Open Letter to Chief Prosecutor Shimeles Kemal , aka “Shimelis Heileyesus ”
By Fita Challa
May 15, 2006
Since you don’t know me, let me introduce myself briefly. I was born and raised in Addis, like you were, but I am much younger than you are. My father was a member of EPRP and was killed by cadres of Mengistu in front of our house. Then I was one month shy of my 9th birthday. I have lived outside of Ethiopia for the last 18 years; however, I have closely followed the events in my country. It is also important to mention that I'm an independent-minded individual who has never been a member of any political party whatsoever. I talk about this upfront because it is relevant to my letter.
I know that you were imprisoned and mistreated during the Dergue regime due to your alleged EPRP membership and activity. Nor were you spared imprisonment by TPLF/EPRDF because you vigorously criticized their activities in your articles. I also know that you were able to finish your schools in Addis Ababa University after you were released from prison. I sympathize with you. One of your friends told me that you are well-read. Another friends of yours mentioned to me that when you were a judge, you were “nice and thoughtful." Where has that thoughtfulness gone? I suspect, due to your experience, you might dislike Dergue and WPE members. I understand that. I also have my prejudice against them. But as a lawyer, if they hire me, I may extend my service to some of them. Not all of them, of course.
Having said that, let me come back to TPLF/ EPRDF v. Eng. Hailu Shawel, Birtukan Midekassa, Prof. Mesfin, Dr. Yakob Hailemariam, Dr. Berhanu Nega, Ato Eyoel Muluneh & et. al. Almost all of them were charged with Genocide, Insurrection, Treason, Outrages Against the Constitution, etc. I should also mention that during the last hearing, you amended the Genocide charge to Attempt to commit genocide, without presenting any witness or any new evidence, simply with the presiding Judge’s blessing. It was a good game, though. Let alone the courts whose legal systems and principles we are adapted to, Judge Judy’s court - you know the TV show - would not allow such a theatrical production out of the law. This is a serious matter. Are you people playing games with people’s lives, and are you making mockery of the court system?
I saw the complaint prepared by your office. My learned friend, a better complaint would have been prepared by those non-lawyers, a kind of paralegals, who have their boutiques before the Lideta court house - Rapor Tsehafis. I said this because the approach lacks the material elements: the act, mental state, causation, and harm required to prove criminal guilt. Your recent amendment would not cure the defects in the case. I assume that you were not involved in the preparation of the complaint. You were appointed later as “a special prosecutor”. As a practicing lawyer, who has dealt with numerous prosecutors, I know that prosecution is a complex legal process. I also know that generally in a country where there is a rule of law prosecutors have more control over life, liberty and reputation than any other person. They have a discretion to prosecute or drop the charges. As they have an obligation to present the case, they also have an obligation to protect the rights of the accused and free the innocent because the government always wins when justice is done. Former U.S Attorney General, Benjamin Ciciletti wisely put it this way: “A determination to prosecute represents a policy judgment that the fundamental interest of society requires the application of the criminal laws to a particular set of circumstances….” Do the fundamental interests of the Ethiopian society require this process? No. Therefore, I suggest, my learned friend and fellow lawyer, sit before your computer, open that document and delete all the words on those six pages and submit the blank paper to the court. Given its history, I am sure the court will allow you to amend the charges again. With that you could set the innocent people free and you will make history. In Latin, that is called Nolo Prosequi. But do not represent this fabricated, factually, substantively and procedurally defective case. Or, withdraw from the case and let other cadres, like graduates of the Civil Service College do it. I dare to say this because a lawyer with your caliber should not be part of this dirty game. I would not like to argue each charge, because I would not like to educate you. You know the Ethiopian law better than I do. But, if you like, you might read my previous article about the definitions of the charges, the constitutional and international rights of the innocent imprisoned individuals on Ethiomedia.com. You might not have read it because pro-TPLF/EPRDF websites did not want to put it on their page. I stand by that article because I believe that is the case.
You and I well know that none of the imprisoned individuals committed intentionally or negligently any crime. They did not even attempt a crime. They were practicing their constitutional rights and trying to get the voice and the struggle of the Ethiopian people heard in a peaceful and constitutional way. You and I and also the whole world know that they are being held because they have differing political views. Some of the charges including the genocide against Tigrens and other ethnic groups are distasteful and also “absurd” as Amnesty International put it. Almost all of the crimes, including the attempt to commit genocide, require specific intent. Are you suggesting that these, mostly elderly, peaceful and international respected individuals intended to overthrow the Ethiopian government by force and also committed genocide in the midst. Some of the accused, in fact, were renowned human rights activists, some of them prosecuted the perpetrators of genocide and one of them was brave enough to follow the letter of the law and freed Siye Abreha. (You were not brave enough, though, to do the same when you were one of the judges who tried Professor Asrat). You know that, my learned friend. While charging these people with these heinous crimes, the TPLF/EPRDF must be kidding.
Another thing I want to discuss with you is the retroactive application of criminal laws, a recurring problem in Ethiopia That game was played during the trial of Siye Abreha and his brothers. The retroactive application of criminal laws is universally prohibited; the Ethiopian constitution and Article 5 of the new criminal code also prohibits retrospective effect of criminal law. To put in other way, if the act was committed before the effective date of the new law that act is not a crime. See Art 5(2). There is also speculation according to some jurists that the new criminal law according to which Kinijit leaders were charged was not singed by the President and was not published by the Negarit Gazetta, as it is required under Ethiopian law. See "Federal Negarit Gazeta Establishment Proclamation No.3/1995". You won’t find the new law in the official website of the parliament but on the website of Mekele University. Did the President sign this law? Was it published on Negarit Gazetta? Let assume it was, but the charges published by your office stipulate that the crimes were committed earlier than May 9, 2005, the effective date of the new law. If that is the case, then this case should be dismissed.
My dear learned friend, all of the above facts too may be a good reason to drop the charges. It seems that you are going in that direction because you did not want to present live witnesses, at least those witnesses like, Col. Araya and Ms. Abeba Eshete, “whose houses were burned”, or Nur Edris “who was stoned”, etc. See charging document page 6. Article 136 of the Ethiopian Criminal Procedure Code requires first and foremost that the prosecution call his witnesses after his opening statement. It does not talk about presenting photograph, audio or videotape recording or any other tangible objects as evidence before hearing testimonies of witnesses. That is the order of presenting evidence. That statute is not vague. It is clear. That was the intent of the lawmakers in 1957 when they adopted this Code, my learned friend. I am sure you know how to analyze the intent of the legislature in each provision. But by pushing the time of the testimony of “live witnesses”, if any, with the approval of the judge, you are delaying the release of the innocent people as well as buying time for the government.
However, my learned friends, by taking such orders from TPLF/EPRDF politicians you are humiliating yourself as a lawyer. Open your eyes and look at the ethnic and religious composition of the court and the accused individuals. Is it a trail by your peers, a requirement of due process of law? I will let you find the answer for yourself.
My learned friend, you would do a serious and reputable job if you launched an investigation of the abuse of prisoners by TPLF guards and cadres. If not, news will leak out, and you will be a part of abu gahrib- and -guntanamo -type of scandals. My dear friend, you may also launch a parallel investigation about the massacre of the Anuaks, the killings, imprisonment, and abuse of thousands of Oromos, who suffered persecution due to their alleged support of OLF, Sidamas, Hadiyas, Sheko-Mejjangars who were killed in 2002 and 2003 respectively, and of the killing, detention and mistreatment of Amharas before and after the May 2005 election due to their alleged support of CUD. If you want to make a precedent case in Genocide, my learned friend, these would be good cases which would give a fair meaning of genocide. Not the one your are appointed to represent. Kinijit leaders and their codefendants are not TPLF/EPRDF guinea pigs on whom you can test the new criminal law. I would also suggest, my fellow lawyer, that you investigate whether some TPLF/EPRDF members committed the following crimes: Misleading Justice (Article 446); Unfair election Practices (Article 469); Interference with the Exercise of the Right of Voting or Election (Article 467); False Denunciation or Accusation (Article 447); Disturbance and Prevention of Electoral Meetings and Proceedings (Article 466); Corrupt Electoral Practices (Article 468); Fraudulent Registration (Article 470); Removal or Destruction of Ballot Papers or Boxes Article 474); Disturbances of Meetings or Assemblies (Article 490); Illegal Restraint (Article 585). These are serious crimes that were committed before and after this new criminal law came into effect.
This is not a joke. Mr. Kelmal, my learned friend, you are not a personal lawyer of Ato Meles and Co., you swear to uphold the constitution and other laws of Ethiopia. As a public servant, do not forget who butter your bread; it's the Ethiopian people, not Ato Meles. He has personal lawyers all over the world, let them do his job. You should not. I assume, my learned friend, you are not in a race track to entertain and win the love of Ato Meles Zenawi and TPLF/EPRDF.
My learned friend, we have had relatively a fair country, given our level of development and our lack of western educated jurists. You might remember what Haileselassie did with Abe Gubegna and other dissidents. He exiled them in their own country. However, it is true, his court sentenced General Mengistu and Germame Neway to death for insurrection and treason. My learned friend, you know it better than me that there is a huge difference between the facts of that case and the case you are representing today. As a part of the leftist movement in the 70‘s, I am sure you are familiar with the closing argument of General Mengistu Neway, in which he did not recognize the court, did not want to appeal the decision before the Emperor and predicted that a day would come when he would be vindicated. That day had come but had gone too. This is a new era, yours, mine and ours. Today’s Ethiopia should not be TPLF/ EPRDF page on my space. com., where you can do whatever you want. And I suggest to you, my learned friend and a fellow victim of Red Terror, that you should not be an accomplice of another genocide and inhuman and degrading treatment. Be on the bright side of life and side with the people of Ethiopia and other freedom lovers: the Ambassadors' Donors Group, the African Development Bank, the European Commission, the U.N. Development Program and the World Bank, Human Rights Watch and Amnesty International who called for the release of the imprisoned CUD leaders and representatives of the media and civil society. Not with the minority government of TPLF/EPRDF. Act like the Egyptian judge Batawis, who protested the killing of 11 people in election related standoff with the police, and said “at this time cooperating with the government is a crime”. The courageous Batawis demanded “the people who are responsible for this should be put on trial.” You and I should demand the same in Ethiopia.
My learned friend, you know it better than me, Ato Meles has overstayed his welcome, and the TPLF/ EPRDF guys want to use you as a chewing gum: they chew you until they neutralize their filthy mouth, then they spit you anywhere. Then after, you know it better than me, in Ethiopia, you might not even have a chance to be picked up by the trash collector, or be recycled or reincarnated. Think about that, my dear friend. Drop the charge or get out! If not, the blood of the innocent will haunt you for ever. You know the proverb, “what goes around, comes around”. And you know, my learned friend, we, freedom loving Ethiopians, shall not rest until justice is done: until the perpetrators of the atrocities committed in Ethiopia for the last 15 years are brought to justice. Make no mistake about it. Hoping to continue this dialogue, I remain truthfully yours,
Fita Chala
Fita Chala can be reached at fitachala@yahoo.com
ETHIOMEDIA.COM - ETHIOPIA'S PREMIER NEWS AND VIEWS WEBSITE
© COPYRIGHT 20001-2006ETHIOMEDIA.COM. EMAIL: webmaster@ethiomedia.com
Since you don’t know me, let me introduce myself briefly. I was born and raised in Addis, like you were, but I am much younger than you are. My father was a member of EPRP and was killed by cadres of Mengistu in front of our house. Then I was one month shy of my 9th birthday. I have lived outside of Ethiopia for the last 18 years; however, I have closely followed the events in my country. It is also important to mention that I'm an independent-minded individual who has never been a member of any political party whatsoever. I talk about this upfront because it is relevant to my letter.
I know that you were imprisoned and mistreated during the Dergue regime due to your alleged EPRP membership and activity. Nor were you spared imprisonment by TPLF/EPRDF because you vigorously criticized their activities in your articles. I also know that you were able to finish your schools in Addis Ababa University after you were released from prison. I sympathize with you. One of your friends told me that you are well-read. Another friends of yours mentioned to me that when you were a judge, you were “nice and thoughtful." Where has that thoughtfulness gone? I suspect, due to your experience, you might dislike Dergue and WPE members. I understand that. I also have my prejudice against them. But as a lawyer, if they hire me, I may extend my service to some of them. Not all of them, of course.
Having said that, let me come back to TPLF/ EPRDF v. Eng. Hailu Shawel, Birtukan Midekassa, Prof. Mesfin, Dr. Yakob Hailemariam, Dr. Berhanu Nega, Ato Eyoel Muluneh & et. al. Almost all of them were charged with Genocide, Insurrection, Treason, Outrages Against the Constitution, etc. I should also mention that during the last hearing, you amended the Genocide charge to Attempt to commit genocide, without presenting any witness or any new evidence, simply with the presiding Judge’s blessing. It was a good game, though. Let alone the courts whose legal systems and principles we are adapted to, Judge Judy’s court - you know the TV show - would not allow such a theatrical production out of the law. This is a serious matter. Are you people playing games with people’s lives, and are you making mockery of the court system?
I saw the complaint prepared by your office. My learned friend, a better complaint would have been prepared by those non-lawyers, a kind of paralegals, who have their boutiques before the Lideta court house - Rapor Tsehafis. I said this because the approach lacks the material elements: the act, mental state, causation, and harm required to prove criminal guilt. Your recent amendment would not cure the defects in the case. I assume that you were not involved in the preparation of the complaint. You were appointed later as “a special prosecutor”. As a practicing lawyer, who has dealt with numerous prosecutors, I know that prosecution is a complex legal process. I also know that generally in a country where there is a rule of law prosecutors have more control over life, liberty and reputation than any other person. They have a discretion to prosecute or drop the charges. As they have an obligation to present the case, they also have an obligation to protect the rights of the accused and free the innocent because the government always wins when justice is done. Former U.S Attorney General, Benjamin Ciciletti wisely put it this way: “A determination to prosecute represents a policy judgment that the fundamental interest of society requires the application of the criminal laws to a particular set of circumstances….” Do the fundamental interests of the Ethiopian society require this process? No. Therefore, I suggest, my learned friend and fellow lawyer, sit before your computer, open that document and delete all the words on those six pages and submit the blank paper to the court. Given its history, I am sure the court will allow you to amend the charges again. With that you could set the innocent people free and you will make history. In Latin, that is called Nolo Prosequi. But do not represent this fabricated, factually, substantively and procedurally defective case. Or, withdraw from the case and let other cadres, like graduates of the Civil Service College do it. I dare to say this because a lawyer with your caliber should not be part of this dirty game. I would not like to argue each charge, because I would not like to educate you. You know the Ethiopian law better than I do. But, if you like, you might read my previous article about the definitions of the charges, the constitutional and international rights of the innocent imprisoned individuals on Ethiomedia.com. You might not have read it because pro-TPLF/EPRDF websites did not want to put it on their page. I stand by that article because I believe that is the case.
You and I well know that none of the imprisoned individuals committed intentionally or negligently any crime. They did not even attempt a crime. They were practicing their constitutional rights and trying to get the voice and the struggle of the Ethiopian people heard in a peaceful and constitutional way. You and I and also the whole world know that they are being held because they have differing political views. Some of the charges including the genocide against Tigrens and other ethnic groups are distasteful and also “absurd” as Amnesty International put it. Almost all of the crimes, including the attempt to commit genocide, require specific intent. Are you suggesting that these, mostly elderly, peaceful and international respected individuals intended to overthrow the Ethiopian government by force and also committed genocide in the midst. Some of the accused, in fact, were renowned human rights activists, some of them prosecuted the perpetrators of genocide and one of them was brave enough to follow the letter of the law and freed Siye Abreha. (You were not brave enough, though, to do the same when you were one of the judges who tried Professor Asrat). You know that, my learned friend. While charging these people with these heinous crimes, the TPLF/EPRDF must be kidding.
Another thing I want to discuss with you is the retroactive application of criminal laws, a recurring problem in Ethiopia That game was played during the trial of Siye Abreha and his brothers. The retroactive application of criminal laws is universally prohibited; the Ethiopian constitution and Article 5 of the new criminal code also prohibits retrospective effect of criminal law. To put in other way, if the act was committed before the effective date of the new law that act is not a crime. See Art 5(2). There is also speculation according to some jurists that the new criminal law according to which Kinijit leaders were charged was not singed by the President and was not published by the Negarit Gazetta, as it is required under Ethiopian law. See "Federal Negarit Gazeta Establishment Proclamation No.3/1995". You won’t find the new law in the official website of the parliament but on the website of Mekele University. Did the President sign this law? Was it published on Negarit Gazetta? Let assume it was, but the charges published by your office stipulate that the crimes were committed earlier than May 9, 2005, the effective date of the new law. If that is the case, then this case should be dismissed.
My dear learned friend, all of the above facts too may be a good reason to drop the charges. It seems that you are going in that direction because you did not want to present live witnesses, at least those witnesses like, Col. Araya and Ms. Abeba Eshete, “whose houses were burned”, or Nur Edris “who was stoned”, etc. See charging document page 6. Article 136 of the Ethiopian Criminal Procedure Code requires first and foremost that the prosecution call his witnesses after his opening statement. It does not talk about presenting photograph, audio or videotape recording or any other tangible objects as evidence before hearing testimonies of witnesses. That is the order of presenting evidence. That statute is not vague. It is clear. That was the intent of the lawmakers in 1957 when they adopted this Code, my learned friend. I am sure you know how to analyze the intent of the legislature in each provision. But by pushing the time of the testimony of “live witnesses”, if any, with the approval of the judge, you are delaying the release of the innocent people as well as buying time for the government.
However, my learned friends, by taking such orders from TPLF/EPRDF politicians you are humiliating yourself as a lawyer. Open your eyes and look at the ethnic and religious composition of the court and the accused individuals. Is it a trail by your peers, a requirement of due process of law? I will let you find the answer for yourself.
My learned friend, you would do a serious and reputable job if you launched an investigation of the abuse of prisoners by TPLF guards and cadres. If not, news will leak out, and you will be a part of abu gahrib- and -guntanamo -type of scandals. My dear friend, you may also launch a parallel investigation about the massacre of the Anuaks, the killings, imprisonment, and abuse of thousands of Oromos, who suffered persecution due to their alleged support of OLF, Sidamas, Hadiyas, Sheko-Mejjangars who were killed in 2002 and 2003 respectively, and of the killing, detention and mistreatment of Amharas before and after the May 2005 election due to their alleged support of CUD. If you want to make a precedent case in Genocide, my learned friend, these would be good cases which would give a fair meaning of genocide. Not the one your are appointed to represent. Kinijit leaders and their codefendants are not TPLF/EPRDF guinea pigs on whom you can test the new criminal law. I would also suggest, my fellow lawyer, that you investigate whether some TPLF/EPRDF members committed the following crimes: Misleading Justice (Article 446); Unfair election Practices (Article 469); Interference with the Exercise of the Right of Voting or Election (Article 467); False Denunciation or Accusation (Article 447); Disturbance and Prevention of Electoral Meetings and Proceedings (Article 466); Corrupt Electoral Practices (Article 468); Fraudulent Registration (Article 470); Removal or Destruction of Ballot Papers or Boxes Article 474); Disturbances of Meetings or Assemblies (Article 490); Illegal Restraint (Article 585). These are serious crimes that were committed before and after this new criminal law came into effect.
This is not a joke. Mr. Kelmal, my learned friend, you are not a personal lawyer of Ato Meles and Co., you swear to uphold the constitution and other laws of Ethiopia. As a public servant, do not forget who butter your bread; it's the Ethiopian people, not Ato Meles. He has personal lawyers all over the world, let them do his job. You should not. I assume, my learned friend, you are not in a race track to entertain and win the love of Ato Meles Zenawi and TPLF/EPRDF.
My learned friend, we have had relatively a fair country, given our level of development and our lack of western educated jurists. You might remember what Haileselassie did with Abe Gubegna and other dissidents. He exiled them in their own country. However, it is true, his court sentenced General Mengistu and Germame Neway to death for insurrection and treason. My learned friend, you know it better than me that there is a huge difference between the facts of that case and the case you are representing today. As a part of the leftist movement in the 70‘s, I am sure you are familiar with the closing argument of General Mengistu Neway, in which he did not recognize the court, did not want to appeal the decision before the Emperor and predicted that a day would come when he would be vindicated. That day had come but had gone too. This is a new era, yours, mine and ours. Today’s Ethiopia should not be TPLF/ EPRDF page on my space. com., where you can do whatever you want. And I suggest to you, my learned friend and a fellow victim of Red Terror, that you should not be an accomplice of another genocide and inhuman and degrading treatment. Be on the bright side of life and side with the people of Ethiopia and other freedom lovers: the Ambassadors' Donors Group, the African Development Bank, the European Commission, the U.N. Development Program and the World Bank, Human Rights Watch and Amnesty International who called for the release of the imprisoned CUD leaders and representatives of the media and civil society. Not with the minority government of TPLF/EPRDF. Act like the Egyptian judge Batawis, who protested the killing of 11 people in election related standoff with the police, and said “at this time cooperating with the government is a crime”. The courageous Batawis demanded “the people who are responsible for this should be put on trial.” You and I should demand the same in Ethiopia.
My learned friend, you know it better than me, Ato Meles has overstayed his welcome, and the TPLF/ EPRDF guys want to use you as a chewing gum: they chew you until they neutralize their filthy mouth, then they spit you anywhere. Then after, you know it better than me, in Ethiopia, you might not even have a chance to be picked up by the trash collector, or be recycled or reincarnated. Think about that, my dear friend. Drop the charge or get out! If not, the blood of the innocent will haunt you for ever. You know the proverb, “what goes around, comes around”. And you know, my learned friend, we, freedom loving Ethiopians, shall not rest until justice is done: until the perpetrators of the atrocities committed in Ethiopia for the last 15 years are brought to justice. Make no mistake about it. Hoping to continue this dialogue, I remain truthfully yours,
Fita Chala
Fita Chala can be reached at fitachala@yahoo.com
ETHIOMEDIA.COM - ETHIOPIA'S PREMIER NEWS AND VIEWS WEBSITE
© COPYRIGHT 20001-2006ETHIOMEDIA.COM. EMAIL: webmaster@ethiomedia.com
