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The Reform of the Security Sector and the Judicial System: Its Challenges and Performances in Ethiopia By Prof. Kinfe Abraham, President of EIIPD Contents Characteristics of Human and National Security Ethiopia: From Autocracy to Constitutionalism Measures of the Healing Process The Concept of Security Human rights is often narrowly defined to refer to the predicament of political prisoners in custody and their treatment in prisons or outside, but, the concept is much broader as it is linked to the human condition and human security at large. This vital linkage is elaborated below to show the relationship of the different themes addressed in this document. Human security like human freedom is often more easily identified by its absence rather than by its presence which is often taken for granted. Thus, absence of stability and national harmony is noticed during wars and conflicts. Yet, despite the difficulty of pinning down the concept, it is useful to have a more explicit working definition for our purpose. First, it is important to underline that national security is modulated both by domestic and international forces. Domestically, it has to do with what governments do or do not about the human predicament of their citizens. In this scene, national security is inextricably linked with human security. Human security involves at least, safety from chronic threats such as hunger, diseases and repression as well as protection from sudden and hurtful disruptions in the patterns of daily residential, occupational or communal life. Such threats can exist at national and regional contexts depending on income and development levels. Human security is in constant motion. The loss of security can be a slow and silent process or an abrupt and loud emergency. It can be human-made due to wrong policy choices. It can also stem from the forces of nature. Or it can be a combination of both as is often the case when environmental Human Security and Human development are followed by hunger and human tragedy. It is also important to underline that human security is linked with human development. But human development is a broader concept involving a range of people's choices. Human security prevails when people can exercise these choices safely and freely and when they are relatively confident of the continuity of their opportunities. The two concepts are also linked because history is replete with success or failure in one area enhancing the chances of success or failure in another. Failure or limited progress in human development often leads to a backlog of human deprivation: poverty, hunger, disease or ethnic or regional disparity. This backlog in access to power and economic opportunities can, in turn, lead to violence and social disruption, thereby removing the basis for human security. There is also a cause and effect relationship here because lack of security makes people less tolerant, xenophobic and ethnocentric. The reasons for such reaction are that the basis of livelihood–access to food, water, educational opportunities, etc. – get eroded and conflicts ensue. Inevitably, this in turn exerts pressure on the image of a country and its foreign relations. Characteristics of Human and National Security Human rights is also linked with the consequences of radical changes and upheavals which affect human security. The overriding universal character of security is its constant state of flux because of changes in the national and universal environment. This was underscored by Albert Einstein who summed up the discovery of atomic energy by simply stating that "Everything changed". former US President, John F. Kennedy, had a similar view in his speech on the 90th anniversary of Vanderbilt University, about the nature of this age. He stated, "Everything changes except change itself." the radical shift in the perception and interpretation of the notion of security that took place at the end of the cold war is a vivid illustration of its mutability. Until then security merely meant territorial guarantee from external aggression or the protection of national interests in foreign policy or global security and security from nuclear holocaust. The concept of national and global security now goes beyond these preoccupations more related to nation-states or to blocs of nations clustered around the superpowers than to people. The superpowers locked in ideological battles of carving out geopolitical spheres of influence during the cold war were a major factor for the proximity between security and war. That led to the stockpiles of weapons of mass destruction. Similarly, most former colonial states were embroiled in conflicts because of real and perceived threats to their fragile national security, following independence in the 1950s and 1960s. The States of the Horn of Africa cannot afford to squander millions of dollars per year for national defense and the maintenance of internal order. They represent some of the poorest countries in the world. Their per capita income is among the lowest in the world. They also score very low, and are practically at the bottom of the human development index. They are equally low on other indicators such as infant mortality, life expectancy at birth, primary health care coverage, adult literacy rate, primary schools enrollment ratio, access to safe water and sanitary facilities. In order to develop, the states of the Horn of Africa must build up their social and economic infrastructure and try to attract foreign direct Investment. To achieve these objectives they need financial resources and peace and stability. They cannot afford to spend millions of dollars per year on armaments. If they do, they will scarsely have financial resources left for Investment in production and services. Moreover, they have to see to it that peace and stability prevail in the region on a sustained basis. Otherwise foreign investors will shy away because of the associated non-economic risks of war, want and Instability. Hence, the question that needs to be answered is: How can the countries of the Horn of Africa maintain peace and stability among themselves and within each of them without spending millions of dollars per year on armaments? There are six approaches to peace and stability for the Horn of Africa countries that are less expensive and more efficient than the traditional approach which is based on amassing huge quantity of armaments. They are the following:
But, above all they need to build constituencies across the region, through effective dialogue with civil society groups which allocate the above types of security related views. A further elaboration on these issues is given in the Annex. Ethiopia: From Autocracy to Constitutionalism When EPRDF took power in 1991, Ethiopians were apprehensive. They were afraid that the blood bath of the Derg era would be repeated. They had a good reason. The Derg started its rule promising to administer "without bloodshed." But soon after, it unleashed the "red terror." Therefore, Ethiopians were afraid that EPRDF too will not do differently. In this paper we will look into the atrocities committed by the Derg, the attempt made by EPRDF to bring to justice those government officials who were responsible for human rights violations, and the new era of constitutionalism ushered by EPRDF. Haile Selassie's rule came to an abrupt end in 1974. It was followed by three years of acute conflict. There were labour strikes and urban unrest. These were contained through draconian measures of military suppression. To consolidate his power, Colonel Mengistu first removed the royal dynasty and political aristocracy linked with the Empire. Second, he executed prominent leaders of the Derg including General Aman Andom, General Teferi Banti, and the second chairman of the PMAC. Third, Mengistu eliminated the ideological left by playing one faction against the other – EPRP vs. MEISON. To contain the attacks of the left against the Derg, Mengistu unleashed the "Red Terror" which claimed 100,000 lives of educated Ethiopians. After eliminating his opponents, Mengistu established the People's Democratic Republic of Ethiopia (PDRE) in 1987. However, the extravagant celebration of the new republic was overshadowed by famine in Wello and Tigray. It signaled the regimes inevitable disintegration. The 1980s were difficult years for the Derg. The 1984 famine made the regime abandon development programs in 1985 and 1986. Then another famine threatened in 1987. Moreover, the nationality conflict escalated in the late 1980s. Mengistu never tried to address the nationality question meaningfully. He opted for a military solution. This brought the downfall of the military regime. As indicated above, when the EPRDF took power in 1991, Ethiopians were apprehensive. They did not believe the various ethnic groups would cooperate to usher in an era of peace and democracy. They judged the present by the past. The Derg regime never fulfilled its promises. So Ethiopians did not believe EPRDF would do differently. However, the EPRDF was favored by three factors. First, the people were happy that the civil war was finally over and their children do not have to be sacrificial lambs. Second, there was a longing among many for democracy. The third crucial factor was the international approval which EPRDF, OLF, and EPLF received in London and the speed with which the EPRDF restored law and order in the country. One task that faced EPRDF was prosecuting the Derg officialdom for war crimes. Hence, the Special Prosecutor's Office (SPO) was established. When EPRDF took power, it detained 2000 former government officials, including "kebele" leaders, on suspicion that they authorized or were in some way involved in the brutality of the Mengistu government. In September 1992, the Transitional Government of Ethiopia (TGE) appointed Ato Girma Wakjira to lead the SPO. The SPO has had a daunting task of bringing to account hundreds of Derg officials for the genocide committed during the rule of the military regime. The campaign of genocide include:
For example, an air in bombing raid at Hawzen market, in Tigray in 1988, 2,500 market-goers were killed. Moreover, the forced relocation policy left 100,000 people dead. In addition, the government's manipulation of relief aid had turned the drought of the early 1980s into a sever famine. Over half of the 40,000 deaths during the famine are attributable to those policies of the government. The SPO had to do immense amount of paper work to bring Derg officials to account for the above mentioned criminal activities. And yet at the same time the SPO had to deal with Habeas Corpus proceedings. Many of those taken to custody were released because of insufficient evidence about their alleged crimes. Some Derg officials claimed that what they did was accomplished according to law and that those whom they killed were enemies of the country. Another controversy was whether to apply international law or domestic law. However, since the domestic law also incorporates international law It could be used for the trial. Yet, the SPO indicated that it intends to apply "those rules of international humanitarian law which are beyond any doubt part of customary law." The first issue to be settled was the "duty" to prosecute. Both international law and domestic law permit a government to prosecute officials guilty of human rights violations such as genocide. The second issue to be settled was whether to apply the death penalty. There is no clear consensus in international law whether to apply the death penalty. The domestic law, however, allows the death penalty. The SPO has settled the debate and chosen to charge the detainees under the domestic Penal Code, thus allowing the possibility of death sentence. But it will inhibit the extradition of absentee defendants. The EPRDF did not stop at prosecuting war criminals. It rather engaged in ushering in an era of constitutional rule. The drafting of the constitution was preceded by a convention of nationalities in July 1991. At the July convention the debate focused on the formation of a multinational parliament, the creation of a transitional government and multinational cabinet, new division of the country based on language and nationality, replacing the command economy by one that gives freedom to the private sector, political pluralism, and the holding of regional elections aimed to pave the way for nationwide election scheduled for 1993. The July convention produced the Transition Period Charter of Ethiopia which acted as interim constitution until a government was elected and a permanent constitution drafted and adopted. The first article of the Charter states, "based on the Universal Declaration of Human Rights of the United Nations... individual human rights shall be respected fully, and without any limitation whatever." The Charter also mentions specifically "freedom of conscience, expression, association and peaceable assembly" and "the right to engage in unrestricted political activity and to organize political parties, provided the exercise of such rights does not infringe upon the rights of others." The Charter created the Council of Representatives as the governing body. It held exclusive legislative and executive authority during the interim period with the Head of State, Prime Minister, and a smaller Council of Minister. Elections for a constituent assembly occurred in June 1994, and the body adopted a new constitution in December 1994. Since then an era of democracy, the rule of law, and the respect for human rights have prevailed. These blessings were what the Ethiopians were longing for and which they did not enjoy under previous governments. Some of the attributes which the EPRDF wants in the emerging state as articulated in many of its documents are that:
One of the quintessential pillars of the new constitution is that it attempts to define the terrain of accountability of the government and the rights and obligations of the citizenry. This act, at once, qualifies Ethiopia to join the ranks of a community of civilized nation, which uphold the supremacy of law. The spirit and content of the new constitution also provides a refreshing break from the law of the Jungle, like that of Somalia and Liberia, not to speak of that of Rwanda or Bosnia in the recent past. Measures of the Healing Process 1. Constitutional Remedies Constitutional remedies are important for the healing process of the religious and national conflicts which have plagued Ethiopia for decades, if not centuries. These include the provisions made on:
The core concept in this is the acceptance of the notion of federal government which accommodates the aspiration of the various regions and/or nations which make up Ethiopia while simultaneously retaining the central authority which prevents the centrifugal forces which can pull the country in different directions and lead to disintegration and anarchy. The TGE, through its proposals and the parliament through its collective wisdom have also done an admirable job by way of convincing the citizenry of the merits of federalism as a rational choice for a multi-national and multi-religious country like Ethiopia. They have propagated and promoted the notion through open public debate at different levels and tried to convince the citizens that federalism can and will address their socio-economic needs and their needs of human rights including socio-economic justice and self-government more effectively than the unitary state. Various arguments were used to do this. éUP 2. Advocacy for Federalism as guarantee of the security sector One argument put forward for the federal formula is that the unitary state is intrinsically ill equipped to be to be democratically implemented in Ethiopia. It cannot be reformed and is therefore inappropriate if the equality of all nations and their human rights are to be guaranteed. There are also other reasons put forward to justify why the federalism is a logical and rational choice. One reason is that both power and responsibility will be farmed out to the regional self-government units. Regional autonomy in turn will gradually promote local democracy, a sense of neighborhood, and spirit of self-reliance, competition, and capacity for organized action. A third factor is that it makes it possible to adapt public services to local needs and that it promotes and safeguards freedom, democracy and responsible governance. Fourthly, it can stimulate socially beneficial inter-community competitiveness, innovation and experimentation with new forms and methods of government. This in turn can foster progress. Finally, federalism can also promote political stability and reduce the burden on the national government which may then devote its time, energy and resources to issues of multinational concern. 1. Caution on Decentralization While the above are some of key arguments of the EPRDF-led government, nevertheless, future governments should be wary of the dangers of excessive decentralization. Power should be delegated in the right doses and in a staggered fashion. Such cautionary measures are important to:
2. Guaranteeing the Ownership of the Constitution The ownership of the constitutions is also important. Here, it is important to note that, although aspects of the document were proposed by the EPRDF, it was subsequently discussed amended and approved by the all-nationalities convention including the Oromo, Amhara, Afar, Tigray, Somali and the Southern People's Movements which also discussed the preconditions and conditions requisite for a peaceful transition to a stable democratic order. An important element for the healing process in this is the rights of all citizens be respected. for instance, some of the preconditions demanded were that all institutions of repression installed by the previous regime be dismantled, regional prejudices redresses and the rights and interests of the deprived citizens be safeguarded by a democratic government elected by and accountable to the people. If these rights had not been guaranteed during the early phase of the transitional period, most of the old liberation movements would have reluctantly opted to continue with their armed struggle. And this, would have included the 45 parties in the EPRDF coalition. 3. Establishment of Constituent Assembly Divergent views were expressed on this. But the election of the Constituent Assembly was necessary to fulfill three paramount objectives – 1) to examine and discuss the draft constitution, 2) incorporate new ideas, including its own, 3) to amend and ratify the constitution, which provides a basis for the supranational and federal parliamentary elections which took, place in May 1995. The Constituent Assembly also served as the peoples' forum for discussing the constitution. It gave representatives of the people an opportunity to examine and approve the constitution. That way, they were able to guarantee that effective power rested with the people. A second justification for the election of the Constituent Assembly is that it provided practical lessons on how elections should be conducted. This was of supreme value for the Ethiopian people who were preparing to participate in the May 1995 election to choose their representatives for the first time. Thirdly, it provided the electorate and those who stood for election as members of the Constituent Assembly another chance to stand for parliamentary elections. During the second entry they had been exposed to good democratic practice and hopefully also better equipped with campaign tactics. Besides, the second election gave those who did not win in the first election an opportunity to do so. Ultimately, the idea is to include the principles of good democratic practice; namely that election is not only about winning, but also about losing and trying once again. The nation-wide campaign which introduced the Constitution for debate and amendments in 1994 was also a good forum. We are given to understand that the debate was conducted at 27,000 kebeles (administrative zones) throughout the country and that some 30 million people participated in it. Its aim were: 1) to discuss salient and central issues taken up in the Constitution such as those on social and political rights and to codify the supremacy of the law, 2) to inculcate the essential values of good democratic practice including the right to elect and be elected for public office, and, above all, 3) to remove the anomalies of elitist rule, government by decree and restore the rights of the people to run their affairs in a manner which is equitable and just to all. Both the Constituent Assembly and constitutional fora which preceded the federal elections have thus made much desired and very useful contributions to the democratization process. 4. Drafting of a New Democratic Constitution The 1995 Constitution was not Ethiopia's first one, but certainly it is the first one which advocates democratic federalism. Indeed, Ethiopia has seen other constitutions. In 1931, Emperor Haile Selassie had issued a constitution which defined the power and role of the imperial state and the divine prerogative which put the crown above the law. In 1955, the 1931 constitution was amended to include a bicameral parliament and a cabinet nominally chosen by the premier and approved by the Emperor. But the 1955 constitution also essentially retained the power and discretion of the crown provided in the 1931 constitution. Similarly, another constitution which emboldened the socialist ideological euphoria of the 1974 upheaval was issued by the military government. But again this constitution failed to address cardinal issues such as the questions of national and nationalities, power and power-sharing and the concept of representative government and accountability and its concomitant obligations. The 1987 constitution of the workers Party of Ethiopia likewise failed to address these central issues. It is the courage and readiness to address the above paramount issues which sets off the present constitution from its predecessors. This departure from the past, many believe and fervently hope, will also make a difference by way of paving the path toward and egalitarian society predicated on justice and the rule of law. One crucial difference is that unlike the past in which the people (if at all consulted) had to put a rubber stamp on decisions which had already been made, this time the people were directly involved in decisions affecting them right from the outset. 5. Introduction of New Reform Measures Other features of the new reform measures includes stipulations on:
6. Reforms Related to Defense and Security After assuming power in 1991, and the years immediately following it the EPRDF also took the following measures to insure lasting peace and guarantee the national and individual security of Ethiopian:
7. Departure from Previous Constitutions Futhermore, 1) the present constitution is not a gift from above as was the case of the 1931, 1955, 1975 and 1987 constitutions which only enhanced the power of the ruling elite and glorified them for their magnanimity, 2) the people and their representatives are the source of the law and the one who will amend it in the future, 3) the constitution defines the structure of government and the praxis of good governance, 4) it takes up issues of development and the equitable distribution of national resources. Such issues were tangentially treated in the past. The package of incentives intended to attract domestic and foreign capital include:
But, above all, as indicated earlier, in the political sphere the salient features of the constitution are that it embodies 1) respect of the national identity of different population groups including their language, culture and other attributes of national worth, 2) their rights for regional self-government and representation at the national level. 8. Participation in the Drafting Admittedly some parties did not participate in the drafting process but we do not think they were willfully excluded. In addition, it is important to note that the 30 people strong Constitution Drafting Commission was composed of members of the EPRDF and a number of other political parties, such as the Southern People's Organization, and opposition parties such as the Monarchist Party (Moa-Anbessa), the Ethiopian Democratic Union (EDU), the Ethiopian Democratic Alliance Group (EDAG) and various interest groups and legal bodies in the country. It had also gathered and incorporated the views of prominent legal authorities on constitutional matters who participated in the various conferences and seminars organized inside and outside the country. Some of the controversial issues had led to lengthy and sometimes acrid debate. But an identity of opinion or a total homogeneity of views should not be expected in a democratic process. The essence of democracy is that it provides rules for accommodating groups of divergent views and hues. That is why radical and conservative parties co-exist in Western democracies. One should also concede that there were genuine difficulties in bringing groups that are hostile to the notion of federal democracy into the political process. The dilemma here was that the ideology of the unitary state with the concentration of power is antithetical to and irreconcilable with that of a pluralist democracy. The most important thing about the new political process is, nevertheless, that it ensures that people are not tried or detained because of views they hold. 9. The Prospects of the New Constitution The federal election of May 1995 has essentially become the litmus test of the strength of the new constitution. Basically, nevertheless, the success of this constitution, like all others, squarely rests not only on the bold principles of egalitarianism and justice it enshrines but also on the dedication and integrity with which they are interpreted and applied in real life. If the TGE and parliament could enact laws which limit their authority and term of office, then there is sufficient motivation to believe that they or any future governments will also have the vision, courage and commitment to make the constitution and the democratic rocess work. |
