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De-Institutionalizing Eritrea

Rewinding back to the 1950s when the UN resolved to federate Eritrea with Ethiopia, the arguments against federating Eritrea with Ethiopia included that a conflict between Eritrea with its more advanced socio-economic and legal institutions, and Ethiopia with its feudal monarchical system would be inevitable.  It would be a marriage of irreconcilable differences.   

Eritrea, enjoying the economic investments of colonial Italy, and the growth of the socio-political institutions during the 10-year British administration, which by the way dismantled many of the Italian investments, had created a rare budding parliamentary institution in Africa, while its legal system, labour unions, and other form of institutions were growing at the same time.  Eritrea’s institutions were the envy of not only Africa but much of the developing world, which consisted the vast majority the world’s nations at that time.  Unfortunately, the federation with Ethiopia began the process of dismantling Eritrea’s institutions as Emperor Haileselassie feared that it would weaken the monarchical system in Ethiopia. Hence began the Eritrean independence movement.

The very essence of our independence movement was to rebuild and grow our national institutions, and most importantly laws, but also customs, and traditions are intricately woven into fabric of institutions. 

When we gained our independence in 1991, the one issue that kept coming up in discussions about building the future of Eritrea was to how to build institutions in Eritrea.  We thought Eritrea’s independence would resume the interrupted path of the wide institutionalization of the 1950s. Instead, twenty-four years after independence, Eritrea finds itself on unabashed path towards annihilation of all forms of institutions. 

The worst irony is it is the monarchical and feudal Ethiopia that is on a path towards building its institutions.  Its parliamentary system, albeit at its infancy, is growing at natural pace.  Its civil service, private sector, public media, legal, and other institutions are growing, albeit still a long way.  But it is a clearly defined journey, rather than an elusive destination that gives hope.  Institutions and democracy don’t grow overnight, rather they go through infancy, childhood, adolescence, and adulthood - and may even face adolescence or middle-age crisis.  After all, the learning curve is part of life, and Ethiopian politics of the visionary late PM Meles Zenawi is on that learning curve, and is still at toddler stage.  As it stands today, its civil administration, social, economic and legal systems are now significantly more advanced than DIA’s Eritrea.  What DIA is doing is tantamount to infanticide of Eritrean institutions.  

Civilization is more than the invention and adoption technological advancements – or digging more illusionary dams.  That is “Animal Farm’s” windmill.  Rather it is primarily the adoption of advanced laws that bind a society, and it is institutions that foster wider public involvement in national matters.  Every Eritrean society has thousands of years of rich history and tradition that was built and sustained on the rock foundation of their socio-legal institutional systems.  DIA’s destructive assault on this proud and civilized behaviour is the single biggest threat to the very existence of Eritrea as a viable and cohesive nation.

It is not just laws - or worse decrees spewed out at the whims of one-man - and their enforcements that makes a nation law-abiding.  Rather, it is a legitimate government’s and people’s deep respect for law and rule-of-law that builds a law-abiding nation.  If government and people don’t respect the rule-of-law, and if the only factor that binds people together are harsh enforcement laws and cruel punishments, then that nation WILL fall apart.  When one says ‘Ziban Higi’ and the other person and you head straight to adjudicator or law enforcer, which is respect for law.  If one feels that one can violet any laws and can buy justice by bribing a policeman, a prosecutor, or a judge - which is becoming very pervasive in DIA’s Eritrea - there can NOT be harmony within a community, and by extension a country.  

When a large group of Eritrean elders followed the traditions of their prudent forefathers to ask DIA to pursue reconciliation and prudence in dealing with colleagues who had different political views from DIA, he arrested some and threatened the others of incarceration.  Moreover, they were told that if they met again that they would be arrested for illegal gathering.

The breakdown of law, rule-of-law, due process of law, and institutions has been gradual since independence but has become unbridled lawlessness since 2001. 

Although the illegal treatment of Jehovah Witnesses in the mid-90s was a tell-tale sign of the regime’s illegal behaviour, the first major departure from the proper functioning legal system was DIA’s decree of the ‘Special Courts’ in 1996.  Ostensibly, the ‘Special Courts’, a variant of Military Courts, was established to root out corruption.  The ‘Special Courts’ were presided by military officers with little or no legal background, and their decisions were ‘final and binding’, i.e. with no rights of appeal.  That is unparalleled legal travesty both in our traditional law and modern law.  The right of appeal is an inherent right designed to give the accused a recourse against possible injustice.  This decree, in essence, made the one to three presiding military judges the law of the land over civilian matters.  If this wasn’t a blatant invitation for legal chaos and unbridled corruption, nothing else is.     

‘Special Courts’ was NOT designed to root out corruption.  Rather, it was DIA’s way of buying the loyalty of military officers - and entrench lawlessness into Eritrean system.  It would be the opening salvo to de-institutionalize Eritrea in full throttle.   Lawlessness meant that if one needs to eliminate a pesky neighbour, a business competitor, or someone that insulted you - dole out some cash under the table to these judges and suddenly verdicts are guaranteed.  If this is not an utter betrayal of what over 100,000 of our precious brothers and sisters sacrificed their dear lives for, what is?

When arrested by police for unknown reasons, one should have the absolute right to file a writ of habeas corpus to regular courts.  Instead, in Eritrea, one finds that it is ‘Special Courts’ that issued the arrest and that regular courts do NOT have jurisdiction.  The arrested person doesn’t know the reasons for the arrest until appearing in ‘Special Courts’ and with no rights of representation to mount any defence, one is found guilty before one even drops a word.  One can languish in prison for months without even appearing in Special Court - just long enough to put one of business or give an advantage to a competitor, then released without any explanations.

A variation of ‘Special Courts’ is the ‘military courts’.  As all able-bodies between 18 and 40, but in reality up to 60, are prisoners of national service subject to military courts and military justice, they have no recourse to properly functioning and accountable legal system.  This is further degradation of Eritrea’s already weak institution and the entrenchment of injustice in Eritrea, which is a frontal assault on a key institution of any viable nation state.

Institutions

Institution is generally defined as organizations, societies, establishments and other similar groupings brought together for promotion and advancement of particular cause or program.  Most of these groupings are established for the purpose of advancing legal, educational, religious, political, cultural, and other major causes.

Institutions have many functions such as,

• Maintaining continuity from past, to present, to the future - especially important for tradition, religion, law/legal,

• Maintaining stability in civil service, politics, and legal systems,

• Distribution of power - especially important in distributing political power which is critical in forestalling dictatorships,

• Organized, inclusive, methodical, and predictable method for bringing about change,

• Allows the accumulation, transmittal, and leverage of knowledge and know-how - thus the very foundation of civilization.

  Institutions have tendency to resist change, might be bureaucratic, and may favor the status-quo. However, like everything in life, the challenge remains finding the middle way. Change is good, and even nature’s law, but it must be done not too fast, nor too slow. It is like fire - too far from fire and one gets cold; too close, and one gets burned.

  Very few, i.e. a drop in the bucket, examples of DIA’s de-institutionalizing Eritrea,

• Disbanding of unions, including teachers

• Unlawful persecutions of Jehovah Witnesses [chipping away from the edges towards the middle of all religious institutions]

• Unethical and corrupt practices in its business ventures, weakening much of the economic institutions

• ‘Special Courts’ and the weakening of Eritrean legal system. This not only weakened modern laws, but also traditional laws – destroying Eritrea’s traditional laws, the very foundation of its old institutions

• Refusal to implement the 1997 Constitution, which would have been the launching pad for political institution

• Refusal to convene EPLF/PFDJ Congress last held in 1994, and disbanding of the EPLF/PFDJ Central Committee, last held its meeting in 2000, which further weakened our launching pad for political institutions.

• Interference in religious institutions subjecting all major religions into total servitude to a point where their religious legitimacy may be questioned.

• Weakening the civil service through deliberate policy that forced unpaid ‘national servicemen’ serving in the civil service to engage in bribery to survive.

• Bypassing government ministries and concentrating all power in the president’s office. All political and diplomatic decisions are made by one man, instead of spreading out decision making - which is key to building institutions. For example, Central Bank of Eritrea is in name only, with all the country’s hard currency reserves managed by DIA himself through Hong Kong accounts. All Central Bank of Eritrea’s activities should be documented and available to the public, my rights as a citizen, which would only confirm that it is an institution in name only.

  Rule by Decree

  According to Wikipedia, it is defined as a style of governance allowing quick, unchallenged creation of law by a single person or group, and is used primarily by dictators and absolute monarchs.

  In a properly functioning democratic states, and even those pretending to be one, have legislative bodies responsible for promulgating laws. A constitution may provide head of state some powers to

  New Civil and Penal Codes

  The regime recently announced a new civil and penal code. The ‘good news’ was conveyed to us through, among others, wedo-geba.com (aka meskerem.net) and tesfa-less.com as if, i.e. insinuating, that the regime was unable to work with the old civil and penal codes and that with the new laws that our tireless and well-meaning government would start upholding laws. What a fantasy, or rather selling a fantasy!

  DIA has made a mockery of the transitional civil and penal codes that was supposed to serve Eritrea until the ‘new’ codes were promulgated. Frankly, I haven’t had an opportunity to look at the new codes, but I can assure my readers that the basic rights and working laws in the new codes can’t be any different than the transitional or now old codes.

  DIA, or Special Court judges, have not upheld any of the key provisions of the 1991 transitional penal codes. For instance,

  Title III Chapter I. – Offences Against Official Duties

  Article 410. – Principle

  1) All persons who are to any degree repositories of the power or authority of the State, such as members of the public authorities, government officials and agents and servants of the government and public administrations of any kind or members of the armed or police forces (hereafter referred to as "public servants"), are subject to the punitive provisions which follow where, in the discharge of their office, duties or employment, they commit any of the offences under this chapter.

  (2) Where the act which they have done or omitted to do in the discharge of their duties, and in respect to which they are charged, comes within the scope of ordinary criminal law, but there is aggravation due to the offenders' public position and the breach of the special responsibility resting upon them by virtue of the trust placed in them, the relevant provisions of the other titles of this Code shall apply.

  Art. 412. —Breach of Official Duties.

  Art. 414. —Abuse of Power.

  Art. 415. —Abuse of the Right of Search or Seizure.

  Art. 416. —Unlawful Arrest or Detention.

  Art. 417. —Use of Improper Methods.

  Art. 702. —Exclusion of Ordinary Criminal Penalties.

  Art. 703. —Arrest.

  Art. 704. —Ordinary or Police Arrest.

  Art. 705. —Home Arrest.

  Delving into detail, this penal code provides the most basic rights accorded to the accused,

• Right to be brought to court judge within 48 hours after arrest and for the police to present their evidence

• Right to bail hearing

• Right to seek legal advice

• Right of visit during incarceration

• Right of appeal, and many other rights.

  I can assure my readers that no law abiding citizen in Eritrea wants any of these rights taken away because they don’t to fall victims to unscrupulous and dangerous people that live amongst them.

  Invariably, those who support the regime’s illegal behaviours are those who are beyond its reach, i.e. those who live abroad and enjoy full rights accorded in well-functioning legal systems - at least, one can be assured that one doesn’t get thrown into jail incommunicado and without knowing the charges for indefinite time.

  As such the new civil and penal codes are meaningless. As some would say, it ain’t worth the paper it is written on.

  New Constitution

  It is a cruel joke! Suffice to say one would have died from laughter if it wasn’t about the tragedy of our people.

  Illegal House Destructions -- Illustration of how unaccountable governments can be the single biggest threats to people’s rights

  Recently, DIA has started destroying housing throughout Eritrea claiming that they were built illegally. The only other ‘government’ known for destroying, instead of building, is the Taliban, and now its monstrous clone, IS. The recent panel discussion by Minister of Local Government, Mr.Woldemichael Abraha,regarding the illegal use of land is yet another illustration of the twisted understanding of the functioning of a government, its policies, its laws (by decree), and remedial actions.

  This is travesty of tremendous proportions. At a time when there are severe housing shortages, it is unfathomable how a regime resorts to destroying new houses. Especially considering that the regime has banned any new housing construction since 2009, this is a deliberate policy of sowing social and legal chaos in the country - as if we don’t have zillion other issues to deal with.

  No one is above the law, i.e. in a country that is governed by the rule-of-law!

  The regime supporters excuse the regime’s illegal house destruction claiming that these houses were built illegally. This has been going on for over 15 years. However, the truth of the matter is that if the regime was truly concerned about illegal housing, adverse impact on urban planning or safety, the regime should acted sooner to prevent others from building.

  The regime supporters make excuses for the Eritrean dictatorial regime as follows:

1. The regime has been warning for years against such behaviours

   In reality: instead of just warning, it could have destroyed the very first, or second, or tenth house built ‘illegally’ 15 years earlier which would have sent unequivocal message to future builders. This is not impossible task, or requiring a whole army to do the job; rather it just takes one bulldozer to do the job.

2. The regime is destroying illegal houses

   In reality: in properly functioning legal system, depending on the type of violation, there is a statute limitations on bringing legal action against any violation.

   Building a house is NOT a criminal activity, it could be a violation of municipal law or other government law. In such violations, government authorities and bodies have a HIGHER legal responsibility to enforce their laws within a reasonable time - usually not more than two years after they became aware of such violations.

   1. The regime was well aware for over 18 years that such activities were taking place and chose to do nothing. In not enforcing its laws, regardless of its ‘laws’ on paper, it is implicitly condoning such activities, and abrogating the law in question.  

   2. Any competent law would ask why the regime couldn’t take such actions earlier. Did it have the resources to take such actions? The answer would have been unequivocally - ‘yes it did have the resources all these years.’ It would have taken, as it did now, one bulldozer to do the job and all others would have been discouraged from doing the same over the last 18 years.

   3. Although municipalities may have administrative rights to destroy illegal houses within a reasonable time, owners/builders do also have the right to seek legal redress or injunction to stop home destructions. Once a house is identified for destruction by a municipality, owners should have the right to seek recourse from a competent courts of law, which may find the municipality of acting illegally. Without such legal recourse, who can control the illegal actions of municipalities or other authorities?  

      CRITICAL LESSON: To reiterate, if there is anything I want my readers to take from this article is that governments are and should be held to higher standards.

1. Relationships between individual persons and the State (or government) is inherently legal in nature

2. This legal nature of the relationship between individuals and governments can NEVER be abrogated unilaterally by governments. Even emergency laws of their limitations. Governments or presidents are not infallible Supreme Beings or endowed with infinite wisdoms.  

3. Where there is a dispute between a citizen and the State, only a competent court of law can adjudicate on the matter. The State or government is just like any other plaintiff in court of law - no more, no less; with one caveat - it carries the higher burden of proof. The fact it carries bigger stick doesn’t give it free hand to bully individual citizens.

4. Any properly functioning court of law should in most cases put the burden of proof on the government because it promulgate laws and should know better, have more resources to effect and enforce laws.

   The current ongoing destruction of houses is yet another manifestation of the total breakdown of the rule-of-law in Eritrea - something unheard of in the history of our precious motherland.

   Case of the late Naizghi Kiflu (For illustration)

   Many may not have the best opinion of Mr. Naizghi Kiflu who was one of DIA’s key henchmen during the struggle for independence and later during DIA’s brutal administration. Mr. Naizghi is no less brutal than DIA, just that he wasn’t a leader of the nation.

   Regardless, refusing the repatriation of his body for burial in his homeland is yet another manifestation of DIA’s illegal acts. It shows that today’s Eritrea is being run on vindictive political acts of one man than attempting to build a nation based on a continuation of our rich traditional respect for law and rule-of-law. This is where the breakdown of law-and-order starts. If DIA refuses to abide by the rule-of-law, what message is he sending to others? We will leave this to Profs. Asmerom and Ghideon to give us their spins on this one.

   Destroying the Rule-of-Law and Institutions in General

1. Transitional Government of Eritrea (TGE)

   TGE was proclaimed in April 2013 and was formed to govern the country until May 1997 (4 years), when a Constitution would be proclaimed and a new constitutional government was to be established soon after. It was supposed to be a transition from ‘a liberation front’ to ‘legal government’. Instead, DIA chose to ignite a destructive war with Ethiopia and freeze or even reverse the progress towards a more legally representative government.

   In doing so, DIA chose to trample on any progression towards the rule-of-law, and instead pursuing arbitrary rule based on the whims of one individual supported by corrupt officials bought to maintain their loyalties. The ever pursuit of an absolute discretionary and unconstrained power is the first cause of all the political illnesses, breakdown in rule-of-law, and all the problems afflicting the country today.

   Until such time that an accountable government ruled by a Constitution, enforced through strong and independent judicial system, prudent opposition, strong public media, and civil societies, the challenges will remain. Even Ethiopia’s benevolent dictatorship is a universe away from our destructive dictatorship.

   How can a nation that is NOT governed by publicly and legally sanctioned processes, and refuses to abide by any legal norms become the very vanguard of a national legal system? How can the wolf itself become the Sheppard of a flock of sheep?

   If we are to build a nation, we can’t allow folks with the longest stick to govern, lest we encourage outlaws to get funny ideas. The future of Eritrea - the very foundation of our values - is being erected today.

2. PFDJ

   Regime supporters pledge their allegiance to it. Opposition blame for it for the nation illness. Foreign media label the country as a one-party, PFDJ, state.

   On a recent interview on Al Jazeera, one young interviewee even labelled PFDJ as a movement.

   In reality, PFDJ is defunct. It longer exists. PFDJ, the successor of EPLF, had decided in 1993 to hold its congress in 1997, which is now almost twenty years ago. According to PFDJ’s Constitution, the PFDJ Central Committee should hold regular meetings every six months. The last time it met was over 15 years ago. Most of its members are either in jail or in political limbo. Similarly, the executive committee is a rubber stamping body for the whims of one man.

   Even Communist China, Soviet Union - even North Korea and the Derg held regular party member meetings, albeit rubber stamping ones. The Chinese Communist party in particular was very dynamic in fact, esp. before the Cultural Revolution.

   How can a regime that refuses to uphold its own organizational laws claim to hold others accountable to the laws of the nation? Isn’t this a blatant manifestation of a separation between those who are above the law and those who are below it?

   This is in utter contrast to TPLF (Woyane) and EPRDF in Ethiopia, which has been holding regular organizational meetings throughout the last 24 years, since it took over power. The last meetings were held last month (August 2015), with affirmation of new political and economic directions, while replacing veteran members with new ones.

   Why TPLF and EPRDF are succeeding although they have significantly more challenges in managing complex socio-economic, legal and political challenges in Ethiopia. Idol worshippers try to sell us that Ethiopia is ‘about to fall’, ‘division within ranks’, and other doom and gloom and yet they seem to go from strength-to-strength? Who is smoking ganja and suffering hallucinations?

3. Succession Law

   Like all regimes with insecure leaders, potential successors are not named for fear that they may seize power. Until 2000, the Minister of Internal Affairs was assumed the second man in command. Post-2000, this position (which has been recently filled) has been largely left doldrums. In fact, there is no formal provisions in non-existing Eritrean laws that would tell anyone is second person in charge.

   I would challenge any idol worshippers and canon fodders to pin point any specific law in Eritrea that would tell them such a succession law or provisions.

4. Civil Service

   Governments come and go, but a stable civil service is a hall mark of a stable system of government. For instance, governments used to change every six months in Italy, but the civil service continued without much interruption. The civil service, overall the structure and most of the staff, continued largely intact from the Derg regime to the EPRDF regime.

   In Eritrea, the civil service composed of ex-Ethiopia and EPLF/PFDJ went through uneasy period in the early stages of independence as it tried to integrate both. However, by the late 1990, it had found its equilibrium and was progressing towards more efficient system under the most capable guidance of the G-15.

   Tellingly, DIA commented in the early 1990s that the root cause of corruption in Africa is that civil servants were not paid salaries commensurate with cost of living. So what does DIA do? But of course!

   Today’s civil service in Eritrea is corrupt, probably out of forced necessity at the beginning, but now becoming entrenched as accepted norm - thus assaulting, weakening and eroding our social values.

   Moreover, by refusing to give pensions to veteran ‘tegadelties’ who deserve comfortable retirements, they are tied to their jobs until they drop dead, thus unable to transfer their experiences, knowledge, and positions to younger generations. This is also a form of wilful destruction of the civil service.

5. Military Institution

   Some may argue that the military institution is an alternative to political institution, and even possibly as a vanguard against breakdown in rule-of-law, sectarianism or internal religious conflicts. Some countries that were or are ruled by military strongmen, or civil leaders with the military two steps away, include Egypt, Turkey, Burma, and Thailand. Turkey, and probably now Burma, have seen dwindling inference of the military institution in politics. Other notable ones include, i.e. Until 1970s and even 80s, many South and Central American countries, Franco’s Spain, Portugal, and many others, were also led by military strong men.

   The fact that DIA has turned the entire country in one army base doesn’t necessarily mean that he is building military institution at the expense of all other institutions. DIA’s military institution itself has become the single biggest source of corruption and epicentre of bitter power rivalries. In addition it is being turned into a mercenary-for-hire in direct competition with Blackwater USA.

   Whereas DIA has strangled all other institutions, the military institution is being destroyed through the opposite modus operandi - through unbridled corruption, breakdown in discipline, defiling young women in national service, hopelessness among rank-and-file, and encouraging rivalries.

6. Other Institutions

   Other institutions, from educational to legal to organized labour, local non-governmental organizations (local NGOs) and others have been systematically destroyed. All the symbols of our struggles of the 1950s, the very essence of our cry for independence from ‘backward’ Ethiopia, is now being bleach washed by DIA.  

       

   The utter destruction of the rule-of-law and all institutions, leaving only a corrupt military as a sole institution, is the second biggest existential threat, i.e. after the utter destruction the social fabric of the nation, to the unity, peace, and prosperity of the nation. A house divided through breakdown of the rule-of-law and intolerance can’t stand for too long.

   DIA has shown his inability, unlike the visionary and prudent (late) PM Meles in Ethiopia, to foster institutions in Eritrea and to work with international institutions, such as AU, UN, IGAD, and many others. His invariable derision of all national and international institutions, coupled with total disengagement as manifested in his absence from all international meetings from many years, is at the root of all Eritrea’s ills. Unfortunately, this disengagement coupled with angry public rhetoric has led regime cohorts to resort to violence previously unheard of for Eritreans, as manifested in the threats to the members of COI. What a shame!  

   It will take the next regime and the people Eritrea tremendous efforts to reverse the utter destruction of institutions in Eritrea.

   We shall overcome!

   Berhan Hagos

   December 7, 2015