By Alemayehu G. Mariam
Rule of Law, Rule by Law, Rule by Unjust Law, Rule by Man
All of the weekly commentaries I have written over the years have been structured on a single fundamental principle: the rule of law. What is it? How does it configure in Ethiopia’s transition from dictatorship to democracy?
The phrase “rule of law” is somewhat vague and much overused by scholars and advocates, and casually thrown around in general political conversation. The phrase is so popular that even dictators swear by it. In October 2011, Meles Zenawi told Aftenposten (Norway’s largest paper): “We have reached a very advanced stage of rule of law and respect for human rights. Fundamentally, this is a country where democratic rights of people are respected.” (Ahem!!!)
For lawyers, “rule of law” is a term of art which generally signifies constitutional supremacy and adherence to principles of due process. Political scientists use the phrase to describe institutional mechanisms for policing the state and preventing abuse of power through established accountability procedures and guarantees of basic civil, human and substantive rights. The phrase is gaining popularity among economists who have come to realize that the rule of law is necessary to create a secure environment for business, investments, contracts and market transactions. Where there the rule of law prevails, good governance (accountability, transparency, free and fair elections, etc.) follows and economies grow. Since the 1990s, the World Bank and the International Monetary Fund, among others, have insisted on implementation of the “rule of law” as a condition of loans and assistance in Africa (largely without much success).
Dictators often jabber about the “rule of law” to shroud their “rule by law” of one man, one party. In a society under the “rule of men”, absolute power is exercised by the privileged few who are above the law. One man, one party, one select group decides for the whole society. That was what Adolf Hitler, Joseph Stalin, and Mao Zedong and others did; and that is what Africa’s dictators do today.
Rule of Law and Rule by Diktat
African dictators rule by diktat (arbitrary decrees issued by command of the dictator) which they try to palm off as “laws” (legislation enacted by a legitimately elected body engaged in deliberative process). They scribble down their diktats, have it approved by their rubberstamp parliaments and pronounce it “law” or “proclamation”. They use the diktat to play policeman, prosecutor, judge, jury and executioner. Under rule by diktat, dictators use the “law” as a bludgeon — a sledgehammer — to vanquish their opposition. On March 28, 2006, Congressman Christopher Smith, Chairman of House Subcommittee on Africa, Global Human Rights and International Operations recounted a revealing conversation he had with Zenawi which demonstrates rule by diktat:
During my visit to Addis last August , I met with Prime Minister Meles Zenawi, and I asked him why he had not investigated the June shootings of demonstrators by agents of his government. His response was that the investigation might require the arrest of opposition leaders, and he didn’t want to do that while by-elections were still scheduled. He went on to tell me that he had dossiers on all the opposition leaders and could arrest them for treason whenever he wanted. Thus, their arrests were all but certain even before the events that ostensibly led to their being incarcerated.
In a more recent example of rule by dictat, Zenawi visiting Norway in October 2011 proclaimed two freelance Swedish journalists Johan Persson and Martin Schibbye awaiting trial were guilty of terrorism. He said the two journalists “are, at the very least, messenger boys of a terrorist organization. They are not journalists. Why would a journalist be involved with a terrorist organization and enter a country with that terrorist organization, escorted by armed terrorists, and participate in a fighting in which this terrorist organization was involved? If that is journalism, I don’t know what terrorism is.” Zenawi seemed to be unfamiliar with Art. 20 (3) of the Ethiopian Constitution which guarantees: “During proceedings accused persons have the right to be presumed innocent.” In late February 2012, Zenawi made the following incredibly mindboggling statement about the same Swedish journalists:
The government gave a small statement that such people have been put [in] prison… The next day the campaign was launched, ‘Free press, innocent people with no issue at all!’ They just give pronouncements before the case has gone to court, before evidence has been heard. The pronouncement was there; the government is the criminal and the people are innocent. (Well, if the shoe fits, wear it!)
After declaring the two journlaists “terrorists” in October 2011, in February 2012, Zenawi has the audacity to criticize others for commenting on the journalsits’ innocence “before the case has gone to court, before evidence has been heard.” Incredible!
A Practical Understanding of the Rule of Law
As the scholars and lawyers debate the finer points of the rule of law, it is possible to fashion a practical understanding of the principle which could be useful in the dialogue and debate over Ethiopia’s transition from dictatorship to democracy. A practical lesson in the application of the rule of law principle could be learned by examining “anti-terrorism” laws in the U.S. and Ethiopia.
In 2001, President Bush signed an executive order authorizing the creation of military tribunals for the detention, treatment and trial of certain non-citizens (“enemy combatants”) in the war against terrorism. In 2006 the U.S. Supreme Court struck down the executive order and commissions as unconstitutional (Hamdan v. Rumsfeld) holding that the President lacks constitutional or statutory authority. Much to the great disappointment of the Bush Administration, the Court held that these terror suspects were entitled to the protection of the ordinary laws of the United States and the laws of war including the Geneva Convention, and the Uniform Code of Military Justice. In language that pays homage to deep-rooted American civil liberties, the Court wrote: “Assuming that Hamdan [terror suspect] is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment.”
In 2004, in a similar case of a terror suspect (Rasul v. Bush), the U.S. Supreme Court upheld the rule of law by requiring the President to honor the writ of habeas corpus (one of the greatest rights Americans have to challenge the government in court unlawful restraint on their liberties). The Court held that a terror suspect detainee may not be denied access to lawyers and civilians courts in violation of the due process guarantees of the Fifth Amendment to the U.S. Constitution. Simply stated, even wicked villains and evil-doers are shielded by the rule of law in the American Constitution.
In contrast, rule by law (rule by diktat) has made Zenawi’s so-called anti-terrorism law (“Anti-Terrorism Proclamation No. 652/2009”) a sledgehammer to crush dissidents, journalists, opposition political leaders and anyone considered an enemy. In early February 2012, a group of independent United Nations human rights experts (U.N. Special Rapporteurs) made public statements condemning the ongoing use of anti-terrorism laws to curb a broad range of freedoms in Ethiopia. Ben Emmerson, the U.N. Special Rapporteur on counter-terrorism and human rights, said that “the anti-terrorism provisions should not be abused and need to be clearly defined in Ethiopian criminal law to ensure that they do not go counter to internationally guaranteed human rights.” Frank La Rue, the U.N. Special Rapporteur on freedom of expression, said that “Journalists play a crucial role in promoting accountability of public officials by investigating and informing the public about human rights violations. They should not face criminal proceedings for carrying out their legitimate work, let alone be severely punished.” Margaret Sekaggya, the U.N. Special Rapporteur on human rights defenders, stated that “journalists, bloggers and others advocating for increased respect for human rights should not be subject to pressure for the mere fact that their views are not in alignment with those of the Government [of Ethiopia].” Maina Kiai, the U.N. Special Rapporteur on the rights to freedom of peaceful assembly and of association, said “The resort to anti-terrorism legislation is one of the many obstacles faced by associations today in Ethiopia. The Government must ensure protection across all areas involving the work of associations, especially in relation to human rights issues.” Gabriela Knaul, the U.N. Special Rapporteur on the independence of judges and lawyers, said: “Defendants in a criminal process should be considered as innocent until proven guilty as enshrined in the Constitution of Ethiopia… And it is crucial that defendants have access to a lawyer during the pre-trial stage to safeguard their right to prepare their legal defence.”
The Essence of the Rule of Law
The essence of the rule of law can be summarized in the following simple proposition: Because power corrupts and absolute power corrupts absolutely, the rule of law is essential to prevent power from corrupting and absolute power from corrupting absolutely. The U.N. Secretary-General in a report to the Security Council in 2004 prescribed implementation of the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.” In practice, it is necessary to have “measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” The World Bank says where the rule of law prevails government exercises self-restraint, treats its citizens justly and equally under the law and protects the dignity of each individual in society. Numerous other organizations and institutions involved in the rule of law movement have come to the same conclusion.
Rule of Law Cannot Be “Copycatted”
There are some who believe that blindly “copycatting” laws and regulations from other countries and incorporating them verbatim into their own laws somehow guarantees the existence and prevalence of the rule of law. In justifying his “anti-terrorism law” in February 2012, Zenawi offered the following mindboggling explanation to his rubberstamp parliament:
In drafting our anti-terrorism law, we copied word-for-word the very best anti-terrorism laws in the world. We took from America, England and the European model anti-terrorism laws. It is from these three sources that we have drafted our anti-terrorism law. From these, we have choses the better ones. For instance, in all of these laws, an organization is deemed to be terrorist by the executive branch. We improved it by saying it is not good for the executive to make that determination. We took the definition of terrorism word-by-word. Not one word was changed. Not even a comma. It is taken word-by-word. There is a reason why we took it word-by-word. First, these people have experience in democratic governance. Because they have experience, there is no shame if we learn or take from them. Learning from a good teacher is useful not harmful. Nothing embarrassing about it. The [antiterrorism] proclamation in every respect is flawless. It is better than the best anti-terrorism laws [in the world] but not less than any one of them in any way…
One cringes in total embarrassment at such a stunningly shallow understanding of jurisprudence, glib talk about the law and inattention to a glaring logical fallacy in one’s argument. In seeking to establish that his anti-terrorism law is based on the rule of law, Zenawi commits a logical fallacy known as “argument from authority” (argumentum ad verecundiam). The logic of his argument is that America and Britain are democratic countries with a high degree of adherence to the rule of law principle; and they have anti-terrorism laws that are the “best” in the world. We have “copied word-for-word” the best elements of their anti-terrorism laws and put them to use. Therefore, our terrorism laws are “flawless” and singularly the very best in the world!
By invoking a fallacious authority and creating a manifestly false analogy, Zenawi aims to clothe his anti-terrorism diktat with moral legitimacy and legal respectability. One cannot create a lion by piecing together the sturdy long neck of the giraffe with the the strong jaws of a hyena, the fast limbs of the cheetah and the massive trunk of the elephant. The king of the jungle is an altogether different beast. In the same vein, one cannot clone pieces of anti-terrorism laws from everywhere onto a diktat and sanctify it as “flawless in every respect”.
Imitation may best the highest form of flattery, but to boldly claim that a mindlessly cloned diktat is “flawless” is just mindless. Beyond logical fallacy, Zenawi seems to be totally clueless about elementary principles of jurisprudence in the Anglo-American tradition. The American antiterrorism law (Zenawi does not specifically identify the American antiterrorism law he copied word-for-word, but one may reasonably assume he is referring to the “USA Patriot Act”), is not merely a collection of words, legal phrases, clauses, terms and paragraphs. The Patriot Act was drafted with intense debate and deliberation in the Congress (not scribbled down and sent for rubberstamping), contentious disputes in the media (in the U.S. it not a crime to criticize a law in the media) and amidst outraged public dialogue and debate (not shoved down the public’s throat). Above all, it was crafted within the known boundaries of the Fourth, Fifth and Sixth Amendments and Article I, section 9 of the U.S. Constitution. The legislative language in the Patriot Act derives its vitality not from glib semantic analysis of words and phrases, but from long and storied legal traditions that date back to the Magna Carta (Great Charter) in 1215, the Declaration of Independence in 1776 and the vast body of Anglo-American common law. Most importantly, the Patriot Act is subject to the supreme law of the land– the U.S. Constitution. Thomas Paine, one of the revolutionary “Founding Fathers of the United States” and the “voice of the common man” explained it best in Common Sense: “In America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”
If Zenawi wants to copycat American and British anti-terrorism laws, he cannot cherry pick words, phrases, sentences and clauses. He has to take the whole package because those words, phrases and clauses he copied so proudly have complex histories, meanings, nuances and implications. Those blindly borrowed words and phrases have special meaning and application when they are considered, contextualized, synthesized and analyzed within the broader framework of Anglo-American common law, judicial precedents, legal principles and doctrines, rules of statutory construction, legal scholarship, legislative intent and numerous other factors. If Zenawi chooses to imitate and clone American law “word-for-word”, he is practically, logically and hermeneutically obliged to give meaning to those laws within the framework of the American Constitution and the body of constitutional law.
But Zenawi simply has no clue. The U.S. “antiterrorism law” is not as perfect as he the thinks it is and may not be worthy of ultimate imitation. In fact, it is quite flawed. For instance, in 2004, a federal judge in New York ruled that akey component of the USA Patriot Act is unconstitutional because it allows the FBI to demand information from Internet service providers without judicial oversight or public review. Another federal judge in Oregon in 2007 ruled that crucial parts of the USA Patriot Act were unconstitutional because they allowed federal surveillance and searches of Americans without demonstrating probable cause required by the Fourth Amendment. The judge wrote, “For over 200 years, this Nation has adhered to the rule of law — with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised.”
Unlike Zenawi’s “anti-terrorism” diktat, the Patriot Act had significant limitations in itself, including sunset provisions (expiration dates) of December 31, 2005 on a number of issues including wiretapping, sharing foreign intelligence information, seizure of voice-mail emergency disclosure of electronic surveillance. When it was reauthorized, a new sunset of December 31, 2009 was established and significant amendments added to provide for greater congressional and judicial oversight of orders for roving wiretaps and enhanced procedural protections for “sneak and peek” search warrants, among many others.
Zenawi also fails to understand the power of judicial review and the resolute ferocity of American lawyers dedicated to civil liberties in challenging the government and stopping it from encroaching on the civil liberties of the people. In other words, in America, there are lawyers and judges who are willing, able and ready to hold the Congress’ or the President’s feet to the fire of the supreme law of the land. In Ethiopia, there are only dictators who hold the peoples’ feet, hands and bodies to the fire.
But Zenawi is absolutely right in saying that “there is no shame if we learn or take from them [America, Britain, European model]”. Learning from a good teacher is useful not harmful.” But it is not enough to have good teachers, one must also be a good student and learn all of the substantive lessons, not just a word here, a phrase there and a clause somewhere else.
Do Ethiopians Want a Government of Laws and Not of Men?
The rule of law operates differently in different societies and there is no single “flawless” conception of the principle. I do believe there are some commonalities and universal elements of the rule of law principle that are applicable in all societies. To extract the most universal elements, it is necessary to learn from alternative conceptions and experiences in the application of the rule of law. But the learning process should not be robotic or involve the mindless aggregation of bits and fragments of information and analysis. It should be syncretic, synthesizing divergent and conflicting ideas and practices in the practical application of the rule of law.
The rule of law in Ethiopia, I believe, is an ancient ideal. Ordinary Ethiopians used to invoke the “divine power of the law” (ye heg amlak) against wrong-doers and abusers of power. That was when they could see the faint and distant image of justice painted on a canvas of autocratic rule. But it must also be pointed out that the Ethiopian civic culture has tolerated an insidious exception to the rule of law which persists to the present day. An old Ethiopia adage says, “One cannot plough (farm) the sky nor hold a king to account in court” (semai aye-tares, negus aye-keses). “Negus” Zenawi is the personification of that adage today. In the transition from dictatorship to democracy, Ethiopians will have an opportunity to choose between alternative conceptions of the rule of law.
My view is that rule of law is a quintessential principle of good democratic governance. It is a vital part of statecraft (the art of leading a country). It is a fundamental element in nation-building, state-building, peace-building, democracy-building, justice-building and truth and reconciliation. I do not equate the rule of law with democracy, but I believe it makes genuine multiparty democracy possible through institutional arrangements for conducting clean, free and fair elections. I do not think the rule of law by itself guarantees justice, but it will serve to facilitate the delivery of justice to citizens through an independent and transparent judicial process. It will not guarantee equality, human rights and the rest of it, but without the rule of law there can be no equality or human dignity. I believe respect for human rights is the single important manifestation of the prevalence of the rule of law in any society and the most persuasive evidence of good governance.
Rule of Unjust Laws?
I am persuaded by the works of the great philosophers, thinkers, theologians, theorists, revolutionaries and human and civil rights rights advocates — Cicero, Augustine, Aquinas, Gandhi, King and even the framers of the U.S. Constitution in their Declaration of Independence — who argued that an unjust law (diktat) is not really a law at all. Dr. Martin Luther King said, “Any law that uplifts human personality is just. Any law that degrades human personality is unjust. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws… for an unjust law is no law at all.” So Ethiopia’s transition from dictatorship to democracy will be a transition from rule by unjust laws to the rule of just laws, and an uprising from degradation to collective elevation. I believe the rule of law will take deep root in Ethiopia when government learns always to fear its citizens and citizens acquire the courage never to fear their government!