Some people find themselves in a storm and struggle to get out; others search for a storm and get into it knowingly. Eritrea’s history is full of both kinds of people; this column, the Fertile Womb, celebrates Eritreans who volunteered themselves for the sake of the people. They pushed a wheel and the train started to move on- it continued to move on, consuming lives, witnessing sacrifices, recording bravery and creating heroes, until it arrived at its final destination in 1991, with the gallant fighters of the Eritrean liberation forces entering Asmara victoriously. Eritrea entered into the unknown era under a liberation organization and the struggle was renewed, this time for the dignity of the citizen, the acknowledgement of past sacrifices and for the establishment of a just, free, prosperous and democratic society. Many of those who helped initiate the struggle, Eritreans now in their 70s, are dying off, many in exile and with them their unrecorded histories, forever lost. This, then, is the story of one man, a patriot, a breathing history, a brick in the foundation of Eritrea: Adem Melekin.

This article is compiled from telephone conversations with Adem Melekin as well as citations from his memoris which were published in Arabic, in his book "The Challenge: Memoirs of an Eritrean Rebel."

The saga begins in Halhal, where Adem Melekin was born in 1928. He graduated from the Teacher’s Training Academy in 1947 and served as a teacher in Halhal from 1947 to 1948 and in Keren in 1950. During the Era of The Parties² Adem Melekin was a member of the Moslem League. He was a rebellious young man who always landed in trouble for his political convictions. His school principal, and English man, once warned him, if you are "arrested [for political reasons], you will be fired".

In 1951, the 23-years old Adem Melekin was transferred to Barentu; after serving a year as a teacher, he was promoted and became the school principal. The "Shifta"³ phenomena had started and, in reaction, the British Military Administration (BMA) had formed a military field force composed of Eritrean soldiers, under the command of a British officer called Major McGill. This was six months prior to the enactment of the Federal Act of 1952, which federated Eritrea with Ethiopia.

Adem Melekin applied to join the field force but the British administrator convinced him not to: "son, we could appoint you Jawish [a sergeant] and then promote you to an officer after six-months, but the federal arrangement is six-months away and you will be stuck with the sergeant position and I warn you to continue in your job because the federation will not benefit the Moslems."

Jobs in the federal government were controlled and divided between the unionist and the advocates of partition⁴. He recalls a story: "When I applied to work for the ministry of interior I was asked by Mr. Alem Mamo, an Amhara born in Eritrea, whether I was a Tigre or Shimagle [a pre-reform caste system of the Tigre nationality]" to which "I replied that I was an Eritrean in need of a job." In 1953, Adem Melekin left for Adi-Keyih where the only he could get was to be an Arabic teacher, a demotion given that he was a principal in Barentu. The education inspector, "Mr. Kidane, blamed it on the Education Department." The job went to another person that he considered less qualified and this embittered him. He explains: "the BMA left 45 department-manager positions that were supposed to be replaced by Eritreans – divided equally between Christians and Moslems; if the manager was Moslem his deputy to be Christian and vice versa. But the Christians violated this agreement while the Moslems were busy with their tribal conflicts."

The disparity was not just in education, but also the judiciary, he explains. The posts of clerks and translators were staffed by Tigrigna-speakers and Tigrigna was the language of communication in the appellate court. "I witnessed the difficulties faced by the lowlanders because they did not speak Tigrigna," he says. Melekin aired his objections about the inequity which began to be rectified when Mr. Omer Hasseno⁵ was appointed the minister of Justice.

In 1957, Melekin met Sudanese students from the University of Khartoum who were in Asmara for a football game. The delegation included Professor Mohammed Hashim Awad and Omer Mubarek. He told them about the situation of Moslems, and upon their return to Sudan, they published the conditions of Moslems in their publications. This incident earned Melekin a place in the Eritrean federal government’s "blacklist" and he started to receive threats on his life. His complaints to the authorities were all ignored "except Mr. Omer Hasseno who sympathized" with him.

Almost half a century later, I hear this same complaint about inequity, I comment. "It is one of the biggest mistakes of PFDJ," responds Adem Melekin, "But it is not just with religion. The best way to get representation is to base it on regions. The government unilaterally decided to tamper with the existing borders and entities of traditional regions. Representation can best be achieved based on regions. Otherwise, you have the evils of tribalism and sectarianism; and any imbalance creates conflicts."

But the government says that it has created regions by replacing the old regions, I counter.

Melekin is evidently passionate about this issue. He snaps, "let the parliament decide that! The flag and regional boundaries are a result of struggle and were not achieved without cost. Even before the advent of the Italians, there were conflicts and when the boundaries were delineated, it was not done just like that- it was as a result of conflicts, rebellions and clashes and negotiations among the people. Unfortunately, the government depended on ‘We and our objectives’ and thought the people would kneel down to its single-handed proclamations."

While on the subject of passionate views, I asked Melekin to describe what justice means to him.

"Now that Eritrea is liberated, it is required that Eritreans be allowed to participate in the making of decisions that affect their lives. There should be a parliament and a constitution so that the people would be part in the taking of political decisions. There should be political rights, because in that, the people are not asking neither for privileges or wealth.

"We cannot begin this process without a change in outlook. Since power has always been in the hands of Christians, they should understand that Eritrea belongs to all of us and everything should be equally allocated- especially the parliament, the executive, the army, the judiciary and employment in the public sector."

There is an element of bluntness that only men who are aged 77 can say. He is surprised by my discomfort: "We are talking about a country that belongs to all of us, aren’t we? This should be stated clearly and agreed upon. Very early on, these points were agreed upon after so much struggle in the era of the federation; but the Unionist party destroyed this agreement. For example, the officers list of the government of Eritrea contained 650 names out of which only 120 were Moslems. The sky is not going to rain gold and the ground is not going to grow gold unless we agree to this basic arrangement without playing games on each other."

It is just that, Isay defensively, that I hear this kind of "blunt talk" from Islamists. Are you an Islamist?

"Eritreans are Moslems, Christians and Traditionalists, like some Kunama," says Melekin, "I was consulted when the Islamists started their organization. They were mostly complaining about the communists who weree encroaching on their tradition- the Labor Party, etc. I told them: then, there should be a Christian organization as well. The two religious organizations can then coordinate and fight against the communists. I also told them that I am a Blenawi, I have Christian brothers. Do I declare war on them in the name of Islam? My great-grandfather was a Christian and converted to Islam. How would I fight against my brother? If we are to go further, I am from Hamasen and beyond that Tigrai and beyond that, God knows where. We should aim for a secular government, which is the only solution for Eritrea. Complaints are abundant from all sides. We should agree on a middle ground and that middle-ground solution should be secular. There are other problems such as tribal issues. I, as Moslem, didn’t delegate the Islamists; they are there on their own choice and because of their own grievances.

"If we looked into the past, there was the Rabita AlIslamiya (Moslem League) with clearly democratic and secular goals. Because of that, Ras Tessema, Abraha Tessema and their party didn’t have qualms of coordinating and forming the Blocco [Independence Bloc] with Rabita because it was a democratic and secular organization."

There is a strong streak of justice in the man and, back in the days, he had aspired to become a judge but his efforts didn’t bear fruit. When the government of Eritrea was recruiting judges, Melekin was nominated to become a high court judge but the executive authority rejected him without stating the reason. He wrote a memo to Bitweded Asfaha Weldemichal⁶, then the Chief Executive, as well as to Cavelieri Abe, the tribal Nazir of Melekin. Asfeha confirmed to Cavelieri Abe that he was going to appoint Melekin as an appeal judge in the appellate court. Nazir Abe suggested that Melekin be appointed as an inspector in the local administrations because he was too young for an appeal court judge. But Asfaha said that "he is a person with political tendencies and couldn’t be appointed outside the judicial apparatus." Melekin was summoned by Assfeha for a meeting but the meeting never materialized. At long last, Asfaha’s secretary informed Melekin that he will "be appointed as an attorney general." Melekin rejected the position because "[he] did not want to be a lawyer for the government."

The creeping injustice of the "first government" led to an active agitation and rebellion by the populace and it resulted in strikes of students and workers throughout Asmara, Keren and Agordat. This was the genesis of the Eritrean Liberation Movement in 1958. Melekin describes it as "a revolution against a government of elitists and traitors."

Melekin and his friends started contacts with the ELM to support its goals. It culminated into an agreement to establish a branch and a main office for the ELM in Asmara. The ELM delegated the late Saleh Iyay who came to Asmara where a founding meeting was held. In addition to Adem Melekin, the attendants included the late Khiar Hassen Beyan, who was elected president, Sheikh Saadedin Mohammed, the late Hdad Kerrar, Ali Berhatu, Ahmed Mohammed Hashim and Mr. Yassin Aqeddah.

After the branch was well established in clandestine form, the ELM held its first international congress in a secret basement owned by Abdulkadir Mohamed Zen. The congress was attended by Mohammed Said Naud, considered the founder of the ELM, who had come from Port Sudan.

Melekin remembers the hottest issue of discussion in the meeting, to decide on "the ideal means of struggle." The attendants were divided between supporters of armed struggle and those who favored political means. Melekin was a supporter of the armed struggle because, "it is risky to depend on political means without basing it on an armed force." The meeting went on from 9PM to 5AM the next morning without reaching a consensus. Melekin and Mohammed Hashim withdrew from the meeting sticking to their view for the choice of an armed struggle.

Again, half a century later, we are having the same debate—one which is being followed by Adem Melekin, this time arriving at a different conclusion. "Change," he says, "should come from inside Eritrea, even if that requires imprisonment and death. People should defy and struggle. But an all-out armed struggle is not right: In the past, we knew who our enemy was- they were out to kill us and we responded in kind. But now! It is your brother, your neighbor, you know him and he knows you- who would kill whom? If one wants to achieve political gains, then it should be by targeting the senior heads of the system, from inside Eritrea and not an all-out military confrontation from the outside."

But why isn’t there defiance inside Eritrea? Melekin says, "Most of the officers - I have talked to many of them while in Eritrea- have spent decades in the struggle and upon the independence of Eritrea, they arrived penniless and without a skill. With meager resources, some managed to establish a home. Now, they have families and children and they are not willing to spend what is left of their lives on another struggle. They complain that their lives were wasted and they have no guarantees for their living. Does the opposition have guarantees, financial and security guarantees, for these people so that they can do something?"

We talk some more about the ELM, to the comfort of history. The ELM started an extensive recruiting campaign and it was successful. Nationalist Eritreans were joining in droves though the recruiting was very secretive. But several weeks after the initial ELM meeting, Khiar Hassen Beyan was arrested and tortured on suspicions, but "he withstood the barbaric torture to which he was subjected for three-months." And when he was released, he went into exile to Egypt. Then a chain of arrests followed. Melekin remembers, Mr. Khelifa Mohammed, the leader of the Akele-Guzai militia during the era of the parties, Fitewerari Yassin, leader of Seraye militias, Osman Lonji, from the Baria-Baza region and Idris Hamed Awate, "Shiek Al Khat" (Line master, a military rank) among those arrested.

Melekin opened discussions with some nationalist members of the parliament, among them, Mohammed Omer Akito, Sheik Osman Hindi, and Mr. Mahmoud Omer. He promoted the causes of ELM and finally disclosing to them his membership and his views of an armed struggle. The most practical strategy, he believed, was if the struggle depended on Eritreans in the Sudanese Army and the local police, but he admits that there was no "laid out working plan at the time".

When they met in Keren, Melekin proposing his views on armed struggle to Omer Ezaz⁷. He later called Omer Ezaz to Asmara where he arranged a meeting between him and Mr. Akito, Hindi and Mahmoud Omer. Upon his return, Omer Ezaz sent two delegations headed by Taher Salem [martyred] and Mohammed Saad to conduct a feasibility study of Melekin’s idea.

In 1961, while vacationing in the hot spring area of May W’ooy, Melekin learned that Hamis Idris Awate had announced the start of an armed struggle. Melekin left for Tessenei and headed for the Sudan. In Kassala, he held a meeting in a military garrison with the Eritreans in the Sudanese Armed Forces. Present in the meeting were Saeed Hussen, Taher Salem, Abu Teyara, Omer Damer and twenty-eight other soldiers. They evaluated the situation after announcement of the Armed Struggle and discussed ways of supporting Awate. The meeting agreed to send a committee for talks with Awate and also agreed on the proposal that the soldiers join the armed struggle. When the committee met Awate, he requested from the delegation help in supplying ammunition, a nurse and medicines.

Back in Asmara, Melekin and Tekhle Asfeha contacted and "recruited Mohammed Saeed Shemsi⁸ [Martyr] who was the custodian of the government arms stores in the Red sea region and he promised to open the store at the opportune time." The next step was to establish "coordination with Eritreans in Addis Ababa." This was accomplished and the main contact was Yosef Andom⁹.

On April 8, 1962, Melekin traveled to Keren and met Mohammed Idris Haj¹⁰, through the leader of the clandestine cell, the late Ali Kerrar. He was informed that the soldiers from the Sudanese army had already joined Awate. The same night, he met Omer Ezaz And Abu Rejela in the outskirts of town.

On May 2, 1962, Melekin received a request for hand grenades from Ali Kerrar who had traveled to Asmara for that purpose. On June of that year, Melekin carried letters from Mr. Manna, who was an ELM cell leader in Addis Ababa and who was visiting Eritrea, asking his members in Addis to hand the stored arms to Melekin. When he met the ELM members in Addis and handed them the letter, Melekin received 25 English and American hand grenades and went to rest at the Yasssin Hotel in the Mercato area accompanied by Yosef Andom.

The next day, Yosef returned to take Melekin to his personal friend, Ngusse Aafa. During lunch, upon learning of the purpose of Melekin’s trip, Ngusse, together with Yosef, volunteered to pay for an automatic weapon and 1000 bullets. Melekin also met Saleh Ashekeh¹¹, an active ELM member and a member of the Ethiopian parliament, who introduced him to Mohammed Berhan Azmatch who in turn introduced him to Mr. Saed Kahsai. Mr. Saed Kahsai contributed a machine gun, 1000 bullets, shoes, belts and addresses of companies that sell arms in Europe. He also delegated Mr. Mohammed Berhan to assist Melekin in transporting the goods to Asmara.

Would Melekin have traveled to Ethiopia in search of arms today, asks the author. "People need to differentiate between the old and the new," he says, "Back then, we didn’t have a national entity; we were subordinates to other powers. But after our land is liberated, people should recognize that the EPLF struggled with determination and liberated the land. We should also understand that Ethiopia has the right to good neighborliness, the right to practice politics and the right accorded by international law. But I don’t see any reason for rushing to Addis Ababa by the opposition."

Melekin was in Addis Ababa waiting for the rest of the arms to be brought by Eritreans living there. He waited for ten days for the second automatic weapons, which Yosef and Ngusse were buying. In the meantime, he got acquainted with Abraha Hagos, Dragon Haile Melekot and others. He was elated because his new acquaintances already had weapons, explosives and grenades that they wanted to be transported to Eritrea. They asked Dragon to go to Asmara and head for Cairo to acquaint himself with the political positions of the politicians; they wanted to know their stands in regards to the revolution. Melekin thought this was important because he has earlier received a letter from Idris Mohammed Adem informing him of misunderstanding between him on one side and Ibrahim Sultan and Weldeab Weldemariam on the other. Melekin gave Dragon the address of the premises of the students’ union and pictures of Adem Akte and Mohammed Saed Omer who would be his contacts in Cairo.

Before Melekin headed for Asmara, he had agreed with the group in Addis, Dragon and Abraha Hagos, to send a delegate to prepare the situation before they arrive. But somehow, the cell was close to be exposed and they had to flee. Without notice, 13 people headed by Abraha Hagos, arrived in Eritrea, carrying weapons. Melekin was disturbed because his sister, Amna Melekin¹² was living with him. He had to find a solution because all the weapons were with him. Also, his friends in Keren had not made the necessary arrangements to receive them and to enable Ali Kerrar to transport the weapons to their final destination.

Melekin took a daring step by taking advantage of the presence of the group from Addis Ababa. He boxed all the weapons and asked some of the group to accompany him to Keren. After making arrangements for his friends in Keren to wait for him at a specific street, they drove to Keren, in Mohmoud Omer’s¹³ car, at seven in the evening. When their vehicle was approaching Keren, Melekin surprised his friends with the news: the boxes in the vehicle contained the arms. They emptied the boxes and carried the guns and ammunition: the same night, the shipment was delivered to Ali Kerrar.

Such daring and bravery was common place in his generation and the generation that followed on their footsteps. How is it that a country whose citizens overproduced bravery is in such malaise with her children fleeing from her and her exiled ones quietly enduring exile? The solution is with the PFDJ, says Melekin and, "if I could, I would tell them: you struggled and succeeded and now you have the solution in your hands- you are not going to live for a hundred-years, sooner or later you will die. You should leave a legacy that would add to your previous legacy- why do you want your children to be remembered as the ‘children of the thief’ or ‘children of the killer or jailer?"

But don’t they already know this? "Cronyism and arrogance destroyed Shaabiya," he says, "They should have depended on a parliament and debated constitution and nobody would have cared if they ruled for a hundred-years." What if they don’t heed this advice just like they have been ignoring many advises and calls for reason? Melekin warns of a consequence that he has witnessed in his 77 years of active life: "the solution is in the hands of the government ‘billetti hya ahsen’ [through better means]. There is a big chance of a military coup and the result might not be as we wish. The regime has created enmity with Tigrai, which is the worst, because we don’t have enmity with the people of Tigrai or the people of Ethiopia. They have the right to good neighborliness. Equally, Sudan is our natural ally. But our relations with the government of those people should be based on a constitution and on negotiations and open protocols and not whims of a few".

We go back to history. What happened after Melekin delivered the arms to Ali Kerrar?

Upon his return to Asmara, Melekin convinced his sister Amna Melekin to travel abroad to continue her education because he was worried of her living with him when he was involved in a dangerous activity. He saw her off in Tessenei where she headed for the Sudan. Meantime, the cover of the group of thirteen was exposed and they were arrested, beginning with Mengstu Bairu¹⁴. Melekin’s cover, too, was exposed during the interrogations and he was now a wanted man.

On June 22, 1962, at 9 O’clock, Melekin recalls, he called the secretary in the office of General Tedla Ogbit¹⁵, the Police Chief, and asked why he was wanted. He was told to contact the office of Captain Abdulrahman of the criminal investigation department (CID.) Melekin went to the CID offices and didn’t find the captain he was supposed to see. He went back to his house. A while later, Captain Abdulrahman came to Melekin’s house and informed him that Tedla Oqbit wanted to see him. When Melekin stepped down in the street with the captain, he saw police cars and personnel all over. He was taken to Tedla Ogbit’s office where he was formally accused of bringing arms to Eritrea. Melekin denied the charges. But the interrogators brought his arrested friend "Abraha Hagos who testified" the opposite. Melekin says, "there was no point in denying it then, except to invite torture so I admitted the accusation."

When Melekin was asked who received the arms, he gave his interrogators a fictitious name. They asked him for more names of people that he dealt with. Melekin said that the persons he deals with are not in Asmara: "One of them is called Hamid Idris Awate and the other is Idris Mohamed Adem. Those are my colleagues and remember that it is the hero Hamid Awate who governs the Western region and not Hamid Ferej or Sheikh Radd'ai [members of the assembly]." As soon as he said that, Tedla Ogbit asked Adem Melekin if he had any health problems. Says Melekin: "Then I knew I was going to face a serious torture."

At two in the morning Melekin was taken to the Addis Alem prison where they "put iced water over my body and beat me up all over the body with everything they found in the room." For ten days, Melekin endured the torture. On the eleventh day, he was presented to a court, presided by Judge Tsegai Habtemariam. The prosecutor, Mohammed Hankil, asked for a postponement pending conclusion of investigation. The judge refused the prosecutor’s request. Still, the prosecutor was able to present charges in violation of specific articles which, if found guilty, could result in being sentenced to twenty years in prison or death. Melekin was transferred to the central prison.

Melekin goes on: "Tedla Ogbit had come to my cell to conduct the interrogation and as he was walking out, he learned of the Agordat operation¹⁶. He returned and ordered that I be denied cigarettes and tea."

After four months, Melekin was transferred to the police directorate building where he was surprised to find Mohammed Berhan Azmatch, the person who had helped him in transporting the arms from Addis Abeba. Melekin was asked if Mohammed Berhan was an accomplice; Melkin denied it, and Mohammed Berhan was escorted out of the room. Furiously, Tedla Ogbit told Melekin that he has confirmed Melekin’s leadership of the activities and that Melekin’s "friends have killed five policemen immediately after the Agordat operation." He then started to beat Melekin with a stick until the stick was broken. Melekin says, "I was beaten up for two hours and I was taken to prison unconscious."

The next day, the prison doctor visited him and reported that he was badly beaten up. Three days later when he was presented in court, Melekin did something that is still vividly remembered by the generation of the sixties: he exposed his body to show his bruises to the judge. Refusing to be associated with such cruelty, and the responsibility of ruling over the case, the presiding judge admonished the prosecutor and refused to be associated with the case. Melekin was taken back to prison.

The authorities fired the judge and Melekin was presented to another court presided by Judge Weldu Berhe. The case dragged on for ten months and finally, the judge rule that there was no evidence presented that warrant a twenty year or death sentence. The allegation, noted the judge, is of political nature and none of the articles presented by the prosecutor deal with that. The case was referred to another judge, Judge Berhe ‘Engliz’, whose verdict was that Melekin be set free because the prosecutor had failed in presenting evidence for its case.

After he was freed, Melekin left for Keren to visit his mother. Upon returning to Asmara, he was surprised to discover that the prosecutor had appealed the judge’s ruling. He was advised by friends, who included a lawyer, that his situation was difficult. He explained his predicament to his friend Mengstu Bairu who helped him elude the authorities by driving him around till the late hours of the night. The next morning, around 5:00 AM, he sneaked into his house, changed his clothes and caught a bus bound to Keren. He disembarked on the outskirts of Keren and headed towards Kassala, where he was received by Mohammed Adem Gessir and Mahmoud Ginger. It was 1963.

Since the security was difficult in Kassala then, his hosts smuggled him on a lorry to Khartoum where he was received by Jaafer Mohamed [Martyr], who was with the Sudanese Armed forces then. While in Sudan, he was sentenced to ten-years in prison in absentia and a circular was passed to the Sudan for his arrest. Melekin maintained a low profile in Khartoum: the Sudanese authorities had arrested six ELM members [wanted by the Ethiopian government] and handed them to the Ethiopian authorities.

Melekin considered going to the field to join the armed struggle, but after he met Idris Hamid Saadallah who was returning from the field to Cairo as well as the combatant Abdella Degoul, who was in Sudan, he was convinced that he was ill-suited for the field as he, unlike everyone then in the field, didn’t have any military training. A few weeks later, Melekin secured a visa and a traveling document from the Egyptian consulate and left for Cairo where he lived from November 1963 until 1993, when he returned to Eritrea to participate in its referendum. He now lives in Australia.

Asked if his generation is appreciated by Eritreans, he says, "I would like the Government of Eritrea to take care of the old generation because it has so far neglected it," he emphasized, "I am talking of a generation that ignited the Eritrean struggle for the sake and betterment of the Eritrean people and not for the ministerial, or other places of power or privileges. The struggle was for all Eritreans."

SUPREME COURT OF ERITREA
COURT OF APPEAL (CRIMINAL) CASE No. 135/63
  Asmara S.D.C. Case No. 85/62

HIS IMERIAL MAJESTY HAILE SELLASIE 1
Vs.
ADUM MOHAMED ALI MELEKIN – Respondent
_____
THE CHIEF P. PROSECUTOR – APPELLANT
_____

BEFORE: - Mr. Justice Johannes
              Justice Latilla
              Mr. Justice Pollera

FOR THE PRESECUTION: - Ato Mohamed Hankil
FOR THE DEFENCE: - Pl. Ato Mesghina Ghebrezghi

JUDGEMENT (Johannes J.)

This is an appeal by the learned Chief Public Prosecutor against the order of acquittal on the ground that the trial court misdirected itself both in point of law and in point of fact. The learned trial judge based his judgment mainly on two points – (a) that the respondent was brought to court almost three months after being arrested while nothing was known as to what happened during that time, except for brutalities committed on him by the chief police and (b) that there was no evidence to substantiate the charges as the evidence of the main witness for prosecution was hearsay. He therefore concluded that confession were not voluntary and were inadmissible.

2. There is no doubt that the learned judge fell into a palpable error, to say the least, in point of fact. The learned public prosecutor has kindly placed before us all the necessary information and the result is what follows:

The respondent was arrested on June 22, 1962 and on June 25 made a statement to the police (under rule 18) and a confession to a Magistrate (under rule 72/A of the repealed Rules of Criminal Procedure). On June 30 he was produced before the Asmara and Hamassien Magistrate Court for the first time. The public Prosecutor-asked that' the Police be allowed to retain him under their custody but the learned Magistrate ruled that the respond to be remained in custody, in the ordinary manner to the 10th of July 1962. From that day onwards regular adjournments were made (see R.W.No.26541 a dated 30.6.62 and original case record No.454/62) until August 15,1962 when the police requested a permission of 3 days of police custody which was granted. On August 18 1962 he was duly produced in Court end a new case file opened (454/62/bis). He complained to have been maltreated by the police and showed his bruises, on his back to the Magistrate who ordered that he be medically examined and the medical certificate dated 23.8.1962 did actually show that the applicant had suffered bodily harm. On 18.8.62 a new charge-sheet was framed leaving out one Mongustu Bairu who was then to be charged jointly with other 10 people but was subsequently tried alone, and on September 9,1962 committal proceedings in respect of the respondent and his co-accused Mohamed Berhan Ahmed began, culminating in the discharge of the latter on 8.10.62. The prosecution has also produced two tentative orders under Procl.1/55 whereby the police had authority to detain him for a period of 10 days (see original copy of Authority for Detention dated 23.6.62 and duplicate copy of same dated 25.6.1962). Admittedly also there was a quarantine, because of typhus, in the prisons from Jane 30 to August 18,1962 (see p. 33 of record in trial court in fairness to the learned trial judge, it must be confessed that the disorderly manner in which the files were prepared and kept at the Criminal Registry of the Magistrate Court may well have understandably confused the learned judge and it may also be that he did not have the benefit of having the whole information, that we have and, laid before him. The learned Public Prosecutor, at the trial, however, dis emphasize that the respondent had been regularly brought to court on June 30, 1962 and (and this was corroborated by the respondent himself at P.22 of the record of trial court) and this fact ought to have been checked. The undeniable fact is, at any rate, that what the learned trial judge believed and said in his judgment is inaccurate the respondent was taken to court 8 days after his arrest for the first time and not " about exactly three months from the date of his arrest" These being the fact what is the result?

3- The record clearly shows that when the respondent first came to court did not at all complain to the learned Magistrate of any police harsh treatment: nor did he complain to the learned Magistrate who wrote down his confession three ways after his arrest and the learned Magistrate was satisfied that the statement was being given voluntarily, for the respondent " did not seem to have been beaten nor did he say so" (evidence of Magistrate at pg.17 of record in trial court) and even the respondent says that half of the story is his(pg.24). Ato Mongustu Debessai is an experienced Magistrate and there is no reason why his evidence should not be believed. The learned counsel for the defense before the trial court asked in his closing speech: If what accused said on the 25.6.62 was enough why was accused beaten on the 18.8.62? " Exactly; that may be one of the reasons. It is very likely that the police wanted to know some further facts which the respondent had either purposely or otherwise left out from his confessions. Their action was highly improper and was undoubtedly an open defiance to the courts, in as much as the respondent was then under the protection of the courts, and as such deserves condemned.

This person, however does not necessarily invalidate the confessions previously made. It seems to us then that the confession was voluntarily and as such admissible in evidence.

4. The confession made to the Magistrate under Rule 72/A, not to say anything of the similar statement made of the police on the same day, is also corroborated by the other circumstantial evidence. There is a logical sequence of facts which clearly tell with what the respondent said. Admittedly he absented himself from duty and went to and came back from Addis Ababa by plane. His explanation for this is that he was looking for a job. He did not call any evidence in support of this contention. On the other hand, there is a strong inference to be drawn that he went there to buy arms; there is evidence that a box weighing between 50 to 60 Kilos was sent to him from Addis; that he went to collect it by car, together with others, during evening time; that he took it to Keren and on his way back met Sgt. Amare who had asked for a lift to Asmara but was dropped at Elaberet instead, inspite of the fact they were all coming to Asmara. In his defense, the respondent could only say that the box was sent to him by a "broker" whose name he did not disclose; and that it contained clothes and liquors and that he went to Keren for a pleasure trip. He could neither remember the owner of the car nor the type of the same or even the number of persons who were accompanying him.

To this the evidence for the prosecution must be added. The first witness said he did not know anything about the case and retracted what he had said in committal proceedings on the ground that he had been forced to testify falsely at the time. At that time he had stated that he met the respondent together with other persons by night when he came to Keren in a car and handed him and to another person two rifles, 600 rounds of ammo, 24 handgrenades, 12 pair of boots, 70/80 belts and that after keeping these goods for about 20 days he handed them to 4 persons one of whom was Mohamed Idris, a bandit with Idris Awate.

Mohammed Idris assured him that they were taking them to Idris Awate. It is true that this witness had first began his evidence by saying that he knew the respondent and that they were both members of the "Jebhat" Association but after the warning that he need not incriminate himself he refused to answer any questions. Then he was brought under Molle Prosequi but the Magistrate but the Magistrate did not think it was safe to hear that evidence at that stage. He did eventually hear him, again under a Molle Prosequi, and his evidence was as above. In the trial, as afore said, he said nothing. What is the weight to be given to the evidence of this witness? One thing is certain. He did say at the outset that he knew the respondent as one of the members of his association, a fact which tallies with what the respondent said in his confession. How is it that the witness Karrar becomes afraid of the police at the committal proceedings- when he had also been assured that he would be free from any charge- and is no longer so afraid at the trial? As a general rule, the mere fact that a witness has been declared as hostile does not necessarily render his present version untrue. It may be the other way round. By the same token; it may well be that he might have been telling the truth originally and is instead lying now. It is a points the credibility of which is left to the discretion of the court. Thus, if Karrar was telling the truth first the fact that he had been forced to tell that truth subsequently does not make his evidence necessarily inadmissible. Whether a witness is hostile or otherwise is of course entirely a matter for the court to decide, for by adverse (hostile) witness is meant not one whose testimony turns out to be merely unfavourable, but one who shows a mind " hostile" to the party calling him or who, by his manner of giving evidence, shows that he is not desirous of telling the court the truth and once it is proved that the witness is adverse, the party calling him may be allowed to adduce evidence to show that the witness is not telling the truth of that he has, at other times, made a statement inconsistent with his present testimony. The witness has of course certain privileges, but once those privileges have been respected-and here a nolle prosequi has been entered then the witness cannot refuse to answer and can be compelled to answer instead. In such a case the only point that the court has to decide is, having regard to the whole demeanour of a witness, was the witness telling the truth in his previous statement or is he telling the truth now? We believe that Karrar was not lying when he first gave his evidence before the committing magistrate. The facts that he narrated are too detailed and too precise for any one to invent them.

The second witness Mohamed Aman substantially corroborated what Karrar had said but in the trial court slightly modifies his version as told to the committing magistrate. It is obvious that he too is trying to save the respondent. In the both stages, however, he testifies that a car (in the committal be specifies by saying "Walkwagen" [Volkswagen]) brought firearms and other materials and three persons alighted from it (in committal he identified the respondent as one of them); that the goods were kept in Karrar’s house for about [x0?] days and he personally met the two emissaries of Idris Awate who were to take these goods away.

The third witness, Alazar Kelete, did not modify his version. He came from Addis Ababa together with Abraha Hagos and one Tesfai and informed the respondent accordingly who, in turn, took him to Bar De Nada and introduced him to Mongustu Bairu. These are also important circumstances which corroborate the respondent’s version of the facts in his confession to the magistrate.

The fourth witness, Abdelwahab Ibrahim, is another essential witness, as a result of a telephone call from Addis, he was to receive a sealed box and hand it over to one "Adem" the respond at went to him more than once seeking information as to its arrival and identified himself as Adem. He came, together with two persons in a Wolkwagen; at about 19:30 hrs. One evening and collected the box which weighed approximately 50 to 60 Kilos. This evidence, again, tallies with what the respondent had said in his confession.

In these circumstance, there is no doubt that the trial court’s judgment is against the weight of the evidence and the learned trial judge did misdirect himself in law both I ruling that the confession of the respondent was inadmissible in evidence and in discarding the evidence of the main witnesses for the prosecution.

We take judicial notice that Idris Awate is or was a bandit still at large.

5. Under Rule 3 of Legal Notice N.236 of 1961(In absentia Rules) a person charged, inter-alia, under art.254 P.C. (and the respondent is so charged, even if alternatively) can be tried in absentia provided certain conditions have been satisfied; this is for the removal of any doubt, but the present respondent doesn’t exactly come within the cases therein provided for; and under Art.193 (2) of C.P.C. the court of appeal in the absence of the respondent. In this case, the learned defense counsel who was defending the respondent in the lower court was duly notified of the hearing date of the appeal and he has assured the court that he informed the respondent’s relatives accordingly. No one seems to know the present whereabouts of the respondent, but the relatives could have still instructed the learned defense counsel to represent the respondent as before, if they had wanted. They did not do so.

Under Art.195 (2) of the C.P.C. the order of acquittal in respect of Adam Mohamed Ali Melekin made by the then district court of Eritrea in case No.85/62 is hereby reversed and a conviction under Art.7 of the Banditry Act, 1957 entered. The respondent is therefore found guilty under that charge. We also think that the ends of justice would be met if a retrial is not ordered and if the sentence upon him is directly passed by us. He will be therefore sentenced to 10(Ten) years of imprisonment with effect from date of arrest. A warrant of commitment for execution of this sentence will be made, under Art.205 C.P.C. when and if the respondent is apprehended.
                                                    Sgd. Johannes Berhane
                                                    Sebsabi Dagna
                                                    Supreme Imp. Court in Eritrea.

Letilla Dagna: - I agree,
(Sgd. Gaetano Latilla)
Pollera Dagna: - I agree. ( Sgd. Giancarlo Pollera)

Given in Asmara this 28^th day of Nehasie 1955(3.9.63)
…………..
CERTIFIED TRUE COPY.

GOVERNMENT OF ERITREA
ASMARA AND HAMASEIN MAGISTRATE COURT
                                                          CASE NO. M/454/62Bi
THE LAW
Vs.

1. ADEM MOHAMED ALI MELEKIN
2. MOHAMED BERHAN AHMED