Further response to the critic of Getz #5

By Donald N. Levine

In my June 18 response to the engaging letter of Tibebu Bekele, published in Addis Fortune two weeks earlier, I commented on problems of Ethiopia’s judiciary. Regarding the trial of the Kaliti detainees I said, “If legitimate procedures are not respected by the Government… I shall be among the first to voice disapproval.”

Now that the court has recessed until October, it may be appropriate to comment on what has transpired to date. As noted in my Public Radio interview of August 8, 2006, my assessment rests on an independent analysis of notes of the trial proceedings. The notes were obtained from a variety of sources. A non-Ethiopian graduate student who has worked in a major Chicago law firm carried out the analysis. A summary of the main findings of his analysis follows.

Based on that analysis I conclude that to this date those procedures appear to have been neither speedy nor consistently fair. The major source of unfairness has been the conduct of the prosecution. Although the court has at times been at fault, in a number of respects the court has shown fairness and responsiveness to the rights of the accused.

A. Obstructionist delays by the Prosecution
1. The prosecution has repeatedly delayed court proceedings by being late.

2. The prosecution has repeatedly delayed court proceedings by being unprepared, which delays rulings on other matters before the Court.

3. The prosecution frequently introduces new evidence, which was not previously produced to the defendants’ attorneys.

B. Unfair procedures on the part of the Prosecution
1. The prosecution repeatedly refuses to produce copies of evidence for the defense.

2. The prosecution frequently presents evidence not included as part of the initial charges.

3. Evidence against the defendants is presented in suspect ways. Video, audio, and documentary forms of evidence have been taken out of context, edited, and distorted in an extremely prejudicial manner. That the chief prosecutor was accused of tampering with or fabricating documentary evidence–and effectively tried to hide this by presenting the evidence at the last minute and without producing copies to the defense–is in keeping with the prosecution’s conduct throughout this trial.

4. The prosecution’s arguments often rely upon hearsay, speculation and, frequently, outright deception. The Action Aid defendants are referenced elliptically, implicated in evidence unrelated to them, and almost never receive copies of the evidence being used against them. The arguments against CUD members presented in Court are so far afield from the actual evidence, often in direct contradiction with the evidence presented, that those proceedings verge on the comical. One glaring example: at one point during the trial of July 13, Ato Shimelis stopped to summarize several CUD press releases by saying “in nearly every speech they say they support peaceful struggle, but essentially they are promoting violence.”

5. The prosecution frequently fails to link evidence with specific defendants or charges.

C. Unnecessary delays due to Court rulings
1. The prosecution has not been held accountable for its habitual delay of proceedings, including late arrival, lack of preparedness, and introduction of new evidence without producing copies for the defense.

2. The Court has delayed ruling on motions from the defense for copies of evidence.

D. Fair and responsive conduct on the part of the Court
1. The court proceedings have been open to the public.

2. Domestic and international observers have been permitted to take notes.

3. The defendants have been permitted to speak.

4. The Court has become responsive to requests from the defense to have copies of the video evidence shown to defense counsel. On August 4, albeit belatedly, a court order set a time limit of two weeks for the prosecution to produce copies of video evidence to the defense.

5. Although the Court has often provided the prosecution great latitude in the presentation and admission of evidence, the Court did rule the prosecution’s third, heavily edited videotape inadmissible despite vehement protest from counsel.

6. When asked to provide relief to the defendants from ill treatment or prejudicial acts by third parties while defendants are in State custody, the Court has generally obliged by calling third parties before the bench for an explanation. At times this resulted in improved treatment of the detainees. The court may also have been responsible for the decision to hospitalize Professor Mesfin Woldemariam for pneumonia treatment last month, but this effort seems in vain now that he is returned to Kaliti Prison where coldness, dampness, poor sanitation and hygiene, and various species of vermin exacerbate his condition. After Dr. Berhanu Nega was returned from hospital to Kaliti Prison against doctor’s advice in June, the High Court ruled on 19 July that he be relocated in a less crowded and better ventilated cell in Kaliti Prison. When no improvement resulted, it was presumably due to the independent authority of third parties. Confining Dr. Berhanu Nega to extremely punitive conditions or journalist Iskinder to solitary confinement are actions over which the court may have little jurisdiction, but the judicial system certainly does.

E. Unfair conduct on the part of the Court and demonstrable irregularities with the proceedings
1. The Court does not consistently demand that the prosecution produce copies of new evidence in advance of trial presentation.

2. The Court often allows the prosecution to introduce new evidence not included in initial charges without furnishing a copy for the defense.

3. If the Court should provide the defense comparable latitude in the presentation of evidence it would indicate a higher degree of fairness to these proceedings. Failure to do so would suggest that the Court conducts this trial in a manner favorable to the prosecution.

F. Controversial conduct on the part of the defendants
It should be noted that some of the flaws in the proceedings noted above might have been reduced if the defendants, other than those involved in the civil society group Action Aid, had availed themselves of legal defense. Excellent lawyers had volunteered to provide counsel for them pro bono, and it is hard to imagine that some of the irregularities noted above would not have been corrected had all the accused taken advantage of those resources.

COMMMENT
No ordinary court case, the trial against selected opponents of the EPRDF regime has divided the Ethiopian body politic as has no other issue since the time of Emperor Susneyos. One would expect the Ethiopian judicial system to go to great lengths to demonstrate its integrity both to Ethiopian citizens and to international observers. Its failure to do so reflects, at the very least, a lack of capacity to mount a fair and speedy trial. The urgent need to upgrade that capacity would seem to call for the concerted contributions from Ethiopian legal processionals in the Diaspora as well as those at home. Ethiopians traditionally are distinguished by a high regard for judicial fairness and the rule of law; distortions introduced by the Derg and largely maintained under the EPRDF regime are arguably most un-Ethiopian.

Of all flaws in this trial, I consider the most dysfunctional to be that noted under B.5 above: the prosecution’s repeated failure to link evidence with specific defendants or charges. Lack of adequate differentiation has been the hallmark of these proceedings from the outset. While the Government appears, at best, to possess hard evidence incriminating one or two individuals of one or two categories of action that are arguably illegal, it has included several dozens of individuals under a broad range of criminal accusations. It is this feature of the proceedings that opened up to ridicule what could and should have been a serious juridical process.

During this period of recess, it would behoove the Ministry of Justice to re-assess those charges more carefully and demonstrate to the world the high level of legal competence that Ethiopians manifest at their best. That would lend greater speed and fairness to the final sessions of this trial and thereby enable Ethiopians to get back to working together to make their beloved land a better place. If such action were to be matched by a willingness of defendants to avail themselves of counsel, that desired outcome would be facilitated even more.

P.S. Since writing the above, I have had the benefit of critical responses from two readers who are highly accomplished Ethiopian academics. One of them faulted my statement for not pursuing the legal issues with more diligence and penetration. He recommended: begin the piece by clarifying your principled stand on the judiciary, judicial process and the trial, what your sense of a fair trial and process is, what your expectations were initially, why you took the principled stand, how you “evolved” to the position you currently hold based on “hard evidence” (notes, analysis) and what you think should happen. Also… stress the fact that your conclusions and evaluations are based on universally recognized values of due process and fairness, and not merely the idiosyncratic conclusions of note takers, analysts, etc.

The other reader faulted me for taking the legal issues too seriously, claiming that such concerns were beside the point since the trial itself must be viewed essentially as a political rather than a legal matter.
The problem with the trials is not inappropriate court procedure. Nor is it about robust defense. Ethiopians do know a lot about Meles’s court system. It was not for lack of good defense that Prof Asrat, Ato Mekonnen Dori, Dr. Taye and numerous others languished in prison for years (and as you well know, it is not good defense that got them out)… The issue about the jailed oppositional leaders is not a legal, but a political one. Focusing on the flaws of the proceedings alone is tantamount to playing into Meles’s game.

Although the two critics proceed in opposite directions, I think they both raise profound issues, which I hope can be discussed further.