Abraham G. Ghiorgis
The main stumbling block towards prosperity, peace and stability in Eritrea is the absence of the rule of law. The ratified Eritrean Constitution has not been implemented; if this constitution were to be implemented for the most part Eritrea will be in harmony with the rule of law, since within the constitution principles of the universal declaration of human rights are embedded. The clarion call for the respect of the rule of law in Eritrea is the implementation of the ratified Eritrea constitution. Keeping this worthwhile goal alive, the Eritrean Mereb has decided to compile the following important articles that deal with the rule of law in Eritrea.
Editor, the Eritrean Mereb; August 29, 2011.
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The Irony of Ironies: In Support of the Ratified Eritrean Constitution
Abraham G. Ghiorgis
February 28, 2003
Lately there is a debate to steer the course of the democratic struggle towards the ratified Eritrean Constitution, as exemplified in the Awate.com's The Pencil, titled "Picking Up Where DIA Left Off, February 24, 2003, “and the "Pull-Push Strategy - The Ratified Eritrean Constitution as a Guide, by K. G. Kahsai, February 19, 2003," at Asmarino.com and other Eritrean internet sites.
It is about time that we urge all Eritreans to rally behind the ratified Eritrean Constitution. Some may want a "perfect" constitution not realizing or ignoring that many Eritreans may disagree on what constitutes the "perfect." We should not allow "the perfect to be the enemy of the good." Apparently, we have complex problems. The solution to our problems will be simpler if we merely break them into manageable small pieces. With the right tact and a demand of tremendous humility of leadership, the Eritrean Constitution can unify the majority of Eritreans who crave for prosperity, democracy, liberty and peace. This includes the overwhelming majority of the PFDJ members.
Give the devil his due, the PFDJ as an institution has done a heavy lifting to the fundamental solutions to our long-term problems. As constitutions go, it has ratified a good one; nevertheless, some in the opposition want to rewrite a new constitution from scratch because they have qualms with some of its articles. Some state that they were not represented. But that is a procedural and not a significant material. Their reservations and oppositions filtered down to their essentials boil down to the fact that they object to certain rules. It seems to me this is unwise. Why should we reinvent the wheel of drafting a constitution when we already have a readymade workable one, and I might add, written by some of our best scholars, legal experts and other knowledgeable people? In addition, it has been heavily debated and enriched by the wisdom of the Eritrean people. We should not throw out the baby with the bath water. We should be gracious enough to acknowledge success and achievements of our compatriots. We should use the constitution as a springboard to reach another plateau.
I, like many others, have reservations of certain rules that I believe constrain liberty. A case in point is the monopolization of the land by the state. I believe that a constitution that includes rules, which violate the respect of property rights, and in particular that deny a people the right to own land, is tantamount to condemning them to slavery. Granted, there is a possibility that some part of the Eritrean people may disagree with my view. Thus, I have no right to reject the constitution just because I disagree with certain articles. Like-minded people and I have obligations to challenge and influence our future constitutional representatives, for example to amend the article on the right to own land. In such a predicament the right course to take is to convince enough people to see things our way, hence for dialogue, and be open to amendment. I understand this is an uphill battle, but the alternative choice may be much worse - chaos and anarchy.
Even the most rabid and fanatic supporters of the PFDJ do not oppose the implementation of the constitution. Now and then they may bring issue of timing. Government affairs are not always smooth. Government is established among others to secure stability, ensure peace, protect rights, defend liberties, mediate and manage crisis. A constitutional government established by fair and free elections will do much better in managing any crisis because of transparency and accountability. If such a constitutional government fails the people in major policies, then the people cannot blame anyone except themselves for putting the wrong personnel at the helm of the state power; and through their votes in a peaceful manner, they will boot out the incompetent and undesirable ones. What people with common sense want is the setting of a reasonable timetable for the implementation of the ratified Eritrean Constitution. The schedule once set should not be unnecessarily postponed, and violated. Until then, the PFDJ should abide itself by the spirit of the ratified Eritrean Constitution and rule with restraint, kindness and compassion.
Just because the PFDJ, so far, has not kept up its promises should not discourage us from appealing to reason and wisdom. We cannot expect a collectivist thinking that took root in Eritrea with the advent of the armed struggle to be changed at a spark of a light. Those who want an overnight and radical change, and sadly so through violence, may wrongly conclude that this is a sign of apprehension and fear. Nothing is far from the truth. Those who implicitly advocate for violence, one way or another, have to persuade us that they have exhausted all the peaceful venues. They should convince us and show us with practical deeds of where and when they have displayed utmost humility, give-and-take and compromise. Actually, one of our biggest fears is that some zealots may want to abolish everything good that happened in Eritrea under the watch of the PFDJ. And among the good things include the ratified Eritrean Constitution.
The problem is not with deficiencies, real or imagined, that are contained in the ratified Eritrean Constitution. Our serious and paramount problem is that the document has been shelved indefinitely by the PFDJ to collect dust and it has not been implemented. Lately, even in passing, the PFDJ leadership does not mention the document at all. It has decided to avoid it like the plague. When it has been repeatedly asked, for example, how it plans to solve the problem of the G-15, it rarely mentions the ratified constitution. Rather, it replies that it will solve all outstanding problems in accordance with its organizational tradition and culture. This means nothing but the collectivist culture of the armed struggle, and not the rule of law. Reasonable people might disagree on the value of that culture, and admittedly, that culture might have been in tune with its time and the demands of the armed struggle; and it might have served its purpose properly.
But we have to admit that, that culture was imposed on us by necessity, in order to liberate Eritrea from colonialism, and is a culture of militancy and violence - and not a culture of a civil society. Let us leave for historians to sort out the positive and negative aspects of it. But in today's Eritrea, an independent and sovereign nation, to resort back to the culture and tradition of the armed struggle is out of place, and out of date, to say the least. Thus, anything that comes out of that so-called organizational tradition and culture may be characterized as "capricious and arbitrary." This violates due process of law, the fundamental premise of innocent until proven guilty, and the laws and genuine traditions of our "H'Ghi E'nDaba."
The top echelon of the PFDJ is dragging its feet from implementing the constitution; in this, it appears that it has gained in some an inadvertent company. These happen to be some zealots who want to completely abandon the ratified Eritrean Constitution and who want to start afresh and anew. This is the irony of ironies. The top echelon of the PDFJ may feel, and rightly so, that with the implementation of the constitution it may be "cornered" and that it may be asked to account for all the ills of Eritrea. Slowly and unconsciously it appears that we are marching on a road of creating a society that is vindictive and full of envy. We have a moral obligation to break this mould before it consumes and devours us. I leave this for bigger minds than mine to come up with a merciful solution that does not leave a single Eritrean out in the cold by himself. For now, it may suffice to state that, we should demonstrate leniency and clemency for past ills. As a compromise and a win-win situation, we may have to agree that the ratified Eritrean Constitution once implemented is applicable only on a prospective and not a retroactive basis. This may give some sort of face saving and an exit strategy to those who may feel that they are "cornered." We have to sincerely believe in forgiveness and avoid finger pointing and accept whatever failures we have as our collective failures. In this respect, experiences of South Africa, Chile and the old Soviet Union could be relevant to our situation.
The bottom line is that this may enable us to create a very broad coalition that also includes the majority members of the PFDJ as its army in our fight to create a constitutional government. Our clarion call should be the implementation of the ratified Eritrean Constitution. In anybody's book, it is very hard to recognize any organization or group that does not accept the ratified Eritrean Constitution, irrespective of its opposition and reservations to certain articles, and engage as a loyal opposition to form a coalition. We have to have certain minimum common factors that unite us, and this, at least for now, should not exclude the PFDJ. This will assist us to arrive at a compromise on agreed-upon-principles and start the process of election. Election is a peaceful contest that results in a victory for some and a defeat for others, and it is not a compromise. We are doomed to a losing and disintegrated strategy, should we stray away from this course.
In conclusion, I would like to change gear to the issue of the looming famine in Eritrea. We should all actively participate in the alleviation of the famine in Eritrea, through organizations that we feel comfortable with - either non-governmental or governmental organizations, Eritrean or non-Eritrean - on top of the direct remittances we usually send to our immediate and extended family members. Sure, there are natural and political factors that caused the famine. But right now lamenting about their causes cannot be food or solace to our suffering people. We should avoid politicizing the famine. Peace and happiness to all!
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A Call for Unity
Abraham G. Ghiorgis
New York
July 9, 2004
Introduction
It is almost five years since some Eritreans sympathetic to the PFDJ openly started to question its wisdom about its management of the war with Ethiopia and its administration of Eritrea. Prior to it, there were Eritreans with rich experience in ELF who questioned the authority and legitimacy of the PFDJ rule, but they were given deaf ears. Since 2000, many incisive and groundbreaking articles have been written. At times, such upright Eritreans were given all kind of unsavory names in order to discourage others from stepping up to the plate and doing the same. It did not work, the avalanche of ideas has not stopped and the momentum continued at a tremendous speed.
Then came the G-13 and the G-15. They gave tremendous weight to the ideas that were propagated by simple citizens. The G-13 and the G-15 are courageous Eritreans. It is very rare in history where groups or individuals challenge a despotic regime from within its own den, since one’s fate is assuredly the dungeon or death.
The G-15 was in a position of power and prestige. It could have ignored the plight of Eritreans, and continued to live in a relative comfort within a sea of misery. It decided otherwise. This is extremely noble. Some may quarrel with the tactics and methods of struggle that the G-15 employed but strategically its contribution towards the struggle for the establishment of the rule of law in Eritrea is immense, and I believe history will record it as such.
I have my qualms with some of the leaders of the traditional opposition. For the life of me, I cannot understand the wisdom of boycotting the referendum, though they have a fundamental right and liberty not to partake in the process, and not participating in the drafting of the constitution. Still I give them tremendous credit for consistently seeing the top leadership of the PFDJ for what they are – despotic leaders of a cruel regime. It is a very humbling experience.
The Eritrean people and the opposition should be very proud of their achievements. It took them a mere five years to expose the real nature of the PFDJ - an unreconstructed communist and collectivist entity that abrogates individual Eritrean liberties and that has no respect for the rule of law. It took almost seventy years for the people of the old Soviet Union to come to grips with such devilish monstrosity. The opposition should not sit idle on its laurels, but on the other hand it has to be proud of its great achievements so far.
All the articles penned in the last five years, despite the fact coming from different viewpoints and experiences, have two salient features.
First, it is the management of the recent war with Ethiopia. Views differ on many aspects of the war. Still, the majority agrees on one major point: the peaceful and legal channels should have been exhausted. Finally, the Delimitation Decision is a victory for both the Eritrean and Ethiopian peoples. The issue is not which side was awarded more territory. Rather, the issue is the boundary between Eritrea and Ethiopia is finally sealed through an international legal ruling. The rule of law will eventually prevail.
Second, it is the emphasis that there has never been the rule of law in Eritrea under the PFDJ. The PFDJ has been ruling Eritrea through decrees, and there are no liberal institutions that check its power. The PFDJ takes the Eritrean people for granted and ultimately it abuses its unfettered power. Hence, first and foremost, Eritrea needs the rule of law. There is almost absolute unanimity on this issue among all Eritreans: Yes, by many supporters of the PFDJ and those who are opposed to it. The only difference is the mechanism that one employs to start the process of the reign of the rule of law in Eritrea. This paper will deal with this issue, but before we go there I need to point out phases of struggle, as I understand them.
I categorize the last five years of the struggle as a phase of exposing and describing the real nature of the PFDJ regime. Hence, it was the stage of awareness and exposition. For all intents and purpose, this struggle was spontaneous; no sneer intended on the opposition, since the opposition itself was part of the spontaneous movement. This has been accomplished with so much ease. Imagine ardent supporters of the PFDJ like Dan Connel and Thomas Keneally, and international entities like the USA, EU and human rights organizations are now dancing to the tunes of the opposition and the Eritrean people: the need for the rule of law in Eritrea. These are telling signs of the victory of the first phase.
I believe we are entering the second phase where maintaining unity of ideas and consolidation and institutionalization of what has been achieved so far become important. By unity or unifying factor, I do not mean organizational unity. The opposition seems to confuse the unity of ideas within the Eritrean people with organizational unity among the opposition. I have no intention to discount the importance of organizational unity. Though beneficial, I do not believe organizational unity is as crucial. Unity of ideas is crucial. In this respect kudos to all Eritreans who are in the forefront of the struggle since there is unity among all Eritreans of all political persuasion of the need to establish the rule of law in Eritrea. How we reach there is not clear, though. In fact, there is a lot of confusion on how to go about it.
I believe the ratified constitution can help us bring the rule of law in Eritrea. It will help us to unite all Eritreans. It will give us a great leverage internationally and with foreign friends of Eritrea. The only requirement is only a little compromise and humility. If we concentrate on the positive aspects of the ratified constitution, and there are plenty for those who read it with open minds, then we can salvage it in order to enable us to have a common platform.
The notes below, slightly revised, were originally presented to colleagues and compatriots in a bullet format around September 2003, in a brainstorming session to come up with a common factor that may unify the Eritrean people in their quest for the establishment of the rule of law in Eritrea. I have benefited greatly from their inputs, criticisms and advice. Also, lest I be accused of plagiarism, I confess that I have liberally incorporated ideas and concepts advanced by other Eritreans that are to my liking.
Currently, we observe that the opposition is going in all kind of directions squabbling among itself and not debating the core unifying issue, and each creating its own programs and charters. These programs and charters though necessary for the organizations may become big hindrances towards the creation of a united loyal opposition, if they are not rooted in a one unifying factor. I believe the organizations will need one theme that is unifying. For example, during the colonial period the Eritrean people irrespective of their political affiliations had a single unifying factor: independence. Similarly, I believe we need one unifying factor, and that could be the implementation of the ratified constitution with all its imperfections. For the sake of discussion I characterize this as the common political platform.
Who is the political platform for?
Political power is either delegated or usurped. A representative authority is a delegated power through the consent of the people. Different groups at times pervert the term democracy. Yet the aim of the majority of Eritreans is to establish a representative government that could enforce constitutional rules on behalf of the people. Thus, the Eritrean people are the sovereign and must own the political platform. The platform should reinforce basic human dignity and guide to bring about two contending forces – a Government-in-office and a Government-in-waiting, and a peaceful transfer of power. It is also for the majority of the Eritrean people; it should try to satisfy their wishes while respecting the rights of minorities. It must be the least common denominator that unites the people and it should not deviate from this fundamental principle.
There is a possibility that the majority of the Eritrean people may have only formal and not effective association with the major political organizations. Simple membership in the PFDJ, for example, cannot be equated with endorsements of all the PFDJ policies. One can assume that the majority members of the PFDJ may not earnestly believe in all its politics and principles. Some are members because they believe that membership may endow them with a privilege to earn a living inside Eritrea, or visit Eritrea from the Diaspora, or have the use of the monopolized state land. In short to engage in productive economic and social endeavors without raising any eyebrows from the state and the ruling party. This is normal in nations whose economies, politics, and social life are monopolized by the state and by a single party.
Likewise, the fact that many Eritreans reject the PFDJ's polices and principles does not by any stretch of the imagination mean that such Eritreans have endorsed the oppositions’ polices. In other words, rejection of the PFDJ does not necessarily automatically translate into support for the oppositions. To think otherwise is delusional; the opposition has to realize its capability and limitation.
Until there is free and secret ballot election, we cannot conclusively affirm which organization has the majority (or pluralistic) backing of the Eritrean people. Even in highly developed societies, support for any organization cannot be conclusively determined and decided through opinion polls. Only free elections decide that. There has not been a real test in a competitive political arena in Eritrea to date. Thus, it is very presumptuous for any organization to assume that it represents the Eritrean people, just because it has appropriated the state apparatus for the sole use of its organization, or that some have come together as political organizations. Only the Eritrean people through the exercise of their democratic right can decide who represents them.
The Eritrean Political Fronts
Both the EPLF and the ELF conducted the national armed struggle for independence; the EPLF consumed the independence struggle to its fruition, while the ELF started it. We have to acknowledge the fact that the independence victory is a collective achievement of the Eritrean people and of the two fronts. The independence struggle was a process that had the participation of the overwhelming majority of the Eritrean people at one time or another. It is a cumulative victory. But, like everything in life some may have contributed more than others may.
Individuals are endowed with different skills and attributes. Organizations being the works of human beings also display and reflect positive and negative human characteristics and sentiments. We have to accept the fact that individuals associated with the two fronts have varied experiences and different interpretations of these histories. Even within the same organization it is impossible to have the same understanding and interpretation of past history. Otherwise it is to deny individualism and freedom and it is to impose collectivist mentality.
Since the strategic goal of the historical political organizations had already been achieved through the independence of Eritrea from colonial rule, we should curtail the various interpretations of the liberation war from being brought to the forefront, as they might become divisive. We should leave historical interpretations to historians and other social scientists. These varied interpretations of history should not be issues for contest, nor should they be issues of a common political platform. These lingering varied views should be individualized with the assumption that they will be varied, rich and multi spectrum, rather than collectivized by any organization and thus forced to conform to a single interpretation. We should disallow these histories from becoming issues on a forward-looking common political platform.
The ratified constitution can be the common political platform
The ratified constitution can be the common political platform. The ratified constitution has many similarities with other written democratic constitutions. The constitution enshrined some of the fundamental principles of individual liberties. It incorporated the separations of powers. The fundamental liberties and the separation of powers if implemented properly, guarantee limitation of power. These checks and balances ensure limited government, thereby curtailing the potential abuse of power. It is readymade and workable. It can be used to unify the Eritrean people and be used as a springboard to bring qualitative changes within the Eritrean political arena.
Eritreans are entitled to criticize the procedural mechanism of the drafting of the constitution as well as its contents. But these by themselves should not be causes to reject it outright.
As the work of human beings, the constitution is not perfect. There is no perfect constitution that satisfies all sectors of a society all the time. A constitution is a living document and it is only through implementation that comes to life and addresses societal concerns. The worst that can happen to a constitution is to ignore or suspend it and rule by decrees in an arbitrary manner. No matter what, we will never achieve perfection; to expect otherwise is to go against the grains of the nature of human beings. The constitution has provisions for amendments and improvements. It is neither static nor inflexible and within its rules it has dynamics to update and improve certain rules that do not conform to contemporary situation. It only requires persuasion of the overwhelming majority of the Eritrean people. This can be accomplished legally, democratically and peacefully.
Is it wise to reject the ratified constitution?
The PFDJ has neither implemented the constitution nor rejected it officially. Some organizations within the opposition have preliminarily accepted the constitution as a stepping-stone for a democratic Eritrea.
The majority of the organizations in the opposition have rejected the constitution. They feel they were not represented. They have a valid point. I have no intention to belittle the concept of representation. Procedural representation is needed in order to solicit the widest possible input and interest of the Eritrean people. Not being procedurally represented amounts to the fact that certain inputs and interests of the Eritrean people may not have been incorporated. It is understandable that some organizations may have reservations and oppositions to some provisions and rules in the constitution. But this is true also with individuals associated with the PFDJ or independent individuals who have no formal organizational association. If one ignores organizational affiliations, it may very well be true that many followers of the ELF, EPLF and independents may have similar views regarding the pros and cons of the ratified constitution. It is wrong to assume or expect that all members of the PFDJ have identical views on all the provisions of the constitution. Otherwise it is to deny individuality, originality and liberty, which all human beings are naturally endowed with, and it is to impose collectivism. The same is true with the opposition.
Constitution writing is not an easy task. Some wrongly assume that a group of people with no real professional knowledge or experience of various fields of social sciences can come up with a prefect constitution by simply copying and pasting from various written constitutions of the developing and advanced nations. They wrongly believe it is a cakewalk. And then bingo, they assume that they will have a “perfect” constitution for Eritrea. Thus, they insinuate why even bother at all with the already ratified constitution of Eritrea.
Others assume that elections are the most significant part of the constitution. They emphasize elections and not the rule of law; so much so, the very PFDJ is imitating their infatuations with elections and is doing exactly what they incessantly lecture on. It is conducting all kind of elections without implementing the ratified constitution.
In my opinion, elections, though important, in the scheme of bigger things, are secondary. I believe the most significant part of any constitution is the existence of the rule of law. Among the most significant ones are:
- The respect of property rights, for example a strict reading of a just rule of law would not allow a state to sell land without the consent and market price compensation of the real owners of the land, the “Dekebat” villagers in the Eritrean “Adi.”
- The enforcement of contractual obligations ensures trust in the open economy and a smooth and honest operation of the market. For example, the Government of Eritrea not honoring the redeeming of its bond obligations as stipulated when it sold the bonds discourages investment in Eritrea. Not enforcing and honoring all kind of business licenses, contracts and transactions among different entities is counter to the creation of a prosperous society.
- Respect of property rights and enforcement of contractual obligations are the linchpin of a market economy; without them one cannot create a significant middle class in a nation and; without a middle class one cannot have a prosperous and a viable liberal democratic society. For example, the monopolization of significant economic activities in Eritrea by the PFDJ under the guise of equality and other nice sounding socialist slogans effectively will hamper the creation of a middle class.
- The existence of due process of law, for example, the legal concept of innocent until proven guilty; the concept of writ habeas corpus – “the right to be brought before a court to determine whether one has been lawfully detained.”
- The respect of the freedom of press, religion, organization and movement.
- In short, civil liberties that guarantee the individual to enjoy constitutional liberty and constrain the government from abuse and arbitrary power.
Constitution writing requires the guidance of people endowed with wisdom, experience and some schooling (formal or self-taught) in law, sociology, economics, anthropology, history and other fields of study. No wonder it took a considerable time for the Eritreans who were tasked to come up with a draft of the Eritrean constitution. Recognizing this seemingly simple fact will help the opposition in winning half the battle of the establishment of the rule of law in Eritrea.
The opposition has to recognize that its mission is to help the Eritrean people to transition towards a constitutional government. What I know for sure is that the majority of the Eritrean people have not rejected the ratified Eritrean constitution. I also know that in practice the top echelon of the PFDJ and formally some in the opposition have rejected the constitution. It appears that both are in a match to prove to the Eritrean people how far removed they are from the ratified constitution, and thus in essence one is not off the mark if one concludes that both have little respect for the rule of law.
The most difficult thing to overcome is inertia, and it appears that some are still living in the inertia and era of the armed struggle. At least the opposition should try to fight the top leadership of the PFDJ with a powerful weapon that the Eritrean people and the international community can easily intimate, understand and rally under: the ratified constitution.
The most crucial question is how can we bridge the gap between the varied views of the Eritrean people: those who are associated with the PFDJ, those who are with the opposition and those who are with neither? I believe the ratified constitution can play that role if handled with a lot of tact.
Incidentally, it is necessary to highlight and not to forget those Eritreans who for one reason or another are still associated with the PFDJ. Disregarding the top echelon of the PFDJ, in reality the rest of the PFDJ are in support for the rule of law. Effective change will only come from inside Eritrea. And thus we should not underestimate the latent and manifest forces of change that are within the PFDJ. Some of us may hate anyone associated with the PFDJ because of the insults that have been coming to our side from some irresponsible uncouth loudmouths. This is shortsighted. The actions of some rogues should not cloud our thinking.
The ratified constitution as the supreme law of the land belongs to the Eritrean people. The PFDJ as the ruling party may have influenced its outcome to a major degree. This is normal and is unrealistic to expect otherwise. Still, no organization can claim sole possession of it. Some may mistakenly believe that the ratified constitution belongs to the top echelon of the PFDJ or the president of Eritrea.
The opposition has to show compromise, some mutual respect and basic understanding of rights. No one is expected to claim fundamental rights and deny the rights of others. Leadership requires courage, and it is a sign of wise leadership to go against the incorrectly held taboo in the Eritrean political arena - that something that does not originate from within one’s own group or organization should be automatically rejected irrespective of its merit. We will never be able to build a liberal democratic and prosperous society with that kind of mind set. We should avoid reinventing something that already exists and that has something good in it. I believe the constitution fits this depiction. Accepting the ratified constitution as a common platform will be a milestone in the creation of a united opposition. I believe this will enable us to be in synch with the views of the majority of the Eritrean people and the international community.
The problem is not that the ratified constitution is worthless. The problem is that the PFDJ ignores this important document and still wants to rule Eritrea without a constitution and rule of law, as if Eritrea is still conducting the armed struggle for independence. The opposition has to take the PFDJ to task, and should be wise enough to use the very weapon, the constitution, that was ratified under the guidance of the very same PFDJ, to bring good governance in Eritrea. Both domestically and internationally, it is foolhardy for the opposition and for that matter the government of Eritrea to run away from the constitution. At least, the opposition should be wise enough to realize this, and steal the thunder from the PFDJ and challenge it to implement the very constitution that it ratified.
This does not mean organizations have to abandon their charters, programs and visions for Eritrea, far from it. Rather, they can use the ratified constitution as a common platform of the majority of the Eritrean people, until we establish a constitutional government. Organizations have political rights to have charters and programs that will enable them to implement their visions within the boundaries of the ratified constitution or to request for amending the constitution in order to expand or contract its boundaries legally and peacefully.
What if the PFDJ promises to implement the constitution?
The PFDJ is under pressure to have good governance in Eritrea. The forces include the Eritrean people – inside and outside Eritrea, the EU, the USA, human rights organizations, international newspapers, and goodwill friends of Eritrea, international institutions and many others. In other words, it is called upon to implement the constitution. Under such circumstances, it is not farfetched to imagine that the PFDJ may implement a truncated application of the constitution.
If the PFDJ announces that it will implement the constitution, what will be the likely response of the opposition? Observing the behavior and actions of the opposition from the sidelines, one may logical assume and predict that the opposition will be caught flatfooted, with no coherent and responsible response that the Eritrean people and the international community can easily intimate, comprehend and sympathize with. The international community will react negatively against the opposition if they are not willing to participate.
Under such a scenario, I believe the following are the minimum requirements that the PFDJ has to accomplish to prove to the Eritrean people and the international community that it is sincere:
- Release all prisoners of conscience;
- Restore the private (free) press;
- Announce and allow opposition organizations to operate inside Eritrea without any hindrance and retribution;
- Set up an independent electoral commission; and
- Set up a body that will oversee the proper implementation of the constitution (constitutional court etc.).
Can any organization disallow any other Eritrean organization from participating in free and fair elections?
The PFDJ bluntly charges that some of the opposition organizations have some sort of relation with the present Ethiopian leaders, hence are not loyal opposition. In other words, it implies that at a minimum they cannot participate in Eritrean politics.
We should wish good relations with all our neighbors. I believe it is wrong to assume that our neighbors are inherently bad natured and only wish us ill will and thus are our permanent enemies. True, too much blood has been shed, and enormous enmity has been created between the two brotherly sovereign nations, Eritrea and Ethiopia. Still we have to do our utmost to avoid war, enmity, vendetta and hatred.
I am optimistic that it is just a matter of time that if not out of pure good natured heart but at least out of pure selfish national interest, all our neighbors would opt, at the minimum, for a normal peaceful relationship with Eritrea. In this enterprise, it is in our advantage and national interest that we, Eritreans, be in the forefront to lead and show our neighbors the ways and methods of a peaceful relationship through displays of simple examples of decent behavior and good gestures.
We should not meddle in the internal affairs of our neighbors, nor should we allow our neighbors to interfere in ours. At all times, our relationship has to be rooted in the rule of law, and this includes that Ethiopia accepts the Delimitation Decision concerning the geographical boundary between Eritrea and Ethiopia as final and binding. In this respect, we have a problem with Ethiopia, and we hope Ethiopia will reconsider its position and accept the rule of law. That said, as a small nation, it is also imperative that we should always be on our toes to manage the relationship with our neighbors properly and not be caught off guard. We also have to be cognizant of the fact that at times, big nations have a bad habit of flexing their muscles including violation of international law to guarantee their narrow “national” interests. In the final analysis though, we need to have a policy with no regional ambitions and based on core maxim to maximize the interests of our people considering our size.
Then the issue becomes who determines whether one is a loyal or disloyal opposition? The president of Eritrea said, words to the effect, that that there is no legitimate opposition in Eritrea. When a government is not creating an atmosphere for loyal opposition to operate within the nation, then the legality issue speaks about the government and not about the loyal opposition. Just because the president said so, the opposition cannot be defined as a disloyal or illegitimate opposition. Loyal opposition cannot be gauged by a government and its party that are in power but by constitutional laws.
If there are violations of the spirit of the constitution and there are any treasonous acts committed by individuals, then only an independent court, established under the guidelines of the constitution, can determine that. Otherwise, organizations are deemed to be loyal opposition. Only the Eritrean people decide whether such organizations are fit to serve their interest or not, through their direct secret ballot voting. In my humble opinion, the requirement of a loyal opposition may include the following:
- Acceptance of the constitution of Eritrea (some may think this is too restrictive, but I believe it is important that we start from some fundamental base);
- Willingness to come to power through fair election and not through usurpation, and accept to remain a loyal opposition if defeated in a fair and free election; and
- Believes in the sovereignty of Eritrea and accepts the territorial integrity of Eritrea as stipulated by the Delimitation Decision of the Eritrean-Ethiopian Boundary Commission (EEBC) in The Hague, since one cannot be for the rule of law internally and opposes the rule of law externally.
The PFDJ does not have any legal right to disallow Eritreans from establishing organizations, political parties and civil societies in accordance with their wishes and desires. Likewise, no one can disallow the PFDJ from participating in Eritrean politics provided it abides by the Eritrean constitution and accepts to be a loyal opposition if displaced from power through fair and square election.
Our desire and struggle is to level the political playing field and to disallow monopolization of politics and economics of Eritrea by a single entity, and allow the Eritrean people be the ultimate judge. The people decide the growth and decline of political organizations. Political organizations will have lives in a free and democratic Eritrea only if they meet the aspirations of the people and the Eritrean people is willing to vote for them and also support them. Otherwise their memberships dwindle and eventually they die a natural death, not because some omnipotent force decided so, but because the people through their free will said so. By the same token, it is similar for those who become vibrant and strong.
What to do for past errors or crimes? Clemency and reconciliation
It needs to be emphasized that opinions should not be put on a par with crimes. Diversity of opinions has to be accepted and tolerated, and it is a mandatory requirement of a liberal democratic society. Opinions become a crime only in despotic regimes. In nations with just rule of law, exchange of opinions and debates are encouraged. The law protects people from any retribution for voicing their opinions and speaking their minds.
Do we allow the constitution to be applied prospectively from the time it is implemented, or retroactively from the time of ratification? There could be tremendous ramifications to the point of contribution towards disorder in Eritrea, if the constitution were to apply retroactively. We have to admit some of the activities of the top leadership of the PFDJ are nothing but illegal. Examples include imprisoning Eritreans without due process of law, confiscation of Eritrean properties without due compensation etc. Applying the constitution prospectively may save us from a vicious circle of blaming and counter blaming and it may give us an opportunity to avoid “cornering” the top echelon of the PFDJ for misadministration. This could be one of the exit strategies for a peaceful transition to a constitutional government in Eritrea. Along with this, other strategies have to be developed to avoid “cornering.” The disorder that is going in Iraq and the blunders the USA initially made by blanket accusation of the whole Baath party as no good should be an object lesson to all us.
I believe some type of rehabilitation and reconciliation forum should handle crimes and past errors. Otherwise, it may become a hindrance to crafting a common political platform. Our immediate task should not deviate from establishing a constitutional government based on the ratified constitution. Later, the constitutional government may establish a commission of reconciliation that may bring a peaceful closure for past ills of Eritrea. If South Africa with its ugly history of the apartheid system is able to overcome vendettas, there is no valid reason why we, Eritreans, cannot do it either. Some may retort back that Eritrea does not have a saint-like and a very conciliatory figure like Mandela. I beg to differ. I honestly believe we have little Mandelas all over our nation: the Eritrean people are a very generous and forgiving people. We only have to look within ourselves and find the little angels.
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The Rule of Law in Eritrea
Mogos Tekeste
December 3, 2009
There seems to be a lot of confusion on the status of the rule of law in Eritrea.
This confusion contributes towards the opposition being at odds with each other, extends a life support system to the oppressive political order of the People’s Front for Democracy and Justice (PFDJ) and finally, it baffles the international democratic forces and discourages it from lending an effective and valuable targeted support to the Eritrean people.
Some use “the rule of law” clumsily and without having a deep understanding behind the meaning of that terminology. The current intensive debate about the current land ownership and use is a case in point; some want to solve the problems using group rights based on a very nebulous power sharing arrangement. An arrangement that is not in synch with the rule of law. If one scrutinizes their stands on other important issues such as -- working languages, the Eritrean-Ethiopian border demarcation -- one also finds their proposals have no basis on law.
Others naively claim that there is the rule of law in Eritrea. To sustain their claim, they maintain that Eritrea is ruled by the charter that was adopted by the PFDJ in its congress of 1994. They assert that this is a temporary and transient mechanism. (Heaven only knows how a system that has lasted for about fifteen years can be characterized as an ephemeral and a momentary one.) According to them, the charter is the law of the land. There is no contest on that point. However, from this, they erroneously equate this law of the land with the rule of law.
History of Legal Liberty:
From the legal perspective the history of liberty has progressed through three distinctive and qualitative stages. This progression may not be a one way linear progression in all societies. (At times there are regressions too. That had been the history of the East Europeans during the heydays of socialism.) Still, the general trend over a long period of time is progressive.
· “For much of human history, rulers and law were synonymous -- law was simply the will of the ruler.
· A first step away from such tyranny was the notion of rule by law, including the notion that even a ruler is under the law and should rule by virtue of legal means.
· Democracies went further by establishing the rule of law. Although no society or government system is problem-free, rule of law protects fundamental political, social, and economic rights and reminds us that tyranny and lawlessness are not the only alternatives.” See The Rule of Law
The First Stage, Where the Law of the Land is Arbitrary Edicts and Decrees:
In this stage, there are no rules to speak of. The leader essentially rules through arbitrary edicts and rules. There are no known and predictable rules that bind the leader. The leader and the state are synonymous. In such a system liberty is trashed. The words of the leader are the laws of the land. The living conditions of the people are no better than that of slaves or serfs. For the most part, Eritrea under the PFDJ is currently in such a very primitive stage of liberty.
The Second Stage, Where the Law of the Land is the Rule By Law:
In the second stage, the state is governed and bound by strict laws. The leader has to follow the rules. And mostly these rules are written. That is there are constitutions. These rules become the law of the land. Such a state is characterized as having a system that is governed by the rule by law.
In a system that is governed by the rule by law, though there are constitutions and rules, in real practice there is the absence of some civil liberties. Hence, even barbaric violation of human rights take the cover of legalities and court approvals. The second stage, though much more advanced than the first stage -- where the leader, or Capo, or King is the law --, the state sometimes has little respect for what are generally referred to as negative liberties. The most significant are: respect of freedom of religion, of association, of expression and of movement; respect of property rights; guarantee of the due process of law, such as “the existence of due process of law, for example, the legal concept of innocent until proven guilty; the concept of writ habeas corpus – ‘the right to be brought before a court to determine whether one has been lawfully detained.’” and; the enforcement of contracts and etc. These are rights that are reserved for individuals, and the state is legally prohibited from interfering with.
One can mention Ethiopia and China as two typical examples that have states that are governed by the rule by law. Both nations have constitutions and their leaders can substantiate to all they do to some articles and rules in their constitutions, despite the fact that some of their rules may violate various civil liberties. In short, they have legal covers to what they do. Still, a state that is governed by the rule by law is much better than a state that is not governed by any laws. At least, there are functioning courts. This second stage may enable a nation to move forward to a stage where civil liberties are respected – a period where the rule of law is supreme.
On the other hand, Eritrea is not even in the second stage, for now we might as well forget the rule of law. Worse, the leaders of the PFDJ are not even bound by the charters and rule of their very own organization, hence no known and predictable law of any kind. The leaders of the PFDJ cannot legally substantiate to some of their actions. See the Coup d’état in Eritrea
The Third Stage, Where the Law of the Land is the Rule Of Law:
In the third stage civil liberties are respected and a state that respects civil liberties follows the rule of law. Two typical examples of states that follow the rule of law are the USA and South Africa; in these nations the law of the land is the rule of law.
These civil liberties are also enshrined in the Universal Declaration of Human Rights. These rights are also embedded in the ratified Eritrean constitution; something that the opposition rarely highlights and does all it can to bury it under the rug. I judge the merit of the ratified constitution by its superb stand on civil liberties. If Eritrea were to implement its constitution and strictly abide by its letter and content, for the most part one may rightly conclude that the law of the land in Eritrea is in tune with the rule of law. As a rule of thump, a nation that does not respect the universal declaration of human rights violates the rule of law. This is where Eritrea is now.
Like all theoretical explanations of stages, no phase is pure. Take the USA, for example, for the most part the constitution of the USA was in harmony with the rule of law. Still, there were some major blunders. The very constitution that protected liberties for the majority denied the same rights to the black minority and espoused slavery. This is a violation of the rule of law. It took almost hundred years and the presidency of Lincoln to restore the rule of law regarding the status of African-Americans. “More than 600,000 men died [in a bitter civil war] before the sin of slavery was purged.” Lincoln had to resort back to the declaration of independence where it claimed all men are created equal and not the constitution to have a legal footing in his fight to eradicate slavery. The very constitution of the USA also disenfranchised women for many years until the constitution was to be amended. They used the amendment process to refine their constitution and to be in concord with the rule of law.
This history is also lost among the Eritrean opposition; a group that is not saintly itself and yet has the audacity to demand an impossible perfection from others -- a perfect constitution is a pipedream. The ratified Eritrean constitution has an amendment provision too; another item that the opposition remains to be silent about, since it is easier to reject an entity than improve and develop it which requires a difficult, contemplative and arduous work. (For more insights on the rule of law, please see the books noted below. **)
The Need for a Single Coherent Message:
Some in the opposition emphasize on elections and not the rule of law as highlighted above. Recently, others claim that the problem in Eritrea, irrespective of the current coercive political order, is the dichotomy between the highlanders and the lowlanders, which they believe has disadvantaged the lowlanders. Or to put it differently and bluntly they claim that the highlanders are reaping benefits under the rule of the PFDJ. Nothing is far from the truth. Then they advocate for the Eritrean people to organize along sectarian and religious lines in order to fight for group rights. They categorize the highlanders (read Christians) in one group and the lowlanders (read Muslims) in another group. This so called dichotomy of the highlanders versus the lowlanders is blown up beyond proportions; in this the perpetuators of such half truths are no different than the PFDJ. Needles to say, the PFDJ is as repressive to the highlanders as it is to the lowlanders.
The solution to the problems of Eritrea is the establishment of the rule of law. We have to advocate for constitutional liberalism and the rule of law. Constitutional liberalism is defined as follows:
· “Constitutional liberalism … is not about the procedures for selecting government, but rather government's goals. It refers to the tradition, deep in Western history, that seeks to protect an individual's autonomy and dignity against coercion, whatever the source -- state, church, or society. The term marries two closely connected ideas. It is liberal because it draws on the philosophical strain, beginning with the Greeks, that emphasizes individual liberty. It is constitutional because it rests on the tradition, beginning with the Romans, of the rule of law. Constitutional liberalism developed in Western Europe and the United States as a defense of the individual's right to life and property, and freedom of religion and speech. To secure these rights, it emphasized checks on the power of each branch of government, equality under the law, impartial courts and tribunals, and separation of church and state. Its canonical figures include the poet John Milton, the jurist William Blackstone, statesmen such as Thomas Jefferson and James Madison, and philosophers such as Thomas Hobbes, John Locke, Adam Smith, Baron de Montesquieu, John Stuart Mill, and Isaiah Berlin. In almost all of its variants, constitutional liberalism argues that human beings have certain natural (or "inalienable") rights and that governments must accept a basic law, limiting its own powers, that secures them. Thus in 1215 at Runnymede, England's barons forced the king to abide by the settled and customary law of the land. In the American colonies these laws were made explicit, and in 1638 the town of Hartford adopted the first written constitution in modern history. In the 1970s, Western nations codified standards of behavior for regimes across the globe. The Magna Carta, the Fundamental Orders of Connecticut, the American Constitution, and the Helsinki Final Act are all expressions of constitutional liberalism.” See The Rise of Illiberal Democracy
I often stress that the only document that can effectively unify the Eritrean people is the ratified constitution. This is assuming that it be amended to exclude the state from being the sole owner of all Eritrean land, and to include the official languages of Eritrea. Regarding the other items of the rule of law, the ratified constitution is as good as many constitutions in the world including that of the USA.
The sad part is that we have an opposition that is unable to see something good, if not prefect, albeit not of its own creation in the ratified constitution. It is oblivious to the fact that it is much easier to rally the people inside Eritrea behind the ratified constitution. It is unaware to the fact that the international democratic force can be an effective advocate for the implementation of the constitution. All our grievances be it freedom of the press, religion, association and movement; respect of property rights and due process of law can be handled by a simple message that all Eritreans to the last person can propagate – implement the constitution.
It appears that the outright rejection of the constitution has become a shackle on the neck of the opposition. The rejection of the ratified constitution by many has completely left the opposition paralyzed. It simply does not have a coherent message. Hence the constant and petty squabbling and the non stop reorganizing and splitting. The PFDJ is equipped with a mindset that is engrossed in envy and hatred of educated Eritreans. The opposition should do its best to avoid an affliction of such grave malady. We should celebrate success and great works of Eritreans; and the constitution authored by Dr. Bereket and his colleagues is a work of great acclaim.
Dictatorial regimes eventually crumble down. History teaches us that the fate of the PFDJ will not be any different; if nothing else, the force of its deadweight inertia will be its undoing. When that time comes, the only weapon that the Eritrean people possess to create a secure, united, stable and viable liberal democratic state is the speedy implementation of the ratified constitution. This will be accomplished by the people inside Eritrea. The Diaspora opposition has a choice to speed up or delay this process.
Mogos Tekeste
Notes:
*My earlier posts are compiled in my BlogSpot. The site also provides links to articles that succinctly elucidate the concept of the rule of law and constitutional liberalism. The address is as follows:
** Important books on the rule of law in a descending chronological importance:
1. The Constitution of Liberty, by F. A. Hayek
2. The Open Society and its Enemies, by Karl Popper
3. The Future of Freedom, by Fareed Zakaria
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