Op-ed: Ethiopia’s Transitional Justice without Transition: A tool for democratic peacebuilding or authoritarian entrenchment?
By Milkessa Gemechu @milkessam
Addis Abeba – Following the signing of the Cessation of Hostilities Agreement (CoHA) in Pretoria, South Africa between the Federal Government of Ethiopia and Tigrayan forces, ending the two-year long devastating war in Tigray, there have been international expectations including from the UN Human Rights Council and domestic demands for genuine peaceful resolution of the problem and transitional justice in Ethiopia. Consequently, on 17 April 2024, Ethiopia’s Federal Council of Ministers approved its transitional justice policy intending to address “the overlapping and wide range of victims of human rights violations, conflicts, narratives, and abuses that have occurred in different eras in the country.” However, experts and commentators have been critical of the proposed transitional justice in the present Ethiopia. In this piece, I discuss the canonical understanding of transitional justice in general in light of which I examine the transitional justice policy of Ethiopia.
When is transitional justice needed? There is an emerging consensus in the field on at least two requirements to understand the “transition” in transitional justice: 1) transition from dictatorship to democracy, and 2) transition from conflict to peace. One can list many examples of post-authoritarian and post-conflict societies from Latin America, East Europe, and Africa. In the context of Ethiopia, the question to raise is: transition from what to what? From authoritarianism to democracy? From conflict to peace? From abuses of human rights to respect for human rights? From a violent one-party security state to a unity multiparty government? From lawlessness to rule of law? From hardened social polarization to a united society? From denial and secrecy to acknowledgment and open politics? I am afraid the answer is none of the above. Armed conflicts and violence continue to present challenges in the two major regional states of Ethiopia, Oromia and Amhara. A secret security committee known as “Koree Nageenyaa” continues to order extrajudicial murders and arrests in Ethiopia’s Oromia region, according to a recent investigation. There is an ongoing escalating tension and concerns in the occupied areas of southern and western Tigray region of Ethiopia. That seems why the US has recently made an unequivocally clear policy calling for “a temporary nationwide ceasefire” in Ethiopia.
Ethiopia’s transitional justice policy document determines its time frame and scope from post-1995 Ethiopia for the implementation of the policy. It is not at all clear why the year 1995 is chosen as a departure. After all, 1995 is the year that the multinational federal constitution of Ethiopia entered into force. What about the transitional period (1991-1995), during which serious violations of human rights have been documented? The policy does not pay much attention to the present state of violence particularly the post-2018 period, which I believe should have been the main target of the policy. One of the policy justifications for selecting the year 1995, as written in the policy framework, is “ህዝብ ያልተግባባቸውን የታሪክ አረዳዶችን ከመሰረቱ ለማጥፋት [to entirely eliminate historical interpretations that are publicly controversial].” Such an “elimination” policy looks like the ideological narrative the incumbent Prosperity Party has been advancing since it was formed by merging all semi-autonomous regional ruling parties in 2019 (except Tigray People’s Liberation Front). This particular denial of the past narrative is widely believed to have been part of the ideological problem that caused the present crisis in the country. Planning to “eliminate” some narratives that are unfavorable to the ruling regime fundamentally goes against the very idea of transitional justice that works toward memorialization of the past by countering blatant denials. The policy document therefore raises more questions and doubts than it answers.
This leads us to ask about the goals of transitional justice. The first goal of transitional justice is to serve justice for the victims and “break with the past” for a better future. This presupposes some kind of transition from conflict to peace or from dictatorship to democracy which requires the complete removal of those authoritarian policies, laws, and institutions that facilitated and caused state violence and human rights violations. This in turn requires other goals to be in place such as the support for democratic consolidation, peace and stability, human rights protections, and social reconciliation. In a country whose government is committed to genuine transitional justice, violence would be off the table. In the case of Ethiopia, the goals of transitional justice seem to be none of the above. I argue rather that Ethiopia’s transitional justice intends to serve to cleanse Prime Minister Abiy of his sins, his political party’s ideological interests, and entrenchment of the vision of his political power by manufacturing national and international legitimacy for his government.
Contrary to what is happening in Ethiopia, the idea of transitional justice emerged to help post-conflict and post-authoritarian societies deal with their historical legacy of human rights violations aiming to repair and reconstruct relations among societies and with the state through various proven mechanisms. The transitional justice mechanisms generally include (1) a criminal justice component, (2) truth-seeking, truth-telling, and memory projects, (3) reparations dimension, (4) amnesty and reconciliation elements, and (5) a prevention, or “never again”, dimension through institutional reforms.
Without having to settle the transition question in the transitional justice, Ethiopia adopted a policy that aims to establish various institutions that look like components of transitional justice including a special bench (a special court was initially recommended but replaced by a special bench by the Council of Ministers), a special prosecutor’s office, a truth commission, and an institutional reform commission. But despite the appearance of compliance with TJ instruments, instead they work to strengthen the regime who proposes them. The UN has referred to this practice as “quasi-compliance” and judged it, in fact, to undermine the process of establishing transitional justice.
The policy goes on to determine who should be prosecuted, saying “those who bear the greatest responsibility for the crime of gross human rights violations” (p.251). The proposed “special bench” is to be established within the existing federal courts. Both federal and state courts in Ethiopia enjoy little independence from the influences of the ruling party and their orders are often ignored. Thus, if the Abiy administration creates a special bench or court, there is little likelihood that it will change the course of the justice system in the country as asserted. The international role is completely neglected in Ethiopia’s transitional justice policy either in the making or proposed mechanisms of execution. In Ethiopia’s present political culture, establishing a “special” prosecution office is not going to resolve the state-party fusion in the country. Whoever will be assigned to investigate and prosecute criminals, I argue, will likely be kept in the party’s box to maintain the status quo, which means, the prime minister retains the power to decide who should be prosecuted thereby making the new office a new tool for purging potential political dissents within his regime and further consolidating his power.
The proposed institutional reform commission targets institutions that created fertile ground for gross human rights violations. The policy document states that “justice, security, intelligence and media institutions should be given priority” for the reform (p.262). The policy contradicts itself because on the one hand, it identifies the justice sector to undergo institutional reform, but, on the other hand, it creates a bench within the existing justice system to prosecute what it calls the ‘most responsible criminals’ involved in gross violation of human rights. All future proposed reforms regarding the institutions, policies, and legislations will have to be presented to the Prosperity Party-controlled House of People’s Representatives (HPR), according to the policy.
The final institution proposed is the “truth commission,” which, according to the policy, comprises civil society organizations, elders, women, religious leaders, experts, and others. A couple of observations about the Truth Commission. First, it is mandated with responsibilities such as truth-finding, granting amnesty, reconciliation, and reparations. Even if we assume that the commission is politically independent and has the knowledge and experience to do the job, it will be overburdened with the extensive mandates listed above, in a country with a population of more than 110 million, the majority of which remain in the conflict zones. There has been ample recent evidence of ineffectiveness and dissolution of institutions such as the defunct Ethiopian Reconciliation Commission (2019-2021) due to a similar broad mandate and lack of political will on the side of the government. The same fate might be awaiting the National Dialogue Commission, which was mandated in December 2021 to foster a “broad-based inclusive public dialogue that engenders national consensus.”
The other challenge for the “truth commission” comes from the role of regional states in the transitional justice process because Ethiopia is a multinational federation. Putting aside the jurisdictional controversies within criminal prosecution in Ethiopia, the policy establishes “a single uniform transitional justice at the national level” and prohibits any attempt by any regional state government to form its truth commission or other institutions (p.266). Truth commissions in federal countries such as the experience of post-authoritarian Brazil witness a decentralized grassroots truth finding and societal reconstruction. If Ethiopia opts for a super centralized truth commission, then there are several questions to be answered: What would be the working language of a truth commission composed of various different language-speaking local elders, women, civil society, religious leaders and others? In Ethiopia there are several regional working languages and for the majority of the victims in the country, Amharic, the sole federal language, may not be their first language or the language they don’t certainly know. One of the reasons the policy document mentions to justify a centralized uniform transitional justice at the federal level is that “even if states are permitted to pursue their transitional justice processes, they cannot be independent, fair, and neutral in the eyes of the public” (p.266). There is no evidence of neutrality and fairness in the federal government either.
The policy also recommends the importance of indigenous conflict resolution mechanisms but does not address how the federal truth commission would choose and utilize them. These all indicate that the commission and transitional justice in general are planned in a way that can easily be manipulated to serve the interests of the Abiy administration. It is clear that with this document the federal government has moved to monopolize the transitional justice policy-making process. As a result, the Tigray regional officials have already aired their concerns. In its press release (dated 7 May 2024), the Oromo Liberation Army (OLA) also stated that transitional justice succeeds “within the context of a transitional governance arrangement, not in an exclusive one-party despotic rule that hijacked a popular movement.”
One could sense the target of Ethiopia’s transitional justice from a recent statement by Ethiopia’s National Security Council (dated 24 April 2024): “እነዚህን የታሪክ ስብራቶች ለመጠገን ሦስት ዓይነት መፍትሔዎች ተቀምጠዋል። ነባሩን ፖለቲካዊ ችግር በሀገራዊ ምክክር መፍታት፤ የቅርብ ዘመናችንን የፖለቲካ ችግር ደግሞ በሽግግር ፍትሕ እና በተሐድሶ ማረም [To repair these cracks of history, three kinds of solutions have been put forward: Resolving distant historical problems through national dialogue, rectifying our recent period political problems through transitional justice and reform].” The National Dialogue Commission run by Abiy appointees has been criticized for its discussions and recommendations being less credible and at times partisan and it is not promising to bring about peace. In the statement quoted above, the Prosperity Party-led government presents itself as having already achieved democracy for Ethiopia, so it chooses to focus on the period of political problems beginning in 1995 with virtually all emphasis given to violations that occurred prior to 2018. Prime Minister Abiy Ahmed, in his recent speeches in Oromia and Amhara regions, clearly indicated that he has no political will for a negotiated peace and compromise in both regions. In Nekemte town of Oromia, he spoke, “the Oromo people are liberated, their language and national questions are resolved and Oromo rebel forces have no cause to fight for. They should return to the society and live normal life.” Similarly, in Bahir Dar city of Amhara, he said, “the Amhara has gotten its own leader and rebel forces in the region has nothing to fight for and they should come join the Amhara regional government to work toward prosperity.” There has been little political will to resolve the root cause of the war in Tigray, which is political in nature.
Without an honest political will for change, or a willingness to genuinely address the post 2018 era, Ethiopia’s move to establish what it calls “transitional justice institutions” is not going to make the current victims visible, let alone bring about peace and democracy. Such a move, however, surely is designed to help the regime appear compliant in the eyes of the international community, particularly in meeting the requirements necessary to legitimize the Cessation of Hostilities Agreement. The United States and the African Union are obligated to decide whether to accept or reject a proposal which promises to have the opposite effect to what was envisioned at the signing. Abiy’s secondary aim might be to get some dollars from the international community to use for “compensation” and other expenses. The International Community’s uncritical support for Ethiopia’s transitional justice will certainly amount to approving Abiy’s authoritarian political entrenchment.
A wartime country like Ethiopia under an authoritarian rule with no clear plan to transition to democracy and peace is ill-equipped to guarantee “non-recurrence” of atrocity crimes, human rights violations, and abuses. Present Ethiopia is neither a post-conflict society nor a post-authoritarian state. The country however needs the political will to transition to democracy and peace and also needs to implement genuine transitional justice to deal with its past with meaningful participation of international stakeholders in all processes of criminal prosecution, truth-seeking, reparations, amnesty, reconciliation, memory, and prevention mechanisms.
Editor’s Note: Milkessa M. Gemechu is a former Ethiopia’s Oromia Regional Government official and is now a visiting assistant professor of political science at Albion College (US)
