The Bankruptcy of the CUD Leadership and the Interesting
Jurisprudence of the Crime of Treason: A Traitor
When You Fail, A Hero When You Succeed
By Tesfaye H
07/03/2006
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"As a general rule the costs of unlawful acts vastly outweigh any benefits. The
forces of law and order....are vigilant and have access to quite frightening techno-
logy. If someone suggests to you that you should do something unlawful the
chances are that the person making this suggestion is either (a) an idiot, and
therefore dangerous, or (b) an agent provocateur--an enemy deliberately trying
to get you into trouble...."
In the light of the above words, the CUD leadership's position on violence and their leadership style has been rather interesting, from the very beginning of their political campaigns. The CUD spokesperson's bold and fiery assertions on the eve of the May 15, 2005 national elections were quite revealing. His threats approximately were summed up in the following words:
"...The EPRDF, as usual, will rig the elections and the people whose votes are
stolen will this time around rise up against the ruling party to assert their rights
and because of the EPRDF's repressive actions a revolution, akin to the revolu-
that occurred in Georgia and Ukraine because of people's power, will erupt in
the country and people's power will reverse the outcome of the elections
and thus unseat the incumbent party from power.
If these actions do not succeed in removing the ruling party from
power, we will unleash people's power against the ruling party by mobilizing
all sections of the population-- industry workers, taxi operators, students,
employees of the services sector, etc., to go on strike and thus bring everything
to a standstill which will eventually bring down the incumbent party from
power."
Further,the CUD President's leading statement, allegedly made in Washington D.C, USA, to the party's financiers just before the May 2005 elections was simply speaking the most outrageous and reckless outbursts coming out of the mind of a pathological killer and a fascist, saying that "the CUD is prepared for a major showdown with the EPRDF and that the lives of only 10,000 to 15,000 CUD supporters may be lost in the struggle to remove the EPRDF party and to catapult the CUD to the State House--Emperor Menelik's Grand Palace, and that he would be too old to be a Prime Minister if he were to wait for another five years", i.e. if he were to wait for the next elections in 2010. These ideas of Ato Hailu Shawul and Ato Lidetu Ayalew, both apparently married men with families and who have proven extremely reluctant to do anything at all (even to write articles for their own party papers) suddenly leading a 'street insurrection' against the EPRDF regime--the EPRDF regime with its vast intelligence resources, organizational strength, its numerous security officers, its state-of-the-art armed forces complete with sophisticated weaponry and other technology--is truly the stuff of comic strips. Those who have been around in the political struggle a great deal longer than Ato Hailu Shawul and Ato Lidetu Ayalew will know that such positions have always been pushed by two types of persons: lunatics or State Agents. Why? Because the EPRDF regime is quite strong in terms of repressive capabilities--to believe that a handful of self-declared liberal democrats and amateurish politicians, who publish irregular, photocopied bulletins, can rid the country of the EPRDF regime through violence and intimidation is tantamount to believing that the moon is made of cheese.
If there is to be any argument at all for political leaders it must surely be that they offer leadership--that they provide strong democratic leadership and a viable strategy to take their organization from A to B and that they mobilize people to implement that strategy. Insofar as they fail to offer such wise leadership and strategy and effective mobilization then they are failing to provide any reason for their existence qua leaders. Leaders are elected or selected to provide leadership to their followers. They are there to lead the masses of unsuspecting and mostly uninformed supporters to achieve certain objectives and not to trail behind them, not to seek daily guidance from them, and if the latter is the case, then, there won't be any need for leaders in the first place.
Let us put aside for a moment, our various suspicions about the motives of the CUD leadership and assess them purely on the question of whether they have provided sound leadership since their assumption of the CUD's topmost positions. Assessed on this score it is clear that the CUD leaders have miserably failed to offer anything resembling coherent leadership and strategy. Throughout their brief existence as a hodge-podge and disparate collection of strange bedfellows (four separately registered political parties with divergent political programmes and visions) gathered together in a marriage of convenience just before the May 15, 2005 national elections they have been--or have portrayed themselves as--creatures of impulse, taking up one idea and then abandoning it a little later, publicly declaring to abide by the current constitutional order and the constitutional mechanisms in place and then denouncing them as unacceptable after a while, signing an agreement with the ruling party to pursue a path of dialogue and non-violence and then suddenly reneging on the deal before the ink that they signed with dried off, calling for public demonstrations, protests, work stoppages and strikes and then calling them off at the last minute, to play with another notion mostly cooked and relayed to them by those extremist elements of the EPRP, AESM (MEISON), MEDHIN, etc. circulating amongst the Diaspora and whose social and political history remains a lot to be desired. What the CUD leaders have spectacularly not produced so far is any sort of coherent political programme or common platform and road map leading and taking their members and followers forward and any sort of sustained effort to push them along a path to any sort of success. Instead, despite the incredible patience of the ruling party and government in tolerating their wishy-washy positions on a large number of mutually concluded and peacefully negotiated agreements and its repeated calls to the CUD leadership to desist from violent or unlawful means to challenge the election outcome, the latter however decided to think the unthinkable, to imagine the unimaginable and pursued the destructive path of violence to snatch political power and thus led (rather, misled) their organization and their members as well as themselves into the quagmire of utter disaster, got themselves incarcerated by the government and are now accused of treason, genocide and other serious offences that would perhaps hammer a nail in the CUD's coffin (its member organizations as well) once and for all. What a tragic folly on the part of the CUD leadership, so to speak.
Yes, possible motives for violence always exist in every country. People everywhere resent certain injustices and abuses. Many people are disposed to resort to violence in political disputes. They are willing to kill--and to risk being killed--to counter perceived wrong or to implement what they believe to be right or just to get themselves into power, or in self-defense. But farsighted and wise political leaders do not choose the path of violence and push their supporters into violent behavior and anarchy in political disputes when the odds are against them but define the risks involved in doing so and design ways and means of containing these risks through lawful and democratic means; they do not encourage their supporters to engage in or resort to futile and fruitless risks and violence, least of all to challenge election outcomes which are solely the prerogative of national electoral commissions or boards, and the courts of law. No sane political party under a newly democratizing state opts for such a violent course, as it is against the rules of the game. If the electoral system and the judiciary are believed to be partisan and not independent and impartial, real or imagined, then the course to be pursued would be to open up serious dialogue and negotiations with the ruling party and government to make the necessary changes in those systems and ensure the impartiality and independence of the electoral commission and the judiciary in place, so that they would be acceptable and credible to the opposition bloc as well. This is the only civilized and democratic way of doing things in a country that is struggling to extricate itself from centuries of authoritarian rule by alternating monarchical regimes and two decades of tyrannical misrule under a military dictatorship and graduate to a well-functioning democratic state and society. To disregard this glaring reality and to seek a shortcut to power would put us all in a very dangerous situation that may be difficult for us to manage. There is no shortcut to democracy and, free, fair and credible elections in Ethiopia. It will happen not instantly or in a short period of time but over a long period of time, gradually and in an incremental manner. All who expect instant results are bound to fail.
As most of us are well aware, the trial of Engineer Hailu Shawul and 130 other CUD leaders and supporters for the aforementioned alleged crimes began in the High Court, Addis Abeba, on February 23, 2006. I do not dare to delve into the facts or the merits of the case, as it is being discussed in a court of law, and it is therefore illegal for anyone to talk about it on the media--on the television, in newspapers, etc. This is what is called "subjudice" in the legal jargon. Rather, I would like to cast some light on the interesting aspects of the jurisprudence of the crime of treason.
Before going any further, it is necessary to describe what we mean by the concepts "crime" and "treason". Let me discuss them one by one at some length here below.
The Oxford Advanced Learner's Dictionary defines crime as:(1) "activities that involve breaking the law"; (2) "an illegal act or activity that can be punished by law."
A crime is an act that injures another. Without this element, there is no crime, regardless of what might be added to the definition to meet moral or political objectives. A clear and consistent definition however is yet to transpire.
There are five types of criminal behavior: crimes against oneself, or "victimless crimes" (such as suicide, abortion, and the consumption of drugs), crimes against others (such as murder or mugging), crimes among consenting adults (such as incest, and in certain countries, homosexuality and euthanasia), crimes against collectives (such as treason, genocide, or ethnic cleansing), and crimes against the international community and world order (such as executing prisoners of war). The last two categories often overlap.
The Encyclopedia Britannica provides this definition of a crime: "The intentional commission of an act usually deemed socially harmful or dangerous and specifically defined, prohibited, and punishable under the criminal law."
But who decides what is socially harmful? What about acts committed unintentionally (known as "strict liability offences" in the parlance)? How can we establish intention--"mens rea", or the "guilty mind"-- beyond a reasonable doubt?
A much tighter definition would be: " The commission of an act punishable under the criminal law" of a country or a state. A crime is what the law--state law, kinship law, religious law, or any other widely accepted law-- says is a crime. Thus a crime is an act which violates a law of a government, nation-state, or jurisdiction, for which there is no successful defense.
According to Western jurisprudence, there must be a simultaneous concurrence of both actus reus ("guilty action") and mens rea ("guilty mind") for a crime to have been committed; except in crimes of strict liability.
In order for prosecution, some laws require proof of causality, relating the defendant's actions to the criminal event in question. In addition, some laws require that attendant circumstances have occurred, in order for a crime to have been committed. Also, in order for a crime to be prosecuted, corpus delicti (or "proof of a crime") must be established. A crime can be the action of violating or breaking the law, having the intention of doing so or helping others in the process; in some systems the simple association for organizing a crime is punished, even if the fact is not verified and usually for many crimes the attempt too is punished, even if the crime is not completed. Crimes are viewed as offences against society, and as such are punished by the state.
2. What Do We Mean By Treason?
According to the Oxford Advanced Learner's Dictionary, treason is "the crime of doing something that could cause danger to your country, such as helping its enemies during a war." In law, treason is the crime of disloyalty to one's nation. A person who reneges on an oath of loyalty or a pledge of allegiance, and in some way willfully cooperates with an enemy, is considered to be a traitor.
Oran's Dictionary of the Law (1983) defines treason as:
"---[a]--- citizen's actions to help a foreign government overthrow, make war against, or seriously injure the [parent nation]."
The English Statute of Treasons (1350) distinguishes high treason and petty treason. Petty treason was the murder of one's lawful superior, such as when a servant killed his master. High treason covered acts that constituted a serious threat to the stability or continuity of the state, including attempts to kill the king, to counterfeit coins or to wage war against the kingdom.
The punishment for treason was often extended and was an especially cruel death (treason was still theoretically punishable by death in Britain until 1998). The law was used in England to suppress any resistance to government policy and it was not reformed until the 19th century. To avoid the abuses of the English law, treason was specifically defined in the United States Constitution.
Article Three defines treason as only levying war against the United States or giving aid and comfort to its enemies, and requires the testimony of two witnesses to the same overt act or a confession in open court for conviction. In the United States Code the penalty ranges from "shall suffer death" to "shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States."
In the United States, the accusation of treason has at times been leveled at those who dissented against the government's foreign policy, especially during military actions. However, actual prosecutions have been very rare, and even very well known spies have generally been convicted of espionage rather than treason.
Legal philosophers and judges all over the world have, for a long time, had problems with the offence of treason. This is because, unlike most other offences, treason is very much dependent on the socio-political setting, and what may be treson one day can be " a heroic people's protracted struggle against dictatorship" the next.
Broadly speaking, treason is the act of suspending, overthrowing, abrogating or amending the constitution by violent or any other unlawful means (i.e. means that are contrary to the provisions of the Constitution itself). Hans Kelsen, in his book Pure Theory of Law, argued that under the principle of legitimacy, a constitution is valid until its validity is terminated in a way determined by that constitution (e.g. by lawful amendment) or is replaced by another lawfully promulgated constitution. However, Kelsen accepted that this principle has one "important limitation only: it does not apply in a case of a revolution." He defined revolution as every illegitimate change of the constitution or its replacement by another constitution. In the case of a revolution, Kelsen argued that the new constitution becomes valid and replaces the old constitution when the new, revolutionary regime, becomes "by and large effective".
The leading authority on English Constitutional Law, Stanley DeSmith, sympathized with the legal theorists on this point saying that: "Legal theorists have no option but to accommodate their concepts to the facts of political life. Successful revolution sooner or later begets its own legality. If, as Hans Kelsen has postulated, the basic norm or ultimate principle underlying a constitutional order is that the constitution ought to be obeyed, then the disappearance of that order, followed by acquiescence on the part of officials, judges and the general public in laws, rules and orders issued by the new holders of power, will displace the old basic norm or ultimate principle and give rise to a new one. Thus, might becomes right in the eyes of the law."
As literature in this area of legal discourse unveils, courts all over the world have been faced with express or implied challenges to the lawfulness of governments that have come to power through extra-legal means. In Uganda whereI have been residing for a couple of years since the year 2004, in one case, Uganda v. Commissioner of Prisons ex parte Matovu [1966] E.A. 514, the validity of the 1966 Constitution of Uganda was challenged. The High Court of Uganda held that although the 1966 Constitution had extra legal origins, insofar as it was the product of a revolution within the Kelsenian definition of the term, it had created a new legal order and was therefore valid.
However, in a few cases, the courts declined to recognize the legality of a regime that has come to power through unlawful means. In the case of Madzimabuto v. Lardner Burke [1969] 1 A.C. 645 the Privy Council declined to recognize Ian Smith's regime in Rhodesia [today's Zimbabwe], as it then was, which had come into power through a Unilateral Declaration of Independence. While in the case of the Republic of Fiji v. Prasad [2001] 2 LRC 343 the Court of Appeal of Fiji upheld that the 1997 Constitution of Fiji remained the supreme law of the land irrespective of its purported abrogation by the military in a coup on the 29th of May 2000
But generally courts usually prefer the Kelsenian approach and recognize constitutions that are put in place by usurpers of previous constitutions. So that rather than charging the usurpers with treason, they are recognized as the new rulers under the new constitutional order. Though the role of courts in such scenarios in Ethiopia, as far as I know, hitherto has been alarmingly deficient, all usurpers via violent and unlawful or revolutionary means beginning from the military junta in 1974 to the current EPRDF regime in 1991 have all successfully replaced the previous constitutions by their own new constitutions and become the new rulers. This was not however to happen in 1961 when the imperial body guards staged a coup d'etat against Emperor Haile Sellassie's rule but could not succeed, they were crushed by the army. They failed and paid a heavy price. The ring leaders of the coup, General Mengistu Neway and his brother Dejazmach Girmame Neway, were hounded and caught by the army, accused of treason, convicted and sent to the gallows at St. George's Square in Addis Abeba. Their followers were also harshly treated and sentenced to long years of prison life.
The interesting aspects of the jurisprudence of treason is that those who succeeded to usurp political power through unlawful means become heroes and new rulers; on the contrary, those who fail to snatch power in this way become traitors and get convicted of treason and sentenced to whatever the law and the judges say they deserve. You become a hero when you succeed and a traitor when you fail, and interestingly might becomes right when you succeed, as in the law of the jungle.
When we come back to Uganda, Article 3(4) of the Constitution of the Republic 1995 attempts to cater for the event of treason against it by directing all citizens to resist any usurpers and to do all in their power to restore the Constitution. Recognizing that in resisting the usurpers, the citizens may themselves be charged with treason and other related offences by the successful usurpers, Article 3(5) of the Constitution provides that any person who resists the suspension, overthrow or abrogation of the Constitution commits no offence. Further recognizing that the provisions of Article 3(5) may not be honoured by the usurpers, Article 3(6) provides that any punishment issued to a person who resists usurpers shall, upon the restoration of the 1995 Constitution be considered void from the time of its imposition and that person shall be absolved from all liabilities arising out of that punishment. As far as I understand, there are no similar provisions in the Ethiopian Constitution 1994, and no protections for those citizens who may resist the suspension, overthrow or abrogation of the FDRE Constitution. Anyway, I think it would also be naive to imagine that such protections would indeed be honored under a new regime that has come to power through unlawful and/or violent means in the first place.
By way of conclusion, the offence of treason, therefore, is NOT the act of suspending, overthrowing, abrogating or amending the Constitution by violent or any other unlawful means. Treason is more realistically defined as FAILING in the act of suspending, overthrowing, abrogating or amending the constitution by violent or any other unlawful means! If you succeed you will be recognized as the new ruler because you have effective control of the State. "Success has many fathers, failure is an orphan" says it all. It is only when you fail that your actions will be considered treasonous offence. President Yoweri Museveni and all active members of the NRM/NRA between 1981 and January 1986, President Issaias Afewerki and his EPLF comrades of the struggle between 1961 and May 1991, and Prime Minister Meles Zenawi and all active members of the TPLF/EPRDF between 1975 and May 1991, are living testimony of this fact.
I do not think that there is any other offence in law whose effective consummation absolves the offender. In fact public policy usually dictates that one should not profit from one's crime. However, it appears that in the realm of treason, if one works very hard and succeeds, then one gets away scot-free, i.e. without receiving the punishment one deserves, and is in fact able to pin others who may seek to overthrow his/her new constitutional order. That is what is unfolding in Ethiopia today when you observe the case of the CUD leadership v. the State in the nation's High Court, began on February 23, 2006. If you have any doubts about what I have said so far, just ask the aforementioned leaders. I bid you adieu!