HADISH TESFA NETWORK (HTN)     

TOWARDS CRARIFYING THE CONCEPT OF RULE OF LAW (ROL)

Part-1

By Hadish-Tesfa Network, 24 Decembe,2007

1                           Introduction

The concept of rule of law (ROL) is  a very popular concept. But absence of rule of law has brought about incalculable tragedy for our people and the rest of Africa.

As far as our people are concerned, we do not think there is any one who can deny that our people have suffered tremendously in the last 40 years. Despite the unparallel sacrifice our people have paid  over the years, what our people wished and aspired have not been achieved.  They simply have been betrayed by the very so-called leaders who claimed to have fought  to liberate and emancipate them.

By now most reasonable people must understand and realize that Isayas Afewerki’s project has been a tragedy that will continue to be felt by the future generation of our people.  Many  critics now believe that many Eritrean leaders have miserably failed in their mission because they argue that they have become part of the problem than part of the solution. They give us some examples of what is going on within KIDAN and other opposition groups. As a result  critics of many Eritrean opposition groups argue that our people have become like bees that have lost its queen. Human life has become cheap. There is no human dignity and every one can escape is escaping by whatever means even by crossing the most inhabitable deserts of Sudan and  Libya in order to cross  the Mediterranean Sea in very old and risky boats with the hope of reaching the shores of fortress Europe alive. The country is thus becoming an abandoned and betrayed country. There is now hopelessness, helplessness, desperation and  disillusionment. There is  certainly a need for a mental and cultural revolution and fundamental change.  The current political anarchy, moral and cultural degeneration and intellectual confusion and opportunism must stop. Otherwise we will simply have no future.

2                           TOWARDS EPLAINING RULE OF LAW

Given such a tragedy, some concerned Eritreans in Diaspora are trying hard to find a way out to this human tragedy. One idea that is floating around is the concept of RULE OF LAW (ROL). There is no doubt that many  are advocating and aspiring  the rule of law  (ROL) to prevail. This is what we all wish and aspire any way.

But what does RULE OF LAW mean? What do we understand by it? How is it applied in practice? Do we want to see the rule of law on paper or in deeds and in practice? How does one narrow the gap between what is written in the Constitution and practice? Who must enforce rule of law? Whose law are we after all talking? What are the preconditions for ROL? What are the socio-economic, political and other conditions which have to be met for the rule of law to work effectively and for all the people without any discrimination and before the court of law? Is the establishment of an independent judiciary a precondition for ROL to prevail? Is the Western concept of ROL the same as our traditional/local concept of ROL? What kind of ROL do we want to introduce in our society and why? How many distinguish between customary law from modern laws any way? How do we reconcile between our desire to introduce modern concept of ROL with our wish to maintain our traditional values and way of life? Do international  legal instruments help to promote or hinder ROL at national level? These are some of the questions we need to soberly and intelligently ask ourselves and find good answers.

The aim of this article is to provide some of the basic principles, characterstics and concepts of ROL in a way that can be understandable to ordinary people.

2.1                       Definition:

The definition of ROL is defined and understood differently by both scholars and practitioners not to mention by ordinary people. When we say rule of law, what it means is laws  initiated, made or otherwise approved  by the  legitimate and fairly elected representatives of the people as constituted in Parliament or legislative Assembly through a fair and free election system.  Unlike to day and In the old days, Monarchs used to treat their citizens as their own slaves and subjects. What they said goes and no one had the opportunity or the right to challenge them.  They used to issue their own Royal Charters and laws. For example it is around

2.2                       IS THERE A CLARITY OF DEFINTION REGARDING THE RULE OF LAW?

The idea of rule of law is that it is the State or the Government  (Central, regional and local) that has  the authority to make written laws, regulations and decrees to govern its relations with its people or between the people themselves and between businesses and the people. This also applies regarding violations of the different criminal, civil, and other types of laws such as tax laws. To what extent the Government and the leaders adhere and respect its own  laws are crucial. In short, does the government operate without using law would tell the nature of the regime.

The exact content and meaning of Justice, respect for human rights and democracy are also as complex as ROL. The role of law can be both positive as well as negative. One could have a law that undermines human dignity and enslaves people. There are also laws that help to promote equality and even provide an incentive for example to give women and other minorities to have some positive discrimination to give them equal opportunities. The same is true with having laws that are designed to promote fair distribution of  resources  among citizens and regions etc. So we need to know what kind or type of law we are talking about? Te causal link between law and economic development, alleviation of poverty, foreign direct investment and taxation etc are crucial issues where there is considerable divergence of opinion and no consensus has emerged. The relationship between civil and political rights ; and the socio-economic and cultural rights as well as the right to development are also issues that are  relevant to  law but for which there is no consensus. In short, how law can contribute to  or constrain sustainable development  are important issues that should not be divorced from the rule of law issues.

2.3          LAW  (The Constitution and other laws) are instruments and  means and not an end in themselves

The supreme law of the land is the Constitution. All other laws, legislations, regulations and Decrees are in principle subsidiary to the Constitution. In a way, the Constitution is in principle the mother of all laws of the land. But who makes the Constitution? For what purpose and goal or objective? is crucial.  Many talk about Eritrean Constitution. But who made it? Certainly many EPLF supporters claim that this was a constitution made with the participation of our people. There are many people who also think this was made by former  and/or present EPLF/PFDJ members, propagandists and supporters. It was cooked in their own kitchen by their own chefs. There is also another very contested view about who were the true authors of the so-called Eritrean draft Constitution?  There had been claims  and counter claims about that. At any rate, as far as many Eritreans  are concerned it is not a Constitution  as yet.  It is only a draft and no more. Many ELF members and supporters as well as well as many other Eritreans who in one way or another did not support EPLF/PFDJ did not participate in the constitutional making process. It was a draft document prepared by the members and supporters of EPLF/PFDJ. In short, critics argue that it is a document of EPLF/PFDJ  drafted and made without any meaningful participation by our people. Through  a Constitution or other legislations, the Government of the day is supposed to make it clear its fundamental policies, philosophy and vision on many of the most important aspects of governance and the future of the country. It can determine what type of Administrative system it wants to see? It can specify its policy on land and mineral and oil resources as well as water etc as well as its  philosophy about private property and ownership regarding the means of production, the rights and freedoms of the people including workers, the right of women etc.

It is interesting to stress that many ordinary people talk about constitution as if it is a simple thing. The fact is what makes a Constitution relevant, appropriate, legitimate, popular and acceptable by the people  is not that it is drafted by one party, but that those who drafted it or approved it are the true representatives of the will and aspirations of the people.  That is what makes it like a social contract between the rulers or representatives on one hand and the people on the other. In Eritrea there is neither a social contract nor semblance of any understanding what type and kind of society and State we like to have.  As far as we are concerned, we do not have enough and adequate words to adequately describe the nature of the regime we have. It is a fascist  and inhuman regime and State because the regime and the  State is formed in the image of Isayas Afewerki the terrible. There cannot be more inhuman regime than what we have in Eritrea. The laws and practices that are creating human tragedy against our people particularly the Eritrean youth can only be a fascist laws and actions. That is why the question of  who made the law? And what kind of institutions are established? becomes relevant.

It should be stressed that drafting of a Constitution is a technical matter and requires advanced knowledge, skill, and exposure , among others, in many  legal systems. Frankly, even some of us can prepare a draft Constitutional document. In fact, we have one preliminary English draft that we have prepared for consultation. This is to say that any person who has advanced legal knowledge in Constitutional and other laws can draft a document.  That is not a problem. What is surprising is that many non-lawyers  and ordinary people seem to claim to know about Constitution than the lawyers  and legal experts themselves. It is true it contains many broad issues. But the document is packaged in law.

We remember when some of us were studying at Haile Sellassie I University in Addis Ababa  University there were some other students in other Faculties such as engineering, medicine, economics, politics etc  who claimed to know more about Law and Constitution than  the students who studied Constitutional Law. The tragedy was that many students and political activists of  the University claimed as if they have a better understanding of law and  Constitutionalism than the law students  and legal experts themselves. In reality, it was like a lawyer and a legal expert pretending to know a lot about medicine and  clinical surgery. This is also  like trying to be  more Catholic than the Pope. This seems to be one  of the problems. For example, we sometimes read and listen to some Eritreans talking about their wish to see Eritrea a federal state. But what is federalism in a small , poor, conflict ridden country having complex socio-economic, ethnic and other diversities? How does the various theories of decentralization and federalism fit to Eritrean reality? What after all do we in concrete terms decentralize? And from where to whom? And on what criteria or basis?  Is Eritrea the same as Switzerland? Is what we as members of the Diaspora  prescribe relevant and appropriate for those inside the country?  Whose wishes and interests are we promoting? Should the Eritreans in Diaspora decide what is good for those inside the country? Is it right to impose our wish on them? What right do we have to impose solutions for the people of Eritrea?

It must be stressed that politics  is also about competition of ideas, policies and vision.  It is about providing alternative options and choices. Different parties and organizations are organized along their different lines of thinking, ideas and policies.  When we identify ourselves as Hadish-Tesfa Network and Movement for Hadish-Tesfa or Hadish-Tesfa Movement, it is meant to offer a different vision and hope than our people had before. What each of us can do is make our vision and mission clear and let the people decide whom they like to support?  If we  believe that power must be in the hands of the people, and it is they who should decide, then we should leave the matter to our people to decide. What we can do is to inform them and raise their awareness to make a decision based on reason and proper information. As far as we are concerned, some of the biggest problems for our society are  poverty ignorance and misinformation. Eritrean scholars and intellectuals have the responsibility to have a high moral and intellectual ground to educate our people. But where are most of them? What are they doing? Why are the majority silent?  Critics argue that many  Eritrean intellectuals are opportunists who are mainly interested to look after themselves, their core families rather than  sacrificing in deeds to reduce the tragedy and suffering of our people. Whether this criticism is right or wrong is left to the readers to judge. It is not up to us judge. Nor do we have an interest to oppose the Eritrean opposition groups.   But since we know that a house divided against itself cannot win,  we have a right to point out that divisions, fragmentation, undermining each other and accusing one another is neither responsible nor in the interest of our people.  Struggling based on mutual TRUST for each other is the key to success.  But how does one create trust and mutual confidence is the question. Many leaders of the Eritrean opposition must stop their old habits and practices and reconcile with them themselves and others. That is why  advocating for National Conference in a vacuum is not enough. We need to have a Peace and Reconciliation conference first. But this has not been easy to make it a reality.  There are some of us who argue that we simply cannot unite with leaders and groups who continue to undermine our efforts and initiatives and who have betrayed us. In No one can force us to unite with those whom we do not trust because sooner or later their cat and mouse politics will prevent us from making any progress. Thus our view is those who trust one another must continue to regroup and merge and every one must focus against Isayas and his regime and not against each other. That is what we in Hadish-Tesfa Network are happy to announce that we are in the process of merging with other groups, individuals, civil societies towards creating a UNITED DEMOCRATIC MOVEMENT (UDM), or under any other name  the majority may prefer to adopt. We appeal to every serious and genuine Eritrean who thinks he or she can contribute in deeds to bring about a change of regime  in any way to struggle for true liberation, democracy and development of our people. Each and every one is important and most welcome to join us and even lead the organization if they feel they have the dedication, commitment, knowledge and experience etc. Our mission and vision is to leave a good legacy behind us and to produce little Mandelas to restore the pride and dignity of our people and make poverty and brutal dictatorship in Eritrea history and to make rule of law, fairness and justice a reality. This requires your support.

 At any rate, coming back to the main focus of this article, what makes a good and implementable constitution is when the social forces, political parties, scholars, experts and the  representatives of the people seat together and take into account all relevant socio-economic, political, cultural and other national policy matters and reach an agreement that would in effect constitute a social contract of how to live together and govern themselves. Only then will have a  draft constitution  the likelihood of a real constitution that reflects the will and aspirations of our people. To what extent does the Government in effect base its actions on  the Constitution and other laws are also important to know.  Any regime that imprisons, abuses and misuses the human right of its people and deprive them of their fundamental human rights  cannot be said to be operating within the law. On the contrary, if we take the regime in power in Eritrea, it is the main violator of the law and is responsible and accountable for its own actions or for the actions of its security agents. It is like the police who are hired to protect life and human rights of the people  become the worst and inhuman criminals themselves and kill and imprison people at will and subvert the course of justice. This is what is happening in Eritrea. That is why Human rights and democracy cannot function without the rule of law. Thus ROL can thus be seen as one of the foundations for realizing the noble aims. The value of ROL is more important for people whose Governments violate their own laws and who abuse the fundamental human rights of their own people.

The right to participate in government (i.e. an aspect of democracy) could enhance  and strengthen democracy. Anyone who denies others to participate in the politics of the nation can only be a dictatorial regime. The other characterstic about ROL is that it should not only be clear, fair, just, but  must also be intended to solve the socio-economic, political and other problems of society.  It should also be applied without  discrimination whether it is in court or in administration. In areas related to criminal law, the state is obliged to provide due process of law, fair hearing and other facilities  to the accused. For example everyone is innocent until proven guilty before the court of law. Trial by media or by mob can not be fair and right.  It does not lead to either the truth or justice. Everything has to be proved in court to make a person guilty of committing a crime. Unfortunately many people judge others based on “Tebahilu”/ “bela belew” against others without any credible evidence. This is unjust.

2.4                       Legal Guaranttees and the Issue of Implementation

To what extent legal guarantees are provided and to what extent they are implemented is  also crucial.It should be stated that the state exists for the benefit of its citizens and for every individual. It is not the other way round. What exists in Eritrea  is a state and a government that demands total loyalty and sacrifice from its people but without anything in return.

2.5                       Protection against abuse of Power by the State and Government

The issue of checks and balances are crucial. Unlawful government behavior must be checked.  They are supposed to prevent unlawful and  illegal  behavior of a Government. In such a situation whether the Constitution provides fundamental freedoms and liberties is crucial. Many African Governments have many beautiful constitutions, but the people of Africa are the most abused and enslaved people by heir own governments. That is why the question of implementation remains very important. Whether there exists an independent judiciary that is capable of interpreting and applying the law becomes an important precondition not only for ROL but also for the promotion of fundamental human rights, freedom and liberties. It should be stressed that when we talk a struggle for independence it is about the independence of people and not only land. Development is about people and not about building roads after all if 90 % are very poor and are walking with donkeys, the roads are built to serve the cars of those who have cars and to transport goods and services that are consumed by mainly the rich and not the poor.

2.6                       It is not only law that is Important, but also establishing strong, credible and viable Institutions  is very vital for ROL. The tragedy is many Eritreans in Diaspora while living in democratic societies cannot even meet together on a forget and forgive principle to make a national Conference to promote inter Eritrean Dialogue and to promote reconciliation. Instead, they still want to organize conference that is power centered whose focus it is to establish Parliament and care taken Government in Exile. This is tantamount to putting the cart before the horse because there should be  a  national Conference for national reconciliation before national Conference whose main aim is to establish a Parliament and care taker Government in exile. First and foremost, there is a dire need to create an enabling climate a sort of global forum or dialogue that would facilitate the opposition groups to articulate their issues and policies. Those leaders of the Eritrean opposition who cannot seat and drink together with mutual respect for each other cannot suddenly meet tomorrow in a national conference to establish  parliament or a Government in exile. There are many other preconditions that has to be put in place before a parliament  or a Government in exile is established. If power must be in the hands of the people, then it is the people that should decide whom they should support and which views and solutions are in their best interest. As far as we are concerned, our motto is LET THE PEOPLE DECIDE and no one has the power to decide for our people.  So far it is the leaders of EPLF/PFDJ that has been thinking and deciding for our people. This top-down rule must stop. This is not rule of law, but rule by  a fascist dictatorship. If we are to have a better alternative we must have a much higher moral and  intellectual ground than the regime we want to change.

 Unfortunately, many critics argue that even some leaders and members of the Eritrean opposition are practicing the old system- i.e. imposing their wishes and values on our people. Similarly the Eritrean Diaspora cannot impose a parliament or a Government in exile without preparing the ground. Such an approach also does not take into account the wishes and aspirations of those Eritreans inside the country and those in the neighbouring countries. There is no doubt that our society is in crises. We all have responsibility to be part of the solution than to be part of the problem.  Critics argue that the very people who are claiming to decide for the people of Eritrea are the very people who are not sacrificing 2 hours of their time, knowledge and money a day for the collective good of our people. Many are talking and writing in the internet but it does  not seem to be  effective in bringing about a change of regime.

SOME CLARIFICATION REGARDING PCA AND ICJ

By the way do you know that the Permanent Court of Arbitration- the great grandmother of the Court of Arbitration that decided on the Ethio-Eritrean border problem was established in 1900 at Prinsegracht 71 in The Hague? Do you also know that the International Court of Justice (ICJ) is different from the Permanent Court of Arbitration (PCA)?  Many Eritreans do not seem to be aware of this fact.

Eritrea has many rich individuals. But many have not done much to reduce the suffering of our people. This is deeply regrettable. It should also be stressed that an American benefactor Andrew Carnegie donated US 1.5 million to build Peace Palace  in The Hague as symbol of internationalism and venue of Permanent Court of Arbitration and future Peace Conferences. This is the famous Peace Palace that now house among others the Permanent Court of Arbitration and the International Court of Justice (ICJ). There is a confusion among many Eritreans that they are one and the same. They are not.  PCA is not simply the world court or the ICJ.

Part 2 will follow if time permits. For constructive comments/feed back/  please contact us via our contact person: Fisseha@planet.nl

We take this opportunity to express  every one our best wishes for 2008 and beyond!