Analysis – Why Ethiopia’s freewheeling regime does need a State of Emergency?

Zelalem Kibret, For Addis Standard Online

 

On October 08, 2016 Ethiopia declared a State of Emergency in which more than half of the constitutionally guaranteed rights were more or less suspended. Ethiopia’s declaration of a State of Emergency (SoE) may shock some in the west. Because, the Ethiopia many portrayed is ‘the oasis of tranquility’, ‘the island of stability’ and ‘Arica’s chief peace exporter’. That was what the government in Ethiopia tried hard to promote, too.

However, as of late Ethiopians who have been grossly wronged since the incumbent came to power, but who have never stopped asking for their rights have begun to make a never ending protest, costly as it is, and the regime’s ruthless response is only pushing them to fight against it in renewed vigor. A year after this persistent protest, the government in Ethiopia is now forced to go down to a road it never went: it suspended more than half of the constitutionally guaranteed but neglected rights (Including the right to life, which is a non-derogable right under major International Human Rights Instruments including the ICCPR, which Ethiopia is part of) by a single decree. By any standard, the declaration of the current State of Emergency (SoE) is reminiscent of the days of Ethiopia’s military junta.

The raison d’être of the decree depends on who is explaining it. The government version of the story goes since it is becoming almost impossible to stabilize the nation from the ongoing civil disobedience by using the regular laws and law enforcement mechanisms it became necessary to declare the SoE. However, in spite of the existence of laws, the fact that the government has never hesitated to do whatever it wants makes this reason a far cry from the truth. That is why it is important to search for and explain the camouflaged motive.

I will start by explaining why the SoE will most certainly fall short of bringing in the peace and stability the government claims will prevail as a result of it.

Diagnosing the decree

When I say the decree is not a law that breaks the yoke of legal restriction on the government, my main reference is the law itself. The decree was declared on October 08, 2016 and its detail was unveiled after a week by a subsequent detailed Directive (hereinafter the Directive). According to the Directive the so-called Command Post, an organ established by the decree and led by the prime minster, is officiated to execute the SoE. The first thing that makes the decree a non-enabler is its nature of redundancy. By declaring a state of emergency, the government only reaffirms most of the existing laws. Here an article by article inquiry of the Directive that detailed the SoE will shade a light on this assertion.

The Directive contains 31 Articles which are mainly focused on the dos and don’ts during the six months’ time period.

Article 1 of the Directive provided that “Any communications that incite violence and invites chaos are illegal”. But this is already a criminal act under the different provisions of the 2004 Federal Democratic Republic Ethiopia’s Criminal Code.  Among others Article 482 (1) of the Criminal Code provides:

Whoever:

1. a) Knowingly takes part in a society, band, meeting or assembly forbidden, either generally or from time to time by law, by government or by the competent authority; or
2. b) Knowingly places houses, premises or land at the disposal of such a society, band, meetings or assemblies, whether for consideration or free of charge, is punishable with a fine not exceeding one thousand Birr.

By the same token, Article 484 (1) of the same Criminal Code outlawed ‘Forbidden Assemblies’ as:

Whoever, of his own free will, takes part, on the public highways or in a public place, in assemblies forbidden by law, is punishable with fine not exceeding two thousand Birr.

Likewise, Article 486 (2) the Criminal Code provides:

Whoever […] by whatever accusation or any other means foments dissension, arouses hatred, or stirs up acts of violence or political, racial or religious disturbances, is punishable with simple imprisonment or fine.

Article 2 of the Directive says ‘Any communication with terrorist Organizations is illegal”. Such acts are already provided as a criminal act under Article 5 of Ethiopia’s Anti-Terrorism Proclamation No. 652/2009 as follows:

1/ whosoever, knowingly or having reason to know that his deed has the effect of supporting the commission of a terrorist act or a terrorist organization:

1. a) Provides, prepares or gives forged or falsified document;
2. b) Provides a skill, expertise or moral support or gives advice;
3. c) provides, collects or makes available any property in any manner;
4. d) Provides or makes available monetary, financial or other related services;
5. e) Provides or makes available any explosive, dynamite, inflammable substances, firearms or other lethal weapons or poisonous substances; or
6. f) Provides any training or instruction or directive; is punishable with rigorous imprisonment from 10 to 15 years.

Article 3 of the Directive makes participation in forbidden assemblies illegal. As I mentioned above, pursuant to Article 484 of the Criminal Code participation in forbidden assemblies are already criminal acts. Moreover, Article 488 (1) of the same states:

Whoever, of his own free will, takes part in an unlawful assembly in the course of which violence is done collectively to person or property is punishable with simple imprisonment not exceeding one month, or fine.

Article 4 of the Directive provided that “Any dereliction of duty by public servants and failure to provide services by a licensed business owner is illegal.” However the Criminal Code under Article 420 already made such acts illegal as can be seen below:

(1) Any public servant who fails to carry out his duties in a proper manner and to the prejudice of State, public or private interest, is punishable with fine not exceeding one thousand Birr or simple imprisonment not exceeding six months.

(2) Where substantial damage has resulted from the crime, both simple imprisonment and fine may be increased up to the general legal maximum.

In addition, Article 421 of the same Criminal Code provided that:

Any public servant who, in breach of his professional or statutory obligations, goes on strike of his own free will, or urges others to strike, is punishable under Article 420.

Additionally, Article 37 of Ethiopia’s Commercial Registration and Business Licensing Proclamation 686/2010 provides that a licensed business owner who failed to serve as the term of the license will be subject of suspension.

Articles 5 and 6 of the Directive outlawed “Any type of protests in Schools and Sporting facilities.” But the Criminal Code under Article 815 already provides:

(1) Whoever disturbs the work, rest or tranquility of others, in particular by brawls and wrangles, shouts, songs, vociferations or uproars, signals, calls or the ringing of bells, or by the abuse of noisy instruments, apparatus, machines or other noise-producing articles, is punishable with fine not exceeding one hundred Birr.

(2) If the noise or disturbance is caused at night as defined in the police Directive or by custom, or is willfully caused in the vicinity of hospitals, schools or similar institutions or, generally, if it is caused in a deliberately wicked or mischievous manner, the Court may impose a fine or arrest not exceeding one month.

Moreover, Article 38 of Ethiopia’s Higher Education Proclamation 650/2010 forbids students from such acts considered as acts that will destabilize campus tranquility.

Article 7 of the Directive makes an act of obstruction of vehicles an offence.  However, such acts are already provided as an offence as per Article 505 of the Criminal Code:

(1) Whoever intentionally prevents, disturbs or interferes with the efficient working:

1. a) of a public service, or of a service operated in the public interest, of land or inland waterway, sea or air transport or communications, including auxiliary repair, overhaul, maintenance or construction services…is punishable with simple imprisonment or fine, or, in serious cases, with rigorous imprisonment not exceeding five years.

Article 8 of the Directive provides damaging infrastructures and religious institutions as an illegal act. But Article 496 of the Criminal Code already stipulates:

Whoever maliciously damages or destroys electrical or hydraulic installations, or works providing protection against natural forces, especially culverts, dams, reservoirs, dykes, sluices gates or jetties, thereby deliberately creating a danger to person or property, is punishable [with rigorous imprisonment not exceeding fifteen years].

Article 10 of the Directive provided that “Any act political incitement at religious, cultural and public events is illegal”. Nonetheless, Article 492 of the Criminal Code already outlawed such type of acts as:

Whoever publicly:

1. a) Prevents the solemnization of, or disturbs or scoffs at, an authorized religious ceremony or office; or
2. b) Profanes a place, image or object used for religious ceremonies, is punishable with fine not exceeding one thousand Birr, or with simple imprisonment not exceeding two years.

Article 11 provides “Obstruction of the duty of a law enforcement official is illegal” But Article 455. (2) of the Criminal Code lays down:

Whoever, by violence, intimidation or by promising or offering or giving undue advantage causes another to make false accusation or give false testimony or obstructs, through interference, the giving of testimony or the production of evidence in relation to a crime punishable with rigorous imprisonment for more than two years or obstructs law enforcement officials or public servants while exercising their official duties in relation to the same crime, is punishable with rigorous imprisonment not exceeding seven years.

Article 12 of the Directive prohibits wearing a military outfit as a criminal act. Like the aforementioned offenses this, too, is an already outlawed act as a cumulative reading of Article 329 (1) and 340 of the Criminal Code shows:

Whoever without authority manufactures, stores, offers or sells, buys or acquires in any other manner, military uniforms, insignia or decorations, is punishable with simple imprisonment or fine.

Article 14 of the Directive provided that Disposal of law enforcement equipment to a third party is as an illegal act.  Nevertheless, Article 306 of the Criminal Code already provides that:

(1) Whoever improperly uses, lends or pawns arms, munitions, equipment, material or instruments, vehicles, animals, or any other object entrusted or handed over to him, or to which he has access by reason of his duty or military status, is punishable with rigorous imprisonment not exceeding seven years, or, where the case is not serious, with simple imprisonment for not less than three months.

Article 15 of the Directive makes the so obvious act which calls for attack towards a particular ethnic groups and endangering the nation’s unity as an illegal act. However, Article 241 of the Criminal Code already makes any act that endangered the Sovereign Unity of the nation as:

Whoever, by violence or any other unconstitutional means, directly or indirectly, commits an act designed to destroy the unity of the peoples, or to destroy the Federation, or to sever part of the territory or population from the Federation or the State, is punishable with rigorous imprisonment from ten years to twenty-five years, or, in cases of exceptional gravity, life imprisonment or death.

Additionally, Article 269 of the same provides that:

Whoever, in time of war or in time of peace, with intent to destroy, in whole or in part, a nation, nationality, ethnical, racial, national, color, religious or political group, organizes, orders or engages in:

(a) Killing, bodily harm or serious injury to the physical or mental health of members of the group, in any way whatsoever or causing them to disappear; or

(b) Measures to prevent the propagation or continued survival of its members or their progeny; or

(c) The compulsory movement or dispersion of peoples or children or their placing under living conditions calculated to result in their death or disappearance, is punishable with rigorous imprisonment from five years to twenty five years, or, in more serious cases, with life imprisonment or death.

Article 16 of the Directive provided that “Any act which endangers the nation’s Sovereignty and the wellbeing of the constitutional order is illegal” Again, this is an already illegal act as per Article 249 of the Criminal Code:

(1) Whoever, enjoying Ethiopian nationality or being officially entrusted with the protection of Ethiopian national interests:

(a) discloses, delivers, communicates or makes accessible to the public, to a foreign State, political party, organization, agent, a secret, a document, negotiations or a decision which the interests of Ethiopia demand shall not be divulged; or

(c) destroys, suppresses, purloins, causes to disappear or falsifies documents, papers or means of proof relating to the security, independence or vital interests of the State, is punishable .with rigorous imprisonment not exceeding fifteen years.

The Directive under Article 16 specifically mentions Political Parties from doing such treasonous act during the life span of the SoE. However, The Revised Political Parties Registration Proclamation No. 573/2008 under Article 40 clearly provided that:

1) A political party acting in violation of the provisions of the Constitution, this Proclamation and other laws of the state shall be dissolved up on the order of the court.

2) A political party may be cancelled due to its serious criminal charge as a result of the court decision.

Hence, the Directive again failed to come-up with a new restriction in that regard.

Article 17 of the Directive provides that “unlawful entry to Ethiopia is illegal”. But pursuant to Article 243 (2) of the Criminal Code:

Whoever intentionally:

(a) Departs from, enters into or resides in the territory of the State in violation of the national law; or

(b) Causes any of the acts specified in (a) above to be committed, is punishable with simple imprisonment or fine or with both.

Article 19 of the Directive lays down “Law enforcement officials are duty bound to perform their duty during the State of Emergency”. Yet, Article 284 of the Criminal Code already makes such acts illegal as:

(1) Whoever, with intent to evade recruitment or military service, which he is legally bound to perform, fails to obey an enlistment or mobilization order duly served by personal summons, by placard or by public announcement, is punishable with simple imprisonment.

(2) Where the crime is committed in time of emergency, general mobilization or war, the punishment shall be rigorous imprisonment not exceeding ten years.

All over again, Article 25 the Directive provided that “a lessor who leases a house or a vehicle during the State of Emergency is duty bound to register the detail of the lessee and report it to the nearby police station [within] 24 hours.” Nonetheless, Article 15 of Ethiopia’s Anti-Terrorism Proclamation No. 652/2010 already states:

1/ whosoever leases a house, place, room, vehicle or any similar facility shall have the duty to register in detail the identity of the lessee and notify the same to the nearest police station within 24 hours.

2/ Any person, who lets a foreigner live in his house, shall have a duty to notify the nearest police within 24 hours, about the identity of the foreigner and submit a copy of his passport.

As I showed above extensively the SoE lacks new dimension. But questions on restrictions imposed on diplomats still need answers? However, recent history shows us the government in Ethiopia never failed to restrict the movement of diplomats from traveling out of the capital, especially during election seasons with no need of a new Directive to enforce it.

Regarding media censorship Ethiopia is already known as one of the worst places for journalists and one of the top five most censored countries on par with North Korea and Eretria. Intimidating the media never required the government to declare a State of Emergency and logically it couldn’t be the reason behind the current decree.

So, why declare a State of Emergency?

Undoubtedly, the government in Ethiopia, which often makes itself busy of face-saving, is aware of the political, economic and diplomatic implications of declaring a SoE. All the same, it knows that it is a government that can do (as it proved again and again) every violation of rights without the necessity to evoke a SoE. It is therefore safe to conclude that there is no compelling reason which justifies the declaration of a SoE as an essential tool to pacify Ethiopia.

That is why we should ask for the real reason.# To this end, I see three major possible reasons that compelled the executive (the Council of Ministers, to be exact) to issue a State of Emergency hours before the Legislative (which was supposed to rubber-stamp it within 48 hours, if it was not on a recess) reconvened after three months of break.

The first and the foremost possible reason is impunity. Since anti-government protests began in November 2015, the protests were snowballing, practically forcing the regime to struggle for control. During the protests, at least hundreds of Ethiopians have been killed in what, by the accounts of the government-sanctioned Human Rights Commission, a ‘proportional measure’. And, yet no single government official or civil servant was held responsible for the killings, arbitrary dentations and forced disappearances of thousands from areas that experienced active protests.

The late Professor Joan Fitzpatrick in one of her insightful articles titled Protection against Abuse of the. Concept of “Emergency“ pointed out the dangers of misusing and abusing of SoE laws. “Governments have frequently succumbed to temptation to deflect criticism of their human rights violations by pleas of emergency. Officials may even be tempted to manufacture crises in order to justify their denial of fundamental rights”. This literally fits into the ongoing situation in Ethiopia. The government is trying to avoid any kind of criticism about the way it handles the nationwide protests under the pretext of the SoE decree; it often (mis)calculates to do away with the brutality. The regime’s mentioning of declarations of SoEies in other parts of the world is part of this cover-up. Immediately after the decree was effected, state controlled media organizations (here and here [Amharic]) began to refer to SoEies in other parts of the world such as the yearlong SoE in France and the recently declared SoE in Turkey as instances of SoEies similar to that of Ethiopia’s; it helps the government to minimize the hype.

The second possible reason is fear mongering. Since the protests began the government was doing everything it can to brutally silence protesters, but with every passing day protesters doubled their calls of rejections to be ruled under the iron fist the old days. By declaring a SoE, the government is trying to regain that control and it is well aware of the fear and intimidation this declaration evokes. The past ten years of Ethiopian politics proved this assumption right. A fear induced society is much easier to govern. In one of the most quoted political statements Niccolo Machiavelli argues “[for a leader], it is better to be feared than loved, if you cannot be both.” The government in Ethiopia knows that it is not loved by the people since a long time ago. And, despite a hundred percent election ‘win’, recent events proved that the government is no longer feared, too. Hence, by declaring a State of Emergency, the government is hoping to regain the magic wand – how to be feared.

The third possible reason is the regime’s motive of portraying itself as a regime in control of its leadership. One of the reasons given by the government on the declaration of a state of emergency was protecting foreign firms and investors from ‘anti-peace elements’ who are ‘destroying’ properties. Accordingly, the regime still wants to assure the world, especially its foreign allies that Ethiopia under its leadership is still invincible ‘gate keeper’ of the Horn of Africa.

What is next?

As a parallel law existing side by side with laws that are already in place, the SoE in Ethiopia may not have that much effect to contain the current discontent in Ethiopia. Simply because it’s a repetition and affirmation of what is already in existent. The presence of these laws didn’t stop protests which are followed by the jailing and killings of protesters since November 2015.

However, in the long run the SoE may have an impact on the whole being of the nation.

Modern Ethiopia has never experienced an officially declared nationwide State of Emergency until October 08, 2016. Some dubbed the seventeen years ruthless rule of the military junta from 1974 -1991 as a ‘de facto state of emergency’. On the other hand, the military junta legally declared a State of Emergency in the then Eretria Province from December 1975 until its ouster in 1991. However, a nationwide State of Emergency had never happened in the modern Ethiopian history. Thus, the declaration of a blanket State of Emergency by the Federal government in the existence of a Federal Structure that at least calls for a consultation with the States is an unchartered territory in the political chapter of Ethiopia. The State of Emergency may open a new era of legitimized unlimited government that would impact the case for civil discourse and civic political culture immensely; strictly speaking it is a remilitarization of a demilitarized nation for some political reasons which will take the nation back to square one, and disinvites the already fragile journey to democratization.

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ED’s Note: Zelalem Kibret is a Researcher at NYU and a blogger at Zone9 blogging collective and a YALI Fellow. 

He tweets at @zelalemkibret