The Ghost and the Spirit

Alemayehu G. Mariam

After the Dust Settled

After the dust settled following Meles Zenawi’s speech at Columbia’s World Leaders Forum, a dark shadow and glowing light were visible on stage to behold. The dark shadow was cast by the ghost of the erstwhile Ethiopian junta dictator Mengistu Haile Mariam. The glow of light was radiated by the spirit of Ethiopia’s First Daughter, Birtukan Midekssa.

The Q&A session after the speech showed how much Zenawi remains haunted by the ghost of Mengistu whom he overthrew nearly twenty years ago. Biting condemnation of Mengistu and scathing criticism of his atrocious human rights record during the 1970s and 80s animated a good part of Zenawi’s answers. He also surprised a few by casually announcing Birtukan, Ethiopia’s first ever woman political party leader and first political prisoner, is pretty much free to go after nearly two years of incarceration. The apparent reversal of misfortune for Birtukan came as good news. Just last year, Zenawi had promised the world with sadistic indifference that “there will never be an agreement with anybody to release Birtukan. Ever. Full stop. That’s a dead issue.” It is true that “hope springs eternal in the human breast.”

The Ghost of Mengistu

It was stunningly incomprehensible for Zenawi to resurrect and promptly hide behind the ghost of Mengistu Haile Mariam to shield his own human rights record from scrutiny. A Nigerian economics student asked[1]:

How different is your regime from Mengistu’s since we know in 1993 there was an immense repression of a student demonstration, and the same thing happened in 2005 and these were the same types of things Mengistu did…?

Answer: … For those on the receiving end of the Mengistu regime, they would not have any difficulty distinguishing our regime from that of the Mengistu regime. The period of Red Terror… was a period where people were killed without any recourse to the courts, and their families were charged by the number of bullets that were used to kill these people. That type of criminalty is dead. It is finished and it is not coming back. I understand some people might have misgivings about it, but it is not coming back.

Zenawi is absolutely right that Mengistu, the bloodthirsty military dictator, has committed monstrous crimes in Ethiopia. He should be tried in a special U.N. court just like Charles Taylor of Liberia. But to put Mengistu’s ghost on trial at the World Leaders Forum as a straw man to deny and cover up one’s own atrocious human rights record shows astonishing arrogance or willful blindness to indisputable facts. But if the criminality of the bullet-charging Mengistu is long gone, as Zenawi asserts, how is that the murderers of 193 innocent protesters and shooters of 763 others still walk the streets free in Ethiopia today without their victims having “recourse to the courts”? No, the type of criminalty of which Mengistu is accused never left Ethiopia. It is alive and well. But it no longer wears uniforms and boots. It struts around in custom tailored suits and alligator shoes.

Zenawi’s use of what might be called the “Mengistu defense” in response to various questions about his own human rights record is insidious and demands careful consideration. His basic argument is mind-boggling: “Do not judge my human rights record on the merits; judge my record by comparing it to Mengistu’s. I may have violated human rights, but I am not as bad as Mengistu. The only people complaining about human rights violations in Ethiopia are “remnants” of Mengistu’s regime who have lost their power. Those “remnants” should be grateful because I let them speak and express themselves. There is free press in Ethiopia today; and the press elements that are complaining are “remnants” of Mengistu’s supporters. Anyone who criticizes me is, ipso facto, a “remnant” of Mengistu’s regime pining for the triumphal return of that ruthless dictator from the dustbin of history to save them.”

It was flabbergasting to hear this type ignoratio elenchi argument which conveniently circumvents the central issue. The question is not whether Mengistu is a human rights violator; he is certified as one of the monstrous human rights violators of the 20th Century. The central question is whether Zenawi himself has engaged in a pattern of gross human rights violations in Ethiopia in the first decade of the 21st Century. It is no argument to say Mengistu is a far worse human rights violator than I, and try to put him on trial at the World Leaders Forum. Attempting to build a factual, legal and philosophical defense of one’s own human rights record in the shadows of Mengistu’s ghost points to either an unrequited obsession with the long gone dictator, denial of the inescapable reality of one’s own atrocious human rights record or a poverty of imagination.

The point is nobody gives a damn about Mengistu. He has been gone nearly twenty years. Good riddance! There may be a few who may long for him, but their numbers are infinitesimally small. There is no need to trot out his ghost as a boogeyman (aya jibo) to scare Ethiopians, or to warn the world he will be back unless Zenawi stands sentry.

The fact of the matter is that after twenty years, Zenawi could not point to a single item of achievement in his human rights record. He could not produce proof to demonstrate that he has established the rule of law, guaranteed freedom of expression (without shuttering newspapers, filtering websites, jamming radio and satellite signals), promoted the independence of the judiciary, guaranteed clean elections, spread good governance throughout the land or successfully campaigned against corruption. All he could say was, “I am not as bad as Mengistu”. It is good to look at oneself in the mirror from time to time, but one ought to prudently compare oneself to others. There is always the risk of finding more similarities than differences. There is no need to shadow box with the ghost of Mengistu at the World Leaders Forum or anywhere else.

The Spirit of Birtukan

This spirit of Birtukan was also on stage at Columbia’s World Leader’s Forum. Zenawi had beamed her down from Kality “Federal” Prison. He casually said she can have her freedom by simply asking for it. It was a bold and disarming statement for those of us who have cringed listening to his vindictive, heartless and pitiless words: “Birtukan’s case is a dead issue.”

Faint rumors of her release have been circulating for days. My initial reaction to the rumors was ho-hum: “Here we go again. The European Union Election Team report is going to come out soon with its final report on the May 2010 ‘election’. What better strategy than to release Birtukan to get a softer landing?” I surmised the EU election report was probably delayed again to give Zenawi time to arrange her release at about the same time the EU report would be released. It crossed my mind that he was not doing it voluntarily but under pressure from donors. May be he thinks he is letting out a leader whose will is crushed and defeated and is unlikely to pose any challenge to him. Regardless, I was glad to hear him say she is free to go. The political calculations for her release did not matter to me much.

But I was intrigued by his legal analysis of her case before announcing his offer of a pardon. To demonstrate that she was incarcerated justly and with due process of law, he offered a check list of “evidence”: her admission of guilt, conviction “by a court of law”, request for a previous pardon and subsequent denial, refusal to acknowledge her mistakes, etc. He crowned his legal arguments by claiming, without citing article 16 (2) of Proclamation No. 395/2004 (“pardon law), that she had obtained a pardon “under false pretenses”. According to Zenawi, Birtukan[1]

went abroad and issued a statement to the effect that she did not ask for a pardon, and she was not given a pardon. Our pardon law [Proclamation No. 395/2004] says that if a pardon is sought under false pretenses or given (sic) [received?] under false pretenses, it is automatically null and void. So if she didn’t ask for a pardon, then the pardon given to her was completely illegal. When she came back from abroad, the police told her that her statement would necessarily lead to her being detained again unless she were to admit that she did indeed seek pardon and was indeed given pardon, then the pardon given to her is legally invalid. She was given a month to think about it… Many friends including ambassadors talked to her to try and convince her…. [that] if she denied receiving a pardon, she would be put back in prison. She did not feel convinced that she should retract the statement she issued in Sweden. At that point, we had no option but to detain her.

There is not much truth in the factual analysis. Two days before Birtukan was “detained”, she put out a public statement (“Qale” [My Word]) declaring:

I have not denied signing the document which the elders persuaded us to sign on 22 June 2007 for the sake of national reconciliation. How could it be said that I denied a pardon document I signed, and whose content I accepted? How is that a crime? Where is the mistake?

In light of this statement, it is absurd to argue that she had denied receiving a pardon. No reasonable person could find this statement to be a denial of pardon.

Interestingly, the alleged statement in which Birtukan denied receiving a pardon has never been made public. The alleged fact that she has denied a pardon is taken as an article of faith without any proof of the offending statement. But what are the exact words that Birtukan said that constitute a “denial”? While Zenawi was long on allegations of denial of pardon on the part of Birtukan, he was very short on facts to substantiate them. But Birtukan has meticulously explained what it was that she said in Sweden in “Qale”.

Many other legal and constitutional objections could be raised to contest his facts and analysis, but that is neither here nor there. What is here and now is the fact that Birtukan can go free for the asking. Zenawi said: “Given her past practice, I wouldn’t be surprised if she asked for pardon again, and given the practice of the government, I wouldn’t be surprised if the government were to pardon her again.” I have no reason to second-guess the man. The whole world knows she is unjustly imprisoned, and as far as I am concerned, the release of any person from unjust imprisonment for any reason is to be hailed.

The Devil in the Details

But how could Birtukan be released on a “pardon” given the facts of her case and the arbitrary application of the “pardon law” when she was re-incarcerated in December 2008? Zenawi’s proposed procedure is to have her formally request a pardon. To me that is reminiscent of the 2007 pardon fiasco which led to Birtukan’s arbitrary re-imprisonment in 2008. Birtukan has already declared in her formal statement (Qale) that she never denied receiving a pardon. To insist that she now request a pardon and admit guilt or wrongdoing merely to justify her unjustified 2 year imprisonment is simply unfair. It would be adding insult to injury. That is the problem in Zenawi’s precondition that she request a pardon. By requesting a pardon she must necessarily admit guilt.

I know Birtukan is as an astute lawyer and learned judge and could not accept the precondition of request for pardon voluntarily. I would even argue that if she were to “petition for pardon”, she would be in technical violation of Art. 16 (2) of the Proclamation, which sanctions applications for pardon based on fraud and deceit. Simply put, Birtukan cannot say, “I did not deny receiving a pardon in Sweden.” in December 2008, and now contradict herself in a pardon petition by saying, “I did deny receiving a pardon in Sweden.” It traps her in one of the classic proverbial legal conundrums: “Were you lying when you said you did not deny requesting or receiving a pardon in Sweden in December 2008? Or are you now lying in your pardon petition when you say you did deny requesting and receiving a pardon in Sweden? It is not fair to put her in such a situation.

The bottom line is that there is the law and there is the illusion of the law. If Birtukan were to apply for a “pardon”, it would certainly not be out of a true confession of guilt or moral conviction that she has committed a wrongdoing by denying receipt of a pardon. She would do it only to serve the purposes of the illusion of the law. But no one would blame her for regaining her unjustly taken freedom even if it means petitioning for a pardon just to help Zenawi save face and avoid needless suffering for herself and her family. Birtukan has been thrown in solitary confinement, abused, insulted and mistreated. Is it necessary to humiliate her once more by forcing her to request a “pardon” to give her back the freedom that was taken away from her unjustly in the first place? Is it really necessary to play the pardon game again when the whole world knows it is just a silly game? Can we come up with a win-win solution for everyone?

A Win-Win Solution

Yes, we can! It is possible to get Birtukan released by preserving her dignity and saving face for Zenawi. As Zenawi explained at the World Leaders Forum, her pardon was revoked because she allegedly obtained it by false pretenses which makes the original grant “null and void” under Art. 16 (2) of Proclamation No. 395/2004. Is there a way to get around this problem under the law. The answer, I believe, is to be found in article 12 of the Proclamation which provides:

(2) Without prejudice to the provision hereinabove, the  Ministry of Justice and the Federal prison commission may apply for pardon for persons entitled to it. Where the offices decides to apply for pardon, it shall deliver a copy of the application letter to the person in whose favour it is to be made.

(3) Where a person in whose favour a petition for pardon has been submitted pursuant to Sub-Article 2 of this Article declines it, he shall notify, the same to the Board in writing within fifteen consecutive working days from the date of receipt of the copy of the petition.

(4) Except in cases of force majeure, the acceptance of the pardon shall be presumed where the convict fails to notify about his rejection within the time specified in Sub-Article 3 of the Article.

In simple terms, the Ministry of Justice and the Federal prison commission would apply for a pardon on behalf of Birtukan and serve her notice. Birtukan would exercise her right under sub-article (2) and decline to notify the pardon board of her position on the petition. After 15 days, by operation of law (without any further action by Birtukan, the Board or anyone else), her pardon becomes effective. Voila! Done. Birtukan walks out. It is all legal, transparent and aboveboard.

Alternatively, it could be done even faster. Birtukan’s pardon was revoked in December 2008 in a summary executive proceeding (or by executive fiat). The power of executive pardon revocation necessarily includes the power of executive pardon reinstatement. Just as a directive was given to the police commissioner to arrest and incarcerate her in 2008, a directive can now be given to the Kality prison warden to release her and let her go. Birtukan can be headed home in hours. It just as simple as that.

Now, I am not naïve enough to expect Zenawi to follow the law. But it is important to make the case for the historical record. I will predict that a whole re-pardon process will be set up (or is already underway) and statements of admissions will be drafted for Birtukan to sign and so on. The whole process will be subjected to cynical public speculation, and some will even say any pardon she gets is not going to be worth the paper it is written on. After all, they can take it away any time they want. That is the reality, but I will keep an open mind.

I have heard it said that “fire, water and dictators know nothing of mercy.” I would like to see an exception to this rule in Birtukan’s case. I will offer the givers of mercy some words of wisdom from Montesquieu: “So many are the advantages which monarchs gain by clemency, so greatly does it raise their fame, and endear them to their subjects, that it is generally happy for them to have an opportunity of displaying it.” Carpe diem!