A Brief Reflection on Amnesty & Pardon from the Ethiopian context
Tsegai Berhane (PhD) Mekelle University, School of Law
Tigrai Online, November 5, 2015
Currently, in the academic circles, I am observing heated discussions on the Ethiopian government’s recent award of amnesty to some former members of the Tigrai People’s Democratic Movement (TPDM). Some of the discussions I observe are pro some against.
Of course, in principle I have no objection to the fact of awarding amnesty by the government to the former rebel members provided it was done in line to the supreme law of the country—Art. 28(1) of our Constitution which clearly states that:
Criminal liability of persons who commit crimes against humanity, so defined by international agreements ratified by Ethiopia, such as genocide, summary executions, forcible disappearances or torture shall not be barred by statute of limitation. Such offences may not be commuted by amnesty or pardon of the legislature or any other state organ. (FDRE Constitution, 1995)
However, I must honestly admit that proving whether the former rebel members have committed crime against humanity or not as entrenched in our Constitution is a very difficult job for me. For I do not have the facts of the case at hand nor does the government has provided all the facts either. But I would like to err on the assumption that the government has established fact finding inquiry committee and has settled the issue accordingly. Hence, taking for granted the government’s assertion that the case of the former rebels is not a case of crime against humanity (EBC, October 26, 2015); in this short article my point is that in the discussions of the academic circles there seems to be mixing up of the two concepts in their applications and as to the mandate/jurisdiction to grant them.
Accordingly, the aim of this very short article is to contribute in clarifying the two concepts and also to indicate what lessons we should learn from the recent award of amnesty—especially with regard to whose mandate/jurisdiction it is to award amnesty.
Hence, I will begin by defining what amnesty and pardon means respectively; discuss their distinction; and finally discuss the lessons to be learnt from the awarding of amnesty to the former member of Tigrai People’s Democratic Movement (TPDM).
Defining Amnesty & Pardon
The word amnesty is derived from the Greek word amnestia or amnesis, which means forgetfulness, oblivion, or to lose memory (N. Weisman, 1972). It is an act of sovereign power designed to apply the principle of tabula rasa (blank slate or clean sheet start) to past offences, usually committed against the state, in order to end proceedings already initiated or that are to be initiated, or verdicts that have already been pronounced (Ibid).
In this sense, the Black’s Law Dictionary defines amnesty in general as:
A sovereign act of forgiveness of past acts, granted by a government to all persons (or to certain classes of persons) who have been guilty of crime or delict, generally political offences,—treason, sedition, rebellion, draft evasion,—and often conditioned upon their return to obedience and duty within a prescribed time. [. . .] Included in the concept of pardon is ‘amnesty’, which is similar in all respects to a full pardon, insofar as when it is granted both the crime and punishment are abrogated (H.C Black’s Law, 1992).
In the Ethiopian context, with regard to amnesty, Art. 230 of our Criminal Code states that:
Unless otherwise provided by law, an amnesty may be granted in respect of certain crimes or certain classes of criminals, either absolutely or subject to certain conditions or obligations, by the appropriate competent authority, when circumstances seem to indicate that such a measure is expedient (FDRE Criminal Code, 2005).
The Code further states that:
An amnesty bars or discontinues any prosecution from the moment of its promulgation. When a sentence has been passed an amnesty cancels it as well as all its other consequences under criminal law. The conviction shall be presumed to be non-existent and the entry deleted from the judgment register of the criminal (Ibid).
However, it is good to note that the effect of amnesty as portrayed in our Criminal Code is only for the purpose of criminal law not for civil matters. This fact is clearly indicated in Art.230 (1) of the Code as: “Pardon or amnesty shall not affect any civil reparation and the payment of damage to injured persons” (Ibid). What is more, in our laws (including the Constitution and other lower laws like the Code) the competent authority (government body) to award amnesty is not clearly specified. Nor is a procedure set in place to administer amnesty.
Thus, offences to which amnesty generally applies include political delicts such as treason, sedition or rebellion, draft evasion. In this regard, I would argue that the phrase certain crimes in Art. 230 (1) of our Code need to be interpreted/construed as political delicts. I believe doing so helps us to distinguish amnesty from another concept to which it is closely related, namely pardon.
Pardon is defined in general terms as:
An executive action that mitigates or sets aside punishment for a crime. An act of grace from governing power which mitigates the punishment the law demands for the offence and restores the rights and privileges forfeited on account of the offence. [. . .] A pardon releases offender from entire punishment prescribed for offence and from disabilities consequent on his convictions; it reinstates his civil liberties (H.C Black’s Law, 1992).
In the Ethiopian context, with regard to pardon, Art. 299 of the Criminal Code states that:
Unless otherwise provided by law, a sentence may be remitted in whole or in part or commuted into a penalty of lesser nature or gravity by an act of pardon of the competent authority. Pardon may apply to all penalties and measures whether principal or secondary and whether their gravity, which are enforceable (FDRE Criminal Code, 2005).
The Code further states that “the conditions of pardon shall be governed by the relevant provisions of public law [like Proclamation No. 395/2004]; and the order granting pardon may determine the conditions to which it is subjected and its scope” (Ibid). The code also underlines that “pardon shall not cancel the sentence the entry of which shall remain in the judgment register of the criminal and continues to produce its other effects” (Ibid).
Discourses on the distinctions of Amnesty & Pardon
At this juncture as some scholars argue it is good to underline that although both amnesty and pardon grew out of the general pardoning power of the governing authority of the State, they have different origins and purposes (A. O’shea, 2002). The decision to grant amnesty is usually a legislative act while a pardon is an executive act granted by the Head of State (C. Pilloud, 1987). Amnesty deals with offences of a military or political nature which are generally committed against the State, while pardon is usually granted to individuals who have been convicted of an infraction (generally common crimes) against the peace and security of the State (N. Weismann, 1972).
In line to the above discourses and considering our Criminal Code one can argue that the main difference between amnesty and pardon is that the former may be granted before any conviction or punishment has been pronounced, whereas the latter only takes place after the benefactor has already been convicted and punished. Nevertheless, amnesty overlooks the offence and prevents the beneficiary from being punished. Pardon, on the contrary, does not overlook the offence; it is usually granted after the punishment has been meted out, and aims at either remitting such punishment, or putting an end to the execution of a penalty, though in other respects the effects of the conviction remain in existence.
Another distinction between amnesty and pardon is that amnesty promotes peace or reconciliation while pardon provides a discretionary mechanism for sidestepping the court. It usually involves obtaining something useful from the beneficiary of the pardon, or preventing or correcting a mistake in the conviction of an innocent person (A. O’shea, 2002). Amnesty has its origin in early attempts to re-establish peace between warring States or between the State and rebels, and to ensure lasting victory over conquered territory. Pardon originates in the absolute power of sovereigns (C. Pilloud, 1987).
Black’s Law Dictionary further elaborates on this distinction as follows:
The distinction between amnesty and pardon is one rather of philological interest than of legal importance. [. . .] This is so as to their ultimate effect, but there are incidental differences of importance. They are of different character and have different purposes. The one overlooks offence; the other remits punishment. The first is usually addressed to crimes against the sovereignty of the State, to political offences, forgiveness being deemed more expedient for the public welfare than prosecution and punishment. The second condones infractions of the peace of the State. Amnesty is usually general, addressed to classes or even communities—a legislative act, or under legislation, constitutional or statutory—the act of the supreme magistrate. [. . .] Pardon applies only to the individual, releases him from the punishment fixed by law for his specific offence, but does not affect the criminality of the same or similar act when performed by other persons or repeated by the same person (H.C Black’s Law, 1992).
This definition rather emphasizes the legal consequences of both pardon and amnesty. In fact, the two concepts share the same consequences in law. They both result in a person obtaining immunity from criminal consequences of his criminal deeds. Both may take their effect at any stage of legal proceedings. They both do not affect the legality of the act done, but merely release the accused from trial or a guilty person from the legal consequences of his admittedly illegal act.
Lessons to learn from the awarding of amnesty to the former TPDM members
In my opinion, the lesson we should learn from the awarding of amnesty to the former Tigrai People’s Democratic Movement (TPDM) is that the government’s act is very important to establish peace and stability in our country provided it was awarded in line to the spirit of our Constitution. As President Mulatu Teshome clearly stated it, amnesty to former members of TPDM contributes a lot for the stability of our country by exposing the anti-Ethiopia conspiracy of the Eritrean regime (EBC, 26 October 2015).
However, I am also of the opinion that the two concepts—amnesty and pardon—are not one and the same in their origin and purpose as I have tried to briefly discuss them above. Hence, we need to clearly differentiate them in our discourses and their applications. As things stand now it looks that there is a tendency to mix up the two concepts in academic discourses and their applications. In addition, currently we do not have a law (be it at the Constitutional or other lower statutes level) that clearly assigns jurisdiction/mandate to award amnesty to any specific government body. Equally true is, unlike the case of pardon (Procedure of Pardon No. 395/2004) we also do not have a law that prescribes a procedure on how to award amnesty. Hence, in my humble opinion these points merit to be addressed.