The Ministry of Justice (MoJ) established a Transitional Justice Working Group of Experts to work on the policy-making process for Ethiopia’s transitional justice. The working group oversees the input collection, stakeholder discussion, drafting of the policy, implementation, and monitoring. The process is currently in the pre-drafting stage.
Marishet Tadesse (PhD), a member of the group, has assignments that see him preside over meetings with stakeholders from all walks of life to discuss a document his team drafted on transitional justice. His previous work has focused primarily on the Red Terror and post-Derg transitional justice trials.
Ashenafi Endale of The Reporter talked with Marishet, a law professor at the Civil Service University, about the goals and progress of the transitional justice process. EXCERPTS:
The Reporter: Can you tell us about your profession and past experiences with transitional justice?
Marishet Tadesse (PhD): My areas of work are largely on international criminal law, transitional justice, and criminal justice. I did my PhD at the Humboldt University of Berlin on transactional justice experiences and the trend of resolving past injustices in Ethiopia. My thesis, dubbed ‘Prosecution of Politicide in Ethiopia: The Red Terror Trials,’ has also been published as a book. The book stresses that Ethiopia needs comprehensive, genuine transitional justice in order to conduct successful transitional justice and break out of the cycle of violence.
Currently, the team is preparing to make the green paper. What are the activities it is conducting?
Members of the working group are comprised of professionals who have been advocating for transitional justice in Ethiopia in the past. Most of us have been lobbying for transitional justice since 2016. Immediately after Prime Minister Abiy Ahmed (PhD) came to power, close to seven of us wrote an open letter to the PM, stating transitional justice is crucial for Ethiopia. We have also been lobbying the MoJ and have been part of the legal reform initiative underway since 2018. I was a member of the criminal justice working group formed under the Legal and Justice Advisory Council (LJAC).
We conducted a diagnostic study on criminal justice in Ethiopia. The study indicated the critical nature of transitional justice for Ethiopia. The UN Human Rights Council and the Ethiopian Human Rights Commission also recommended transitional justice for Ethiopia in their reports related to the northern Ethiopia war. The Pretoria agreement also stressed the need for transitional justice under the African transitional justice framework.
The team conducted studies based on existing documents and methodologies. It demonstrated that transitional justice is essential for Ethiopia to veer from its previous course and that independent bodies must carry it out.
Transitional justice is not only about reconciliation and accountability. It has to align with regional and international standards. The AU’s transitional justice policy should also be included. For instance, in Senegal, truth-seeking and the accountability task are done simultaneously. When you investigate the truth, you find the victim and the perpetrator at the same time. Both have competing characters. So this cannot be done without a clear framework.
So, we created a green paper in accordance with the working group’s study. This paper is being used as a point of discussion among all stakeholders. It is not even a draft of the transitional justice policy; it is just a green paper. We prepared it just to initiate the discussion. We officially launched the series of public consultations and input collection on March 6, 2023.
We have prepared a roadmap for the input collection. The guiding document indicates with whom we will discuss, when, and where. This document categorizes the transitional justice process into three parts.
The first is the pre-drafting working stage, which is about collecting inputs. Currently, we are at this stage. The inputs will be compiled into a report form, and at the same time, raising awareness is done through the media. There are so many misunderstandings. The nation’s perception is just transitioning from “no need for transitional justice” to “we need transitional justice.” The confusion is not only among the ordinary people but also among the elite.
The second stage is the actual policy-drafting stage. Based on the collected inputs and other countries experiences, the policy will be drafted.
Once the draft is crafted, additional feedback will be sought from limited stakeholder, but not as widely as the public consultation. After the final revision is made, we will submit the draft to the government. So these are the main mandates of the working group of experts.
Transitional justice is necessitated for a society or nation in a transition. Ethiopia underwent a political transition in 2018. From what context do you see the transitional justice now? Are we still in a political transition?
This is very complex. Transitional justice is basically necessitated for nations in post-conflict or post-dictatorship government systems. It is not time-bound and not necessarily related to a change in government. This is about resolving large-scale, gross human rights violations.
Reconciliation is a generational exercise. It is like democracy. Massive, gross human rights violations are remedied in transitional justice, but not each and every violation.
From a political perspective, Ethiopia is not in transition. There is no regime change or political change under way currently in Ethiopia. But Ethiopia is in the wake of conflict. There are also ongoing conflicts and hostilities. At the same time, we are in a post-conflict situation. This cannot be resolved under the normal approach without transitional justice.
AU’s transitional justice policy, under Article 20, also states that transitional justice is not attached to a specific time. It is a long process. It is not an event. The major objective is to resolve past massive, large-scale, and gross human rights violations. So in general, I conclude Ethiopia is in transition.
The International Commission of Human Rights Experts on Ethiopia (ICHREE) was set up by the UN to look into the violations of human rights that have happened in Ethiopia over the past few years. The National Dialogue Commission is also embarking on similar mandates, and the government is also undertaking different reform initiatives. How does transitional justice integrate with these different initiatives? Or does it overlap?
This is a core issue. This indicates the necessity of the policy framework for transitional justice to synchronize with different mechanisms and methods. That was the missing point in Ethiopia in the past. At different times in the past, Ethiopia has tried to implement transitional justice in a disjointed manner. A policy framework is required to create a complementary transitional justice system.
Regarding the external pressure, we need to handle it at the proper place. Of course, Ethiopia has the responsibility to ensure accountability. It is a commitment we have entered into, both in the constitution and in international agreements. But as we learned from post-Derg transitional justice, we cannot transform Ethiopia only through accountability.
Secondly, timing and sequencing are key. Who should be held accountable, when, and how? Unless it transforms the country and ensures peace, accountability should not exacerbate or lead to another cycle of violence. Unless it contributes to transforming Ethiopia, that should not be something we pursue just because of external pressure.
I am not saying we should abandon or forsake accountability forever. But if the context demands it, we have to postpone it. That is the issue of sequencing and prioritization. That is why a policy framework is required.
The other issue is duplication of efforts and initiatives. Accountability or other measures of transitional justice must take into consideration the local context. Context-specificity is essential.
One of the prosecutors of the special court of Sierra Leone said, after working on the investigation and prosecution team in Sierra Leone, that “our sense of justice is completely different from the sense and perception of the Sierra Leonese. We imposed our sense of justice on the ordinary people of Sierra Leone.” This is why context specificity is very important. Everything we have to do as Ethiopians or as an international community should be based on the needs and aspirations of the victims and the people we target.
I see other initiatives by international institutions as complementary. But we need to take into account the local context and reality. At the end of the day, the agenda is about transforming Ethiopia. Unnecessary pressure is not helpful. The international community can support the domestic initiatives. If they think domestic initiatives are not efficient to ensure accountability, they can contribute by enhancing capacity. The grand role of transitional justice is a transformative one. It is also about creating institutions that will avert human rights violations in the future.
Building the capacity of local institutions is very important. Has the International Tribunal Court (IRC) done that? No. In Rwanda, it prosecutes many former genocide perpetrators, but it is not based in Kigali but rather in Arusha. So in terms of domestication, we can draw lessons from that.
Once the working group finalizes the transitional justice policy, who will implement it?
One of the lessons we learned from the past is to avoid duplicating efforts. In the third section of the green paper, we stated alternative institutions for the implementation mechanisms. Post-policy adoption will be coordinated and synergized by different institutions and mechanisms. This will be pooled from different stakeholders.
Even if a new commission is established for the implementation part, it will be part of the coordination mechanism. We really tried to draw lessons from our past initiatives so that we would not repeat similar mistakes and avoid blind spots.
There will be several tasks and mandates expected from the transitional justice process. What kind of commission will be established to undertake them?
It can be a reconciliation, a truth-finding, compensation, prosecution, or other commission. We have proposed more than one option for each of these tasks. We have stipulated five policy options in the green paper. This alternative also includes information regarding who should be held accountable for which violations.
The post-Derg and post-EPRDF transitional justice systems showed us that the state of the justice sector was not in a position to ensure independent and credible accountability. You cannot expect a different outcome while dancing with similar moves. So we introduced alternatives for accountability.
In terms of reconciliation and accountability, we also specified alternatives for where the time limit should be, which violations should be addressed, and which perpetrators should be held accountable. How long will the transitional justice go back and cover? Who deserves compensation? Who will pay the compensation? Who should be forgiven? Which laws and institutions will need revisions? Shall we establish a new commission or use the National Dialogue Commission? All these are given alternatives.
Will this domestic body have the power to hold the Ethiopian government, regional governments, or other powerful forces accountable?
A commission of experts established by the UN has an investigative role. Its role is more focused on investigating what kinds of crimes were committed, by whom, and when. It is not about accountability. It is a sort of documentation.
For instance, we recommended that a special court be established as one option to implement the transitional justice policy. This is key to ensuring accountability.
Once this policy framework is ratified, Ethiopia has committed to and must implement the policy. We are talking about gross human rights violations, which could also require interventions from international bodies. There should be no safe haven for perpetrators of international crimes. Once the policy is ratified, the international community monitors whether it is genuine and credible.
Since Ethiopia is responsible for ensuring human rights, the international community has the power to intervene if the policy and its implementation are not right. So the international community still has the power to ensure accountability.
The federal and Tigray governments and other regional forces are mainly responsible for the northern Ethiopian war. What kind of autonomous power can the transitional justice system have to hold the federal government and those forces accountable?
Regarding the power to ensure accountability, we proposed institutions that could do this. The first alternative is utilizing existing courts and legal institutions. So this means a special bench will be established in the existing court system to handle human rights violation cases. The
Another option is establishing a special court.
The transitional justice policy works not only for Tigray. Ethiopia’s problem goes back further than the northern Ethiopian war. Ethiopia’s problem is multi-layered and goes back in time. There are reasons that led to the northern Ethiopian war. So, transitional justice has to go beyond the northern Ethiopian war.
The kind and caliber of institutions we establish to carry out the transitional justice policy will determine the extent of the implementation deficit you mentioned. That is why policy drafting and implementation should not be “top-down.” That is why we prepared the green paper with a range of alternative proposals. It is up to Ethiopians to decide which mechanism will be effective, considering the pros and cons.
The Ethiopian government also needs to understand that the international community is watching. As a nation, we cannot allow the crisis to resurface and pretend. That is not in the interest of ordinary Ethiopians.
Evidence collection will be crucial for the institutions implementing transitional justice. How much manpower, resources, and time will be required?
The transitional justice system has several components. It cannot go much further back in time. Its inherent character limits its ability to go back much further. If Ethiopians decide to do that, it will be more truth-seeking. You can go back as far as possible and find out the truth. But it is difficult to ensure accountability since people at that time might not be alive.
But seeking the truth by itself has its own purpose. When victims openly discuss the crime committed against them in front of the entire country, it has a healing effect on the victims. The purpose is not to ensure accountability. But it is about finding social truth. It is demanding and requires resources. But it can be done if Ethiopians decide the social truth must be found out.
There are commissions that go back 365 years. There are transitional justice practices where over 50 commissions are established in one country. There are sufficient practices around the world. If there is a will, there is a way.
I do not think Ethiopia’s problem is as complicated as that of other nations. The only difficulty is that we did not solve it earlier, and the layers of complexity increased. Amazingly, other countries managed to establish social truths.
There is no question that genocide was committed in Rwanda and apartheid in South Africa. There is no argument that Nazism was committed in Germany. They have uncovered the comprehensive truth, and there is no denial or silencing around this.
So in general, the task ahead of us in Ethiopia is demanding and resource-intensive.
Ensuring peace is expensive. But there is no way around it.
Ethiopians tend to disagree on major issues like nationalism, political complexity, power structure, historical narration, and several other issues. Do you expect the transitional justice system will have all the leverage it needs to go deeper than just scratching the surface?
Some of these issues will be addressed through the Dialogue Commission. The major task of the truth-finding and reconciliation missions of the transitional justice system is identifying the root causes of these problems. Then new legal frameworks and institutional arrangements will be introduced to correct those problems.
If the finding shows that the structure of the state has deep-seated problems, then it suggests ways to fix them. In Kenya’s post-2007–2008 election, the government established a truth-finding and reconciliation commission. Post-election violence is common in Kenya. This commission went deep and uncovered all the factors behind the problem. Based on its findings and recommendations, several institutions were established to resolve the problems.
For instance, one of the institutions works on social cohesion because that is the biggest problem. Parties established along ethnic lines have also greatly contributed to exacerbating the post-election violence.
The main point is that if this transitional justice is inclusive and makes sure everyone is on board, all of Ethiopia’s problems will be resolved. If everybody is on board, everybody will accept the outcome of the transitional justice system.
