Birtukan Mideksa and the law

By Mesfin Woldemariam / July 14, 2009
Proclamation No. 395/2004, a proclamation to provide for the procedure of granting Pardon Article 12 states the following:

12. Application for Pardon

1) Any person who is convicted and sentenced by a court may, unless the granting of pardon is prohibited by law, apply for pardon in person or through his spouse, close relatives, representative or lawyer.

  1. Neither Birtukan Mideksa nor her collegues who were imprisoned and eventually sentenced for life imprisonment had follwed the procedure described in the Article of the Proclamation quoted above. This is an irrefutable fact.

  2. The statement that Birtukan is supposed to have made while she was visiting Sweden as far as I could verify from people who heard her directly, and from evidence of audio recording is completely consistent with what is stated in (1).

The Proclamation further provides:

2) Without prejudice to the provision hereinabove, the Ministry of Justice and the Federal prison commission may apply for pardon for persons entitled to it. Where the offices decides to apply for pardon, it shall deliver a copy of the application letter to the person in whose favour it is to be made.

  1. Neither Birtukan nor her imprisoned colleagues received any copy of the application letter either from the Ministry of Justice or the Federal Prison Commission.

  2. The statement that Birtukan made is absolutely consistent with the facts as stated above.

Birtukan mideksa, a lawyer by training, started her career as a judge in one of the courts in Addis Abeba. As luck would have it, Siyye Abraha was detained in the notorious Ma’ekelawi and was brought to her court on a charge of corruption. Siyye was no ordinary man. He was one of the top leaders of the TPLF. He was Minister of Defense. He was arrested in 1992 with all his brothers and one sister. Corruption had been taken as a family affair. Siyye was aquitted after six years in prison.

When Judge Birtukan Mideksa heard the charges against Siyye she ruled that he should be released on bail immediately. The police rearrested him outside the court, very much like what the South African police were doing during the apartheid era. Judge Birtukan insisted on the release of Siyye. The regime that failed to cow down the young judge felt obliged to twist the law. It passed a piece of legislation within twenty-four hours barring bail for suspected corruption charges, making the new law operate retroactively.

Whatever the consequences Birtukan became famous in a country where people were extremely eager to see a courageous judge. But precisely because she took the law seriously and courageously, she became unexpectedly famous as the judge who stood stubbornly for the rule of law. She could not pursue her career on the bench. She became a lawyer instead.

So when Birtukan joined politics in 2005 she was already a famous person. She became the First Vice President of CUD (Coalition for Unity and Democracy), and later, when CUD broke up she was elected as the President of the new party, UDJ, (Unity for Democracy and Justice). She was serving in this capacity when the regime, which already knew that Birtukan is a tough nut to crack, hurriedly sent her back to jail.

What did Birtukan do to be sent to jail? NOTHING! Moreover, the Proclamation (No.395/2004) specifies the reasons for the revocation of pardon as follows:--

16. Revocation of Pardon

  1. A decision for pardon may be revoked for sufficient reasons before it is delivered and accepted by the grantee.

  2. A pardon delivered to and accepted by the grantee shall be of no effect on grounds of fraud or deceit.

  3. The decision of pardon shall be of no effect if it is known that the condition for its granting has not been met.

  4. When the decision of pardon is rendered ineffective under sections (2) or (3) of this Article, the Board shall order the return of the grantee to the place where he was before he obtained it.

Obviuosly, none of the reasons stated in 1/, 2/ and 3/ apply to Birtukan. She is a person who has a very deep respect for the law. There cannot be any suspicion of fraud or deceit. She has certainly not violated any condition of the pardon she received.

Even if there were any valid legal reason for revoking the pardon, the provision provided in the Proclamation has not been met.

17. Procedure Required for Revocation

  1. When a cause for revocation of pardon exists, the grantee shall be furnished with a written notice of such cause in a language he understands clearly

  2. The grantee may, within twenty days from the day of receipt of such notice, submit his reply against it.

Neither of these two procedures were applied in accordance with the law in the case of Birtukan Mideksa.

Furthermore, the fact that she is held in solitary confinement and the fact that she is not allowed any visitors other than her mother and her four-year old daughter are additional extra-judicial measures taken against Birtukan. Even after the court ruled that she, like all the other prisoners, has a right to visitors the prison authorities have not yet complied with the ruling.

When the law becomes an expedient instrument of policy, it ceases to be just; it ceases to be predictable; it ceases to be a factor of stability. The law must be equally useful to all citizens who have a right to rely on the law in their daily lives. The law is the foundation for social, political and economic stability.

The writer, Professor Mesfin Woldemariam, is Ethiopia's founding father of the Ethiopian Human Rights Council (EHRCO) and one of the leaders of the opposition Unity for Democracy and Justice (UDJ).