The Desperate Misinformation Campaign of the Vocal Diaspora Surrounding the Re-arrest of Wt. Bertukan Mideksa.

 

Washera_2

January 10, 2009

 

Both the print, Radio and TV vocal Diaspora are having a field day distorting the circumstances surrounding the re-arrest of Wt. Bertukan Mideksa. Whether out of a desperate move to restore the tattered image of the dying Diaspora opposition or to use this incident as an excuse to fill up their pockets or even out of sheer hatred for the steps that the Ethiopian government took to resolve the debacle of the 2005 elections, many in the Diaspora are engaged in a major smear campaign against the government and the steps it took to uphold the rule of law in the country.

 

Many questions have been raised and continue to be raised regarding the revocation of the presidential pardon for Wt. Bertukan Mideksa. But before responding to these questions or statements, let me place here and now, an English translation (by me) of the letter of apology sent to the Prime Minister by the accused prisoners.

 

Sene 15, 1999 (October 2007)

 

His Excellency Ato Meles Zenawi

Prime Minister

Ethiopian Federal Democratic Republic

Addis Ababa

 

We the undersigned Kinijit leaders and party members, aware of the misunderstandings created following the 2005 (1997EC) elections, take the responsibility for our wrongful attempts to change the constitutionally created government bodies, by illegal means. We take both individual and group responsibility for the mistakes that resulted. We affirm that, from here to for, we shall refrain from participating in such illegal activities and that we will, as part of our citizenship responsibilities, abide by and uphold the constitution of the country, and also accept and respect the role of the different branches of the government. Recognizing our contrition and our apology to the Ethiopian government and the Ethiopian people, we ask your Excellency to pardon us for our transgressions.

 

What is inherent in such an apology and what the law assumes is that there is sincerity in the request for pardon and that the parties involved will go out to carry their obligations in good faith and for the good of the country. If the motive of the apology is to trick, to cheat, to bluff or to be used as a ploy to get out of prison, then the spirit of the law is broken right from the outset. †It would be better to rot in jail than be out by trickery.

 

Let us now examine some of the points raised in defense of Wt. Berukan and the response given by several government officials.

 

1.              The Prime Minister promised to have the case annulled before the court ruled on it, but reversed his promise and allowed the ruling to stand before the pardon.

It is to be remembered that the PM appeared in parliament at that time and in response to an allegation that negotiations were going on with the prisoners, he unequivocally responded in the negative, further explaining that it is inappropriate to talk about an issue that is being looked at legally and one where the request of some elders to get involved in this case will be looked into after the legal aspect of the charges have been concluded. He also affirmed that these are prisoners who have no right to negotiate with the government and that such rumors are baseless and untrue.

 

Therefore, Wt. Bertukanís allegation that the PM reversed his prior assurance of a pardon before sentencing is false and is fabricated to imply that the apology letter that they signed was based on false promises.

 

2.              Wt. Bertukanís statement of denial of apology expressed in just one forum cannot be a reason to send her back to jail, unless it is done to weaken the thriving UDJ party. Other opposition political party members have expressed similar sentiment in the past and were left alone.

 

During her visit to Sweden and Germany, Wt. Bertukan, on more than one occasion, has stated "we did not apologize; we were released through pressure put on them by the world-wide community and you in the Diaspora". This, however, was not the only reason for her re-arrest. On her return to Ethiopia, the responsible authorities had asked her to recant her false statements. She was asked to appear, within three days, on TV and Radio and correct her stand on the issue of the pardon. Her response, after serious deliberation, was made in mockery of the legal system. In fact, she went on to argue that legally, they did not ask for a pardon, since the Prime Minister was the one who entered the apology. Such a statement was not made in error, as an impromptu response or out of slip of the tongue. An extension of the date for her response would have simply looked as a weakness on the part of the government and no more.

 

3.              Wt. Bertukan did not deny asking for a pardon. She was simply arguing that the pardon procedure did not follow the formal proclamations set up for a pardon and hence, does not qualify as a legal apology. The issue then becomes a procedural matter and her elaboration on this issue should not result in putting her back to jail.

 

Wt. Bertukan alleges that they did not apologize in the legal sense of the word, and the government claims that they executed the pardon according to the law mentioned in the Pardon Proclamation. These two positions differ not only procedurally, but also in the end result. To claim that they received the pardon illegally makes the pardon null and void. Hence, it means that Wt. Bertukan and her colleagues were out of prison for over 18 months illegally. This by itself is a self-defeating argument.

 

According to the Pardon Proclamation, the request is made by the involved party or by the government. In a situation where the involved party claims not to have apologized and the government claims to have not requested the apology by itself, there is no apologizing and pardoning party. The result: the government has to abide by the rule of law and put the convicted parties to jail.

 

 

4.              According to the Proclamation of the Pardon procedure, the apology and request for a pardon should have been entered to the Pardon Board by the prisoner, a family member or a legal representative and not the Prime Minister.

 

It is true that on Hamle 12, 1999 (December, 2007) the letter of apology was submitted to the Prime Minister. The Prime Minister then passed it on to the Pardon Board. The Pardon Board members then visited the jail and spoke with each and every prisoner to confirm the validity of the apology and their request for pardon. Each prisoner agreed and signed the request again on Hamle 15, and entered the request directly to the Pardon Board. Thus, the claim that the apology and request for a pardon was not submitted by the prisoners directly to the Pardon Board is untruthful.

 

 

5.              According to the law, an apology and request for a pardon is entered after a sentence has been rendered. In this instance, the request was made before the sentencing.

 

The sentencing occurred on Hamle 15 and the request for pardon was signed again after the sentencing. Other preparations for the pardon process, including collecting of signatures may have been accomplished prior to the sentencing. All such internal preparations do not amount to anything as long as it does not indicate that the pardon process relied on the pre-sentencing request.† The only legal question would have been if the government had officially accepted the request for pardon prior to the sentencing.

 

 

6.              Even if the concerned party denied asking for an apology in the legal sense, how does that qualify as a breach of the preconditions of the pardon? Isn't this in violation of the freedom of speech framed in the constitution?

 

The pardon process was activated as a result of the sentencing of Wt. Bertukan to life imprisonment. She was released from jail because of the successful execution of the pardon process as a result of her request for an apology. If Wt. Bertukan was released from jail without a proper legal process, it is either a mistake or the prisoner has denied the preconditions for her pardon.

 

Article 2 of the Chapter on Revocation of a Pardon states, "The decision to pardon would be null and void, if is found to have been obtained by cheating or deceiving." As a result, before entertaining the argument over the breaching of the preconditions, the whole pardoning process becomes invalid, if obtained by cheating. The result would be going back to jail and serving the sentence.

 

 

7.              As stipulated in the Pardon Proclamation, when a pardon is revoked, the recipient is notified in writing about such and the recipient is allowed to respond within 20 days. Why was Wt. Bertukan denied her right for such a modes operandi and sent directly to jail?

 

First of all, the matter of pardoning an offender is purely a good will matter on the part of the government and not a question of one's legal right. If the pardon is revoked for any reason, the offender goes back directly to jail. As indicated in Articles 2 and 3 of the Pardon Proclamation, "...if it is confirmed that the pardon was obtained by cheating or deceiving... or if it is found that the preconditions of the pardon have been violated, the pardon will be worthless." And then on Article 4 it goes on to say, "in accordance with this Article and Sub-Articles 2 and 3, if the pardon is reversed, the Pardon Board can decide that the offender be returned to the prior area of confinement." The return of Wt. Bertukan to jail after the pardon was revoked was an appropriate and legal process.

 

The Pardon Proclamation elaborates as follows on the procedures to be followed after the pardon has been nullified. †

 

"Once there has been enough evidence for the nullification of the pardon, the concerned party would be made aware of the decision in a transparent way and given in writing in a language that the party understands...The recipient party would be expected to respond to such a decision in writing within 20 days."

 

 

This article does not specify that the written notice be provided to the offender while outside jail. On the contrary, as mentioned on article 4 above, since the Pardon Board requires that the offender return to jail once the pardon is removed, it appears evident that the response from the offender is going to happen from jail. The removal of the pardon is followed by an administrative procedure and not a legal court battle and the offender can respond from jail.†† Also, there is no where in the Proclamation that obliges the Pardon Board to look at the response and make any other decision.

 

8.              The Prime Minister promised to have the case annulled before the court ruled on it, but reversed his promise and allowed the ruling to take place before the pardon.

It is to be remembered that the PM appeared in parliament at that time and in response to an allegation that negotiations were going on with the prisoners, he unequivocally responded in the negative, further explaining that it is inappropriate to talk about an issue that is being looked at legally and one where the request of some elders to get involved in this case will be looked into after the legal aspect of the charges have been concluded. He also affirmed that these are prisoners who have no legal right to negotiate with the government and such rumors are baseless and untrue.

 

Therefore, Wt. Bertukanís allegation that the PM reversed his prior assurance of a pardon before sentencing is false and is fabricated to imply that the apology letter that they signed was based on false promises.

 

 

9.†† Wt. Bertukan was manhandled at the time of her re-arrest. Her driver and Prof Mesfin were beat up. Why wasnít she given the respect and dignity of a human being and president of her party when she was being taken to jail?

 

Every Ethiopian has the right not to be subjected to cruel, inhuman or degrading treatment or punishment. In this regard, if such violations as mentioned above were committed, the alleged perpetrator shall be brought to the court of law.

 

However, the Addis Ababa Police Commission representative, during his appearance on Ethiopian Civility Pal talk Forum, has clearly indicated that no such violations were committed. It is possible that the elder Professor Mesfin is bent on using this incident to allege that Wt. Bertukan was treated in inhuman and degrading manner, so as to divert the issue to that of Human right violation. The alleged punch to his pelvic region by the butt of a rifle could cause serious damage to a man of his age and is too good to be true.

 

 

10.† Even if Wt. Bertukan made a mistake, would it not have been prudent to exonerate her so as to deny her vocal supporters an excuse to rally around this agenda?

 

Indeed, the first issue that needs to be looked into is whether or not the lady is legally accountable for her transgressions and whether or not the government took steps, using the legal instrument of the law as set forth in the Pardon Proclamation. If looked at politically, differing opinions may surface. But, to ignore such transgressions, because of political considerations, will be tantamount to ignoring the rule of law and the enormous future ramifications of such an act. Lasting political gain can only come about through peaceful struggle and by accepting the rule of law.

 

The political instability that followed the 1997 (2005) elections did not come about suddenly. Opposition groups had been undermining the law of the land directly and indirectly. The space allowed to have a free and fair democratic process was gradually trampled on and reached a point of threatening the constitution of the country. If the audacity of Wt. Bertukan to repudiate the rule of law is left unchecked, the future consequences could be cataclysmic.

 

As very well articulated in an article by Adal Isaw, abiding by the Constitution is what is required of all citizens, no matter what their perception is. Safeguarding the Constitution from contempt is therefore unlike any other duty that we should be bound to carry.