to explicating Ethiopia's policy towards Somalia, which goes by the same title, sets forth, in clear and unequivocal terms, the country's official foreign and security policy position. In the words of the FANSPS: "Our fundamental policy remains to persistently work towards the birth of a peaceful and democratic Somalia. But in light of the continuing instability, the policy we pursue should essentially be a damage-limitation policy to ensure that the instability does not further harm our country." (Italics mine) To this end, the FANSPS identifies three distinct, and yet inextricably intertwined, damage-limiting strategies, namely: (1) Extending assistance to the relatively stable parts of Somalia such as Somaliland and Puntland to enable them to continue enjoyment of the relative peace and stability they have managed to maintain; (2) Increasing Ethiopia's defense capability to defend and foil any terrorist or extremist attacks launched from Somalia; (3) Weakening and neutralizing any force coming from any part of Somalia in cooperation with the Somali themselves and the international community. Though, it appears to point out three different damage-limiting strategies, each of them are inextricably intertwined in that the second and third strategies boil down to one and the same strategy in the final analysis, i.e. resort to force or reliance upon military means, while the first may still consist in military assistance.

 

It should be borne in mind that Ethiopia's Somalia Policy, as can be gleaned from a close perusal of the FANSPS, takes the form of what I might call a 'negative policy', rather than a 'positive policy' inasmuch as it concerns itself with the need to primarily limit the harm arising from the instability in Somalia. By so doing, it relegates the FANSPS's fundamental policy consideration of "persistently work[ing] towards the birth of a peaceful and democratic Somalia" to a secondary place. Therefore, it appears that Ethiopia's Somalia Policy is misguided insofar as it downplays the role the positive policy can play in achieving the objectives of the negative policy, officially known as the 'damage-limitation policy'. On top of this, in order to demonstrate how others' misconceived perceptions of Ethiopia's defense capability resulted in unprovoked aggressions in the past, the FANSPS invokes Somalia under the leadership of Siad Barre along with Eritrea. According to the FANSPS, "Some time ago the Siad Barre regime in Somalia launched an attack on Ethiopia on the presumption that Ethiopia was unable to offer a united resistance and that it would break up under military pressure." In this regard, it is interesting to note the continuity in Ethiopia's foreign and security policy towards Somalia, despite the change in regime. The bottom line is that Somalia has never been taken off Ethiopia's security agenda.

 

That said, Ethiopia's incursion into Somalia is a clear indication of its strategy of conducting foreign policy through war, in lieu of conventional diplomacy, albeit war had to be kept to the minimal. It reminds us of Clausewitz's famous dictum: "[w]ar is merely the continuation of policy by other means." Thus, one has to say that Ethiopia's decision to intervene in Somalia remains to be its biggest national security and foreign policy blunder, though it is hard to deny that she has had legitimate national security concerns in Somalia. This is so, because there were other ways and means of dealing with its security concerns short of resort to force. One was for Ethiopia to order the ENDF to keep on high alert by assuming a defensive military posture in keeping with a carefully crafted Grand Strategy and Somalia Strategy taking into account all elements of the power at its disposal, viz., diplomatic, informational, military, economic, intelligence, legal, and financial. Another was to adopt conventional deterrence as a military strategy to prevent aggression. In this connection, strategists must keep in mind one major limitation on deterrence, i.e. effective deterrence only works against states or groups that fear the consequences of retaliation. Suicidal states or groups cannot be deterred—they are willing to suffer severe damage or death in response to an attack, so threats of retaliation are rendered meaningless. A further strategy was for Ethiopia, in cooperation with the US, IGAD, and AU, to mediate between the UIC and the TFG so that they can reach a comprehensive peace agreement acceptable to both sides. Commenting on the non-military option, John Prendergast writes: "Had Ethiopia, the United States, and other regional powers focused on brokering a deal between the Islamic Courts and the transitional government, the current civil war may have been avoided."

 

If Ethiopia had embraced what Owen Harries calls the 'prudential ethic' as a signpost to international relations, it would not have opted for the use of force in a preemptive strike a la the Bush doctrine with a view to neutralizing potential security threats emanating from the Islamists in Somalia. According to Harries, the just war theory, assuming that war is inevitable, provides an important prudential ethic. The aim of the theory is two-fold: on the one hand, it prohibits an unjust war, by laying down rules for the determination of the legitimacy of use of force (jus ad bellum), and makes war less savage, by establishing rules of conduct (jus in bello), on the other. Hence, a resort to force must have a just cause, in that it is resorted to in response to injustice, is authorized by a competent authority, and is motivated by right intention. It must meet four prudential tests in that it must be expected to produce a preponderance of good over evil, have a reasonable chance of success, be a last resort and be expected to result in a state of peace. The requirements of jus in bello are that when force is resorted to, it must be discriminate and proportional.

 

Leaving the issue of legitimacy aside, (not least because it was invited by the TFG) Ethiopia's incursion into Somalia hardly passes the four prudential tests. At least, we have every reason to doubt that the military intervention was a last resort and was expected to result in a state of peace. With the benefit of hindsight, it has become crystal-clear that Ethiopia's resort to force failed to bring about a state of peace in Somalia. Besides, reports that Ethiopia violated the requirements of jus in bello abound. For instance, in March and April 2007 Ethiopian soldiers allegedly violated international humanitarian law by using heavy artillery and rockets to fight an insurgency in Mogadishu, killing hundreds of civilians and displacing up to 400,000 people. Though Ethiopian troops have since withdrawn from Somalia, Prime Minister Meles Zenawi stated in June 2009 that the country has not ruled out a future redeployment. According to David Shin, "both the United States and Ethiopia followed a misguided policy in Somalia."

 

Though analysts, worth their salt, contend that Ethiopia fought in Somalia as proxy for the US, I agree with David Axe's claim that "Ethiopia had received significant help — even urging — for its invasion." However, it has to be noted that a copy of the actual wikileaked cable has not yet been produced and still remains to be seen if further wikileaked cables detailing the form and quality of the American support whether military intel, hardware, personnel or moral urging, if any, provided to the ENDF in the Somalia operation can be produced anytime soon. Granted, both Ethiopia and the US have had their own, albeit concurrent, legitimate national security interests in Somalia. As Terrence Lyons aptly put it, "it's important to note that Ethiopia moved into Somalia not as the puppet or proxy for the United States. Ethiopia had its own very specific national security interest relating to Somalia. Ethiopia saw stepped-up attacks on Ethiopia as originating in Somalia, aided by Eritrea. Ethiopia saw this as a real threat to the Ethiopian state and region. That´s why Ethiopia invaded, I believe, rather than just because the United States said ´Go get al-Qaeda.´" But the crux of the matter is whether they had to pursue their national security interests in the manner they did, i.e. through war.

 

The Ethiopian invasion, instead of improving, aggravated the status quo, and turned out, in the final analysis, to be disastrous as long as it eventually emboldened the threat emanating from the very Islamists Ethiopia had hoped to neutralize. It rallied Somalis of all clannish allegiance and political persuasion against the invaders, ultimately boosting support for extremist Islamic groups that now had a clear enemy in the invaders and their American allies. Violence reigned throughout the two years of Ethiopian occupation. In what seems a rare admission of guilt, Donald Yamamoto, the former US ambassador to Ethiopia reportedly said in March 2010, "We've made a lot of mistakes and Ethiopia's entry in 2006 was not a really good idea."

Anarchy, Terrorism, and Piracy in Somalia: Revisited

  
 

Alemayehu Fentaw†

Somalia has long been anarchic, hitting rock-bottom claiming #1 in The Fund for Peace´s most recent Failed States Index. It had no functioning central government in the past two decades, albeit 14 attempts to reconstitute the state had been made since the ouster of the Cold War dictator Mohammad Siad Barre in 1991 after 22 years in power. All such efforts had been doomed to fail and whether or not the latest initiative shall succeed only remains to be seen. One thing is crystal clear at this point in time, nonetheless, that Somalia's ongoing state-building project has to be supported, rather than fought, by the international community in general and to be more specific, by the US, EU, AU, and countries of the Horn of Africa sub-region lest it should continue to be a hotbed of terrorism and piracy. 

Despite the hitherto neglect, the Somalia issue managed to come into the limelight of international affairs as a result of the sudden surge in piracy in the waters of the coast of Somalia. As Ahmedou Ould-Abdallah, the UN special envoy for Somalia, put it, "the problem of piracy has opened the eyes of those who have forgotten Somalia." The waters off the Somali coast are the most dangerous in the world - accounting for a third of the world's pirate attacks. The coast of Somalia has become the world´s worst piracy area only since 2007; though foreign fishing trawlers have been aggressively exploiting Somalia´s rich and unpatrolled waters since 1991 at the expense of coastal fishing villages. Illegal fishing has undoubtedly decreased due to the effectiveness of Somali pirates. In 2008, 40 out of 111 attacks succeeded; Somali pirates carried out a record number of attacks and hijackings in 2009, despite the deployment of international warships to thwart them and a United Nations Security Council resolution to bring the fight against them to shore. According to the Piracy Reporting Center of the International Maritime Bureau, pirates operating across the Gulf of Aden and along the coast of Somalia had attacked 214 vessels in 2009, resulting in 47 hijackings. In November 2010, the pirates held more than 25 foreign ships and 500 people hostage, according to Ecoterra International, an organization with offices in East Africa that keeps track of Somali piracy. Expert estimates has it that the Somali pirates netted more than $100 million, an astronomical sum for a war-racked country whose economy is in tatters.

It is worth noting that the international community launched a large naval operation in response to the widespread pirate attacks in the waters off the coast of Somalia. Naval powers from around the globe have dispatched a fleet of warships to the Gulf of Aden to fight piracy including, (i) "NATO Counter Piracy Operations" (Ocean Shield) off the Horn of Africa, (ii) the "African Partnership Station" (APS), designed by U.S. Naval Forces Europe/Africa to foster enhanced maritime safety and security in Africa, and (iii) the European Union Naval Force (NAVFOR) Somalia – "Operation ATALANTA". The presence of this huge naval fleet has managed to thwart attacks on merchant ships in the Gulf of Aden. The fact that NATO's Operation Ocean Shield and EU NAVFOR's Operation Atlanta have both been extended until December 2012 shows that the military option will continue to be the predominant mode of containing piracy off the coast of Somalia by the Western powers for some years to come. The United Nations Security Council on 27 April 2010 unanimously adopted the Russian sponsored Resolution 1918 (2010), which called on all states to criminalize piracy under their domestic laws. The Resolution also requires the UN Secretary‐General to report to the Security Council within three months on "possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy." This indicates that all efforts are geared towards prosecution.

Besides, at a recent conference in Brussels attended by the leadership from the UN, the EU, the AU, the Arab League, and the Organization of the Islamic Conference (OIC), the international community pledged $213 million toward strengthening Somali security forces. However, the question here is whether these measures are enough to address the piracy epidemic. The bone of contention is that the so-called antipiracy military measures are myopic and what the international community needs is a far-sighted long-term state-building agenda onshore in Somalia, promoting traditional peacemaking processes among the diverse conflicting Somali clans and sub-clans. In this regard, moderate Islam no doubt can provide a common ground for building consensus thereby easing the daunting task of entrenching a well-functioning and all-inclusive government.

Enough's recent strategy paper, entitled 'Beyond Piracy: Next Steps in Somalia', authored by Ken Menkhaus, John Prendergast, and Colin Thomas-Jensen emphasizes the aforementioned point. It analyzes the current situation in Somalia and provides recommendations for how the international community in general and the United States in particular can help Somalis address multiple security threats that put their country, the region, and even far-flung countries at risk. It argues that while short-term measures to curb pirate attacks are certainly necessary, the Obama administration must not allow the piracy problem to distract it from putting in place a long-term strategy to help Somalis overcome their political predicament, i.e anarchy by enabling them to form a viable body politic which, with measured external support, can combat the twin problems of piracy and terrorism as well as promote peace and reconciliation. It describes the irony of the problem of piracy as: "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." It goes on to say that "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." The only viable and legitimate option would be for the TFG to prosecute piracy onshore, while leaving no room for the external actors, apart from helping in building the capacity of its security apparatus as well as in the ongoing peacemaking and peace-building initiatives.

The piracy epidemic in the Gulf of Aden waters is merely a reflection of the anarchy onshore. Piracy, like terrorism, is reflected by a deeper malaise. The root causes behind the mushrooming piracy off the coast of Somalia are state collapse, humanitarian crisis, abject poverty, and the ongoing exploitation of the waters by global factory fishing vessels that left very few viable livelihoods for anyone in Somalia these days. In order to capture the essence of this problem, let´s try to consider the Somali narrative on the ongoing piracy as told by Ken Menkhaus. The narrative "sees it is justifiable protection of Somali shores from illegal fishing, and … sees the piracy as a minor problem we are overreacting to. For instance -- they say at present there is a massive humanitarian crisis in Somalia, 3.5 million people at risk, and the UN is calling for $950 million in aid. We have only provided a fraction of that aid. Yet we're willing to mobilize the world's navies at considerable cost to stop a $20-40 million piracy problem. That's how Somalis see it." Such being the nature of the piracy problem, it calls for a truly holistic approach covering the political, security and humanitarian dimensions. Efforts to prosecute cases of piracy should also include the issue of illegal fishing and toxic dumping. Perpetrators of these crimes are no less guilty than pirates. In this regard, a practical proposal would be for the UN to enjoin governments whose national are engaged in fishing off the coast of Somalia to pay license fees to the TFG. 

Downplaying the piracy problem, Menkhaus contends that "the United States and the international community have overstated the threat of Somali piracy. Somali hijackers earned between $30 and $40 million in ransom in 2008, a handsome sum of cash in one of the world´s most impoverished countries, but a paltry sum for international shipping -- not even enough to appreciably raise insurance premiums for ships passing through the Gulf of Aden." Explaining away naval military operation as the dominant normative mode of engagement in Somalia, as he logically should, Menkhaus argues "Most shipping companies prefer to live with the current piracy modus vivendi. The risk of any one ship being pirated is still low; their crews, ships, and cargo are returned safely; and the ransom fees are manageable. A military rescue, by comparison, is much riskier to the crew and will raise insurance costs considerably, as insurance companies will have to factor in the possibility of injuries and loss of life to crew and ensuing lawsuits." For him, reasons that continued to justify the military response to the piracy problem are fear of copycat piracy elsewhere, fear of al Qaeda adopting the practice, and commitment to the principle of open seas, rather than the ransom amounts by themselves. Another reason, he pointed out, why the military response remained unwarranted is the practical impossibility to patrol a zone of 2.5 million square miles. Granted, piracy has over time grown in scope to include larger criminal networks, thereby posing a threat to efforts to bring an end to conflict in Somalia. As such, the situation calls for a comprehensive approach to addressing the root causes of the Somali predicament, namely state failure, abject poverty and humanitarian crisis, including strategies for effective environmental conservation and fisheries management.

Turning to the problem of terrorism, the military option equally failed to bring about lasting solution in Somalia. All military adventures, from the American Black Hawk Down in the 1990s to the December 2006 Ethiopian blitz, were doomed to fail. Although I beg to differ with all analysts who, worth their salt, claim that Ethiopia fought in Somalia as proxy for the US, I agree with David Axe's claim that "Ethiopia had received significant help — even urging — for its invasion." However, it still remains to be seen if further wiki leaked cables can provide us with details of the suspected American support and urging, if any. Both Ethiopia and the US have had their own, albeit concurrent, legitimate national security interests in Somalia. As Terrence Lyons aptly put it, "it's important to note that Ethiopia moved into Somalia not as the puppet or proxy for the United States. Ethiopia had its own very specific national security interest relating to Somalia. Ethiopia saw stepped-up attacks on Ethiopia as originating in Somalia, aided by Eritrea. Ethiopia saw this as a real threat to the Ethiopian state and region. That´s why Ethiopia invaded, I believe, rather than just because the United States said ´Go get al-Qaeda.´" But the crux of the matter is whether they had to pursue their security interests the way they did, that is: through war. The Ethiopian invasion, instead of improving aggravated the status quo, turned out to be disastrous as long as it eventually emboldened the threat emanating from the very Islamists Ethiopia had hoped to neutralize. It rallied Somalis of all clannish allegiance and political persuasion against the invaders, ultimately boosting support for extremist Islamic groups that now had a clear enemy in the invaders and their American allies. Violence reigned throughout the two years of Ethiopian occupation. In what seems an admission of guilt, Donald Yamamoto, the former US ambassador to Ethiopia reportedly said in March "We've made a lot of mistakes and Ethiopia's entry in 2006 was not a really good idea."

For instance, Johan Galtung- who is widely deservedly considered to be the Father of Peace Studies- claims, in a recent piece, that Ethiopia received payment from the US in exchange for its incursion in to Somalia. I dismiss Galtung's allegation that Ethiopia was paid by the US to attack Somalia as unsubstantiated, if not credulous. Galtung was not alone in entertaining the idea that Ethiopia obtained a pecuniary gain from the US for its incursion in to Somalia. A certain Eric Margolis also wrote in the Huffington Post that "Ethiopia received generous cash rewards from Washington for its invasion." The issue of American support aside, one has to be stupid enough to believe that Ethiopia invaded Somalia just because it was paid by the US or to believe that Ethiopia did what it did in Somalia in a bid to fight an American war on the Somali soil before engaging itself in a 'securitization calculus'. This, by no means, is meant to be a defense of the Ethiopian invasion, nonetheless. As to the merit of Ethiopia's decision to invade Somalia, it was nothing short of foolhardy and shall always remain to be its biggest foreign policy blunder, though I don´t gainsay its legitimate national security interests, given that there were other ways and means of safeguarding its interests short of use of force, not to mention the issue of whether the requirements of just war were fulfilled. Ethiopia could have adapted a defensive, rather than an offensive, military posture insofar as it affords her a no-less effective aggression neutralization mechanism.

Moreover, Galtung´s simpleminded characterization of Ethiopia and Somalia as Christian and Islamic respectively lends itself easily to a fallacious interpretation of the nature and causes of the conflict as it gives the impression that the major factor that plays itself out in the Ethio-Somalia conflict is religious difference, which is an outright reductio ad absurdum. First, FDR Ethiopia, unlike Imperial Ethiopia, is not a Christian state, as secularism is one of the pillars on which its new politico-legal order has been founded. Second, Ethiopia, in terms of its religious composition, is a country where almost half of its populace is Muslim. In the words of Terrence Lyons: "While many portray Ethiopia as a Christian nation, the country in fact has roughly equal numbers of Christians and Muslims. Ethnic and national identity rather than religion has proven to be the most important social cleavage. It is possible, of course, that religious divisions will grow as an additional spillover from Ethiopia´s incursion into Somalia. This is another reason why settling this conflict is imperative." 

Commenting on the futility of military intervention in Somalia by drawing a parallel with the war in Iraq, Sadia Ali Aden said, "Like the Iraq war, the military solution is a failed solution. The military solution will only discredit if not altogether alienate the moderate elements, radicalize insurgents, and perpetuate bloodshed and chaos. Therefore, it seems that the only way toward a win-win solution is through diplomacy and by adopting an alternative, constructive policy toward Somalia." Writing in the same vein, Donald Levine also suggested "Ethiopia's incursion into Somalia, with US concurrence, if not active backing, is likely to have a similar effect. Our goal should be to strengthen the moderate Somalis there, not undermine them through arousing anti-Ethiopia and anti-US hysteria."

At any rate, the international community in general and Ethiopia and the US in particular should bear in mind the need to have a full grasp of the inner logic that governs and perpetuates anarchy in Somalia and its workings. The twin problems of piracy and terrorism are symptoms of the deeper and broader problem in Somalia, namely anarchy or state failure. Any effort to address piracy or terrorism in isolation from its wider context would not produce the desired results. If a genuinely viable solution to the twin problems of piracy and terrorism is to be found, the international community must primarily focus on helping the Somalis address their deeper malaise themselves. Commenting on the piracy problem, Ken Menkhaus writes "the Somali piracy epidemic is unquestionably an on-shore crisis demanding an on-shore solution. Naval operations to interdict and apprehend pirates will help, but cannot possibly halt the daily quest of over a thousand gunmen in such vast waters when the risks are so low, rewards so high and alternatives so bleak in desolate Somalia." Menkhaus argues that "The solution will ultimately have to be on-shore, with more effective government in Somalia." In keeping with Menkhaus's proposal, Michael Shank argues that if we can find stability on land first, and then order will return to the seas. 

What transpires from the foregoing is the fact that the key to solving the twin problems of piracy and terrorism on- and off-shore is to promote a negative peace agenda on-shore and off-shore buttressed by a positive peace agenda on-shore capitalizing on the gains of the Transitional Federal Government while ensuring its inclusiveness. On the former, the West must rally as long as it has all the resources if it has the requisite political will. Countries of the Horn of Africa must build consensus as to the necessity of getting over the prevalent anarchy in Somalia if their effort geared towards realizing a robust and effective regional integration, be it economic or political, is to bear fruit as long as it is in the best interest of the sub-region as a whole and its members as individual states. After all, the Somalis are such a widely dispersed population throughout much of the sub-region, and hence, the stability and prosperity of Somalia is a precondition for the enjoyment of stability and prosperity in the sub-region in general and to be more specific, in Ethiopia, Djibouti, and Kenya.

† The writer, Alemayehu Fentaw (LLB, MA summa cum laude), is an academic lawyer and public policy analyst based in Addis Ababa, Ethiopia. He can be reached at alemayehufentaw@yahoo.com.

Ethiopia: Reflections on the Crusade against Real Estate

Alemayehu Fentaw^†

 

What motivated me to write this piece is the recent measures taken by the Addis Ababa City Administration against real estate developers to expropriate their lease holdings. One thing that strikes me as odd is that actions took on the form of a campaign at best and a crusade at worst, pursued with the enthusiasm of a zealot. As a word of caveat, I don't gainsay the government's desire to combat against wasteful rent-seeking and unproductive activities on part of the real estate developers. Again, I don't deny that there remains a class that pillages, seizes and exploits in broad day in Ethiopia today. Nevertheless, in waging the campaign, the role the government played in creating and sustaining this squalid state of affairs has been reckoned without. Undoubtedly, lack of transparency in public affairs encouraged lease-offs of urban land to the well-connected leading to a speculative accumulation of large non-productive land holdings. The recently launched campaign against real estate therefore leaves much to be desired. Above all, the City Administration should remind itself of the fact that this is a country of rule of law and not of rule of zeal.

 

Constitutional and Statutory Guarantees against Expropriation in Ethiopia

The Constitution of the Federal Democratic Republic of Ethiopia, under its Article 40(6), provides that "… [the] government shall ensure the right of private investors to the use of land on the basis of payment arrangements established by law", subject to the proviso under sub-article (8) of same, which reads: "Without prejudice to the right to private property, the government may expropriate private property for public purposes subject to payment in advance of compensation commensurate to the value of the property." In keeping with the Constitutional rule, Article 21 of Proclamation 280/2002 provides for investment guarantees. Sub-article (1) of same stipulates that: "[n]o investment may be expropriated or nationalized except when required by the public interest and then, only in compliance with the requirements of the law" whilst sub-article (2) provides that: "[a]dequate compensation, corresponding to the Prevailing market value shall be paid in advance in case of expropriation or nationalization of an investment for public interest." Accordingly, the government may expropriate property for public interest, strictly according to the law and only after making advance payment of adequate compensation corresponding to the prevailing market value of the investment.

 

Article 3(1) of Expropriation of Landholdings for Public Purposes and Payment of Compensation Proclamation 455/2005 provides that "[a] woreda or an urban administration shall, upon payment in advance of compensation in accordance with this Proclamation, have the power to expropriate rural or urban landholdings for public purpose where it believes that it should be used for a better development project to be carried out by public entities, private investors, cooperative societies or other organs, or where' such expropriation has been decided by the appropriate higher regional or federal government organ for the same purpose." Sub-article (2) stipulates that "Notwithstanding the provisions of Sub-Article (I) of this Article, no land lease holding may be expropriated unless the lessee has failed to honor the obligations he assumed under the Lease Proclamation and Regulations or the land is required for development works to be undertaken by government." Pursuant to Article 2(5) of same, 'public purpose' denotes "the use of land defined as such by the decision of the appropriate body in conformity with urban structure plan or development plan in order to ensure the interest of the peoples to acquire direct or indirect benefits from the use of the land and to consolidate sustainable socio-economic development."

 

In addition, the Re-enactment of Urban Lands Lease Holding Proclamation 272/2002, under its Article 15(1), spells out three distinct grounds for termination of lease-hold. It stipulates that the lease-hold of urban land shall be terminated: (a) where the lease-hold possessor has failed to use the land in accordance with Sub-Article (1) of Article 12; (b) where it is decided to use the land for a public interest; or (c) where the period of lease is not renewed in accordance with Sub-Article (1) of Article 7. Firstly, a lease-hold can be terminated in situations where the holder violates Article 12 (1), which stipulates that "Any person, to whom lease-hold of urban land is permitted, must begin to use the land for the prescribed activity or service within the period of time set by Regulations to be issued by Region or City Government." Thus, a lease-holder cannot put his lease-hold to any use, activity or service other than the authorized. However, if a lease-holder wishes to put his lease-hold to a different use than for which he has had authorization, he must obtain permission for conversion pursuant to Sub-Article (2) of same.

 

Secondly, a lease-hold can be terminated on account of a decision by the concerned administration to use the land for development works to be undertaken by the government in pursuit of public interest. 'Public interest' is defined, under Article 2(7), in the same manner as in the Expropriation Proclamation, as "that which an appropriate body determines as a public interest in conformity with Master Plan or development plan in order to continuously ensure the direct or indirect usability of land by peoples, and to progressively enhance urban development." It follows that expropriation of urban land is permissible as long as it is for the implementation of the master plan or urban development plan, on condition that the expropriated land turns out to be beneficial, be it directly or indirectly, to the public. Finally, a lease-hold is terminated automatically upon expiry of the lease term unless it is renewed for another term.

 

With respect to the consequences of termination of lease-hold on the ground that
the lease-holder failed to use the land in accordance with Article 12 (1), Sub-Article (2) of same provides that "The lease payment shall be returned, subject to the reduction of costs incurred and penalty fee, where the lease-hold of urban land is terminated in accordance with Sub-Article (1) (a) of this Article. Penalty may not, however, be due where the land fell short of use because of force majeure set forth under Article 1793 of the Civil Code." Therefore, in cases of termination on account of failure to honor obligations on part of the lease-holder, refund of an amount equal to the lease payment less costs and penalty must be made to the lessee by the concerned administration, provided that the lessee could not make use of the land for any reason short of force majeure.

 

With regard to the legal effect of termination of lease-hold on the ground that
the lease-hold is needed for development projects in the pursuit of public interest, Sub-Article (3) stipulates that "Where the lease-hold of urban land is terminated in accordance with Sub-Article (1) (b) of this Article the lease-hold possessor shall be paid commensurate compensation in conformity with the pleadings institution procedure set forth in Article 17. With respect to the consequence of termination of lease-hold on account of failure to have it renewed, Sub-article (4) provides: "Where the lease-hold of urban land is terminated in accordance with Sub-Article (1) (c) of this Article, the lease-hold possessor must hand over the land to the body which gave it by removing within one year the property he has on the ground." And Sub-article (5) confers on the body, which handed the urban land over to the lease-hold possessor, the power to take over the land, together with the property thereon without any payment, where the latter has failed to remove the property on the ground within the period of time set forth in Sub-Article (4) of this Article. It can also order the Police where it finds it necessary for the execution thereof.

 

Before winding up my sketchy elucidation of the law governing urban landholdings in Ethiopia, I should like to draw particular attention to an important right that the law entitles the lease-holder to, despite the gross neglect and disregard it suffered recently. Any lease-holder is entitled to transfer, or charge an encumbrance on, his lease right. Article 13 (1) stipulates: "Without prejudice to Article 6 and Sub-Article(1) of Article 10, any lease-hold possessor may transfer, or undertake a surety on, his right of lease-hold; and he may also use it as a capital contribution to the amount of the lease payment he has made." This right is not limited to the lease-holder, nonetheless. It also extends to the transferee or mortgagee. Sub-Article (3) stipulates that "A person, who has the right of surety, may make use thereof by transferring the right, the building on the land and facilities accessory to it according to law or by using it on his own where the person undertaking the surety has failed to perform his obligation in the contract of suretyship, or where he is declared by court that he has proved to be bankrupt." So much for the law.

 

The Crusade against Real Estate Developers

Citing a statement from the Addis Ababa City Administration, New Business Ethiopia reported that a total of 923,380 square meters of land in different sub-cities was grabbed unlawfully by about 23 real estate developers. In response, the administration launched an all-out campaign against real estate developers for the reclamation of such unlawfully held land to the hitherto-unheard-of land bank in the first week of November 2010. The real estate developers targeted by the administration include, among others, Sunshine Real Estate (sister company of Sunshine Construction Company), Ayat Real Estate, Gad Real Estate, Michael Real Estate, Satcon Construction Company, Berta Construction, and Gift Real Estate.  

Reportedly, Bole, Yeka, Nefas Silk Lafto, Kolfe Keranyo are among the major sub-cities of Addis Ababa where significant number of illegal land gabbing took place. According to news reports, in Bole Sub-city alone, Sunshine Real Estate has taken 35,000 square meters of land illegally. In the same sub-city, Gad Real Estate has allegedly grabbed 14,000, whilst Michael Real Estate and Satcon Construction have taken 13,000 and 12,000 square meters of land illegally. In Yeka Sub-city, Berta Construction has allegedly grabbed 33,100 square meters of land unlawfully, followed by Sunshine and Gift Real Estate Company, which took 21,000 and 10,048 square meters of land respectively.

According to Gubae Gundarta, Haile and Alem Real Estate Company, owned by the world-renowned athlete Haile Gebreselassie and his wife, has also been a subject of the expropriation measure taken by the city administration recently. Haile and Alem Real Estate Company acquired 40,000 square meters of land from the city administration on a basis of lease agreement on the 7^th day of October 2005. The blue-print of 38 villas and 224 condos to be constructed on the property located in Bole Sub-city's Kebele 18, has already been taken care of by Gerrita Consultancy. It was when Haile and Alem Real Estate Company was gearing up for construction that a dispute arose between the former and Addis Real Estate over boundaries between their respective adjacent landholdings. Gundarta quoted Haile: "We got the plots of land demarcated only this week, October 26, 2010. It means four years after the land was actually leased out to us. And then, they confiscated the land and all documentation pertaining thereto saying we haven't undertaken the business soon enough. This is not legal."

 

Groum Abate, a staff writer at Capital,
in his piece entitled 'Real estates swindle banks hundreds of millions', contends that banks will not be able to recover loans they disbursed to real estate developers as a result of the city administration's reclamation of the over 200,000 square meters of land holdings, which had served as collaterals. At the minimum, several private banks will lose more than four hundred million birr in loans to only four real estate developers after the Addis Ababa City Administration reclaimed their holdings. The real estate developers allegedly used their holdings illegally as collateral to secure bank loans, albeit there is nothing in the law that prohibits lease-holders from furnishing their right of lease as collateral to financiers.

According to the City Administration, only 18 percent of a total of 5.9 million square meter of land distributed to 125 real estate developers since 1997 is used properly, whilst the rest of the plots are transferred to third parties without any construction being built or used as collateral for loans in contravention of the land law.
Over two million square meters of plot from different real estate developers has already been taken back. This accounts for over 33 percent of the total amount of land given for real estate development. The administration claims to have expropriated over 1.5 million square meters from real estate developers that allegedly failed or refused to start construction within eighteen months. Besides, the city reclaimed more than 500,000 square meters of plot that has allegedly been held illegally by real estate developers. In the administration's estimation, the city would have raised over 6 billion birr had it leased the 2 million square meters at an average rate of 3,000 ETB per square meter.

Concluding Remarks

In the course of the crusade, due care has to be taken to respect the principle of fairness. First and foremost, the city administration has to see to it that the measure is taken in accordance with the law. Second, the accused real estate developers must be given fair hearings, prior to the city administration taking the measure of expropriating their landholdings and demolishing constructions, where the alleged unlawful urban land lease-holders show to its satisfaction that they possess duly signed and sealed lease-hold title-deeds thereof and have not yet failed to honor the obligations they assumed under the lease proclamations and regulations. Nevertheless, a blanket measure to expropriate lease holdings without a showing that such holdings are unlawful amounts to not only a violation of the relevant statutes but also of the Constitution of the Federal Democratic Republic of Ethiopia.

 

To that end, the city administration has to make decisions on a case-by-case basis. Hence, it has to distinguish between the two category of cases of termination of lease-hold that are likely to arise, namely: cases of termination on account of failure to honor obligations on part of the lease-holder, on the one hand, and cases of termination on account of a decision to use the land for development works in the interest of the public, on the other hand, on the bases of the abovementioned three legal grounds, excluding the third ground which is unlikely to give rise to a dispute in the short- and medium-term. Besides, the administration should be able to distinguish between compensable and non-compensable termination.

 

Moreover, judicious and level-headed decisions have to be reached lest it should create a sense of insecurity of investment in the minds of our investors, whether actual and potential, already engaged or wishing to engage in real estate development in the country. Furthermore, the administration should not lose sight of the interests of third parties, including banks and buyers that will be adversely affected as a result of such measures and the grave implication they will have on the financial sector. For instance, one can reasonably expect the expropriation measures to result in a proliferation of lawsuits, adding an extra burden to courts that are already congested with backlogs, not to mention the ensuing immense litigation costs, as long as aggrieved parties, whether developers or their clients, are likely to file suits any time soon. It is also not clear enough if our private commercial banks can survive the huge financial losses they sustained as a result of the expropriation measures taken against the real estate developers who borrowed funds by undertaking surety on their rights of lease-hold and consequent civil suits and if their probable failure might not affect the growth rate, if not the macroeconomic stability, of our economy. After all, as Access Capital Research 2010 Sector Report on Real Estate put it, "had it not been for the expansion of this sector and the closely affiliated construction sector, Ethiopia would not have registered double-digit economic growth in the past five years."

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.

A Bogus Call for a Paradigm Shift - Ethiopia’s Foreign Affairs and National Security Policy and Strategy

The Ministry of Foreign Affairs Responds to Alemayehu Fentaw's Critique of Its Policy



It has been more than seven years since the current Foreign Affairs and National Security Policy and Strategy was issued by the Government of the Federal Democratic Republic of Ethiopia. It was adopted following extensive public discussions of the draft document, some aired and televised. At various times, different institutions have held discussions on this Policy and Strategy document. It’s been translated and made widely available in English, and is available on the website of the Ministry of Foreign Affairs. It is written in a language accessible to the general public. The fact that the Foreign and National Security Policy and Strategy has been debated openly and made widely available to the general public is, in itself, already a radical change for a country that used to treat all foreign affairs documents and communications as top-secret.

Despite this, some appear to have found it difficult to grasp the true tenets of this transparent policy instrument, evaluate its worth on merit or measure it by implementation. The fact that the document has been in the public domain from inception has, of course, encouraged comment, often critical, from all sectors of society. This is appreciated, and welcome, but constructive criticism of this, as of any policy instrument, does require it should be read in its entirety. One has to say, for example, that Alemayehu Fentaw (Ethiopia’s Foreign Affairs and National Security Policy: The Case for a Paradigm Shift, November 2009, www.aigaforum.com) doesn’t appear to have read the Policy and Strategy Document very closely or in great detail before indulging in parallels and analogies with previous regimes in Ethiopia. His comments are in fact widely disconnected from the content and reality of the policy instrument. He appears to have drawn from the archives of the past rather than the current day realities of Ethiopia’s foreign and national security considerations. It isn’t necessary to treat his brief commentary point by point, but it does offer the opportunity to recall the main tenets of Ethiopia’s Foreign Affairs and National Security Policy and Strategy, and its achievements.

The Foreign Affairs and National Security Policy and Strategy has two major parts. The first lays the foundation of the policy instrument. It contains the principles, values, objectives and strategies that underpin the entire instrument. The second part explicates and expounds the historical value and meaning of Ethiopia’s relations with third parties, and provides guidance on how these relationships should best be handled. This, the most detailed section, should of course be tempered by the understanding that some, if not most of the section, can and will be influenced most significantly at times by ongoing developments around the world or in specific countries and organizations.

The first part of the Policy and Strategy is critical to help refocus the undivided attention of the country on the attainment of economic development and democratization as central to ensuring the stability and continuity of Ethiopia as a country. Democracy and development are questions of survival. For a country as rich in diversity of nations, nationalities and religions as Ethiopia, the establishment of democratic order is a sine-qua-non to avert disorder and disintegration. Democracy allows for mutual accommodation and resolution of conflicting interests. Similarly, lifting the country from abject poverty and underdevelopment is imperative to avert the disorder and chaos that could follow if this situation was allowed to continue. The question of national pride and national heritage are integrated in the policy document with emphasis on the duty of the present generation to fight extreme poverty while building on the proud legacy of the country’s longstanding independence, its past civilizations and glories. Full recognition is given to the phenomenon of globalization as an opportunity and also as a challenge. In a world of increasing interconnection and fierce competition, Ethiopia also has to devise ways and means of mitigating the negatives effects of globalization while exhaustively utilizing the many opportunities it also has to offer.

Ethiopia’s Foreign Affairs and National Security Policy and Strategy sets out specific and realist objectives, easily demonstrating this is indeed a major paradigm shift for the country. It goes back to creating an enabling environment for the economic development and democratization of the country. One major aspect of this is through a transformation in foreign affairs, that is the implementation of a policy of economic diplomacy. This allows for the securing of foreign market opportunities for local goods, attracting of foreign investment and enhancing development assistance through grants, loans, technical assistance and technology transfer, and the promotion of the country as a tourist destination. Technical and financial support for the vital institutions to entrench democratic governance in the country is also critical. The policy instrument seeks to expand the number and role of Ethiopia’s partners and reduce threats by the resolution of conflicts peacefully through dialogue and negotiation. One might add that nowhere in the Policy and Strategy can one find suggestions of the sort of war-based foreign relations objectives that Alemayehu Fentaw appears to see. They simply aren’t there.

The strategies devised to attain the Policy and Strategy objectives are further evidence of the radical shift in Ethiopia’s foreign policy orientation. Unlike the past, the focus is not on any perceived “siege mentality” or on external factors but on the dynamics of the domestic conditions. This is the decisive factor. In other words, this means the determination of Ethiopia’s own priorities, mobilizing and relying on the country’s own resources as far as possible, while seeking foreign assistance to fill any gaps. The strategy also demands that we should minimize threats to national security, study and identify their source, and reduce any vulnerability to such threats by concentrating on the fight against poverty, backwardness, and any absence of good governance.

All this requires the establishment of strong democratic institutions and the construction of a national consensus on the vital national issues of common concern. There has to be a concerted effort to guarantee the rule of law to the fullest extent. At the same time as reducing national vulnerability, the country also has to build a reliable defense and security capability consistent with its economic level, and in a manner that is sustainable and complementary to the country’s economic development. Ethiopia’s strategy has many different nuances including the linking of military expenditure with the economy and making it cost effective. Defense, it might be noted, is another area where Alemayehu Fentaw gets it wrong.

As envisaged in the Strategy, the Government has also endeavored to enhance the implementation capacity of the foreign affairs establishment. This is, in fact, a work in progress. We are continuously working to enhance equitable gender representation and of nations and nationalities in the foreign-service. The focus is equally on the strengthening of the professionalism, commitment and integrity of public servants in this area. It is important that the effort to forge a national consensus on the vital issues for the country, whether inside Ethiopia or outside, should be redoubled while coordination with all relevant public and private actors is enhanced. In sharp contrast to the theories advanced by Alemayehu Fentaw, the Policy and Strategy instrument says that what should matter most is the internal situation of the country. The relevance and validity of Ethiopia’s Foreign Affairs and National Security Policy and Strategy is thus determined by its contribution to development, democracy and peace in Ethiopia. This is quite clearly a clean break from the policies of former regimes in Ethiopia which used to relegate internal objectives to external considerations. Equally, giving domestic progress the decisive place does not mean that the defense of the country’s territorial integrity isn’t given the importance it deserves. In fact, the first of the external relations principles in the Constitution provides for the protection of national interest and respect for the sovereignty of the country. It also refers to mutual respect, non-interference, respect for international treaties, integration with neighboring countries and other African states, and the peaceful resolution of conflicts.

Alemayehu Fentaw does not just miss these central elements of the Policy and Strategy instrument. He concocts facts and makes unsubstantiated allegations. One is the suggestion that US-Ethiopia relations would cool under the new US administration. In fact, as is obvious, the relationship between the two countries is thriving. Another is the claim that Ethiopia’s involvement in Somalia demonstrates a ‘foreign policy through war’ approach. It shouldn’t need repeating that Ethiopia took action in Somalia following the appearance of a clear and present danger from terrorist groups and at the invitation of the legitimate Government of Somalia. It withdrew as soon as it was in a position to do so when the current Somali political dispensation was created by the Djibouti Agreements. Again, Ethiopia has made major strides in the promotion and protection of human and civil rights, and no misrepresentation of the concept of human security can conceal this. In fact, Ethiopia’s Foreign Affairs and National Security Policy and Strategy could be said to represent a well-proportioned human security framework, of human and civil rights. It encompasses both security in the traditional sense and security in terms of democratic rights as well as enjoyment of freedom from hunger and deprivation.

The Foreign Affairs and National Security Policy and Strategy has helped redefine Ethiopia’s place in the world. The country is now successfully attracting substantial foreign investment. It has significantly increased its external trade and is currently negotiating entry into the World Trade Organization. The new approach of economic-diplomacy is making tangible progress in contributing to successive years of economic growth. Ethiopia is preparing to hold its 4th round of national elections with its institutions demonstrating impressive implementation capacity, and with a series of enabling laws creating a conducive environment for the further nurture of democracy. More and more, Ethiopian nationals and foreign nationals of Ethiopian origin are engaged in development activities in the country. Ethiopia is playing an active role in the African Union’s integration agenda and in the maintenance of international peace and security through active participation in the policy organs and peacekeeping operations of the African Union and the United Nations. Despite many remaining challenges, these and other achievements clearly demonstrate the intrinsic and practical value of the Foreign Affairs and National Security Policy and Strategy.

Ethiopia’s Foreign Affairs and National Security Policy: The Case for a Paradigm Shift

Ethiopia's Foreign Affairs and National Security Policy: The Case for a Paradigm Shift

 

Alemayehu Fentaw†

A good place to start a constructive critique is to look at the logical foundation of the Foreign Affairs and National Security Policy and Strategy (FANSPS) of the Federal Democratic Republic of Ethiopia (FDRE) and subject it to the tests of consistency, coherence, and soundness. The FANSPS is premised on the proposition that "security policy is a matter of ensuring national survival. The alpha and omega of security is the ensuring of national survival. Other national security issues may be raised only if national existence is ensured. Foreign affairs and security policy must be formulated first and foremost to ensure national security. Issues of prosperity, sustainable peace, and stability and other related concerns then follow." Thus, the FANSPS's primary focus is on potential and actual threats to its territorial integrity. It aimed primarily at protecting its sovereign frontiers against external aggression.
Such being the logical foundation of the FANSPS, it becomes clear that non-military aspects of security are relegated to a secondary place. This is not surprising given that securing its independence and territorial integrity has been the preoccupation of Ethiopian foreign and national security policy for millennia.

 

In view of the foregoing, it is no wonder that The Ethiopian National Defense Forces (ENDF) numbers about 200,000 personnel, which makes it one of the largest militaries in Africa. During the 1998-2000 border war with Eritrea, the ENDF mobilized strength reached about 350,000. The ENDF has its roots in the peasant-based EPRDF guerrilla army and is still in the process of being transformed into an all-volunteer professional military organization with the aid of the United States. The ENDF received training in peacekeeping operations, professional military education, military training management, counter-terrorism operations, military medicine, and unspecified military training funds
from the United States.

 

The ENDF is one of the largest military forces in Africa along with Egypt and Morocco, 29th largest in the world of 132 in terms of armed forces growth, and 11^th out of 166 countries in terms of personnel. Military expenditure for the year 2005
amounts to $800,000,000.00 and this places her on 56th position of 170. The military expenditure was 3% of its GDP for 2006 and 49^th in the world. Just about the time Ethiopia went to war with the UIC in Somalia, it
imported heavy weapons such as tanks and other armored vehicles from Russia (worth US$12 million) and China ($3 million) in 2006 and from North Korea ($3 million) and the Czech Republic ($1 million) in 2005. Ethiopia also imported military weapons from China ($11.5 million) in 2006 and Israel ($1.2 million) in 2005. Besides, during 2005 and 2006, Ethiopia had acquired a large range of small arms, light weapons and parts mainly from North Korea, China and Russia.

 

On 13 April 2007 the Ethiopian Ministry of Foreign Affairs released a press statement, in response to an article that was published in the New York Times which alleged that the US administration had allowed Ethiopia to import arms from North Korea, in violation of the UN Security Council Resolution 1718 (2006), to support Ethiopia's military operations in Somalia. The Ethiopian government acknowledged that a cargo shipment from North Korea to Ethiopia had taken place on 22 January 2007, but denied that the content of the cargo violated UN Security Council Resolution 1718 imposing a partial embargo on the trade in arms with North Korea. The Ethiopian government said that the shipment contained spare parts for machinery and engineering equipment and raw materials for the making of assorted ammunition for small arms, and was made on the basis of four contractual agreements which were signed between 12 and 22 June 2006 for the purchase of various items required by the military industry in Ethiopia. Furthermore "irrevocable Letters of Credit were issued between 30 June and 30 September 2006. This means that all payments for the cargo were effected before the adoption of Resolution 1718."

 

The statement also stated that the US Embassy in Addis Ababa might have been aware of Ethiopia's importation of said cargo from North Korea but the assertion that "the United States allowed the arms delivery to go through in January in part because Ethiopia was in the midst of a military offensive against Islamic militias inside Somalia" is wrong "since the contractual agreements were signed and all payments made before the ICU extremists in Somalia took control of Mogadishu and declared jihad on Ethiopia".

 

Against this backdrop, a cursory look at the Human Development Index (HDI) for Ethiopia reveals an irony in contemporary Ethiopian political life. Although it is noteworthy that between 1995 and 2007 Ethiopia's HDI rose by 3.13% annually from 0.308 to 0.414, the HDI for Ethiopia for the year 2007 is 0.414, which gives the country a rank of 171^stout of 182 countries with data.

 

Military Expenditure of Ethiopia In local currency ( m. birr )  Year Value 1991 [1,095] 1992 [716] 1993 [819] 1994 813 1995 754 1996 803 1997 1,512 1998 3,263 1999 5,589 2000 5,075 2001 2,959 2002 2,476 2003 2,397 2004 2,686 2005 2,965 2006 3,007 2007 3,253 2008 3,750   In constant ( 2005 ) US$ m.  Year Value 1991 [235] 1992 [139] 1993 [153] 1994 141 1995 119 1996 134 1997 246 1998 518 1999 821 2000 741 2001 471 2002 388 2003 319 2004 346 2005 342 2006 309 2007 285 2008 262   As percentage of gross domestic product  Year Value 1991 [5.3] 1992 [2.7] 1993 [2.9] 1994 2.4 1995 2 1996 1.8 1997 3.4 1998 6.7 1999 10.7 2000 9.6 2001 4.7 2002 3.6 2003 2.9 2004 2.8 2005 2.5 2006 2.1 2007 1.7 The figure for 1999 includes an allocation of 1 billion birr in addition to the original defense budget   Source: SIPRI, 2009.

 

Although the FANSPS explicitly fixes the country's maximum military expenditure at 2% of its GDP, it leaves a leeway for a flexible implementation of the 2% ceiling "depending on the level of threat" during a given fiscal year. According to Stockholm International Peace Research Institute (SIPRI), Ethiopia's military expenditure under EPRDF has been well over 2% of its GDP, except for the years 1995, 1996 and 2007. The Central Intelligence Agency raises SIPRI's data for 2006 from 2.1 to 3%.

 

Despite that, one of the most striking features of FDRE's FANSPS, at least on the face of it, is its emphasis on democratization and development. It also tells us about the threat to national security posed by human rights abuses. In the words of the FANSPS: "In the absence of a democratic order, national and religious divisions will invariably intensify, the abuse of human rights would result in strife, and poverty would spread further - a recipe for disintegration and destruction."
Nevertheless, the Government's bad human rights track record attests to the contrary. The thrust of my argument is that the central purpose of Ethiopia's foreign and security policy has remained the same, in spite of the shift in orientation. A change in discourse has not brought about a change in practice. Human security should have been made to constitute the basis of the FANSPS. Moreover, the Government should work aggressively to get a critical mass of women into leadership positions in the foreign affairs and security sector.

 

In the received discourse of international affairs, the term "security" connotes the protection of territorial integrity and dignity of the state. This is not surprising given the fact that hitherto, international relations has been more "state-centric" than "people-centric." Nevertheless, with the cessation of the Cold War and the advent of globalization in the international arena, the concept of security is expanding to focus more on people than on the state. Security, in its classical sense, refers to the security of the state from external aggression. It is about how states use force to counter threats to their territorial integrity, their autonomy, and their domestic political system, primarily from other states. The classical formulation restricts the scope of security to military threats from other states. Nevertheless, in its modern conception, security is equated with the "security of individuals, not just security of their nations" or, put differently, "security of people, not just security of territory." The modern formulation gives primacy to the safety and well-being of "all the people everywhere – in their homes, in their jobs, in their streets, in their communities, in their environment", whilst the classical conception of security emphasizes territorial integrity and national independence as the primary values that need to be protected. The latter has been related more to nation-states than to people." What this conception overlooked was "the legitimate concerns of ordinary people who sought security in their daily lives."

 

Human security also encompasses a sense of personal choice and surety about the future and of personal efficacy and opportunity. Thus, in drawing attention to the difference between human security and its cognate, human development, the Report argues that the latter is a "broader concept" and refers to "a process of widening the range of people's choices," while the former implies that "people can exercise these choices safely and freely – and that they can be relatively confident that the opportunities they have today are not totally lost tomorrow". Along with a sense of choice and surety about the future, people should be efficacious and empowered enough to be "able to take care of themselves: all people should have the opportunity to meet their most essential needs and to earn their own living."The Report lists seven aspects of human security: economic security, food security, health security, environmental security, personal security, community security, and political security. Furthermore, the concept of human security helps us understand that basic human rights, as stated in the international human rights instruments, are indivisible and inter-related. Sometimes, human rights are overridden or ignored for the sake of state security. Human security puts people first, emphasizing that human rights are central to state security. Human security complements human rights law by drawing attention to international humanitarian law in the context of armed conflict.

 

However, the hitherto emphasis on sovereignty a la the classical approach to security neglected other no less important aspects of security such as ecological security, energy security, economic security, food security, and health security. There has been a host of complex threats to the security of the Ethiopian polity for so long including, but not limited to, poverty, widespread malnutrition, population explosion, the HIV/AIDS pandemic, degradation of the environment, loss of faith in institutions, uncontrolled urbanization/ rural-urban migration, insecurity of employment, brain drain, alienation of the youth, inflation and other economic disruptions.

 

 

Donald Levine, in a recent talk, pointed out rapid population growth, poverty, food insecurity, energy, environment, women's rights, health, and quality of education, rather than ethnicity, as the chief challenges facing Ethiopians of diverse background today. He also emphasized the need for green technology as a means of ensuring the country's energy and ecological security at the same time. According to John Podesta and Peter Ogden, climate change will likely create large fluctuations in the amount of rainfall in East Africa during the next 30 years; a 5–20 % increase in rainfall during the winter months will cause flooding and soil erosion, while a 5–10 % decrease in the summer months will cause severe droughts. This will jeopardize the livelihoods of millions of people and the economic capacity of the region, as agriculture constitutes some 40 percent of East Africa's gross domestic product (GDP) and 80 percent of the population earns a living from agriculture.

 

The conceptual distinction that Johan Galtung drew between negative and positive peace can and must be allowed to inform and shape the formulation of a state's national security policy. Once framed a la Galtung, the objectives of the security policy have to go beyond achieving a state of absence of war (negative peace) to encompass the pursuit of democracy, sustainable economic development, social justice and protection of the environment (positive peace). Although the use of military force is a legitimate means of defense against external aggression, it is not an acceptable means of conducting foreign policy and settling disputes. Such a security framework also recognizes that states can mitigate the security dilemma and promote regional stability by adopting a defensive, if not an "aggression-neutralizing", to borrow an expression from Donald Levine's Conflict and Aikido Theory, rather than an offensive military doctrine and posture. Thus, the security policy should pay greater attention to such sources of internal instability as the problem of human rights violations, population growth, poverty, food insecurity, energy, environment, women's rights, health, child abuse, trafficking in women and children, smuggling in persons, and the physical and psychological security of tens of thousands of women migrant workers in the Middle East that have largely been ignored by state agencies.

 

In international affairs, Ethiopia is to be found in a state-of-neither-peace-nor-war with Eritrea following the brutal 1998-2000 border war in which tens of thousands died on both sides. Ethiopia, upon invitation from the UN-recognized Transitional Federal Government (TFG) of Somalia, also entered into Somalia to fight against the Union of Islamic Courts (UIC), an Islamist group vying for control of Somalia. Between late 2006 and January 2009, Ethiopia maintained a presence of several thousand troops in Somalia. On the other hand, Ethiopia has recently entered into a loose tripartite (nonmilitary) cooperation with Sudan and Yemen. The Saudi-East Africa Forum, in which Ethiopia is an active member, is also another noteworthy international economic partnership. It has also had very good relations with the United States and the West, especially in responding to regional instability and supporting war on terrorism and, increasingly, through economic involvement. Nevertheless, there are indications that the hitherto rather warm diplomatic relationship Ethiopia has been enjoying with the US would seem to begin to cool under Barrack Obama's administration, because of US revulsion at the Government's human rights abuses and the de-securitization of the problem of terrorism in Somalia. It is hard to tell if the relations might further deteriorate and lead to a legislative restrictions on assistance to Ethiopia other than humanitarian assistance.
Although, as Ambassador David Shin observes, "[p]utting pressure on Ethiopia will become increasingly difficult for the United States and other western countries as Ethiopia continues to strengthen its relations with countries such as China and Russia."

 

In order to understand how de-securitizing external factors brings about a shift in Ethiopia's national security agenda, let's take a look at Somalia. What accounts for Ethiopia's incursion into Somalia is its securitization calculus, albeit not based on paranoia as one might tend to think, that Somalia would set the stage for a proxy war between Ethiopia and Eritrea. De-securitizing the problem in Somalia, including the terrorist factor brings about a radical shift in Ethiopia's traditional approach to security. The shift in approach from state security to human security will not only pave the way for regional stability via cessation of hostilities, but also create conditions conducive to domestic security in the fullest sense of the term.

 

Ethiopia's incursion into Somalia is a clear indication of its strategy of conducting foreign policy through war, albeit war had to be kept to the minimal. Ethiopia should embrace what Owen Harries calls the "prudential ethic" as a signpost to international relations. According to Harries, the just war theory, given that it accepts that it is futile to assume that war can be abolished, provides one such important ethic. The aim of the theory is two-fold: on the one hand, it prohibits an unjust war, by laying down rules for the determination of the legitimacy of use of force (jus ad bellum), and makes war less savage, by establishing rules of conduct (jus in bello), on the other. Hence, a resort to force must have a just cause, in that it is resorted to in response to injustice, is authorized by a competent authority, and is motivated by right intention. It must meet four prudential tests in that it must be expected to produce a preponderance of good over evil, have a reasonable chance of success, be a last resort and be expected to result in a state of peace. The requirements of jus in bello are that when force is resorted to, it must be discriminate and proportional. Leaving the issue of legitimacy aside, (not least because it was invited by the TFG) Ethiopia's incursion into Somalia hardly passes the four prudential tests. At least, we have every reason to doubt that the military intervention was a last resort and was expected to result in a state of peace. With the benefit of hindsight, it has become crystal-clear that Ethiopia's resort to force failed to bring about a state of peace in Somalia. Besides, reports that Ethiopia violated the requirements of jus in bello abound. For instance, in March and April 2007 Ethiopian soldiers violated international humanitarian law by using heavy artillery and rockets to fight an insurgency in Mogadishu, killing hundreds of civilians and displacing up to 400,000 people. Though Ethiopian troops have since withdrawn from Somalia, Prime Minister Meles Zenawi stated in June 2009 that the country has not ruled out a future redeployment. According to David Shin, "both the United States and Ethiopia followed a misguided policy in Somalia."

 

To illustrate how others' perception of Ethiopia's vulnerability, or miscalculation, led to aggression, the FANSPS invokes Somalia and Eritrea under the leaderships of Siad Barre and Isaias Afeworki respectively. In the words of the FANSPS, "Some time ago the Siad Barre regime in Somalia launched an attack on Ethiopia on the presumption that Ethiopia was unable to offer a united resistance and that it would break up under military pressure. The regime in Eritrea (the Shabia) similarly launched an aggression against Ethiopia thinking along the same lines. Both regimes were soundly defeated because of their misguided and misconceived perceptions." In this regard, it is interesting to note the continuity in foreign and security policy, despite the change in regimes. Somalia has never been removed from Ethiopia's security agenda.

 

The FANSPS has also failed miserably to recognize the role of women in peace-making, peace-building, and security. The Government should demonstrate its commitment to the principles enshrined in the UN Security Council Resolution 1325 on Women, Peace, and Security (UNSC 1325). The Foreign Ministry must come up with a workable action plan for the implementation of UNSC 1325. Consequently, it should recruit more women to the diplomatic services; nominate more women to international diplomatic assignments, specifically to senior positions (UN special representatives, peace commissions, fact-finding missions, etc.); increase the percentage of women in delegations to national, regional and international meetings concerned with peace and security, as well as in formal peace negotiations; and include women in all reconciliation, peacekeeping, peace-enforcement, peace building, and conflict preventive posts. In this connection, it is important to recall that women were entirely excluded from the peace processes concerning the Ethio-Eritrean conflict.

 

Finally, the quality of foreign policy of a country is determined by many factors of which the role-played by top notch, well-groomed, and seasoned personnel, the degree of participation and the method of policy decision-making cannot be over-stated. Thus, the Ministry should open up a definite career path to diplomacy for qualified professionals, whether women or men, if it is to enhance its capacity through professional staffing. The hitherto practice of staffing its foreign services as well as the head office with mediocre party functionaries did not pay. To recap, Ethiopia's FANSPS has to give recognition and full effect to the paradigm shift in the approach to security from state-centricism to people-centricism (human security) as well as from non-inclusive security to what Ambassador Swanee Hunt calls "inclusive security".