Alemayehu G Mariam
It is time to bury the hatchet and move forward in Ethiopia! Nelson Mandela taught that “If you want to make peace with your enemy, you have to work with your enemy. Then he becomes your partner.” I would add that your enemy also becomes your friend and your ally. Historically, when warring nations of Native Americans made peace with each other, they would bury their axes (hatchets) into the ground as a symbolic expression of the end of hostilities. I say today is the perfect time for all Ethiopians to bury the hatchet of ethnic division, religious sectarianism, regional conflict and human rights violations. It is the perfect time to shake hands, embrace each other and get our noses to the grindstone to build a new democratic Ethiopia where the rule of law is upheld and human rights and democratic institutions respected.
Today, not tomorrow, is the best time to put an end to historic hatreds and resentments and open a new chapter in Ethiopia’s history. Today is the best time to unchain ourselves from the burdens of the past, close the wounds that have festered for generations and declare to future generations that we will no longer be prisoners of resentments of the past. Nelson Mandela said that “Resentment is like drinking poison and then hoping it will kill your enemies.” Mandela did not drink from the poison of resentment and managed to outlive most of his “enemies” and is still alive and kicking at 94. But today there is a lot of resentment going around in Ethiopia and in the Ethiopian Diaspora. There is the quiet and despairing resentment of those who feel wounded and defeated by loss. There is the gloating resentment of those who feel victorious and morally vindicated by the loss of others. Then there is the resentment of those who are indifferent because they just don’t care. Today is a great day to say good-bye to historic animosities. Today is a great day to end bitterness, not tomorrow. Reaching out to our adversaries must begin today, not tomorrow. Reconciliation must begin today, not tomorrow. Most importantly, “radical improvements in good governance and democracy” must begin today, not tomorrow.
Let’s Begin Radical Improvements in Good Governance and Democracy Today
In 2007, the late Meles Zenawi expressed his “hope that [his] legacy” would be not only “sustained and accelerated development that would pull Ethiopia out of the massive deep poverty” but also “radical improvements in terms of good governance and democracy.” Today is the day to begin in earnest radical improvements in good governance and democracy. These improvements must begin with the release of all political prisoners, repeal of anti-terrorism, civil society and other oppressive laws and declaration of allegiance to the rule of law.
All political prisoners in Ethiopia must be released. Their situation has been amply documented for years in the reports of the U.S. Government, U.N. agencies and various international human rights organizations. The 2011 U.S. State Department Country Reports on Human Rights Practices in Ethiopia (April 2011) documented “unlawful killings, torture, beating, and abuse and mistreatment of detainees and opposition supporters by security forces, especially special police and local militias, which took aggressive or violent action with evident impunity in numerous instances; poor prison conditions; arbitrary arrest and detention, particularly of suspected sympathizers or members of opposition or insurgent groups; detention without charge and lengthy pretrial detention…”
In its 2010 World Report-Ethiopia, Human Rights Watch (HRW) concluded that “torture and ill-treatment have been used by Ethiopia’s police, military, and other members of the security forces to punish a spectrum of perceived dissenters, including university students, members of the political opposition, and alleged supporters of insurgent groups… Secret detention facilities and military barracks are most often used by Ethiopian security forces for such activities.”
A report of the U.N. Committee Against Torture (November 2010) expressed “deep concerns about numerous, ongoing and consistent allegations concerning the routine use of torture by the police, prison officers and other members of the security forces, as well as the military, in particular against political dissidents and opposition party members, students, alleged terrorist suspects and alleged supporters of insurgent groups such as the Ogaden National Liberation Front (ONLF) and the Oromo Liberation Front (OLF). It is concerned about credible reports that such acts frequently occur with the participation, at the instigation or with the consent of commanding officers in police stations, detention centers, federal prisons, military bases and in unofficial or secret places of detention.”
It is difficult to accurately establish the number of political prisoners in Ethiopia. International human rights organizations are not allowed access to political prisoners or to investigate their situation. But various reports provide estimates that vary from several hundreds to tens of thousands. Recent estimates by Genocide Watch peg the number of political prisoners at around one hundred thousand. Political dissidents, critics and opposition leaders continue to be arrested and detained every day. In the past year, an undetermined number of members of the Oromo Federalist Democratic Movement (OFDM) and the Oromo People’s Congress (OPC) have been detained for political reasons. Other opposition parties have reported similar arrests of their members. Alleged members of the Oromo Liberation Front continue to be arrested and detained without charge. In just the past few months, journalists, opposition political leaders and activists, including Andualem Arage, the charismatic vice chairman of the opposition coalition Medrek, Natnael Mekonnen, an official of the Unity for Democracy and Justice Party, the internationally-celebrated journalists Eskinder Nega and Reeyot Alemu, and editor Woubshet Alemu have been sentenced to long prison terms.
Radical improvements in good governance and democracy also require repeal of the so-called “Anti-Terrorism Proclamation No. 652/2009”. Over the past few years, this “law” has been used to round up and jail dissidents, journalists and opposition party political leaders as “terrorists.” The law has been condemned by all international human rights organizations. Human Rights Watch criticized the law as “potent tool for suppressing political opposition and independent criticism of government policy.” The vaguely drafted “anti-terrorism law” in fact is not much of a law as it is a velvet gloved iron fist used to smash any opponent of the regime. Speech aimed at “advancing a political, religious or ideological cause” and intending to “influence the government”, “intimidate the public”, “destabilize or destroy the fundamental political, constitutional, economic or social institutions of the country” is classified as “terrorism”. Making or publishing statements “likely to be understood as encouraging terrorist acts” is a punishable offense under the “law”. Anyone who provides “moral support or advice” or has any contact with an individual accused of a terrorist act is presumed to be a terrorist supporter. Anyone who “writes, edits, prints, publishes, publicizes, disseminates, shows, makes to be heard any promotional statements encouraging, supporting or advancing terrorist acts” is deemed a “terrorist”. A person who “fails to immediately inform or give information or evidence to the police” on a neighbor, co-worker or others s/he may suspect of “terrorism” could face up to 10 years for failure to report. Two or more persons who have contact with a “terror” suspect could be charged with conspiracy to commit “terrorism”.
Under the “anti-terrorism” law, “The police may arrest without court warrant any person whom he reasonably suspects to have committed or is committing terrorism” and hold that person in incommunicado detention. The police can engage in random and “sudden search and seizure” of the person, place or personal effects of anyone suspected of “terrorism”. The police can “intercept, install or conduct surveillance on the telephone, fax, radio, internet, electronic, postal, and similar communications” of a person suspected of terrorism. The police can order “any government institution, official, bank, or a private organization or an individual” to turn over documents, evidence and information on a “terror” suspect. A “terror” suspect can be held in custody without charge for up to “four months”. Any “evidence” presented by the regime’s prosecutor against a “terror” suspect in “court” is admissible, including “confessions” (extracted by torture), “hearsay”, “indirect, digital and electronic evidences” and “intelligence reports even if the report does not disclose the source or the method it was gathered (including evidence obtained by torture).
As I have previously commented, the “anti-terrorism” law criminalizes democratic civic existence itself: “Thinking is terrorism. Dissent is terrorism. Speaking truth to power is terrorism. Having a conscience is terrorism. Peaceful protest is terrorism. Refusing to sell out one’s soul is terrorism. Standing up for democracy and human rights is terrorism. Defending the rule of law is terrorism. Peaceful resistance of state terrorism is terrorism. But one must be reasonable about “terrorism”. Nelson Mandela was jailed for 27 years as a “terrorist” by the Apartheid regime in South Africa. Following his release, he said, “I was called a terrorist yesterday, but when I came out of jail, many people embraced me, including my enemies, and that is what I normally tell other people who say those who are struggling for liberation in their country are terrorists. I tell them that I was also a terrorist yesterday, but, today, I am admired by the very people who said I was one.” The “antiterrorism law” must be repealed.
The so-called Charities and Societies Proclamation No. 621/2009 must be repealed. This “law” has been severely criticized by all of the major international human rights organizations. Among its draconian elements include prohibitions on foreign non-governmental organizations (NGOs) from engaging in human rights and democratic advocacy activities in Ethiopia including advocacy of gender and religious equality, conflict resolution or justice system and electoral reform. A local NGO that receives more than ten percent of its funding from foreign sources is considered “foreign”. Since few Ethiopian NGOs are financially self-sufficient, the vast majority depend significantly on foreign sources for their funding. This law has effectively put them out of business. The law allows an administrative body to have final authority over NGO disputes by granting it broad discretion to deny, suspend or revoke the registration of any NGO. Criminal sanctions and fines are also provided for violations of the law exposing NGO officials, members, volunteers and service recipients. Moreover, this law flagrantly violates various sections of the Ethiopian Constitution dealing with freedom of expression, assembly and association as has been pointed out by various human rights organizations.
Ethiopia today stands at the crossroads. It can march forward into democracy by taking confident steps that begin radical improvements in good governance and democracy. Or Ethiopia can continue to slide backwards and deeper into the vortex of dictatorship. Or it can free fall into chaos and strife. The choice is ours to make. There are important lessons to be learned by all. Those in power should be mindful that “making peaceful revolution impossible is making violent revolution inevitable.” Others should heed the message of Dr. Martin Luther King who once told the great Harry Belafonte his concerns about racial desegregation and its potential consequences: “I fear, I am integrating my people into a burning house,” wondered Dr. King metaphorically referring to the potential for racial conflict and strife that could result from outlawing discrimination. Belafonte, somewhat taken aback asked Dr. King, “What should we do?” Dr. King told him that we should “become the firemen [and] not stand by and let the house burn.’” We all need to be Ethiopian firemen and firewomen and begin “radical improvements in good governance and democracy” today, not tomorrow!!
Amharic translations of recent commentaries by the author may be found at: http://www.ecadforum.com/Amharic/archives/category/al-mariam-amharic and http://ethioforum.org/?cat=24
Previous commentaries by the author are available at: http://open.salon.com/blog/almariam/ and www.huffingtonpost.com/alemayehu-g-mariam/
Alemayehu G Mariam
Rule of Law, Rule by Law, Rule by Unjust Law, Rule by Man
All of the weekly commentaries I have written over the years have been structured on a single fundamental principle: the rule of law. What is it? How does it configure in Ethiopia’s transition from dictatorship to democracy?
The phrase “rule of law” is somewhat vague and much overused by scholars and advocates, and casually thrown around in general political conversation. The phrase is so popular that even dictators swear by it. In October 2011, Meles Zenawi told Aftenposten (Norway’s largest paper): “We have reached a very advanced stage of rule of law and respect for human rights. Fundamentally, this is a country where democratic rights of people are respected.” (Ahem!!!)
For lawyers, “rule of law” is a term of art which generally signifies constitutional supremacy and adherence to principles of due process. Political scientists use the phrase to describe institutional mechanisms for policing the state and preventing abuse of power through established accountability procedures and guarantees of basic civil, human and substantive rights. The phrase is gaining popularity among economists who have come to realize that the rule of law is necessary to create a secure environment for business, investments, contracts and market transactions. Where there the rule of law prevails, good governance (accountability, transparency, free and fair elections, etc.) follows and economies grow. Since the 1990s, the World Bank and the International Monetary Fund, among others, have insisted on implementation of the “rule of law” as a condition of loans and assistance in Africa (largely without much success).
Dictators often jabber about the “rule of law” to shroud their “rule by law” of one man, one party. In a society under the “rule of men”, absolute power is exercised by the privileged few who are above the law. One man, one party, one select group decides for the whole society. That was what Adolf Hitler, Joseph Stalin, and Mao Zedong and others did; and that is what Africa’s dictators do today.
Rule of Law and Rule by Diktat
African dictators rule by diktat (arbitrary decrees issued by command of the dictator) which they try to palm off as “laws” (legislation enacted by a legitimately elected body engaged in deliberative process). They scribble down their diktats, have it approved by their rubberstamp parliaments and pronounce it “law” or “proclamation”. They use the diktat to play policeman, prosecutor, judge, jury and executioner. Under rule by diktat, dictators use the “law” as a bludgeon — a sledgehammer — to vanquish their opposition. On March 28, 2006, Congressman Christopher Smith, Chairman of House Subcommittee on Africa, Global Human Rights and International Operations recounted a revealing conversation he had with Zenawi which demonstrates rule by diktat:
During my visit to Addis last August [2005], I met with Prime Minister Meles Zenawi, and I asked him why he had not investigated the June shootings of demonstrators by agents of his government. His response was that the investigation might require the arrest of opposition leaders, and he didn’t want to do that while by-elections were still scheduled. He went on to tell me that he had dossiers on all the opposition leaders and could arrest them for treason whenever he wanted. Thus, their arrests were all but certain even before the events that ostensibly led to their being incarcerated.
In a more recent example of rule by dictat, Zenawi visiting Norway in October 2011 proclaimed two freelance Swedish journalists Johan Persson and Martin Schibbye awaiting trial were guilty of terrorism. He said the two journalists “are, at the very least, messenger boys of a terrorist organization. They are not journalists. Why would a journalist be involved with a terrorist organization and enter a country with that terrorist organization, escorted by armed terrorists, and participate in a fighting in which this terrorist organization was involved? If that is journalism, I don’t know what terrorism is.” Zenawi seemed to be unfamiliar with Art. 20 (3) of the Ethiopian Constitution which guarantees: “During proceedings accused persons have the right to be presumed innocent.” In late February 2012, Zenawi made the following incredibly mindboggling statement about the same Swedish journalists:
The government gave a small statement that such people have been put [in] prison… The next day the campaign was launched, ‘Free press, innocent people with no issue at all!’ They just give pronouncements before the case has gone to court, before evidence has been heard. The pronouncement was there; the government is the criminal and the people are innocent. (Well, if the shoe fits, wear it!)
After declaring the two journlaists “terrorists” in October 2011, in February 2012, Zenawi has the audacity to criticize others for commenting on the journalsits’ innocence “before the case has gone to court, before evidence has been heard.” Incredible!
A Practical Understanding of the Rule of Law
As the scholars and lawyers debate the finer points of the rule of law, it is possible to fashion a practical understanding of the principle which could be useful in the dialogue and debate over Ethiopia’s transition from dictatorship to democracy. A practical lesson in the application of the rule of law principle could be learned by examining “anti-terrorism” laws in the U.S. and Ethiopia.
In 2001, President Bush signed an executive order authorizing the creation of military tribunals for the detention, treatment and trial of certain non-citizens (“enemy combatants”) in the war against terrorism. In 2006 the U.S. Supreme Court struck down the executive order and commissions as unconstitutional (Hamdan v. Rumsfeld) holding that the President lacks constitutional or statutory authority. Much to the great disappointment of the Bush Administration, the Court held that these terror suspects were entitled to the protection of the ordinary laws of the United States and the laws of war including the Geneva Convention, and the Uniform Code of Military Justice. In language that pays homage to deep-rooted American civil liberties, the Court wrote: “Assuming that Hamdan [terror suspect] is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment.”
In 2004, in a similar case of a terror suspect (Rasul v. Bush), the U.S. Supreme Court upheld the rule of law by requiring the President to honor the writ of habeas corpus (one of the greatest rights Americans have to challenge the government in court unlawful restraint on their liberties). The Court held that a terror suspect detainee may not be denied access to lawyers and civilians courts in violation of the due process guarantees of the Fifth Amendment to the U.S. Constitution. Simply stated, even wicked villains and evil-doers are shielded by the rule of law in the American Constitution.
In contrast, rule by law (rule by diktat) has made Zenawi’s so-called anti-terrorism law (“Anti-Terrorism Proclamation No. 652/2009”) a sledgehammer to crush dissidents, journalists, opposition political leaders and anyone considered an enemy. In early February 2012, a group of independent United Nations human rights experts (U.N. Special Rapporteurs) made public statements condemning the ongoing use of anti-terrorism laws to curb a broad range of freedoms in Ethiopia. Ben Emmerson, the U.N. Special Rapporteur on counter-terrorism and human rights, said that “the anti-terrorism provisions should not be abused and need to be clearly defined in Ethiopian criminal law to ensure that they do not go counter to internationally guaranteed human rights.” Frank La Rue, the U.N. Special Rapporteur on freedom of expression, said that “Journalists play a crucial role in promoting accountability of public officials by investigating and informing the public about human rights violations. They should not face criminal proceedings for carrying out their legitimate work, let alone be severely punished.” Margaret Sekaggya, the U.N. Special Rapporteur on human rights defenders, stated that “journalists, bloggers and others advocating for increased respect for human rights should not be subject to pressure for the mere fact that their views are not in alignment with those of the Government [of Ethiopia].” Maina Kiai, the U.N. Special Rapporteur on the rights to freedom of peaceful assembly and of association, said “The resort to anti-terrorism legislation is one of the many obstacles faced by associations today in Ethiopia. The Government must ensure protection across all areas involving the work of associations, especially in relation to human rights issues.” Gabriela Knaul, the U.N. Special Rapporteur on the independence of judges and lawyers, said: “Defendants in a criminal process should be considered as innocent until proven guilty as enshrined in the Constitution of Ethiopia… And it is crucial that defendants have access to a lawyer during the pre-trial stage to safeguard their right to prepare their legal defence.”
The Essence of the Rule of Law
The essence of the rule of law can be summarized in the following simple proposition: Because power corrupts and absolute power corrupts absolutely, the rule of law is essential to prevent power from corrupting and absolute power from corrupting absolutely. The U.N. Secretary-General in a report to the Security Council in 2004 prescribed implementation of the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.” In practice, it is necessary to have “measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” The World Bank says where the rule of law prevails government exercises self-restraint, treats its citizens justly and equally under the law and protects the dignity of each individual in society. Numerous other organizations and institutions involved in the rule of law movement have come to the same conclusion.
Rule of Law Cannot Be “Copycatted”
There are some who believe that blindly “copycatting” laws and regulations from other countries and incorporating them verbatim into their own laws somehow guarantees the existence and prevalence of the rule of law. In justifying his “anti-terrorism law” in February 2012, Zenawi offered the following mindboggling explanation to his rubberstamp parliament:
In drafting our anti-terrorism law, we copied word-for-word the very best anti-terrorism laws in the world. We took from America, England and the European model anti-terrorism laws. It is from these three sources that we have drafted our anti-terrorism law. From these, we have choses the better ones. For instance, in all of these laws, an organization is deemed to be terrorist by the executive branch. We improved it by saying it is not good for the executive to make that determination. We took the definition of terrorism word-by-word. Not one word was changed. Not even a comma. It is taken word-by-word. There is a reason why we took it word-by-word. First, these people have experience in democratic governance. Because they have experience, there is no shame if we learn or take from them. Learning from a good teacher is useful not harmful. Nothing embarrassing about it. The [antiterrorism] proclamation in every respect is flawless. It is better than the best anti-terrorism laws [in the world] but not less than any one of them in any way…
One cringes in total embarrassment at such a stunningly shallow understanding of jurisprudence, glib talk about the law and inattention to a glaring logical fallacy in one’s argument. In seeking to establish that his anti-terrorism law is based on the rule of law, Zenawi commits a logical fallacy known as “argument from authority” (argumentum ad verecundiam). The logic of his argument is that America and Britain are democratic countries with a high degree of adherence to the rule of law principle; and they have anti-terrorism laws that are the “best” in the world. We have “copied word-for-word” the best elements of their anti-terrorism laws and put them to use. Therefore, our terrorism laws are “flawless” and singularly the very best in the world!
By invoking a fallacious authority and creating a manifestly false analogy, Zenawi aims to clothe his anti-terrorism diktat with moral legitimacy and legal respectability. One cannot create a lion by piecing together the sturdy long neck of the giraffe with the the strong jaws of a hyena, the fast limbs of the cheetah and the massive trunk of the elephant. The king of the jungle is an altogether different beast. In the same vein, one cannot clone pieces of anti-terrorism laws from everywhere onto a diktat and sanctify it as “flawless in every respect”.
Imitation may best the highest form of flattery, but to boldly claim that a mindlessly cloned diktat is “flawless” is just mindless. Beyond logical fallacy, Zenawi seems to be totally clueless about elementary principles of jurisprudence in the Anglo-American tradition. The American antiterrorism law (Zenawi does not specifically identify the American antiterrorism law he copied word-for-word, but one may reasonably assume he is referring to the “USA Patriot Act”), is not merely a collection of words, legal phrases, clauses, terms and paragraphs. The Patriot Act was drafted with intense debate and deliberation in the Congress (not scribbled down and sent for rubberstamping), contentious disputes in the media (in the U.S. it not a crime to criticize a law in the media) and amidst outraged public dialogue and debate (not shoved down the public’s throat). Above all, it was crafted within the known boundaries of the Fourth, Fifth and Sixth Amendments and Article I, section 9 of the U.S. Constitution. The legislative language in the Patriot Act derives its vitality not from glib semantic analysis of words and phrases, but from long and storied legal traditions that date back to the Magna Carta (Great Charter) in 1215, the Declaration of Independence in 1776 and the vast body of Anglo-American common law. Most importantly, the Patriot Act is subject to the supreme law of the land– the U.S. Constitution. Thomas Paine, one of the revolutionary “Founding Fathers of the United States” and the “voice of the common man” explained it best in Common Sense: “In America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”
If Zenawi wants to copycat American and British anti-terrorism laws, he cannot cherry pick words, phrases, sentences and clauses. He has to take the whole package because those words, phrases and clauses he copied so proudly have complex histories, meanings, nuances and implications. Those blindly borrowed words and phrases have special meaning and application when they are considered, contextualized, synthesized and analyzed within the broader framework of Anglo-American common law, judicial precedents, legal principles and doctrines, rules of statutory construction, legal scholarship, legislative intent and numerous other factors. If Zenawi chooses to imitate and clone American law “word-for-word”, he is practically, logically and hermeneutically obliged to give meaning to those laws within the framework of the American Constitution and the body of constitutional law.
But Zenawi simply has no clue. The U.S. “antiterrorism law” is not as perfect as he the thinks it is and may not be worthy of ultimate imitation. In fact, it is quite flawed. For instance, in 2004, a federal judge in New York ruled that a key component of the USA Patriot Act is unconstitutional because it allows the FBI to demand information from Internet service providers without judicial oversight or public review. Another federal judge in Oregon in 2007 ruled that crucial parts of the USA Patriot Act were unconstitutional because they allowed federal surveillance and searches of Americans without demonstrating probable cause required by the Fourth Amendment. The judge wrote, “For over 200 years, this Nation has adhered to the rule of law — with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised.”
Unlike Zenawi’s “anti-terrorism” diktat, the Patriot Act had significant limitations in itself, including sunset provisions (expiration dates) of December 31, 2005 on a number of issues including wiretapping, sharing foreign intelligence information, seizure of voice-mail emergency disclosure of electronic surveillance. When it was reauthorized, a new sunset of December 31, 2009 was established and significant amendments added to provide for greater congressional and judicial oversight of orders for roving wiretaps and enhanced procedural protections for “sneak and peek” search warrants, among many others.
Zenawi also fails to understand the power of judicial review and the resolute ferocity of American lawyers dedicated to civil liberties in challenging the government and stopping it from encroaching on the civil liberties of the people. In other words, in America, there are lawyers and judges who are willing, able and ready to hold the Congress’ or the President’s feet to the fire of the supreme law of the land. In Ethiopia, there are only dictators who hold the peoples’ feet, hands and bodies to the fire.
But Zenawi is absolutely right in saying that “there is no shame if we learn or take from them [America, Britain, European model]”. Learning from a good teacher is useful not harmful.” But it is not enough to have good teachers, one must also be a good student and learn all of the substantive lessons, not just a word here, a phrase there and a clause somewhere else.
Do Ethiopians Want a Government of Laws and Not of Men?
The rule of law operates differently in different societies and there is no single “flawless” conception of the principle. I do believe there are some commonalities and universal elements of the rule of law principle that are applicable in all societies. To extract the most universal elements, it is necessary to learn from alternative conceptions and experiences in the application of the rule of law. But the learning process should not be robotic or involve the mindless aggregation of bits and fragments of information and analysis. It should be syncretic, synthesizing divergent and conflicting ideas and practices in the practical application of the rule of law.
The rule of law in Ethiopia, I believe, is an ancient ideal. Ordinary Ethiopians used to invoke the “divine power of the law” (ye heg amlak) against wrong-doers and abusers of power. That was when they could see the faint and distant image of justice painted on a canvas of autocratic rule. But it must also be pointed out that the Ethiopian civic culture has tolerated an insidious exception to the rule of law which persists to the present day. An old Ethiopia adage says, “One cannot plough (farm) the sky nor hold a king to account in court” (semai aye-tares, negus aye-keses). “Negus” Zenawi is the personification of that adage today. In the transition from dictatorship to democracy, Ethiopians will have an opportunity to choose between alternative conceptions of the rule of law.
My view is that rule of law is a quintessential principle of good democratic governance. It is a vital part of statecraft (the art of leading a country). It is a fundamental element in nation-building, state-building, peace-building, democracy-building, justice-building and truth and reconciliation. I do not equate the rule of law with democracy, but I believe it makes genuine multiparty democracy possible through institutional arrangements for conducting clean, free and fair elections. I do not think the rule of law by itself guarantees justice, but it will serve to facilitate the delivery of justice to citizens through an independent and transparent judicial process. It will not guarantee equality, human rights and the rest of it, but without the rule of law there can be no equality or human dignity. I believe respect for human rights is the single important manifestation of the prevalence of the rule of law in any society and the most persuasive evidence of good governance.
Rule of Unjust Laws?
I am persuaded by the works of the great philosophers, thinkers, theologians, theorists, revolutionaries and human and civil rights rights advocates — Cicero, Augustine, Aquinas, Gandhi, King and even the framers of the U.S. Constitution in their Declaration of Independence — who argued that an unjust law (diktat) is not really a law at all. Dr. Martin Luther King said, “Any law that uplifts human personality is just. Any law that degrades human personality is unjust. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws… for an unjust law is no law at all.” So Ethiopia’s transition from dictatorship to democracy will be a transition from rule by unjust laws to the rule of just laws, and an uprising from degradation to collective elevation. I believe the rule of law will take deep root in Ethiopia when government learns always to fear its citizens and citizens acquire the courage never to fear their government!
Amharic translations of recent commentaries by the author may be found at:
http://www.ecadforum.com/Amharic/archives/category/al-mariam-amharic and
http://ethioforum.org/?cat=24
Previous commentaries by the author are available at:
http://open.salon.com/blog/almariam/ and
www.huffingtonpost.com/alemayehu-g-mariam/
First, Why is Africa Poor?
George Ayittey, the renowned Ghanaian economist and president of the Free Africa Foundation swears that “Africa is poor because she is not free”. Like Ayittey, Robert Guest, business editor for The Economist, in his book The Shackled Continent (2004), declares that “Africans are poor because they are poorly governed.” He argues that “Africa is the only continent to have grown poorer over the last three decades” while other developing countries and regions have grown richer. Much of Africa, it seems, was better off at the end of colonialism than it is today.
For Ayittey and Guest, the tens of billions of dollars in Western aid to Africa have done very little to improve the lives of Africans; at best, aid has served to “bankroll tyrants” and facilitate experimentation by “idealists with hopeless economic policies.” Statism (the state as the principal change agent) and dictatorship have denied the African masses basic political and economic freedoms while the few privileged kleptocrats (or thieves that have pirated the ship of state, emptied out the national treasury and plundered the economy) live the sweet life of luxury (la dolce vita), not entirely unlike the “good old” colonial times. As Ayittey explains, much of Africa today suffers under the control of “vampire states” with “governments that have been hijacked by a phalanx of bandits and crooks who would use the instruments of the state machinery to enrich themselves and their cronies and their tribesmen and exclude everybody else.” (“Hyena States” would be a fitting metaphor considering the African landscape and the rapacious and predatory nature of the crooks.) Simply stated, much of Africa languishes under the rule of thugtators (thugtatorship is the highest stage of African dictatorship) who cling to power for the single purpose of using the apparatuses of the state to loot and ransack their nations. Such is the unvarnished truth about Africa’s entrapment in perpetual post-independence poverty and destitution.
Could it be said equally that Ethiopia is at the tail end of the poorest countries on the planet because she is not free and gasps in the jaws of a “vampiric” dictatorship? In other words….
Is Ethiopia Poor, Hungry, Ill and Illiterate Because She is Not Free and Poorly Governed?
A couple of weeks ago, the Legatum Institute (LI), an independent non-partisan public policy group based in London, released its 2011 Legatum Prosperity Index (LPI) which ranked Ethiopia a pretty dismal 108th/110 countries.[1] LPI’s findings are sobering as they are heartbreaking. Ethiopia has an “unemployment rate [that] is almost 21%, which is the sixth highest rate, globally.” The “capital per worker in Ethiopia is the fourth lowest worldwide.” The country has “virtually no investment in R&D.” The ability of Ethiopians “to start and run a business is highly limited… [with a] communication infrastructure [that] is weak with only five mobile phones for every 100 citizens”; and the availability of internet bandwidth and secure servers is negligible. Inequality is systemic and widespread and the country is among the bottom ten countries on the Index. The Ethiopian “education system is poor at all levels and its population is deeply dissatisfied.” There is “only one teacher for every 58 pupils at primary level, there is a massive shortage of educators, and Ethiopian workers are typically poorly educated.” Less than a “quarter of the population believe Ethiopian children have the opportunity to learn and grow every day, which is the lowest such rate in the Index.”
On “health outcomes, Ethiopia performs very poorly. Its infant mortality rate, 67 deaths per 1,000 live births, and its health-adjusted life expectancy of 50 years, placing Ethiopia among the bottom 20 nations.” The population has high mortality rates from “Tuberculosis infections and respiratory diseases. Access to hospital beds and sanitation facilities is very limited, placing the country 109th and 110th (very last) on these measures of health infrastructure.” The core problem of poor governance is reflected in the fact that “there appears to be little respect for the rule of law, and the country is notable for its poor regulatory environment for business, placing 101st in the Index on this variable.”
But it is not only the LPI that has ranked Ethiopia at the rump of the most impoverished and poorly governed nations in the world. Last year, the Oxford Poverty and Human Development Initiative (OPHDI) Multidimensional Poverty Index 2010 (formerly annual U.N.D.P. Human Poverty Index) ranked Ethiopia as the second poorest (ahead of famine-ravaged Mali) country on the planet. According to OPHDI, the percentage of the Ethiopian population in “severe poverty” (living on less than USD$1 a day) in 2005 was 72.3%. Six million Ethiopians needed emergency food aid in 2010 and many more millions needed food aid in 2011 in what the U.N. described as the “worst drought in over half a century to hit parts of East Africa”. The World Bank this past June concluded that “Ethiopia’s dependence on foreign capital to finance budget deficits and a five-year investment plan is unsustainable.” The Bank criticized dictator Meles Zenawi’s “dependen[ce] on foreign capital or other means of financing investment in an unhealthy, unsustainable way.” Ethiopia is the world’s second-biggest recipient of foreign aid, after Afghanistan, according to the Organization for Cooperation and Economic Development rankings of developing nations because its “leaders” have perfected the art of international mendicancy (panhandling).
That is not all. Every international index over the past several years has ranked Ethiopia at the very bottom of the scale including Transparency International’s Corruption Index (among most corrupt countries), the Failed States Index (among the most failed), the Index of Economic Freedom (among the most economically repressive), the International Bank for Reconstruction and Development Investment Climate Assessment (among the most unfriendly to business), the Ibrahim Index of African Governance (among the most poorly governed African countries), the Bertelsmann Political and Economic Transformation Index (among countries most in need of reform) and the Environmental Performance Index (among countries with poorest environmental and public health indicators).
Of course, none of that comes as a surprise to those who are familiar with the fakeonomics of Meles Zenawi. Zenawi says all of the Indexes, the World Bank and the International Monetary Fund (IMF) are wrong. He boldly claims the Ethiopian “economy recorded an average economic growth rate of 11 percent over the past seven years.” But that incredibly rosy growth rate figure, often repeated and republished mindlessly and unquestioningly by the international media, is based exclusively on statistics manufactured by Zenawi’s statistics department. This past June, the IMF debunked Zenawi’s imaginary economic growth estimate of 11.4 percent for 2009 “saying 7.5 percent is more realistic.” The IMF “forecast is even lower growth of about 6 percent for the coming year” because of a “more restrictive business climate”.
Economic principles, facts and realities are irrelevant to Zenawi. According to “Zenawinomics” (a/k/a “Growth and Transformation Plan”), there are bottomless pots of gold awaiting Ethiopians at the end of the rainbow in 2015: The Ethiopian economy will grow by 14.9 percent (oddly enough not 15 percent). There will be “food security at household and national level.” There will be “more than 2000 km of railway networks would be constructed” and power generation will be in the range of “ 8,000 to 10,000 MW from water and wind resources during the next five years.” The “whole community has mobilized to buy bonds. This huge savings and mobilization is used for infrastructure development… We are getting loans from China, India, Turkey and South Korea, so all these foreign savings are also mobilized… So I think we can perform on the ambitious plans that are in place.”
Zenawinomics is the economics of a magical wonderland, very much like Alice’s Wonderland: “If I had a world of my own,” said Alice “everything would be nonsense. Nothing would be what it is because everything would be what it isn’t. And contrary-wise; what it is it wouldn’t be, and what it wouldn’t be, it would. You see?”
Maybe you don’t see. That is the whole point. In what Zenawi describes as “one of fastest growing non-oil economies in Africa,” inflation is soaring, and by mid-2011, Zenawi’s Central Statistical Agency reported that the annual inflation rate had increased by 38 percent and food prices had surged by 45.3 percent. There are more than 12 million people who are chronically or periodically food insecure. Yet, Zenawi is handing out “large chunks” of the most fertile land in the country for free, to be sure for pennies, to foreign agribusiness multinational corporations to farm commercially and export the harvest. This past July, the U.S. Census Bureau had a frightening population forecast: By 2050, Ethiopia’s current population of 90 million population will more than triple to 278 million, placing that country in the top 10 most populous countries in the world. It just does not make any sense.
In May 2010, the Economist Magazine rhetorically asked: “Ethiopia’s prime minister, and his ruling Ethiopian People’s Revolutionary Democratic Front (EPRDF) expect a landslide victory in the general election due on May 23rd, and are likely to get one (they actually “won” it by 99.6 percent!). The bigger question is whether another five years of EPRDF rule will help ordinary Ethiopians, who are among the poorest and hungriest people in the world.”
Ethiopia Can Prosper Only If She Has Good Governance
The United Nations Development Programme and other international lending institutions define ‘governance’ as the “exercise of power or authority – political, economic, administrative or otherwise – to manage a country’s resources and affairs.” Good governance has to do with the “competent management of a country’s resources and affairs in a manner that is open, transparent, accountable, equitable and responsive to people’s needs.” There is substantial empirical research showing that political freedom, strong social and political institutions and proper regulatory mechanisms significantly contribute to economic growth. Stated simply, good governance and “good” (sustainable) growth are based on mutually reinforcing principles.
Where there is good governance, there is substantial political and legal accountability and much greater respect for civil, political and property rights. Leaders are held politically accountable to the people through fair, free and regular elections; and an independent electoral commission ensures there is no voter fraud, voting irregularities, vote buying, voter intimidation and voter harassment. Institutional mechanisms are in place to ensure the rule of law is followed and those exercising political power and engaged in official decision-making perform their duties with transparency and legal accountability. Where there is good governance, citizens have freedom of association and the right to freely exchange and debate ideas while independent press, and even state-owned media, operate freely along with robust civil society institutions to inform and mobilize the population.
Good governance is an essential precondition for sustainable development. Stable and democratic governing institutions protect political and economic liberty and create an environment of civic participation, which in turn “determines whether a country has the capacity to use resources effectively to promote economic growth and reduce poverty.” On the other hand, bad or poor governance stifles and impedes development and undermines competition in the marketplace. Where human rights and the rule of law are disrespected, corruption flourishes and development inevitably suffers aspolitical leaders and public officials siphon off resources from critical school, hospital, road and other public works and community projects to line their pockets. But where there is good governance, not only is economic development and growth accelerated, even chronic and structural problems of food insecurity (famine) that have plagued Ethiopia for decades can be controlled and overcome. As Amartya Sen has argued no substantial famine has ever occurred in any independent country with a democratic form of government and a relatively free press.
Because there is little or no political accountability, Ethiopia suffers from poor governance and remains at the bottom of the indexes of the most impoverished nations in the world. Programs intended for “poverty reduction” have been misused for political mobilization and rewards for voting for the ruling party. The country has been unable to promote broad-based economic growth because business attached to the ruling party have a near-total monopoly and chokehold on the economy making fair competition for non-ruling party affiliated entities in the market an exercise in futility. Because there is little respect for property and contract rights, those non-aligned with the ruling party feel insecure and disinclined to invest. The ruling regime has made little investment in human resources through effective policies and institutions that improve access to quality education and health services as the LPI data shows. As a result, the rate of flight of professionals, intellectuals, journalists and political dissidents, is among the 10 highest in the world. The International Organization for Migration has said it all: “There are more Ethiopian doctors practicing in the US city of Chicago than in Ethiopia.”
Ethiopia is universally regarded as one of the least free countries in the world and ranks at the very bottom of the 10 most repressive countries in the world for citizens’ freedoms in expression, belief, association, and personal autonomy. The respected Committee to Protect Journalists says, “Ethiopia is the second-leading jailer of journalists in Africa.” There is little regard for the rule of law as the LPI data confirms. In other words, those who occupy official positions have little respect for the country’s Constitution or laws, or show any concern for the fair administration of justice. The judiciary is merely the legal sledgehammer of the dictator and ruling party. The judges are party hacks enrobed in judicial garb with the principal mission of giving legal imprimatur to manifest official criminality. In sum, the rule of law in Ethiopia has been transmuted into the rule of one man, one party.
Few should be surprised by LPI’s conclusions that the “levels of confidence in the military and judiciary are both very low” and “Ethiopia is the country where expression of political views is perceived by the population to be most restricted.” None of the facts above matter to the dictators in Ethiopia because they are ready, willing and able to do whatever it takes to cling to power.
LPI’s dismal ranking of Ethiopia merely augments what has been solidly established over the years in the other Indexes. The question is why Ethiopia remains at the tail end of the most impoverished countries year after year. Zenawi’s “Federal Ethics and Anti-corruption Commission” (FEAC) conflates corruption and poverty in seeking to pinpoint the answer to this question. FEAC says the major sources of corruption in Ethiopia are “poor governance, lack of accountability and transparency, low level of democratic culture and tradition, lack of citizen participation, lack of clear regulations and authorization, low level of institutional control, extreme poverty and inequity, harmful cultural practices and centralization of authority.” Not quite! Poor governance, lack of accountability and transparency (a/k/a corruption), lack of citizen participation and the absence of the rule of law are the root causes of extreme and widespread poverty, underdevelopment, aid-dependency, conflict, instability, starvation and injustice in Ethiopia. Have free and fair elections, allow the independent press to flourish, institutionalize the rule of law and maintain an independent judiciary, professionalize and depoliticize the civil service, the military and police forces and Ethiopians will be well on their way to permanently defeating poverty and making starvation a footnote in the history of the Ethiopian nation.
Ethiopia is poor, hungry, ill and illiterate because she is poorly governed and not free!
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[1] The Legatum Index is based on 89 different variables covering the economy, entrepreneurship and opportunity, governance, education, health, safety and security, personal freedom, social capital and so on. The Institute uses data collected by the Gallup World Poll, World Trade Organization, World Development Indicators, GDP, World Intellectual Property Organization, UN Human Development Report, World Bank, OECD and World Values Survey.
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