IN-Depth analysis: The state of emergency is over but the fate of thousands hangs inside Ethiopia’s politicized court rooms, unlawfully.
Addis Abeba, August 22/2017 – On Friday August 04, members of the Ethiopian parliament have reconvened after having been called off their summer recess. Of the three topics they reconvened to discuss was the lifting of the ten month old State of Emergency (SoE), first declared on Oct. 08 2016.
Briefing the members of parliament (MPs) on the need to lift the SoE, Defense Minister Siraj Fegessa, who is also the secretariat of the command post established to oversee the implementations of the SoE, said that the country was experiencing a return to normalcy as compared to the months and days prior to the declaration of the emergency decree, hence the need to lift the SoE.
However, almost as news besides the lifting of the SoE, Siraj Fegessa told the lawmakers that there were 7, 737 individuals who were facing legal actions in different courts in the country after having been charged with criminal offenses. According to Siraj, 4, 136 of these people were from the Oromia regional state, the epicenter of the 2016 yearlong anti-government protests; 1, 888 from the Amhara regional state, which followed suit six months into the protests in Oromia; 1, 166 from the less publicized protest-hit areas in the Southern Nations Nationalities and People’s Regional state (SNNPR); and 547 from the capital Addis Abeba.
It was a déjà vu
Ethiopians are acutely familiar with the government’s intuitive response of mass detention that quickly follows popular anti-government protests. Tens of thousands of Ethiopians from all walks of life had ended up in the country’s military camps, prisons wards and temporary detention facilities in the post 2005 general elections, in which close to 200 protesters were also gunned down in the streets of the capital by fully armed security forces
Reminiscent of that recent past, 24,799 Ethiopians were detained in two rounds during in the first few weeks into the October SoE, according to the government’s own account. However, countless others were already detained in the lead up to October 2016, which brought the number of those detained to over 27, 000.
Grieving in Ethiopia’s politicized court rooms
It is worth mentioning here that the 7, 737 people who are now facing charges of serious criminal offenses, including but not limited to outrage against the constitutional order, is a number three times higher than the 2, 449 individuals that Siraj Fegessa said would be brought to face justice on Dec. 17, 2016.
In what could safely be considered as politically motivated act, the federal Supreme Court has “placed considerable pressures on courts and prisons authorities in Oromia, Amhara and Southern Nations, Nationalities and People’s regional states to bring thousands of detainees to Addis Abeba for them to be tried with terrorism offenses,” a senior judge in Adama, 100 km south of Addis Abeba, told Addis Standard.
A somewhat similar incident in post-2005 elections played a significant role in forcing the then president of the Oromia Regional State Supreme court, Teshale Aberra, into exile.
Speaking from his exile in the UK, Teshale told Addis Standard that in 2005, the rift between him and the federal Supreme Court widened when the later requested him to facilitate the trials of some 18,000 detainees who were transported to several detention facilities in Oromia regional state after having been detained in the capital Addis Abeba. “Because the case concerned protesters who supported the opposition CUD, which won all the 23 seats allocated to the city of Addis Abeba in the federal parliament, and because many of the judges who were presiding in the federal courts in the capital were ethnic Amharas, authorities at the federal Supreme Court believed that the trial would lack judicial impartiality from the judges,” Teshale said. “This was a clear case of politically motivated decision, which I refused to accept.”
Teshale’s experience in 2005 remained a perpetual stain in judicial procedures in Ethiopia, leaving the fate of hundreds of Ethiopians detained during protest-crackdowns and subsequently prosecuted hanging in the country’s politicized court rooms.
For starters, detainees are often brought to the capital from all corners of the country to face terrorism charges. This practice often exposes detainees to extrajudicial brutalities, including torture, inside prison facilities in the capital, especially the notorious Ma’ekelawi prison, where hundreds are forced to spend months on end without any due legal process. It also leaves detainees isolated from family members, thereby denying them of adequate legal representations.
A data available on newly established tracking website documents the number of people brought from different parts of the country and are facing terrorism charges in the capital, which shows a recent sharp increase since Ethiopia first introduced the Anti-Terrorism Proclamation (ATP) in 2009.
Of the close to 900 cases of terrorism (most of which is related to people who were brought from different parts of the country), a particular case in point is the case of six detainees who were brought to the capital after having been arrested in north Gonder and Bahir Dar of the Amhara Regional state. Activist Nigist Yirga, known by her iconic protest picture captured during last year’s protests in Amhara regional state with a text “The People of Amhara are not terrorists”, is facing terrorism charges along with Alemneh Wase Gebre Mariam, Tewdros Telay, Awoke Abate, Belayneh Alemneh, & Yared Girma in the federal high court 4th criminal bench here in the capital. A recent short animation video produced by the Ethiopia Human Rights Project (EHRP) sheds light on the disturbing abuse Nigist Yirga sustained while she was held in Ma’ekelawi.
However, Nigist’s case – neither her arrest nor the prison abuses she is subjected to – is by no means an isolated one. On July 25/2017, the families of Ayele Beyene, who died while in police custody at Qilinto prison, a maximum prison facility on the southern outskirt of Addis Abeba, have received and buried his body in his home town in Gidami, east Wallaga zone of western Ethiopia. After having spent months at Ma’ekelawi following their arrest in October 2016, Ayele and seven others with him were charged on May 10 with terror related as well as criminal offenses.
Delegation of federal courts jurisdiction
Perhaps beyond and above this disturbing practice is the constitutional legality of transferring detainees from other parts of the country to face terrorism charges in the capital Addis Abeba. The federal Constitution and the criminal justice policy (adopted in 2011) highly centralize criminal law, i.e. investigation and prosecution of crimes, under the federal government. It is a legal practice which relegates regional states in a federated Ethiopia to depend on the federal government concerning criminal matters that are political in nature, in particular terrorism related offenses.
Currently, there are two tiered courts both at the federal and state levels in Ethiopia: the Federal Supreme Court, (Federal High and First Instance Courts), and the State Supreme Court, (State High and First-Instance Courts). Article 80 of the federal constitution clearly stipulates that State Supreme Courts have the highest and final judicial power over State matters. Quote: “They shall also exercise the Jurisdiction of the Federal High Court [by delegation]. State High Courts shall, in addition to State jurisdiction, exercise the jurisdiction of the Federal First-Instance Court.” In other words, although the legislative criminal power has been centralized by the Federal Government in Ethiopia and has been ferociously applied to punish dissenting , it is, at the same time, decentralized in terms of its execution and adjudication by doctrine of delegation, at least on paper.
According to Yohannes Bekele (name changed), a former public prosecutor who is currently an attorney and counselor at law, there are two arguments to be made on the issue of criminal jurisdiction. The first is that all cases arising from the Federal Criminal Code should be the exclusive jurisdiction of the Federal Courts in line with Art. 3(1) of the Federal Court Proclamation No. 25/96. “This is the common argument the federal government criminal investigation and prosecution organs use when they want to investigate a crime of their interest”, Yohannes told Addis Standard.
The second argument is that the Regional State courts are empowered to hear cases other than the ones exhaustively reckoned under Article 4 of Federal Courts Proclamation. These are cases related to, among others, offenses against the constitutional order or against the internal security of the state; offenses against foreign states, against the law of nations, against the fiscal and economic interests of the Federal Government, as well as offenses regarding counterfeit currency, and forgery of instruments of the Federal Government.
Teshale on his part believes that if regional courts can take up cases as grave as these ones, “there should be no question about their ability to preside over terrorism cases.”
Terrorism related offenses
Despite the constitution however, Article 31 of the 2009 Anti-Terrorism Proclamation solely sanctioned the Federal High Court and the Federal Supreme Courts to have jurisdictions over terrorism related offenses. This proclamation does not incorporate a delegation clause to regional courts, giving federal courts the exclusive mandate to preside over terrorism cases brought against defendants who come from all parts of the country.
This, in and of itself, raises several concerns. The most alarming is the issues of access to justice. “Many of the suspects, especially those from Oromia and the southern regional state, do not have translation facilities during interrogations while in prison and during the hearing procedures,” said the senior judge in Adama, who wants to remain anonymous.
The issue of access to justice was one of the many concerns Addis Standard raised in its extensive coverage on Ma’ekelawi prison ward. To quote one of the interviewees then: “The fact that detainees come from afar disconnects them from their family and their support system thereof. But more importantly such distance from one’s place of residence becomes a barrier to access to justice. Physical distance, cultural distance, and linguistic distance are the three major barriers to access to justice.”
In a 2014 research paper submitted to the Addis Abeba University (AAU) titled Criminal Jurisdiction of State Court under FDRE Constitution, Abdi Gurmessa, a law graduate, stated that the current trend of centralization of criminal law and policy in the federal government is not effective when tested in light of the guiding principles of the distribution of powers, the principle of subsidiarity and the experiences of other federations. Centralized criminal law, according to Abdi, has an “adverse effect on the regional autonomy of the states”, and prohibits regional states from exercising the right to self-determination in the context of criminal laws.
This judicial overreach by the federal court was raised during a preliminary objection in one of the high profile terrorism charges in recent history of the country involving the Federal Attorney General vs. Gurmessa Ayano et al (including prominent politician Bekele Gerba). In a debate the later have since lost to the former, the defense team have argued on lack of jurisdiction of the federal court and said that the case could be tried by the Oromia Regional State Supreme court through delegation pursuant to the constitution. Their objection was dismissed by the federal court citing Article 31 of the Anti-Terrorism Proclamation; the case continued to be tried at the federal high court 4th criminal bench where it reached a curious stage.
However, in what is seen by many as a ‘sharp departure’ from what was expected, a complaint was lodged by the executive of the Oromia regional state sometime between November and December 2016 at the federal Supreme Court to block possible additional terrorism indictments against hundreds of individuals detained in the wake of the 2016 protest. (Gurmessa Ayano et.al were detained in the beginning of the protests in Dec. 2015, as are several others).
Subsequently, the federal Supreme Court has granted a rare delegation to the Oromia Supreme court to look into the cases involving the 4, 136 people who are now facing criminal charges in eleven different courts within the regional state, according to the judge in Adama. “It was a chance for these people to avoid terrorism indictments,” he said, “we are now working even in weekends to facilitate speedy trials.” Some of these courts where the hearings are taking place include courts in Dambi Dollo and Gimbi in western Ethiopia, Asella and Adama in south east, Batu (Ziway) and Shashemene in west Arsi, as well as Bale Robe and Yabello in south eastern Ethiopia, according to him.
Too little too late?
Despite this positive turn of event, however, the lingering detention and trial not only of the 4, 136 in Oromia, but also the rest in Amhara, SNNPR and Addis Abeba after the state of emergency was declared over defies constitutionalism.
The federal constitution under Article 22 provides protection under “Non-Retroactivity of Criminal Law.’ Art.22/1: “No one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense at the time when it was committed. Nor shall a heavier penalty be imposed on any person than the one that was applicable at the time when the criminal offense was committed.” Art.22/2: “Notwithstanding the provisions of sub-Article 1 of this Article, a law promulgated subsequent to the commission of the offense shall apply if it is advantageous to the accused or convicted person.”
“If the newly enacted law [that ostensibly repealed the SoE] is advantageous to those people who are accused of violating a repealed law, the new law will be implemented,” wrote Zelalem Kibret, a lecturer of law before he was dismissed by the Ambo University following his arrest as part of the Zone9 blogging collective, from which he was later on acquitted. In a series of twitter post shortly after the SoE was declared over, Zelalem wrote, “The State of Emergency decree criminalizes many trivial things that thousands were convicted of [or] are currently accused of. However, the State lifted the [SoE] by another proclamation, hence since the subsequent repeal is obviously advantageous to the incarcerated, it [would] get precedence in its application. As a result, all the cases invoking the SoE decree must be dropped and all awaiting and convicted prisoners must be released,” Zelalem said.
It is an optimism that Nigist Yirga, 24, and her co-defendants, as well as hundreds of others facing similar fate, could use following the lifting of the SoE on Aug. 04. But Ethiopians know that it may be too little too late. On August 18th, the Federal High Court 4th criminal bench has once again, and after several protracted hearings, failed to deliver a key a verdict on whether Nigist Yirga et.al have a case to defend; like several other cases, the court adjourned the next hearing to October 31/2017 after its summer recess. AS