This interview was originally published by awate.com on February 28, 2001. It was continuously updated to include follow-up questions by the interviewer and in response to readers’ questions, posed directly to the interviewee, until May 17, 2001. This will be first in a series of research documents on Eritrea which will be published in this “Pulse” column.
Context: at the time this interview was conducted, a committee chaired by Mahmoud Sheriffo (G-15, disappeared since) had drafted a law on party formation and the National Assembly (since dissolved) had announced there would be national elections in December 2001.
Awate.com Exclusive: An Interview With the Principal Drafter of The Eritrean Constitution: Dr. Bereket Habte Selassie
Interviewed by Saleh Younis, February 28, 2001
A man of unique credentials and 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 (CCE) 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 DBHS@awate.com.
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 and 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 quietly 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. The crimes of which I was supposedly guilty was to 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, also known as Haraka in Arabic and the “Eritrean Liberation Movement” or “ELM” in English]…
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 our 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 [junior officers] 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 G-15] 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.”
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 Isaias. 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 [1988]: 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 2nd [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 2nd 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 2nd 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 in 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 Nur [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 federated 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
[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.
Art.4(1) The Eritrean 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 [who, like his brother Haji Musa Mohammed Nur died in jail], 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 servetheir 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, there is some discrepancy between how a State defines equity and how religion, for example a traditional practice of Islam, treats equity, particularly in civil law. How does the constitution reconcile the right to practice religion with the Rights of women?
I see no conflict between the right to practice religion and the rights of women. If you mean the possible conflict between the constitutionally guaranteed rights of women and some aspects of the Sharia under which women do not enjoy a full measure of rights such as equal division of property in the event of divorce, and custodial rights, then my answer is that women have an option to sue in the civil courts, and risk ostracism from their Muslim communities. But the equality principle applies to them and where there are clashes between the constitutional rights with those of the Sharia and tradition, it is up to the individual woman to make the choice. This will involve social action as well as or more than legal remedies.
[Article 10(2)]: What is “quick and equitable judgements” within the context of Eritrean tradition?
In a competent judicial system, the courts are required to conduct speedy trials and hand down equitable judgements. As the saying goes, delayed (or expensive) justice is no justice. There have been widespread public complaints that the courts do not render quick justice. The reasons are many, but the main reason is the shortage of appropriately trained judge and other judicial personnel. It will take many years before the constitutional requirement of quick justice is fulfilled.
[Article 8] (Sub.1) Is “social justice” a responsibility of the State? (Sub.3) Does regulation of land mean, by definition, ownership of land?
I have answered Q. 1 in Part I of the Interview
(Sub. 3) Regulation of land does not necessarily mean ownership. The regulatory power of the State—any State—is different from its ownership of any assets. Ownership of land has been a controversial issue. In Eritrea’s case its resolution is crystallized in Article 23.
[Article 9(1)]How does a State enrich culture? And why does the State have responsibility for this?
The relevant section of the constitution provides:
“The State shall be responsible for creating and promoting conditions conducive for developing a national culture capable of expressing national identity, unity and progress of the Eritrean people.” [Article 9(1)]
National culture should be distinguished from local (ethnic-based) cultures although there is a sense in which the two may be linked in that national culture can have roots in some of the dominant local cultures, or may be influenced by them in its development. The national culture, in turn, can have a powerful impact through the Media and the educational system. The role played by modern Medial and the educational system imposes a regulatory function on the State. Its command of resources also adds a responsibility to the State to help in the sustenance and development of local cultures, through the provision of financial and logistical support. Such role indirectly facilitates the development of a sense of national unity-in-diversity.
Chapter III [Article 14(2)] The clause against discrimination forbids discrimination against many protected groups and then states “or any other improper factors.” What are other factors?
This additional phrase is designed to preclude any derogation or limitation from the generality of the equality provision, which ordains that all persons are equal under the law. It is a kind of insurance against the possibility omission, omission of any factor not enumerated in the Article.
Even the United States enumerates what classes are protected by law; anything that is not included in the Civil Rights Act, is not protected. The Eritrean constitution takes a more expansive list and leaves it up to future legislators and jurists to define what is “proper” or “improper” discrimination. Is this prudent?
Yes it is. In this respect we are better than the Americans, a point worth celebrating!
[Article 15(1)]: Implicit in the provision “No person shall be deprived of life without due process of law” is the permission of capital punishment. Why?
Your assumption is correct; capital punishment is permitted under the Eritrean constitution, as it is under the American and many other constitutions. Under these constitutions, a person may be subject to the death penalty upon commission of a crime for which the death penalty is prescribed as the punishment. Under the present penal code of Eritrea, for example, a person may be punished by death for murder and treason under aggravated circumstances.
Capital punishment has been a subject of controversy in recent years. In addition to the moral issue as to whether society has the right to take life, it also involves the question of whether it can act as a deterrent to offenders.
It is noteworthy that when the Article on the right to life was debated at the concluding session of the Constitutional Commission of Eritrea, the issue of capital punishment was raised and a few members strongly expressed their opposition to it. The majority of the members of the Commission agreed with the provision of the draft constitution permitting the death penalty.
[Article 17(3), (4), (6)] (3) Doesn’t lack of official languages make the requirement that every detainee shall be informed the grounds for his arrest or detention and his rights…in a language he understands difficult for the State?(4) If a person cannot be brought before a court of law within 48 hours of his arrest, this must be done as soon as possible thereafter. What does as soon as possible mean to the Commission? (6) People are entitled to a fair and public hearing. Making it public may be waived on the grounds of morals, public order and national security. Examples please?
17(3) The absence of official languages does not present any difficulties. The State is under an obligation to provide an interpreter to the accused.
17(4) As soon as possible means bringing the detainee within the shortest time possible, taking any available means of transporting the detainee to the place where the court is located—not a minute later. The usual reasons given for delay in our type of condition of underdeveloped infrastructure is lack of transport, and the extenuating circumstance such as flooding and impassable roads and bridges. The judge has to take these reasons for delay into account.
17(6) The occasions when a court is asked to try a case in camera (as against in public view) are rare, accepted only when there are compelling reasons. To take the case of public security first, the prosecutor of a case involving evidence that may, if made public, adversely affect the security of the country, would be heard in camera. Similarly, in a case in which an open public trial may carry the risk of disorder by parties either in sympathy with, or opposed, the accused, the court may decide to hold the trial out of public view. Finally, an example of a compelling reason related to morals in which the court may exclude the Press and the public. An example of exclusion of the Press and the public is where obscenity and child pornography is involved as well as situations where the court may wish to protect children from undue exposure and sustain mental or psychological harm.
[Article 18(1): “Every person shall have the right to privacy”] What does “right to privacy mean in the Eritrean context”?
Respect for a person’s privacy is a universal human value. However, different cultures may reveal difference in emphasis regarding the enjoyment of the right to privacy. In the Eritrean, as in other African context, the emphasis on community interests has traditionally limited a strict application of the privacy principle. The community spirit historically defined by survival needs tends to dictate even the forms of social organization and the structure of the habitat. The form of their homesteads and other aspects of their infrastructure have tended to limit privacy with the submission of individuals and families to group intervention. Traditional values of mutual concern, of caring and sharing have tended to mediate between community interests and individual privacy. With the advent of “modernity,” of individualism, the scale of values has begun to tip towards more privacy.
[Article 19(2), (3), (7)]19(2) What is “other media”? Does it include the Internet? 19(4) Do people have a right to practice “any” religion? 19(7) Why is the term “organizations” used and not “parties”? Are there limits on practicing “any profession,” “any occupation or trade”?
19(2) Again, as with the case of Article 14(2) (discussed already), the resort to the exclusionary concept of “other media, other factors,…etc” is designed ensure that nothing else is excluded from coverage of the provision, in this instance freedom of expression. And yes, the Internet is definitely included.
19(4) Yes, people have the right to practice any religion. What is religion? This question may one day have to be defined either by the Legislature, or failing that, by the Supreme Court as the final arbiter of constitutional disputes.
19(7) “Organization” is a generic term that includes political parties as well as other political groups such as public forums that are formed as discussion facilitators without a political platform or ambition to election to public office. The controversy on this question is now mute since the decision by the current National Assembly to appoint a committee to draft a law on the formation and registration of political parties.
As for the question on limits to the practice of a profession, occupation or trade, this is answered by the insertion of the qualifying word “lawful.” Any profession, occupation or trade that is not lawful, as defined by legislation, would be subject to legal sanctions.
[Article 20] Is the electoral law just drafted consistent with the constitution?
I will answer this in the next interview [Part IV] after I make a thorough a review of the draft law
Part IV
I begin this portion of the interview, as I promised, by answering your question on whether the recently announced electoral law is consistent with the constitution. It is right, I think, that you should frame your question in terms of Article 20 of the constitution, which gives every Eritrean citizen the right to vote and to seek elective office. The constitution leaves to future legislation the details regarding the running for election and the rules and regulations incidental thereto. It lays down a condition that the exercise of the right to vote and to seek elective office is subject to the fulfillment of the requirements of the electoral law.
Is the draft law consistent with the constitution?
It depends on whether the law, in any way, limits or otherwise derogates from the right of a citizen seeking elective office, or the right of the voting citizen. Article 58 of the constitution provides for the establishment of an independent Electoral Commission with the responsibility (among other things) of ensuring that free and fair elections are held. The question whether the draft election law is consistent with the constitution will, therefore, turn principally on whether its provisions are such that fair and free elections can indeed be held. More specifically, the following questions need to be answered:
1. Will the Electoral Commission be independent: will it operate without the interference of the governing party, as the constitution requires?
2. Will there be a level playing field in which all the competing parties are treated equally, particularly in terms of financial resources?
3. Will the Media be accessible to all of the candidates without favor?
4. Will they have sufficient time to organize their supporters and conduct their campaign, especially the new parties, if there are any?
I have reviewed the draft law on elections, together with the draft law on party formation. Does the draft election law pass the test in terms of the criteria listed above? Let us see:
First, on the independence of Electoral Commission, on the face of it, the draft law seems to follow the requirement of the constitution. Why do I inject a cautionary note by the qualifier “on the face of it”? Recall that we are talking about a highly competitive situation in which parties representing different interests and/or ideologies will compete for seats in the National assembly. Recall also that the said National assembly elects the President of the country. According to the Constitution, the President appoints the Electoral Commission with the approval of the National Assembly. Now, in a post-constitutional implementation situation—in circumstances in which the National Assembly is composed of various political parties—the general practice is for the different parties to have their own nominees represented in the Electoral Commission. In the present instance, the National Assembly does not have such representation. The best that can be expected is for the nominating authority (the President) to have the good sense of including in the membership of the Electoral Commission respected people who are not members of PFDJ. The worst-case scenario is one in which the President appoints only members of PFDJ.
Let us assume that elections will be held, as announced, before the end of 2001 and there will be three major parties competing in the election. If PFDJ continues unreconstructed (and unrepentant) and one or more other parties compete for election to the National Assembly, the latter will be composed of PFDJ members with an overwhelming majority. Such a situation does not auger well for a democratic transition to constitutional government. There will be more loss of trust in government.
With respect to criteria numbers 2 and 3—equality of treatment in funding and access to the Media—the draft law follows standards set in most other countries. In our own case, however, the fact that the Media are owned by the government is a big minus because it can be susceptible to abuse in favor of a government candidate.
Criterion number 4 is crucial particularly to candidates of newly established parties. Government candidates would not only have the powerful backing of a well-heeled party and its enormous resources, they would most probably have better name recognition. The new candidates need much longer time, than the one contemplated in the draft law, to mount their campaigns, to get the message of their programs out and endeavor to persuade the public to elect them. They would need a minimum of three months.
In sum, there is much that is promising in the two draft laws, particularly the one on the formation of political parties. But, if the experience of the immediate past is any guide, I would not bet on a smooth ride to the democratic era that we have all been waiting for. There is, first of all, the matter of PFDJ’ performance of the recent past which leaves much room to be desired. To be totally trusting of PFDJ’s blandishments now, would be like the blind optimist undertaking a second marriage, reflecting the triumph of hope over experience.
Q. 18 [Article 22(2) and (3)]Do Sub-Articles 2 and 3 contradict each other?
I do not see any contradiction.
Q. 19 [Article 23] Does land belong to the State? To the Regions? To the people?
First, with respect to the ownership of land, Article 23(2) of the constitution provides that all land and all natural resources below and above the surface belong to the State. Second, the rights of citizens with regard to land have been determined by the Land Proclamation under which citizens have user (usufruct) rights both in urban and rural lands. According to the Proclamation, the traditional village communities have priority of rights over their agricultural land as well as land for building their houses. Third, the regions come into play as integral parts of the State in the administration, regulation and management of land issues.
Q. 20 [Article 25: Duties of Citizens]: If a citizen does not fulfill his/her duties under the constitution, is s/he not entitled to any rights? Some rights?
The relationship of constitutional rights and duties is not a zero sum game. To put it more prosaically, rights are rights, duties are duties. Rights are given to be protected and, when violated, the appropriate department of the State has a duty to redress any wrongs committed as a result of the violation of rights. And a breach of duty may carry some legal sanction, and any penalty attached to such breach must be administered in accordance with the law. In other words, a breach of duty does not lead to automatic suspension of rights without due process of law.
Although the three branches of government play their various roles in the protection of rights, it is the Judiciary that bears the major responsibility in redressing wrongs. It is worth underscoring the point that rights without duties would mean anarchy, just as duties without rights would amount to slavery. People tend to insist on their rights and many do not always comply with their duties. The list of duties contained in Article 25 of the constitution are the most basic, considered so basic as to merit a place in the constitution. They are:
1. allegiance to the country,
2. defense of the country,
3. performing legally required national service,
4. advancing national unity,
5. respect and defense of the constitution
6. respecting the rights of others, and
7. complying with the requirements of the law.
A breach of any of these duties may lead to some sanctions, both legal and moral. The nature of the sanction will depend on the type of the duty and the circumstances under which the dereliction of duty occurred. It will also depend on the specificity with which the law respecting the particular duty has been defined.
And how does one enforce these duties? Can one contemplate the establishment of Inquisition type of institutions that would police the activities of citizens? Heaven forbid! This would militate against citizens’ fundamental rights. It is bad enough, as it is—what with self-appointed vigilantes rearing their ugly heads, sniffing for blood like attack dogs. We should rather simply expect that in a just and democratic society a culture of self-enforcing habits would develop to cultivate a proper sense of duty, which goes beyond the realm of law, even though there should be laws that provide for sanctions against breach of duties. But, as already noted, breach of duties should never automatically lead to suspension of rights. Even a deserter from the war front, as bad as his action may be, must have his day in court with due process of law applied scrupulously and with his innocence presumed until the contrary is proven.
Q. 21 [Article 26]: The loopholes allowing the State to limit fundamental rights and freedoms are only those consistent with a “just and democratic society.” But isn’t that phrase controversial and open to interpretation?
The limitation on the fundamental rights and freedoms of citizens rests on the philosophical assumption that there is no absolute right that cannot be limited under any circumstances. This assumption is shared by all constitutional systems. What Article 26 does, then, is to lay down criteria for courts to apply when called upon to decide under what conditions a limitation on a fundamental right will be valid and acceptable. The courts must be satisfied that the measures taken are necessary in a just and democratic society. Both “just” and “democratic” are to be determined by discerning judges.
A comparative perspective may be helpful. For instance, the US constitution does not have an equivalent Article, but US courts have developed guiding principles similar to the ones listed under Article 26 of the Eritrean constitution. The Canadian constitution places fundamental human rights subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The South African constitutional’s formula is that the limitation must be “reasonable” and “justifiable in an open and democratic society based on freedom and equality.”
Q. 22 [Article 27]: Should we have declared a state of emergency in the war with Ethiopia?
Article 27(1) of the constitution gives the President the power to declare a state of emergency. It is one of the exclusive powers of the President, with the proviso that the declaration will not be effective unless approved by a resolution passed by a two-thirds majority of the National Assembly. Whether the President should have declared a state of emergency in the war with Ethiopia, I cannot say. I do not think it is fair to second-guess the President’s decision in this particular instance. A declaration of a state of emergency has political as well as legal implications in terms of limiting citizens’ rights. But I do think that there should have been full disclosure of the creeping crisis between the two countries that ended up in the outbreak of a full-scale war in May 1998. The president should have held consultations with the National Assembly and members of his cabinet on the evolving problem, long before the situation exploded into war. Citizens have a right to be informed of such critical events and developments so that all avenues of peaceful settlement of the disputes could be explored and openly debated. Full disclosure, open public debate, and exposure of the suffering of Eritrean victims of the creeping crisis on all fronts might have induced caution on the part of the aggressor party and led to a negotiated settlement of the crisis.
Q. 23 [28]: There are people in jail, right now, who haven’t had the benefit of a constitutional due process. The only remedy for them is the court. But can we expect judges, all of whom are PFDJ members, to be so impartial to rule against the government?
Your question is posed in relation to Article 28 of the constitution, which deals with the enforcement of fundamental rights and freedoms. The answer to the questions as to who enforces these rights and freedoms, and who defends them or ensures that their violation is sanctioned is given by the constitution itself. First, and foremost, the citizens have the duty to observe them and to act as watchdog for their observance. The Article on the duties of citizens, as we have seen, includes the duty to respect and defend the constitution as well as to respect the rights of others. The second line of defense and, institutionally speaking, the most effective, is the judiciary. The courts must follow the provisions of the constitution as the source of government legitimacy and the basis of the protection of the rights, freedoms and dignity of citizens and of just administration. The courts are not only entitled but by duty bound to rectify wrongs and to order at their discretion and award of monetary compensation in favor of a complainant, where it is found that an award is justifiable.
Does the fact that the majority (not all) of the judges are PFDJ members affect their impartiality? It may, it may not, depending on the individual judge. There may be some diehard members of the PFDJ who may not act independently without fear or favor, as they are required to do under their oath of judicial service. I would be surprised, however, if that represents the majority of the judges. My sense is that even the card-carrying members of PFDJ regard their judicial duties as separate from their duties as party members. In fact, this is one of the challenges facing law teachers and students to monitor and on which to do some serious research. Legal education and research is critical in our situation not only in terms of imparting knowledge but also in raising the level of consciousness of those engaged in the judicial service.
Part V
[Article 31]Does the constitution envision full-time legislators? How many months of the year will the Assembly be in session? How many are the members of the Assembly?
Legislators are expected to work on a full-time basis, with ample time for them to spend among their constituents. The constitution leaves to future legislation to determine the length of the sessions as well as other details on the organization of the work of the Assembly. The number of the members of the National Assembly will be determined on the basis of a census, but if I were to give a rough estimate, it would probably be somewhere between 150 and 160. In 1997, before the ratification of the constitution, the Transitional National Assembly had 150 members, consisting of 75 PFDJ members of the Central Council, and 75 members of the Regional Assemblies.
[Article 32(8) (10)] (8) Why is there a requirement for “absolute majority of all its members” in electing a President whereas a 2/3 vote is required to impeach and remove? (10) The National assembly “may approve” or “must approve” the appointment of any person?
Originally, a two-thirds majority was considered by the Commission, following the antecedent of the UN-imposed, 1952 constitution. The issue of the vote required to elect a President was debated in the larger context of the choice of the mixed system that the Commission adopted. If you look at the US system of executive presidency, the President is elected by the citizens, albeit through the archaic mechanism of the Electoral College. By contrast, the parliamentary model—what we can call the Westminster model—the Prime Minister is the leader of the party that obtains majority seats in the Parliament. Eritrea adopted a mixed system that combines parts of the two systems. The inspirational source was Eritrea’s experience both under the 1952 constitution and the “government” during the latter part of the liberation struggle. In terms of the new democratic constitutional system, the Commission anticipated the emergence of multi-parties and democratic politics that will inevitably be “messy,” if more interesting and necessary. In such eventuality, obtaining a two-thirds majority may be hard—even conceivably impossible—to obtain. This would lead to constitutional crisis. No nation, least of all, a developing nation like Eritrea, should be subjected to such crisis. Hence, the decision to avoid a two-thirds majority.
On the other hand, the removal and impeachment of a President being a very serious matter needs a two-thirds majority. To require a less stringent standard would lay the country to the risk of politically motivated resort to demands for impeachment and thus to institutional instability.
(10) The wording of this Sub-Article is clear. It says the National Assembly “shall have the power to approve an appointment pursuant to this constitution.” SHALL,” not “may”
[Article 33]What happens if the President does not sign a “draft law within 30 days”
If he does not sign within 30 days, the National Assembly would request him to fulfill his constitutional obligation and sign the Bill into law. The Assembly would do this through the office of its Chairman. If the President has good reasons for not signing the Bill into law, he must explain within a reasonably short time. If those reasons are not accepted by the Assembly, the latter would insist on the Bill being signed into law. If the President refuses or delays the signing of the Bill, the National Assembly would issue a formal resolution condemning such refusal and indicating that if its request is not accepted within a given time limit, it may start impeachment proceedings against the President pursuant to Articles 32(9) and 41(6) of the constitution. Article 32(9) gives the National Assembly the power to impeach the President, and Article 41(6) lays down the grounds on which it may impeach him/her. One of the reasons for which the President may be impeached, or impeached and charged, is for violation of the constitution. Refusal to sign a draft law is a violation of Article 33 of the constitution, which imposes a mandatory duty on the President to sign a draft law sent to him by the National assembly. It would be a foolish President indeed that would persist in such obdurate behavior.
[Article 34] Is the Chairman of the National Assembly the equivalent of the US Speaker of the House? If he, too, is voted in by an absolute majority of all its members, does the constitution envision creating two strong co-leaders of the State? But he cannot vote except in cases of a tie?
Yes, the Chairman is equivalent to the US Speaker of the House. The Chairman of the National Assembly succeeds the President in the event of a vacancy in the office of the President. [See Article 41(4)] He is, thus, next to the President, the most important State official. Be that as it may, it does not mean that there are two “strong co-leaders” of the State. It means that the leader of the National Assembly enjoys the high honor and prestige commensurate with the oversight powers of the National Assembly that he heads.
[Article 39] Why is the President the Head of State, Head of Government and Commander-in-Chief? Why is the President not elected directly by the people?
The executive of a State has dual functions, the one representing the nation as a whole, the other heading the government of the day. In principle, the role of the Head of State is to be above the fray of politics, but to live with the outcome of the political process and mediate in situations of conflict that may have far-reaching implications to the integrity of the State. In the constitutions of some countries exemplified by the US constitutions the President is both Head of State and Head of the government, and Commander-in-Chief.
In the constitutions of other countries, the two functions are performed by two different people. In such a case the Head of State—be he/she king/queen, or president—performs ceremonial, and mediation and custodial functions. For example, in the constitution of Ireland, the President is the custodian of the constitution and, as such, has the right to check legislation to see if it conforms to the constitution. In this kind of divided executive system, executive power (real power) is vested in the Prime Minister who is head of government by virtue of the majority his party enjoys in the Parliament.
The President of Eritrea is like the US President in that he combines the two functions of Head of State and Head of government. He is also like the Prime Minister in a divided executive system in that he derives his power from his election by the National Assembly. And because he combines the power of both offices he naturally becomes Commander-in-Chief.
As to the question why he is not elected by the people, it is interesting to report that, during the public debate phase of the constitution making process, Eritreans living in the United States, for the most part, preferred the US type of election. By contrast, Eritreans living in Europe, which have the parliamentary system, preferred the system adopted by the Commission in which the President is elected by the Legislature.
[Article 41(1) (3) (5)] (1) How did you arrive at the 20% minimum threshold to nominate a member to the presidency? (3) Why did you decide on term limits? Doesn’t this infringe on people’s right to choose whom they want? (5) Let’s say a member is elected to the presidency. Within one month, he resigns or dies in office. The Chairman of the National assembly becomes president. Let’s say he is elected to the presidency. This person can serve as president for 15 years short one month. Doesn’t the create opportunity for mischief? Once a legislator is elected to be president, is his seat filled by an appointment, special election or does it remain vacant?
(Sub. 1) The Commission thought it wise to have reasonable threshold for nomination of the President in order to avoid or minimize fractious politicking including frivolous attempts at the Presidency. To those ends, it arrived at the 20 % as being a reasonable minimum. The arithmetic of election politics is always subject to controversy. What is at issue here?
Assume that the members of the National Assembly are 165. 20 percent of 165 is 33. This means that a maximum of five candidates can divide up between them in numbers satisfying the minimum threshold. Let us say there are five candidates, each with no less than 33 people nominating them, the voting will have to be repeated until one of them obtains a 2/3rd majority of the 165 members, i.e., 110 votes. The idea behind this political arithmetic is to end the politics of domination and exclusion and, instead, to encourage a healthy politics of give and take in which the majority party will be forced to accommodate the views and interests of minority parties. The politics of consensus will develop out of such situation. Democracy is “messy”, but as it has been aptly said, all the others have been tried and found to be wanting.
(Sub. 3) Two concerns are juxtaposed in this question: the value of term limits on the one hand and the right of the voters to choose whom they want. In the opinion of the Commission, the former far outweighs the latter. The Commission’s decision to have term limits is based on the conviction, based on experience and a reading of history, that staying too long in power tends to result in the corruption of leaders with all the attendant problems. There are two kinds of corruption. One is financial corruption; the other is political corruption involving the abuse or misuse of power. The two are linked in that the latter leads to the former. Presidency without term limit creates the illusion of invincibility and results in arrogance, and abuse follows such illusion even as the day follows the night. We cannot repeat too often British historian Lord Acton’s dictum that power tends to corrupt and absolute power corrupts absolutely. Additionally, term limits impose an obligation on political leaders the duty to groom successors, which in turn encourages peaceful succession. And peaceful succession is crucial to the healthy development of a nation.
I would like to inject here a personal note. Quite frankly, I did not expect the PFDJ leadership to accept the idea of term limits; and I was gearing up to do battle when I and two of my colleagues of the Executive Committee of the Commission were summoned to the meeting of the National Assembly at the time it was debating the final draft of the constitution. Someone in the Assembly raised the question why we should have term limits. As I recall, it was one of the members of the inner circle of PFDJ. And to my utter surprise, the President who was chairing the meeting admonished him and gave a cogent reason why there should be term limits. From that point onwards, I relaxed and began to enjoy the rest of the meeting and left with understandable satisfaction. I was so impressed and gratified that, immediately after the event, I went home and wrote a poem of praise (Qine Mewedis) in our classical language—romantic creature that I am!
This raises the question whether the President believed in what he was saying? I thought so at the time and only began to entertain some doubts with the postponement of the implementation of the constitution. We must now leave this and other related questions to the judgment of history.
(Sub. 5) In the extremely unlikely event that a president resigns or dies in office one month after his election and the Chairman of the National Assembly succeeds him, two things must be done. First, the National Assembly Chairman automatically fills the vacancy, on an interim basis, for one month. Then the Assembly must elect a new President, which can be the Assembly Chairman or someone else, depending on how the Assembly evaluates the Chairman. If the Chairman is elected and runs for election successfully in the next two terms, it means your hypothetical fear is realized—one person will have been President for ten years and eleven months, eleven months more than the allotted term limit.
Well, if that should happen, it would be seen as an exception that proves the rule. You wonder if that might create opportunity for mischief. What kind of mischief? The kind in which Caesar’s friends—Brutus, Cassius and the others—conspired to assassinate Caesar? My answer is that for every Brutus and Cassius, there is a Mark Anthony to avenge Caesar and after avenging him cry: “Mischief thou art afoot. Take thou what course thou wilt.”
It is not possible to provide for every conceivable eventuality, in constitutional engineering, as in much else in life. There are many things that must be left to the working of the political process, and this is one of them. If mischief is attempted one would hope that the good sense of the citizens and members of the National Assembly would let them do the right thing in response.
The answer to the question what happens to the seat left vacant by the election of one of the Assembly’s member to the Presidency is simply that it remains vacant, as does the seat of the Prime Minister in a parliamentary government. Theoretically, the President, as an elected member of the National Assembly, can sit in Parliament. But because it is a hybrid system, as I said earlier, the President, as an Executive Chief and Head of State must remain aloof and above the parliamentary process. This is a unique system and needs to be considered as such.
[Article 46(2)] If the President picks his entire cabinet from the Assembly, are replacements appointed, elected or do they, too, remain vacant?
The reason why Article 46 gives the President power to appoint ministers either from among the members of the National Assembly or from outside of the Assembly was to enable him/her to tap on as many sources as possible. The pool of talent, experience and expertise required for ministerial appointment may not be available among the members of the assembly. Now, if the President be so foolish as to pick all his ministers from the Assembly, irrespective of the requisite qualifications, the Ministers’ seats would not be filled by election or appointment; the Ministers will remain members and attend its meetings when required to do so pursuant to the rules and regulations (to be) issued by the Assembly. In their case, classical parliamentary rule should apply.
[Article 49(4)]: Why did the CCE (the Commission) leave designating the tenure of the justices of the Supreme Court to the Legislators?
Concerning the judiciary, the most important principle is its independence from the direction and control of any person or authority, as ordained by Article 48(2) and (3). Judges shall be subject only to the law, to a judicial code of conduct determined by law and their conscience. The security of their tenure is a critical factor in ensuring such independence. Therefore, the legislators, in deliberating the law concerning the tenure of judges and other conditions of their service, must keep this constitutional principle in mind. If they don’t, the interpretive power of the Supreme Court should apply in striking down a law that falls short of the constitution’s requirement. This is also an area in which the citizens’ role as the first line of defense in the enforcement of constitutional rights should be brought to bear; citizens can pressure their members of Parliament to pass a law that ensures judicial independence.
Part VI
Response to Awate Readers’ Questions: Dear Readers: This the final of our interview with Dr. Bereket. It deal with final questions; some follow-up questions to previous answers as well as questions forwarded by readers.
Accronyms:
CCE: Constitutional Commission of Eritrea
EPLF: Eritrean People’s Liberation Front
PFDJ: People’s Front for Democracy and Justice
PIA: President Isias Afwerki
ELF: Eritrean Liberation Front
Jamal Almualem’s question concerns the autonomy of the Constitutional Commission of Eritrea (CCE). He asks if the claim of CCE’s autonomy is valid, then why is it that what “PIA had said before drafting the constitution found their way to the constitution?” Jamal cites, as examples, Eritrean official languages, and the formation of political parties “to the exact specification of EPLF.”
I repeat that the constitution was not written to the specification of the EPLF, although the EPLF, or the PFDJ since February 1994, was duly consulted on a number of issues, as a governing party. As I said repeatedly during the constitution making process, a governing party has every right to be consulted, but that is different from such a party or its government dictating to the constitution making entity. If the ELF had been the government, instead of the EPLF, it too would have been duly consulted. The autonomy of CCE was never compromised at any time during the three-year period of constitutional consultation. There were perhaps two or three occasions when PIA raised questions on the manner and direction of the Commission’s conduct of its business, let alone dictate to it. For he knew that if he tried, I would hand in my resignation.
The essence of the new politics of constitution making—the Constitutional Commission method—is that the Commission, once appointed, must be autonomous. The fact that the views of the Commission coincided with that of the government in no way impugns the autonomy of the Commission or the integrity of the process. If Jamal or others do not agree with this, so be it; they are entitled to their views.
With respect to the question of official languages, as I explained previously, the recommendation of the Commission coincided with the preferred option of EPLF/PFDJ, that option being simply declaring the equality of all Eritrean languages and continuing with Arabic and Tigrigna as working languages, but not as official languages. Declaring any language(s) as official derogates from the principle of equality of languages, which is a cardinal principle. This is a continuation of the EPLF’s long-held policy originating from the years of the armed struggle and, as members of that armed struggle, the majority of the Commission were evidently influenced by that policy. I do not pretend to know what the policy of the ELF was on the question of language, but I do recall that during the debate on this issue, several former ELF members who participated in the debates strongly urged that Arabic and Tigrigna be declared as official languages. I notice in the recent debate on the issue of languages some prominent Eritrean intellectuals argue in favor of such a policy. Now, if the majority of the people of Eritrea were to seek a revision of the constitution demanding that Arabic and Tigrigna be made official languages, reverting to the UN-imposed constitutional provision, then that would have to be tabled as a question for constitutional amendment in accordance with Article 59 of the constitution.
In the meantime, I would argue that the present policy of declaring the equality of languages is a wise and reasonable one. I will not repeat here what I have already covered, in defense of that policy, but I take this opportunity to answer a question that I had overlooked in response to Saleh A.A. Younis’s earlier question as to the difference between official and working languages. The answer to that question is that, in terms of practical application, there is no difference, but that the official status of a language carries with it legal implications. Such implications include the requirement that all government business must be conducted in the official language(s), that all official acts and laws must be published in the official language(s), and that speakers of the language and other interested parties can demand, as a matter of legal right, that all this be done.
Jamal also claims that the Commission’s position on the formation of political parties reflects PIA’s position. I have answered this question in a different context in previous answers to questions posed by the interviewer, Saleh Younis. The constitution provides that citizens have a right to form political organizations; a term that includes political parties, contrary to the denial of this by some commentators. That this term includes political parties has been confirmed by events since October 2000. The Transitional National Assembly of Eritrea passed a Resolution on October 2, 2000 correctly interpreting the constitution’s provision on this subject, and establishing a committee to draft a law on the formation of political parties. As everyone now knows, PIA dismissed the chairman of the said committee because the latter began to do what the National Assembly mandated it to do, namely organize public consultations before submitting the draft law to the National Assembly.
It is quite obvious that PIA feared the Committee would act autonomously (as the Constitutional Commission did) in conducting a public consultation process. Some of the prominent members of the Committee had already made it clear that there needs to be alternative parties and the committee chairman’s actions in defiance of PIA’s strictures indicated that the committee had indeed decided to challenge PIA’s dominance of Eritrean political life by insisting on open public debate that would facilitate the emergence of other parties. What will come out of this politics of dominance versus reform is not known. If the past is any guide, PIA and his PFDJ stalwarts will try to whip up support among the captive masses for their version and conduct an election to their liking. Whether PIA allows other parties to challenge PFDJ and, if he does, what impact such party will have on Eritrea’s future politics remains to be seen. But since the challenge posed by the “reformist group” comprising the most prominent and popular leaders of the EPLF, Eritrean politics as we have known it has changed. I sincerely hope that PIA has the good sense to change his obdurate ways and listen to his former comrades-in-arms, for the sake of the nation.
A reader who did not reveal his name asked me the following four questions: (a) Do I believe that the “EPDJ” (sic) started the war?(b) Do I believe that an ordinary Eritrean should hold me accountable “for not defining the date for the implementation of the constitution…” that I chaired? (c) -Is this interview censored? If not, is there any chance of broadcasting the interview in internet audio (realplay format)? (d) -What would my stance be in regard to Eritrea if the Haile Selassie regime were still in power?
I will answer the question whether I believe that the PFDJ started the war, later [in the next and final part of this interview, Part VI, B] together with the other personal questions.
The answer to the second question is definitely yes; I have said so in a previous posting (in Asmarino.com) on the subject of the implementation of the Eritrean constitution. I cannot do better than to repeat what I wrote in that posting. I said:
“…But promises have been made and easily broken in the past, including the undertaking to put the constitution into effect soon after its ratification. The Constitutional Commission of Eritrea opted not to include an article in that constitution mentioning a date for its coming into effect on the strength of such implicit understanding. In retrospect, it was a mistake for which the Commission, and I personally as its chairman, must take responsibility. It was a mistake based on trust. There is a commercial ad of an insurance company showing the picture of a little child touching the base of the horn of a rhinoceros. The caption reads: ‘Trust is not being afraid even if you’re vulnerable.’ The Commission chose not to be afraid, even though it was vulnerable to betrayal. It made a decision based on trust, and has been living the consequences.”
I will let the Awate team answer the details of the third question. As to whether this interview was censored, I certainly did not do any censoring, and I did not experience any censoring on the part of interviewer.
The fourth question is a strange one. What would my stance be in regard to Eritrea if the Haile Selassie regime were still in power today?! I refer the person who asked these questions to the first interview of these series. The assumption of his question, I take it, is that I might conceivably entertain a different attitude towards Haile Selassie’s government today. Think of it—I resigned from that government in 1964, ten years before the regime tottered and fell. Why would I entertain any different attitude towards a regime from which I resigned in protest, long before Eritrea gained its independence, an independence that I cherish, and devoted a major part of my adult life to help achieve?
Daniel asks two questions: (a) What steps are being taken to strengthen the legal system at present, in particular the commercial law? (b) -Are there provisions in the constitution such rights as the right to take the government to court?
First, the legal system. You may know, Daniel, that Eritrea’s modern legal system is derived from its colonizers. The Italians superimposed their commercial and public law (Administrative, Constitutional and Commercial laws) on their colony’s various traditional laws. The last colonizer, Ethiopia, imposed on Eritrea its laws, which were derived from foreign sources. These are: the Civil Code, drafted by a French professor, the Criminal Code drafted by a Swiss professor, etc.
Upon Eritrea’s liberation, the Provisional Government of Eritrea made certain amendments to these laws but kept the bulk of them as received. But over the past few years, the Ministry of justice has been engaged in developing new codes of law: a criminal code, a criminal procedure code and a commercial code. The first two are ready for consideration by the legislature, but whether the government will submit them to the transitional National Assembly or wait until a new Parliament is elected on the basis of the constitution is an open question. Nobody knows. The public is kept in the dark, as usual.
The latest word on the commercial code is that a first draft was presented to the ministry, but there have been some criticisms on it and it has been temporarily shelved, or is being reconsidered with the addition of new drafters.
The revision (or development) of the civil code will take much longer time. The civil code is much more complex, embracing many different topics touching on practically all aspects of the lives of the citizens.
Finally, two points need to be made, one on the constitution, and another on the legal personnel of Eritrea. On the first point, it cannot be overstressed that the implementation of the constitution is a prerequisite for the development of the legal system. The constitution is the ultimate point of reference of all legal issues and the final arbiter of all disputes. On the question of the legal personnel, we all know that Eritrea does not have nearly enough legally trained people. The few that are legally trained and experienced are horrifically overburdened, inadequately equipped and poorly paid. The opening of the Law School at Asmara University has started to ease the burden somewhat with the first batch of graduates of the LL.B degree starting to work. We have a long way to go before we reach a critical mass of legal personnel to staff the courts and other legal offices.
The second question can be answered by simple yes. Please read the Bill of Rights of the constitution. (Chapter 3.) If the government or any member of the government violates any of the rights listed in chapter three, a citizen can sue in a court of law, which raises the question of the independence of the judiciary. “In the exercise of judicial power, the courts shall be free from the direction and control of any person or authority. Judges shall be subject only to the law, to a judicial code of conduct determined by law and to their conscience.” (Article 48(2). The constitution also enjoins all organs of the Sate to accord the courts “such assistance as they may require to protect their independence and dignity so that they may exercise their judicial power appropriately and effectively pursuant to the provisions of the constitution.”
B.A. asks a question based on my article, “The Disappearance of the Eritrean Constitution” (posted in Asmarino.com). In that article I had stated that the Commission’s Executive Committee had discussed, in one of its last meetings, the so-called corruption laws which were in violation of some provisions of the constitution. The laws provide for special courts with exclusive jurisdiction over crimes of corruption. One of the clauses of these laws denies the accused the right of appeal, which violates Article 17(8) of the constitution and is contrary to traditional norms of justice. B.A. asks me: (a) What was my personal reaction then and now? (b) Is it possible to make changes in this unfair law that was made by the GOE? and (c) Am I willing to challenge this unreasonable anti-corruption law?
The answer to (a) is that I was against the law then, and I am now. The dilemma I and my colleagues at the Constitutional Commission faced was a fait accompli of a law, which came as a surprise even to some of government insiders. The law was there; all we could do was express our disagreement with it and strongly urge the government to change it and to speed up the docket of cases pending in the special courts established under this law. As I already said, the Commission withheld the option of fixing an effective date for the coming into force of the constitution in order to give the government time to clear the deck, so to speak. It was a mistake made on the basis of trust. And this is a great lesson to all would-be constitution makers.
The answer to (b) is: Not only is it possible to change the law, the government is under an obligation to live by the constitution and must thus change the law. I have speculated in the cited article that it is the government’ reluctance to change the law that caused it to postpone the implementation of the constitution. And why does it refuse to change the law? Presumably because it has not been able to dispose of the pending cases of corruption, and because the government believes the law is a deterrent against corruption! Deterrent, or no deterrent, the constitution comes first, and the government has no choice now but the abolition of this law.
The answer to © is that I have already challenged the law as being in violation of the constitution. I would like to know what else needs to be done in that regard. Everyone I have talked to, beginning from the Chief Justice and lawyers in the Ministry of Justice, and all observers, foreign and domestic, are opposed to this monstrosity of a law. The detention, without trial, of so many Eritreans, including heroic freedom fighters, does not stand to reason or logic.
Two explanations have been advanced to try to make sense of this law. One is that PIA believes that the law has stemmed the tide of corruption and that he is willing to accept the charge of acting contrary to the constitution in his the fight against corruption. I am sure that this is what he believes. If so, he has to make up his mind: either he lives by the word of the constitution, or he does not. If he does not, he stands the risk of being impeached one day pursuant to Articles 32(9), and 41(6). The other explanation is that PIA is a “control freak” and is using the law as weapon of control over government and party cadres. The truth may lie somewhere in between these two explanations, but whatever the real reason, PIA has created a monster that he needs to dispose of—and soon.
Temesghen Tsegay asks several questions: The first is divided into two: (a) “when you introduced the constitution how much did our people participate in percentage? and (b) did the government of the EPLF pressure the committee (he means the Commission)? If yes, for what reason?
The answer to (a) is twofold. First, during the first phase of the constitution making process (1994-1995) over half a million Eritreans participated in civic education seminars and debates. Of these some 40 per cent were women. This number includes Eritreans in the Diaspora who played a major role in this as they did during the armed struggle. The seminars and related debates during this phase were based on the Proposals that the Commission had prepared having consulted with the public and with experts.
Second, during the third phase (1996-1997), the seminars and public debates were based on the draft constitution prepared by the Commission. During this phase over 127,000 Eritreans participated in the debate on the constitutional draft. Again, Eritreans in the Diaspora participated in this phase.
The answer to (b) is that the government did not apply any direct pressure on the Commission. Attempts were made to influence the members of the Commission to accept the idea of “guided democracy” with the implied suggestion of accepting a one party state. This was not acceptable to the Commission. As a lawyer/social scientist, I was fascinated by such subtle attempts which reflect the continuation of the practice of “democratic centralism” of the earlier days which had it its uses during the armed struggle, but which was a discredited mode of political practice. The dialectic at work, between the remnants of democratic centralism on the one hand, and liberal democratic theory and praxis on the other, was of immense interest to me, not only as practitioner, heading the drafting of the constitution, but as an interested academic. We started with a “bill of goods,” as it were, clearly and boldly advocating democracy, the rule of law and human rights. We translated several international legal instruments, including the Universal Declaration of Human Rights of 1948, and the 1966 UN Covenants on political social economic and cultural rights into Eritrean vernaculars and broadcast them over the radio and distributed them before the start of the public seminars. These “bill of goods” were the ramparts which no “democratic centralist” could penetrate. The rest was a matter of management of the conduct of the process, which went very well, by all independent accounts. [It may be of interest to Temesgen and others that we prepared and published a 50+ page handbook in Tigrigna and Arabic (Meba’ta Qiwam=Introduction to the Constitution).] It became an indispensable tool for members of the Commission and for the 400 people we trained to help conduct public seminars. ]
Temesgen’s second question is about the aims of the G 13. The aim of the G 13 is set forth clearly and concisely in the Berlin letter, which is now available in both Arabic and Tigrigna. I am answering this question here, as being relevant under A, because one of the requests of the G 13 was for the immediate implementation of the constitution.
Temesgen’s third question refers to the recently drafted laws on political parties and election. He asks my opinion on the two laws. I have answered this question in one of the interviews with Saleh Younis. In my view, the draft law on political parties is a good one although it may need some refinement. The electoral law leaves much room to be desired. I refer Temesgen to the answers I gave to the interview. It is possible that he sent the questions before that particular interview.
His fourth question asks me if I will participate in the next election, and if I win, what do I do in my four year terms. Although this is a personal question and belongs in B, the next section, I will answer it because the answer is a simple one. I am not interested in any political office, elective or otherwise. After half a life-time of active public service, I can now serve better as a free citizen, offering critical support.
The Fifth question says: “What do we respect (expect?) from the next election? How do you compare the Eritrean people?” He adds a sixth question: “As you are an educated man what do you advise us?”
The next election, even if PIA sees fit to allow other parties to compete will probably be won by him and his party. The cards are stacked against opposition parties. PFDJ is a powerful, well-funded party and its leaders have name recognition and control the instrument of state power, particularly the Media. But if other parties are allowed to compete, however weak they are, their advent will be like the acorn that can grow into an oak tree one day. The question is will PIA and company allow this.
The Eritrean people are a wonderful people—heroic, loyal, hard working and patient. They have sacrificed much to attain our independence, and lately, to maintain it. In response to the question what advise I can give, I would say, above all, we owe it to these wonderful people, to the martyrs and their orphans and widows, and to those who have been handicapped by the war, to maintain our unity as a people. We must do this, even as we debate and argue about different issues and criticize our government. We also need to keep the light of liberty and democracy burning and make those who govern us accountable for their actions and omissions. We need to practice tolerance as the first requirement of the democratic imperative. To those who are critical of the way the constitution was made, I say, give it a chance and if it is found wanting in practice, organize to introduce amendments to accommodate your ideas or desires.
At this critical juncture of our history, our domestic politics is witnessing two forces that are facing each other—the forces of reform and those with vested interests in maintaining the status quo. Every Eritrean needs to ask himself/herself which side he/she supports and why. Above all, each one must do everything to see to it that the face-off is resolved democratically: that it does not degenerate into violence, as seems to be happening in Ethiopia.
These are the words not so much of “an educated man”, to use Temesgen’s phrase, as those of an elder who has seen much—both good and bad—and wishes his country and people nothing but the best.
And I wish to take this opportunity to wish all Eritreans:
HAPPY TENTH INDEPENDENCE ANNIVERSARY!!!!!!!!
End of interview.
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