As long as enough people can be frightened, then all people can be ruled. —James Bovard
With the convergence of the ‘war on terror’ with the war on political adversaries, draconian justice has returned with a vengeance in Ethiopia. Just as authoritarian and racist regimes during the Cold War used the fight against communism or imperialism for the repression of political dissent; the regime in Ethiopia is using the ‘fight against terrorism’ as a framework for justifying the liquidation of democratic mobilization, and political dissent.
Just as Stalinist USSR, Apartheid South Africa, and other authoritarian systems have deployed the entire sovereignty of the state, including their constitutions and court systems, to suppress basic freedoms, and eliminate political adversaries, the Ethiopian government is aiming for total power and total control of its population. To curtail the activities of opposition politicians, journalists, activists, and dissenting forces, the regime has adopted an Anti-terrorism Proclamation widely criticized for its vague and broad formulations. The trajectory of the Ethiopian legal system and its systematic mobilization against political foes of the regime points to an emerging parallel between Ethiopia’s political trials, and Stalinist show trials. Interesting parallels between Apartheid South Africa’s deployment of the Suppression of Communism Acts, and Ethiopia’s turn to anti-terrorism legislation can also be seen in the current ongoing trials of 28 community leaders in Ethiopia.
Muslim protestors waving a warning card to the government. ethiopiaforums.com/Some rights reserved.
Nelson Mandela is one of the many victims of political justice who, at the end of his ‘long walk to freedom’, secured his voice, and visibility in the world. But the victims of these aberrations of justice are countless. In fact, repression of political dissent and activism is not something exclusively reserved for authoritarian states. Liberal democracies such as the United States have frequently turned to the legal system for the same purpose. At the height of the Cold War, the United States used the Smith Act and other laws to suppress communists, Black and Indian liberationist movements and other dissenting voices.
In the post 9/11 order, the new security constellation is encoding overarching security discourses into virtually all spheres of life, subverting fundamental freedoms of expression, and dissent. The law is now expressly conceived as a tactical deployment. But this is not to suggest that the function of law in authoritarian systems and democratic societies is comparable. In fact, aberrations in liberal democracies are frequently held up as justifications for authoritarianism in authoritarian systems.
In Ethiopia, despite a progressive constitution that accords due recognition to the liberal ideals of the rule of law and human rights, despite a government that never ceases to proclaim its democratic credentials, courts operate as technologies of repression and centres of propaganda aimed at something that transcends the individual on trial.As in Stalin’s Russia, the judicial machine is activated not to redress past injustices ex post and deter future offenses ex ante, but to upset, fray, or destroy existing force-relations within the body politic. In both systems, the legal space is activated on the premise that the state does what it has the power to do and the defendant accepts and confirms the government’s version of truth, reality, and history.
In both systems, confession is synthesized with bureaucracy and functions as a key instrument of the enterprise of indoctrination, terror, and repression. In Ethiopia, confession comes in different forms. There are pretrial confessions of which the recent documentary film, “Jihadawi Harekat” is a glaring example. But there is also the now popular post-conviction confession called ‘a pardon’.
In Ethiopia, a convicted political prisoner is presumed not to have been rehabilitated unless he agrees to sign a ‘pardon’ document the terms of which are determined by the state. This is irrespective of whether or not the accused has served the term of sentence. Even if you have finished the terms of your sentence, you must apologize to the state, and sign the pardon document. If the term of your sentence runs out before you agree to the terms of the pardon document, you will be released and rearrested on another charge. If you let that happen, it means that you would have to go through the entire process, and get convicted again, only to face the same dilemma again.
This is precisely the story of the two civil society activists who were tried and convicted during the post 2005 election: Daniel Bekele and Netsanet Demissie. Through intermediaries that came to be known as ‘shimagiles’, Amharic for elders, the duo were told that their freedom depends not on the completion of the terms of their sentence but their consent to the pardon document. This is the reality of justice and the rule of law in today’s Ethiopia. And it is precisely the same logic and rationality that explains the ongoing trial of the Committee of 17 and the attendant propaganda campaign.
The trial of the 28 community leaders
This is a trial against leaders of a Muslim protest movement that has been negotiating with the government to seek a resolution for the grievances of the Muslim community in Ethiopia. The conflict began when the government embarked on an audacious act of re-indoctrination through coercive introduction of the teachings of an alien sect, the Ahbash, into mosques and schools. The same government that recognized the Committee as representatives of the people and negotiated with this body turned around and labelled them self-appointed terrorists, and arrested them under charges of terrorism when negotiations failed.
From its very inception, the trial was marred by allegations of procedural irregularities and heavy handed government intervention. The indictment is a chilling assemblage of fabricated allegations aimed at legitimizing the violence of the state, and preemptively eliminating any meaningful fight back against state control of the formation and circulation of religious discourses. It is so bizarre that even this court has to throw out the allegation of conspiracy “to establish an Islamic state” because it was not even convincing on the grounds of ‘political expedience’. From arrest to the preliminary hearing, and throughout the pretrial detention, those arrested were mistreated and tortured. The government’s unrelenting propaganda campaign against the defendants created an environment in which their right to presumption of innocence is no longer tenable.
During the preliminary hearing, lawyers contested the constitutionality of the anti-terrorism law, and asked the court to refer the matter to the Council of Constitution Inquiry, and the House of Federation, bodies charged with the authority to interpret the constitution. The lawyers argued that the law is essentially without force, that it is illegal, since its provisions, in significant part, fly in the face of the very constitution and constitutional order from which it derives its validity.
The right to a fair and public trial
The right to a fair and public trial is recognized by the Ethiopian constitution and other international human rights instruments accepted by Ethiopia. Without providing sufficient reasons that warrant the limitation of this fundamental right, the government asked the court to hear the case ‘in closed session’. To prevent a repeat of a few embarrassing scandals in past political trials - there is indeed a much higher risk of embarrassment in a nation-shaking trial such as this - the court accepted the government’s decision. According to the constitution, the limitation of the right to a public trial is justified only if the limitation is due to the “privacy of the parties concerned, public morals, and national security.” The government argued that since the names of prosecution witnesses were released on social media sites such as Facebook, a public trial endangered the safety of the witnesses.
But nowhere in Article 20 of the Constitution does it say or imply that the safety of witnesses constituted the basis for limiting the defendant’s right to a public trial. This not only deprives the defendants of the right to be tried before an open and public court but also violates the fundamental presuppositions of the criminal law. Nevertheless, the court accepted the government’s decision without asking how the latter’s explanation squares with the expressly enumerated exceptions in the Constitution.
The ‘presumption of innocence’ and the film - Jihdawi Harekat
The government made its most audacious move so far when it announced that it would broadcast a propaganda film titled “Jihadawi Harekat: Boko Haram in Ethiopia?” in blatant disregard of the defendant’s right to presumption of innocence. The government announced its intention to broadcast the documentary film during prime-time television on 5 February 2013. In the one minute trailer, the film shows the chairman of the committee saying: “the ultimate goal was to establish an Islamic state”—one of the most bizarre accusations that this court itself decided to throw out.
Prompted by the trailer, the lawyers for defence petitioned the court and obtained an injunction against the TV station on 5 February 2012. Shortly afterwards, it was reported that the President of the High Court nullified a ruling of the three judge panel through an administrative act and the TV station broadcast the film. As a matter of law, a judicial decision can only be annulled through another judicial decision at an appellate level. In this case, the President nullified the court’s decision in a blatant violation of the Constitution and other laws of the country. This is precisely what happens in a system where ‘political expedience’ trumps the rule of law and legality.
Defending the government’s decision to go ahead and broadcast a documentary against a court order, Shimelis Kemal, Ethiopia’s own Andrey Vyshinsky, came up with multiple justifications that simply do not hang together. One of these mutually contradictory justifications is the idea that the subject matter of the documentary is a new terrorist conspiracy that is under investigation and not yet the object of judicial determination. He said, “this is a new crime” that is “not yet presented to the court”. But the fact remains that the documentary is primarily about leaders of a movement who are on trial, and unquestionably affects their right to be presumed innocent before the law. When the court that is considering the matter issued an injunction against the documentary, the court is saying two basic things. First, that the documentary will affect its ability to give a fair trial to the defendants. Second, that the rights of the defendants to be seen as defendants, not convicted criminals, both by the court and the general public, will be endangered. So this threatens not only their right to be presumed innocent before the court, but also before the body politic which has an interest in the maintenance of law and order. Furthermore, once the documentary was in the public domain, what public safety or national security reasons justified the closure of the hearing from the public?
Hurling terrorism at defense lawyers
The government in the wake of the documentary scandal has resorted to accusing the defense lawyers of trying to protect their clients. Shimelis Kemal, former judge and prosecutor, now State Minister for communications, accused the lead defense lawyer, Tamam Ababulgu, of aiding and abetting terrorism. Referring to statements by Mr. Tamam to a few media outlets about the injunction, and acts of torture used against his clients to extort confessions, the Minister called the lawyer’s statements on behalf of his clients “white lies”. Tamam Ababulgu was summoned to a court to answer questions.
Nietzsche brilliantly encapsulates this logic in Thus Spoke Zarathustra: “State is the name of the coldest of all cold monsters. Coldly it lies; and this lie creeps from its mouth: ‘I, the state, am the people’.” The lies that creep out of the state’s mouth are justified as the protection of order, even when they are against the law, but a citizen’s lawful attempt to counter their lies is terrorism. If Tamam Ababulgu can be accused of terrorism by the State Minister, that is impeccable evidence of the distance the state is willing to go to mute and paralyze dissident narratives in the country. It also tells us that there is no room for cause lawyering in Ethiopia let alone imagining becoming a radical lawyer of the calibre of a Clarence Darrow, or a William Kunstler.
Muslims protesting against the government at Grand Anwar Mosque. Awramba Times/Some rights reserved.
Although the deployment of the law as a tactic is not reserved for authoritarian systems, there is no symmetry between the role of law in democratic societies and non-democratic societies. In democratic societies, where a series of accountability mechanisms operate, the law cannot be used arbitrarily as an instrument of control, and terror. However, in authoritarian systems, the law is constantly invoked by a regime that does not respect its reciprocal obligation on which its legal authority to accuse and jail rests. In Ethiopia, the rhetoric of law and order is itself a form of ideological consciousness that makes a vigorous strategic use of the legal system, including the sovereignty of the state, to produce political and moral panic. This panic and generalized fear is used to coerce the “silent majority” into embracing oppressive measures as necessary and proportional to the threat facing the unity and stability of the nation.