Mogos Tekeste
The Awate Team wrote Eritrea's Wasted Decade. I posted my misgivings
on the way the article related the history of the Eritrean-Ethiopian border legal
ruling.
The Awate Team in its reply to my comments challenged
me that I use the term the rule of law non-stop and without fully explaining what
it means. It is true that I am
infatuated with the subject of the Rule of Law. I strongly believe that more
than anything else this is the most crucial ingredient missing in Eritrea. This
missing element is the main stumbling block from creating a stable, prosperous
and liberal democratic society.
I wrote about this very subject on December 2009.
I believe this article is relevant to the current debate.
It appears to me that the Awate Team is confused
between three terms and how they relate to a particular political system – (1)
The Law of the Land, (2) The Rule By Law, and (3) The Rule Of Law. (These are
defined in the body of the text below.)
As aside, slavery, disenfranchisement of women,
and the apartheid system were the laws of the land (the fist two in the USA and
the last one in South Africa.) This enforcement of oppression of the worst kind
using laws is generally categorized as the rule by law. These bad laws are antagonistic
to the rule of law. The reason apartheid is abolished is that it violated the
rule of law. Through the amendment process the USA abolished slavery and
granted women equality. The reason again is to make the USA constitution
conform to the rule of law.
The Awate Team also accuses me that I never use
the word justice. As far as the word is concerned, I have no defense, I am
guilty as charged. I also confess on my own that I rarely use the words –
democracy and multiparty elections too. This is a deliberate plan on my part,
since these three terms expressed as a stand alone are not coherent and if not
handled properly give rise to divisiveness in a society.
Democracy and justice, whatever they mean since
they are some of the most abused terms, along with elections bring about chaos,
anarchy and despotism in a nation if the necessary prerequisite -- the rule of
law -- is not fulfilled. Just examine very closely on what is going on in Iraq,
Afghanistan, Syria and Egypt. The ethnic and religious groups are at each others
throats', as all typical tribal societies that have not yet transitioned to a
liberal democratic society behave. If things in the Eritrean opposition do not
improve drastically it is within the realm of possibility that the above
mentioned nations in a weird way display what is awaiting for us in future
Eritrea. (For more insights see: (1) Francis Fukuyama, the Origins of Political
Order; Chapter 17; The origins of the rule of law; and (2) Why Nations Fail, by
Daron Acemoglu and James Robinson.)
If one takes justice, we have the justice of the socialists
and collectivists. Under a term called “social justice,” collectivists of all
stripes expropriate private property; abolish middlemen and traders that are
essential to a good functioning market economy, and they monopolize all economic
activities. Collectivists disallow private ownership of private land, and decree that land belongs to the state; they go against the principle that "private property is the foundation of liberty." In nations such as Eritrea, where the capital market is undeveloped, the primary wealth of the people is land. And yet land is taken away from the people by the state. This draconian measure leaves the people very poor and worse makes the people a slave of the state. The excuse of the state is in order to have “an equitable distribution of
wealth.” This does not conform to the rule of law. The “social justice” term and ideology is
a favorite one of the PFDJ.
Under a term called Islamic justice, the Taliban and
other look alike in Afghanistan, Saudi Arabia, and Pakistan chop off the hands
of thieves, stone to death female ( not male) adulteress, decree fatwas on the head of individuals who speak their minds and voice their opinions. All these actions are antithetical
to the rule of law. In short, these are "cruel and unusual" punishment.
And what is the name of the party in power in
Eritrea? You guessed it – People’s Front for Justice and Democracy -- again the
abused terms justice and democracy
Unlike the terms justice and democracy, the
definition of the rule of law is somewhat precise, and this is unless one wants
to play dumb on purpose. Here is a definition from the United Nations.
“The Secretary-General
defines the rule of law as: a principle of governance in which all persons,
institutions and entities, public and private, including the State itself, are
accountable to laws that are publicly promulgated, equally enforced and
independently adjudicated, and which are consistent with international human
rights norms and standards. It requires, as well, measures to ensure adherence
to the principles of supremacy of law, equality before the law, accountability to
the law, fairness in the application of the law, separation of powers,
participation in decision-making, legal certainty, avoidance of arbitrariness
and procedural and legal transparency.’’
The rule of law as defined above already
incorporates whatever good one wants to associate with “justice.” When I advocate for a rule of law, in a way I
am advocating for something good that one associates with justice. At a
conceptual level, this is my defense as far as justice is concerned.
The article pasted below was published at
Asmarino on December 2009. It is my full response to the Awate Team. Thanks.
____________________________________________________________________________
The Rule of Law in Eritrea
Mogos
Tekeste
December
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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