The 'politics' in Ethiopia's political trials
<
http://www.opendemocracy.net/author/awol-allo> Awol Allo 02 December 2012
The Ethiopian regime is using the legal system to eliminate dissident voices
and drag protesters to court under terrorism charges. Far from guaranteeing
equality and justice, the country’s courts serve as an instrument in the
Government’s hands to legitimize persecution of political adversaries while
justifying its practices to the west.
The deployment of laws and the devices of justice for oppressive political
projects are as old as antiquity. From Socrates to Jesus of Nazareth, from
Joan of Arc to Susanne Anthony, from Nelson Mandela to Ethiopia’s own
Burtukan Midaksa and Eskindir Nega, the site of the courtroom has been used
to intimidate, harass, silence, exile, and eliminate political foes
perceived to be a threat to the authorities of the day. The phenomenon we
sometimes identify as ‘the political trial’ is neither exclusively eastern
nor western, autocratic or democratic. In both democratic and autocratic
states, courts adjudicate conflicts irreducibly political or ideological in
their nature. We could argue whether it is ever justified to use the court
system to get rid of ‘the politically obnoxious’, but the fact remains that
the judicial apparatus is inevitably one of the most irresistible sites of
power-struggle.
Writing at the height of the Cold War, and arguing contra a legal ideology
often called liberal legalism, Judith N. Shklar exposes legalism’s wilful
blindness to domination and exclusion. While she recognizes legalism’s
‘greatest contribution’ to a “decent political order”, she accuses
liberalism’s ‘formal justice’ for its silence towards laws that persecute.
The principle of legality for which liberalism congratulates itself
“enforces persecutive laws as readily as any other kind”.
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http://C:/Users/0905060a/Desktop/Ethio.%20case/Opendemocracy%205.doc#_ftn1>
[1] In Apartheid South Africa, the principle of legality provided a
legitimizing logic that allowed the judicial apparatus to enforce racial
inequality in the name of legality and formal justice. From these
observations, Shklar concludes that the relevant question in the
adjudication of political conflicts is not whether the trial is ‘legal’ or
‘political’, but the form of politics pursued through those trials.
<
http://C:/Users/0905060a/Desktop/Ethio.%20case/Opendemocracy%205.doc#_ftn2>
[2] One may disagree with Shklar’s generalization, but what is instructive
about her conception of the political trial is the emphasis on the nature of
politics pursued through the trial—whether it is emancipatory and
transformative politics or oppressive. It is precisely in this sense that I
wanted to explore the “politics’ in Ethiopia’s recent political trials.
The last two decades have witnessed the deployment of the legal framework,
including foundational documents establishing Ethiopian sovereignty, as
strategic tool against regime adversaries. In his definitive scholarship on
political trials, “Political Justice: the Use of Legal Procedures for
Political Ends”, the Frankfurt jurist Otto Kirchheimer describes ‘the
classic political trial’ as “a regime’s attempt to incriminate its foe’s
public behaviour with a view to evicting him from the political scene”.
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http://C:/Users/0905060a/Desktop/Ethio.%20case/Opendemocracy%205.doc#_ftn3>
[3] Given the vagaries of the medium and its vulnerability to subversive
resistance, it is fitting to ask why Ethiopia, a country with an exclusive
monopoly over the means of narrative production, from mass media to pretty
much every other conceivable ‘stock-in-trade of politics’, turned to its
institutions of justice to pursue a project that is the antithesis of truth
and justice?
The trial and the animating logic of legal truth
Trials are one of the oldest and most legalistic institutions of law. While
the institution of the trial pre-existed the Enlightenment, their normative
recognition as a site of truth and justice goes back to the rise of
Enlightenment epistemology and Weberian legal rationality. Since the onset
of the 20th century, the trial is broadly recognized as a communicative
forum of truth-searching governed by rational legal rules both within
adversarial and inquisitorial systems. The communicative logic that
structures the medium of the trial requires a strict observance of canonical
set of rules necessary for the excavation of objective truth; a truth
indispensable for the determination of guilt and innocence in the
administration of criminal justice.
For any trial to retain its name as a trial—to retain its normative
legitimacy as a forum of truth—there must be an irreducible risk of
conviction or acquittal to the defendant and the prosecution respectively.
That makes the trial what it is. If the outcome of the trial is
predetermined, if the irreducible element of risk—either of acquittal or
conviction—is eliminated, the trial is not a ‘trial’ in the proper sense of
the word, but an authentic political event, a theatre of repression
reminiscent of the Stalinist show trials. This is the first sense in which
trials can be ‘political’. And most of Ethiopia’s political trials belong to
this category, a ‘stage show’ specifically calibrated to serve a specific
pedagogic end.
There is, however, a different logic that makes the moment of the trial the
most productive political instrument in struggles over power. As a
communicative space governed by the logic of deliberative rationality,
trials have built-in mechanisms that allow them to resist and escape the
confines of this rationality. They have an irreducible linguistic and
discursive reflexivity that allows their politicization. In “Democracy in
America”, Alexis De Tocqueville brilliantly captures the performative
features of the courtroom, that make the political appropriation of its
space irresistible. He writes: “It is a strange thing what authority the
opinion of mankind generally grants to the intervention of courts. It clings
even to the mere appearance of justice long after the substance has
evaporated; it lends bodily form to the shadow of the law.” Courts have this
‘vastly superior’ power of truth production and image creation. Because the
courtroom is normatively understood as an independent, neutral, and
impartial institution of justice elevated above and beyond the expedience of
politics, it is sufficient that a defendant 'had his day in court'
irrespective of what goes on behind the cloak of legality. For a regime
interested in satisfying western curiosity rather than justifying its action
to its own people, legal procedures have the incomparable advantage of
elevating political struggles into an authoritative, neutral and impartial
process. This is emblematic of the situation in Ethiopia.
The invocation of the lexicon of law and justice in the ritual space of the
courtroom obscures and conceals the politics at the core of the trial. As De
Tocqueville says, even when the violence that goes in the name of the rule
of law and justice is revealed without its mask, “the mere appearance of
justice” continues to provide a semblance of legality and justice for the
spectacles of domination. When Ethiopia’s late Prime Minister, Meles Zenawi,
following the arrest of opposition leaders post 2005 election
<
http://www.irinnews.org/Report/57082/ETHIOPIA-CUD-leaders-editors-to-face-t
reason-charges> promised the west that the accused ‘will have their day in
court’, Zenawi was aware of the truth-effects that the metaphor and the
spectacle generate. He knew that liberal legalists would not distinguish
between the procedure used and the objective sought, and that they would
argue that if, “They had their day in Court, they were not really
persecuted”. Indeed, if we take this logic seriously, if we look at aspects
of contestation in the courtroom that function on the borderline of what is
said and what is meant, the strategic and tactical move made on both sides
of the divide is a less deliberative and more performative enterprise. In
part, it is this performative quality, this ‘vastly superior’ image-creating
power, that accounts for Ethiopia’s resort to its courts as a weapon of
domination.
The trials of the developmental state
This is both the logic and the rationality that animates not only Ethiopia’s
terrorism trials of the last three years, but also many of its major
political trials. In the name of the ‘developmental state’, the system has
transformed its courts into another security apparatus whose job is not to
second-guess the government, but simply to rubberstamp decisions made
somewhere else. Ethiopian courts are not guarantors of the reign of equality
and justice; they are the very instruments used to secure inequality and
injustice. They are legal technologies of repression whose strategic
function is to rationalize, justify and legitimize the repressive logic
behind these persecutive law proceedings by situating them within the
framework of law and justice. Instead of laying the foundation for a just,
inclusive, and democratic society, the current government has chosen to use
the law and institutions of justice to annihilate the very juridical
conditions necessary to cultivate those values.
By orchestrating authentic political events under a false façade of
legality, the courts use their formal ‘legitimacy’ to authenticate the
narratives of government as they dispose of elements hostile to the regime
and vindicate the political order. They do this in several high profile
trials, ranging from the Red Terror Trials (against members of the military
dictatorship) to the recent conviction of journalists and opposition party
members, and the ongoing case against leaders of the protest movement
calling for an end to what they see as an unlawful government interference
in their religion.
If the Red Terror Trials were meant to create a clean break with that
nefarious past, foregrounding the foundation of the new Ethiopia in the
ideals of accountability and justice, the EPRDF government has failed and
failed utterly in drawing a clear line between the moral failings of the
past and its own promised ‘virtues’ of the present. If you look at the
system in action, with its ins and outs, with the choices it makes and the
exceptions it allows, you will notice that its practices are the precise
negation of every normative proposition it espouses, including the
constitutional premises upon which everything else rests. But why invoke
terrorism against people who may be as far as one can be from an act of
terror?
In the name of truth and justice
In recent years, Ethiopia found a convenient validation for its practices in
the post 9/11 reordering of global legality. The same nations that exported
Enlightenment epistemologies to Africa—everything we know as Africans about
juridical conceptions of the rule of law, freedom and justice—are now
exporting a different logic and political rationality that dislodges those
values in the name of ‘counter-terrorism operations’. The same Enlightenment
that gave us (shall I say imposed on us?) the language of equality, freedom
and justice is now being used to justify the suppression of struggles for
freedom and justice.
To align its own struggle against domestic dissidents and political
movements that it deemed ‘terrorists’ with the ‘global war on terror’
[Preamble, Ethiopian Anti-terrorism Proclamation], Ethiopia began to
appropriate the legal and political rationalities of the west, to transfer
its essential technologies, and to secure its own space from which to defend
and justify its policies at home. By being a part of the new “framework for
conceptualizing global violence”, it participates in the formulation and
reformulation of the discourse, using western rationalities to name and
describe the violence of certain groups as illegitimate, while encoding its
far more pervasive violence into laws and institutions to justify it and
render it acceptable.
In the post 9/11 world order, nothing performs the spectacles of oppression
Ethiopia sought to orchestrate better than the eventalizing discourse of
terrorism. Ethiopia’s transition from explicitly repressive criminal
legislations to the performative label of terrorism allowed the regime to
encase its practices within the signifying practices and rationalities of
the West. A highly convenient category, and not specifically Ethiopian,
terrorism justifies the invocation of ‘national security’ against
individuals and groups that struggle and resist the repressive practices of
the government. It is a category that forms domains of truth capable of
enunciating the accused and their causes as extremist, violent and
ultimately terrorist. Once a political adversary is then transformed into a
‘threat’ to the very cohesion of a population or a nation. That alone is
sufficient to justify its elimination from the political sphere. In a system
where the functional differentiation between law and politics, guilt and
innocence, law and fact are dislocated, the mere labelling of the movement
leaders as “terrorist” is sufficient to exclude them from the category of
the human and therefore deny them the benefit of the law.
For the regime then, hailing its own ‘terrorists’ as such, serves, in one
and the same move, four distinct politically productive purposes: (1) It
transforms the ‘political adversary’ so named into a ‘threat’ to the entire
population of the state, if not of the world; (2) It delegitimizes the
cause(s) of individuals and groups so ‘designated’; (3) It rationalizes,
justifies, and legitimizes the violence used against the ‘terrorist’; (4)
Finally, it strikes a silent political pact with western powers for a
diplomatic shield to its practices. This, however, is a very risk intensive
adventure. There is no guarantee that the use of the legal system for
oppressive political ends generates and crystallizes the power effect
expected by any party.
From “the case against Eskinder Nega and 23 others” to the ongoing “case
against the 29 defendants”
Since its
<
http://www.hrw.org/news/2012/06/27/ethiopia-terrorism-law-used-crush-free-s
peech> Anti-terrorism law began to function as a weapon synchronizing
political action with the discourse of truth and justice, we have seen
courts as the key strategic tools used to harass and eliminate regime
adversaries from the political sphere in this way. But the recent trend is
quite alarming. In the last four months, the Ethiopian High Court convicted
and sentenced several prominent journalists, opposition party leaders and
activists under its sweeping anti-terrorism law. In another high
<
http://www.gulelepost.com/2012/11/12/the-comical-charges-against-ethiopian-
muslim-leaders-amharic/> profile terrorism case against 29 Ethiopians, the
government is staging a sensational show to redefine not only the terms of
engagement between friends and foes but also the limits of tolerable
dissent. But does all this succeed in eliminating regime adversaries or in
creating the image Ethiopia wanted to create ? Whatever their political
goal, neither Ethiopia nor its victims of political justice can control the
political effects of these trials—no one has the monopoly over the ultimate
impact of these trials.
When law is called upon to eliminate political adversaries, trials
degenerate, threatening to expose or unmask not only the instrumental
function of the law and the court process, but also the nature of power
politics in Ethiopia, making the invisible visible, in ‘all its brutality
and secrecy’.
These trials are touchstones in new and different ways. They represent those
rare moments in the life of a body politic when public authority reveals its
true essence. In calling its adversaries to judgement, it exposes itself to
the judgment of the very public in whose name it exercises the
right/authority to judge. To condemn men of
<
http://www.pen.org/viewmedia.php/prmMID/6494/prmID/172> exemplary sacrifice
and moral imperative under the guise of law and order, only generates more
embarrassment and irredeemable moral failure. As Aung San Suu Kyi noted:
“The root of a nation’s misfortunes has to be sought in the moral failings
of the government.” I am not suggesting that all victims of political
justice in Ethiopia had no case to answer. Not at all! The point is this:
when the judicial machinery is activated against a political foe, the
indictment is simply a cover-up, a smokescreen, for behind the scene
political struggles.
If ‘law and public order’ constitute the epicentre of criminal justice, its
centre of gravity, history reminds us of the double inscription of this
discourse. In the trials of John Lilburn, Nelson Mandela, Daniel Berrigan,
the Rosenberg Brothers, Susan Anthony, Birtukn Midaksa, Eskindir Nega and
the current case against the 29 Ethiopians, we see a tension between at
least two conceptions of both law and order. Whatever the implications of
each position, these trials demonstrate the double-movement at work in the
invocation of the discourse of law and order and its historical
susceptibility to various interpretations. In many of these trials, we have
the most complete clarification of the violence represented by conceptions
of ‘law and order’; a clarification that demonstrated that these defendants
had a more responsible and just understanding of law and order than their
prosecutors.
The story of Nelson Mandela from the
<
http://www.nelsonmandela.org/omalley/index.php/site/q/03lv01538/04lv01600/0
5lv01615/06lv01616.htm> dock at Pretoria (1956-60) and
<
http://law2.umkc.edu/faculty/projects/ftrials/mandela/mandelaspeech.html>
Rivonia (1963-64) is the most paradigmatic case. For Nelson Mandela and the
ANC, true ‘law and order’ aspires at notions of justice and freedom, dignity
and equal opportunity for all. Law and order retains its legitimacy only
when it pursues ideals that Mandela famously articulated as a “free and
democratic society” for which he was “prepared to die.” But Apartheid sees
the resistance of the ANC as disruptive to the constituted ‘law and order’
regardless of the ‘racial inequality’ the order is designed to enforce.
While there is no symmetry between Ethiopia today and Apartheid South
Africa, the logic that animates the deployment of the legal system against
the political foes is one and the same. For those dragged before Ethiopia’s
courts in the name of law and order, a just ‘law and order’ resides in
something beyond itself, in its legitimacy, responsibility and justice.
As a ritual moment, these trials embody a historicity that transcends itself
both in time and space. It was Hannah Arendt who reminded us of this
‘condensed historicity’ when she characterized the Dreyfus trial as “a
fore-gleam of the twentieth century”.
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[6] Just as one cannot write a complete history of Apartheid or Israeli
Occupation of Palestinian lands or the history of the United States of
America without an account of how the judicial system sustained these
practices, rationalizing and justifying Apartheid, occupation and slavery,
respectively, one cannot begin to articulate the history of the last two
decades in Ethiopia without accounting for the strategic role assigned to
the legal system and its courts. The mass trials of members of the
<
http://www.amnesty.org/en/region/ethiopia/report-2008> CUD post 2005
election, the second arrest and imprisonment of
<
http://www.guardian.co.uk/world/2010/sep/08/ethiopian-facebook-protest-birt
ukan-mideksa> Burtukan Midaksa, the terrorism trials of several Oromo
political leaders and activists and others touched the fabric of Ethiopians
and will help the public to navigate through the dense irony of law,
politics and history.
Conclusion
Our understanding of these trials is critical for conceptualizing and
articulating a new political universe, a new political subjectivity and a
new standard of justice, one that is inclusive and reflexive but always
attentive to its pedagogic imperative: the recognition and acknowledgement
of past injustices, conquests and longstanding resentments.
In the end, if there is anything didactic about Ethiopia’s blasphemous
spectacles of justice, it is the power-rationalizing and order-legitimizing
function of its courts, a function that threatens to denaturalise and unmask
the contempt with which the system holds its law and institutions of
justice. If the current instigators of political trials in Ethiopia were to
be prosecuted under the same rules they were invoking against their foes and
before the same courts they were prosecuting their adversaries, they will be
guilty as charged on every single count. Like
<
http://nazret.com/blog/index.php/2007/07/03/ethiopia_seye_abreha_and_tamrat
_layne_fo> Tamrat Layne and Siye Abraha before them, the machinery they use
will not spare them. Those who dragged before them the likes of Burtukan
Midaksa, Eskinder Nega, Bekele Garba, Olbana Lelisa, Andualem Arage, Daniel
Bekele, Taye Dida, and the current defendants, will be guilty of the
politics for which they are accusing these defendants.
<
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f1> [1] Judith N. Shklar, Legalism: Law, Morals, and Political Trials,
(Cambridge, Harvard University Press, 1986) at 146.
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http://C:/Users/0905060a/Desktop/Ethio.%20case/Opendemocracy%205.doc#_ftnre
f2> [2] Ibid. at 144.
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http://C:/Users/0905060a/Desktop/Ethio.%20case/Opendemocracy%205.doc#_ftnre
f3> [3] Otto Kirchheimer, Political Justice: Using Legal Procedure for
Political Ends, (Princeton, Princeton University Press, 1961) at 46.
<
http://C:/Users/0905060a/Desktop/Ethio.%20case/Opendemocracy%205.doc#_ftnre
f4> [4] Irving Stone, Clarence Darrow for the Defense, (New York, New
American Library, 1969), p.130.
<
http://C:/Users/0905060a/Desktop/Ethio.%20case/Opendemocracy%205.doc#_ftnre
f5> [5] See Michel Foucault, Society Must be Defended, (London, Penguin
Books, 2003) at 134.
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http://C:/Users/0905060a/Desktop/Ethio.%20case/Opendemocracy%205.doc#_ftnre
f7> [6] Hannah Arendt, The Origins of Totalitarianism, (New York, Meridian,
1958), at 93.
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Received on Sun Dec 02 2012 - 17:20:57 EST
