Demotix/Nuno Lobito. All rights reserved
The deployment of laws and the devices of justice for oppressive political projects are as old as antiquity. From Socrates to Jesus of Nazareth, from Joan of Arc to Susanne Anthony, from Nelson Mandela to Ethiopia’s own Burtukan Midaksa and Eskindir Nega, the site of the courtroom has been used to intimidate, harass, silence, exile, and eliminate political foes perceived to be a threat to the authorities of the day. The phenomenon we sometimes identify as ‘the political trial’ is neither exclusively eastern nor western, autocratic or democratic. In both democratic and autocratic states, courts adjudicate conflicts irreducibly political or ideological in their nature. We could argue whether it is ever justified to use the court system to get rid of ‘the politically obnoxious’, but the fact remains that the judicial apparatus is inevitably one of the most irresistible sites of power-struggle.
Writing at the height of the Cold War, and arguing contra a legal ideology often called liberal legalism, Judith N. Shklar exposes legalism’s wilful blindness to domination and exclusion. While she recognizes legalism’s ‘greatest contribution’ to a “decent political order”, she accuses liberalism’s ‘formal justice’ for its silence towards laws that persecute. The principle of legality for which liberalism congratulates itself “enforces persecutive laws as readily as any other kind”. In Apartheid South Africa, the principle of legality provided a legitimizing logic that allowed the judicial apparatus to enforce racial inequality in the name of legality and formal justice. From these observations, Shklar concludes that the relevant question in the adjudication of political conflicts is not whether the trial is ‘legal’ or ‘political’, but the form of politics pursued through those trials. One may disagree with Shklar’s generalization, but what is instructive about her conception of the political trial is the emphasis on the nature of politics pursued through the trial—whether it is emancipatory and transformative politics or oppressive. It is precisely in this sense that I wanted to explore the “politics’ in Ethiopia’s recent political trials.
The last two decades have witnessed the deployment of the legal framework, including foundational documents establishing Ethiopian sovereignty, as strategic tool against regime adversaries. In his definitive scholarship on political trials, “Political Justice: the Use of Legal Procedures for Political Ends”, the Frankfurt jurist Otto Kirchheimer describes ‘the classic political trial’ as “a regime’s attempt to incriminate its foe’s public behaviour with a view to evicting him from the political scene”. Given the vagaries of the medium and its vulnerability to subversive resistance, it is fitting to ask why Ethiopia, a country with an exclusive monopoly over the means of narrative production, from mass media to pretty much every other conceivable ‘stock-in-trade of politics’, turned to its institutions of justice to pursue a project that is the antithesis of truth and justice?
The trial and the animating logic of legal truth
Trials are one of the oldest and most legalistic institutions of law. While the institution of the trial pre-existed the Enlightenment, their normative recognition as a site of truth and justice goes back to the rise of Enlightenment epistemology and Weberian legal rationality. Since the onset of the 20th century, the trial is broadly recognized as a communicative forum of truth-searching governed by rational legal rules both within adversarial and inquisitorial systems. The communicative logic that structures the medium of the trial requires a strict observance of canonical set of rules necessary for the excavation of objective truth; a truth indispensable for the determination of guilt and innocence in the administration of criminal justice.
For any trial to retain its name as a trial—to retain its normative legitimacy as a forum of truth—there must be an irreducible risk of conviction or acquittal to the defendant and the prosecution respectively. That makes the trial what it is. If the outcome of the trial is predetermined, if the irreducible element of risk—either of acquittal or conviction—is eliminated, the trial is not a ‘trial’ in the proper sense of the word, but an authentic political event, a theatre of repression reminiscent of the Stalinist show trials. This is the first sense in which trials can be ‘political’. And most of Ethiopia’s political trials belong to this category, a ‘stage show’ specifically calibrated to serve a specific pedagogic end.
There is, however, a different logic that makes the moment of the trial the most productive political instrument in struggles over power. As a communicative space governed by the logic of deliberative rationality, trials have built-in mechanisms that allow them to resist and escape the confines of this rationality. They have an irreducible linguistic and discursive reflexivity that allows their politicization. In “Democracy in America”, Alexis De Tocqueville brilliantly captures the performative features of the courtroom, that make the political appropriation of its space irresistible. He writes: “It is a strange thing what authority the opinion of mankind generally grants to the intervention of courts. It clings even to the mere appearance of justice long after the substance has evaporated; it lends bodily form to the shadow of the law.” Courts have this ‘vastly superior’ power of truth production and image creation. Because the courtroom is normatively understood as an independent, neutral, and impartial institution of justice elevated above and beyond the expedience of politics, it is sufficient that a defendant 'had his day in court' irrespective of what goes on behind the cloak of legality. For a regime interested in satisfying western curiosity rather than justifying its action to its own people, legal procedures have the incomparable advantage of elevating political struggles into an authoritative, neutral and impartial process. This is emblematic of the situation in Ethiopia.
The invocation of the lexicon of law and justice in the ritual space of the courtroom obscures and conceals the politics at the core of the trial. As De Tocqueville says, even when the violence that goes in the name of the rule of law and justice is revealed without its mask, “the mere appearance of justice” continues to provide a semblance of legality and justice for the spectacles of domination. When Ethiopia’s late Prime Minister, Meles Zenawi, following the arrest of opposition leaders post 2005 election promised the west that the accused ‘will have their day in court’, Zenawi was aware of the truth-effects that the metaphor and the spectacle generate. He knew that liberal legalists would not distinguish between the procedure used and the objective sought, and that they would argue that if, “They had their day in Court, they were not really persecuted”. Indeed, if we take this logic seriously, if we look at aspects of contestation in the courtroom that function on the borderline of what is said and what is meant, the strategic and tactical move made on both sides of the divide is a less deliberative and more performative enterprise. In part, it is this performative quality, this ‘vastly superior’ image-creating power, that accounts for Ethiopia’s resort to its courts as a weapon of domination.
The trials of the developmental state
This is both the logic and the rationality that animates not only Ethiopia’s terrorism trials of the last three years, but also many of its major political trials. In the name of the ‘developmental state’, the system has transformed its courts into another security apparatus whose job is not to second-guess the government, but simply to rubberstamp decisions made somewhere else. Ethiopian courts are not guarantors of the reign of equality and justice; they are the very instruments used to secure inequality and injustice. They are legal technologies of repression whose strategic function is to rationalize, justify and legitimize the repressive logic behind these persecutive law proceedings by situating them within the framework of law and justice. Instead of laying the foundation for a just, inclusive, and democratic society, the current government has chosen to use the law and institutions of justice to annihilate the very juridical conditions necessary to cultivate those values.
By orchestrating authentic political events under a false façade of legality, the courts use their formal ‘legitimacy’ to authenticate the narratives of government as they dispose of elements hostile to the regime and vindicate the political order. They do this in several high profile trials, ranging from the Red Terror Trials (against members of the military dictatorship) to the recent conviction of journalists and opposition party members, and the ongoing case against leaders of the protest movement calling for an end to what they see as an unlawful government interference in their religion.
If the Red Terror Trials were meant to create a clean break with that nefarious past, foregrounding the foundation of the new Ethiopia in the ideals of accountability and justice, the EPRDF government has failed and failed utterly in drawing a clear line between the moral failings of the past and its own promised ‘virtues’ of the present. If you look at the system in action, with its ins and outs, with the choices it makes and the exceptions it allows, you will notice that its practices are the precise negation of every normative proposition it espouses, including the constitutional premises upon which everything else rests. But why invoke terrorism against people who may be as far as one can be from an act of terror?
In the name of truth and justice
In recent years, Ethiopia found a convenient validation for its practices in the post 9/11 reordering of global legality. The same nations that exported Enlightenment epistemologies to Africa—everything we know as Africans about juridical conceptions of the rule of law, freedom and justice—are now exporting a different logic and political rationality that dislodges those values in the name of ‘counter-terrorism operations’. The same Enlightenment that gave us (shall I say imposed on us?) the language of equality, freedom and justice is now being used to justify the suppression of struggles for freedom and justice.
To align its own struggle against domestic dissidents and political movements that it deemed ‘terrorists’ with the ‘global war on terror’ [Preamble, Ethiopian Anti-terrorism Proclamation], Ethiopia began to appropriate the legal and political rationalities of the west, to transfer its essential technologies, and to secure its own space from which to defend and justify its policies at home. By being a part of the new “framework for conceptualizing global violence”, it participates in the formulation and reformulation of the discourse, using western rationalities to name and describe the violence of certain groups as illegitimate, while encoding its far more pervasive violence into laws and institutions to justify it and render it acceptable.
In the post 9/11 world order, nothing performs the spectacles of oppression Ethiopia sought to orchestrate better than the eventalizing discourse of terrorism. Ethiopia’s transition from explicitly repressive criminal legislations to the performative label of terrorism allowed the regime to encase its practices within the signifying practices and rationalities of the West. A highly convenient category, and not specifically Ethiopian, terrorism justifies the invocation of ‘national security’ against individuals and groups that struggle and resist the repressive practices of the government. It is a category that forms domains of truth capable of enunciating the accused and their causes as extremist, violent and ultimately terrorist. Once a political adversary is transformed into a ‘threat’ to the very cohesion of a population or a nation, that alone is sufficient to justify its elimination from the political sphere. In a system where the functional differentiation between law and politics, guilt and innocence, law and fact are dislocated, the mere labelling of the movement leaders as “terrorist” is sufficient to exclude them from the category of the human and therefore deny them the benefit of the law.
For the regime then, hailing its own ‘terrorists’ as such, serves, in one and the same move, four distinct politically productive purposes: (1) It transforms the ‘political adversary’ so named into a ‘threat’ to the entire population of the state, if not of the world; (2) It delegitimizes the cause(s) of individuals and groups so ‘designated’; (3) It rationalizes, justifies, and legitimizes the violence used against the ‘terrorist’; (4) Finally, it strikes a silent political pact with western powers for a diplomatic shield to its practices. This, however, is a very risk intensive adventure. There is no guarantee that the use of the legal system for oppressive political ends generates and crystallizes the power effect expected by any party.
From “the case against Eskinder Nega and 23 others” to the ongoing “case against the 29 defendants”
Since its Anti-terrorism law began to function as a weapon synchronizing political action with the discourse of truth and justice, we have seen courts as the key strategic tools used to harass and eliminate regime adversaries from the political sphere in this way. But the recent trend is quite alarming. In the last four months, the Ethiopian High Court convicted and sentenced several prominent journalists, opposition party leaders and activists under its sweeping anti-terrorism law. In another high profile terrorism case against 29 Ethiopians, the government is staging a sensational show to redefine not only the terms of engagement between friends and foes but also the limits of tolerable dissent. But does all this succeed in eliminating regime adversaries or in creating the image Ethiopia wanted to create ? Whatever their political goal, neither Ethiopia nor its victims of political justice can control the political effects of these trials—no one has the monopoly over the ultimate impact of these trials.
When law is called upon to eliminate political adversaries, trials degenerate, threatening to expose or unmask not only the instrumental function of the law and the court process, but also the nature of power politics in Ethiopia, making the invisible visible, in ‘all its brutality and secrecy’.
These trials are touchstones in new and different ways. They represent those rare moments in the life of a body politic when public authority reveals its true essence. In calling its adversaries to judgement, it exposes itself to the judgment of the very public in whose name it exercises the right/authority to judge. To condemn men of exemplary sacrifice and moral imperative under the guise of law and order, only generates more embarrassment and irredeemable moral failure. As Aung San Suu Kyi noted: “The root of a nation’s misfortunes has to be sought in the moral failings of the government.” I am not suggesting that all victims of political justice in Ethiopia had no case to answer. Not at all! The point is this: when the judicial machinery is activated against a political foe, the indictment is simply a cover-up, a smokescreen, for behind the scene political struggles.
If ‘law and public order’ constitute the epicentre of criminal justice, its centre of gravity, history reminds us of the double inscription of this discourse. In the trials of John Lilburn, Nelson Mandela, Daniel Berrigan, the Rosenberg Brothers, Susan Anthony, Birtukn Midaksa, Eskindir Nega and the current case against the 29 Ethiopians, we see a tension between at least two conceptions of both law and order. Whatever the implications of each position, these trials demonstrate the double-movement at work in the invocation of the discourse of law and order and its historical susceptibility to various interpretations. In many of these trials, we have the most complete clarification of the violence represented by conceptions of ‘law and order’; a clarification that demonstrated that these defendants had a more responsible and just understanding of law and order than their prosecutors.
The story of Nelson Mandela from the dock at Pretoria (1956-60) and Rivonia (1963-64) is the most paradigmatic case. For Nelson Mandela and the ANC, true ‘law and order’ aspires at notions of justice and freedom, dignity and equal opportunity for all. Law and order retains its legitimacy only when it pursues ideals that Mandela famously articulated as a “free and democratic society” for which he was “prepared to die.” But Apartheid sees the resistance of the ANC as disruptive to the constituted ‘law and order’ regardless of the ‘racial inequality’ the order is designed to enforce. While there is no symmetry between Ethiopia today and Apartheid South Africa, the logic that animates the deployment of the legal system against the political foes is one and the same. For those dragged before Ethiopia’s courts in the name of law and order, a just ‘law and order’ resides in something beyond itself, in its legitimacy, responsibility and justice.
As a ritual moment, these trials embody a historicity that transcends itself both in time and space. It was Hannah Arendt who reminded us of this ‘condensed historicity’ when she characterized the Dreyfus trial as “a fore-gleam of the twentieth century”. Just as one cannot write a complete history of Apartheid or Israeli Occupation of Palestinian lands or the history of the United States of America without an account of how the judicial system sustained these practices, rationalizing and justifying Apartheid, occupation and slavery, respectively, one cannot begin to articulate the history of the last two decades in Ethiopia without accounting for the strategic role assigned to the legal system and its courts. The mass trials of members of the CUD post 2005 election, the second arrest and imprisonment of Burtukan Midaksa, the terrorism trials of several Oromo political leaders and activists and others touched the fabric of Ethiopians and will help the public to navigate through the dense irony of law, politics and history.
Our understanding of these trials is critical for conceptualizing and articulating a new political universe, a new political subjectivity and a new standard of justice, one that is inclusive and reflexive but always attentive to its pedagogic imperative: the recognition and acknowledgement of past injustices, conquests and longstanding resentments.
In the end, if there is anything didactic about Ethiopia’s blasphemous spectacles of justice, it is the power-rationalizing and order-legitimizing function of its courts, a function that threatens to denaturalise and unmask the contempt with which the system holds its law and institutions of justice. If the current instigators of political trials in Ethiopia were to be prosecuted under the same rules they were invoking against their foes and before the same courts they were prosecuting their adversaries, they will be guilty as charged on every single count. Like Tamrat Layne and Siye Abraha before them, the machinery they use will not spare them. Those who dragged before them the likes of Burtukan Midaksa, Eskinder Nega, Bekele Garba, Olbana Lelisa, Andualem Arage, Daniel Bekele, Taye Dida, and the current defendants, will be guilty of the politics for which they are accusing these defendants.
 Judith N. Shklar, Legalism: Law, Morals, and Political Trials, (Cambridge, Harvard University Press, 1986) at 146.
 Ibid. at 144.
 Otto Kirchheimer, Political Justice: Using Legal Procedure for Political Ends, (Princeton, Princeton University Press, 1961) at 46.
 Irving Stone, Clarence Darrow for the Defense, (New York, New American Library, 1969), p.130.
 See Michel Foucault, Society Must be Defended, (London, Penguin Books, 2003) at 134.
 Hannah Arendt, The Origins of Totalitarianism, (New York, Meridian, 1958), at 93.