In defense of Birtukan Mideksa

Can’t Beat Up the Big Boys? Beat on the Woman and Old Man!

By Prof Alemayehu G. Mariam / January 5, 2009

If You Can’t Beat Up the Big Boys…

Bertukan Mideksa
"The re-arrest of Birtukan Midekssa magnifies the violation of the rule of law prevailing in our country."UDJ
If you can’t beat up the big boys in Mogadishu, beat on the woman and the old man in Addis Ababa!

That happened last week in Ethiopia. Unity for Democracy and Justice Party (UDJP) President Ms. Bertukan Mideksa was strong-armed, manhandled and whisked away to the infamous Kality prison. In a VOA interview, Professor Mesfin Woldemariam, the aging human rights lion of Ethiopia, gave eyewitness testimony. On December 29, Prof. Mesfin was standing with Pastor Daniel and President Birtukan outside of Pastor Daniel’s office when four unmarked vehicles stormed on the scene. Approximately 10 unidentified armed men (thugs) exited the vehicles and violently grabbed President Birtukan and forcibly dragged her into their vehicle. Professor Mesfin attempted to reason with the abductors explaining that it was unnecessary to rough up President Birtukan as a simple summons would be enough to command her appearance in a court of law. At that point, the crew of thugs tongue-lashed Prof. Mesfin with a torrent of insults. One of the thugs assaulted the nearly 80-year old professor savagely with the butt of his rifle almost knocking him to the ground. Prof. Mesfin suffered blunt force trauma injury to his abdominal area in the unprovoked assault. He was rushed for medical assistance, and reports indicate that he is undergoing extensive tests to determine the extent of his injury. (It is to be remembered that Prof. Mesfin underwent major surgery in India a little over a year ago.) President Birtukan’s driver, Ato Abdurahman Ahmed, was also beaten mercilessly by the thugs.

Zenawi’s Ultimatum and Mr. Hyena…

There is an old Ethiopian proverb which in translation says, “Oh, Mr. Hyena, don't give me excuse to eat me.” (Aya jibo sata mehagne blagne.) Why is Zenawi resorting to such thuggish tactics against President Birtukan? And Prof. Mesfin? And the UDJP? Is he trying to create a convenient distraction from his devastating defeat in Somalia? Is he trying to get a little international attention? Is he so afraid of UDJP -- which recently turned out several thousand supporters to its meeting -- that he had to lash out impulsively even against those who are trying their best to play by the rules of his game? Or is he just manifesting “hubristic syndrome”, an incurable affliction that drives those drunk with absolute power to a point of madness?

What really happened?

According to President Birtukan,

On December 10, 2008 the Federal Police commissioner sent two officers of the District 12 Police to ask me to go to his office, I went to his office thinking that he probably wanted to talk to me about our Unity Party. However, when he told me the reason I was summoned to his office was related to the pardon, the first question I asked him was what authority the police have in relation to this issue. But his response was accompanied with a smile of surprise and said this is not an academic discussion and it is better for you to stop this kind of question. But what they found to be funny and perplexing is something great that I will forever live for, stand for, and sometimes get jailed and released for – it is the rule of law and abiding by the constitution… On December 24, 2008 he summoned me to his office again through a messenger but without a legal warrant. But when I received a legal warrant in the afternoon of the same day, I did not waste a minute to go to his office. What awaited me at the Commissioner’s office and what was stated in the warrant were very different. Instead of asking me questions as stated in the warrant, what the Commissioner did was to give me a warning that sounded like an order. He said that unless I retract the statement I made in Sweden within three days, the government will remove the pardon and lock me in jail.” 1 (Italics added.)

Subsequently, the so-called Justice Ministry issued a statement: “The government granted pardon to Birtukan and her fellow CUD leaders as per their own request. The pardon granted to Birtukan is now revoked since she failed to annul her denial, though she was repeatedly requested to do so. As per the article 16/4 of the bill of pardon, Birtukan (was) arrested and began serving life as of 29 December 2008.”

President Birtukan’s Response to Zenawi’s Ultimatum

President Birtukan in her usual meticulous, polished and gracious style laid out her response to Zenawi’s zany ultimatum.4 She affirmed that she has never denied asking for pardon or receiving it. “As one of the prisoners I had indeed signed the document, a fact which I have never denied. I have asked forgiveness through the elders by signing on the document dated June 18, 2006. This is a fact that I cannot change even if I want to.” [See fn. [1, 2]] She provided a comprehensive account of the events and process that led to the request for pardon and its issuance by the “president” of Ethiopia. She stated that the Kality prisoners of conscience agreed to discuss a resolution of their incarceration by means of “pardon” for the singular purpose of serving the greater good of harmony and reconciliation in Ethiopia after the post-election events of 2005. Both the prisoners and Zenawi wanted to rise above the lingering bitterness, recrimination and accusations and come to terms so that the country can move forward. The elders (shimagles) worked hard as intermediaries to find middle ground between the Kality prisoners and the “government”. They wanted both sides to ask forgiveness from the people for the post-election events and move forward in the spirit of forgiveness and reconciliation.

Months of negotiations for a pardon followed under the auspices of the elders; and Zenawi was a direct participant in all phases of the negotiations. The elders presented various proposals which were agreed to by the prisoners and the “government”. For instance, “the government agreed to guarantee that it will start again to respect the country’s constitution and to compensate citizens and families who suffered due to the violence following the 2005 election.” But later the “government” rejected that and focused only on the release of the prisoners. The “government” had also agreed that “all prisoners who were jailed throughout the country due to issues linked to CUD will be released without any precondition; direct political discussion between the government and the former leaders of CUD will resume; and that leaders of the party will continue with the work of the party without any limitations.” The “government” also discarded that agreement. Ultimately, one proposition was left on the table: “[The] Prime Minster had said: ‘If this document is signed, using my executive power I will make sure that the charges be dropped.’”

Regarding the patently false allegation that she had denied receiving a pardon, President Birtukan provided elaboration. In her public statements all she said was that the pardon she and her colleagues received had “complex features” in it which involved negotiations and compromises. Their pardon was not the same as the ordinary pardon routinely processed through the prison warden’s pardon committee and the pardon board. Neither President Birtukan nor any of the other pardon grantees took the ordinary and routine pardon application process by completing the required a 10-page pardon application. Their pardon request was processed by extraordinary means involving the elders and Zenawi himself. In fact, the pardon request process was so extraordinary that they were not allowed to submit their pardon request letter to the pardon board directly by themselves, their authorized agents or legal representatives.

Rather, the elders took their pardon request letter, prepared their own redacted version of it and submitted it to Zenawi who in turn sent it to the pardon board. (Technically and according to the law, it could be argued that there was no “pardon” as the prisoners did not make the pardon request on their own, by their legal representatives or other formally authorized agents as would be the mandatory requirement in the ordinary pardon process. Obviously, Zenawi did not have legal capacity or standing to act as their legal representative or agent before the pardon board.) Moreover, President Birtukan explained that in the pardon granted to them Zenawi failed to follow the regular process which produces a pardon only after a court judgment had been entered.

President Birtukan explained:

According to the law, the person who can submit an appeal for clemency is the concerned person or his/her lawyer or family members but it is not the Prime Minister. The law also stipulates that such applications could be submitted only after the court process has been completed and a verdict has been rendered. In our case since from the start we did not have an intention to conclude the case with asking for forgiveness, the document was signed to the elders before the court passed its verdict. Therefore, based on this truth I have not asked for forgiveness within what the law stipulates. Yet I have not denied signing the document which the elders cajoled us into signing on June 22, 2006 for the sake of reconciliation. Thus, how is it to be said that I have signed this document and I have not denied the content of the document constitute a crime? Where is the mistake?... And what I said on this topic while traveling abroad was exactly explaining and elaborating on this and it had no other form. I suspect that perhaps what I said was misinterpreted.1

President Birtukan did not believe her arrest and incarceration has anything to do with what she said or did not say about the pardon. She understood it to be a calculated political act intended to intimidate and incapacitate all peaceful opposition in the country:

In my opinion the reason why all these illegal intimidations and warnings are aimed at me have nothing to do with playing with words or inaccurate statements or rules broken. The message is clear and this message is not only for me but also for all who are active in the peaceful struggle. A peaceful and law-abiding political struggle can be conducted only within the limits the ruling party and individuals set and not according to what the constitution allows. And for me it is extremely difficult to accept this.

Prof. Mesfin’s Corroboration of President Birtukan’s Statement

Prof. Mesfin fully corroborated President Birtukan’s response and provided additional details on the pardon negotiation process. In his second VOA interview following President Birtukan’s arrest, Prof. Mesfin stated that the Kality prisoners never initiated the pardon request process. The whole effort to resolve the matter through negotiations and pardon was first initiated by the well-known scholar on Ethiopia, Prof. Donald Levine, Professor Emeritus, University of Chicago. Prof. Levine had spoken to Zenawi about the possibility of a pardon for the Kality prisoners and subsequently visited them in Kality prison. Prof. Levine’s efforts did not bear fruit apparently because Zenawi did not show further interest. Though the pardon effort was unsuccessful, Prof. Mesfin gave credit to Prof. Levine for his role in persuading Zenawi to amend the charge of genocide against them to attempted genocide. It is Prof. Mesfin’s impression that Prof. Levine was deeply offended by the charge of genocide because such an absurd charge against them would be tantamount to trivialization of the real and terrible genocides that have taken place in history, including the Jewish Holocaust.

On the heels of Prof. Levine’s efforts came efforts led by Prof. Isaac Ephrem and his Coalition of Elders. Prof. Ephrem proposed to the prisoners that he would like to try and resolve the issues related to their imprisonment by the traditional method of elder mediation (shimgelina) and secure their release. He began a “shuttle” diplomacy of sorts exchanging proposals between them and the “government” (Zenawi). After many months of discussions and negotiations, the matter boiled down to the single issue of the prisoners requesting a pardon and Zenawi using his “executive powers” to quash the court case and granting it to them. In the final act of the negotiations, Prof. Ephrem informed the prisoners that he and the elders committee will accept their pardon request letter, but instead of presenting their original letter to Zenawi, the committee will prepare its own version and submit it to him.

Corroboration of President Birtukan’s Statements by Prof. Ephrem, Dr. Haileselassie and “Ambassador” Assefa

President Birtukan’s statements about the pardon are also corroborated fully by Prof. Ephrem Isaac, (chief pardon mediator and chairman of the Coalition of Elders which included “25 of the most prominent members of Ethiopian society”), Dr. Hailesslassie Belay, a member of that committee and Zenawi’s U.S. “Ambassador” Samuel Assefa.

Prof. Ephrem gave the following explanation to the Washington Post on July 31, 2007, on the process that led to the release of the Kality prisoners:

Before the courts were at all involved, the government did come to a position where they would be willing to withdraw the case. There would be no court process. But while we were trying to mediate and facilitate the agreement time passed and then the judge felt they had to keep moving forward. So then the judge got involved in it, and then once the judge got involved in it then the government could no longer do what was originally promised to us, which is to withdraw the case,” says Ephraim. (Italics added.)

Once the defendants were sentenced, he says, the elders were free to once again negotiate with the government about releasing the detainees. The detainees eventually signed a document accepting some of the blame for the post-election violence.

Prof. Ephrem statements also confirm President Birtukan’s contention that the pardon she and the others received was granted following long and arduous haggling and negotiations over the wording of the pardon request letter. One of the sticking points which prolonged the negotiations had to do with Zenawi’s insistence on some kind of amnesty of his own for the election violence, and the Kinijit leaders steadfastly refusing to apologize.

[Prof. Ephrem told the Washington Post] ‘No document is acceptable to both sides. We had to shuttle back and forth to look at the document and see what words are acceptable to the government and what words are acceptable to the detainees. And that really required a lot of skill and a lot of elders participating’ he says. (Italics added.)

[Dr. Hailesslassie Belay is another member of the elders committee who took part in the negotiations.] [He was quoted by the Post.] ‘The wording was very, very difficult because what the detainees wanted the government did not want. This was a very big problem,’ he says.

Ephraim Isaac says the pardons stem from Ethiopian tradition. ‘We were operating, you see, on the basis that in our tradition, we have many, many examples of people in conflict coming to some agreement because they respect the concept of spiritual forgiveness. Ethiopians are a very spiritual people,’ he says. (Italics added.)

At the time of the release of the Kality prisoners, “Ambassador” Samuel Assefa confirmed with great pride Prof. Ephrem’s efforts and the fact that the pardon granted was a “result of an independent process” (not a court or an ordinary pardon process) involving formerly “marginalized elders”. In his press statement Assefa said:

I am hopeful that my country now can put this issue behind us and focus on developing our economy, strengthening our institutions of government and improving the lives of all Ethiopians…. This decision was the result of an independent process conducted in accordance with the democratic Constitution and laws of Ethiopia. It was carried out by Ethiopians, through our own national institutions, and without the need for international intervention….Marginalized under the former communist Derg regime, the Elders represent a needed and welcome return to traditional Ethiopian values of tolerance, moderation and civility. I am optimistic that their efforts will support mutual respect between diverse political opinions and cultural identities not only in Ethiopia but in Ethiopian communities around the world. (Italics added.)

It is an irrefutable fact that the pardon granted to President Birtukan and her colleagues in July, 2007 was the result of negotiations and word-smithing by the elders that took months. It was not a pardon granted in the ordinary pardon process. It should be crystal clear to the world that President Birtukan is re-imprisoned for saying the exact same thing that Prof. Ephrem, Dr. Haileselassie and “Ambassador” Assefa have said publicly and in their official capacities since July 2007.

The bogus nature of the excuse used to jail President Birtukan should also be seen in context. President Birtukan did not make her statement on the negotiated pardon for the first time in Stockholm. She and the rest of the prisoners have made similar statements numerous times since the day they left the stinking Kality prison. It is common knowledge that one of the very first public statements they made after they arrived in North America in September 2007 was to thank the elders for their role in negotiating a pardon which led to their release. For Zenawi to wait well over a year and charge President Birtukan for pardon denial smacks of the proverbial “Aya jibo.” But there is a very simple legal point for any fair-minded person to consider: Zenawi’s allegation is that President Birtukan made a statement denying her pardon in Stockholm, Sweden. What legal right, jurisdiction, authority, license, prerogative or justification does he have to charge her for an alleged criminal offense or unlawful act that occurred wholly and entirely in a sovereign European country?

Where is the Evidence of President Birtukan’s Wrongdoing?

Zenawi’s claim that President Birtukan has denied receiving a “pardon” in her recent public statements in Europe is a boldfaced lie! He has not produced a single word, a single phrase or a single sentence of President Birtukan’s statement as proof of his claim that she has denied receiving a pardon. He has presented NO EVIDENCE WHATSOVER of any wrongdoing on her part!

But assuming for the sake of argument that President Birtukan had actually made the alleged statements denying the pardon, how is that a crime? Where in the “criminal law” of Ethiopia does it say that a person who expresses an opinion about his or her prior condition of imprisonment, sentence or release from prison is a punishable offense? Even a first year law student knows that a statement of legal significance can not be punished unless that statement is made under oath and penalty of perjury. Where is the evidence that President Birtukan made a prosecutable perjured statement? Even if there is proof that she had expressed an opinion denying the pardon, SO WHAT! Her opinion does not in any way override the legal fact of her signature on the pardon request letter.) On the other hand, where in the instrument of pardon [See pardon request letter in fn. 2] is there a precondition stated prohibiting President Birtukan from expressing an opinion about the terms of her incarceration, release or pardon she received? Where in the pardon instrument did she agree or affirm that if she ever denied having received a pardon, she will be remanded to custody to serve out her life term? Zenawi should know that there is absolutely no evidence and no legal basis (even by the ridiculous kangaroo court standards) to arrest and detain President Birtukan.

But let’s take the analysis further. Again, assuming for the sake of argument that Zenawi is right in his allegations about President’s Birtukan’s denial of the pardon, can he direct his police commissioner to demand a 3-day response from her during a stationhouse interrogation? He can not because there is a lawful process prescribed for proper pardon revocation as set forth in Proclamation 395/1996, Arts. 16 &17. Art. 16 authorizes revocation of a pardon if the pardon was originally obtained by fraud or other illegal means. Alternatively, it may be revoked if there is a violation of terms, conditions or preconditions originally specified in the pardon instrument. But before a revocation can be made, Article 17, guarantee due process, which at the threshold level requires service of notice of the pardon revocation accusation in writing and a response within 20 days of service of process. By summarily revoking President Birtukan’s pardon, Zenawi has plainly failed to comply with the requirements of his own law!

Let us further assume that there is a clause or term that qualifies as a precondition in the pardon granted to the Kality prisoners [See fn. 2]. On can determine two such “preconditions” from the pardon request letter: 1) that the pardon recipients refrain from engaging in activities and conduct that are illegal and 2) the pardon-recipients conform their conduct to the requirements of the “constitution” and the “laws”. It is a fact established in Zenawi’s allegation that President Birtukan has not engaged in any illegal activities (only made a statement allegedly denying receiving a pardon) ; and her organization is authorized by “law” and operates within the “law”. She is not a suspect and is not accused of engaging in any illegal or improper activities. Of the utmost legal significance is the fact that she is not accused of violating a specific and clearly identified condition, precondition, provision, stipulation or term of her pardon or any other crime. She is re-imprisoned and is serving a life term for expressing an opinion. An opinion!

The fact of the matter is that Zenawi can not have his legal cake and eat it too. Either he has to follow his own law and act consistent with the pardon revocation procedures if he insists that President Birtukan has violated the terms of her pardon, improperly obtained it or has violated a material condition in it; or admit, as he must logically and factually, that the President and her colleagues were granted extraordinary pardons which resulted from a negotiated process. (The third option is simply to do the usual -- play a game of solitaire self-delusion!)

More on the Looney Laws of Absurd-istan

Zenawi wants the world to believe that he has jailed President Birtukan for good cause. The fact of the matter is that he has jailed President Birtukan arbitrarily and in flagrant violation of his own constitution. Here is the evidence:

Article 17 of Zenawi’s constitution prohibits all arbitrary arrests: “No one shall be deprived of his liberty except in accordance with such procedures as are laid down by law. 2. No one shall be arrested or detained without being charged or convicted of a crime except in accordance with such procedures as are laid down by law.” Art. 19, section 1 provides that “Anyone arrested on criminal charges shall have the right to be informed promptly and in detail, in a language which he understands, of the nature and cause of the charge against him.” Article 20, section 2 reinforces Art. 19, “Everyone charged with an offence shall be adequately informed in writing of the charges brought against him.” Section 3 further provides, “Everyone shall have the right to be brought before a court of law within 48 hours after his arrest… He shall have the right to be specifically informed that there is sufficient cause for his arrest as soon as he appears in court.”

President Birtukan was arrested without a criminal charge or any other charge. In fact, she was arrested and jailed for unknown crime(s) without a warrant by unknown regime agents (thugs) not in uniform. She has not been served “promptly”, or otherwise served “in writing of the charges” against her. She was arrested and summarily ordered to serve out her life sentence without the opportunity to confront her accusers; or call witnesses on her behalf; or challenge the evidence presented against her or… Under Art. 19, sec. 5, President Birtukan is “entitled to [her] inalienable right of habeas corpus where the police officers or the public prosecutor fails to bring the accused to court within the time limit provided by law…” and must be discharged from illegal custody forthwith. Under sec. 6, she is also entitled to “be released on bail.” As a matter of law, with respect to any allegations of pardon violation, President Birtukan can be sanctioned ONLY after she has been given her due process rights as set forth in the “constitution” and Proclamation 395/1996, Arts. 16 &17 (discussed above). The indisputable fact is that Zenawi has imprisoned President Birtukan in flagrant, egregious, outrageous and shameful violation of his own constitution!

The Legal Facts About the So-called Pardon of the Kality Prisoners of Conscience: Let’s Get Technical!

Since Zenawi wants to reopen the “pardon” issue by jailing President Birtukan, one must challenge the very legal foundation of the pardon and his regime’s legal/constitutional authority to grant or withdraw it. In an opinion piece entitled, “Of Lies, Promised Joy, “Shimagles”, Pardons and Bananas (August 6, 2007), I presented the following analysis demonstrating the farcical nature of the so-called pardon.[4]:

The Kality Prisoners of Conscience Were Pardoned After They Admitted Criminal Wrongdoing for Acts of Treason, Inciting Violence and Attempt to Overthrow the Government.

The [regime’s] assertion that the prisoners of conscience were pardoned after admitting criminal wrongdoing is patently false. They never admitted criminal wrongdoing for anything.

In their terse letter request dated Sene 15, 1999 (June 22, 2007) to Zenawi, [See fn. 2] they: 1) acknowledged their attempt to change the constitutionally authorized governmental bodies was a mistake, 2) took individual and collective responsibility for those mistakes, 3) confirmed that they will not engage in similar (mistaken) activities in the future, 4) affirmed their acceptance of the lawful authority of governmental bodies, and 5) asked the forgiveness (ye-kirta) of the government and people of Ethiopia for the mistakes they had committed. In the short letter, the word “mistake” (seh-tet) is mentioned 4 times, obviously to underscore the fact that they were making no admissions of any criminal wrongdoing, only taking moral responsibility. It should be underscored that for their mistakes (not crimes), they asked “forgiveness”. They never asked for a pardon (meh-ret). “Forgiveness” is an act of absolution, a way of excusing a mistake. “Pardon” is a political act that mitigates criminal culpability and abates the punishment.

There are a number of incontrovertible legal defects in the alleged admission of criminal wrongdoing. First, if the prisoners’ letter request is deemed to be the equivalent of a confession of criminal culpability, as is suggested by Zenawi and company, then the admitted “mistakes” are the legal equivalents of crimes; and the prisoners were convicted and pardoned for making “mistakes”. We can obtain this result from mere semantic analysis of Art. 229 (Pardons) of the Ethiopian Criminal Code, which authorizes pardons only for “criminals” and criminal wrongdoing, and not for making mistakes.

This presents interesting legal questions: Whether Zenawi or his president could legally pardon a “mistake” (however egregious) under their law? And if they did pardon someone for a “mistake”, whether that pardon has any legal effect or consequence? And if the answer to the preceding two questions is negative, whether they have indeed acted ultra vires (beyond the scope of their legal authority) and violated their own constitution….

Second, if we accept, for the sake of argument that “mistakes are crimes”, then the Kality prisoners of conscience could never have voluntarily admitted these “mistakes-are-crimes” crimes because they are factually innocent. After a thorough and exhaustive investigation, the Inquiry Commission, established by Zenawi and his parliament, concluded that none of the killings or destruction of property in the post-2005 election was caused directly or indirectly by any acts or omissions of the prisoners of conscience.

As Commission Chair Judge Frehiwot Samuel stated in his Congressional presentation:

‘[T]there was no property destroyed by the protestors. There was not a single protester who was armed with a gun or a hand grenade (as reported by the government-controlled media that some of the protesters were armed with guns and bombs). The Commission members agreed that the shots fired by government forces were not to disperse the crowd of protesters but to kill by targeting the head and chest of the protester. For this reason, it was clear that the law was violated, and government forces had used excessive force.’

In light of the Commission’s findings, is it possible to “pardon” persons who are factually innocent of criminal wrongdoing?

Third, assuming the prisoners of conscience were guilty of “mistakes-as-crimes”, the letter statement they signed collectively could not possibly be competent proof of legal admission of criminal wrongdoing because it lacks any indicia of reliability. There is little doubt that they signed the letter under “oppression”, a legal term which indicates the existence of various coercive circumstances at the time of the admission or signing of the incriminatory statement, such as “torture, inhuman or degrading treatment, intimidation, inducements, prolonged confinement, deprivation, the use of or threat of violence and burdensome and harsh exercise of authority”.

No one can argue with a straight face that the prisoners signed the statement of admission (letter of “forgiveness” to Zenawi) of mistakes freely, voluntarily and without physical or mental duress. It was unquestionably an involuntary act on their part. The preposterous nature of the this so-called admission of wrongdoing could best be understood in light of the universal rule of confessions in civilized justice systems, which requires the prosecution (government) to prove proving beyond a reasonable doubt that “oppressive” conditions did NOT exist at the time of the signing or admission of the incriminating statement by a suspect or defendant. Can Zenawi prove beyond a reasonable doubt that the letter admission signed by the 38 prisoners was without legal “oppression” or other heavy-handed means? Suffice it to say that Ato Hailu Shawul dismissed the whole charade shortly after he left the gates of Kality prison stating that there was no reason to apologize (or admit wrongdoing) for “normal political protest”.

Fourth, there is a discrepancy in the application of the correct legal remedy. The issue of clemency for criminal offenses is addressed under two successive sections of the Ethiopian Criminal Code, namely Art. 229 (pardon) and 230 (amnesty). Assuming that the prisoners of conscience had genuinely admitted guilt for whatever offenses, the proper instrument of clemency should have been amnesty under Article 230, instead of pardon under Article 229. Simple semantic analysis of the code sections shows an article 229 pardon is appropriate in individual criminal cases, as clearly indicated in subsection (2). Amnesty under Article 230, subsection (1) is appropriate for “certain crimes or certain classes of criminals”. [See also Proclamation 395/1996, Arts. 16 &17, discussed above.]

The Kality prisoners were allegedly a certain class of “political criminals” who had committed “certain (political) crimes” against the state. These “criminals” took individual and collective responsibility for their “crimes” on a single document [that is the letter to Zenawi]. They should have been granted amnesty. But it appears neither Zenawi nor his lawyers seem to have the legal sophistication to discern the constructional differences between Articles 229 and 230.

The foregoing obtains regardless of other superseding legislative acts. On a technical point, the amnesty provision of Art. 230 would be meaningless and superfluously redundant if it meant exactly the same thing as Article 229. Simply stated, there is (ought to be) a legal distinction between pardon (Art. 229) and amnesty (Art. 230). This would be consistent with the principle of in pari materia, [interpret a statute consistent with other similar statutes] a basic canon of statutory construction in the laws of all civilized governments.

Fifth, since the legal basis for the pardon is the prisoners’ admission of mistakes, as demonstrated above, then the entire set of charges, the 20-month prosecution and conviction are illegal and unconstitutional because there are no such crimes as “mistake to overthrow government, commit treason or incite violence” under the Criminal Code.

Sixth, and most importantly, the “evidence” of criminal wrongdoing presented in the Kangaroo Kourt against the prisoners of conscience consisted of perjured testimony, fabricated evidence, doctored audio and video tapes and documents. It can not be the basis for a just and lawful conviction, nor can that “evidence” be the basis for a legally valid confession and the factual predicate for the grant of “pardon”.

Back to the Basic Questions

Why is Zenawi resorting to such thuggish tactics against President Birtukan? Is he trying to create a distraction from his Somalia debacle? Is he trying to generate international attention and make himself relevant? Is he afraid of the UDJP? Or is he just acting from his affliction of the “hubristic syndrome”?

It is logical to conclude that the primary reason President Birtukan is arrested now is because Zenawi does not want people to talk about his monumental defeat in Somalia and his imminent withdrawal. He said recently that he will withdraw his troops from Somalia by the end of December, 2008, almost exactly two years to the day of his initial invasion. Three days before his official departure from Somalia he arrests Birtukan. Why? The answer is simple: He wants to distract attention. He wants people to talk about Birtukan’s arrest instead of his devastating defeat at the hands of Somali fighters. That is it!

But what happened in Somalia? Zenawi lost the war of aggression. The Somalis won the war of liberation. That’s it! So, we are back to the old Ethiopian proverb: “Oh, Mr. Hyena, don't give me excuses to eat me.” (Aya jibo sata mehagne blagne.)

On A Personal Note…

I was honored and privileged to have met Birtukan and a number of her colleagues when she led the Kinijit delegation to North America in September, 2007. That was the very first time I met her and her colleagues in the delegation. At the time I wrote the following about my first impressions [4]:

… As I stood in the [airport] reception line and looked into the countless hopeful eyes in the crowd, I thought about the day. “What a glorious day the Lord has made!”, I thought to myself. I was overjoyed. A lot of things were racing through my mind. I tried to read the mood of the huge crowd, in a sort of detached way. But I couldn’t. The atmosphere was too electrifying. People hugging, kissing, embracing, singing and congratulating each other, unstoppably.

I felt like I was at huge family reunion. And there were the relatives I knew, and a whole boatload of distant cousins, and relatives and neighbors and their uncles and grandmothers I did not know. But they had all showed up for the reunion. It did not matter.

Then I thought of all the people in the crowd. I asked myself how many of them knew these leaders. I have never met any one of them before, at least in person. But I did know them. Really. I knew them through the story of their suffering. I spoke to them while they sat in the Zenawi’s dingy Kality prison. Oh, yes, I knew them as I followed their story in Kangaroo court. I knew them when they faced bogus criminal charges brought against them by a bogus prosecutor in front of bogus judges. No doubt about it, I knew them well. We just hadn’t met in person…

They took it all in stride. They were happy, but I think they had the surprise of their lives. I doubt they could have imagined such a huge crowd, such an outpouring of love, respect and honor waiting for them. In America. At Dulles Airport…

But the crowd would not leave them alone. They followed them outside the terminal. They sang for them. They assembled in the parking lot. They sang some more. They followed them on the highways, miles and miles of cars lined up in two lanes. Young people flashing the “V” sign as they sped down the highway, calling out their names and thanking them. “We love you Birtukan. Thanks Bre. Thanks, Dr. Hailu, Eng. Gizachew, Ato Brook. They followed them to the Washington Mall. And to the Mayflower Hotel. They just couldn’t get enough of them. I am sure by the end of the day “their cups must have runneth over.”

As we headed down the highway to the hotel, we started chatting. I felt like I had known them for a long time. They were people of humility. So soft spoken. So thoughtful. And what a sense of humor they have!

They were amazing. They showed no bitterness towards those who had caused them so much misery for the past two years. Not a harsh word against their tormentors. As we continued to talk, I began to sense what kind of people they were: ordinary people with extraordinary courage. Simple people with a big message. Common people with uncommon valor. Unpretentious people with rock-solid principles.

I joked with them. I asked them if they were surprised by the enormous turnout of Ethiopians at the airport. They said they had no idea that so many people would come out to receive them this early on a Sunday morning. Perhaps they felt they had caused people inconvenience by arriving so early. But I was quick to reply, “Well, if you could sleep on the dirt floor of Kality prison for two years, wake up and come to America to see us, we’d be damned if we could not get out of our comfortable beds on a glorious Sunday morning and say, “Welcome friends and thank you for everything!” We laughed, but that was the truth.

But thank them we must, Again and again. As they travel this great land to visit with us. We must thank them for suffering the indignities in Kality prison with grace. For sitting in Kangaroo court month after month and listening to perjurers and liars. For never getting down into the sewers to argue their cause with those who make a living there. For maintaining their honor and dignity against those who have neither. For their sacrifices -- the love of their families, their professions, their friends– in the cause of freedom, democracy and human rights. For saying “NO!” to tyranny, and “YES” to democracy. For not selling out for thirty pieces of silver. For not copping out. For maintaining their sense of humor when the jerks jerk them around. For showing grace under fire. For sacrificing their freedom, and putting everything on the line, so that their countrymen and women can be free. And for maintaining a cheerful attitude about the whole thing.

I still believe all of the leaders in the former Kinijit organization are good people who have the best of intentions and wishes for their country and their people. That is not to say that they did not have differences or mistakes were not made. Of course there were many mistakes made, and differences still exist. But in my humble opinion, there is not (was not) a difference they could not have resolved, or a mistake made that could not have been corrected in the cause of alleviating the suffering of the Ethiopian people and in support of their hopes and dreams for a democratic society. When I think of the outrageous incarceration of our sister Birtukan, I ask the simple question: Are we better off today serving the cause of freedom, democracy and human rights in Ethiopia than we were in 2005? If the answer is in the negative, then we have to ready ourselves and do the right thing. We must re-discover the magic formula -- THE SPIRIT -- that led to the formation of Kinijit.

But I want to share a few personal impressions about Birtukan with my readers. I found Birtukan to be an exceptional leader and a brilliant lawyer as she led the delegation throughout their U.S. tour in 2007. In her public appearances she maintained great humility and demonstrated extraordinary thoughtfulness. I saw under her quiet and placid exterior nerves of steel and an unwavering commitment to democracy and human rights in Ethiopia. She is one of those rare leaders who is self-effacing, patient and reserved, yet when she speaks, she does so with authority and refreshing frankness, directness and fairness. Birtukan is also a person of great dignity and personal grace, a down-to-earth person who shows respect to all people. During the months-long tour in the U.S., I never heard Birtukan (or any other members of her delegation) utter an angry or unkind word, or an unfair criticism against her former captors, tormentors and persecutors. When much criticism was directed at her and her delegation during their tour, and some urged her to respond harshly, she always chose to take the high road. Perhaps a few may have taken her restraint as a sign of weakness, but it was actually a reflection of her patient determination and unflinching focus on the central issues in the struggle. My personal impression is that for Birtukan, her conscience is the strongest element of her nature. As a professional much can be said about her. She is an astute lawyer who once served as a judge. She is meticulous, factual and fair in her analysis, comments and judgment. Of course, it is common knowledge that Birtukan as a judge could not be corrupted, nor could she be intimidated in doing the wrong thing. Whether it is a highly political case or an ordinary matter, she performed her job unpretentiously, fairly and with a high level of professionalism and skill. When she was on the bench, she was truly the personification of the principle of judicial independence in Ethiopia.

It is a matter of personal pride and honor for me to be in the same profession as Birtukan. It is lawyers like Birtukan who set the highest standards in the legal profession and serve as role models for the rest of who strive to make our small contributions to the ultimate cause of justice. I do not doubt that there will be millions of Birtukans inspired by Birtukan who will come along and nurture mother Ethiopia back to health and make her the envy of Africa. I could not be more proud of Birtukan Midekssa.

It is also my great privilege to know the learned Professor Mesfin during his last visit in the U.S. It is sad to learn that the man who has stood against violence and vilified for it should be brutalized by a gang of hoodlums out of uniform. It is common knowledge that Prof. Mesfin is a fiercely independent thinker. With him, what you see is what you get. He believes in what he stands for, and stands up for what he believes in. He has razor-sharp intellect and he is witty beyond measure. His knowledge of Ethiopian politics and history is incomparable. Prof. Mesfin has inspired a great many of his university students and young people throughout the decades. He has also inspired so many of us, who were not fortunate enough to be his students, to enlist in the struggle for human rights in Ethiopia. I wish him a speedy recovery from the injuries he suffered at the hands of mindless thugs.

“Leave Behind the Past and Look Towards the Future”

At the time the Kality prisoners were released, Zenawi took the high road and declared, “All of us should leave behind the past and look towards the future.” His “ambassador” in Washington resonated that sentiment when he said: “I am hopeful that my country now can put this issue behind us and focus on developing our economy, strengthening our institutions of government and improving the lives of all Ethiopians.” It seems those who can not see the future – or do not have one -- can only look at the past. Birtukan’s re-incarceration is proof of that. Zenawi wants to resurrect the Ghosts of 2005. Presdient Birtukan wants to build a new future for Ethiopia upon a foundation of democracy, freedom and human rights. One can be a prisoner of the past, but one can never imprison the future. One can seize the moment and embrace the future. That is what President Birtukan has done.

When President Birtukan and her colleagues returned to Ethiopia and established their organization, they became the objects of scathing, scornful and harsh criticism from many quarters for their willingness to abide by the “law” and the “constitution” and build their party. They knew they were playing a game of moving goal posts and changing rules. But they stood alone against Zenawi; and in their hands they held nothing but an olive branch. Perhaps it is this determination to participate in the political process against all odds that infuriates Zenawi. But such is the audacity of the olive branch: To be willing to bear the slings and arrows of an outrageous dictator and still keep one’s eyes on the Grand Prize of democracy, freedom and human rights in Ethiopia. We expect that when they come to their senses and the pressure mounts, they will once again drag President Birtukan back to kangaroo court and force her to retract her statement in an attempt to show the existence of the rule of law and an independent judiciary, and indirectly intimidate the opposition. They might even send Prof. Ephrem once more to resume his “shuttle” jailhouse diplomacy. The fact of the matter is that an arbitrary jailing of a leading opposition leader by dictat can not be remedied through a make-believe judicial process. But as it is often the case, the emperor without clothes swaggers about because he believes in his mind he is wearing clothes. But anyone can see a naked emperor for what he really is.

We should not be distracted by the clang and clatter of Zenawi’s circus. The issues that Birtukan toiled to overcome should not be obscured by her unjust imprisonment. We should not lose focus by being preoccupied with the pettiness of a petty dictator. In any circus, there is a spotlight that shines on the different acts. Let Birtukan be our spotlight on corruption, repression, famine, war, abuse of power, economic privation and human rights violations in Ethiopia. The is no greater honor we can bestow upon our great sister and our greatest heroine!

The writer, Alemayehu G. Mariam, is a professor of political science at California State University, San Bernardino, and an attorney based in Los Angeles. For comments, he can be reached at

1 Birtukan Mideksa's Response, English translation by Andinet North American Support Association (Birtukan's letter in Amharic) (pdf)

2 Supposedly Opposition Signatures (pdf)