A Maiden Presidential Clemency Gone Awry: The Case of Birtukan Mideksa in Retrospect
By Tesfaye Habisso (03/04/09)
Article 71(7) of our Constitution confers the pardon power on the President of the Federal Democratic Republic of Ethiopia (FDRE), and Regional States’ Constitutions confer the clemency power on Regional Presidents (or Governors) of the nine Regional States of the Federation. At the federal level, Proclamation 395/2004 and Proclamation 414/2004 (Criminal Code of the FDRE) lay down specific provisions and procedures for the clemency cases of “pardon” and “amnesty” by the President of the FDRE, defined respectively as “Yiqirta” and “Mihret” in Amharic, the working language of the central government, in both proclamations mentioned here above. As clearly stated in Proclamation 395/2004 (Article 11), “the main purpose of tendering clemency is to insure the welfare and interest of the public.”
And yet, few provisions in our Constitution are as misunderstood and underestimated among the grantors and the grantees of clemency as well as the general public, I am afraid, as the President’s power to pardon political crimes and offences, as this has seldom happened in the country during the past several decades of our modern history. In the yesteryears, political opposition was unthinkable, and when it existed it was equated with acts of treason and dealt with severely. Political opponents were presented as anti-people and enemies of the nation, and faced severe punishment that most often entailed rigorous life imprisonment in horrible dungeons or mountain fortresses without any due process, at best, or physical elimination or disappearances for good, at the worst. Thus, extending clemency to political offences and crimes is indeed a new phenomenon in Ethiopia; a novel constitutional scheme and practice that we all must embrace diligently and enforce it judiciously and according to the law. Most people still associate pardons granted to political offenders with politics and controversy, and do not know yet that the pardon power is exercised, and will, in the future also, be exercised regularly and without fanfare, to give relief to both ordinary criminals and political offenders convicted of federal or state crimes, and that the same presidential pardon is revoked when dishonoured in the breach of conditions set for the pardon grant by the person or persons awarded a second chance.
Today, under the new democratic dispensation in Ethiopia, granting clemency is extended not only to reformed ordinary criminals as in the past but to political crimes and offences as well. It was under this constitutional scheme that more than one hundred seventy former Coalition for Unity and Democracy (CUD) political party leaders and supporters who were convicted of political offences and crimes and sentenced to rigorous life imprisonment by the Federal High Court, in the wake of public disturbances and chaos that rocked the nation following the 2005 national parliamentary polls, were pardoned and set free from Qaliti jail and elsewhere in July 2007, on a clemency decision by the President of the FDRE, thanks to the timely intervention, selfless commitment and untiring zeal of an ad hoc council of national elders (“shimagles”, in Amharic) who tirelessly followed up the case for over eighteen months and finally brokered the much-awaited deal. However, during the last months of the year 2008, to the dismay of these same elders and many others, one of those pardoned by the President, namely, Ms. Birtukan Mideksa, was allegedly found to have violated the conditions attached to her clemency grant by publicly denying, while on a working tour in Sweden, that she ever asked for or signed a petition for pardon from the Government according to the Proclamation on Pardon Procedure (395/2004) and that she was set free from life imprisonment due to political pressure from the Ethiopian Diaspora, and having refused upon her return to recant those statements as repeatedly demanded by the Government, the clemency grant was revoked by the President and she was sent back to where she was before her release, that is, Qaliti prison, to serve life imprisonment and forfeiting all her civil rights as a citizen of the country. Alas, what many of us laymen citizens consider simply as politically incorrect or naïve statements turned out to be serious and legally liable errors of judgment in the eyes of the law, hurling B. Mideksa on a slippery slope. “Yeaf wolemta beqibe aytashim”, states an old adage in Amharic.
Politicians occasionally stretch away or stray from the truth or exaggerate, but wilful and conscious lying (also described as “being economical with the truth”) is something else, which makes the streams of fabrications that much more shocking. As expected of them by the general public, politicians generally go to great lengths to avoid being seen as acting dishonestly, because the consequences are usually so great. When mistruths are spread by others on the campaign trail, candidates try to stay as far away as possible. Thus, for better or for worse, being seen as dishonest or lying is the one line that no politician ever wants to cross. Yes, B. Mideksa and Co. made a plea for mercy and signed a petition for pardon to be extended them according to “our country’s culture/custom” and not in accordance with the provisions of Proclamation 395/2004, but to publicly blurt out that they were set free from life imprisonment, a conviction and judgment that was imposed upon them in the wake of the aborted forceful regime change, or what some pundits called a ‘colour-coded revolution,’ during the May 2005 national elections, due to political pressure from the Diaspora and not because of an act of grace and mercy extended to them from the Ethiopian Government, is patently ridiculous and indeed being ‘economical with the truth’, so to say. That B. Mideksa and Co. begged for forgiveness and mercy from the Ethiopian Government and people, and that they all signed a petition for pardon and accepted a presidential pardon was an open secret that everybody at home and abroad was aware of. Does it really matter whether they asked for pardon to be given them in accordance with the traditional “shimglina” method (elders’ mediation) or via the modern, legal pardon procedure as long as it secured them clemency and freedom? To me, it doesn’t make a difference at all. Whether the cat is black or white, it doesn’t matter as long as it catches mice, to paraphrase the words of a former Chinese leader. Thus, the belated argument by B. Mideksa and Co. that they were ‘cajoled’ or made ‘under duress’ to sign the plea for pardon by the council of elders or that they signed the petition for pardon and begged for forgiveness according to “our country’s culture/custom” and not in accordance with the Proclamation on Pardon Procedure (Procl. No 395/2004) as decided by the Government to grant them a pardon is a lame and fruitless argument so long as the convicts did not show the moral and political courage to refuse or decline accepting the pardon certificate signed, sealed and delivered to them from the Office of the President of the FDRE on July 21, 2007.
Furthermore, the crude allegation that the incumbent Party and Government gave in to Diaspora pressure to release the convicts from life imprisonment is untruthful, to say the least. During its more than seventeen years of rule since 1991, the ruling party and Government have never, ever bent backwards to the breaking point to appease any foreign powers and international institutions or any external/internal critics of the regime, when these criticisms happened to be not sound and constructive. No Diaspora, and for that matter, no external powers and international institutions have ever been able to make or break governmental policies or decisions in Ethiopia or to bend the ruling party and government to their will in matters that the latter believed were not in the best interests of the nation and the country. One can easily understand the hypersensitivity of the Government to any unwarranted and unjustifiable allegation of this kind-- giving in or bowing to external or internal pressure of any sort at the expense of the nation’s sovereignty and the Government’s considered decisions or its carefully crafted people-centred policies. Having served the current government for more than fifteen years in different capacities (now retired), I am a living witness to this great and enviable quality and character of the regime. Unlike many regimes in developing countries, I can dare say, the current governing elite at the federal level in Ethiopia is not, by and large, a neo-colonialist elite that has prospered in a parasitic fashion from the spoils derived from the neo-colonialist system, though the cancer of corruption, lack of functioning democracy and good governance, weakness of implementation capacity especially in the hitherto marginalized peripheral regions, absence of an efficient bureaucracy, malpractices that emanate from ethnic federalism and one-party dominance (harsh politics, nepotism, patronage, ethnocentrism, ‘sons-of-the soil’ or ‘party’ vs. ‘others’, ethnic-linguistic fractionalisation, etc.), and other predatory practices in the public and private domain and separatist or secessionist movements in some regions of the country still pose significant threats to the achievements of the incumbent government and the onward progress of the country. Nevertheless, the incumbent party and government, I can say, is dominantly constituted of a governing elite that truly cherishes in all its policies and programmes the noble objectives of safeguarding the nation’s sovereignty, independence, national pride/interest and that seeks to build a democratic, developmental state, and extricate the nation from abject poverty, helplessness and hopelessness in a short period of time. This must be said without fear or favour, so to speak. Its spectacular achievements in the areas of economic growth, social services, infrastructural development, etc. within a period of just seventeen years or so loudly speak for themselves. Credit must be given where due.
Whatever the case, why did B. Mideksa deliberately decide to being ‘economical with the truth’ and resort to spreading deceptive statements? There are many reasons why politicians lie. The voters and supporters are some of them. People want to hear what they want to hear. Very often they prefer deception and fraud to the truth. This is exactly what happened when B. Mideksa was confronted by her party financiers and would-be supporters in Sweden, I guess, regarding her release from life-long imprisonment. Rather than disappointing them by telling the truth she rather chose to ‘go with the heat of the moment’ and sought to please them as well as to inflate her ego and self-image in trying to appear as a woman of solid principles and an unflinching political leader, expressions or phrases which, in the realm of politics, are sometimes good only as an epitaph for one’s tombstone. Politics is “the art of the possible”; it’s about crafting strategies to move the political party that one leads from point A to point B; it is about compromise, give and take, peaceful negotiations; it’s about mutual respect, tolerance, and respecting agreements, and not be swayed away by fleeting demagoguery and unprincipled rigidity.
Following the Government’s revocation of B. Mideksa’s presidential clemency, the issue has precipitated considerable public discussion, and provoked various viewpoints: a storm of protest against the decision, on the one hand, and a strong support and endorsement, on the other, both at home and abroad. A number of opposition political leaders, government officials including the Prime Minister, political commentators, journalists, lawyers and pundits have either put pen to paper or issued/made statements/interviews on this controversial issue. The purpose of this paper is not to reiterate or critique these arguments and counter-arguments but to add my voice to the ongoing debate in this regard. And it will re-examine the whole pardon process from apology to clemency to revocation and attempt to expose some aspects of the pardon process that I think were baffling from beginning to end and that I believe should be avoided in future clemency decisions for the greater good of the nation.
Flaws in the Pardon Process: A Critique With the Benefit of Hindsight
As far as the granting as well as revocation of B. Mideksa’s presidential clemency is concerned, my personal view is that the whole process from apology to pardon to revocation was miserably bungled from beginning to end, as it was, I think, more because of being a maiden presidential clemency tendered to political offenders in the country than for any other reason. Let me explain. First, though there was a make-believe apology and admittance of guilt as well as a petition for pardon made by B. Mideksa and Co., there was indeed no remorse and atonement, no authentic apologizing in the real sense of the word. The New World Dictionary of the American Language defines “apology” as “an acknowledgment of some fault, injury, insult, etc. with an expression of deep regret and a passionate plea for pardon.” By this definition, one can see three elements to an apology, to wit, : (1) acknowledgment of fault; (2) expression of regret and (3) a plea for pardon. Thus, a petition for pardon should reflect a genuine apologizing, that is, both an admittance of guilt and an apology by the perpetrator(s). This was completely lacking in the petition for pardon signed by the former CUD leadership that also included B. Mideksa then. No sooner than they were pardoned and set free from life imprisonment in Qaliti jailhouse, some of the CUD leaders began publicly stating that they were “cajoled” by the elders (B. Mideksa) or made to sign “under duress” (Eng. Hailu Shawel) the petition for pardon, and they did not sign it on their own volition or free will. ‘Cajoled’, may be, but to allege that they signed ‘under duress’ does not make any sense at all; how the elders could force them sign the plea for pardon is beyond anyone’s comprehension. One can thus clearly see that the petition for pardon signed by B. Mideksa and Co. did not contain the essential elements that define or constitute a genuine apology; they never showed any remorse or atonement at all.
Second, the petition for pardon signed and addressed to the Prime Minister of the FDRE, dated Sene 15, 1999 E.C./June 23, 2007 G.C., despite its apparent defects, begged for a “pardon” (“YIQIRTA”, in Amharic) and not for an “amnesty” (“MIHRET”, in Amharic) as expected of the supplicants, from the Government and people, to be granted them “according to our country’s culture/custom” (“beagerachin bahil messeret”) which, though differs from one culture/custom to the other among our multi-cultural and multi-ethnic society, nevertheless requires a bilateral procedure of conscious participation by both the victim(s) and the perpetrator(s) with the belief that only when both sides of the conflict are present can holistic transformation and/or forgiveness and reconciliation occur for both parties, the imposition of sanctions and penalties by the elders on the wrongdoer side notwithstanding. And such a process can only take place, if it can take place at all, before legal charges are made and alleged culprits are summoned to appear before a court of law. Anyway, when the aforementioned plea for pardon, clearly not initiated by those concerned themselves but signed by the latter on the persuasion or ‘cajoling’ of an ad hoc council of elders (“shimagles”), reached the Prime Minister’s Office before the alleged political offenders were charged and brought to court, the logical step for the head of the executive branch, I think, should have been either to order the Attorney General or Government Prosecutor to withdraw all the legal charges against those who pleaded for mercy and suspend all legal proceedings at the High Court till the settlement of the issue between both parties was concluded according to “our custom/culture” (if this process could ever take place at all based on the nature and enormity of the crime and the death of 193 innocent citizens and six security personnel, destruction of property worth over 4 million birr), or if the plea for pardon was made after their conviction and judgment, then, the petition for pardon should have been returned to the supplicants via the national elders instructing the convicts to correct the wording of the plea for pardon and to address their petition to the Board of Pardon in compliance with the provisions of Procl. 395/2004, which could have then been processed by the Board and forwarded to the FDRE President’s Office for the final decision of clemency as previously agreed upon by all parties concerned. If the supplicants refused to sign and send their plea for pardon to the Board of Pardons as instructed by the Prime Minister’s Office, then, the case could have been closed at that and the High Court’s decision would have prevailed. Unfortunately, this procedure was not followed. Rather, the Prime Minister, acting out of expediency, not principle, I suppose, forwarded the petition for pardon that he received from the national elders to the Board of Pardons for appropriate actions. This should have earned him an utmost gratitude, and not a condemnation and ridicule from the former CUD camp, as later events have proved, for speeding up the normally tedious and slow process of facilitating a presidential pardon decision. The necessary procedure as laid down in Procl. 395/2004 was not adhered to meticulously thus precipitating belated and endless controversy and tit-for-tat arguments amongst the political elites and journalists, and counter-arguments and rebuttals by Government officials and legal professionals, in the wake of the revocation of B. Mideksa’s clemency.
Third, the pardon certificate signed, sealed and delivered to B. Mideksa and Co. by the President’s Office explicitly and unambiguously stated that the clemency grant was a “FULL PARDON” (“MULLU YIQIRTA”, in Amharic) that automatically released the convicts from punishment and restored their civil rights (civil rights that were earlier forfeited because of court decision) without any qualifications or conditions, but then oddly attached a set of conditions that would curtail the full enjoyment of the presidential pardon by the beneficiaries, contrary to the legal definition of a “full pardon”. Any pardon with conditions attached to it can only become a “conditional pardon” and not a “full pardon”, according to the pardon/forgiveness literature and legal dictionaries [Black’s Law Dictionary, 7th edition, 1999]. To paraphrase the President’s pardon certificate at this juncture: “…So long as you continue to (1) acknowledge that your deeds constituted fault and that you will shoulder responsibility, individually and collectively, for the fault perpetrated; (2) pledge not to participate in such activity in the future: (3) respect and insure the full respect of the Constitution; (4) obey and abide by the authority and duty of constitutionally established Governmental Agencies/Bodies and perform your activities in compliance with these institutions’ authority and duty…..you are hereby granted “FULL PARDON” (“Mullu Yiqirta”) with all your previously forfeited civil rights fully restored, as of July 21, 2007 (Hamle 13, 1999 E.C.)… Accordingly, this Pardon Certificate is issued in accordance with Proclamation 395/2004, Article 18.” [Pardon Certificate Issued By the Office of the President on July 21, 2007.] As the above words of the pardon certificate clearly put, the clemency decision was far from being definitive whether the clemency was a “Full Pardon” or a “Conditional Pardon”. Rather, it was a “Full Pardon with conditions attached to it, that is, a full pardon and a conditional pardon concurrently. How can that possibly be? The President cannot possibly grant a “full pardon” (“mullu yiqirta”) and a “conditional pardon” (“bekidmehuneta lay yetemeserete yiqirta”) to the same convict(s) at the same time. It either has to be a “full pardon” (also termed absolute or unconditional pardon) that fully releases the wrongdoer from punishment and restores the convict’s civil rights without any qualifications or conditions, or a “conditional pardon” with qualifications or conditions attached to it; it cannot be both at the same time, as far as I understand. The message of the pardon however was quite succinct: Respect the conditions attached to the presidential clemency and enjoy your freedom but if you ever cross the red line, you will spend the rest of your life in jail forfeiting all your civil rights! The grantees of the presidential pardon did not at the time realize that the clemency decision was not only an act of grace and mercy extended to them but also a hangman’s noose tied to their necks for life, a Damocles sword, so to speak. With the benefit of hindsight, one can easily see that as there was no real apologizing by the convicts, there was also no authentic pardon granted to the latter by the Government, both sides, the Government and the former CUD bloc, unable to forget the wounds inflicted and the pain that they both suffered during the post-election debacle of 2005 and thereafter. Fourth, Birtukan Mideksa and Co., who begged for pardon from the Ethiopian Government and people “according to our country’s culture/custom”, did not reject or refuse to accept the President’s pardon certificate that was signed, sealed and delivered to them in accordance with Proclamation of Pardon Procedure (Proc. 395/2004), though this was not what they later claim to have asked for; neither did they seem to have critically examined the nature of the clemency decision and the contents of the pardon certificate itself. If the nature of the clemency or the conditions attached to it were unpalatable to them, they could have rejected the pardon certificate outright and insisted on resolving the issue according to the modus vivendi practised by national elders in Ethiopia, as previously intended and proposed by the elders and endorsed by those who, willy-nilly, I guess, signed the petition for pardon. If this was not to happen, then, they should have boldly chosen to remain in jail as ‘heroes of their cause’, whatever that may be, instead of trying to appear as heroes and heroines now.
Sixth, it can also be argued that the President would not knowingly or wilfully grant a “full pardon” to the convicts taking into consideration the immense destruction wrought upon hundreds of Ethiopian citizens, considerable private and public property during the post-election period in 2005 due to public disturbances instigated by the opposition bloc. “A full pardon having regard to the enormity of the crime and the killing of security personnel who were patriotically performing their duty would set a pernicious precedent, outrage the sense of injustice in the minds of the victims and open a veritable Pandora’s box.” Moreover, the Rule of Law, which is a basic feature of our Constitution, would be the foremost casualty and will go up in flames which must be avoided at all costs.
Seventh, though the Government is not legally required to furnish the reasons for its exercise of the pardon power to the people, the general public does not know at all the legitimate reasons for its clemency decision tendered to the former CUD leaders and supporters. No one can definitely explain the relevant and legitimate considerations for the exercise of the pardon power to release the concerned individuals on parole, as these were not made known by the government. Indeed, what were the relevant considerations for their pardon: interest of society and the convicts, or good prison record, or deference to public opinion, etc.? Or the persistent ‘knocking of the Government’s door’ by the elders to release the convicts on parole for the sake of the convicts good as well as the public welfare and the interest of society?
Eighth, when the Government recently decided to revoke B. Mideksa’s presidential clemency during the last months of 2008, it failed to follow the explicitly stated provision of Procl. No. 395/2004, Art. 17(1&2), that requires the grantor of clemency “to furnish the grantee with a written notice of such cause for revocation upon which the grantee may, within twenty-days from the date of receipt of such notice, submit his/her reply against it.” [Art. 17/2].
Whatever the case, the vexed question that should be asked at this juncture is this: Can the FDRE President revoke the pardon that he has granted to B. Mideksa? As far as the powers and duties of the FDRE President is concerned, he has all the powers “to grant or deny pardons based on the recommendations of the Board of Pardons or on his own appreciation of the facts” (Procl. 395/2004, Art.10/1), and “to revoke pardons based on Board recommendations regarding persons who failed to meet or [who] violated conditions of pardons.” (Procl. 395/2004, Art. 10/2). He is not required to provide any explanation whatsoever for these decisions, and the decisions are not subject to legislative or judicial review. Even if the purported pardon cancellation was invalid and had no legal effect, there still isn’t anything for a court to decide, and no legal precedent has been set. It’s only when a president issues a pardon, then cancels it, and then the grantee of pardon seeks to have the cancellation ruled invalid, that we would have a substantive legal ruling on the issue. And the only recourse for B. Mideksa now remains to take legal action to have the revocation ruled invalid by court and regain her freedom, if that is possible, or to beg again for pardon and forgiveness from the Government via the Board of Pardons, which seems a more preferable option under the prevailing circumstances. No pressure from inside or outside, I am afraid, will be effective enough to facilitate her speedy release from prison. I wholeheartedly beseech her to ask for pardon the second time and the Government also to pardon her again and soon, so that B. Mideksa may join her beloved daughter and mother before it becomes too late. As parents let us all try to understand the pain of her daughter and her mother during these difficult and trying times.
Be this as it may, to a constitutional lawyer, the interesting question is whether it is even possible to revoke a “full pardon” once it is given. It is long established that in the eyes of the law, a full pardon makes it as if the offence—not just the conviction—never happened. “The full pardon not merely releases the offender from the punishment prescribed for the offence, but it obliterates in legal contemplation the offence itself.” So, pretty clearly, once a full pardon is signed, sealed and delivered, and accepted by the recipient, that’s it: you can’t take it back. Yes, once a full pardon is signed and sealed, that’s it, the thing is done forever unless the recipient of the pardon rejects it, or, according to FDRE Proclamation 395/2004 (Art. 16/2, the recipient was discovered to have secured the pardon through fraud or deceit. So-called conditional pardons, which may have a condition or conditions precedent/subsequent, are a different animal. In this case, the pardon does not become effective until the convict satisfied a prerequisite or that the pardon will be revoked upon the occurrence of some specified act.
Concluding Remarks
Pardons can be all things to all people. They can be justice finally delivered, or well-deserved forgiveness for an old socially unacceptable transgression. They can be an undeserved or inexplicable break for unrepentant offenders with connections. They can be painful reminders of still tender wounds for victims who thought justice had already been done. The granting of a pardon is, or ought to be, educative in that it may point out how mercy can temper the rigorous application of the law. As enunciated in the American Jurisprudence:
It is submitted that though the circumstances and the criteria for
exercise or non-exercise of pardon power may be of infinite variety
one principle is well settled and admits of no doubt or debate,
namely that the power of pardon “should be exercised on public
considerations alone. An undue exercise of the pardoning power
is greatly to be deplored. It is a blow at law and order and is an
additional hardship upon society in its irrepressible conflict with
crime and criminals.” [see 59 American Jurisprudence 2d., page 11
. para. 13]
As a general matter, considerations of crime control are of vital importance whenever clemency is contemplated. There are many crimes for which lengthy prison sentences are appropriate. If the offenders are released or pardoned without adequate scrutiny of their records, public safety may be jeopardized. However, there are different considerations for ordinary crimes and political offences. “Repentance and the return to moral sentiments may, in the case of ordinary crimes, be made a condition of pardon. But political crimes and offences have a special character: they do not manifest in their author the same degree of perversity as common crimes, and conscience does not express the same reprobation for them.” Equally troubling is the diminished respect for the law that follows when pardons are granted without explicit regard for the gravity of the decision.
Finally however, democratic governments should be more interested in helping people avoid becoming enmeshed in the justice system in the first place, creating opportunities for them to earn their way to freedom, or finding their ways to encourage their reintegration into the community than enacting more laws, hiring more prosecutors, and building more prisons. It is necessary to keep in mind the statutory principle that:
“ To shut up a man in prison longer than really necessary is not
only bad for the man himself, but also it is a useless piece of
cruelty, economically wasteful and a source of loss to the
community,” as quoted in Burghess, J.C. in 1897, U.B.R. 330..