Ethiopia: Writing a Golden Constitution, but Failing to Upholdits Core Provisions

By: Merhatsidk Mekonnen Abayneh

1. Dwelling under a Constitutional Roof

Regardless of its antique existence as a sovereign political sub-division, Ethiopia can hardly claim to have that long history of constitutional governance, (only 91 years to be exact). During its entire existence which has continued for thousands of years, the country’s crude experimentation of constitutional rule is astonishingly less than one full century restricted to a handful of four successive instruments, the latest being the 1995 F.D.R.E’s Constitution effective to date.

Come what may, the existing leadership in Ethiopia and its outspoken personalities, often times, proudly and persistently claim to be a country wherein democratic governance thrives and the rule of law is strictly adhered to in conformity with both the federal and regional constitutions. Surprisingly enough, our senior political leaders and their subordinate government officials are not that shy to relentlessly boast of the nation’s inflated status as anAfrican champion of Freedom, justice and equality with a magnificent track record allegedly never surpassed by any country on earth.

In relation to this pompous and exaggerated rhetoric, we Ethiopians have dozens of life-giving and meaningful proverbs, one of which says in Amharic, ‘lerassikorsu, ayasannisu’.

The Amharic proverb literally means, ‘you may not normally like to reduce the size of a spoonful of food you carry up for your mouth at a time’.

To my delightful memory, a prominent figure of the now-defunct E.P.R.D.F regime currently serving jail terms on criminal conviction used to remark that the existing Ethiopian constitution is the best constitution traceable throughout the planet only to be contested by that of the Republic of South Africa adopted in 1996, only one year after the promulgation of ours.

In a ridiculous comparison, that gentleman happened to shamelessly argue that the South African constitution is inferior to that of Ethiopia only and merely due to its failure to recognize and protect what he would like to call ‘the right of nations, nationalities and peoples to self-determination, including and up to secession’.

Consequently, you can imagine here what a huge mockery he has had on the state of our super intelligence when he so remarked with full confidence as if he had an opportunity to refer to a slew of world constitutions.

2. Disappearance of Persons as an International crime and its Domestication in Ethiopian Law

Mind you, I am not simply raising here the ordinary disappearance of objects, but deliberately perpetrated apprehension and forcible hiding of dignified human beings in a rather ugly manner as conceived and elaborated under formidable international law.

Art. 2. Of the International Convention for the Protection of All Persons from Enforced Disappearance defines that kind of abominable offense, i.e., “enforced disappearance” as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”.

The Ethiopian legal system is not that silent on the status of enforced disappearance as a grave criminal offense as formulated and propounded here above.

To begin with, Art. 28. Sub-Art. (1) of the F.D.R.E’s Constitution stipulates that “criminal liability of persons who commit crimes against humanity, so defined by international agreements ratified by Ethiopia and by other laws of the nation such as genocide, summary executions, torture or forcible disappearance shall not be barred by a statute of limitation”.

The same constitutional provision further stipulates that “such offences of a grave nature may not even be commuted by amnesty or pardon of the country’s legislature or any other state organ”.

More critically, Art. 17Sub-Art. (1) of the country’s fundamental law already proclaims that “no one shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law).

I have, in the meantime, to emphasize that the textual formulation and tone of this core constitutional provision reproduces Art. 9. Sub-Art. (1) of the 1966 International Covenant on Civil and Political Rights, (I.C.C.P.R ) which the country has adopted as part and parcel of its domestic legal regime.

The prestigious international covenant cited hereof equally prescribes under Art. 6. that “everyone has the right to liberty and security of person. It also provides that “no one shall be subjected to arbitrary arrest or detention and be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law”.

Under Art. 6. Of the African Charter on Human and People’s Rights, (otherwise known as (the Banjul Charter), too, it is, on a similar fashion, prescribed that “Every individual shall have the right to liberty and to the security of his person and no one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained”.

Admittedly, unlike the I.C.C.P.R. and the Banjul Charter, although the core provisions laid down in Art. 28 Sub-Art. (1) of its 1995 constitution already recognize and somewhat sanction the offense to an appreciable degree, Ethiopia has yet to sign and ratify the International Convention on the Protection of All Persons from Enforced Disappearance, a binding treaty adopted by the UN general Assembly on December 20 2006 and put to effect as of December 23 2010.

When it comes to its subsidiary legislations, however, it is way back in 1957 that the country’s previous penal code had by then sanctioned unlawful arrest and detention of a person or any other restraint of his liberty an indictable criminal offense.

Likewise, Art. 585 Sub-Art. (1) of the Revised Ethiopian Criminal Code enacted in 2005 stipulates that an “arresting or detaining a person and keeping him in an isolated location in violation of the law or without lawful order constitutes an offense punishable with simple imprisonment not less than three months. Such an action would, in fact, entail a rigorous imprisonment not exceeding five years if the duration of the detention persists for more than 7 days pursuant to Sub-Art. (2) (b) of the same Article.

In case the offender happens to be a government employee or public officia , the heavier penalty already imposed under Art. 423 shall apply to him as indicated in Art. 585 Sub-Art. (4) of the Criminal Code. The special provision laid down in Art. 423 cross-referred to here-above, in turn, carries a combined penalty reaching up to ten years rigorous imprisonment and fine even more seriously where the unlawful arrest or detention of the victim has been perpetrated outside the terms of the appropriate legal procedure or without due care having been made.

Moreover, Art. 586 of the existing Criminal Code regulates abduction or kidnapping of a person comparable to enforced disappearance as recognized worldwide with rigorous imprisonment not exceeding 7 years. Article 595 Sub-Art. (1) c. of the same code also punishes the culprit involved in the alleged abduction committed on account of political grounds with rigorous imprisonment not exceeding 15 years. When and where that deplorable offense has been ordered or organized by a public official, the jail term to be imposed on the perpetrator may even be extended to reach the maximum ceiling of 20 years rigorous imprisonment as prescribed in Sub-Art. (2) of Art. 595 mentioned hereof.

Against this explicit and multiple prohibition, however, it is pretty astonishing, if not perplexing and worrisome, to witness nowadays the infamous abduction and enforced disappearance of extra ordinary figures such as political critics or commentators, x-military officers and even investigative journalists and social media activists allegedly critical to the government’s official position on various issues of national concern on a routine basis.

For instance, Tadewos Tantu, Tamirat Negera, gobezie Sisay and Belay Bekele may qualify as the unfortunate victims of infamous disappearances of the most recent times, (only to name a few), although one could perhaps be left with no option other than be at least thrilled with their subsequent release without considerable physical harm, obviously short of any substantiated justification for their unlawful seizure and detention in the first place.

According to personal testimonies of some of these victims overheard by the media, they were suddenly abducted either from home or out in the street, (sometimes in broad daylight), against their own will, by the people whom they don’t know at all and taken by force in plain cloth to and detained in an undisclosed location with barely no news of where-about to their respective families and loved ones utterly in distress.

Amazingly enough, one could perhaps recall in this respect eminent figures like Birgadier-General Teferra Mammo, (X-Commander of the Amhara Special Force), who had, one fine morning, found himself in an isolated police cell far from his home and family, two solid days and nights after having been forcefully stopped and picked up by a motor vehicle in an Addis Ababa street, only to be taken away and kept in an underground custody not recognized by the law.

There are also other politically active personalities and media professionals such as Selemon Shumiye, Meskerem Aberra, Maaza Mehammed, Bekalu Alamirew, Sintayehu Chekol and Temesgen Dessalegne, (Editor-in-Chief of Feth magazine), who, although thrown to various police custodies in a relatively cumbersome procedure, were and are still languishing in various detention centers formally charged and attending criminal court proceedings in an arduous and endless looking process.

Sad to observe, all this dramatic, but rather painful exercise usually takes place in numerous venues including Addis Ababa in an open and total disregard of the basic law of the land as well as gross defiance of other subordinate legislations pertaining to the subject. Consequently, continuing silence to and zero tolerance of such a pervasive and abominable culture of impunity which should, in no time, be aggressively addressed on the part of both the Federal and Regional Governments would simply amount to cooperating with and applauding the greater evil.

As a matter of fact, who might be pretty responsible for this kind of criminal act usually perpetrated, sometimes in broad daylight is far from certain. What appears quite probable, though, should be that the government itself is being widely blamed to have a hand in the ongoing conduct and operation of this ‘dirty business’ under the guise of the ‘law enforcement operation’ which should, (I strongly recommend), be suppressed and put to an end immediately.

In view of this obnoxious anomaly, I have a million-dollar question which I wish all my fellow Ethiopians have to join me in asking now, as tomorrow will be too late to react.

Why and how should this type of gruesome method of forcefully abducting persons be considered useful and credible while we can easily and peacefully apprehend and bring any criminal suspect to the justice system, (if need be), by employing proper procedures and due process of law instead of awfully practicing arbitrary arrest and detention whatsoever?

Let it be reiterated here that no state of emergency has been officially imposed throughout or in any part of the country to at least to warrant such a deplorable action.

After all, how can we legitimately claim to be a democratic nation adherent to the rule of law in the eyes of the world by openly and irresponsibly carrying on to ridicule the independence of the judiciary and the normal functioning of the administration of our criminal justice system whose very existence and operationalization have been guaranteed by the supreme law of the country?