The Clemency Power on Trial?

By Tesfaye Habisso
Jan. 03 2011

“Yeah, let’s forgive these mass murderers, and serial killers. All the most advanced people do! Let’s forgive Milosovic. Let’s forgive Idi Amin. Let’s forgive the al-Shabab and the Taliban… Why not!”
[An infuriated Addis Ababan].

For the past few months we have been hearing of news that the religious leaders of Ethiopia, both Muslim and Christian denominations, have been exerting relentless efforts to broker forgiveness and reconciliation for the former Derg inmates in Qaliti Prison on considerations of their repentance and being terminally ill and geriatric at that. These news have precipitated mixed feelings amongst our society at large, both at home and abroad; it has angered the relatives of the victims of the Derg’s atrocities while arousing excitement and hope for the families of these aged, terminally ill and long-serving Derg inmates. Yes, the families of people who were slain or who vanished during Mengistu’s 1974-1991 dictatorship are vehemently protesting this proposal of clemency for the Derg officials through various channels of communication, via the mass media, Internet and Blogs. Sadly, we can easily understand, from many angry relatives of the victims of the ‘Red Terror’ period, that the wounds of the past still remain bitter for many hundreds and thousands of Ethiopians. This is natural and as it should be, and no one can downgrade, vilify or object to these feelings. On the other hand, there is no escape route from confronting the brutal past and overcoming past traumas if we all seek to build a stable and better future for all Ethiopians. How and when that would take place remains anybody’s mere guess. It is in this regard that the issue of forgiveness and reconciliation becomes imperative for the whole society today and thus to be wholeheartedly supported by all farsighted citizens of the country.

However, I am indeed puzzled by the major point of contention of Mulugeta Aserate Kassa’s rebuttal to my previous article (“A Practicable Advocacy, or Trading in Illusions”) regarding the ongoing public call by religious leaders towards extending a compassionate hand of clemency to the two-dozen or so members of the former Derg regime who are still alive and serving their life sentences (their death sentence commuted to life imprisonment already, I guess) in Qaliti Prison on considerations of ‘their repentance and old age’ [“Clemency is a pillar of justice”, TIGRAI Online, Dec. 26, 2010]. What I tried to allay in my brief article was my apparent fear that, even though some of us may agree, in principle, to support Mulugeta’s position on the issue of clemency to the junta members who have already paid part of their criminal penalty for what they deserve in lieu of their ruthless atrocities during their almost two-decades- long brutal rule (1974-1991), the proposal of ‘forgiveness and reconciliation’ as called for by our religious leaders would land on a stony ground and rendered unproductive unless we can somehow circumvent or find an acceptable way out to the FDRE’s constitutional provision that clearly states that “these offences may not be commuted by amnesty or pardon of the legislature or any other state organ” [FDRE Constitution, Art. 28, sub-Article (1)], and thus no clemency could be tendered to those charged of crimes against humanity , convicted in the court of law of the land and serving their death sentences in prison. In which case, I seriously thought, it would turn out to be a false idea or illusion that will become just a pipe-dream or a mirage, so to speak. However clumsily I may have argued in my previous piece, this was what I sought to forewarn or caution every Ethiopian, including my own distant cousin Mulugeta Aserate Kassa, against advocating an attractive proposal which may not be possibly implemented. I wasn’t, directly or indirectly, implying at all that Mulugeta Aserate Kassa ‘has made illusion the currency of his campaign’. Far from it, my dear! Sorry for unwittingly creating this unwarranted for misunderstanding between us, and I sincerely apologize for that. OK?

Be this as it may, I am now glad that my concerns are clarified by some of my lawyer friends who say that once the death sentence is commuted to life imprisonment by our president, then the rest will be effectively and efficiently handled by the parole board which would most probably and quickly forward its recommendation of clemency to the president and the convicts could be set free as soon as the appropriate decision is passed and the remaining legal process is finalized. That is it; it sounds smooth and reasonable to me, if the case is resolved in this fashion. Having said this, however, let me raise and briefly discuss some important points regarding the issues of forgiveness, clemency and justice for our deeper understanding and mutual advantage, I hope, and also throw my personal viewpoints on the currently ongoing campaign of forgiveness [YIQIRTA] and reconciliation [ERQ] by our own religious leaders and its possible outcome(s), as far as I can possibly predict.

On Forgiveness and Clemency as Pillars of Justice
“Forgiving, in other words, is the only reaction which does not merely re-act but acts anew and unexpectedly, unconditioned by the act which provoked it and therefore freeing from its consequences both the one who forgives and the one who is forgiven.” [Hannah Arendt. 1958. The Human Condition, Chicago: University of Chicago Press. P. 216].

As civil wars come to a close, rarely does the cessation of violence mend relationships, mitigate feelings of resentment and hatred, or suggest the complete pacification of the root causes of conflict. Indeed, this phase of post-conflict reconciliation is extremely difficult as individuals involved within the communities may be at very different stages in terms of their willingness to participate in such a process. As well, reconciliation is a process that is carried out in a variety of different spheres and levels, political and personal, economic and psychological [Amy Colleen Finnegan. 2005. A Memorable Process in a Forgotten War…]. Within this broader category of reconciliation lies the unique process of forgiveness. Often affiliated with religious practices, forgiveness is a powerful transformation in which parties release feelings of resentment and bitterness towards the so-called enemy in an effort to focus on the future.

According to legal theorists as well as practitioners, criminal justice in any modern country constitutes “a system of practices, and organizations, used by national and local governments, directed at maintaining social control, deterring and controlling crime, and sanctioning those who violate laws with criminal penalties”. The primary agencies charged with these responsibilities are law enforcement (police and prosecutors), courts, defense attorneys and local jails and prisons which administer the procedures for arrest, charging, adjudication and punishment of those found guilty. When processing the accused through the criminal justice system, government must keep within the framework of laws that protect individual rights. The pursuit of criminal justice is, like all forms of justice (moral, social and political justice), fairness or due process, essentially the pursuit of an ideal. Thus to contend that “Clemency is a pillar of justice” (Mulugeta Aserate Kassa, December 26, 2010, TIGRAI Online) does not fully explain the breadth and scope of justice in general and any criminal justice system in particular; the latter encompasses more salient points than the mere concept of clemency. Furthermore, the pillars of a criminal justice system include, inter alia: 1) Community; 2) the Law Enforcement; 3) the Prosecution Service; 4) The Courts and 5) The Correctional Institutions. If any one of these pillars is dysfunctional, the criminal justice system as a whole will pitiably become an ineffective channel of justice, and would not be a crime deterrent as well.

Be this as it may, the clemency and pardon power’s most important function is a last refuge for those who have fallen through the cracks in the criminal justice system. It has nothing to do with the question of repentance or being geriatric convicts receiving or being rendered their due in prison, as explained by my relative Mulugeta Aserate Kassa in his previous piece. Even then I am not sure of the firm assertion by Mulugeta that the Derg officials have ever repented about their gross human rights violations and crimes against humanity during their long-drawn out trials and court proceedings. What I know is their total and vehement objection to the charges and accordingly appealing on the verdicts of the High Court and taking their cases all the way to the Supreme Court and finally to the judicial court of last resort: the Court of Cassation, consistently denying the charges leveled against them , individually as well as collectively. If the so-called ‘repentant and geriatric Derg officials’ have perhaps recently decided to go to the extreme position of repentance, then that, to my understanding , is just like a wrestler who, having been overwhelmed and defeated by his opponent and seeing no escape route from being hurt and no end to his suffering in sight, indicates his submission by “tapping out”, that is, tapping a free hand against the mat where the wrestling match is held. Nobody in his/her right mind would believe that such repentance would be really sincere and deeply felt sentiments coming from their hearts at last.

Whatever the case, the power of clemency and pardon cannot be exercised for political considerations. Furthermore, considerations of religion, caste, color or political loyalty are totally irrelevant and are inherently fraught with discrimination. It has occasionally been felt right to tender clemency in deference to a widely spread or strong local expression of public opinion, on the ground that it would do more harm than good to carry out the sentence if the result was to arouse sympathy for the offender and hostility to the law. This view has serious implications. Public opinion and especially its local expression are fleeting and fluctuating and can be manipulated and aroused by injecting into them strong doses of emotional and political elements. In addition, there can be equally strong contrary public opinion. Grant of clemency solely on the ground that a certain section of population or a certain region of Ethiopia will go up in flames if the convicts are kept behind bars for the rest of their lives smacks of undue pressure and is almost tantamount to blackmail.

When trying to determine the limits imposed on the pardon power by the Constitution, it would be helpful to establish what that power was designed to accomplish. Regrettably, there is no consensus regarding the purposes the pardon power does or should serve. For example, Professor Moore suggests that pardon may only appropriately be issued when justice would otherwise not be served, either because the sentence was too harsh [Moore, supra note 4, at 167] or because the person was wrongly convicted. Pardons which are not “justice-enhancing”, but instead promote other purposes, Moore argues, should not be issued because their issuance would undermine rather than promote justice. By and large however , it is where there’s good reason to believe that an innocent person was convicted, a law was applied inappropriately, or a sentence was determined contrary to the interest of justice, executive clemency can be the only redress. An executive’s or a president’s power to grant relief to convicts ought to be used as a check against injustice. Unfortunately, the far more common use of the pardon and clemency power is to confer forgiveness and mercy on those who have confessed to their crimes, done time, and convinced a president or an executive branch chief they have rehabilitated (there’s also the more corrupt use of the power: as a favor to fallen political cronies). Clemency must be exercised on definite principles. Justice and the Rule of Law must not be sacrificed at the altar of sheer expediency and speculative political considerations and likely fallout.

On the Current Campaign for Clemency and Justice in Ethiopia
Few would dispute the statement that both justice and forgiveness rank among mankind’s most exalted virtues. Yet, on the other hand, their starkly conflicting natures are clear and evident. If we define justice in its most popularly understood form to mean “to render to each his due,” and understand mercy to involve some measure of forbearance or leniency in punishment towards a guilty party, the two ideas seem to strike us as contradictory at their very cores. How can each be rendered his due if the consequences of his actions are withheld? How can we ensure the realization of justice if some misdeeds are to be pardoned without due reckoning? How can equity and clemency be reconciled?

In Ethiopia, this matter presents itself as more than just theoretical inquiry; it is a pressing, concrete concern impacting the society as a whole. Since the last few months or so, religious leaders of the country, both Christian and Muslim, have released a proposal suggesting that President Girma W/Ghiorghis issue “YIQIRTA” (forgiveness) and “Erq” (Reconciliation) to the aforementioned ‘repentant and geriatric Derg officials’ in Qaliti prison; this includes the elderly, the terminally ill, and those who are considered rehabilitated to the extent that they pose no threat to society. Most notably, the document proposes that this YIQIRTA and ERQ should extend and apply to many of the individuals who are currently imprisoned and serving life sentence for having committed a wide range of human rights violations and crimes against humanity during the military regime of Colonel Mengistu Haile Mariam.

To understand the depth of the controversy surrounding this issue in Ethiopia, it must be viewed in its full context. The military toppling of Haile Sellassie’s monarchical regime in February 1974, represented a watershed in the country’s history. It instantly divided the population between those who supported the overthrow of feudal monarchy and struggling government, and those who opposed military rule and the overthrow of the monarchical system. Subsequently, these rifts were deepened and inflamed with the discovery in the 1990’s of the widespread violations of human rights and crimes against humanity that occurred beneath Mengistu’s rule.

As reflected in their document and explained by Father Hagos Hayyish, Chairperson of the Main Committee on Forgiveness and Reconciliation and spokesperson of the religious leaders of Ethiopia, the latter believe that an issuance of YIQIRTA and ERQ would represent a significant step towards national reconciliation and reunification, helping to heal the wounds and divisions that linger stubbornly from the reign of the aforementioned regime. Reflecting the idea of a justice that is more restorative than retributive, the document emphasizes the compatibility of justice and forgiveness; while condemning any abrogation of rule of law and indicating the importance of “ensuring the rule of justice… and safeguarding the rule of full human rights with regards to crimes against humanity… [the religious leaders] believe that steps can be taken for clemency.” The document appeals heavily to Ethiopia’s long-cherished Muslim and Christian identity and religiosity, beseeching citizens to look beyond “judicial orders and their interpretations,” to the teachings of Christ and Mohamed, which affirm that “the logic of forgiveness is the only one that can heal wounds, return confidence, and inaugurate new times.” For these religious leaders, a fractured and divided Ethiopia can be made whole again only through the process of forgiveness and reconciliation; Ethiopia’s people must be able to demonstrate a fraternal spirit, and the ability to make decisive gestures of reunion and reconciliation if they hope to successfully rebuild their country and pave the way for a better future.

Certain portions of the population have been very supportive of the proposed measure, stressing its importance in the process of forgiveness, reconciliation and unification. Among them include the families and friends of the Derg officials, including the retired military and other members of the public at large, who support the proposal advising the religious leaders to go ahead with pursuing and insuring the speedy implementation of YIQIRTA and ERQ, and to ignore the “improper and offensive pressure from those who, selfishly, insist in perpetuating hate and division among Ethiopians.” They say that the government should distance itself from its former policy of retribution and punishment, and to “adopt a more wise and just resolution in this transcendental matter that affects the nation’s soul,” allowing the country to join together and “face its declared GTP and Ethiopia’s Renaissance of the 21st century in unity.”

Unsurprisingly however, the proposal has been met by significant criticism from Ethiopian groups here and abroad, indicating that a general clemency to the Derg convicts would violate victims’ rights and broach international law. From a more personal standpoint, many Ethiopians reject the claim that this YIQIRTA/ERQ would serve any reconciliatory or healing function. They doubt whether authentic forgiveness would ever occur. How is it possible, they ask, to agree on a bilateral procedure of conscious participation by both the victims and the perpetrators? Even then, how could it be possible, they further ask, for both sides of the conflict to be present together in one place and to listen to one another’s side of the story—the story of victimization of the vanquished, admittance of guilt and apologies of the perpetrators as well as a sign of acceptance by the victims, so that holistic transformation could occur for both sides? In fact, many believe that a pardon for these mass murderers, serial killers such as Melaku Tefera of Gondar and Legesse Asfaw, the ‘Butcher of Hawzien’, and the other convicted violators of human rights would serve to further aggravate tensions within the country, reopening wounds that have begun to heal. Many individuals mention about Mengistu Haile Mariam, Melaku Teferra, Legesse Asfaw and Petros Gebre being despicable human beings and that they have every right to hate them and to never, ever forgive them. Some even express their opinions in that YIQIRTA/ERQ indicates “a significant sacrifice of justice, and thus… rather than pacify, disturbs social life, thus achieving the opposite of what is said to want: stability, peace and tranquility.”

Furthermore, opponents point to the fact that the process of justice has thus far been significantly lacking in Ethiopia, with no compensation for the victims and minimal convictions (as many notorious and ruthless henchmen of the Derg era have escaped arrests and prosecutions and now residing in many foreign countries) and light sentencing for some of the perpetrators. What is necessary for reconciliation, critics claim, is an invigorated approach to compensation for the already disadvantaged victims, not YIQIRTA and ERQ that would tip the balance even further in favor of those guilty of crimes against humanity.

While the Ethiopian Government has not made any public reactions so far to the proposal made by the religious leaders, debate rages on concerning its content and scope. It appears that this document, composed with the intention of forgiveness, reconciliation, reunification, and healing the long persisting wounds and national divisions, has in many ways highlighted and accentuated the continued fragmentation of Ethiopian society. The heated public dialogue and fiery controversy has in many ways emboldened the nation’s societal cracks, and revealed an unfortunate fact: Ethiopia still remains a country deeply divided.

Perhaps the religious leaders’ proposal is mistaken, and YIQIRTA and ERQ are neither timely nor appropriate courses of action at the present to bring about forgiveness and reconciliation, reunification and resolution in Ethiopia. It seems that the country and its citizens are not quite ready to take the leap towards forgiveness and reconciliation with the convicted Derg era officials; more time must pass, and justice must be allowed to run its course. However, someday , we hope, Ethiopia will be forced to face its past, reconcile its differences, and erase the lines that now divide.When and how this drama will unfold, only time will tell.