All is not quiet on the Western front:
Meles Zenawi's giveaway of Ethiopian territory to Omar al-Bashir
By Alemayehu G. Mariam | July 8, 2008
Questions were raised and views shared at Gasha Conference. (Photo from left: Yohannes Hagos, Adargachew Tsige, Giday Assefa, Fekade Shewakena and Desta Berhanu)
Editor's Note - The following text is a speech delivered by noted human rights activist and scholar, Professor Alemayehu G. Mariam, at Gasha for Ethiopians Conference held at Washington Marriott Hotel on July 3, 2008. Considered for its significance from legal perspectives, Ethiomedia has published the full text that deals with the handing over of Ethiopian territories to Sudan in secret and illegal deals by the Meles Zenawi regime.

Prof. Al Mariam
Noted human rights activist and scholar, Prof. Al Mariam addressing the Gasha Conference at Washington Marriott
Prof. Al Mariam
Prof. Abigail Salisbury was accorded a standing ovation when Gasha Chairman Sultan Alene awarded her a certificate of appreciation for her contribution toward academic freedom in Ethiopia (Photo: Ethiomedia)
Thank you all for coming to this event today. We appreciate it very much.

I want to thank “Gasha for Ethiopia” for inviting me to speak here today in defense of the territorial integrity of the Ethiopian motherland.

Gasha is a non-profit organization established in 2006 with the objectives of advancing democracy, justice and human rights in Ethiopia. Gasha is irrevocably dedicated to the indivisibility of the Ethiopian nation and the Ethiopian people. In our tradition, the defender bearing the Gasha (shield) must also carry a spear; and Gasha carries the spear of unity, truth, tolerance, brotherhood and sisterhood, and stands shoulder-to-shoulder with all Ethiopians to defend the territorial integrity of the Ethiopian nation. Thank you Gasha.

I also want to thank Prof. Abigail Salisbury who is now the Executive Director of Jurist, the renowned website for legal news and information at the Pittsburgh University School of Law. Prof. Salisbury has taken time out of her busy schedule to share with us her experiences teaching law at Mekele University.

I have the greatest admiration for Abigail. Last February, she was exercising her academic freedom at Mekele law school when she ran smack against Zenawi’s Lie Machine. She told the truth as she saw it at Mekele law school. The truth she talked about in her Jurist article writ large is that Zenawi has made a mockery of higher education in Ethiopia, and made its universities diploma mills and convenient excuses for panhandling the international community for development aid. Thank you for being here with us today Abigail.

I would like to thank and salute the Ethio-Sudan Border Affairs Committee for the fantastic job they have done in exposing Zenawi’s lies about the secret land giveaway in Western Ethiopia; and for their tenacity in pursuing this issue by means of public education, awareness and coordination of global action by Ethiopians. I am particularly thankful to the Committee for staying in close touch with the dispossessed Ethiopians of the occupied/annexed territories of Western Ethiopia and helping tell their individual stories. I would like to humbly propose to the Committee to rename itself to “The Ethio-Sudan Land Giveaway Truth Squad”, because without your outstanding efforts, Zenawi would have auctioned off our people and our land to the Sudan in a secret transaction.

Apocalypse Now!

Let me begin by saying that Ethiopia is not only in the Horn of Africa, she is also on the horns of a terrible dilemma. The Four Horsemen of the Apocalypse are riding her vales and hills. The White Horseman is spreading famine, pestilence and death across the land. Approximately 10 million Ethiopians are facing hunger and starvation as we speak. The Red Horseman has plunged Ethiopia into a civil war in Somalia. Thousands of innocent Somalis have died and millions more have become refugees in Zenawi’s Private War. Thousands of young Ethiopians have also lost their lives in this illegal war. The Pale Horseman has been killing Ethiopians by the sword. The human rights of Ethiopian citizens are trampled and thousands are rotting in jail without due process of law. Democracy in Ethiopia today hangs from the executioner’s scaffold. Now comes the Black Horseman -- the Prince of Darkness -- whose Satanic mission is to dismantle and dismember Ethiopia piece by piece.

My friends, wake up! It is Apocalypse Now in Ethiopia!

Ethiopia in Zenawi’s Chop Shop

We are here today to help stop Zenawi from completing his evil plans to dismember our motherland. When Zenawi gave away the Port of Assab, we remained silent and paid the price of being landlocked. In 1998, Badme was invaded and 80,000 Ethiopians sacrificed their lives and drove back the enemy. But Zenawi promptly converted Ethiopia’s battlefield victory into total diplomatic defeat by agreeing to deliver Badme to the invaders in arbitration. This marks the first time in modern world history where a nation that successfully repelled an invasion of its territory at great cost of human lives promptly turned around and delivered that same territory to the enemy on a silver platter in binding international arbitration.

We don’t know but we are told that in the past couple of years Zenawi has also delivered to Egypt water rights to the Blue Nile to last a century. We don't know what else is being hatched in Zenawi's Chop Shop, but from the predictable pattern of land giveaway, we expect the Ogaden region will soon be put on the auction block. But now we do know and we told by people who live in Western Ethiopia that Zenawi has delivered their ancestral lands and homes to Sudanese dictator Omar al-Bashir in a secret agreement.

Oh! What a Tangled Web We Weave When We First Practice to Deceive

What really happened in Western Ethiopia in May, 2008? We do not really know because Zenawi ain't talking, at least he ain’t talking straight. He has been talking with forked tongue. On May 11, Zenawi’s so-called foreign ministry put out a statement which categorically denied the transfer of any Ethiopian land to the Sudan. That statement accused the “media” and “irresponsible” elements outside the country for creating fear and alarm over something that did not happen.

When Sudanese officials publicly announced acquisition of territory from Ethiopia, Zenawi could no longer keep a lid on his secret deal; and his henchmen began to backtrack on their initial story by mid-May. They said only preliminary work on border demarcation had been done, but nothing had been finalized. Within days, a new lie was invented. They nonchalantly admitted “implementing prior agreements” concluded by the imperial/Derg regimes with the Sudan.

All hell broke loose when the Ethio-Sudan Border Affairs Committee began to aggressively probe the issue and investigate what was really happening on the ground in the border areas. Soon Ethiopians victimized by Zenawi’s land giveaway began giving interviews to the VOA and other international media outlets. They complained bitterly that they had been driven out of their ancestral lands by occupying Sudanese forces. Their farm machinery and tools had been confiscated by the Sudanese and scores of Ethiopians had been arrested and detained in Sudanese jails. They also reported that they were attacked by woyane helicopter gunships for defending their homes, farms and towns. At that point, Zenawi had no choice but to “fess” up and admit that he had indeed signed an agreement with Sudan.

Zenawi’s “Agreement” With al-Bashir

On May 21, Zenawi publicly described his agreement with al-Bashir:

“We, Ethiopia and Sudan, have signed an agreement not to displace any single individual from both sides to whom the demarcation benefits…We have given back this land, which was occupied in 1996. This land before 1996 belonged to Sudanese farmers. There is no single individual displaced at the border as it is being reported by some media.”

Zenawi insists on keeping the actual agreement secret. But his public statement is a treasure trove of information on the basic terms and nature of the secret agreement. From Zenawi’s statement, we now know for certain that there is an actual “Agreement” which is “signed”. Obviously, this means that there is in existence a formal document (instrument) which memorializes the detailed terms and conditions of “The Agreement”. We also know that the agreement is “signed” either by Zenawi himself or a minister he has authorized to sign on his behalf.

As to the subject matter of the “The Agreement”, Zenawi has put on the record that it deals with several issues: 1) the question of non-displacement of persons in the giveaway territories, 2) preservation of benefits of all persons affected by border demarcation, 3) restoration of land rights to Sudanese farmers on land supposedly occupied illegally by Ethiopian farmers, and 5) cession of lands (“give back of land”) “occupied” by Ethiopia “in 1996” back to the Sudan.

Note Well: It is important to understand that “The Agreement” Zenawi “signed” with al-Bashir, by his own description, has nothing to do with the so-called Gwen line of 1902. It also has nothing to do with any other agreements drafted or concluded by the imperial government prior to 1974, or the Derg between 1975 and 1991 for border demarcation or settlement. Zenawi’s agreement deals exclusively with border matters and related issues beginning in 1996, when presumably the occupation of Sudanese land took place under the Zenawi regime.

A clear understanding and characterization of Zenawi’s “Agreement” with al-Bashir is critical to our understanding of the constitutional and international legal issues associated with it. We must understand that Zenawi’s Agreement is no ordinary agreement that deals with mundane matters of foreign policy with the Sudan. It is also not a symbolic gesture to reaffirm some pre-existing formal agreement between Ethiopia and the Sudan. Though Zenawi calls it an “agreement” to hoodwink the public and minimize critical scrutiny of his handiwork, the fact remains that Zenawi has actually “signed” a major “Treaty of Cession to Relinquish Parts of Western Ethiopia to the Sudan”.

Zenawi’s Constitutional Duty of Accountability and Transparency: Why is Zenawi Hiding the Ball From the Public and His Parliament?

Before we get into a discussion of the central constitutional issues, we must ask whether Zenawi has proper constitutional authority to keep the actual text of “The Agreement” (Treaty) secret from the public and the “Council of Representatives”. The answer unequivocally is he does not. In fact, Zenawi as a “public official” has an affirmative constitutional duty to perform his duty in an open and transparent manner. This duty is unambiguously mandated under Article 12 of the “constitution” (“Functions and Accountability of Government”), which provides, “The activities of government shall be undertaken in a manner which is open and transparent to the public… Any public official or elected representative shall be made accountable for breach of his official duties.”

Article 12 applies to ALL “activities of government” and to ALL government officials. It makes no exceptions for secret deals by “prime ministers”. Transparency and openness in government is an important constitutional duty of ALL public officials, not just some ordinary duty to be performed in the course of one’s official activities. The breach of this duty carries with it serious consequences of legal accountability. Manifestly, Zenawi’s defiant refusal to be transparent and open in making public an “Agreement” (treaty) that gives away a large chunk of Ethiopian territory to another country is a monumental breach of constitutional duty for which he should be held accountable.

But why is Zenawi really keeping “The Agreement” (treaty) secret? Many have been perplexed by Zenawi’s refusal to present “The Agreement” to the parliament for ratification. They argue that the rubberstamp parliament would reflexively and unquestioningly ratify it if ordered to do so. We are equally perplexed, but we have some hypotheses about the reasons for keeping the agreement secret. First, we are convinced that “The Agreement” is not what Zenawi has portrayed it to be. Zenawi public statements about “The Agreement” are all lies, nothing but lies. He is lying through his teeth. If his public statements on “The Agreement” truly reflect the words in “The Agreement”, then no harm could possibly come from making the actual written agreement public; and the written “Agreement” itself would verify (be the best evidence) his public statements.

Second, we suspect that Zenawi did not anticipate the land giveaway would spark such interest and intense opposition. After all, no one challenged him when he delivered the Port of Assab and Badme on a silver platter to the enemy. Zenawi thought he could do whatever he wanted with Ethiopian territory, and no one would raise a word of objection. Third, it is possible that Zenawi is afraid that even a slavish parliament dominated by the so-called EPDRF has enough nationalist sentiments among its members to oppose an arbitrary slicing of Ethiopian territory for delivery to another country. We suspect many in the “Council of Representatives” will object, and object very strenuously to any arbitrary land giveaway to the Sudan. That could lead to a wider debate over Zenawi’s dismantlement of the Ethiopian nation, and so on. Zenawi will not take a chance. He has learned from the 2005 elections and his war of aggression in Somalia. Every time he underestimates his opposition, he gets trounced.

Zenawi’s “Treaty of Cession to Relinquish Parts of Western Ethiopian Territory to the Sudan”

Let us recapitulate Zenawi’s description of “The Agreement” with al-Bashir:

We, Ethiopia and Sudan, have signed an agreement not to displace any single individual from both sides to whom the demarcation benefits…We have given back this land, which was occupied in 1996. This land before 1996 belonged to Sudanese farmers. There is no single individual displaced at the border as it is being reported by some media.

The are three central legal questions that arise from the signing of this “Agreement”: 1) Whether Zenawi has constitutional authority to sign a legally binding “Agreement” (Treaty) for the transfer of “occupied” lands to the Sudan, 2) Whether “The Agreement” (Treaty) itself has any legal significance under the Ethiopian “constitution” and law, and 3) Whether “The Agreement (Treaty) is biding upon successive Ethiopian governments under international law. To answer these questions, we must examine the relevant sections of the “constitution” dealing with foreign policy and international agreements.

Article 51, section (4) specifies that one of the “powers and duties of the Federal government”, is to “determine foreign policy and implement the same. [It also] enters into and ratifies international agreements.” The general foreign relations powers of the federal government are divided between executive management of the foreign policy field, and ratification of “international agreements” by the parliament. Article 55, section 12, specifically reserves as one of the exclusive “powers and duties of the Council of Peoples’ Representatives”, the power to “ratify international agreements signed by the executive branch.”

Article 86 describes the “principles of foreign relations” the federal government (the prime minister and the Council of Peoples’ Representatives) must follow in conducting Ethiopia’s relations with other countries and international entities. Sections 2 and 3 provide that the federal government must follow a foreign policy “based on equality and mutual benefit; ensuring that international agreements entered into, protect the interests of Ethiopia” and requires “respect [for] international laws and agreements that respect Ethiopian sovereignty and are not contrary to the interests of its peoples.”

Article 9 (“Supremacy of the Constitution”) provides that the “Constitution is the supreme law of the land. All laws, customary practices, and decisions made by state organs or public officials inconsistent therewith, shall be null and void… All citizens, state organs, political organizations, other associations and their officials, have the duty to comply with this Constitution and abide by it… Assuming power in any manner other than as provided by this Constitution is prohibited.”

Zenawi is in Flagrant Violation of His Own Constitution

A simple constitutional analysis of “The Agreement” shows that Zenawi has the constitutional power to negotiate agreements within the sphere of “federal” power with other governments. He could also sign international agreements with other governments. He has the power to negotiate a treaty of cession, but his constitutional powers give him no more authority than the power to negotiate, draft and sign international agreements. Any agreements he signs are not worth the paper they are written on unless the Council of Representatives ratifies it as required under Article 55 (12).

Zenawi has not only failed to present “The Agreement” to the “Council” for ratification, he has also denied it the simple courtesy of reviewing the written agreement and ask questions. Zenawi gave the “Council” a cursory and dismissive lecture about what was in “The Agreement” and told them to go home and not think about it.

By keeping the signed “Agreement” secret and defiantly refusing to disclose its terms to the public and the “Council of Representatives”, Zenawi has trashed Article 12 (duty of transparency and accountability for all public officials), Article 55 (gross interference in the ratification powers of the “Council”) and Article 86 (international agreements must respect Ethiopian sovereignty and not be contrary to the interests of the Ethiopian people) of the “constitution”.

Zenawi’s “Agreement” is Null and Void and Not Binding on Ethiopia

Article 9 of the “constitution” plainly states that “all laws, decisions made by state organs or public officials inconsistent with the constitution shall be null and void.” “The Agreement” signed between Zenawi and al-Bashir is null and void because 1) it is not ratified by the “Council of Representatives”, 2) it is done in secret in violation of the “sunshine” requirements (transparency and openness) of Article 12, and is unquestionably and demonstrably against the fundamental interests of Ethiopia and the Ethiopian people (Article 86). Article 9, section 4 of the “constitution” provides, “International agreements ratified by Ethiopia are an integral part of the law of the land.” Zenawi’s “Agreement” with al-Bashir is not “ratified by Ethiopia” and is not “an integral part of the law of the land.” In fact, it is “null and void”. (Art. 9 (1)). We conclude, therefore, that no future Ethiopian government is bound by “The Agreement”, and has the right to demand removal of Sudanese occupation forces from Ethiopian territory at an international tribunal.

Is a Null and Void Agreement Under Ethiopian Law Enforceable Under International Law?

Zenawi’s “Agreement” with al-Bashir presents the central question: Whether an agreement determined to be null and void under the fundamental laws of Ethiopia is binding on any successive Ethiopian governments under international law. International law gives great weight to the effectuation of treaty obligations between states. But it also recognizes specific legal grounds for a state to withdraw its consent and invalidate an agreement if it can prove the existence of specific circumstances at the time of entry into agreement.

The Vienna Convention on Treaty Law governs resolution of treaty disputes. Article 46 (1) (“Invalidity of Treaties”) provides for invalidation of treaties that are concluded in violation of the “internal laws” of a state party:

  1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
  2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

There are other sections of the Vienna Convention that may be applicable subject to discovery of facts on “The Agreement”. Article 49, for instance, provides that “if a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty.” Article 50 enables a state to invalidate an agreement if the “treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State.” If coercion has been used either against the state or the representative of the state in procuring the agreement, such coercion is a further basis for invalidation of a treaty.

What is incontrovertible about “The Agreement” is that it is “null and void” under the Ethiopian “constitution” as demonstrated above. The only other question is whether the ratification requirement was “objectively manifest” to the Sudanese when the agreement was signed. There is little doubt that the requirement of legislative ratification in Ethiopia was “objectively evident” to al-Bashir when he signed “The Agreement”. Sudanese negotiators have a duty to inquire into the ratification process of the Ethiopian state; and the Sudan “conducting itself in the matter in accordance with normal practice and in good faith” would have easily discovered that particular ratification requirement. Any future Ethiopian government would be well within its legal rights to ignore a “null and void” “Agreement” and demand removal of Sudanese occupation forces from Ethiopian territory.

We believe there are many unknown, but suspicious factors in the secret “Agreement”. Is there corruption on the part of Zenawi or his regime within the meaning of the Vienna Convention in the negotiation and signing of the “The Agreement”? It has been suggested in the media that Zenawi has made a deal with the Sudanese over oil exploration in the Gambella region in exchange for the land giveaway. If this allegation is true, it would be necessary to look for evidence of corruption in the oil-for-land giveaway deal. Others have suggested that the land give away was “payment” for years of Sudanese support for Zenawi’s regime, and advanced “payment” for political asylum in the Sudan when Zenawi is forced out of power. Whatever may be the real reasons, all of the secrets about “The Agreement” will be laid bare and the truth revealed to the world when litigation begins to eject the Sudanese occupiers under a new patriotic government.

Other Problems of Occupied/Annexed Western Ethiopian Territories

There are a number of problems that require separate attention from the general legal disputes over the secret “Agreement”. I will only touch upon them briefly here. The testimonial evidence provided by Ethiopians in the occupied territories reveals large-scale violation of human rights and constitutional rights. There is evidence to show that at least 35-50 people have been abducted by Sudanese forces and jailed for allegedly farming on Sudanese territory. There is substantial evidence of beatings and persecution of local residents of the occupied/annexed territories by a joint command of woyane and Sudanese forces for peacefully protesting the land giveaway. Many Ethiopians in the occupied/annexed territories have also sustained significant loss of property, including farm land, harvest, and farm equipment and implements. They have also suffered destruction of their homes and hamlets. Numerous Ethiopians have also been killed by woyane helicopter gunships as they defended themselves against the Sudanese occupiers.

Article 13 of Zenawi’s constitution incorporates by reference international human rights conventions and agreements. Both under the Universal Declaration of Human Rights and the “constitution”, Ethiopians in the occupied/annexed territories have suffered widespread violations of their human rights. The arbitrary arrests and detentions, extrajudicial killings and massive confiscation of private property by woyane and Sudanese forces and widespread repression in the occupied/annexed territories points to intolerable violations of human rights.

Zenawi has also violated the collective rights of the people of the occupied/annexed territories under Article 39 (right of nations, nationalities and peoples) by imposing upon them an “Agreement” which effectively forces them to separate from the Ethiopian state without their consent. Zenawi has no constitutional power to bargain away the territory and nationality of the occupied/annexed territories, or to unilaterally force upon the “nationalities and peoples” an agreement over which they have not been consulted.

Article 2 of the “constitution” provides that “the territory of Ethiopia shall, as determined by international agreements, comprise of the borders of the member states of the Federation.” This constitutional language implicates a direct role for the member states as their internal and external borders are determined and set. It requires a plebiscite (vote of the people) in the occupied/annexed territories before Zenawi’s “Agreement” could be effectuated by any organ of the “federal” government.

Call for the Legal Defense of Occupied Western Ethiopian Territories

I call upon all Ethiopian lawyers, scholars and researchers, and all others who wish to help to join hands in the legal defense of the territorial integrity of the Ethiopian motherland. We need to establish legal defense committees that will undertake the broadest possible factual and legal research to counter Zenawi’s secret Agreement, whatever it is. We must learn from the past. When the Badme matter was submitted to binding international arbitration, we know Ethiopia did not get the best legal defense of its claims. In fact, Zenawi was passing documentary evidence to the opposition that undermined Ethiopia’s position. There were prominent names in international law -- scholars and experts -- listed on the brief for Ethiopia, but in the final analysis Ethiopia was sold down the proverbial river by Zenawi and his henchmen. That must not be repeated in the occupied/annexed Western territories.

No one can defend Ethiopia better than her own children. I know there are many young Ethiopian lawyers in the Diaspora, particularly in America. I ask them to accept the challenge and defend the integrity of the Ethiopian motherland. The preparatory legal work that needs to be undertaken is enormous, and we are at a disadvantage in gathering relevant evidence. But let me briefly mention some of the important documentary materials we need for a successful legal defense. We need to gather every official document that has ever been prepared on the border issue between any government of Ethiopia and the government of the Sudan. We need to gather all cartographic evidence (maps) for expert review and analysis. We need to research historical and government archives in Ethiopia, the Sudan and the relevant colonial countries, scholarly works and even contemporaneous journalistic accounts of matters related to the Ethio-Sudan border. We need to interview longtime residents of the now occupied/annexed territories and keep a record of their testimony with respect to known border land marks, settlement patterns and other local practices. It is also necessary for us to preserve the testimony of human rights victims in the occupied/annexed territories. These are just a few examples of things we need to do to mount an effective legal defense of the territory of the motherland and our people.

Call for Unity for the Preservation of the Territorial Integrity of the Ethiopian Motherland

I want to thank Gasha for taking a bold and public stand against those who plot to dismember Ethiopia. Members of Gasha have risen above petty ethnic issues and concerns and resolved to work with Ethiopians from all walks of life to protect the territorial integrity of Ethiopia and to defend the human rights of the Ethiopian people. They have decided to cast their fate with the Ethiopian people, and have steadfastly rejected Zenawi’s narrow ethnic chauvinism. They are Ethiopians first before they are members of any ethnic group. That is the stand Gasha has taken. We are Ethiopians first before we are Tigreans. We are Ethiopians first before we are Oromos. We are Ethiopians first before we are Amharas or a member of any other ethnic group. Let me also add that we are Ethiopians first before we are Ethiopian Americans or Ethio-Europeans. That is my humble call for unity among all Ethiopians. Let us unite around the powerful values that bind us -- respect for human rights, love of freedom, establishment of democratic institutions, and above all else, the absolute territorial integrity of mother Ethiopia and the indivisibility of the Ethiopian people. If we agree to unite on the basis of these values, what could possibly divide us? I believe no tyrant -- no dictator-- should be allowed to put asunder what God has put together. One Ethiopia Today. One Ethiopia Tomorrow. One Ethiopia Forever.

Alemayehu G. Mariam is a professor of political science at St. Bernardino University and a lawyer based in Los Angeles. For comments, he can be reached at - An African-American news and views website.
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