The Legal and Political Effects of the Government�s failure to Implement the Ratified Constitution  (Continued)

***image1***The discussion in the two preceding segments of these series (parts six and seven) was focused on issues concerning the implementation of the Constitution, the government�s failure to implement it and the implications of such failure.  In the concluding section of part seven I touched on aspects of the legal effect of the government�s failure to implement the Constitution.  Before I go on to discuss the political implications, let me put the matter in perspective by recapitulating some of the salient points surrounding these issues.   

The Constitution, which was ratified in May 1997, remained unimplemented when, a year later, war broke out between Eritrea and Ethiopia, in May 1998.  When the PFDJ government was later challenged by concerned citizens on its failure to implement the Constitution, the government gave the war as the reason, an explanation that did not satisfy the majority of thoughtful observers.  The behavior of the government and especially that of the President after that war came to an end gave the lie to the excuses of national security given as reason for ignoring the ratified Constitution.  When challenged by reformers from within the PFDJ (the group that is known as G-15), the President resorted to methods that are not only contrary to the provisions of the national Constitution but also against the charter of the party itself.  He violated the resolution of the National Assembly, which in September 2000 had decided to take steps to implement the Constitution by appointing two committees, one on electoral law and the other on political parties.  What the President did to the committee on political parties and its chairman, Mahmud Sherifo, is a matter of common knowledge and does not need reciting here, but a brief reference to it is necessary in the context of the political implications of the government�s failure.   

Political Consequences of the Government�s Behavior 

It bears repetition that the Constitution was drafted under the aegis of the government.  The government of PFDJ was not only in favor of the constitution-making process; it had indeed provided material and logistical support throughout the process.  It is therefore understandable for people to be intrigued by the subsequent behavior of the government.  Moreover, surprise was turned to anger leading to a groundswell of demands for implementation of the Constitution, in view of the government�s continued neglect of its own Constitution.  This was particularly true after the 1998-2000 war was over and a ceasefire agreement signed between the belligerents. 

Two developments must be mentioned as being of particular historical significance.  I have already alluded to one, namely the G-15 demands.  The other is the meeting of 13 Eritrean academics and professionals (now known as G-13) who met in Berlin to discuss the country�s predicament and the solutions.  The group resolved to write a letter to President Isaias.  In the letter, which was (fortunately or unfortunately) released to the Dehai website, presumably with the approval of Isaias, the concerned signatories made implementation of the Constitution the centerpiece of their demand.  The President�s response to the demand and its repercussions have been told elsewhere and need not detain us here.  Suffice it to say that the �Berlin Letter� (not Manifesto, as some wrongly characterized it) marks a turning point in the recent political history of Eritrea.  Veterans of the EPLF who had been frustrated for years at the sight of a President whom they elected betraying the ideals of their movement, were now energized and raised demands for change in the aftermath of the Berlin letter.  Opposition groups of all descriptions, notably the ELF-based political parties and groups who have been engaged in opposition activities for many years were also now aroused to redouble their efforts, voicing their respective demands. 

Immediately after the detention of the eleven veterans (members of G-15 who were inside the country), civil society organizations mushroomed overnight everywhere.  Forums were established in many cities in Europe, the United States, Canada and Australia.  As Antonio Tesfai has written recently on the related issues of reconciliation and national conference, these burgeoning civil society organizations are going to play a major role in shaping the future politics of Eritrea.  This I consider to be one of the most important developments in Eritrean politics today given the fact that Eritrean politics has been dominated by the idea of one-party hegemony.  Vigorous demands are being voiced to actualize the multi-party democracy that was promised in resolutions of two EPLF Congresses (1987 and 1994), and more importantly, stipulated in Article 19(6) of the Constitution.   

                              PFDJ�s Intransigence and Opposition Politics.

One way to describe the present Eritrean reality is �Between the Rock and the Hard Place.�  The Opposition groups comprising the former ELF and their Alliance has generated some animus among Eritreans because some of them (how many of them?) are alleged to have acted as if they were allied with the Weyane during the 1998-2000 war.  Whether this charge is true or false, the fact remains that PFDJ propaganda machine has exploited it to the fullest extent, dubbing all its opponents as Weyane stooges, among other things.   

When the new party (EPLF-DP), was created by former members of EPLF/PFDJ, the general expectation was that it would galvanize the opposition movement towards a united action.  The fact that respected veterans like Mesfin Hagos created the new party, justified such hopes and expectations.  This was based on the assumption that a large membership of EPLF/PFDJ, which is dissatisfied with the current leadership would be the backbone of the new party.  The truth is that next to nothing has been done to the end of united action, in part because of the PFDJ government�s propaganda charging  Alliance members of collaboration with the Weyane, and partly because of inertia.  Inertia is natural in the life of a new organization and EPLF-DP has been showing signs of renewed energy and dynamism as its recruitment of new members continues and as it prepares for a founding Congress.  But the other reason for the lack of united action�the legacy of animosity between EPLF and ELF camps�has yet to be resolved even though the willingness is there. Some concrete steps have been taken to remedy this.  It is also worth stressing that EPLF-DP, though an offshoot of the old EPLF, is a party that has broken with the non-democratic elements of the old EPLF as its new program

and party constitution demonstrate.  It is dedicated to democratic governance, rule of law and an open society with an accountable government.  On this issue, at least, the opposition parties and groups appear to be of one mind.  In terms of programmatic announcements and rhetoric, there seems to be not much difference between EPLF-DP and most of the ELF-based parties or groups.   

Two related factors seem to militate against an immediate and easy rapprochement, not to say unity of these parties and groups.  First, as already noted, there is a history of dissention and animosity, which awaits resolution.  I have already mentioned the second, namely the alleged role of some of the ELF based factions in the 1998-2000 war with Ethiopia.   

To start with the second factor, the response given by the parties alleged to have played a negative role in the recent war is to say that this is a matter that should be judged by the Eritrean people at the appropriate time, following the overthrow of the oppressive regime, which is their common adversary.  The common adversary is ruining our country and destroying the future of our youth.  We must unite our efforts to change this government.  Then a tribunal can be set up to examine and pass judgment on any wrongdoing by any party.  Those who give this response add that if we have to begin judging past wrongs, what about the crimes committed by EPLF leaders during the struggle?  This subject is fraught with difficulties, so much so that many Eritreans think that it should be dealt with by a national conference.  Another idea is to adopt the South African model of establishing a Truth and Reconciliation Commission to deal with it.  Some feel that a national conference may decide to leave the past to be dealt by historians.  Others believe that past crimes must be answered for and that we should go the Ethiopian way (or the EPRDF way, to be more precise) and establish a tribunal to judge the culprits.  This is obviously a serious matter that cannot be dealt with in a cavalier fashion. 

As to the history of dissention and animosity (between the ELF and EPLF), various ideas have been suggested for resolving the problem.  They may be summed up in the proposal to hold a national conference and national reconciliation.  In addition, several individuals have come up with different plans designed to create a united opposition to resolve the crisis facing our country.  I will mention three that I think will occasion a great deal of discussion.  One is Seyoum Tesfaye�s piece which appeared in the Eritrean websites late August titled �Transforming Eritrea from an Authoritarian One-Man Rule to A Stable and Secure Peaceful Revolution.�  Another is Dr. T. Taddesse�s �The Road Map To Democracy and Prosperity in Eritrea.�  The third is one to which I have already alluded, i.e., Antonio Tesfais piece written in Tigrigna titled �Hagerawi IrQi�Weis Hagerawi Wa�Ela.�(National Reconciliation or National Conference?).   

Naming these three only in no way suggests that there are no others worthy of mention; it only means that these are the ones that I have read and thought to be worthy of mention in order to advance debate on the subject.  Two intellectuals have offered support for Taddesse�s �Road Map,� Ogbazghi Yohannes and Amanuel Hidrat.  I hope and trust that others will come up with more plans for a satisfactory resolution of the crisis.  I had hoped to write comments on Seyoum�s piece when Taddesse�s came out and then Antonio�s.  I decided to reserve the right to offer comments later and let more ideas flow.  It is a healthy development.  It is a development whose time has come�which should have come earlier but which we should welcome nonetheless, and welcome with open minds.  Whether we agree or disagree with any of the plans proposed by our three compatriots, we need to respect them and enter the debate in earnest, with malice towards none and with good will to all, if I may paraphrase Lincoln.  And I urge everyone to read these three pieces.

I�ll leave it there for now, promising to return to this subject in the near future. 

In terms of the political repercussions on the President�s refusal to implement the ratified  Constitution, it is worth reviewing some of the major developments following the President�s refusal to entertain the requests of the Berlin letter. 

1.      Another letter, and one with momentous consequences, that the President refused to entertain was written by veterans of the EPLF and high-ranking members of the government and the military, now known as G-15. 

2.      The G-15 letter simply asks the President to convene a meeting of the Central Council of the ruling party and of the party�s Congress which was overdue as well as a meeting of the National Assembly. 

3.      The President�s response was a one-line dismissal of the request and this was repeated, whereupon the G-15 reformers wrote an open letter to members of the Central Council of the party.  

4.      Failing positive response from that quarter, the G-15 wrote an open letter to the general membership of the party and eventually to the Eritrean nation.   

In explaining why they wrote the open letter the reformers put it thus for posterity:

� All legal means to solve this crisis in the legislative bodies have been blocked, frustrated.  The President has refused to convene meetings of the legislative bodies, but continues to express his views and taking illegal action�We shall continue to struggle to establish the rule of law.  We shall continue to struggle to implement the sacred ideals and principles of the Front (party) and our national Constitution.  We shall continue to struggle using every legal and democratic means available.  We have no ambition other than making these sacred ideals a reality.  We take this opportunity to call on all PFDJ members and the Eritrean people in general to express their opinion through legal and democratic means and to give their support to the goals and principles they consider just.� 

These words were written in March 2001.  The letter that the group sent to the President was dated February 20, 2001.  In his response to the letter, written on March 12 and addressed to Mr. Sherifo, the President wrote:

�This morning you sent me a letter with signatures.  If it is for my information, I have seen it.  In general, I only want to say that you are making a mistake.� No mention here, no hint whatsoever, of crimes against the security of the State committed by the group; only a mistake (�You are making a mistake�).  The charge of crime against the security of the state was added later and used as a pretext for the arrest of the eleven Reformers.  [See on another page the news about the decision of the UN Human Rights Commission rejecting the government�s claim and declaring the eleven detainees to be prisoners of conscience arrested for exercising their democratic rights.]   

The arrest of the eleven officials was followed by the detention, again without charge, of some elders and of the editors and reporters of the only private newspapers in the country, as well as the closure of their newspapers.  These detentions raised the temperature of opposition politics as Eritreans in the Diaspora geared up for a fight over the long haul.  On its side, the government unleashed a torrent of abusive campaign against individuals and groups it considered significant enough to sway public opinion.  Three out of the reformers  (Mr. Mesfin Hagos, Ambassador Haile Menkerios and ambassador Adhanom Gebremariam) happened to be abroad.  Their passports were confiscated.  They pledged to continue the fight in a democratic way.  Joined by ambassador Hebret Berhe and other veterans of the EPLF struggle for independence, these veterans who had spent their youth and part of their middle age in struggle have once again responded to the call of their nation, and have once more girded their loins for a different kind of struggle�this time a struggle for democracy and the rule of law against a national autocracy that betrayed its trust. 

The newly-establishment party (the EPLF-DP) is their chosen organization to meet this challenge of struggle for democracy and the rule of law.  How this new party and the preexisting opposition political parties and/or groups harmonize their efforts for the common cause is one of the important questions being asked by Eritreans. 

Conclusion 

Amid great expectations of democratic transition into constitutional government, frustrated by unforeseen political developments, the Constitution remains unimplemented.  The election promised to be held before the end of 2001 did not take place, and no explanation was given by the government.  And the Chief Justice of the country, Mr. Taeme Beyene, was summarily dismissed for voicing criticism about undue executive interference in judicial matters.  The condition and whereabouts of the eleven officials, of the journalists and of the elders remain unknown.  The verdict of the Hague Commission on the boundaries between Eritrea and Ethiopia had raised yet another hope that it might lead to some relaxation of the tense situation in the country.  Many expected the demobilization of the scores of thousands of young men consigned to the trenches as well as notification to the parents of those who were killed in the 1998-2000 war.  Instead of demobilization the government announced the Warsai-Yikalo scheme that will tie down these young men for an unknown number of years.  One of the G-15, Adhanom Gebremariam, has called the scheme a project of slavery in a series of articles posted in the Internet that have had far-reaching influence. 

At the international level, the detention of the eleven officials and of the journalists provoked strong reaction, including strong condemnations and requests addressed to the government asking it to bring them before an open court or release them.  The European Union went a step further and threatened to withhold economic aid to the government.  All human rights organizations have expressed their condemnation of the illegal arrests accompanied with expressions of concern about the health of some of the prisoners.  Amnesty International has declared them prisoners of conscience.  On the face of it, none of these condemnations and diplomatic demarches seems to have affected the government.  But there are tensions simmering below the surface as the recent bombings of the PFDJ party�s headquarters and other assets attest. 

What is to be done in these circumstances?

(To be continued).