Crimes of Willful Ignorance

Alemayehu G. Mariam

Barking Up the Wrong Tree

This past week, the attack dogs of the dictatorship in Ethiopia were unleashed against Amnesty International (AI) because that organization had requested publication of the names of suspects arrested for allegedly conspiring to assassinate high officials and blow up government buildings. Ermiyas Legesse, a “State Minister of Government Communication Affairs”, offered the incredibly ignorant legal analysis that AI’s request for a list of the suspects represented a human rights violation and an interference in the country’s legal process: “Amnesty was giving a verdict before the Ethiopian court, the only legal institution to make any judgment on the issue. Now Amnesty is committing a prejudice. It is hindering our judiciary system, which by itself is violation of human rights.” Shimeles Kemal, the notorious legal flunkey and spinmeister of the regime and star persecutor of the Kinijit kangaroo court chimed in with his signature gobbledegook: “At a time of conducting investigation against criminal, it is so difficult to release information as it may frustrate the investigation process.” Identifying suspects who are held incommunicado while the regime is stage managing a media circus frenzy about their sinister crimes against the state will hinder a criminal investigation and constitute a human rights violation? Such is the illogic of a regime that is trapped in the throes of political turmoil and survival. Such is the loony logic of a regime in terminal paranoia!

Dictatorship of Ignoramuses

All of the brouhaha about the AI request for the list of suspects would have amounted to no more than comic relief but for the fact that we are seeing laid out before our eyes the makings of a legal lynching in a Kangaroo Kriminal Kourt. We have seen it all before during the two years of “prosecution” of the Kinijit and other pro-democracy leaders. (See my 32-page analysis of those proceedings.[1])The careful observer will no doubt be amused by the spectacle of this manifestly mindlessness make-believe trial of 40 suspects officially dubbed “desperadoes”: 1) Could the regime possibly believe that any reasonable person who has marginal familiarity with their long record of human rights abuses and miscarriage of justice will give an iota of credibility to their silly kangaroo judicial process? 2) Are they so lacking in intelligence that they simply can’t see their legal pretensions are mere exercises in futility? Or are they just playing dumb? Perhaps they think the rest of the world is so. 3) Could it be that they are cleverly trying to distract attention from the real issues facing the country such as endemic corruption, famine, prisons full of political prisoners, skyrocketing cost of living and so on by stage managing a media circus around the infamous “Case of the Desperadoes”? 4) Is it possible that they are taking a preemptive strike against international human rights organizations and put them on the defensive in anticipation of criticisms they expect to get as they proceed with their bogus prosecutions? 5) Could it be that they are just ignorant of general principles of criminal law, their own constitution and criminal law and procedure? We will give them the benefit of the doubt and assume that they are legal ignoramuses.

Criminal Procedure 101 for Kangaroo Court

As the old saying goes, “Fool me once, shame on you; Fool me twice, shame on me.” The criminal dictatorship put on a dog and pony legal show for nearly two years following the 2005 elections. They fooled some people then, but they won’t be able to fool many people twice with their “40 Desperadoes” kangaroo court road show. We will call them out on their own constitution and laws: Article 9 of their constitution provides, “This Constitution is the supreme law of the land.” No “laws, practices, and decisions of public officials” can negate it. Article 10 provides, “Human rights and freedoms as inherent rights of man are inalienable and inviolable.” Article 13 provides that the rights of Ethiopian citizens “shall be interpreted in a manner consistent with the Universal Declaration of Human Rights, international human rights covenants and conventions ratified by Ethiopia.” Among the fundamental constitutional rights of the accused listed in the “supreme law of the land” include the right “the presumption of innocence until proved guilty by a court of law, a public hearing before an ordinary court of law without undue delay” and written notice of the charges. (See also Arts. 19, and 11.)” Art. 61 guarantees the right of “any person detained on arrest or on remand” to “call forthwith” and consult a lawyer of his choice. Article 24 guarantees “Everyone shall have the right to his human dignity and good reputation.”

Article 11 of the Universal Declaration of Human Rights which is incorporated in the “supreme law” by express reference provides “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” The International Covenant on Civil and Political Rights under Article 9 provides “No one shall be subjected to arbitrary arrest or detention…. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him”. (See also Art. 14 of the Criminal Procedure Code.) A criminal defendant is entitled to a change of venue if “a fair and impartial trial cannot be held in any criminal court.” (Art. 106, Crim. Proc. Code.)

Presumption of Innocence

The “40 Desperadoes” are presumed to be absolutely innocent until proven guilty beyond a reasonable doubt in a court of law. The burden of proving their guilt based on legally admissible evidence rests entirely on the prosecution. As defendants, they do not have any burden of proof whatsoever! In determining the issue of guilt, the judge(s) must rely solely and exclusively on the evidence presented at trial. It is obvious that the “40 desperadoes” have not only been presumed guilty — indeed they have been found guilty — before they are even served with notice of the written charges. Bereket Simeon, a “communications minister” and chief advisor to the regime leader declared, “six of the suspects were army officers on active duty, including one general, 34 of the suspects were ex-army men expelled from the army on grounds of misconduct. [The suspects did not intend] to stage a coup but assassinate individuals, high ranking government officials and destroying some public facilities and utilities … like telecom services and electricity utilities… They intended to create conducive conditions for large scale chaos and havoc.” What is truly appalling is the fact that a statement of such gravity made by the second most powerful man in the regime is tantamount to an irrevocable verdict of guilty. What judge in the land will have the guts to overrule such an outrageously politically-motivated legal conclusion intended to prejudge the defendants’ case, cripple their defense, deny them a fair trial and railroad them straight to jail or worse?

Notice of Charges

Most of the suspects in the alleged terrorist conspiracy were arrested on or about April 24 amidst a media circus complete with pictures and videos of weapons caches allegedly to be used in the plot. To date, none of the suspects has been charged, and all remain in detention. What is required to charge the suspects under the regime’s constitution is a plain and concise statement of the acts constituting the alleged criminal. Indeed, Simeon’s statement alleges sufficient facts which minimally point to “terrorism”, attempted insurrection and conspiracy. If the evidence against the suspects is as ironclad as the regime suggests, there is no need for any delay in charging them or identifying them in public. But we have seen this game played before during the prosecution of the Kinijit and other defendants. (See link at footnote 1.) The regime makes general allegations in the media, shuttle the detained suspects back and forth to “court”, request interminable delays to investigate the case and locate witnesses (fabricate evidence) and let the suspects languish in prolonged pretrial detention until it decides to announce all of them are guilty.

Fair and Impartial Trial

Is it remotely possible for the “desperadoes” to have a “fair and impartial trial” in the regime’s kangaroo courts? Could there be a judge(s) throughout the land who can hear and impartially decide the issue of guilt without improper influence, inducements, pressure, threats or political interference by the dictators? To answer this question in the affirmative is to assert that the rule of law prevails in Ethiopia, and that the “supreme law of the land” is actually followed. As evidenced in the Kinijit kangaroo trials, there will be perjury-fest in the courtroom. There will be funny capers with the evidence. Endless requests for continuances and postponements of court dates will granted to the prosecution to investigate the case (why file charges if the prosecution is not ready for trial?). Possibly, there will be international observers who will sit in kangaroo court and cringe in silence as they see a monumental miscarriage of justice unfold before their very eyes. A troika of the regime’s best judicial hacks will be enthroned on the bench having taken the oath of “see nothing, hear nothing and do nothing”. Fair trial in a criminals’ court, what a quaint idea!

Right to Counsel

The “desperadoes” supposedly have the constitutional right to counsel. It is a universally accepted axiom of the law that there can never be a fair criminal trial in which the defendant is denied the assistance of counsel. The defense lawyer advises the defendant of his rights and explains the various stages of the criminal process, ensures the defendant’s constitutional and procedural rights are not violated, investigates the facts and prepares legal defenses. As the various international human rights organizations have documented for years, access to counsel by pretrial detainees in Ethiopia is non-existent. In ordinary criminal cases, public defenders may be appointed if the matter goes to trial. In political cases, the authorities tightly regulate the attorney-client privilege arbitrarily denying consultations, limiting consultation times, intruding upon privileged attorney-client conferences, intimidating defense lawyers who represent their clients zealously and even sanctioning them for vigorously defending their clientsin court. Under such circumstances, can anyone reasonably expect a fair trial?

Human Dignity and Good Reputation

The 40 individuals suspected of involvement in the conspiracy were officially characterized as “desperadoes” despite their constitutional right to dignity and good reputation. The choice of epithet is calculated. It is intended to ridicule and belittle them, and diminish their status as military officers. They are trying to create a public image of these officers as “good soldiers gone bad”. By describing them as “desperadoes”, the regime aims to caricature them in the manner of the reckless outlaws of the frontier American West who would shoot up the saloon in a drunken rage. They want to depict and demean them as criminal thugs and draw upon them public hatred, ridicule and contempt while destroying the self-esteem of these officers and their standing community. But the fact remains that they have a constitutional right to good reputation as officers and gentlemen, and are presumed innocent until proven desperado!

Trials as a Tool of Political Persecution: The Need to Understand Abuses of Criminal Procedure in Human Rights Cases

It is important to understand abuses of criminal procedural rights in human rights cases because enforcement of the criminal law and denial of procedural rights of suspects is the principal tool used by dictators to accomplish multiple purposes: 1) The misuse, manipulation and denial of procedural rights (the process by which guilt is proven and punishment exacted) to suspects presents dictatorships tremendous opportunities for oppression and human rights violations without attracting much criticism or condemnation. It gives them an opportunity to avoid accountability by claiming that any questioning of what they do or not do is a “hinder[ance] of our judiciary system.” 2) Disregard for lawful procedures in criminal cases often serves as a method for stifling expressions which are critical of the dictatorship. That was precisely what Legesse and Kemal were trying to do in claiming that Amnesty International’s request for a list of suspects is a “human rights violation” and an obstruction to investigation. 3) Manipulation of criminal procedural rights in dictatorships are also often used to send a warning to other opposition members that the full wrath and weight of kangaroo law could be visited upon them at any moment.

Of course, the use of trials as a tool of political persecution is nothing new. Dictatorships in history have used the court system and the trial process to vindicate their own legitimacy as leaders and the legitimacy of their state institutions by prosecuting those they perceive as threats. It is no different here. The dictators in the “desperado” cases are using the kangaroo court show trials as opportunities for the demonstration of their own legitimacy as a government and control of state institutions while impressing the party faithful with their use of an iron legal fist. But Stalin had perfected these techniques decades ago. He consolidated his absolute power in the Great Purges of the 1930s by staging kangaroo court proceedings to eliminate “opportunists”, “counter-revolutionary infiltrators”, “enemies of the people”, and “terrorist organizations and terrorist acts (for which he enacted a special law). During the purge of the Red Army, thousands of military leaders and officers were convicted of treason and other offenses against the state, and jailed or killed. But Stalin spared no one. Workers, peasants, housewives, teachers, priests, musicians, soldiers, pensioners and even beggars were arrested and punished on mere suspicion or no suspicion at all. As terminal paranoia widens its grip, similar outcomes could be expected in Ethiopia as well. The fact of the matter is that the show trials of the “desperadoes” will be used as a tool to facilitate their conviction, and most importantly, as a sophisticated means of repression of dissent and suppression of democratic impulses.

Kangaroo Justice: Verdict First, Trial Second

We know exactly what has happened to the 40 desperadoes. They have been found guilty as sin by the powers that be even before they are charged with a single crime. The coming kangaroo trial is just window dressing for a guilty verdict that has already been reached. It is all a charade, a legal game in which there will be prosecutors and defense lawyers (maybe), party-hacks-in-robes pretending to be judges and endless court dates. Who needs constitutional rights, procedural protections, human rights laws and other such quaint legal niceties when we can play kangaroo court: “The Case of the 40 Desperadoes. Let the Games Begin!”

[1] http://www.ethiomedia.com/addfile/keystone_cops.pdf