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Saleh Eyay, one of the founders of Harakat Tahreer Eritrea (also known as "Mahber Showate"; aka ELM: Eritrean Liberation Movement) passed away last week in Asmara. Eulogies of this great patriot have been written by various Eritreans, including Woldeyesus Amar and kind words shared by his contemporaries including, among others, Abdella Idris, Ahmed Nasser, Herui T Bairou, and Seyoum O. Michael. A chroncile of this great Eritrean movement was written by one of its founders, Mohammed Said Nawood, several years ago. English translations of excerpts of the book (Harakat Tahreer Eritrea: Al Haqiqa weltarikh) were published by Awate in 2002. One of the remarkabale sections of the book deals with the court proceedings in the 1963 trial of Haraka members. In light of the total absence of justice, rule of law or due process in PFDJ's Eritrea, we are sharing with you the court documents, as they appear in the book, of how Eritreans fared in the imperial court of Haile Selasse I. The intent is not to show that the imperial court was just (it was not); it is to show that the Isaias Court is significantly worse. But judge for yourself. (All errors in translation are ours.)
IMPERIAL HIGH COURT
ASMARA.- Before:- Presiding Judge: Ato MesfunBerhe
Judge: Tseggai Tefferi
Judge: Hamid Osman ORDER. WHEREAS Petition of HABEAS CORPUS of the following persons has been received at 11.30 hrs: 1. Ato Ismail Haj Mahmoud 2. “ “ Abdu Kerrar 3. “ “ Said Khalifa 4. “ “ Mohamed Hamid Ali WHEREAS under Article 51 of the amended Constitution of the Empire of Ethiopia and Article 29 (1) of the Criminal Procedure Code, an accused person must be produced before the Judiciary Authority within 48 hours, from the time of his arrest; WHEREAS it appears that the above prisoners have been kept in custody more than 48 hours; We hereby order the Supt. Police C.I.D. of Asmara to produce the above-mentioned prisoners before this court in Asmara, by 13.00 hours of today. Order issued in Asmara
This day 16/11/63 at 1230 hrs. Signed Judge, Signed Presiding Judge, Signed Judge,
Hamid Osman Mesfun Berhe TseggaiT.
16/11/63. 16/11/63. 16/11/63 Copy to the District Attorney General – Asmara
Court resumed at 13.50 hours. - For the Prosecution:- Ato Amanuel Andenchiel, D/Adv. G.P.P. “I have received the complaint and the writ of HABEAS CORPUS and I have passed the order to superintendent of C.I.D. The Superintendent of the C.I.D. informed me the prisoners have been arrested on the authority of Addis Abeba and, as the matter concerns Addis Abeba, he will not produce the prisoners here.” As the order has been passed, Lt Col Ighzau is here to explain to the Court. Questioned by the Court, Lt Col. Ighzau affirms that what was explained by the District Attorney is correct: “I plead to not be compelled to answer the question as to which authority ordered me to arrest the prisoners or if I am in possession of arrest warrants because that may prejudice my duty.” Court issues its ruling. Session is adjourned.
Signed Hamid Osman Signed Tseggai T. Signed. Mesfun Berhe.
Judge Judge Presiding Judge.
High Court High Court High Court. In the name of H.E. Hailesellase I, Emperor of Ethiopia Ruling Opinion of Judge Tseggai Tefferei: - Supt. C.I.D. had not produced the prisoners at 13.00 on 16/11/63. The reasons he produced are groundless. This is contempt of Court and Col. Ighzau is subject to conviction under Art. 443 (1). - Opinions of Judge Hamid and Judge Mesfun: There is no good reason for Supt. C.I.D. to fail to produce the accused at the time and date ordered by the Court. He ought to be convicted of contempt of Court, as expressed in the opinion of brother Judge Tseggai Tefferi. But we feel it is better to give him a chance to follow the Court’s order. - The opinion of Judge Zeggai Tefferi is overruled by the opinion of the majority. Supt. C.I.D. Lt/Col. Ighzau Berachi is hereby ordered to produce the prisoners, before this court in Asmara, today, by 12.45 hours. Judge Judge Presiding Judge.
High Court High Court High Court.
18/11/63 18/11/63 18/11/63
Session resumed at 12.15 hrs. Lt Col. Ighzau Berachi replies: “The persons who applied for HABEAS CORPUS are only 4, but the persons arrested for the same offence are many. If they are to be produced, we must produce all the people arrested for the same offence and if I produce all of them, it will prejudice my investigation. They are charged of serious offence against the security of the state and we are continuing the investigation in concert with the authorities of Addis Abeba. I beg the Court to relieve me from producing any of the prisoners. Defence: - “The reply by Lt Col. Ighzau is not supported by law. Article 51 of the amended Constitution of Ethiopia provides that any person arrested must be brought before the Court within 48 hours of his arrest. It makes no distinction of the offence. This is further buttressed by Article 29 (1) of C.P.C. It has already been 5 days since the 4 prisoners have been arrested and detained by Police C.I.D. I have no doubt the police officers know these laws. The proper procedure was for the police to bring the prisoners before the Court within the prescribed time and ask for remand to their custody till the conclusion of the trial. No doubt, the Court will co-operate with the police until the conclusion of the judicial process. But it is a fundamental right, recognized by the constitution, that the prisoner must be brought before the Court within 48 hours, and this must be respected. Court: The order to produce the 4 prisoners has been made and Supt. C.I.D. must produce them. The right recognized by the constitution and Criminal Procedure Code must be protected by the Court. Signed Hamid Osman Signed Tseggai T. Signed Mesfun Berhe.
Judge Judge Pre. Judge.
High Court High Court High Court. It is now 12.35 hrs. The Court informs Lt. Col Ighzau that it will wait until he produces the prisoners; pending that, court is adjourned.
Court resumed at 13.15 hrs. Lt Col. Ighzau Berachi is present. Lt Col. Ighzau replies: “As soon as the session was adjourned, I went to my office. As there is the funeral of Fitewrari Woldesellase, I found that my subordinates and all modes of transportation are unavailable. I ask for extension till this afternoon to produce the prisoners here.” Court accepts the justification by Lt/ Col. Ighzau and allows him to produce the prisoners here at 15.30 hours today. Signed Hamid Osman Signed Tseggai T Signed Mesfun Berhe
Judge Judge Pre. Judge.
High Court High Court High Court. P/P Ato Habtemariam
Def: Advocate Gheberlul
Police Officer Woldenchiel informs the court that neither the prisoners nor Lt Col Ighzau Berachi is present at the court.
Court Ruling: Court hereby issues an arrest warrant: Lt Col. Ighzau Berachi will be brought to court, under arrest. Police Officer Woldenchiel, who is assigned to the Court, is ordered to execute the arrest and bring Lt/Col. Ighzau Berachi before this court by 16.30 hours, today. Court order is issued at 15.45 hours Signed Hamid Osman Signed Tseggai T. Signed Mesfun Berhe.
Judge Judge Pre. Judge.
High Court High Court High Court.
Court resumes at 18.30 hours. An injunction, dated 18/11/63, is issued by the Vice President of the Supeior Court of Eritrea, ordering the lower court, Asmara High Court, to cease its deliberation and to submit the relevant documents on the case to him. The parties have been informed accordingly. Signed Hamid Osman Signed Tseggai T. Signed Mesfun Berhe.
Judge Judge Presiding Judge.
High Court High Court High Court.
SUPREME IMPERIAL COURT IN ERITREA
Court of Appeals (Criminal), Case No. 187/63
(Asmara High Court Case No. )
HIS IMPERIAL MAJESTY, HAILE SELLASIE I vs. 1. ISMAIL HAJJ AHMED
2. ABDU KERRAR
3. MOHAMMED HAMID ALI
4. SAID KHALIFA BEFORE: Mr. Justice Ghebrehiwot
Mr. Justice Johannes
Mr. Justice Latilla For the Prosecution: Ato Shiwaie Ghebrehiwet
For the Defence: Ghebreleul Ghebreiesus J U D G M E N T (JOHANNES J.) 1. Under Article 14 of Proclamation 135 of 1962, an in-camera hearing has taken place and the parties were informed that, in view of the particular peculiarity of the circumstances of this case, the bench wanted to hear, at this stage, arguments on the admissibility thereof. The contention of the learned defense counsel can be summarized thus: With the injunction of the Vice President of the Superior Court the bench hearing and the application for the writ of habeas corpus having been stopped and the documents relevant to the proceedings transmitted to him, the only legal authority immediately superior to the Superior Court of Justice is the Supreme Imperial Court. The interference of the V/President of the Superior Court of Justice was a manifestly illegal act and had nothing to do with his “administrative” powers. Because of his interference, however, the proceedings have stopped and the Judges have not been allowed to resume their hearing. This appeal is therefore admissible. The Chief Public Prosecutor’s reply, inter alia, was: the Vice President of the Superior Court of Justice has, in the discharge of his duties, certain administrative regulations to enforce and as long as he is acting within his “administrative” powers, there can be no appeal to the Imperial Supreme Court. Beside, the writ of habeas corpus has already been granted and it is up to the same Court by its inherent powers to enforce its own decision; for higher courts are, as a general rule, reluctant to interfere with the powers of lower courts. We also quoted article 51(2) of the C.P.C. and article 5 of the Amended Constitution and concluded that the appeal was inadmissible. 2. At 1.30 hours, on November 16, 1963, an application for a writ of habeas corpus under Article 51 of the Amended Constitution and Article 29 (1) of the C.P.C. was submitted before the High Court of Justice (Criminal Section), by the same learned defense councel and on behalf of Ismail Hajj Mahmoud, Abdu Kerrar, Said Khelifa and Mohammed Hamid Ali. Adjournments were made until November 18. At 15.40 hours of that day, the court resumed its hearings and after ascertaining the absence of both the prisoners and of Lt. Col. Ighzau Beraky, the officer, i/e of the C.I.D., ordered the arrest of the latter and instructed Lieutenant Woldenkiel to execute the arrest warrant by 16.30 hours of the same afternoon. At 18.30 hours, the Court again resumed its hearing and made the following ruling: “in acceptance of the order issued by the Vice President of the Superior Court of Eritrea, dated 13/11/63 the continuance of the inquiry is stayed and the relevant documents passed to him….etc.” In addition to ordering the “stay of the enquiry”, the learned Vice President had also ordered that the bench warrant be “withdrawn.” 3. These being the facts, the issues before this Court are: whether an appeal to this Court is the right venue, and certainly not a decision of “a court” against which an appeal to this court can lie under article 182 (1) of the C.P.C, read in conjunction with article 6 of Proclamation 195/62. On On that basis, therefore, the present appeal would be inadmissible. The learned defense counsel, having wisely realized the weakness of this first argument, submitted also that the court’s acceptance to abide by the order of the Vice President constitutes a “judicial decision” against which a regular appeal is appropriate. Under Article 11 of the Amended Constitution, judges are independent in the conduct of trials and in giving their judgments “in accordance with the law” and, “in the administration of justice, they submit to no other authority than that of the law.” Now, under which law did they act in accepting the order partially and in transmitting the papers to the Vice President? Unfortunately, neither the learned Vice President of the High Court nor the learned Defense Counsel could quote any authority. One thing, however, is certain. A fully constituted bench interrupted its work but, before doing so, it did issue a warrant of arrest against which no appeal has been lodged; it did not “withdraw” this warrant as ordered by the Vice President; it did not yet decide as to the subject matter of the application for a writ of habeas corpus. It would follow then, that both the application for a writ of habeas corpus and the bench warrant are still pending that the court’s decision to interrupt its work and transmit the papers to the Vice President, while it had been seized of the matter, was not a “judicial decision.” Thus, any “order, judgment or decision” inconsistent with this development “shall be null and void” The appeal is, therefore, inadmissible and is hereby rejected. (Signed) 1. Mr. Justice Graz. Ghebrehiwot Mebrahtu
(Signed) 2. Mr. Justice Latilla Gaetano
(Signed) 3. Mr. Justice Johannes Berhane Asmara, this 21 day of Tahsas, 1956 (31.12.63). |
