Some questions for Professor Alemayehu Gebre Mariam Regarding HR 2003
Sir,
May I first express the deep sense of appreciation and esteem that I hold for you. Over the past couple of years, I have been reading your writings and on a number of occasions I have also heard you speak. I have been impressed by your eloquence and unparalleled rhetorical abilities. I am also touched by your dedication and zealousness in fighting for justice and democracy in Ethiopia. Having said that, however, I need to express to you some disquiets that I have had regarding HR 2003 - the Ethiopian Democracy and Accountability Act of 2007. This has been a bill that you and your colleagues at the Coalition for HR 2003 have been promoting aggressively. More than anyone, however, I feel that you are the face of the effort to have this bill passed into law. It is thus to you personally that I want to address my queries. It may be that that some of those who have read the bill may have similar or different questions. I do not, however, represent anyone, and am posing my questions and expressing my concerns as an ordinary Ethiopian citizen. Let me tell you from the outset that my reading of the bill has not left with me with a positive impression about it which I will elaborate presently. But I try to maintain an open mind. In responding to my readings of the bill and through addressing the concerns that I summarize here, I hope you will be able help me to rest them and hopefully commit myself to do all that I can do to help passage of the bill.
With my limited understanding of legalese, I believe the overall aim of the bill is to attach conditionality to the giving of American aid to Ethiopia. These conditions are those of respecting human rights and promoting and strengthening democratic institutions in the country. There is no doubt that such broad aims cum conditions are laudable in themselves. There are, however, two aspects of the bill that I am uncomfortable with, and perhaps you will be able to explain their significance to me and correct my misunderstandings. Please note that in stating these personal doubts, I try to eschew any diplomatic language and try to express my feelings in as a strong a manner as I possibly can. This may make it appear that I am dead set against the passage of the bill. Trust me when I say that is not the case with me. But I have come to be the conclusion that if I hold back my doubts or try to couch them in meaningless niceties I may be doing more harm than good. I am sure you will appreciate my concerns and respond to me accordingly.
Now to my concerns and doubts. The first is the overall rationale, one may say in legal jargon the legislative intent, of the bill. This is stated in the objectives and findings of the bill summarized under Sections 2 and 3 of the bill. While section 2 restates what is purported to be America's objectives in its relations with Ethiopia, Section 3 on the findings justifying the adoption of the bill summarizes the factual and policy considerations underlying the bill – at least that is what it is supposed to do. While the facts restated in Section 3 are indubitable, I would have expected that a bill coming from such an estimable body as the US Congress should have looked beyond the headlines and examined the structural, ideological, historical and political economic factors that hinder what the bill attempts to promote. Significant as May 2005 may have been, it did not mark the beginning of Ethiopian political history. Atrocious as events following that particular period in our history may have been, they pale in comparison to what we have been living under in our long saga of oppression and tyranny. It is not my purpose here detail all the structural and historical factors that make the institutionalization of democracy and the rule of law a challenge in Ethiopia. My point here is that the bill failed even to make a cursory glance at these factors. This is a point that is very much important, in my view, because it tends to intimate that those who are sponsoring the bill seem to have at best a shallow understanding of Ethiopia.
This leads me to my second area of concern. Based on a shallow understanding of the political dynamics in Ethiopia, the mechanisms that the bill tries to introduce to achieve its goals, I am afraid, will be ineffectual at best and counterproductive at worst. Let me explain. As I see it, there are three major sections of the bill that are aimed at achieving the stated goals of the bill. The first is Section 4 on support to human rights in Ethiopia. As per this section, the US will support respect for human rights in Ethiopia. Again laudable as this aim is let us look at the specific modalities through which this aim is supposed to be realized. First, American funds will be given to organizations that monitor the human rights situation in Ethiopia (sub sections 1 and 2).Even accepting that this as a matter of priority for Ethiopia (one wonders if lack of funding has made it impossible for the Ethiopian Human Rights Council or Amnesty International from reporting human rights violation in Ethiopia), it is interesting to note who will be funded through the program that will ostensibly be set up by the bill. In the words of the Bill these will be "local and national human rights groups and other relevant civil society organizations'. [Emphasis added]. The next sub section makes this language even more interesting when it provides that America will be funding a support network to provide legal support for political prisoners and prisoners of conscience "to assist local groups or groups from outside Ethiopia that are active in monitoring the status of political prisoners and prisoners of conscience in Ethiopia." [Emphasis added]. I hope, Professor, you understand my concern here. At the risk of sounding cynical, I would say that the mechanisms thus envisaged in the bill will just be a source of income for professional fund raisers in America and Europe who have the connection, expertise and readily available institutional capacity to tap from the funds passing through the extremely arcane, frustrating and labyrinth procedures of the United States Agency for International Development – the supposed administrator of the funds under the bill. And that in the name of the poor and oppressed people of Ethiopia.
The next two sub-sections (3 and 4) deal with the independence of the judiciary. First, as a lawyer and political scientist, I am sure you will agree with me that ensuring the independence of the judiciary calls for more than a series of seminars (sub section 3) or a group of individuals who will be charged with the unenviable task of monitoring the administration of justice in this country of more than 70 million. I do not know how much you know about the state of the judiciary in Ethiopia, but the problems that the bill seems to focus on are perhaps not on top of the list for the judiciary. The overall judicial training and pay of judges, the state of their working environments (ranging from dilapidated office buildings to lack of law books), the overburden on judicial docks, etc etc, may perhaps be more significant and structural and may need to be worked upon than organizing a series of workshops (which at any rate are not and have not been lacking in Ethiopia). Personally, however, I find the language of Sub-section 4 which calls for the establishment of a monitoring process "consisting of local and international groups" to monitor judicial proceedings deeply offensive. I thought the whole point of the sovereignty of a state is that its basic state functions – legislative, executive and judicial - are independent of any other state or international body. I may hate the government of Meles Zenawi. When it comes to Ethiopian sovereignty, however, I do not see subjecting it to an external body much in the cast of the extraordinary tribunal set up by the British to judge foreigners in Ethiopia following the Italo-Ethiopian war is warranted. But even leaving aside such sensibilities as national pride and sovereignty, I fail to see how this "monitoring process" is expected to perform. The absence of an independent judiciary and the rule of law poses a problem for most ordinary Ethiopians, not only when the likes of Siye Abraha or Hailu Shawel, or Abera Yemane-ab are detained and subjected to what some may be characterized as a politically motivated judicial process. Rather it is manifested when ordinary Ethiopians appear before judicial bodies to enforce their inheritance and pension rights, when they want to enforce the ordinary contracts that they enter into with each other, when neighbors quarrel, when the legendary chicken is taken away without "due process". It is a problem much more pronounced in the more than 600 wereda courts and the thousand of kebele level tribunals than in the majestic halls of the Supreme Court at Sidist Kilo. I wonder how a "judicial monitoring body" consisting of national and international monitors is expected to look into the workings of all these agencies without being a state within a state – a foreign dominated one at that.
The second major mechanism that the bill intends to create is the one that is provided under Section 5 providing for "support for democratization in Ethiopia." The main thrust of the provision is that of providing assistance to strengthening government, political parties, and civil society groups (Sub section a (1)). I believe I am not the only one who senses the over-broadness of this provision. The only condition that is imposed on any of the targeted beneficiaries of American funds is that they be "peaceful". Who determines whether a group is "peaceful" or not? Is a group that preaches religious or ethnic intolerance but does not have an armed wing a peaceful one? Who is a civil society group? These are just a few questions that one may raise. I am sure, Professor, as a lawyer you will notice that the vagueness of the provision will open it to much subjective interpretation. At the end of the day this will mean that those who have access to the lawmakers and the administrators of the funds will have the lion's share of the funds allocated in the name of Ethiopia and Ethiopians.
I find these findings and mechanisms of the bill to be incongruent with the sanctions provisions of the bill under Section 6 particularly those under sub section a(3) on certification. While the previous sections are ostensibly designed to bring about fundamental structural changes in the governance and political set up of the country, this section is aimed at addressing immediate and concrete problems of present currency. Under this section the Ethiopian government is expected to release political prisoners, ensure the independence of the judiciary and the freedom of the press, reconstitute the Election Board, and provide a more conducive atmosphere for the operation of human rights groups. In general, I do not see any conceptual problem with these requests. (That, of course, is leaving aside the provision of a(3)(J) obliging Ethiopia to accept international human rights organizations without undue restrictions. The moral superiority of international human rights organizations stems from their being independent from any government. When they are imposed on a country by the legislative direction of another country I fear that they lose that moral upper ground). The problem is, of course, these are conditions (except perhaps the one dealing with the independence of the judiciary) can easily be fulfilled without addressing the fundamental and structural impediments to democratization and the institutionalization of the rule of law in Ethiopia. Releasing the leaders of CUD from prison does not bring about the rule of law in Ethiopia but it meets a major requirement of the bill. And in a country that has no less than a hundred parties who is to determine which parties are to have a seat in the Election Board?
Hopefully, I have sufficiently elaborated my doubts to now pose my questions in a more direct and, perhaps provocative manner. Call me a cynic, but I fail to see how this particular bill will address the challenges of democratization and rule of law in a sustained, systematic and prolonged manner. On the other hand, I see this bill as opening up a means of enrichment to individuals and groups based outside Ethiopia with well cultivated connections who stand to benefit from the more than twenty million dollars the bill promises to dole out. Allow me to once more be provocative, but tell me Professor, will those individuals and groups, including yourself, who are in the Coalition for HR 2003 promise publicly to not partake any money from any funds that may be authorized if the bill were to be made into law?
Respectfully,
Yoftahe Kelemework
July 27, 2007
P.S.
A few unrelated points. One, I would have liked to write this piece in Amharic, my native language and a language the majority of my learned compatriots will understand. However, I had technical difficulties in doing so. Hopefully, in the future I will be able to resolve these. Second, Professor, I hope you stop calling Meles Zenawi, by his father's name. I hate to explain to ferenjis here in America that we Ethiopians (despite the provisions of the 1960 Civil Code of Ethiopia) do not as yet have a family name and that the name that they call me with is actually my father's or even my grandfather's name. I hate it even more so to do this explaining to such a prominent Ethiopian as you. Last but not least. I am sending this piece to the pro-EPRDF, aigaforum and the pro-opposition ethiomedia beside other web outlets. The fact that one or another web forum has published it first does not mean that I agree with that website's or its editors' position regarding HR 2003. I am sure the timing of my piece here is not perfect when forces for and against the bill seem to be engaged in combat. But in the words of Desi there seems to be some explainin' to do.