A Practicable Advocacy or Trading in Illusions?
A View Point
By Tesfaye Habisso
Dec. 24 2010
Since the last two months or so a continuous and unabated campaign by religious leaders, former victims and independent personalities advocating forgiveness and reconciliation to seal the future fate of the hitherto convicted Derg officials and their functionaries serving life sentence and long years of imprisonment behind bars has unexpectedly gained unprecedented currency and momentum, and this has undoubtedly created a sort of euphoric mood and excitement amongst the families, relatives and close friends of the convicts, on the one hand, and utter disillusionment and anger amidst the families, relatives and close friends of the martyrs, on the other. Anyone who has come across the two brief manuscripts of Aserate Kassa ("We must live for the future, and not for the past and in the past", and "Avengers neither forgive nor forget, and the naive forgive and forget, but victors forgive but not forget", AIGAFORUM) would really wonder that a former victim of the brutalities of the junta and a person who had spent nine solid years in jail and lost his own father to the summary execution along with 60 other former officials of the imperial regime in 1974 would take such a stance of magnanimity and 'compassion' toward the blood-thirsty Derg and their zombie cadres. I personally admire his bold and candid position and, in principle, would gravitate towards that stance if it were a practicable plan or idea, as justice has been done and the former torturers and tormentors of the Ethiopian people have already served more than two decades of their life-long sentence languishing in Qaliti jail. A similar admiration goes to the heretofore timid religious leaders who have seldom spoken up in defence of human rights or political, social justice and moral values over the last several years prior to or since the transition period but now boldly defending the former adversaries of the people, the church and the mosque ("Forgiveness and Reconciliation to the Derg Officials and Their Functionaries: A Call to the Ethiopian People", Tahsas 9, 2003 E.C., AIGAFORUM). Furthermore, one can also appreciate the position of a certain W. Yilma who has vocally and publicly made his opinion very loud and clear by advocating forgiveness for the remnants of the military regime still in jail ("Yes it is the right choice to forgive for the sake of the common good", AIGAFORUM, December 18, 2010). Kudos, to all these compatriots for speaking up their minds and taking unambiguous positions in defence of forgiveness and reconciliation for the sake of building a better and more peaceful future for generations to come. Who would indeed object to these farsighted visions and wishes of our own fellow citizens uttered in the interests of our common future and destiny together?.
Nevertheless, a simple and straightforward question that any learned person would not hesitate to pose to himself or herself when he/she listens to or reads via the public media a public advocacy of the above kind and seriousness is this: Can any plan or idea that contravenes or stands against the provisions of the Constitution and the laws of the land be practicable or enforceable? Obviously, the answer will be nothing but in the negative. If negative, then, the whole exercise of the public advocacy or, in this case, the endless efforts to broker forgiveness and reconciliation for the Derg officials and their poodles become nothing more than riding an emotional roller coaster, at best, or simply wishful thinking, at the worst. These would undoubtedly result in deep frustrations for all those involved in the advocacy campaigns as well as for those expecting forgiveness and reconciliation from these seemingly genuine but naive efforts. We would all be on the safe side, I believe and caution, if we make a minimum effort at this point in time to peruse the provisions of the FDRE Constitution and be sure of what we are standing for and what the supreme law of the country stipulates in order to avert a tsunami of public anger that would precipitate against those prophets of false ideas and hopes, in case of failure to deliver the much expected Christmas gift to the concerned individuals and their families: forgiveness, freedom and reconciliation. The following constitutional provisions are worth noting and due consideration should be taken, lest we make false assumptions that would produce nothing sweet to those on the receiving end:
*Article 28: CRIMES AGAINST HUMANITY
1)Criminal liability of persons who commit crimes against humanity, so defined by international agreements ratified by Ethiopia and by other laws of Ethiopia, such as genocide, summary executions, forcible disappearances or torture shall not be barred by statute limitations. Such offences may not be commuted by amnesty or pardon of the legislature or any other state organ;
2) In the case of persons convicted of any crime stated in sub-Article 1 of this Article and sentenced with the death penalty, the Head of State may, without prejudice to the provisions hereinabove, commute the punishment to life imprisonment.
*Article 9: SUPREMACY OF THE CONSTITUTION
1) The Constitution is the supreme law of the land. Any law, customary practice or a decision of an organ of state or a public official which contravenes this Constitution shall be of no effect;
2) All citizens, organs of state, political organizations, other associations as well as their officials have the duty to ensure observance of the Constitution and to obey it.
*Article 71: POWERS AND FUNCTIONS OF THE PRESIDENT
7) He shall, in accordance with conditions and procedures established by law, grant pardon.
From the above constitutional provisions, one can easily discern and clearly understand that there is no legal, political or any other justifiable defence to tender forgiveness or amnesty now to the former Derg officials and their functionaries beyond commuting death sentences to life imprisonment for those concerned. Besides, who will contravene the Constitution so as to heed the plea of the religious leaders and to please the other supporters of such an unconstitutional measure?
Finally, it is my considered view that advocating forgiveness and reconciliation for the Derg officials and their functionaries is a right idea whose time had long fleeted away during the painful days of the transition period (1991). It would have made sense during the early days of the transition period when the two thorny issues of justice versus amnesty confronted the new rulers of the country in the wake of the demise of the junta that had brutalized and destroyed the country and its peoples for 17 years (1974-1991). The ultimate choice consciously made by the new rulers then was to pursue the path of justice instead of amnesty and to put an end to the past decades of impunity and gross human rights violations once for all and chart a new era of democracy, rule of law, respect for individual and group human rights under a federal democratic republic worthy of the name. To advocate amnesty for the long incarcerated Derg officials and their functionaries now is, for me, a very naive idea that has no constitutional or legal cushion to make it practicable. If I am somehow proven wrong and those concerned are set free for Christmas because of some safe outlet already provided by the law, constitutional or customary, that I am not aware of, let the law take its course and I would be delighted to abide by that law without any discontent or grudge. But, if we break the Constitution for the sake of expediency or any other populist and popular reason that cannot be defended by the provisions of the Constitution, then we would be opening a Pandora box which would be nothing else but a recipe for the demise of a constitutional order and the beginning of a dictatorship and thus a national disaster, which should be avoided at all costs.