25 October 2016

Ethiopia: Pitfalls of the New 'State of Emergency'

Photo: Addis Fortune
Factories and flower farms in Alem Gena town were torched during reported rioting in Ethiopia after more than 50 deaths during a religious festival.
opinion

I have been following very closely the recently declared "state of emergency," officially announced in the statement of the Prime Minister. For me, the announcement was reminiscent of a proclamation read by the representative of the Dergue, standing before the August Emperor, about his formal deposition and the establishment of the Provisional Military Government.

It has been confirmed that the House of Peoples Representatives welcomed the announcement and unanimously adopted the proclamation. It is unprecedented and the first of its kind since the EPRDF led regime toppled the previous military government and came to power 25 years ago. It is also unique from the stand point of modern legal history of our country.

Let me first compliment the incumbent regime effort to align is decision and action to the provisions of its own constitution, perhaps for the first time, when declaring a state of emergency. I say "effort" because the said "state of emergency," though has already started to be enforced, is not yet published in the official federal law reporter of the country, as required by law, to enable persons to take "judicial notice" which has left citizens virtually in the dark and enforcement authorities with no possibility to make legal presumption of knowledge of such law.

Over the last 20 years, there were at least three major events that had necessitated the issuance of a "state of emergency" that the EPRDF regime was either reluctant or simply ignored to make use of such legal instrument.

The first and most important phenomenon occurred following the unprovoked aggression of Eritrea on Ethiopia's northern territory of Badime and other places. It was a classic case of international state of war that should have warranted the declaration of "state of emergency" that would necessarily follow the declaration of war by the Ethiopian parliament. To my knowledge, no such proclamation was issued that could have provided detailed directives on the do's and do not's during the enforcement period of the state of emergency.

The absence of such law, I very well remember, posed tough challenges and exacerbated the ordeals of my fellow federal public prosecutors in Tigray regional state, in proving charges at a civil court, against violations committed by suspected Eritrean infiltrators that were able to penetrate war zone military posts and were involved in acts of grave espionage and similar other offences.

The second important incident occurred in 2001, shortly after the split among the TPLF big wigs was announced and while the Central and East Africa Football Tournament was in progress when angry football fans turned hooligans, initiated violence and subsequently joined by ranks of urban vagabonds which resulted in a huge havoc and insecurity among dwellers of the capital. It is recalled that this violence destroyed numerous public transport, private and public institutions.

The last grave incident that should have called for the adoption of a "state of emergency declaration" if at all such law should have been issued, was following the post 2005 federal and regional election.

While the EPRDF led government never issued a "state of emergency" at all that could have helped it among others, giving it legal backing to free it from possible civil liability for its action of deportation on those Eritrean that were security risks, in the second and third situations, it opted to extraordinary legal recourse of issuing measures curtailing certain fundamental rights in an announcement given on the public media.

Therefore, the mass arrest of suspects that were allegedly involved in disrupting the peace and stability in Addis Abeba and damaging properties, including their arrest was based on an "emergency decree" issued on the daily Addis Zemen newspaper.

In those days, security forces were empowered to search for and arrest suspects without a court warrant. Similarly, during the post-election period, a televised statement was given by the former PM banning the constitutional right to assemble and conduct demonstration for one month duration, which was followed several months later by a mass arrest and incarceration of members and non-members of the opposition that were later prosecuted on charges of "genocide" and many of the young detainees for violating the controversial vagrancy control proclamation.

By far, the decision to issue a "state of emergency" is a step forward in upholding the rule of law and complying with the provisions of the constitution when the government is unable to control and govern with established legal procedures compared to the previous practice despite the existence of numerous pitfalls.

Following the onset of the Oromo students protest last year against the so called "integrated master plan of Addis Abeba," despite the heavy handed measures by security forces and the threats against protesters during the initial period, government officials and the media subsequently welcomed and praised the protest to have been based on and in line with the FDRE constitution.

Last July, the issue of Wolkayit surfaced triggering initially peaceful and later violent protests in Amhara region. Again the PM and other government officials announced that it was a legitimate question that should have been addressed long ago, by the regional state administrations of Tigray and Amhara. While the protest and its aftermath was ongoing in Amhara region, the tragic deaths of participants of the annual Irretcha festival in Bisheftu was followed by violence and damages on public and private properties, investments and infrastructures that in the opinion of the Council of Ministers constituted a ground and required to declare and pass a "state of emergency proclamation."

This "proclamation" envisages drastic measures that have already started to be enforced and attracted the attention of local and international right groups, political, and media commentators and legal professionals.

The last proclamation on the "state of emergency" issued in accordance with the standard legal format of the country was in 1988 and its scope of application was limited to Eritrea and Tigray region.

The "state of emergency proclamation" and "the directive" issued by the council of Ministers and later adopted by the parliament presupposes retroactive extension and application of the state of emergency proclamation that begs numerous issues of legality. The directive has extended the scope of application of the proclamation way back to incidents that have occurred one year ago. As explained above, the incidents that have occurred in the last one year have been described in the directives as havocs or disturbances and whoever participated in such incidents and caused deaths or property damage and lootings are required to report within 10 days of the issuance of the directive.

Ironically, there had been mixed reactions by government authorities particularly in Oromia, on the protest and acts committed by protestors and the security forces in the past one year, ranging from threats to a populist declaration of political solidarity with protestors that has reached even to expression of formal apology by the PM in the session of the house of people's representative.

Both the proclamation and the directive do not provide the principle of proportionality which is central in all emergency laws in taking actions to enforce the laws. The laws also do not make a specific reference to and their relationship with the Criminal Code and the criminal procedure code of Ethiopia which provided by far in great and reasonable details, together with the consequences for violations even in times of state of emergency.

It is not clear why the proclamation and the directive found it necessary to repeat what has been provided under the criminal code and the criminal procedure code. It is also baffling to determine what the power and competence of the so called "command post" is.

Unlike similar other laws in the legal system, there is no martial court established nor has the proclamation indicated that the command post will act as a martial court during the emergency period. The relationship of the command post with the judiciary is not explained.

On the other hand it is clear that the command post is empowered to exercise administrative, police, military, prosecutorial, quasi-judicial and judicial powers which is more like the of the Dergue period. While the command post is empowered to refer cases to be accountable by "ordinary laws," the distinction between this and extraordinary laws are not clearly stipulated.

This proclamation also mentions that the command post can "screen and after teaching, release the detainee." Again which category of detainees can be beneficiaries of such measures is not clearly spelled out. Whether previously established constitutional and legal bodies will be delegated for and on behalf of the command post to carry out such activities is not clear.

As explained time and again, the current situation of Ethiopia require extraordinary measures to ensure order, maintain peace and stability. For a lawyer like me, a "state of emergency proclamation" is certainly the appropriate instrument to deal with such situations.

While such laws provide certain restrictions, prohibitions, exemptions, derogation of rights, they are not totally detached from accepted principles and bodies of laws in the legal system of the country.

It seems quite clear however that during the validity period of the state of emergency proclamation, the entire set of substantive and procedural principles and laws governing criminal investigation, prosecutorial decision and action as well as normal judicial process are entirely inapplicable in as much as they are inconsistent or contradictory as provided under Article 10 of the proclamation.

The new situation unfolding in the country does not give the luxury to comment on legal niceties and it is not my purpose in preparing this article. To me, the examination of the proclamation and the directive reveal the need to stay in the smokescreen repressive untidy and clumsy "legal" instrument.

Yohannes Woldegebriel Is a Lawyer. He Has Served As Prosecutor in Four Different Public Institutions At Different Times.

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