Introductory Note: I have prepared this commentary specifically for presentation at a symposium sponsored by the International Institute for Democracy and Electoral Assistance (IDEA), Aadland Consult and the Ethiopian Foreign Relations Strategic Studies Institute scheduled for December 16, 2018 at the Hilton Garden Inn in Los Angeles, CA.[1]
In this commentary, I reflect on the “rule of law”, a much overused, maligned and misunderstood phrase, broadly from my legal background in the American legal system and assess its importance to Ethiopia’s transition to democratic rule.
It is fashionable to talk about the rule of law. It is often worn as a badge of political progressivism and conviction for those who champion it.
Numerous attempts have been made to define and fix the meaning of the “rule of law” over the millennia.
Over 2,400 years ago, Aristotle wrote, “It is more proper that law should govern than any one of the citizens. There is a rule of another kind, which is exercised over freemen and equals by birth — a constitutional rule, which the ruler must learn by obeying.” (Politics Book III.)
Perhaps the American Founder John Adams had Aristotle in mind when coined the phrase “a government of laws, not men.”
In 1215, the Magna Carta put the brakes on the unlimited powers of King John by forcing him to agree to deprive “freemen” of the realm of life, liberty or property only according to the “law of the land”.
The Catholic theologian and contemporary of King John, Thomas Aquinas, was talking about the rule of law when he defined “just law” as “an ordinance of reason promulgated by competent authority for the sake of common good.” Aquinas argued, “An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.”
The 17th century English philosopher Thomas Hobbes argued the rule of law is inherent in the “Law of Nature” which is “ discovered through reason. Such a law affirms human self-preservation and condemns acts destructive to human life.” But to enjoy the benefits of the rule of law, we must “mutually divest ourselves of certain rights in order to escape the state of natural war.”
The influential French enlightenment political philosopher Montesquieu argued the most effective application of the rule of law occurs if there is separation of powers between the three branches of government to prevent abuse of political power. He made a distinction between a “monarchy of a single person governed by fixed and established laws and a despotic government of a single person directing everything by his own will and caprice.”
The rule of law proved to be the nemesis of the doctrine of the divine right of kings, which made monarchs ultimately accountable to God, and not the law of the land or the sovereign will of the people.
American revolutionary Thomas Paine in Common Sense debunked the divine righters who argued rex lex (“the king is law”) by declaring, “in America, the law is king.”
Article (4) 62 of the 1955 Revised Constitution of Ethiopia provided, “no one shall have the right to bring suit against the Emperor.” A popular saying of the time advised, “One cannot accuse a king nor plough the sky.” The Emperor is no more.
The United Nations has made multiple efforts to define the rule of law.
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, through its World Governance Indicators, has also tried to come up with a sophisticated system of benchmarks to measure the rule of rule. 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.
Indeed, for the past two decades, 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).
The World Justice Project (WJP) Rule of Law Index, which claims to be “the world’s leading source for original, independent data on the rule of law” uses comprehensive criteria including civil rights, order and security, constraints on government power and absence of corruption to measure the prevalence of the rule of law.
The American Bar Association has hearkened back to the American Founders and the Magna Carta to shed light on the rule of law. The hallmark of the rule of law, according to the ABA, is the requirement for citizens, leaders and political institutions to conform their conduct to the supreme rule of the law of the land, the Constitution.
Lawyers generally use the “rule of law” as a term of art to refer to 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.
These days, the principle of the rule of law is gaining popularity even 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.
They believe where the rule of law prevails, good governance (accountability, transparency, free and fair elections, etc.) follow and economies grow.
Even tin pot dictators the world over often jabber about the “rule of law” to shroud their “rule by law of one-man, one-party”.
They confuse or try to blur the lines between the rule of law and rule by diktat or rule by unjust laws.
African dictators today 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 rubber stamp parliaments and pronounce it “law” or “proclamation”. They use their diktats to play policeman, prosecutor, judge, jury and executioner.
The so-called anti-terrorism law of the regime of the Tigrean People’s Liberation Front that misruled Ethiopia for the past 27 years is a classic example of rule by diktat.
Under rule by diktat, dictators use their make-believe rule of law as a sledgehammer to vanquish their opposition.
I am persuaded by the works of the great philosophers, thinkers, theologians, theorists, revolutionaries and human and civil rights advocates who argued that an unjust law (diktat) is not really a law at all.
Like Dr. Martin Luther King, Jr., I believe one has a “moral responsibility to disobey unjust laws, for an unjust law is no law at all.”
The so-called Jim Crow laws that legally enforced racial segregation in the Southern United States were regarded to be the “rule of law”.
So were the “Nuremberg Laws” of Nazi Germany which ushered the “Final Solution” decreed, “A Jew cannot be a citizen of the Reich. He cannot exercise the right to vote; he cannot occupy public office.”
The South African apartheid regime’s Group Areas and Bantu Authorities Act which sought to institutionalize segregation and permanently ban Black Africans from the urban areas were also considered to be the “rule of law”.
For me, the rule of law is not a monolithic concept or principle that can be defined in simple terms.
It is a complex multidimensional concept and principle.
The rule of law to me is at once a principle, an institution, manifestation of individual behavior and attitude and a necessary element of the political culture.
The 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.
I do not believe the rule of law by itself will guarantee equality, human rights and good governance, but without the rule of law there can be no equality or human dignity.
As an accidental human rights advocate after the Meles Massacres, I believe respect for human rights is the single most important manifestation of the prevalence of the rule of law in any society and the most persuasive evidence of good governance.
My personal journey on the winding road to the rule of law
I decided to become a lawyer because of my passion for the rule of law.
All of the weekly commentaries I have written over the past 13 years, now exceeding perhaps one thousand weekly commentaries, 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?
When I signed up for law school over three decades ago immediately after receiving my Ph.D., many in my circle of family and friends thought I was “crazy”.
The oft-made comment was, “Isn’t a Ph.D. in political science enough? Why suffer through 3 or more years of grueling law school?”
Suffice it to say, I have heard the wisecrack, “No rest for the wicked.” on more than one occasion.
As I reported in my commentary (“A Magna Carta for Ethiopia”) on the 800th Anniversary of the English Magna Carta (Great Charter), (a commentary that was included in the official archives of the British Magna Carta Trust in March 2015), my interest in the rule of law goes back to my early childhood.[2]
I was fortunate enough to see the rule of law in action when I was a child.
I saw some of the great lawyers and jurists of the imperial era in Ethiopia as my father took me along to different courts whenever possible for me to see and learn how the law worked.
I am sure there are some today who will say, “But those were feudal courts… blah, blah…”
Be that as it may, of all areas of the law that fascinated me the most in my childhood was procedure, criminal and civil procedure (sine sirat).
The civil procedure code (Fitha Beher) of the day was less than 245 pages bound in a small volume.
The criminal procedure code was a mere 69 pages appended to the penal code.
Neither was hard reading at all.
I believe my father had mastered the procedural law of the day and often won cases on points of procedure if not on questions of substantive law.
The life long lesson I learned from my days following my father in different court houses and listening to the lawyers arguing and examining witnesses was that it is necessary to have established and regularized legal processes in dealing with the rights of citizens.
Of course, at the time I was not tutored in the writings of John Locke and Thomas Jefferson on “unalienable rights” and the necessity of due process before a person is deprived of life, liberty and property.
But I had an innate and rudimentary sense of the need for a fair process in dealing with the rights of people.
In my early teens, I came to be quite familiar with the 1955 Revised Constitution of Ethiopia because I heard my father often talking about it with other lawyers and judges.
All sorts of criminal procedural rights were guaranteed in the Revised Constitution (Arts. 37-61). Interestingly, they seem to have been carbon copied from the U.S. Bill of Rights.
The Revised Constitution guaranteed the “equal protection of the laws” and forbade “deprivation of life, liberty or property without due process of law”.
It prohibited “arrest without a warrant issued by a court” and mandated suspects must be brought “before a judicial authority within forty-eight hours of arrest”.
In all criminal prosecutions the accused was guaranteed, the “right to a speedy trial and to be confronted with the witnesses against him, to have compulsory process” and the assistance of a counsel for his defense at government expense.
Ironically, the U.S. did not institute a national rule to provide an attorney to defendants in criminal cases who are unable to afford their own attorneys until 1963 in Gideon v. Wainright.
Little did I know that three decades later, I would be standing up to defend one of the greatest procedural protections of the American people in the California Supreme Court, the right against self-incrimination guaranteed in the Fifth Amendment to the U.S. Constitution.
As I walked the steps of the Supreme Court in Sacramento, CA on March 3, 1998 for oral argument in People v. Peevy, I took a moment and looked up at the imposing Ionic columns and remembered the great lawyers and judges I had seen and heard in my childhood.
I smiled. I felt proud that I was carrying a great Ethiopian tradition into an American courtroom.
If only my father could have seen me walking those court house steps following his footsteps to do legal battle in defense of the U.S. Constitution and stand up for the rule of American constitutional law.
The rule of law enshrined in the Fifth Amendment to the U.S. Constitution: “No person shall be compelled in any criminal case to be a witness against himself.”
That is, no person may be questioned by government authorities involuntarily and be forced to confess to a crime.
But I also felt the pangs of sadness and anguish.
I told myself I should be fighting for the rule of law in Ethiopia, not in America.
Before entering the court house, I glanced at the inscription etched on the façade, “Into the highlands of the mind let me go.”
I comforted myself in the fact that I stood there to defend the principle of the rule of law, which has no citizenship, nationality or religion.
If anything, it is the rule of law that is the golden thread that stitches all of humanity.
The Peevy case raised issues that were at the very core of the rule of law protecting American citizens against self-incrimination guaranteed under the Fifth Amendment to the U.S. Constitution applying to the states through the due process clause of the fourteenth Amendment.
What should be done when the police deliberately and intentionally violate the U.S. Constitution to obtain evidence to later challenge (impeach) the defendant who may choose to testify at his trial?
In raising this question, the Peevy case stood alongside the great legal landmarks in American criminal procedure, including Miranda v. Arizona (1966) (Miranda rights); Edwards v. Arizona (1981) (no police interrogation after a suspects asks to have counsel); Rhode Island v. Innis (1980) (police “interrogation” includes any words or actions on the police should know are reasonably likely to elicit an incriminating response); and Harris v. New York (1971) (a statement taken from a suspect without proper Miranda advisements may be admitted for impeachment purposes).
The central problem in the Peevy case was the U.S. Supreme Court rule in Harris.
As the Peevy court framed it, “The issue presented in this case is whether the Harris rule applies when a police officer conducting a custodial interrogation deliberately fails to honor a suspect’s request for counsel, with the objective of securing evidence for impeachment purposes.”
In lay terms, the question was whether police officers sworn to uphold the law should be allowed to introduce evidence in court for any purpose particularly when they have obtained the incriminatory admission from the suspect through intentional, deliberate and calculated disregard of the suspects rights against self-incrimination.
Driving the constitutional issue was a practice endorsed by the Commission on Peace Officer Standards and Training (POST), an agency within the California Department of Justice, which was instructing the state’s police officers to continue to question a suspect after they have invoked their Miranda rights and refused to speak. The reason was to lock a suspect into a story and preventing them from changing it in the future.
In practical terms, the Commission was promoting lawlessness among sworn police officers by instructing them to systematically violate the rights of criminal suspects.
I have no issues with police officers. I believe the vast majority of them are professionals who perform their duties properly.
But I have serious issues with police officers and organizations who flout and disregard the supreme law of the land, the U.S. Constitution, because they wear a badge and a gun.
I have often asked, “Who polices the police?”.
My problems with police authorities who abuse their power and flout the U.S. Constitution is best expressed by. U.S. Supreme Court Justice Louis D. Brandeis who warned, “Our government… teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
So, the larger question for me was every policeman becoming a law unto himself, disregarding the Constitution and showing contempt for the rights guaranteed to American citizens.
From the beginning days of my Ethiopian human rights advocacy in 2006, I have been writing on the need to observe and institutionalize the rule of law in Ethiopia and protect citizens from arbitrary government action.
In July 2007, I protested the denial of due process to Seeye Abraha, the former co-founder and defense minister of the regime of the TPLF.
This fact may come as a surprise to many as I have been an implacable and relentless foe of the Thugtatorship of the TPLF, as I liked to refer to them.
My view on the rule of law is simple: If we do not believe the rule of law applies to those we despise, then we really do not believe in the rule of law at all.
It would have been easy to line up against the wall and shoot down prominent members of the political, military, judicial and economic leadership of Nazi Germany who participated in the Holocaust and other war crimes.
But that would have been an injustice to the cause of justice and the rule of law.
In 2001, I visited the actual courtroom used for the trials in Nuremberg and the Deutsches Stadion (stadium) designed by Albert Speer for Nazi rallies.
I was at once overcome by an overwhelming feeling of sadness and elation standing there as a latter-day witness to the triumph of the rule of law over the rule of the most heinous tyranny the world has ever seen.
Over the years, I have written numerous commentaries on the rule of not only in Ethiopia but also in the United States.
In July 2012, I wrote commentary trying to fashion a practical understanding of the principle of the rule of law which could be useful in the dialogue and debate over Ethiopia’s transition from dictatorship to democracy.
Beginning in 2013, I sought to ensure accountability under the international rule of law (The Rome Statute of the International Criminal Court) for African dictators who have committed crimes against humanity before the bar of the International Criminal Court (ICC).
I even proposed a special witness protection program for individuals who agree to testify in ICC prosecutions involving crimes against humanity, war crimes and genocide.
In July 2016, I made a special trip to the ICC in The Hague to observe the rule of law in action.
I came face to face with former Congolese “general” Bosco Ntganda and former Cote d’Ivoire president Laurent Gbagbo.
I had been following the Gbagbo case for some time.
Gbagbo and Ntganda were the two smallest big men I had seen in my life.
At one time, in their countries, their wish was the law. They were above the law.
When they were in power, they were givers and takers of life. They were feared for their brutality, cruelty, atrocity and inhumanity.
But sitting just a few feet away from them separated by a plate glass at the ICC, I stared into their eyes as my heart ached and rage roiled in my mind.
I suspect they stared into my eyes too.
All I could see through their eyes were the dead souls of the thousands of people they murdered, jailed, tortured, displaced and mistreated.
How I deeply envied the ICC prosecutor laying out the evidence against Ntganda and Gbagbo.
But I am glad I was not the prosecutor because I would not have been able to balance the demands of the rule of law against my irrepressible desire to use the rule of law for vengeance and revenge.
In May 2018, I wrote a piece on institutionalizing the rule of law and deinstitutionalizing the rule of men by lifting the state of emergency in Ethiopia.
Last month, I wrote a piece on the end of thugtatorship and rise of the rule of law in Ethiopia on the arrest of Kinfe Dagnew and other suspects in large scale corruption and gross human rights violations.
Rule of law as the foundation for nation-building
For me, the rule of law is foundation of any society.
A nation that is not built on the rule of law always teeters on the edge of collapse.
I look to America as an example.
America is a strong nation because it is founded on the rule of law.
We call the “United States Constitution”, including the Bill of Rights.
The U.S. Constitution is social contract for a limited government.
That is a government limited only to those powers delegated to it by the People. The Congress, the President and the Judiciary have only those powers expressly granted in the Constitution. Nothing more. What is not expressly delegated to the national government is reserved for the states.
In the Bill of Rights, rules of law are set forth for the government to ensure it respects the civil liberties of the people.
The American Founders could not have been more clear about their intentions about protecting the liberty of the people against government.
In sweeping language they commanded: “Congress is Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The U.S. constitution is the glue that holds American society. Take it away, and America will be no different than the dysfunctional “banana and coconut” republics that litter the planet today.
William Gladstone, the late 19th century British Prime Minster wrote, “ I have always regarded that [U.S.] Constitution as the most remarkable work known to men in modern times to have been produced by the human intellect, at a single stroke (so to speak), in its application to political affairs.”
I do not disagree with Gladstone’s assessment.
I feel privileged to be an unapologetic defender and dedicated practitioner of American constitutional law.
As the universe is governed by the law of gravity, the constitutional rule of law should also govern nations and societies.
I believe the rule of law is a “universal constant” in human affairs because it operates the same way in every society and at all times.
By that I mean, there is no such thing as an “African rule of law”, “American rule of law”, etc.
There is just a rule of law.
Thomas Jefferson said, “When government fears the people, there is liberty. When the people fear the government, there is tyranny.”
I would argue that when the government abides by the rule of the supreme law of the land, there is liberty. When there is liberty, there is little need for government.
I agree with Henry David Thoreau that the best government is one which governs least.
I should like to believe the Universal Declaration of Human Rights will one day be the planetary rule of law.
Where the rule of law is strong, societies remain stable, ordered, just and cohesive. In its absence, there is only strife and conflict.
At the political level, rule of law means a government of laws, and not of men. By that I mean, political leaders and institutions must operate within their constitutional parameters.
When they do not, there will be mechanisms to ensure they will.
At the legal level, the rule of law means ALL public officials are accountable under the supreme and ordinary laws of the land for their acts and omissions, for their decisions and policies.
The courts play a decisive role in the prevalence of the rule of law.
They serve as referees ensuring that public officials and institutions operate within the scope of their proper authorities and respect the civil liberties of citizens.
Courts should be the “bulwark of liberty” as American Founder James Madison envisioned. Judges are obliged to prevent the government from exercising powers not authorized by the Constitution, in violation of the constitutional rule of the law of the land.
At the social level, the rule of law requires a collective commitment to openness and truthfulness, which are central to political accountability.
When the rule of law is instituted in a society, those in government become afraid of the people who have the ultimate power of sovereignty.
But the people are never afraid of their government in a society where the rule of law reigns. Important institutions such as the press function without censorship of restraint and serve as watchdogs in a society governed by the rule of law.
At the individual level, the rule of law means the due process of law, fair treatment through the normal judicial system as a birthright of citizens.
Decades of one-man, one-party rule
For the past four decades, there has been no rule of law in Ethiopia.
There has been martial law, rule by the barrel of the gun.
There has been thug rule by an ethnically-organized group.
There has been one-man, one party rule.
There has been rule by unjust laws.
But there has never been the rule of law.
For the past four decades, innocent citizens have been arbitrarily arrested, jailed, tortured and killed by those wielding power. Volumes of reports by the international human rights groups attest to that.
For the past four decades, the constitution of the country has not been worth the paper it is written on.
For the past, four decades, the independence of the judiciary has been eroded by a massive assault on its institutional vitality and integrity.
Party bosses and hacks in robes have been designated as judges. Independent and professional judges are fired and even jailed as it happened to Birtukan Midekssa.
For the past 27 years, judges have been the legal lynching arm of the TPLF regime railroading innocent citizens to prison and turning a blind eye to those engaged in massive corruption and abuse of power.
Be hig amlak (In the name of the God of law): The rule of law as the historical backbone of Ethiopian society
I believe the rule of law is the backbone of Ethiopian society and has been for millennia.
Getachew Bekele in his 1993 book “The Emperor’s Clothes” explains how the rule of law has been an anchor and the backbone of Ethiopian political and social life of Ethiopians with an anecdote during the reign of Emperor Yohannes IV:
… Our forefathers earnestly believed in and followed the faith of God who is the creator or of everything on earth and in the universe, the giver of the law that governs his creatures, the appointer of leaders to emerge from the nation to administer his law and dispense justice so as to maintain peace and harmony among individuals and communities. This was the reason for the title of the supreme leader of the nation “Syume Egziabher Niguse Negest (appointee of God King of Kings). The belief in the supremacy of the law was so great, it was said its power could stop the flow of the river: Be hig amlak sibal enkwan sew weraj wonz yiqomal.
During the reign of Emperor Johannes IV, an incident which took place demonstrated the administration of justice reached everyone, including domestic animals.
The Emperor, was concerned about the proper dispensation of justice under his rule and had the welfare of the subjects at heart, wanted to establish a means by which each one of the subjects could reach them easily to appeal to him against maladministration of justice.
He ordered a big bell to be hung close to his palace so he could hear whenever it was rung by those who wanted to draw his attention. It happened one day that a donkey was rubbing his back against the pole on which the bell was hanging and caused it to ring.
The Emperor ordered one of his attendants to go and fetch the person who rang the bell. But the messenger returned alone to inform the Emperor he found only a donkey standing by the pole. “Well,” said Emperor, “go back and bring the donkey. It might have some complaints to make.”
Sure enough, when the poor animal was presented to the Emperor he noticed it was suffering from a sore back. The Emperor gave orders that necessary care should be taken for the sore back of the animal to heal completely before it should be handed over to its owner. When it was handed over, the owner was admonished about his responsibility of taking good care of domestic animals. Such [was] the concern for justice and humanity…
Calling for an Ethiopian Magna Carta? PM Abiy Ahmed and Ethiopia’s transition to democracy based on the rule of law
In May 2018, H.E. Prime Minister Dr. Abiy Ahmed made some penetrating statements on the rule of law in the context of the TPLF’s declared “state of emergency” (my translation).
… When some people wear a uniform and carry a Kalashnikov, they feel powerful and improperly exercise their power over the weak [in society]… No one can use his power to abuse others. It is best to show that the law is both for the weak and the strong. The kilil governments must demonstrate [in action] the supremacy of the rule of law.
The law is not something those of us with power and guns use to force our will on others. The law is something to be used to judge those who administer as well as those who are administered. It applies equally to the weak and powerful and both the powerful and the weak should equally believe in the [fairness] of the law. That is the way it should be. All are to be treated equally before the law.
If the powerful are using the law to buy their way, it will not work. Citizens should have confidence in the fairness of the law to the point that when they do wrong and commit an offense, they can say, ‘I have done an offense and must be held accountable’. The law must be something that will hold us all equally accountable…
On December 12, 2018, Pm Abiy issued a stunningly refreshing statement on human rights and the rule of law in light of recent arrests of gross human rights violators and others involved in large-scale corruption.
PM Abiy said (my translation):
The country is undergoing change. One of the critical areas of change is and how to handle the issue of human rights [observance and violations]. Human rights and democracy cannot thrive when they are left to the whims of individuals who are concerned only about themselves and in situations where the political space is narrowed and corruption rampant, but when institutions are established that reflect the collective will of the people.
There are leaders in the police, security, the courts and corrections department who have abandoned their duties and sold their consciences to become the minions of those in power.
They have been the investigators, the witnesses, the jailers, and judges in the sordid drama of human rights abuses in Ethiopia.
What must then be done?
There are three answers.
First, we must ensure those who have abused their power are held accountable and pay for their [criminal] wrongdoing.
Second, we must make sure that we must never leave a legacy of abuse for our children. We must establish institutions and procedures to prevent the [recurrence of such gross human rights abuses.]
Third, we must prove to them [power abusers] we are better than them by not repeating what they have done.
We should be careful not to confuse individual responsibility with collective responsibility (guilt by association).
We must seek justice, not revenge. We must not be motivated by hate but must act in accordance with the rule of law.
We shall pursue all suspects involved in gross human rights violations where ever they may hide. There is no way for them to escape after committing their crimes and they will not live luxuriously after [robbing the country blind].
The challenge for the people of Ethiopia today is how to address PM Abiy’s three questions.
Roller coaster rule of law: A practical understanding of the rule of law in the U.S. under the reign of “Emperor” Donald Trump
As the scholars and lawyers debate the finer points of the rule of law, I would like to offer a practical understanding of the principle of the rule of law which could be useful in the dialogue and debate over Ethiopia’s transition from dictatorship to democracy.
Who can forget the stirring speech at the Democratic National Convention of Khizr Khan, father of U.S. Army Captain Humayun Khan who died in Iraq in 2004 after directing his troops to take cover while he confronted a terrorist in a bomb laden car.
Khan pulled out his copy of the U.S. Constitution and matter-of-factly declared:
Donald Trump, you’re asking Americans to trust you with their future.
Let me ask you: have you even read the United States Constitution? I will gladly lend you my copy. In this document, look for the words ‘liberty’ and ‘equal protection of law’.
It is now well-established President Donald Trump is an insufferable constitutional ignoramus who routinely issues constitutionally dubious “executive orders”.
Trump believes his executive orders are the supreme law of the land.
But the federal courts keep correcting him time and again.
In August 2018, the court struck down Trump’s executive orders which sought to make it easier to fire federal workers and significantly reduce how unions can collectively bargain and represent employees.
The court ruled the executive orders conflicted with the 1978 Civil Service Reform Act and disregarded Congress’ finding that good-faith labor-management negotiations are “in the public interest.”
In August 2018, in another case, the U.S. Circuit Court of Appeals for the Ninth Circuit struck down Trump’s executive order to end federal grant funding to sanctuary cities.
Trump sought to implement his plan of mass deportation of “illegal immigrants” by forcing state law enforcement officials to assist, or risk losing certain federal funds.
The court held the U.S. government cannot engage in “federal commandeering of state governments” and that the executive order violates separation of powers doctrine and federalism principles.
In December 2018, the Court struck down Trump’s Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States.
The court held federal statute requires asylum applications must be accepted from any alien “physically present in the United States or who arrives in the United States whether or not at a designated port of arrival . . . irrespective of such alien’s status.”
Perhaps the challenge to Trump’s travel ban shows how the rule of law really works in the United States.
In late January 2017, Trump issued an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” suspending travel from Iran, Iraq, Libya, Somalia, Sudan and Yemen for 90 days, blocks refugees for 120 days, and travel from Syria indefinitely.
Within a week, a federal judge in Seattle had issued a nationwide restraining order blocking implementation of the ban. TheU.S. Court of Appeals for the 9th Circuit refused to reinstate the ban, ruling that it violates due process rights without a sufficient national security justification.
In early March, Trump issued a revised travel ban targeting only six countries and exempting visa- and green card-holders in an effort to reverse his fortunes in the courts.
In mid-March, a Federal District judge in Hawaii issued a nationwide halt to the revised travel ban on immigrants and refugees. That was followed by another Federal District Judge in Maryland who blocked part of the travel ban that applies to travelers from six predominantly Muslim nations.
In May, the U.S. Court of Appeals for the 4th Circuit, based in Richmond, upheld the ruling from Maryland on the basis of religious discrimination against Muslims.
In June, the 9th Circuit Court of Appeals upheld the ruling from Hawaii concluding the ban discriminates based on nationality.
In late June 2017, theU.S. Supreme Court upheld parts of the ban and scheduled oral arguments for October.
In late September, Trump issued his third version of the ban.
In mid-October, a Federal Judge in Hawaii blocked the third version nationwide, determining that it “suffers from precisely the same maladies as its predecessor” and “plainly discriminates based on nationality”.
In the same vein, a Federal Judge in Maryland ruled the order still constitutes a “Muslim ban” that violates the Constitution’s protections against religious discrimination.
In December 2017, the U.S. Supreme Court ruled the ban can take full effect while legal challenges continue in federal appeals courts.
Later that month, the 9th Circuit Court of Appeals ruled against the ban partly concluding Trump had exceeded his authority under federal law.
In January 2018, the U.S. Supreme Court agreed to hear the Justice Department’s appeal of the 9th Circuit ruling.
In February 2018, the full 4th Circuit appeals court again declares the ban unconstitutional based on its discrimination against Muslims.
In late June 2018, the U.S. Supreme Court reversed the Ninth Circuit ruling agreeing with Trump.
In an opinion authored by Chief Justice Roberts, a divided Supreme Court ruled Trump’s ban “is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.”
In short, under the Immigration and Nationality Act, presidents have “ample power” to impose such restrictions.
In November 2018, Trump tweeted a broadside: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country. It would be great if the 9th Circuit was indeed an ‘independent judiciary’ . . .”
Chief Justice Roberts responded, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
Judicial Review: The single most important lesson on the rule of law for Ethiopia from the American experience in the Trump era
If there is one important lesson to be learned from the American experience with the rule of law under the reign of “Emperor” Donald (Duck) Trump is the absolute necessity for judicial review.
The federal courts have proven to be the bulwarks of constitutional government against the onslaught of a dissembling, benighted and mindless president.
The doctrine of judicial review review was established in the U.S. in 1803 in a U.S. Supreme court case in which the court declared it had the sole power to review and strike down a law or an act of government that conflicts with the U.S. Constitution.
If the rule of law is going to be institutionalized, the first step will have to be the establishment of an independent, courageous and impartial and competent judiciary under the constitution.
American Founding Father Alexander Hamilton noted in The Federalist # 78 that the federal courts “were designed to be an intermediate body between the people and their legislature” in order to ensure that the people’s representatives acted only within the authority given to Congress under the Constitution.
When the people’s representatives act beyond the scope of their constitutional powers, it is the duty of the courts to hold them accountable.
That has been precisely the role the federal judiciary under the reign of Trump. They serve as an effective check to his ignorant flouting of the Constitution.
The best crafted laws and most elaborate procedures are useless without an independent and vigorous judiciary which makes decisions without political interference, boldly counter checks the legislature and executive branches and is unafraid of retaliation or external pressure, including public opinion.
So, what Ethiopia needs today to institutionalize the rule of law is a professional judiciary with the constitutional power of judicial review that is ready, willing and able to take on the executive and legislative branches when they exceed their constitutional powers.
But I get ahead of myself.
Ethiopia needs a brand-new constitution!
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[1] The Symposium on “Nation Building in Ethiopia: The Quest for an Enduring Direction” is organized by the International Institute for Democracy and Electoral Assistance (IDEA), Aadland Consult and the Ethiopian Foreign Relations Strategic Studies Institute. The symposium aims to “constructively engage Ethiopians in the diaspora and solicit ideas and thoughts that will enrich the Ethiopian nation building project.” The meeting is scheduled to take occur on December 15-16 at Hilton Garden Inn El Segundo,Los Angeles.
[2] Ironically, in calling for “A Magna Carta for Ethiopia”, I noted the painful fact that I could freely celebrate and cherish an English charter of liberties written 800 years ago which is not even law today, yet I could not do the same for the Ethiopian Constitution written only twenty years ago at the time to usher a new era of freedom, justice and equality because it is not worth the paper it is written on!
Reflections on the Rule of Law and Ethiopia’s Transition to Democratic Rule
Posted in Al Mariam's Commentaries By almariam On December 14, 2018Introductory Note: I have prepared this commentary specifically for presentation at a symposium sponsored by the International Institute for Democracy and Electoral Assistance (IDEA), Aadland Consult and the Ethiopian Foreign Relations Strategic Studies Institute scheduled for December 16, 2018 at the Hilton Garden Inn in Los Angeles, CA.[1]
In this commentary, I reflect on the “rule of law”, a much overused, maligned and misunderstood phrase, broadly from my legal background in the American legal system and assess its importance to Ethiopia’s transition to democratic rule.
It is fashionable to talk about the rule of law. It is often worn as a badge of political progressivism and conviction for those who champion it.
Numerous attempts have been made to define and fix the meaning of the “rule of law” over the millennia.
Over 2,400 years ago, Aristotle wrote, “It is more proper that law should govern than any one of the citizens. There is a rule of another kind, which is exercised over freemen and equals by birth — a constitutional rule, which the ruler must learn by obeying.” (Politics Book III.)
Perhaps the American Founder John Adams had Aristotle in mind when coined the phrase “a government of laws, not men.”
In 1215, the Magna Carta put the brakes on the unlimited powers of King John by forcing him to agree to deprive “freemen” of the realm of life, liberty or property only according to the “law of the land”.
The Catholic theologian and contemporary of King John, Thomas Aquinas, was talking about the rule of law when he defined “just law” as “an ordinance of reason promulgated by competent authority for the sake of common good.” Aquinas argued, “An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.”
The 17th century English philosopher Thomas Hobbes argued the rule of law is inherent in the “Law of Nature” which is “ discovered through reason. Such a law affirms human self-preservation and condemns acts destructive to human life.” But to enjoy the benefits of the rule of law, we must “mutually divest ourselves of certain rights in order to escape the state of natural war.”
The influential French enlightenment political philosopher Montesquieu argued the most effective application of the rule of law occurs if there is separation of powers between the three branches of government to prevent abuse of political power. He made a distinction between a “monarchy of a single person governed by fixed and established laws and a despotic government of a single person directing everything by his own will and caprice.”
The rule of law proved to be the nemesis of the doctrine of the divine right of kings, which made monarchs ultimately accountable to God, and not the law of the land or the sovereign will of the people.
American revolutionary Thomas Paine in Common Sense debunked the divine righters who argued rex lex (“the king is law”) by declaring, “in America, the law is king.”
Article (4) 62 of the 1955 Revised Constitution of Ethiopia provided, “no one shall have the right to bring suit against the Emperor.” A popular saying of the time advised, “One cannot accuse a king nor plough the sky.” The Emperor is no more.
The United Nations has made multiple efforts to define the rule of law.
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, through its World Governance Indicators, has also tried to come up with a sophisticated system of benchmarks to measure the rule of rule. 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.
Indeed, for the past two decades, 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).
The World Justice Project (WJP) Rule of Law Index, which claims to be “the world’s leading source for original, independent data on the rule of law” uses comprehensive criteria including civil rights, order and security, constraints on government power and absence of corruption to measure the prevalence of the rule of law.
The American Bar Association has hearkened back to the American Founders and the Magna Carta to shed light on the rule of law. The hallmark of the rule of law, according to the ABA, is the requirement for citizens, leaders and political institutions to conform their conduct to the supreme rule of the law of the land, the Constitution.
Lawyers generally use the “rule of law” as a term of art to refer to 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.
These days, the principle of the rule of law is gaining popularity even 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.
They believe where the rule of law prevails, good governance (accountability, transparency, free and fair elections, etc.) follow and economies grow.
Even tin pot dictators the world over often jabber about the “rule of law” to shroud their “rule by law of one-man, one-party”.
They confuse or try to blur the lines between the rule of law and rule by diktat or rule by unjust laws.
African dictators today 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 rubber stamp parliaments and pronounce it “law” or “proclamation”. They use their diktats to play policeman, prosecutor, judge, jury and executioner.
The so-called anti-terrorism law of the regime of the Tigrean People’s Liberation Front that misruled Ethiopia for the past 27 years is a classic example of rule by diktat.
Under rule by diktat, dictators use their make-believe rule of law as a sledgehammer to vanquish their opposition.
I am persuaded by the works of the great philosophers, thinkers, theologians, theorists, revolutionaries and human and civil rights advocates who argued that an unjust law (diktat) is not really a law at all.
Like Dr. Martin Luther King, Jr., I believe one has a “moral responsibility to disobey unjust laws, for an unjust law is no law at all.”
The so-called Jim Crow laws that legally enforced racial segregation in the Southern United States were regarded to be the “rule of law”.
So were the “Nuremberg Laws” of Nazi Germany which ushered the “Final Solution” decreed, “A Jew cannot be a citizen of the Reich. He cannot exercise the right to vote; he cannot occupy public office.”
The South African apartheid regime’s Group Areas and Bantu Authorities Act which sought to institutionalize segregation and permanently ban Black Africans from the urban areas were also considered to be the “rule of law”.
For me, the rule of law is not a monolithic concept or principle that can be defined in simple terms.
It is a complex multidimensional concept and principle.
The rule of law to me is at once a principle, an institution, manifestation of individual behavior and attitude and a necessary element of the political culture.
The 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.
I do not believe the rule of law by itself will guarantee equality, human rights and good governance, but without the rule of law there can be no equality or human dignity.
As an accidental human rights advocate after the Meles Massacres, I believe respect for human rights is the single most important manifestation of the prevalence of the rule of law in any society and the most persuasive evidence of good governance.
My personal journey on the winding road to the rule of law
I decided to become a lawyer because of my passion for the rule of law.
All of the weekly commentaries I have written over the past 13 years, now exceeding perhaps one thousand weekly commentaries, 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?
When I signed up for law school over three decades ago immediately after receiving my Ph.D., many in my circle of family and friends thought I was “crazy”.
The oft-made comment was, “Isn’t a Ph.D. in political science enough? Why suffer through 3 or more years of grueling law school?”
Suffice it to say, I have heard the wisecrack, “No rest for the wicked.” on more than one occasion.
As I reported in my commentary (“A Magna Carta for Ethiopia”) on the 800th Anniversary of the English Magna Carta (Great Charter), (a commentary that was included in the official archives of the British Magna Carta Trust in March 2015), my interest in the rule of law goes back to my early childhood.[2]
I was fortunate enough to see the rule of law in action when I was a child.
I saw some of the great lawyers and jurists of the imperial era in Ethiopia as my father took me along to different courts whenever possible for me to see and learn how the law worked.
I am sure there are some today who will say, “But those were feudal courts… blah, blah…”
Be that as it may, of all areas of the law that fascinated me the most in my childhood was procedure, criminal and civil procedure (sine sirat).
The civil procedure code (Fitha Beher) of the day was less than 245 pages bound in a small volume.
The criminal procedure code was a mere 69 pages appended to the penal code.
Neither was hard reading at all.
I believe my father had mastered the procedural law of the day and often won cases on points of procedure if not on questions of substantive law.
The life long lesson I learned from my days following my father in different court houses and listening to the lawyers arguing and examining witnesses was that it is necessary to have established and regularized legal processes in dealing with the rights of citizens.
Of course, at the time I was not tutored in the writings of John Locke and Thomas Jefferson on “unalienable rights” and the necessity of due process before a person is deprived of life, liberty and property.
But I had an innate and rudimentary sense of the need for a fair process in dealing with the rights of people.
In my early teens, I came to be quite familiar with the 1955 Revised Constitution of Ethiopia because I heard my father often talking about it with other lawyers and judges.
All sorts of criminal procedural rights were guaranteed in the Revised Constitution (Arts. 37-61). Interestingly, they seem to have been carbon copied from the U.S. Bill of Rights.
The Revised Constitution guaranteed the “equal protection of the laws” and forbade “deprivation of life, liberty or property without due process of law”.
It prohibited “arrest without a warrant issued by a court” and mandated suspects must be brought “before a judicial authority within forty-eight hours of arrest”.
In all criminal prosecutions the accused was guaranteed, the “right to a speedy trial and to be confronted with the witnesses against him, to have compulsory process” and the assistance of a counsel for his defense at government expense.
Ironically, the U.S. did not institute a national rule to provide an attorney to defendants in criminal cases who are unable to afford their own attorneys until 1963 in Gideon v. Wainright.
Little did I know that three decades later, I would be standing up to defend one of the greatest procedural protections of the American people in the California Supreme Court, the right against self-incrimination guaranteed in the Fifth Amendment to the U.S. Constitution.
As I walked the steps of the Supreme Court in Sacramento, CA on March 3, 1998 for oral argument in People v. Peevy, I took a moment and looked up at the imposing Ionic columns and remembered the great lawyers and judges I had seen and heard in my childhood.
I smiled. I felt proud that I was carrying a great Ethiopian tradition into an American courtroom.
If only my father could have seen me walking those court house steps following his footsteps to do legal battle in defense of the U.S. Constitution and stand up for the rule of American constitutional law.
The rule of law enshrined in the Fifth Amendment to the U.S. Constitution: “No person shall be compelled in any criminal case to be a witness against himself.”
That is, no person may be questioned by government authorities involuntarily and be forced to confess to a crime.
But I also felt the pangs of sadness and anguish.
I told myself I should be fighting for the rule of law in Ethiopia, not in America.
Before entering the court house, I glanced at the inscription etched on the façade, “Into the highlands of the mind let me go.”
I comforted myself in the fact that I stood there to defend the principle of the rule of law, which has no citizenship, nationality or religion.
If anything, it is the rule of law that is the golden thread that stitches all of humanity.
The Peevy case raised issues that were at the very core of the rule of law protecting American citizens against self-incrimination guaranteed under the Fifth Amendment to the U.S. Constitution applying to the states through the due process clause of the fourteenth Amendment.
What should be done when the police deliberately and intentionally violate the U.S. Constitution to obtain evidence to later challenge (impeach) the defendant who may choose to testify at his trial?
In raising this question, the Peevy case stood alongside the great legal landmarks in American criminal procedure, including Miranda v. Arizona (1966) (Miranda rights); Edwards v. Arizona (1981) (no police interrogation after a suspects asks to have counsel); Rhode Island v. Innis (1980) (police “interrogation” includes any words or actions on the police should know are reasonably likely to elicit an incriminating response); and Harris v. New York (1971) (a statement taken from a suspect without proper Miranda advisements may be admitted for impeachment purposes).
The central problem in the Peevy case was the U.S. Supreme Court rule in Harris.
As the Peevy court framed it, “The issue presented in this case is whether the Harris rule applies when a police officer conducting a custodial interrogation deliberately fails to honor a suspect’s request for counsel, with the objective of securing evidence for impeachment purposes.”
In lay terms, the question was whether police officers sworn to uphold the law should be allowed to introduce evidence in court for any purpose particularly when they have obtained the incriminatory admission from the suspect through intentional, deliberate and calculated disregard of the suspects rights against self-incrimination.
Driving the constitutional issue was a practice endorsed by the Commission on Peace Officer Standards and Training (POST), an agency within the California Department of Justice, which was instructing the state’s police officers to continue to question a suspect after they have invoked their Miranda rights and refused to speak. The reason was to lock a suspect into a story and preventing them from changing it in the future.
In practical terms, the Commission was promoting lawlessness among sworn police officers by instructing them to systematically violate the rights of criminal suspects.
I have no issues with police officers. I believe the vast majority of them are professionals who perform their duties properly.
But I have serious issues with police officers and organizations who flout and disregard the supreme law of the land, the U.S. Constitution, because they wear a badge and a gun.
I have often asked, “Who polices the police?”.
My problems with police authorities who abuse their power and flout the U.S. Constitution is best expressed by. U.S. Supreme Court Justice Louis D. Brandeis who warned, “Our government… teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
So, the larger question for me was every policeman becoming a law unto himself, disregarding the Constitution and showing contempt for the rights guaranteed to American citizens.
From the beginning days of my Ethiopian human rights advocacy in 2006, I have been writing on the need to observe and institutionalize the rule of law in Ethiopia and protect citizens from arbitrary government action.
In July 2007, I protested the denial of due process to Seeye Abraha, the former co-founder and defense minister of the regime of the TPLF.
This fact may come as a surprise to many as I have been an implacable and relentless foe of the Thugtatorship of the TPLF, as I liked to refer to them.
My view on the rule of law is simple: If we do not believe the rule of law applies to those we despise, then we really do not believe in the rule of law at all.
It would have been easy to line up against the wall and shoot down prominent members of the political, military, judicial and economic leadership of Nazi Germany who participated in the Holocaust and other war crimes.
But that would have been an injustice to the cause of justice and the rule of law.
In 2001, I visited the actual courtroom used for the trials in Nuremberg and the Deutsches Stadion (stadium) designed by Albert Speer for Nazi rallies.
I was at once overcome by an overwhelming feeling of sadness and elation standing there as a latter-day witness to the triumph of the rule of law over the rule of the most heinous tyranny the world has ever seen.
Over the years, I have written numerous commentaries on the rule of not only in Ethiopia but also in the United States.
In July 2012, I wrote commentary trying to fashion a practical understanding of the principle of the rule of law which could be useful in the dialogue and debate over Ethiopia’s transition from dictatorship to democracy.
Beginning in 2013, I sought to ensure accountability under the international rule of law (The Rome Statute of the International Criminal Court) for African dictators who have committed crimes against humanity before the bar of the International Criminal Court (ICC).
I even proposed a special witness protection program for individuals who agree to testify in ICC prosecutions involving crimes against humanity, war crimes and genocide.
In July 2016, I made a special trip to the ICC in The Hague to observe the rule of law in action.
I came face to face with former Congolese “general” Bosco Ntganda and former Cote d’Ivoire president Laurent Gbagbo.
I had been following the Gbagbo case for some time.
Gbagbo and Ntganda were the two smallest big men I had seen in my life.
At one time, in their countries, their wish was the law. They were above the law.
When they were in power, they were givers and takers of life. They were feared for their brutality, cruelty, atrocity and inhumanity.
But sitting just a few feet away from them separated by a plate glass at the ICC, I stared into their eyes as my heart ached and rage roiled in my mind.
I suspect they stared into my eyes too.
All I could see through their eyes were the dead souls of the thousands of people they murdered, jailed, tortured, displaced and mistreated.
How I deeply envied the ICC prosecutor laying out the evidence against Ntganda and Gbagbo.
But I am glad I was not the prosecutor because I would not have been able to balance the demands of the rule of law against my irrepressible desire to use the rule of law for vengeance and revenge.
In May 2018, I wrote a piece on institutionalizing the rule of law and deinstitutionalizing the rule of men by lifting the state of emergency in Ethiopia.
Last month, I wrote a piece on the end of thugtatorship and rise of the rule of law in Ethiopia on the arrest of Kinfe Dagnew and other suspects in large scale corruption and gross human rights violations.
Rule of law as the foundation for nation-building
For me, the rule of law is foundation of any society.
A nation that is not built on the rule of law always teeters on the edge of collapse.
I look to America as an example.
America is a strong nation because it is founded on the rule of law.
We call the “United States Constitution”, including the Bill of Rights.
The U.S. Constitution is social contract for a limited government.
That is a government limited only to those powers delegated to it by the People. The Congress, the President and the Judiciary have only those powers expressly granted in the Constitution. Nothing more. What is not expressly delegated to the national government is reserved for the states.
In the Bill of Rights, rules of law are set forth for the government to ensure it respects the civil liberties of the people.
The American Founders could not have been more clear about their intentions about protecting the liberty of the people against government.
In sweeping language they commanded: “Congress is Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The U.S. constitution is the glue that holds American society. Take it away, and America will be no different than the dysfunctional “banana and coconut” republics that litter the planet today.
William Gladstone, the late 19th century British Prime Minster wrote, “ I have always regarded that [U.S.] Constitution as the most remarkable work known to men in modern times to have been produced by the human intellect, at a single stroke (so to speak), in its application to political affairs.”
I do not disagree with Gladstone’s assessment.
I feel privileged to be an unapologetic defender and dedicated practitioner of American constitutional law.
As the universe is governed by the law of gravity, the constitutional rule of law should also govern nations and societies.
I believe the rule of law is a “universal constant” in human affairs because it operates the same way in every society and at all times.
By that I mean, there is no such thing as an “African rule of law”, “American rule of law”, etc.
There is just a rule of law.
Thomas Jefferson said, “When government fears the people, there is liberty. When the people fear the government, there is tyranny.”
I would argue that when the government abides by the rule of the supreme law of the land, there is liberty. When there is liberty, there is little need for government.
I agree with Henry David Thoreau that the best government is one which governs least.
I should like to believe the Universal Declaration of Human Rights will one day be the planetary rule of law.
Where the rule of law is strong, societies remain stable, ordered, just and cohesive. In its absence, there is only strife and conflict.
At the political level, rule of law means a government of laws, and not of men. By that I mean, political leaders and institutions must operate within their constitutional parameters.
When they do not, there will be mechanisms to ensure they will.
At the legal level, the rule of law means ALL public officials are accountable under the supreme and ordinary laws of the land for their acts and omissions, for their decisions and policies.
The courts play a decisive role in the prevalence of the rule of law.
They serve as referees ensuring that public officials and institutions operate within the scope of their proper authorities and respect the civil liberties of citizens.
Courts should be the “bulwark of liberty” as American Founder James Madison envisioned. Judges are obliged to prevent the government from exercising powers not authorized by the Constitution, in violation of the constitutional rule of the law of the land.
At the social level, the rule of law requires a collective commitment to openness and truthfulness, which are central to political accountability.
When the rule of law is instituted in a society, those in government become afraid of the people who have the ultimate power of sovereignty.
But the people are never afraid of their government in a society where the rule of law reigns. Important institutions such as the press function without censorship of restraint and serve as watchdogs in a society governed by the rule of law.
At the individual level, the rule of law means the due process of law, fair treatment through the normal judicial system as a birthright of citizens.
Decades of one-man, one-party rule
For the past four decades, there has been no rule of law in Ethiopia.
There has been martial law, rule by the barrel of the gun.
There has been thug rule by an ethnically-organized group.
There has been one-man, one party rule.
There has been rule by unjust laws.
But there has never been the rule of law.
For the past four decades, innocent citizens have been arbitrarily arrested, jailed, tortured and killed by those wielding power. Volumes of reports by the international human rights groups attest to that.
For the past four decades, the constitution of the country has not been worth the paper it is written on.
For the past, four decades, the independence of the judiciary has been eroded by a massive assault on its institutional vitality and integrity.
Party bosses and hacks in robes have been designated as judges. Independent and professional judges are fired and even jailed as it happened to Birtukan Midekssa.
For the past 27 years, judges have been the legal lynching arm of the TPLF regime railroading innocent citizens to prison and turning a blind eye to those engaged in massive corruption and abuse of power.
Be hig amlak (In the name of the God of law): The rule of law as the historical backbone of Ethiopian society
I believe the rule of law is the backbone of Ethiopian society and has been for millennia.
Getachew Bekele in his 1993 book “The Emperor’s Clothes” explains how the rule of law has been an anchor and the backbone of Ethiopian political and social life of Ethiopians with an anecdote during the reign of Emperor Yohannes IV:
Calling for an Ethiopian Magna Carta? PM Abiy Ahmed and Ethiopia’s transition to democracy based on the rule of law
In May 2018, H.E. Prime Minister Dr. Abiy Ahmed made some penetrating statements on the rule of law in the context of the TPLF’s declared “state of emergency” (my translation).
On December 12, 2018, Pm Abiy issued a stunningly refreshing statement on human rights and the rule of law in light of recent arrests of gross human rights violators and others involved in large-scale corruption.
PM Abiy said (my translation):
The challenge for the people of Ethiopia today is how to address PM Abiy’s three questions.
Roller coaster rule of law: A practical understanding of the rule of law in the U.S. under the reign of “Emperor” Donald Trump
As the scholars and lawyers debate the finer points of the rule of law, I would like to offer a practical understanding of the principle of the rule of law which could be useful in the dialogue and debate over Ethiopia’s transition from dictatorship to democracy.
Who can forget the stirring speech at the Democratic National Convention of Khizr Khan, father of U.S. Army Captain Humayun Khan who died in Iraq in 2004 after directing his troops to take cover while he confronted a terrorist in a bomb laden car.
Khan pulled out his copy of the U.S. Constitution and matter-of-factly declared:
It is now well-established President Donald Trump is an insufferable constitutional ignoramus who routinely issues constitutionally dubious “executive orders”.
Trump believes his executive orders are the supreme law of the land.
But the federal courts keep correcting him time and again.
In August 2018, the court struck down Trump’s executive orders which sought to make it easier to fire federal workers and significantly reduce how unions can collectively bargain and represent employees.
The court ruled the executive orders conflicted with the 1978 Civil Service Reform Act and disregarded Congress’ finding that good-faith labor-management negotiations are “in the public interest.”
In August 2018, in another case, the U.S. Circuit Court of Appeals for the Ninth Circuit struck down Trump’s executive order to end federal grant funding to sanctuary cities.
Trump sought to implement his plan of mass deportation of “illegal immigrants” by forcing state law enforcement officials to assist, or risk losing certain federal funds.
The court held the U.S. government cannot engage in “federal commandeering of state governments” and that the executive order violates separation of powers doctrine and federalism principles.
In December 2018, the Court struck down Trump’s Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States.
The court held federal statute requires asylum applications must be accepted from any alien “physically present in the United States or who arrives in the United States whether or not at a designated port of arrival . . . irrespective of such alien’s status.”
Perhaps the challenge to Trump’s travel ban shows how the rule of law really works in the United States.
In late January 2017, Trump issued an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” suspending travel from Iran, Iraq, Libya, Somalia, Sudan and Yemen for 90 days, blocks refugees for 120 days, and travel from Syria indefinitely.
Within a week, a federal judge in Seattle had issued a nationwide restraining order blocking implementation of the ban. TheU.S. Court of Appeals for the 9th Circuit refused to reinstate the ban, ruling that it violates due process rights without a sufficient national security justification.
In early March, Trump issued a revised travel ban targeting only six countries and exempting visa- and green card-holders in an effort to reverse his fortunes in the courts.
In mid-March, a Federal District judge in Hawaii issued a nationwide halt to the revised travel ban on immigrants and refugees. That was followed by another Federal District Judge in Maryland who blocked part of the travel ban that applies to travelers from six predominantly Muslim nations.
In May, the U.S. Court of Appeals for the 4th Circuit, based in Richmond, upheld the ruling from Maryland on the basis of religious discrimination against Muslims.
In June, the 9th Circuit Court of Appeals upheld the ruling from Hawaii concluding the ban discriminates based on nationality.
In late June 2017, theU.S. Supreme Court upheld parts of the ban and scheduled oral arguments for October.
In late September, Trump issued his third version of the ban.
In mid-October, a Federal Judge in Hawaii blocked the third version nationwide, determining that it “suffers from precisely the same maladies as its predecessor” and “plainly discriminates based on nationality”.
In the same vein, a Federal Judge in Maryland ruled the order still constitutes a “Muslim ban” that violates the Constitution’s protections against religious discrimination.
In December 2017, the U.S. Supreme Court ruled the ban can take full effect while legal challenges continue in federal appeals courts.
Later that month, the 9th Circuit Court of Appeals ruled against the ban partly concluding Trump had exceeded his authority under federal law.
In January 2018, the U.S. Supreme Court agreed to hear the Justice Department’s appeal of the 9th Circuit ruling.
In February 2018, the full 4th Circuit appeals court again declares the ban unconstitutional based on its discrimination against Muslims.
In late June 2018, the U.S. Supreme Court reversed the Ninth Circuit ruling agreeing with Trump.
In an opinion authored by Chief Justice Roberts, a divided Supreme Court ruled Trump’s ban “is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.”
In short, under the Immigration and Nationality Act, presidents have “ample power” to impose such restrictions.
In November 2018, Trump tweeted a broadside: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country. It would be great if the 9th Circuit was indeed an ‘independent judiciary’ . . .”
Chief Justice Roberts responded, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
Judicial Review: The single most important lesson on the rule of law for Ethiopia from the American experience in the Trump era
If there is one important lesson to be learned from the American experience with the rule of law under the reign of “Emperor” Donald (Duck) Trump is the absolute necessity for judicial review.
The federal courts have proven to be the bulwarks of constitutional government against the onslaught of a dissembling, benighted and mindless president.
The doctrine of judicial review review was established in the U.S. in 1803 in a U.S. Supreme court case in which the court declared it had the sole power to review and strike down a law or an act of government that conflicts with the U.S. Constitution.
If the rule of law is going to be institutionalized, the first step will have to be the establishment of an independent, courageous and impartial and competent judiciary under the constitution.
American Founding Father Alexander Hamilton noted in The Federalist # 78 that the federal courts “were designed to be an intermediate body between the people and their legislature” in order to ensure that the people’s representatives acted only within the authority given to Congress under the Constitution.
When the people’s representatives act beyond the scope of their constitutional powers, it is the duty of the courts to hold them accountable.
That has been precisely the role the federal judiciary under the reign of Trump. They serve as an effective check to his ignorant flouting of the Constitution.
The best crafted laws and most elaborate procedures are useless without an independent and vigorous judiciary which makes decisions without political interference, boldly counter checks the legislature and executive branches and is unafraid of retaliation or external pressure, including public opinion.
So, what Ethiopia needs today to institutionalize the rule of law is a professional judiciary with the constitutional power of judicial review that is ready, willing and able to take on the executive and legislative branches when they exceed their constitutional powers.
But I get ahead of myself.
Ethiopia needs a brand-new constitution!
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[1] The Symposium on “Nation Building in Ethiopia: The Quest for an Enduring Direction” is organized by the International Institute for Democracy and Electoral Assistance (IDEA), Aadland Consult and the Ethiopian Foreign Relations Strategic Studies Institute. The symposium aims to “constructively engage Ethiopians in the diaspora and solicit ideas and thoughts that will enrich the Ethiopian nation building project.” The meeting is scheduled to take occur on December 15-16 at Hilton Garden Inn El Segundo,Los Angeles.
[2] Ironically, in calling for “A Magna Carta for Ethiopia”, I noted the painful fact that I could freely celebrate and cherish an English charter of liberties written 800 years ago which is not even law today, yet I could not do the same for the Ethiopian Constitution written only twenty years ago at the time to usher a new era of freedom, justice and equality because it is not worth the paper it is written on!
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