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Both Muslim and Christian leaders have been exerting relentless efforts in brokering forgiveness and reconciliation for the former Derg inmates in Kaliti Prison, on considerations of their repentance (and being terminally ill and geriatric, at that). However, Tesfaye Habisso (habisso@yahoo.co.uk), former secretary-general of the transitional government and a retired diplomat, observes that the heated public dialogue and fiery controversy has in many ways enlarged the nation’s societal cracks, and revealed an unfortunate fact: Ethiopia remains a deeply divided country.

Clemency Power On Trial

 

The news has precipitated mixed feelings amongst society at large, both at home and abroad; it has angered the relatives of the victims of the Derg’s atrocities while rousing excitement and hope for the perpetrators’ families.

The  families of the people who were slain or who vanished during Mengistu Hailemariam's 1974-1991 dictatorship are vehemently protesting this proposed clemency for the Derg officials through various channels of communication. Sadly, for hundreds and thousands of relatives of the victims of the “Red Terror,” the wounds of the past remain bitter. This is natural and as it should be, and no one can downgrade, villify, or object to these feelings.

Yet, there is no escape from confronting the brutal past and overcoming traumas if a stable and better future for all Ethiopians is sought. The issue of forgiveness and reconciliation becomes imperative for the entire society and should thus be wholeheartedly supported by all farsighted citizens.

As civil wars come to a close, rarely does the cessation of violence mend relationships, mitigate feelings of resentment and hatred, or suggest the complete pacification of the root causes of conflict. This phase of post-conflict reconciliation is extremely difficult as individuals involved within the communities may be at very different stages in terms of their willingness to participate in such a process. Reconciliation is also carried out in a variety of different spheres and levels, political and personal, economic and psychological.

Within this broader category of reconciliation lies the unique process of forgiveness. Often affiliated with religious practices, forgiveness is a powerful transformation in which parties release feelings of resentment and bitterness towards the enemy in an effort to focus on the future.

Criminal justice in any modern country constitutes “a system of practices, and organisations, used by national and local governments, directed at maintaining social control, deterring and controlling crime, and sanctioning those who violate laws with criminal penalties,” according to legal theorists as well as practitioners.

The primary agencies charged with these responsibilities are law enforcement (police and prosecutors), courts, defence attorneys, and local jails and prisons which administer the procedures for arrest, charging, adjudication, and punishment of those found guilty.

When processing the accused through the criminal justice system, government must keep within the framework of laws that protect individual rights. The pursuit of criminal justice is, like all forms of justice (moral, social, and political), in fairness or due process, essentially the pursuit of an ideal.

To contend that “Clemency is a pillar of justice” (Mulugeta Aserate Kassa, December 26, 2010, Tigray Online) does not fully explain the breadth and scope of justice in general and any criminal justice system in particular; the latter encompasses more salient points than the concept of clemency.

The pillars of a criminal justice system include, inter alia: community, law enforcement, prosecution, as well as the courts and the correctional institutions. If any one of these pillars is dysfunctional, the criminal justice system as a whole will pitiably become an ineffective channel of justice, and will not be a crime deterrent either.

The most important function of clemency and pardon is as a last refuge for those who have fallen through the cracks in the criminal justice system. It has nothing to do with repentance or being geriatric convicts receiving their due in prison, as explained by Mulugeta Aserate Kassa. Whether his firm assertion that the Derg officials have ever repented about their gross human rights violations and crimes against humanity during their long drawn-out trials and court proceedings is uncertain, but they totally and vehemently objected to the charges.

They have appealed the verdicts of the High Court; taken their cases all the way to the Supreme Court and finally to the Cassation Bench, the judicial court of last resort. They consistently denied the charges levelled against them, individually as well as collectively.

If the “repentant and geriatric Derg officials” recently decided to go to the extreme position of repentance, it is just like a wrestler who, having been overwhelmed and defeated by his opponent and seeing no escape route from being hurt and no end to his suffering in sight, indicates his submission by “tapping out,” tapping a free hand against the mat where the wrestling match is held. Nobody in her right mind would believe that such repentance is really sincere nor that these are deeply felt sentiments coming from their hearts at last.

Clemency and pardon cannot be exercised for political considerations. Considerations of religion, class, colour, or political loyalty are irrelevant (and are inherently fraught with discrimination). It has occasionally been believed righteous to tender clemency in deference to a widely spread or strong local expression of public opinion, on the grounds that it would do more harm than good to carry out the sentence if the result was to rouse sympathy for the offender and hostility to the law.

This view has serious implications. Public opinion and especially its local expression are fleeting and fluctuating. It can be manipulated and roused by injecting into them strong doses of emotional and political elements. In addition, there can be equally strong contrary public opinions.

The granting of clemency solely on the grounds that a certain section of the population or a certain region of Ethiopia will go up in flames if the convicts are kept behind bars for the rest of their lives smacks of undue pressure. It is almost tantamount to blackmail.

When trying to determine the limits imposed on the pardoning power of the Constitution, it would be helpful to establish what that power was designed to accomplish. Regrettably, there is no consensus regarding the purposes the pardon does or should serve.

A pardon may only appropriately be issued when justice would otherwise not be served, either because the sentence was too harsh or because the person was wrongly convicted, a law professor suggested. Pardons which are not “justice enhancing,” but instead promote other purposes, should not be issued because their issuance would undermine, rather than promote, justice, he argued.

However, where there is good reason to believe that an innocent person was convicted, a law was applied inappropriately, or a sentence was determined contrary to the interest of justice, executive clemency is the only redress. The power of an executive or president to grant relief to convicts ought to be used as a check against injustice.

Unfortunately, the far more common use of the pardon and clemency power is to confer forgiveness and mercy upon those who have confessed to their crimes, served time, and convinced a president or an executive branch chief that they have been rehabilitated (there is also the more corrupt use of the power: as a favour to fallen political cronies).

Clemency must be exercised on definite principles. Justice and the rule of law must not be sacrificed at the altar of sheer expediency and speculative political considerations and likely fallout.

Few would dispute the statement that both justice and forgiveness rank among mankind’s most exalted virtues. Yet, their starkly conflicting natures are clear and evident.

If justice is defined in its most popularly understood form to mean “to render to each his due,” and understand mercy to involve some measure of forbearance or leniency in punishment towards a guilty party, the two ideas strike one as contradictory at their very cores.

How can each be rendered his due if the consequences of his actions are withheld? How can we ensure the realisation of justice if some misdeeds are to be pardoned without due reckoning? How can equity and clemency be reconciled?

In Ethiopia, this matter presents itself as more than just theoretical inquiry. It is a pressing, concrete concern impacting society as a whole. Over the past few months, religious leaders of the country, both Christian and Muslim, have released a proposal suggesting that Girma W. Giorgis, president of the country, issue “yiqirta” (forgiveness) and “erq” (reconciliation) to the “repentant and geriatric Derg officials” in Kaliti Prison. They include the elderly, the terminally ill, and those who are considered rehabilitated to the extent that they pose no threat to society.

Most notably, the document proposes that the forgiveness and reconciliation should extend to apply to many of the individuals currently imprisoned and serving life sentences for committing a wide range of human rights violations and crimes against humanity during the military regime of Mengistu Hailemariam (Col).

To understand the depth of the controversy surrounding this issue, it must be viewed in its full context.

The military toppling of Emperor Haile Selassie’s monarchical regime in February 1974 represented a watershed in the country’s history. It instantly divided the population between those who supported the overthrow of feudal monarchy and struggling government, and those who opposed military rule and the overthrow of the monarchical system.

Subsequently, these rifts were deepened and inflamed with the discovery in the 1990s of the widespread violations of human rights and crimes against humanity that occurred under Mengistu.

As reflected in their document and explained by Hagos Hayyish, chairperson of the Main Committee on Forgiveness and Reconciliation and spokesperson for the religious leaders of Ethiopia, the latter believe that an issuance of forgiveness and reconciliation would represent a significant step towards national reconciliation and reunification, helping to heal the wounds and divisions that stubbornly linger on from the days of the regime.

Reflecting the idea of a justice that is more restorative than retributive, the document emphasises the compatibility of justice and forgiveness; while condemning any abrogation of the rule of law and indicating the importance of ensuring the rule of justice and safeguarding the rule of full human rights from crimes against humanity, the religious leaders believe that steps can be taken for clemency.

The document appeals heavily to Ethiopia’s cherished Muslim and Christian identity and religiosity, beseeching citizens to look beyond “judicial orders and their interpretations,” to the teachings of Christ and Mohammed, which affirm that “the logic of forgiveness is the only one that can heal wounds, return confidence, and inaugurate new times.”

For these religious leaders, a fractured and divided Ethiopia can be made whole again only through the process of forgiveness and reconciliation. They believe Ethiopia’s people must be able to demonstrate a fraternal spirit, and the ability to make decisive gestures of reunion and reconciliation if they hope to successfully rebuild their country and pave the way for a better future.

Certain portions of the population have been very supportive of the proposed measures, stressing its importance in the process of forgiveness, reconciliation, and unification. Among them are the families and friends of the Derg officials, including the retired military and other members of the public at large, who support the proposal advising religious leaders to go ahead with pursuing and insuring the speedy implementation of forgiveness and reconciliation, and to ignore the “improper and offensive pressure from those who, selfishly, insist in perpetuating hate and division among Ethiopians.”

The government should distance itself from its former policy of retribution and punishment, and “adopt a more wise and just resolution in this transcendental matter that affects the nation’s soul,” allowing the country to join together and “face its declared transformation plan and Ethiopia’s Renaissance of the 21st century in unity,” these people said.

Unsurprisingly, the proposal has been met with significant criticism from Ethiopian groups at home and abroad, indicating that a general clemency to the Derg convicts would violate victims’ rights and breach international law. From a more personal standpoint, many Ethiopians reject the claim that it would serve any reconciliatory or healing function. They doubt whether authentic forgiveness would ever occur.

How is it possible to agree on a bilateral procedure of conscious participation by both the victims and the perpetrators? Even then, how could it be possible for both sides of the conflict to be present together in one place and to listen to one another’s side of the story, the story of the victimisation of the vanquished, admittance of guilt and apologies of the perpetrators, as well as a sign of acceptance by the victims, so that holistic transformation could occur for both sides?

Many believe that a pardon for people like Melaku Tefera, Legesse Asfaw, and the other convicted violators of human rights would serve to further aggravate tensions within the country, and reopen wounds that have begun to heal. Many individuals mention that Mengistu Hailemariam, Melaku Teferra, Legesse Asfaw, and Petros Gebre are despicable human beings they have every right to hate and never to forgive.

Some even voice the opinion that the pardon indicates a significant sacrifice of justice, and, rather than pacify, disturbs social life to achieve the opposite of what is supposedly desired: Stability, peace and tranquillity.

Opponents of the pardon, point to the fact that the process of justice has been significantly lacking in Ethiopia, with no compensation for the victims and minimal convictions (as many notorious and ruthless henchmen of the Derg era have escaped arrest and prosecution and are now residing in foreign countries) and light sentencing for some of the perpetrators.

An invigorated approach to compensation for the already disadvantaged victims is necessary for reconciliation, not “yiqirta” and “erq,” which would tip the balance even further in favour of those guilty of crimes against humanity.

While the Ethiopian government has not shown any public reaction to the proposal made by the religious leaders, a debate is raging on its content and scope. It appears that the document, composed with the intention of forgiveness, reconciliation, reunification, and healing persisting wounds and national divisions, has in many ways highlighted and accentuated the continued fragmentation of Ethiopian society.

The heated public dialogue and fiery controversy has in many ways enlarged the nation’s societal cracks, and revealed an unfortunate fact: Ethiopia still remains a country deeply divided.

Perhaps, the religious leaders’ proposal is mistaken, and “yiqirta” and “erq” are neither timely nor appropriate courses of action to bring about forgiveness and reconciliation, reunification and resolution at present. It seems that the country and its citizens are not ready to take the leap towards forgiveness and reconciliation with the convicted Derg era officials; more time must pass, and justice must be allowed to run its course.

However, someday, hopefully, Ethiopia will be forced to face its past, reconcile its differences, and erase the lines that now divide. Only time will tell when and how this drama will unfold.

 
Tesfaye Habisso (habisso@yahoo.co.uk),
Former secretary-general of the transitional government and a retired diplomat
 
 
   
   
   
 
 
 

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