A man of unique credentials and of one of Africa’s few constitutional scholars, Dr. Bereket has played prominent role in the recent histories of Eritrea and Ethiopia.  This unique training and willingness to serve has seen the chapters of his life unfold from Ethiopia’s Ministry of Justice, to Ethiopia’s University, to the Commission of Inquiry investigating the offenses of his former employers, to the Eritrean field, and to the UN as Eritrea’s Representative, to chair the Constitution Commission of Eritrea and, finally, a citizen who, as member of “G-13”, helped articulate a view of advocating the immediate implementation of the ratified constitution he was instrumental in drafting.     

Given the subject that is going to be covered at some length—the constitution—and its importance on Election 2001, we expect and we welcome our readers to ask Dr. Bereket questions—especially those we haven’t thought of.  This, then, will be an “interactive” interview and we ask readers to mail their questions to This email address is being protected from spam bots, you need Javascript enabled to view it .

Part One of the interview will offer a brief background of Dr. Bereket as well as touch on the make up of the Constitution Commission.  Part 2 through Part 4 will deal with specific articles of the constitution.  Part 5 will deal with the writings of Dr. Bereket particularly those posted in the Eritrean websites.  The final part, Part 6, will be answers to questions posed by readers.

PART  I 

Could you tell us a bit about your background?

I was born in the suburbs of Asmara, before the defeat of the Italians by British and Allied forces.  I did my elementary schooling in Asmara and Harar [Ethiopia], my secondary education at the Wingate School in Addis Ababa; and my university education in England (LL.B. and Ph.D. in law; 1967.)  I did my post-graduate research/study in the United States (1964-65).  Between 1949 and 1957, I also spent some time in France and Italy, studying the languages and literature of the two countries.

My education being in law, I was posted in the Ministry of Justice in Addis Ababa upon my return with my first degree, and was eventually appointed as Attorney-General of Ethiopia and held other positions.  In 1963, following the abolition of the federation between Ethiopia and Eritrea, I sought to resign from my duties as Attorney General.  I had expressed disagreement on the imperial government’s policy and action regarding Eritrea and things came to a head when the Emperor abolished the federation.  The request was denied, so I had to wait for an opportune moment, seeking a way.  The opportunity came in 1964, when I applied to an was accepted by the newly established Law School at Addis Ababa University as a lecturer in law.  Before I could start teaching, however, I managed to secure a visiting fellowship at the UCLA Law School in 1964-65, so I quiety left for the United States without the permission of the Emperor.

You mean you need permission from the Emperor to leave the country?

If you are an Imperial appointee, you cannot leave without Imperial permit.   It is what they call les majeste. And les majeste is a criminal offense: a crime against the king. 

So you committed a crime against the king?

Oh, yeah.  Big time. This was tantamount to treason and was one of the reasons for my subsequent troubles with the Emperor.  Immediately upon my return from abroad, the Emperor banished me to Harar.    When I joined the revolution, you know what the Americans called it? A lawyer-turned-outlaw… 

Not a harsh punishment for something “tantamount to treason.” For the emperor not to punish you, it must be because you had family connections, nobility…

Oh, no; I am the son of a simple peasant.  I had a certain reputation amongst colleagues, most of the progressively inclined, liberal elite.  He was a clever man.  He never went out of his way to harm anyone or do anything against someone who is popular.  If it had been Mengistu, I would have been shot summarily.  Had it been 30 years earlier, the Emperor would have sent me to some remote land in chains, what they called yegir bret.  But by then, he was worldly, wiser.   My punishment was to be banished to Harar.

When was this?

That was in 1967 as the Eritrean Liberation Front (ELF) was stepping up its attack against Ethiopian security outposts and on government personnel.  Of of the crimes of which I was supposedly guilty was belong to the Jebha [Front], as they called it, and that I was one of its leaders.   Of course I was not one of Jebha’s leaders; I didn’t even belong to any liberation organization in any way, shape or form at that time.  I had sympathies to the ELF, like most Eritreans at the time and I had briefly belonged to MaHber Showate [Cells of Seven aka Haraka aka ELM]…

You briefly belonged to mahber Showate?

Yes.  A disastrous organization!  So ill-organized, people were boasting and recruiting openly and the police would follow us everywhere.  That is how most people were caught.  The movement in the lowland—the Haraka—was better organized.  But we were in the belly of the beast.  Fortunately, the Chairman of seven-member cell was able to contact the superior.  Only if the chairman is caught is there real danger.  Fortunately for me, the chair of my cell was not caught.  

And who was that?

Yohannes, happens to be a cousin.

Did your name make it to Nawud’s book [a chronicle of the Haraka movement]?

I doubt it.  Because the connection between the lowland and highland was rather loose.  The Haraka movement continued separately.  I doubt it….When we [Nawud and Bereket] met in Beirut in 1975, we discussed it and we had a laugh.  There was no discipline…that is what led to the collapse of the underground.

This was in Addis?

Oh, yes.  In the belly of the beast.

Then what happened?

My banishment in Harar lasted three years, after which I was posted in the Ministry of the Interior under the close observation of the security machine.  I finally managed to leave Ethiopia in 1972…

Given the Emperor’s anger towards you, how did you manage to leave Ethiopia?

I have a child who was brain damaged at birth.  By that time (she was born in 1966) she wasn’t speaking and her movement was awkward.  I couldn’t find any medical facility or specialist.  I applied to the World Bank in Washington, DC with a view towards getting the best specialist.  It was almost a year before I could get permission from the Emperor.  It is a long story.  Getahun Tesema, the Minister of Interior, tried his best to mediate with Aklilu Habtewold, the prime minister.  They knew the emperor was ill-disposed towards me so they told me I had to do it myself.  They said, “If you can get anyone to take you to the emperor, then appeal directly.”  I was able to get someone to take me to the emperor.  To make a long story short, having questioned me, he said OK.  

At the World Bank, I worked as an attorney for a couple of years.  The revolutionary upsurge in Ethiopia in Spring 1974 was to have an impact on my life as it did on many others.   I had a certain reputation as a lawyer and human rights advocate, and it is that reputation, I believe, that led the members of the then Ethiopian Parliament to elect me, in my absence, to serve as a member of the Commission of Inquiry appointed to investigate the wrong doings of Emperor Haile Selassie’s government.   Although I hesitated for a couple of months, I was finally persuaded by General Aman Andom, the first leader of the Dergue, to help in the investigation for a few months.  I thus went back [to Ethiopia], without resigning my position at the World Bank, with the intention of helping out for some six months and returning to Washington.  Things did not work out that way.  Historic events occurred, producing their own logic and momentum.  Instead of returning to Washington, I ended up in Eritrea.

Let’s talk about your activities with the Commission of Inquiry. The so-called “Parliament of the Derg” was actually an Imperial Ethiopian Parliament from the Haile Selassie Era, right?

Yes, an imperial parliament.  I wish to really clarify this because I have read some incorrect statements about it.  That parliament was actually not the Derg’s parliament.  By that time, the parliament comprised of highly vocal and almost rebellious young people—mostly teachers.  And some of them used to be my students.  It was becoming increasingly restless.  Because of my training and because of my attitude, I was appointed in absentia.  We investigated the Wollo famine of 1973-74 for which we held the prime minister and his colleagues responsible for not responding in time.  Under the existing penal code, their crime, criminal negligence, did not carry the death sentence.  The maximum sentence we could impose was 15 years on all 40 or 50 of them.  All we could do was submit our finding.  Before the ink on our report was dry, they [the Derg] decided to massacre some 60 of the detainees including the ministers. They couldn’t touch us because the commission inquiry was broadcast daily on the radio and we had gained some popularity.  But they did kill them, including General Aman Andom [an Ethiopian of Eritrean ancestry and the first Ethiopian leader in post-Haile Selassie Ethiopia] because, they said, the commission was useless anyway.

Tell me about Aman Andom and why he was killed.

Because he was a very popular man, the emperor had kicked him upstairs—made him a senator.  He was a senator for almost 10 years.  When the young turks [the Derg soldiers] took over, they called upon him to come and lead them because most of them were non-commissioned officers and juniors.  They were asr aleka, amsa aleka and so on.

So, they used the Commission’s report as an excuse to kill people?

They were after blood.  They wanted to massacre them for reasons known to themselves.  They killed Aman because he didn’t want a military solution to Eritrea and he refused to sign on to the execution plan.  We were against it.

That’s when you left Ethiopia for Eritrea?

I had to escape…Actually, I escaped in the nick of time.  They were looking for me because I was a friend of Aman [Andom].  They were going to arrest anyone who had dealings with Aman.  I got inside information and I escaped.   A friend of mine, Desta Woldekidan, (in my novel, Riding the Whirlwind, I refer to him as Desta KidanWolde) took me by car to Mekele on a Saturday afternoon.  He was connected to ELF fighters who were working in the city.  He introduced me to one of them.  It is a long story, but I reached Eritrea, after a hazardous journey, in late 1974 and first tried to join in the mass efforts mobilized to end the war between the ELF and the EPLF.

That was the civil war between ELF and EPLF where people from Asmara environs went to mediate?

The Weki Zagher meeting.  October 1974.  I arrived some six weeks afterwards.  Jebha [ELF] attacked the EPLF at night after the Weki Zagher meeting.  After we arrived, Mesfin Hagos [formerly Eritrea’s Minister of Defense and, recently, a governor] and others explained to me that the ELF only wanted a military solution as articulated in their first national congress—with Idris Adem as titular head and Herui [T. Bairou] as the man in charge.  It was fresh in the memories of the people in the Karneshim area.  Many of them knew the victims; women would weep.  That was one of the saddest episodes in the history of the sad civil war. 

When we finally convinced them to meet, in Ametsi—Herui, Isaias, Totil and others were there---that is when they agreed to stop the war and talk.  That was the end of the hostilities.   You can’t imagine the jubilation of the public at the time. 

We?

It wasn’t a formal committee.  It was a team of volunteer Eritreans. Two of us—myself and Radazghi Gebremedhin (Barba)-- were seen as prominent but we were following up on the work of the village elders.  We picked up the broken pieces, and many [civilians] volunteered as emissaries. 

This actually answers my questions.  Because one of my questions was: why did you choose EPLF over ELF?  Unlike most Eritreans who joined a front either because they were conscripted or because they had a friend or relative in one of the fronts, or maybe one of the fronts was closest to their hometown, you actually had the luxury of choice.  Was your choice based on the incidents of Weki Zagher? 

That was one.  But I had also observed, and I was a seasoned observer by then, I could tell differences in organization, in discipline, and quite frankly I saw the EPLF as better organized, better disciplined.  I saw more openness, more tradition-bound discussion among members of the ELF.  But judging from the situation as to which organization would take us to liberation, I made two and two and got four and said the EPLF is the better organization. This [EPLF] is the one that would lead the Eritrean people successfully to liberation. 

Herui happened to be a good friend of mine.  I knew him in England.  I didn’t know Isaias from Adam.  Logically, from human relations standpoint, I would have gone to the ELF.  Besides it was the ELF who brought me from Mekele to Eritrea.  

Were you at all influenced by the reputation of the ELF as being “Ama Haradit” [ELF The Butcher]?

Not at all.  I had observed in the highlands in Hazega, Adi Gebrai; I went back and forth several times.  I saw many highly educated Asmarinos show camaraderie with the lowlanders.  The ELF was like the EPLF: highland/lowland, Muslim/Christian. There was no difference in that respect.   As for “Ama Haradit”, at that time, the height of the civil war, the story they [the ELF] were telling me about the EPLF was horrendous: tSere gedli [anti revolutionary], medada…

In my interview with Herui T. Bairou, I asked about “Sryet Addis” [ELF’s alleged killing of new recruits from Addis Ababa.]  Many former ELF fighters wrote me challenging that and blaming me for not asking Herui with specifics and names of victims.  Do you know anything or anyone from “Sryet Addis”?

Not at all.  It is a mystery to me. My answer to the “Who did what to whom” is always, “Let history and historians sort it out.”  

FROM 1975 – 1991

From 1975 – 1977, I was helping with the ERA and its work was relief, providing supplies, and food for children.   After two years, given my background and training and given that my family was in Washington, DC, they agreed to let me go.  They said, “You can help us more there.”  From 1977 – 1985, I was doing odd jobs: lecturing, traveling, writing and occasionally being tasked to approach people in the State Department.  It became a diplomatic work-at-large without specific appointment.

In 1985, the leadership appointed me as a representative to the UN; between 1985-1991, without observer status.  I used to call it “Mission Impossible.”  Many of the big governments wouldn’t touch us with a 10 foot pole.  Some of the Scandinavian countries took pity on us.  As the war progressed and the chances of Eritrean victory increased, people would seek us out and ask questions.  We would show them videotapes of the bombing of Massawa.  That shocked most of them—and we made copies to send to their ministries.

After independence, wouldn’t you have been the logical choice to be Eritrea’s ambassador to
the United States or American Ambassador to Eritrea?

Many people say that.  I wouldn’t have wanted to.  My energies from 1991 onwards were focused on being with my family and on rebuilding my income.  My income had stagnated; I sometimes had to borrow money to support my family. I didn’t expect it [an appointment] and I wouldn’t have accepted it.  I have no ambition whatsoever in that regards: that’s what I want to make clear to your readers.  As a matter of fact, at heart, I am a professional with poetic bent; I hate politics.  You just join the fray when the fate of your country is at risk.  Seeking public office, etc, no thank you.  I am very happy in my professional life.  Why would I leave a comfortable life for the misery of being somebody’s underling?  Or even being a leader?  But how do you convince people of that?  I guess they are entitled to their opinion.

THE DRAFTING OF THE CONSTITUTION

The following questions will deal with trying to address a common criticism: that the Eritrean constitution was not the work of an independent body.  Allegedly, the EPLF, somewhere in Nakfa, had written the constitution and all the commission did, or was asked to do, was put on some makeup on it to legitimize it.   So, let’s begin at the beginning. 

In law, there is a principle that you lawyers have: don’t ask a question unless you already know the answer.  Why do you think Isaias contacted you and not some other lawyers to head up the constitution drafting process? 

Isaias did not know what kind of constitution I would come up.  I have been told that President Isaias actually asked someone else—another lawyer—and that lawyer declined.  And the reason he declined was by saying, “here you have someone who was with you and someone who happens to be a constitutional lawyer: he teaches it, he breathes it.  Why wouldn’t you ask him?”  It was after the man declined, that I was approached. 

You were not approached because the president must have felt you have too much of an independent streak?

Absolutely.  I never had really a cushy comfy relationship with Isias.  There was mutual respect.  I respected him for his brilliant mind, an organizing mind. And, I suppose, he respected my credentials.  I was too much of a maverick to do what he wanted me to do.  There is another point: I wrote, “The Future Political System of Eritrea” (1989-90) and, when he read it,  I am told he hit the roof.   The EPLF was already in Afabet: they were waiting.  I am sure they were entertaining ideas about the constitution of an independent Eritrea. In the pamphlet, I spell out the central principles of a constitution.  In it, I sketched the central ideas that should go into the making of a constitutional democracy, including the rule of law, separation of powers, judicial independence, and pluralist politics.  Above all, I speculated, in fact I expected, that multi-parties should be allowed after independence, in accordance with the 2^nd [EPLF] Congress, which I attended.  I wasn’t really writing anything new, antagonist or original.  I was simply extrapolating. This is obviously speculation, but I assume that the reason why Isaias showed displeasure at my booklet was that, with the reputation I had, I could influence too many people.

Were the merits and the adoption of multi-party democracy in Eritrea discussed in the 2^nd Congress or was it just placed there as a decorative piece?

It was debated, discussed.  The cadres, the middle cadres of the EPLF, had by then abandoned the Marxist dogma.  They had read the disasters of one-party states of Africa.  Isaias, being a politician, wouldn’t want to go against the grain.  In my view, he probably thought he would cross that bridge when he gets to it. 

When we started drafting the constitution, within a year of the constitution making process, the PFDJ came up with a document widely circulated talking about Guided Democracy.  We got a copy.  The question that faced us was whether the PFDJ was prepared for multi-parties.  I remember telling some of my colleagues that unless they [the PFDJ] categorically declared that they are in favor of multi-parties, I would have to rethink my position in terms of continuing to serve as Chair of the Commission.  We met with the executive body of the PFDJ: Isaias was present.  I asked the question point blank.  I said, “are you willing to allow multi-party system in Eritrea; yes or no.”  They looked at each other.  Isaias said something to the effect “this is not subject to debate. It was resolved in the 2^nd Congress.  I came to this meeting to discuss problems of logistics and if there are things in which we can be of help, etc.  I got work to do.” And left.  Later on, the others answered my question in the affirmative.  The issue of multi-parties was discussed in all public discussions

We are getting a little ahead of ourselves.  Let’s go to when was the first time the “offer” to draft the Eritrean constitution brought to your attention?  By whom?  Was this discussed in  pre-liberation of Eritrea?

Early in the summer of 1993, a telex message came from Asmara sent by President Isaias asking if I would be able to head a constitution drafting entity.  I was willing and excited to do it, but I was not sure whether I would be able to accept at the time.  I had long been involved in the Eritrean struggle, as I explained already.  As EPLF representative at the United Nations, I had to travel a lot, which had made my family life difficult and negatively affected my income earning capacity.  In July 1993 during my visit to Asmara, Isaias formally asked me whether I was ready to take up the post of Chairman of the Eritrean Constitutional Commission.  I accepted with one condition.  I asked him to write a letter to the President of Howard University where I had been teaching for the previous sixteen years.   He agreed and did write the letter, which I hand-carried and delivered, but Howard University was not willing to accommodate me in terms of giving me suitable leave of absence.  It was for that reason that I left Howard for North Carolina—a lily white university—which was not only willing to give me the needed leave but created an endowed Chair for me and hired me at much higher salary!  But that’s another story.

I never discussed the idea of writing a constitution before liberation. 

Who tasked you and the group that eventually became the Constitutional Commission of Eritrea (CCE)?

The formal appointment of the Commission was made by the Transitional National Assembly.

And who was in the Transitional National Assembly?

They are the Central Committee members of EPLF.  This was before their third congress so it was still the EPLF.  

The eyebrow-raisers are going to say that the Central Committee and the Constitutional
Commission was all EPLF.  100%.

That is in the nature of things and should not surprise us.  The announcement of the appointment of the Commission came out early in 1994, with the list of the majority of their names.  As to who actually selected the members to be presented to the National Assembly, you know or should know that there is only one source for all appointments.  Members of the inner circle of the governing Front play a crucial role in suggesting names for appointment, and they in turn may consult others among their close friends and associates for suggestions.    But ultimately, the President has the final say, and the National Assembly has tended to accept whatever the President proposes.

But in one particular respect at least, the President accepted much of what I asked.  Let me backtrack a bit and say that he had asked me to draft the law that established the Commission, which became Proclamation N. 55.  I drafted the law in the Fall of 1993 and it came out early in 1994.  Meanwhile, I met Isaias during one of his visits to the United States.  I gave him a list of names of people, mostly lawyers, who I thought should be members of the Executive Committee of the Commission.  With the exception of two names, he accepted my request.

How many members did the commission have?  Who are they?  Their background?

The commission members were supposedly 50; but the list had about 47. Ten members made up the Executive Committee and the rest formed the General Council. All were nominated by the National Assembly including the Chairman, Vice Chairman and the Secretary. 

Let me start with the members of the Executive Committee, which was the central organ of the Commission and conducted meetings on a weekly basis.  I was the Chairman, Azien Yassin [formerly with the ELF Executive Committee] was the Vice Chairman and Zemehret Yohannes [PFDJ Cultural Affairs] was the Secretary of the Commission. The other seven were: Dr. Amare Tekle, [who oversaw the referendum process] , Mr. Idris Gelawdios, [one of the founders of the ELF, then living Cairo, lawyer by training, deceased] Dr. Seyoum Haregot, (then with the UNDP) Ms. Amna Naib, (Eritrean Ministry of Justice) Ms. Zahra Jaber, (now mayor of Keren) Mr. Paulos Tesfagiorgis (a lecturer of law at Asmara University) and Mr. Musa Naib, who studied law in Addis Ababa in 1970s [formerly Mayor of Massawa, and is now Advocate General]

The names of the members of the Council were made public at the time.  It included people who had been with PLF, like Mr. Taha Mohamed Nu [Foreign Office]; it included Jafer Abubaker (Ph.D. in Public Administration) who died about 3 years ago. 

What was the criteria used to select them?  What was the background of the group during the liberation struggle and post independence?

I have no direct knowledge of the process of the selection of the members of the Commission, except in the case of some of the members of the Executive Committee, as I already explained.  But informal talks that I had with some members of the National Assembly indicated to me that the primary consideration in selecting the members of the Commission was their participation in Eritrea’s liberation struggle.  Indeed, the vast majority of the members were liberation fighters.  The few cases of members who were not liberation fighters reflected the concern of the appointing authorities for representation in terms of ethnic, religious and gender balance.   There is, of course, an important condition – they must not have worked with the enemy working against Eritrea during the struggle.

If you examine the list of the members of the Commission, you will find that the factors of balance were satisfied, more or less.  All the nine ethnic groups of Eritrea were represented.  The two major religions, Christianity and Islam, were represented on equal basis.  And there were 23 women members, which represented 47% of the total membership.

In terms of age, the average age of the members of the Commission was about fifty.  The youngest member was a thirty-two year old former fighter while the oldest member was an eighty-year-old former judge of the high court who unfortunately died during the second year of the constitution-making process.

Incidentally, two members of the Executive Committee—Azien Yassin and Idris Gelawdios—also died before the end of the process, both of kidney failure.  Their loss was keenly felt by the Commission and by me specially, not least because they died young and had so much contribution to make to their nation.  Azien’s kidney had failed before the start of the work of the Commission.  I wish to take this opportunity to pay homage to brothers Azien and Idris.  Azien’s presence during the inauguration of the work of the Commission in March 1994 and thereafter, despite his serious illness, was a source of great joy and inspiration to the rest of us.  He had to leave for Saudi Arabia because there was no kidney dialysis facility in Asmara, but we kept in touch through the telephone and fax messages.  As I valued his contribution, I consulted with him on a number of critical issues.

Azien was a dedicated and universally respected man among his fellow freedom fighters, and a man of great charm and intellect.  I liked him as I also like Idris who was equally dedicated and respected among his former fellow fighters.  I chose Idris to chair the Economic Committee of the Commission which he discharged with diligence, with Dr. Yemane Misghinna acting as his assistant and secretary of the sub-committee.

As for the question as to the members’ role in the post-independence situation, the former fighters were all involved in the work of the government in various capacities.  The others were engaged in their respective trades or professions.  For instance, there was a member representing the private/commercial sector in his capacity as the President of the Chamber of Commerce.  In terms of social and professional background, many members had background in teaching or teacher education.  Not less than ten had legal education or were involved in legal practice in some form at some time in their careers.  The majority of the ten members of the Executive Committee had legal education.

You have made a good case that the commission was well represented in terms of gender, region, ethnicity, profession, age etc.  How about ideologically: left, center left?  Was this not a big deal?

Yes.  It was a big deal.  The whole question of left, right, center politics is really peripheral to the Eritrean life to the extent that the Marxist point of view espoused by which the EPLF’s actions and programs were colored was important during the struggle.  It was a point of contention between ELF and EPLF as to who is redder.  Even then, it was superficial.  But someone had to find a reason to distinguish himself: in the 1960s, 1970s this was the criteria of acceptance in the world. It was logical at the time to want to prove you were more left than the other.   With the collapse of the Soviet Union, it became a moot issue.  What was important is whether the government considered you loyal enough not to upset the scheme. 

The issue was not who appointed us but whether we were (a) autonomous or (b) whether we did our job satisfactorily. Did we involve the public?  What was the quality of the documents we distributed?  And how did we utilize it?  How about the quality of the constitution itself?

To those who say, “they are all EPLF people” my rhetoric answer is “every government—even military governments—have a right and have appointed their own committees to develop constitutions that work.”  It doesn’t mean members of the entity shouldn’t consider different interests.  If we are to examine lack of representation: why didn’t the EPLF allow the ELF to come in as an organization?  That was the sin I committed in 1990 when I wrote the booklet: I suggested the ELF should be allowed to compete.  If that had happened the ELF would have insisted on representation.  Given the fact that the EPLF was a one-party government, I wouldn’t expect such kind of representation.  Is the entity representative enough in terms of religion, gender?  Are the members considered wise and have integrity to raise questions.  The answer is yes.  People like Azien Yassin would have challenged us: it is a pity that he died so early.    

Part II

As a constitutional scholar, what do you think of Eritrea’s first constitution? Was it “Anze Matienzo’s constitution” or was it the result of consultations with all the constituencies concerned? 

To start with, we need to be clear about one thing.  The constitution you are referring to—the 1952 Constitution—was not the constitution of an independent country; it was one imposed on Eritrea by the United Nations, based on the famous (infamous to Eritreans) UN General Assembly Resolution (390A) which joined Eritrea with Ethiopia in a lopsided federal arrangement.  Under that arrangement, Eritrea had no sovereignty, but was a federating unit with Ethiopia “under the sovereignty of the Ethiopian Crown,” to use the phrase of the Resolution.  I call it lopsided because Eritrea as the federating unit was a junior partner, subordinate to Ethiopia as the dominant partner. 

There is a sense in which it can be called Anze Matienzo’s constitution in that he had control over the process of its making.  If there was any consultation, the most significant was the one he had with Ethiopian Prime Minister Aklilu Habtewold and Emperor Haile Selassie whose views he eagerly sought and accommodated.  Following the adoption of UN Resolution 390A, the Eritrean political forces that had been demanding for independence were disheartened.  Although some attempts were made by some of them to minimize imperial encroachment on the internal affairs and to maximize Eritrea’s autonomy under the imposed constitution, in the end the cards were stacked against them.

Nonetheless, despite its defects, the 1952 Constitution had several positive aspects, including a Bill of Rights, and Article 16 which provided that the Constitution was based on fundamental principles of democracy.  The panel of experts who met in Geneva to draft it faced the challenge of writing a democratic Constitution for a unit that was to be joined with a feudal system, as Sir Ivor Jennings (one of the draftsmen) has recorded in his book “Approach to Independence.”  Indeed, Emperor Haile Selassie was forced to promulgate the Revised Constitution of Ethiopia in 1955, as a consequence of that challenge. (See my article, “Constitutional Development in Ethiopia”, Journal of African Studies, 1966.)        

Between the conclusion of the first draft of the constitution presented by the Constitutional Commission of Eritrea (CCE) and the ratification of the document three years later by the National Assembly, there were many public seminars and sessions held.  What was changed in the constitution as a result of these seminars and the feedback of the people?

First a word on the context—an explanation of what we call process-driven constitution making.  Two basic objectives are implied in process-driven constitution making: the first, and most important objective is constructive engagement of the largest majority of the population.  This is necessary in order to ensure that the end product of the process—the constitution—is seen as legitimate, and owned by the people.  It is critical that the people have a sense of ownership of the basic document by which they are governed, and this can only be achieved through their direct participation in the making of the constitution.  The second objective is to tap on the native genius and experience of the population. 

The Eritrean constitution making experience, starting from the content of the law establishing the Commission to the strategy and organization of the work of the Commission, reflected this objective. 

Was the purpose achieved?  In terms of the widest possible participation of the public, and their sense of ownership of the product of the process, the answer is definitely yes.  And how was it achieved?  The Commission distributed education material, including several international legal instruments such as the Universal Declaration of Human Rights, and wrote appropriate booklets suitable for Eritrea’s condition, in several Eritrean languages and broadcast them on the radio.  This was designed to enable members of the public to make optimum contribution in raising their awareness and thus raise questions and giving opinions.  Such questions and opinions were recorded in public meetings, collated and analyzed by the Commission and are part of the public record.  The first phase of the process included an intense civic education campaign that used these materials. 

When finally we sat down to draft the constitution and to discuss the draft, the views of the public were taken into account.  I can cite some examples at the appropriate time when we discuss some of the articles, but let me give one example to illustrate the dynamics of the process of give and take between the Commission and the Eritrean public.  This concerns the words of the oath of office of the President, and of the members of the National Assembly and judges.  In our original draft, the oath was to be sworn in the name of our martyrs, with no mention of Allah or God.  When the draft was submitted for public debate in the Summer and Autumn of 1996, there was widespread complaint raising objection to the absence of the Creator.  You see, we had been carried away with our concern to establish a secular State and our desire to make our martyrs the center of such a secular ethos, forgetting that ours is a deeply religious society.  In the end, we took this public objection into account and changed the oath.    

The Preamble

The last paragraph of the preamble to the Constitution says, “today…, on this historic date…solemnly ratify officially…this Constitution.”  Why wasn’t an implementation date included?

Why indeed!  We live and learn, as they say.  When we consider this question in retrospect, with the hindsight of nearly four years after the ratification of the constitution, we must admit that it was a mistake not to fix an effective date, or at least specify a maximum period after which the Constitution would come into full force and effect.  We have been justly criticized for this omission, but it was not an oversight or lack of foresight on our part.  As I have had occasion to explain in a previous posting in the Internet, we left it open deliberately in order to give the government a chance to clear the deck—to change or abolish laws that were in violation of the Constitution.  The notorious example of such law is the so-called ant-corruption law.  It was an act or omission based on trust—a belief that the government would clear the deck and implement the Constitution.  I had expected this to be done before the end of 1997, or at the latest, by the Spring of 1998, by which time I expected serious preparations to be under way for elections to the National Assembly and the office of the President in accordance with the Constitution. 

I will not repeat here why I think the government postponed the implementation of the constitution; I have covered it in a previous posting causing a raging controversy.  Suffice it to say now that the government seems to be responding to public pressure to implement the constitution.  We’ll see.  We shall see what we shall see, as Mr. Pickwick said, or was it Mr. Mcauber?

Article 1

(1)   What does it mean to base a State on the principles of “social justice?’ What is “social justice?” Does it have the same meaning as defined by PFDJ in its Charter?
(2)   Why weren’t the territories of Eritrea described in further detail?
(3)   Why did CCE settle on having a “unitary government”?   

(1)  First let me explain the meaning of the concept of social justice and its place in the constitutional scheme of things.  And this will actually answer the first part of the question that asks what a State based on social justice means.  Second, we need to be aware of the fact that social justice is a universal principle and its articulation in the PFDJ Charter does not represent the discovery of a new principle by the men who wrote the Charter.  Social justice is part of the common heritage of humankind, as are democracy and the rule of law.                                                                                                           Article 1(1) of the constitution says that Eritrea is founded on “the principles of democracy, social justice and the rule of law.” This is a general statement of principles and, as such, is necessarily concise.  Its detailed articulation (definition) and application is left to another article of the Constitution and to future legislation to be enacted by the National Assembly.  Article 21 of the Constitution  (Economic, Social and Cultural Rights and Responsibilities) provides that “every citizen shall have equal access to publicly funded social services,” and that the State “shall endeavor, within the limit of its resources, to make available to all citizens health, education, cultural and other social services.” 

One additional point.  The philosophical or ideological underpinning of social justice is the general belief that justice is indivisible: that the basic social services like education, health, affordable housing should not be reserved to those who have the means.  For if access to such vital services (as well as access to food resources) is allowed to some and not to others, there would be no social peace.  This belief is as old as there have been good people on this good earth, but its application as a universal principle is of recent origin and its general acceptance is the result of slow social progress.  Under such general belief, the State is required to secure, within its available means, the social welfare of all citizens particularly those who are disadvantaged.  The old belief: “everyone for himself and the devil take the hindmost” is no longer acceptable.

(2).  As to the question why the territories of Eritrea were not described in more detail, my first reaction is to answer it with another question: “why should they be described in detail?” The constitution says: “The territory of Eritrea consists of all its territories, including the islands, territorial waters and airspace delineated by recognized boundaries.”   Getting into more details than this would mean counting the number of islands, naming zobas (regions) and districts etc which is not only not necessary in a constitution, but would raise unnecessary problems.  The problem of attempting to be exhaustive or all-inclusive in legal drafting is that you may end up leaving something out.  So, you resort to the generic concept which encompasses everything under the category you are dealing with.  I generally use the fancy name and call this Legal Drafting 101!

Let me also use this question to make a point about our decision to settle for a concise constitution, rather than a long one.  When drafting a Constitution, constitution makers are faced with two principal questions: a) what should be included in a constitution, and b) how long should it be?  These questions raise another question: How does one determine what should, or should not, be included in a constitution?  The Constitutional Commission of Eritrea answered the last question by drawing up a list of questions immediately after its inaugural meeting in March 1994, and submitting them for public debate.  Following the civic education phase (late 1994-early 1995), the Commission drew up a list of Proposals embracing the principal constitutional issues, and submitted them for public discussion, in mid 1995.  One of the points raised in the Proposals concerned the nature and scope of the constitution.  The Commission decided on a concise constitution, rather than on a long one, and explained why the constitution had to be concise, and why it had to be written in a general way rather than in detail, leaving its detailed implementation to legislation. 

This conclusion and the adoption of a concise constitution were based on a thorough debate on the merits and demerits of different models—concise versus long.  The controlling criteria were: the current needs of the country, its historical condition, its culture and social structure.  Concerning this issue, the consensus among constitutional scholars is that a good constitution is one that is concise, that has a “judicious mixture of definiteness in principle with elasticity in detail”, as the noted British scholar and jurist, Lord Brice, put it in extolling the American constitution—its brevity, and the simplicity of its language. 

3.  As to why we settled on having a unitary government, the Commission did research and debate the question whether Eritrea needed a federal or unitary system.  The answer to this question depends on a number of factors, principal among them being the size of the country, its resource endowments and their distribution, the history of it national unity, and its ethnic make-up.  Countries like Nigeria or Ethiopia with their large size, complex ethnic make-up and histories of conflict have chosen a federal structure.  The Commission considered that Eritrea, with its smaller size, history of national struggle and relatively united ethnic groups, does not need a federal structure.  Instead, it should have a unitary system with its component regions enjoying appropriate degrees of autonomy to be determined by legislation.  In determining the degree of autonomy, such legislation would take into account the resource endowments of the regions and their general development in administrative capacity and financial resources.  The present division of the administrative regions of Eritrea seems to have been motivated by similar considerations, but is a subject that may need to be reviewed from time to time. 

Article 2

(sub. 2) If the constitution was ratified on May 24 1997, does it mean that many of the laws passed that are not based on the constitution are “null and void?” (sub. 5) Is the lack of transparency in the “conduct of the affairs of the government and all organizations and institutions” unconstitutional? 

I would answer question (2) in a larger context, in addition to the fate of existing laws that are not based on the constitution.  First of all, some of these laws are in violation of the constitution and would be null and void once the constitution comes into effect.  Second, most laws, not being in violation of the constitution, would continue to apply unless and until they are revised or abolished by an Act of Parliament (the National Assembly).

So, when does a constitution come into effect?  The question of whether a constitution comes into effect upon its ratification has been raised by Eriteans who were frustrated by the government’s inordinate delay in implementing it.  Some Eritrean lawyers have argued that it should be considered as having come into effect the minute it was ratified, even in the absence of a provision specifying an effective date.  It is a compelling view on the face of it, one that some of us have been tempted to want to support.  The opposite view would raise the obvious question: then why have we been complaining about the government’s delay in implementing the constitution?  I would divide the subject into two from the perspective of the application of the constitution.  The first concerns the establishment of institutions in accordance with the requirements of the constitution, notably the National Assembly which has to be elected.  This, in our case, has to await the promulgation of an electoral law and related legislation that would provide the necessary legal framework for the formation of a constitutionally-based government.  This long-overdue legislation will hopefully be in place, and whether we agree or disagree with the outcome of the election that is supposed to take place at the end of the year, it is a step in the right direction.

The second area concerns the Bill of Rights provision of the Constitution—the whole of Chapter three.  It is my considered opinion and that of many others that this part of the constitution should be presumed to have come into effect upon the ratification of the constitution, and should be applied.  Accordingly, the so-called anti-corruption law should be regarded as unconstitutional.  This conclusion has serious implication in terms of the accountability of the authorities responsible for ignoring the Bill of Rights provisions of the constitution by continuing to apply laws that are in violation of those provisions. 

Who will make a determination on such issues of accountability and the question of whether the Bill of Rights provision of the constitution is presumed to apply upon the ratification of the constitution?  Who else?  The Supreme Court, of course.   

Does lack of transparency constitute violation of the constitution, in view of the requirements of Article 2(5)?

In order to answer this question fairly, we need to reproduce the whole of the sub-article 5.  It provides:

“Pursuant to the provisions of this constitution and other laws, the conduct of the affairs of government and all organizations and institutions shall be accountable and transparent.”

This is a difficult question to answer in hypothetical terms; we have to cite concrete cases of lack of transparency and also define the type of conduct in relation to which a person may be accused of acting in violation of the constitution.  There are degrees of transparency and of accountability depending on the nature of the “affairs of government and all organizations and institutions.”  Note also the wording of sub-article 5: it says “pursuant to this constitution and other laws.”  In other words, any complainant accusing any official of lack of transparency will have to relate the accusation to the law, citing specific articles of the constitution or other law, which requires such transparency.  In the case of a government official, for instance, if a public hearing is contemplated by a piece of legislation from which such official derives his authority and interested parties have a right to an open hearing but are not give such open hearing, the official would be answerable for his failure.  The remedy for the aggrieved party may be administrative, judicial, or political.  Administrative redress may be requested pursuant to article 24 of the constitution.  The complainant may also seek judicial redress; he may bring an action in an ordinary court of law.  Alternatively, the recourse may be political; the aggrieved party may complain to his Member of Parliament elected from his constituency and seek redress by having the responsible minister to answer in a parliamentary hearing.  I am assuming we will have an elected National Assembly.  I am also assuming that we shall have progressed from the domain of personal rule to the reign of the Rule of Law!

Part III  Interview       

[Article 3]

How does one define “Eritrean father or mother”?

According to Article 3(1) of the constitution, “any person born of an Eritrean father or mother is an Eritrean citizen.”  Note the word “or.”  In terms of this constitutional provision, it is not only a child who is the issue of a union between two Eritrean citizens that can be a citizen.  The point of interest in this respect, and one that was the subject of questions and comments during the constitution making process, is that the parents do not have to be both citizens in order for their child to claim Eritrean citizenship; a child can claim citizenship on his mother as well as on his father’s side.

Many disputed the position of the Commission that citizenship can be claimed on the mother’s side.  This position, which is contrary to the traditional thinking of Eritrean society, is one of the revolutionary principles espoused by the EPLF during the liberation struggle.  It is based on the equality principle between men and women—one of the articles of faith of the revolution.  Some asked point blank: “What if the father is an Ethiopian or a Yemeni, and the son eventually runs for the office of the president of Eritrea?  Wouldn’t this pose a security risk?” The answer was that there will be no compromise on the principle of equality between men and women, and that the electorate should be trusted to determine whether any candidate would, or would not, be a security risk.  We have to cross that bridge when we reach it. 

I guess I should have been clearer with my question.  My question is what makes the father or the mother Eritrean?  How far back does the ancestry have to go before one claims citizenship?  Was the citizenship proclamation advanced for the purposes of the Referendum implicitly accepted?

The Law on citizenship was issued with the referendum in mind. The issue of citizenship is linked with the question when Eritrea became a nation recognized under international law.  Eritrea's origin as a nation-state is Italian colonial rule, which started in January 1890.  Between then and the takeover of the British, the inhabitants were Italian colonial subjects. (NB: subjects, not citizens with full civil and political rights.) Any inhabitant of Italian Eritrea who needed to travel before 1941, had to have documents issued by Italian authorities. (It would be interesting to research under what kind of document and status Zerai Deress travelled from Asmara to Rome in the 1930s.)  The Proclamation of citizenship that the Eritrean government issued before the 1993 referendum uses a cut-off date for claiming citizenship--1937, if my memory serves me right, because to insist on going back to the beginning of Eritrea's origin as a new nation-state would have been not only unrealistic but unjust to a whole community of people who were born and brought up in Eritrea thinking of themselves and acting as Eritreans.  Anyone interested in the detailed provision of the law has to look it up.

 [Article 4]

Art.4(1)  The Ertrean flag is described in such detail, what is left to be determined by law?  Was there ever a discussion of this or was this deference shown to EPLF/PFDJ?  Did members of the CCE (the Commission) who had ELF or PLF background question this?

Art 4(3) What does “the equality of all Eritrean languages is guaranteed” mean?  Was there consideration given to having official languages?  Was this subject discussed at length?

(1) With respect to the flag, two things are left to be determined by legislation:1)   the dimension, and 2) a description of what the various colors represent symbolically.  However, the point of your question is well taken.  The issue of the flag did not occasion any debate during the constitution making process. What was retained without any discussion of any significance was what the EPLF adopted at its third Congress.  Before that Congress, the Provisional government had adopted the same flag with the same description, with additional specifications on the dimension.  [See Proclamation 37/1993 issued to define the powers and functions of the government.  Article 10 of that law specifies the dimension as 105 x 210 centimeters.]       

This is an issue on which due deference was given to the existing as flag pre-determined by the EPLF, being the Front that attained Eritrean independence.  In my recollection, none of the members of CCE who had ELF or PLF background raised any objections on the flag issue at the meetings of the Commission.

(3)  Concerning language, it has to be said that this was one of the most controversial issues throughout the process.  The debate on the language question may be grouped into four axes of division.  a) The people who insisted that Arabic and Tigrigna should be declared official languages.  b) Those who argued that Arabic, Tgrigna and Tigre should be made official languages.  c) Those who argued that Tigrigna and Tigre should be official languages, being languages of over eighty percent of the Eritrean population. d) And then there was the Commission’s position, which was what was accepted and ratified.    

The case for having a national language or languages (on the bases of a, b or c) was argued on the ground that a nation needs a language for common communication as an essential condition for nation building.  The adopted solution—simply declaring the equality of languages—was grounded on the principle of the equality of all ethnic groups and on the consequent need (and right) of every citizen to use the language of his/her choice for educational and other purposes.  The majority of Eritreans that participated in the process were persuaded by this argument, and the Commission felt justified in writing the essence of the argument into the constitution.  However, the continued use of Arabic and Tigrigna as working languages, with its origin in the armed struggle, was duly noted and it was left to the future to determine if there is a need for official language(s).    

I have a few questions on the subject of official languages:

(a) Doesn’t the status of Arabic and Tigrigna as official languages pre-date the armed struggle?  If you recall, my question on the 1952 Constitution [Part II of the interview] was trying to discern to what degree it reflected the wishes of the Eritrean people.  There is sufficient historical evidence, isn’t there, that on the issue of selecting official languages, the choice of Tigrigna/Arabic reflected the wishes of the overwhelming majority of Eritreans.  Certainly, the choice of Arabic reflected the wishes of Eritrean Muslims.    What evidence was presented to the CCE that the wish of the people had altered so radically that they no longer wished Tigirigna/Arabic as official languages?

(b) In the second congress of the ELF, when the front chose to implement Arabic/Tigrigna as official languages, the strongest proponents of defeating the proposition that Tigre be a co-official language were Tigre-speakers themselves.  Given this, is it not reasonable to assume that the Tigirigna/Tigre proposal is advocated by “anything-but-Arabic” proponents?

(c) Given that Arabic/Tigrigna was the choice of Eritrea during the Federation Era, given that Arabic/Tigrigna was the choice of a segment of Eritrea during the height of the ELF, isn’t the denial of Arabic/Tigrigna as official languages simply a manifestation of EPLF/PFDJ wishes that was adopted by the CCE?

(d) Wasn’t this issue so divisive that a key figure in the CCE, Taha Mohammed Nur, resigned in protest?

(e) What is the difference between “working” language and “official” language?

The answer to 
(a) is that yes, Arabic and Tigrigna were official languages under the 1952 constitution, and it did reflect the wishes of the Eritrean people as represented by their different political parties or groups. There was no public debate on it or on any other issue, as I said in my previous answer.  But it was generally accepted as a sound policy, given the need to create unity among the principal political actors of the time.  As to the question what evidence was produced to the CCE that the wishes of the people was altered., I repeat that there is no evidence to prove that the majority of the people wanted Arabic/and Tigrigna to be official languages. What CCE did was to begin with the first principle nurtured during the armed struggle of the equality of languages.  The convergence of CCE's approach and the official position of the EPLF on this issue may lead some to believe that this was dictated by the EPLF.  It was not.  CCE consulted with EPLF leaders, of course and the view on the principle of the equality of languages as the determining factor was strongly argued by members of the top leadership of the EPLF/PFDJ.  [Incidentally, this answers the question in (c)] The story of Tigre speakers insisting on the inclusion of their language as co-equal with Arabic and Tigrigna at the 2nd congress of the ELF, if true, is heartening: more power to them.  The question is why didn't the other (minority) groups make a similar demand?  Perhaps because they did not have a strong representation at the congress or their leaders at the time felt that Arabic and Tigrigna would serve
their interests. I think to say that our decision was based on the sentiment of "anything
but Arabic" has not basis on fact and, although there may be people in the PFDJ who entertain such a sentiment, it can't be the reflection of the majority.
(c) See above
(d) It is not true that Taha resigned in protest, as you say.  Taha was one of the few members of CCE who strongly argued in favor of Arabic being one of the official languages, but he stayed as a member right to the end.          

[Chapter II]

Article 6(1) What does “unity-in-diversity “ mean?

National unity and stability is a basic condition for a peaceful life and for optimum development.  At the same time, there must be recognition of the need of the component parts of the nation to maintain their identity.  The concept of unity-in-diversity encapsulates the goal of mediating between the need for unity while guaranteeing diversity—tolerance of diversity of views and cultures and of the existence and growth of different groups within a political community embraced within a nation.

[Article 7(2)]

What does “human rights of women” mean?  Is human rights a concept that has universal definition?

Again, it is necessary to reproduce the whole of Article 7(2)—“Any act that violates the human rights of women or limits or otherwise thwarts their role and participation is prohibited.” During the long public discourse on the constitution and the Proposal that presaged it, the question of how best to put the equality of women with men in constitutional terms was one of the most hotly debated issues.   Some wanted a detailed provision, while others thought that singling out the women issues would demean them and raise another question, which is contained in the second part of your question, i.e., the universality of human rights.  Some people raised the question: If human rights is a universal concept—and it is—then why provide for it separately for women? [See Article 14(1) of the constitution which ordains that “All persons are equal under the law.” See also Sub-Article 2 of the same Article, which prohibits discrimination on the basis of gender…etc.]

In deciding to include Article 7(2), providing for the special protection of women, the Commission considered the Eritrean condition in which women have historically taken a subordinate position and have, in innumerable instances, suffered humiliation.  The revolution fought to change all that, but the struggle continues; traditions die hard.  Hence the need for an express provision to send a clear signal to society. 

Does human rights have a universal definition?  Yes, it does, particularly since 1948, the year when the Universal Declaration of Human Rights was proclaimed.  To Eritreans, much as we honor and respect the international legal instruments on human rights, the source of our human rights as citizens of the Eritrea nation is not only the important international conventions, but rather “the vital humanity,” as an Eritrean writer has put it.  [Samuel Gebre-Adionai, paying tribute to his fallen comrades wrote; I have seen men and women pitted against steel, as if they were made of steel, and winning.  I salute my martyred comrades in my remembrance of their vital humanity which stood up to fight, unbending to the will of the enemy, until the last drop of their blood—the precious blood which was the source of their being.”]   

On Article 7.2, the definition of Human Rights for women,