Dec 10, 2012

The ‘Politics’ in Ethiopia’s Political Trials

The Ethiopian régime 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”.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.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 régime 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 régime’s attempt to incrim­in­ate its foe’s pub­lic beha­viour with a view to evict­ing him from the polit­ical scene”.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 régime 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 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 régime 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 régime 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 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 régime 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 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 régime 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 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 régime 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 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 dock at Pre­toria (1956 – 60) and Rivo­nia (1963 – 64) is the most paradig­matic case. For Nel­son Man­dela and theANC, 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”.4 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 CUD post 2005 elec­tion, the second arrest and impris­on­ment of 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.


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 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.
Repos­ted from Open Demo­cracy
10,Decemeber 2012.


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