The Rule of Law in Eritrea

There seems to be a lot of confusion on the status of the rule of law in Eritrea.

This confusion contributes towards the opposition being at odds with each other, extends a life support system to the oppressive political order of the People’s Front for Democracy and Justice (PFDJ) and finally, it baffles the international democratic forces and discourages it from lending an effective and valuable targeted support to the Eritrean people.

Some use “the rule of law” clumsily and without having a deep understanding behind the meaning of that terminology. The current intensive debate about the current land ownership and use is a case in point; some want to solve the problems using group rights based on a very nebulous power sharing arrangement. An arrangement that is not in synch with the rule of law. If one scrutinizes their stands on other important issues such as -- working languages, the Eritrean-Ethiopian border demarcation -- one also finds their proposals have no basis on law.

Others naively claim that there is the rule of law in Eritrea. To sustain their claim, they maintain that Eritrea is ruled by the charter that was adopted by the PFDJ in its congress of 1994. They assert that this is a temporary and transient mechanism. (Heaven only knows how a system that has lasted for about fifteen years can be characterized as an ephemeral and a momentary one.) According to them, the charter is the law of the land. There is no contest on that point. However, from this, they erroneously equate this law of the land with the rule of law.

History of Legal Liberty:

From the legal perspective the history of liberty has progressed through three distinctive and qualitative stages. This progression may not be a one way linear progression in all societies. (At times there are regressions too. That had been the history of the East Europeans during the heydays of socialism.) Still, the general trend over a long period of time is progressive.

· “For much of human history, rulers and law were synonymous -- law was simply the will of the ruler.

· A first step away from such tyranny was the notion of rule by law, including the notion that even a ruler is under the law and should rule by virtue of legal means.

· Democracies went further by establishing the rule of law. Although no society or government system is problem-free, rule of law protects fundamental political, social, and economic rights and reminds us that tyranny and lawlessness are not the only alternatives.” See The Rule of Law

The First Stage, Where the Law of the Land is Arbitrary Edicts and Decrees:

In this stage, there are no rules to speak of. The leader essentially rules through arbitrary edicts and rules. There are no known and predictable rules that bind the leader. The leader and the state are synonymous. In such a system liberty is trashed. The words of the leader are the laws of the land. The living conditions of the people are no better than that of slaves or serfs. For the most part, Eritrea under the PFDJ is currently in such a very primitive stage of liberty.

The Second Stage, Where the Law of the Land is the Rule By Law:

In the second stage, the state is governed and bound by strict laws. The leader has to follow the rules. And mostly these rules are written. That is there are constitutions. These rules become the law of the land. Such a state is characterized as having a system that is governed by the rule by law.

In a system that is governed by the rule by law, though there are constitutions and rules, in real practice there is the absence of some civil liberties. Hence, even barbaric violation of human rights take the cover of legalities and court approvals. The second stage, though much more advanced than the first stage -- where the leader, or Capo, or King is the law --, the state sometimes has little respect for what are generally referred to as negative liberties. The most significant are: respect of freedom of religion, of association, of expression and of movement; respect of property rights; guarantee of the due process of law, such as “the existence of due process of law, for example, the legal concept of innocent until proven guilty; the concept of writ habeas corpus – ‘the right to be brought before a court to determine whether one has been lawfully detained.’” and; the enforcement of contracts and etc. These are rights that are reserved for individuals, and the state is legally prohibited from interfering with.

One can mention Ethiopia and China as two typical examples that have states that are governed by the rule by law. Both nations have constitutions and their leaders can substantiate to all they do to some articles and rules in their constitutions, despite the fact that some of their rules may violate various civil liberties. In short, they have legal covers to what they do. Still, a state that is governed by the rule by law is much better than a state that is not governed by any laws. At least, there are functioning courts. This second stage may enable a nation to move forward to a stage where civil liberties are respected – a period where the rule of law is supreme.

On the other hand, Eritrea is not even in the second stage, for now we might as well forget the rule of law. Worse, the leaders of the PFDJ are not even bound by the charters and rule of their very own organization, hence no known and predictable law of any kind. The leaders of the PFDJ cannot legally substantiate to some of their actions. See the Coup d’état in Eritrea

The Third Stage, Where the Law of the Land is the Rule Of Law:

In the third stage civil liberties are respected and a state that respects civil liberties follows the rule of law. Two typical examples of states that follow the rule of law are the USA and South Africa; in these nations the law of the land is the rule of law.

These civil liberties are also enshrined in the Universal Declaration of Human Rights. These rights are also embedded in the ratified Eritrean constitution; something that the opposition rarely highlights and does all it can to bury it under the rug. I judge the merit of the ratified constitution by its superb stand on civil liberties. If Eritrea were to implement its constitution and strictly abide by its letter and content, for the most part one may rightly conclude that the law of the land in Eritrea is in tune with the rule of law. As a rule of thump, a nation that does not respect the universal declaration of human rights violates the rule of law. This is where Eritrea is now.

Like all theoretical explanations of stages, no phase is pure. Take the USA, for example, for the most part the constitution of the USA was in harmony with the rule of law. Still, there were some major blunders. The very constitution that protected liberties for the majority denied the same rights to the black minority and espoused slavery. This is a violation of the rule of law. It took almost hundred years and the presidency of Lincoln to restore the rule of law regarding the status of African-Americans. “More than 600,000 men died [in a bitter civil war] before the sin of slavery was purged.” Lincoln had to resort back to the declaration of independence where it claimed all men are created equal and not the constitution to have a legal footing in his fight to eradicate slavery. The very constitution of the USA also disenfranchised women for many years until the constitution was to be amended. They used the amendment process to refine their constitution and to be in concord with the rule of law.

This history is also lost among the Eritrean opposition; a group that is not saintly itself and yet has the audacity to demand an impossible perfection from others -- a perfect constitution is a pipedream. The ratified Eritrean constitution has an amendment provision too; another item that the opposition remains to be silent about, since it is easier to reject an entity than improve and develop it which requires a difficult, contemplative and arduous work. (For more insights on the rule of law, please see the books noted below. **)

The Need for a Single Coherent Message:

Some in the opposition emphasize on elections and not the rule of law as highlighted above. Recently, others claim that the problem in Eritrea, irrespective of the current coercive political order, is the dichotomy between the highlanders and the lowlanders, which they believe has disadvantaged the lowlanders. Or to put it differently and bluntly they claim that the highlanders are reaping benefits under the rule of the PFDJ. Nothing is far from the truth. Then they advocate for the Eritrean people to organize along sectarian and religious lines in order to fight for group rights. They categorize the highlanders (read Christians) in one group and the lowlanders (read Muslims) in another group. This so called dichotomy of the highlanders versus the lowlanders is blown up beyond proportions; in this the perpetuators of such half truths are no different than the PFDJ. Needles to say, the PFDJ is as repressive to the highlanders as it is to the lowlanders.

The solution to the problems of Eritrea is the establishment of the rule of law. We have to advocate for constitutional liberalism and the rule of law. Constitutional liberalism is defined as follows:

· “Constitutional liberalism … is not about the procedures for selecting government, but rather government's goals. It refers to the tradition, deep in Western history, that seeks to protect an individual's autonomy and dignity against coercion, whatever the source -- state, church, or society. The term marries two closely connected ideas. It is liberal because it draws on the philosophical strain, beginning with the Greeks, that emphasizes individual liberty. It is constitutional because it rests on the tradition, beginning with the Romans, of the rule of law. Constitutional liberalism developed in Western Europe and the United States as a defense of the individual's right to life and property, and freedom of religion and speech. To secure these rights, it emphasized checks on the power of each branch of government, equality under the law, impartial courts and tribunals, and separation of church and state. Its canonical figures include the poet John Milton, the jurist William Blackstone, statesmen such as Thomas Jefferson and James Madison, and philosophers such as Thomas Hobbes, John Locke, Adam Smith, Baron de Montesquieu, John Stuart Mill, and Isaiah Berlin. In almost all of its variants, constitutional liberalism argues that human beings have certain natural (or "inalienable") rights and that governments must accept a basic law, limiting its own powers, that secures them. Thus in 1215 at Runnymede, England's barons forced the king to abide by the settled and customary law of the land. In the American colonies these laws were made explicit, and in 1638 the town of Hartford adopted the first written constitution in modern history. In the 1970s, Western nations codified standards of behavior for regimes across the globe. The Magna Carta, the Fundamental Orders of Connecticut, the American Constitution, and the Helsinki Final Act are all expressions of constitutional liberalism.” See The Rise of Illiberal Democracy

I often stress that the only document that can effectively unify the Eritrean people is the ratified constitution. This is assuming that it be amended to exclude the state from being the sole owner of all Eritrean land, and to include the official languages of Eritrea. Regarding the other items of the rule of law, the ratified constitution is as good as many constitutions in the world including that of the USA.

The sad part is that we have an opposition that is unable to see something good, if not prefect, albeit not of its own creation in the ratified constitution. It is oblivious to the fact that it is much easier to rally the people inside Eritrea behind the ratified constitution. It is unaware to the fact that the international democratic force can be an effective advocate for the implementation of the constitution. All our grievances be it freedom of the press, religion, association and movement; respect of property rights and due process of law can be handled by a simple message that all Eritreans to the last person can propagate – implement the constitution.

It appears that the outright rejection of the constitution has become a shackle on the neck of the opposition. The rejection of the ratified constitution by many has completely left the opposition paralyzed. It simply does not have a coherent message. Hence the constant and petty squabbling and the non stop reorganizing and splitting. The PFDJ is equipped with a mindset that is engrossed in envy and hatred of educated Eritreans. The opposition should do its best to avoid an affliction of such grave malady. We should celebrate success and great works of Eritreans; and the constitution authored by Dr. Bereket and his colleagues is a work of great acclaim.

Dictatorial regimes eventually crumble down. History teaches us that the fate of the PFDJ will not be any different; if nothing else, the force of its deadweight inertia will be its undoing. When that time comes, the only weapon that the Eritrean people possess to create a secure, united, stable and viable liberal democratic state is the speedy implementation of the ratified constitution. This will be accomplished by the people inside Eritrea. The Diaspora opposition has a choice to speed up or delay this process.

Mogos Tekeste

Notes:

*My earlier posts are compiled in my BlogSpot. The site also provides links to articles that succinctly elucidate the concept of the rule of law and constitutional liberalism. The address is as follows:

http://eritreamereb.blogspot.com/

** Important books on the rule of law in a descending chronological importance:

1. The Constitution of Liberty, by F. A. Hayek

2. The Open Society and its Enemies, by Karl Popper

3. The Future of Freedom, by Fareed Zakaria