Given Ethiopia’s fragile and unusual political situation, a restorative rather than retributive approach to transitional justice appears to be appropriate, believes Dr Daniel R. Mekonnen, a human rights lawyer and activist.Since April 2018, Ethiopia has been undergoing a major political transformation, which includes experimentation with a second bout of transitional justice in less than three decades.
The first version in the 1990s did not succeed in ushering in a viable democratic order. Version 2.0 began after the arrival of ambitious Prime Minister Abiy Ahmed in April. Although a work in progress, the new experiment displays critical shortcomings that need to be addressed urgently to ensure the political transformation benefits future generations.
The Prime Minister’s initial reform measures have been widely appreciated. They included the release of 13,000 political prisoners, the decriminalization of rebellious exiled organisations, and a major breakthrough in the frozen conflict with Eritrea.
Without diminishing these positive developments, I want to focus exclusively on one particular problem: transitional justice. The root of the challenge is following a retributive model of justice in the context of a political transition characterized by serious instability. In the current context, I discuss retributive justice vis-à-vis the contrasting model of restorative justice.
For ease of reference, and at the risk of over simplification, I differentiate the two as follows: A retributive model focuses primary on punishing the offender; restorative justice focuses on repairing harm, without excluding other forms of accountability, such as truth-telling. In restorative justice, the aim is restoring “a balance that has been knocked askew,” as Desmond Tutu once put it.
The approval of a reconciliation commission in December was a significant development, but the government had already taken measures that should have preceded its establishment.
My working assumptions about the government is that, despite the Prime Minister’s power and popularity, it is nothing more than a caretaker administration entrusted with the tricky task of leading the country to a democratic order.
This administration is operating under extremely difficult circumstances, constrained by challenges including: a legacy of gross human rights violations, complicated by mismanagement of ethnic federalism; and a major threat of instability from the old guard of the former regime. We can also add the ‘Eritrea factor’.
Old guard refers mainly to sidelined elements of the Tigray People’s Liberation Front (TPLF), one of the four constituent parts of the ruling front. An overview of how the transition unfolded helps understand their influence, and thus the difficulty of implementing a retributive model.
After popular uprising spearheaded by the Qeerroo movement, the transition took form as a result of internal EPRDF change, paving the way for Abiy’s radical reformism. Although not strictly regime change, there has been a fundamental realignment, as key TPLF figures were removed from federal influence. Given that some of these figures used to enjoy extensive networks in the security and military apparatus, it would be unwise to assume that their influence will disappear so quickly. These dynamics are one reason why a model of retributive justice is problematic.
There are some developments in the country, which are indicative of the fact that the challenge posed by the old guard of the former regime is not something that can be underestimated as a trivial matter. One particular concern is related to the combination of a growing nationwide instability and a fomenting sense of humiliation by the old guard of the former regime. Some of these developments are the result of a lack of foresight from the EPRDF’s young leaders. I believe there is still time to alter course.
Ethiopia’s recent history is marred by political violence perpetrated by successive repressive governments. Naturally, accountability for gross human rights violations looms large in the contemporary political discourse. However, our understanding of the current transitional justice question is incomplete without appreciating that the present situation defies conventional theoretical constructions, as it does not fit well into any of the prominent models.
For example, a well-known study by a leading expert on this topic, the former Deputy Chairperson of the South African Truth and Reconciliation Commission, Alex Boraine, identifies three major scenarios that present transitional justice options. The first is a full military victory, as in the Nuremberg Trials, and the Ethiopian experience of the early 1990s. The second scenario involves emergence from totalitarianism after elections, as in Latin America and East Europe. The third is the result of a process of peaceful negotiation between democratic forces and repressive regimes, as in South Africa.
Ethiopia’s current experience resembles the third model as it is a transition carried out by a government pushed into action by internal and external pressure.
One key feature of the transition is that it is taking place in extremely precarious unstable conditions. Because of this, retributive justice needs to be handled with extreme caution and should probably be a low priority for the government. Some of the suspects still enjoy considerable influence, making prosecution problematic, and potentially setting back the democratisation efforts. Others, including Ethiopian activist and commentator, Ezekiel Gebissa, agree: “The old guard of the ruling party, though unable to engineer a return to power, retains residual power enough to sabotage the transition.”
There are several conflicts in Ethiopia currently, which can be broadly categorised as ethnic, political, and geographic. While most of these conflicts are localised conflicts over territory, driven by open political disputes, they are fertile grounds for disgruntled security operatives working at the behest of the old guard.
Additionally, in most cases, a retributive model has been implemented by the vanquisher; so-called ‘victor’s justice.’ But this is not the case in present-day Ethiopia in the sense that the proposed retributive model is against former leaders of the same organisation, the EPRDF, which also happens to be the main driver of the transition. Herein lies the paradox of the Ethiopian experience, which calls for a critical interrogation into it.
Well-known principles of international law oblige states to punish certain categories of international crimes, such as torture. But it is also not difficult to imagine that in some cases such obligations are difficult to implement because of the political situation. While scholarly opinion varies in this area, there is near consensus on the following.
As seen in the experience of South Africa, for example, a negotiated transition anchored on the parameters of conditional amnesty can be taken as a viable option if administered in a responsible, democratic and participatory manner. This refers only to politically motivated crimes. This is an option necessitated by pragmatic considerations that do not completely ignore the need for alternative forms of accountability, one of which is truth-telling through a suitable national process. In several experiences, this has taken the form of a truth and reconciliation commission, provided such a process is administered democratically.
Road to where?
So, there is one glaring problem right now: the caretaker government does not seem to have the necessary wherewithal for a model of retributive justice. Given the present political situation, this model may not be successful. The balance of power between the new and old EPRDF is precarious enough to necessitate a negotiated and well-defined political settlement. The sooner this can be done, the better. Until recently, however, the Ethiopian government’s approach to transitional justice lacked the most rudimentary conceptual framework.
A major omission is the absence of a specific roadmap. The December establishment of a reconciliation commission is an important positive step, but this occurred eight months after Abiy took office. And before promulgation, the government took drastic measures that contradict the spirit of national reconciliation, such as the prosecution of former senior members of the intelligence and prisoner service. That undermined Abiy’s message of love and reconciliation. The well-known conundrum, the so-called ‘dilemma of transitional justice,’ or the justice versus peace dichotomy, requires more rigor than this.
Opposition politician, Lidetu Ayalew, a well-known centrist, explained the challenge when he said: “The talk is about love. To be honest, there has never been a time when we hated each other like we do now. The talk is about reconciliation. To be honest, the politics of revenge has never raged as it does now. The talk is about unity. In practice, we have never been divided like we do now. We are marching under four or five different flags. Isn’t it? We talk about forgiveness but what we see is a country where people are crucified in a town square.”
Complicating matters, the kind of retributive justice in action appears to be selective: picking a certain category of offenders and ignoring others without sufficient explanation. Prompted by such concerns, Merera Gudina of the Oromo Federalist Congress argued: “In the course of dispensation of justice, it is incumbent on the government to act fairly. In earnest, fairness cannot be served equally by prosecuting a suspect from Tigray and doing nothing about a suspect from Oromo or Amhara. If they [suspects from Tigray] ask questions about equality of treatment, it is only fair to do so.”
As a former political prisoner, who experienced EPRDF’s ruthless suppression of dissent, Merera’s observation is perhaps one of the most helpful perspectives one can get in present-day Ethiopia. As a victim of human rights violations, one would expect him to push harder in a vindictive tone, regardless of any alleged inconsistency. His concern suggests the government is pursuing a flawed approach.
If the intention was to completely wipe out TPLF leaders from the political landscape, the plan may prove counter-productive. This can only be done in the context of a vanquisher and a vanquished, which is not the case. In fact, in Tigray, which matters most for party leaders, the organization has demonstrated a surprising degree of revival, as seen in the Mekelle rally of Dec. 8.
The punitive approach towards TPLF leaders also comes with the troubling consequence of generating a siege mentality in Tigrayans, which in turn provides a much-needed boost in popular legitimacy for the TPLF. At the moment, Tigray is also the most peaceful and secure region. For the TPLF, the latest developments have come as a blessing in disguise. For national political stability, it is a cause for concern.
Overcoming an urge to settle scores, all political actors need to sit down for a sober, substantive and candid dialogue without which the dividends of the political transformation may not be salvaged for the benefit of future generations.
From a regional security point of view, there cannot be a lasting peace between Ethiopia and Eritrea without restoring normal relations between the two regions of Ethiopia that Eritrea shares a border: Tigray and Afar. For a number of historical reasons, Eritrea’s relations with Tigray are far more complicated than with Afar. Despite the July 9 Ethiopia-Eritrea peace accord, the relationship between Eritrea and Tigray is far from normalized.
There must be peace first between Eritrea and the two bordering regions before talk of peace between Eritrea and Ethiopia. This is particularly true with regard to the relationship with Tigray. And for this to happen, there must be peace first between the two political organisations, TPLF in Tigray and the People’s Front for Democracy and Justice in Eritrea. At the center of this issue lies the right to cross-border identity for individuals with roots in both countries. These issues need to be addressed in a systematic manner in dedicated forums contribution. Thus far, however, the approach of the two governments in this area has been lacking.
My reservations about the retributive model of transitional justice should not be perceived as obliviousness to the suffering of victims of human rights violations in Ethiopia. As I have suffered political persecution in an Eritrean context, and as a human rights lawyer and defender committed to ending impunity, I am cognizant of the discomfort I may cause to victims of the former EPRDF regime. But my objective here is assessing the delicate choices the government has to make at this critical juncture.
The salient question is: How can this process be salvaged from becoming the next stage in a vicious circle of vindictiveness?
For nearly three decades, the military and security apparatus of the Ethiopian state was by and large under TPLF control. In this context, it would be naive to assume that the influence of the TPLF will vanish into thin air in a matter of months, thus making it easier to entertain the idea of a retributive model. Experience shows that this is possible only in the context of political transition preceded by a full military victory, in which the experiment is shaped by the victor’s own sense of justice. In my view, Ethiopia is far from this context.
There is a growing resentment in Tigray driven by the perception that Tigrayans are being victimised by a selective retributive justice carried out by partial victors. That is bad news for the EPRDF, bad also for the federation, and such a rift with a major regional state threatens the political transformation.
To overcome the precarious challenges of a shaky transition, Ethiopia therefore may have to recourse to a restorative model of transitional justice.
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Oct. 21, Ethiopia: Climbing Mount Uncertainty