Monday, April 15, 2024
In DepthSetting up Ethiopia's transitional justice system to pardon or prosecute

Setting up Ethiopia’s transitional justice system to pardon or prosecute

Many people’s memories of the terrible events that took place during the war in northern Ethiopia over the past two years persist, casting a shadow over the country’s efforts to rebuild. The factors behind this particular war, however, go back decades, if not centuries. Regrettably, there is no assurance that another wave of fighting will not erupt.

In January, a draft document dubbed “Policy Options for Transitional Justice” was unveiled by the Ministry of Justice. Its purpose is to end the perpetual cycle of violence in which Ethiopia has been mired for so long. The government accepted the transitional justice proposal made by the Joint Investigation Team (JIT) in its initial report on the northern Ethiopian war in 2021.

The JIT consists of representatives from the Ethiopian Human Rights Commission (EHRC) and the United Nations Office of the High Commissioner for Human Rights (UNOHCHR). The Ethiopian government is planning to build its own transitional justice structure, despite pressure from the United Nations, international human rights organizations, and western governments to allow international investigators to investigate human rights breaches during the Tigray war.

The war in northern Ethiopia and Oromia during the past couple of years is all that the International Commission of Human Rights Experts on Ethiopia (ICHREE), established by the UN Human Rights Council (UNHRC), can investigate. Nonetheless, the current domestic transitional justice strategy dates back decades.

All possible means, however, are being pursued by the government in an effort to end ICHREE’s mandate.

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Demeke Mekonen, the deputy prime minister and foreign minister, Gedion Timotwos (PhD), the minister of justice, Tagesse Chafo, the speaker of the Parliament, regional presidents, and other authorities kicked off the first consultation session on the green paper on February 6, 2023.

A total of 59 consultations with the public will be held in selected areas across Ethiopia.

The Ministry of Justice’s Transitional Justice Working Group of Experts (TJWGE) member Adi Dekebo estimates 13 weeks for this procedure to be completed. “Currently, we are at the pre-policy adoption stage.”

The process of transitional justice starts with public dialogue.

After hearing from the general public, victims, CSOs, political elites, and other interested parties, the policy paper will be accepted, ratified, and put into effect by means of specialized institutions that will be established for this function.

The green paper provides alternatives as a starting point for the public consultation, but the final decisions will be based on numerous modalities to identify and address the problems in the transitional justice system.

Genocide, crimes against humanity, war crimes, and other forms of human rights abuse will all fall under the remit. Because victims want all criminals to face punishment, the second approach is to encompass all human rights abuses.

Those responsible for the crime, whether they be individuals or organizations, are expected to be held accountable. The Supreme Court and the High Court will each have their own special benches.

The alternative is to create a new type of court—a special court—that has its own authority and jurisdiction. The Constitution allows this so long as the new court does not interfere with the authority of other courts.

But the recently appointed president of the Supreme Court, Tewodros Mihert, says that there are two issues with setting up a separate special court.

“First, it requires interpreting the constitution. Secondly, once the special court is established, it will become a culture. So the transitional justice cases should be seen in the existing court system. But still, it is questionable whether existing courts can handle such cases.”

On the other hand, Marshet Tadesse (PhD), another member of the Working Group, argues that a special court should be established because the regular courts are inadequate.

Using the preexisting police force is the default option when considering who would carry out transitional justice. A special office of the Attorney General might also be set up like the one that existed after the Derg was overthrown.

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The mission to uncover the truth will focus primarily on victims and perpetrators. A reconciliation commission could be set up as a first option. Second, we can make use of pre-existing organizations like the National Dialogue Commission. The EHRC is also a potential location.

The process of reconciling can be carried out by a National Dialogue Commission, a Reconciliation Commission, or any other similar body. Nonetheless, the Dialogue Commission’s establishing proclamation would have to be revised to reflect the additional mandate if it were to be designated for such reasons.

Anyone guilty of the wrongdoings, be they armed groups, regional governments, the federal government, institutions, or people, must apologize, and the victims must be compensated. It’s also suggested that prosecutors use some discretion in their prosecutions. Offenders will be forgiven if they come forward, take responsibility for their actions, and ask for forgiveness, while victims have the right to go public with their stories of victimization.

An unconditional amnesty would be a violation of human rights under international law, so there will be none granted. Thus, authority to grant amnesty could be transferred to the new commission or another institution, such as the MoJ.

Reparation will also play a part in transitional justice. This work might be done by the EHRC, NDC, or a new commission. Last but not least, transitional justice entails institutional transformation, in which ex-offenders are barred from working in the same capacity.

Five potential time frames for transitional justice have been proposed by the MoJ’s expert team.

One beginning date is 1991, while the other is 1995, the year the current constitution took effect. The third possibility is going back to when Prime Minister Abiy Ahmed (PhD) first took office in April 2018. The alternative is to use these years as a baseline and look backwards at what led up to this point.

Stakeholders are now participating in pre-draft consultation on the roadmap, which has been approved. Inputs from the general public and society at large are then sought. At that point, the green paper will become a white paper, and its eventual outcome—a policy document on transitional justice—is anticipated. The policy will then be put into effect at long last.

“For all these options, the victims can suggest another alternative,” says Adi. “We aim at having organic transitional justice in Ethiopia, but under the guidelines of the UN and AU transitional justice policy frameworks.” The team of experts also ratified a communication strategy to avoid arbitrary leaks of information during the process.

There is consensus among government officials on the importance of transitional justice in Ethiopia, although some outsiders argue that it’s impossible to change the past.

Experts warn that the disclosure of previously unknown facts could spark fresh hostilities, particularly among Ethiopia’s many diverse ethnic groups. For them, the most important thing is to forget the past and forgive in order to move forward with transitional justice.

“Finding the truth is the core of transitional justice. But the truth might cause danger when it is discovered. The victims we talked to said the truth must be discovered, even if it is dangerous,” Mitiku Chere, an expert at OHCHR, said. He claims that the victims stressed that an independent, autonomous, and strong institution must be assigned the truth-finding mission.

While victims are willing to talk to human rights experts about transitional justice, they are worried that the government will not be held accountable for their wrongdoing, according to Mitiku.

More than 5,000 people were brought to trial, and 3,000 were handed punishments as part of the transitional justice system established after the Derg fell. Several reforms and actions were implemented after the Ethiopian Peoples’ Revolutionary Democratic Front (EPRDF).

Inadequacies characterize both of these phases of transitional justice. There were no discussions, they did not include everyone, they lacked a policy framework, and they were not prioritized or arranged in any kind of logical order.

Transitional justice was attempted in both cases through the employment of the preexisting court system; however, this was insufficient to address human rights breaches such as crimes against humanity, torture, and others.

Marshet believes uncovering past injustices is not optional but rather a must, even though going back to the distant past makes it difficult to ensure accountability. “In the past, we tried superficial transitional justice. These injustices are not limited to the northern Ethiopian war,” Marshet said. “But we have to clarify who did what in the distant past.”

He claims that the transitional justice initiatives in some countries date back as far as 365 years, clarifying every wrong and bringing about reconciliation. The process of discovering the truth, he says, is intricate and unique. “Consulting and recognizing marginalized voices is empowerment and healing in and of itself. So, we can go to the distant past if Ethiopians wish,” underlined Marshet.

Many organizations and methods will be available to put the policy into action after it is ratified. It is anticipated that several commissions will be established, with each charged with independently overseeing truth-finding, documentation, prosecution, reconciliation, reparation, and other related initiatives.

Although the transitional justice project is held by the government, it is expected to be funded by international donors.

“Peace building is an expensive project compared to dams. But it saves the dams from being destroyed by conflict. We hope to design organic Ethiopian transitional justice. We cannot progress to tomorrow with denial, silencing, and mis-narration,” Marshet says. Many injustices have been carried out in Ethiopia, according to him, who believes compensations, recognitions, healing, and reconciliation are a must.

“Many developing countries say they do not have the resources to compensate. But rehabilitation can also work. This will stop the victim narration in the future,” added Marshet.

For Marcel Clement, UN high commissioner for regional office for east Africa, ensuring generational justice, healing, and reconciliation requires a long period of time, and there is no ‘one size fits all’ solution. “I am pleased Ethiopia is searching for its own path.”

Nonetheless, the concept of transitional justice may seem idealistic to others. As a result, they claim, constraints on time and breadth are necessary.

Somali regional state president, Mustafe Oumer, identifies narrative conflict, community division, divisive history, and communal acrimony as defining features of Ethiopia’s historical wrongs.

“Ultimately, we move forward as a society and a country when the victims heal and are able to let go of the past and move forward. If we go back in time, the victims and offenders will have passed. I prefer 1991 as a starting point because most of the victims since then are alive. Derg and EPRDF transitional justices have gaps. But going beyond 1991 will also require extremely huge resources,” Mustefe said.

He recommends that the NDC view the historical issues with an eye toward the present and future of the country. Mustefe argues that transitional justice represents this prospective look.

Experts worry that it is difficult to hold groups accountable because ethnicity, religion, language, or political groups are usually behind the actual offenders. Groups are often responsible for the majority of human rights crimes in Ethiopia. These individuals or groups do not stand alone, since there is a certain social backing behind them. An offender for one ethnic group is a hero for another. Scholars say that there will be overwhelming claims, accusations dating back generations, and many regimes.

“There is a strong sense of victim and offender narration, real or perceived. Ethiopia cannot succeed in nation-building without solving this. Democracy cannot happen,” stressed Adi.

Mustefe agrees.

He believes amnesty should not be allowed unless the crime is established and the perpetrator publicly asks for a pardon.

“Politicized amnesty neither serves justice nor politics. Impunity will offer only bad lessons,” Mustefe explained.

“The current context in Ethiopia requires transitional justice. There have been bold human rights violations in the past that have only gotten worse in the past few years. There are so many victims that this cannot be resolved through the mainstream transitional justice system. Ethiopia must reconcile with itself,” justified Adi.

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Video from Enat Bank Youtube Channel.

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