Sunday, December 23, 2007
The Crime of Innocence
It is often said that truth is stranger than fiction. The grotesque prosecution of Daniel Bekele and Netsanet Demissie is much stranger than the grim and chilling fictional story of Joseph K., in Franz Kafka’s The Trial. The first sentence in Kafka’s book reads, “Someone must have been telling lies about Joseph K., for without having done anything wrong he was arrested one fine morning.” K., is ordered to stand trial before judges who do the bidding of their invisible masters. His trial is delayed time and again. He can not defend himself because he is never told what crimes he has committed. He is denied access to the evidence allegedly proving his guilt. His lawyers are incapable of defending him in an irrational and severely crippled legal system that relies on arbitrary and capricious procedures.
Like Joseph K., “Someone must have been telling lies about Daniel B., and Netsanet D., for without having done anything wrong they were arrested one fine morning in November, 2005.” They have no idea what crimes they have committed. Buy they are “charged” with a hodgepodge of nonsensical “crimes” that allege “outrage”, “obstruction”, “incitement”, and “impairment”. They are brought before an all-powerful political “court” with robed political hacks sitting as judges.
Like Joseph K., Daniel B., and Netsanet D., are told they are guilty. But when they protest their innocence, their persecutors relentlessly interrogate them: “Innocent of what? Protestations of innocence are themselves a sign of guilt”, they are lectured. They tried to seduce them, “Confess and you will be pardoned like the others before you. Sign an admission of guilt, and you’ll be set free.” But they refuse to confess to trumped up political charges. Today, for their crime of innocence, Daniel B., and Netsanet D., are languishing in the squalid and overcrowded cells of Kality prison, going into their third year. If “convicted”, they face possible life sentences. The “verdict/judgment” in their case has been postponed repeatedly due to a contrived and unspecified “illness of a judge”.
Even Kafka, the master storyteller of inexplicable guilt, could not have written a more nightmarish story of a totalitarian state that is completely out of control. The story of Daniel B., and Netsanet D., is an account of a police state that criminalizes innocent citizens, and coddles torturers and the killers of 193 unarmed protesters, and many thousands more. It is a microcosmic story of a nation played out in the persecution of two young and innocent captives of a ruthless regime that thrives on the dehumanization of an entire population; and sustains itself by denying its citizens basic human rights, and by crushing their spirit of freedom and liberty.
Daniel B., and Netsanet D., are part of a new and dynamic breed of young Ethiopian patriots. They are in the same honored league as Frehiwot Samuel, Teshome Mitiku, Woldemichael Meshesha and Alemayehu Zemedkun, those great patriots who shone the flashlight of truth on the June and November, 2005 massacres of unarmed protesters in Ethiopia. Daniel B., and Netsanet D., like the others, value principle above expediency. They place duty, honor and country above their own personal advantages. They are not politicians, religious leaders or sycophants with ambitions for power. They are the tip of the spear in an emerging group of Ethiopian social pioneers called “civil society activists”, a fancy phrase used to describe people who stand up for the poor and downtrodden, for democracy, for human rights and the rule of law.
Daniel B., managed a branch of ActionAid International in Ethiopia, an organization committed to fighting poverty and injustice. ActionAid helps poor people in urban slums and rural areas with the basic necessities of life. It also promotes anti-poverty public policies. Netsanet D., founded and directed the Organization for Social Justice in Ethiopia. His organization is dedicated to fostering democracy through education and advocacy. Daniel B., and Netsanet D., helped coordinate the Civil Society Election Monitoring Initiative in May, 2005 in the Addis Ababa area. Neither has ever used nor advocated the use of violence or force to bring about social or political change in Ethiopia. Amnesty International has listed both of them as prisoners of conscience, and called for their immediate and unconditional release.
The Persecution of the Innocents
Daniel B., and Netsanet D., were arrested during the ruling regime’s November, 2005 “sweeps”, which resulted in the arbitrary arrest and detention of 131 opposition leaders, journalists, civic society leaders and human rights defenders. The trumped up charges against Daniel B., and Netsanet D., are nonsensical by any civilized legal standard. They are accused of committing the unintelligible and weird crimes of “outrage against the constitution or constitutional order”, “obstruction of the exercise of constitutional powers”, “inciting, organizing and leading armed rebellion”, and “impairing the defensive power of the state.” No one knows what these silly “charges” mean. They mean whatever Zenawi wants them to mean.
The testimonial “evidence” against Daniel B., and Netsanet D., is simply laughable. The “government” called a total of seven witnesses in its case-in-chief. Four offered eyewitness testimony of the alleged crimes. One woman testified she was present at a civil society training of election observers when Daniel B., and Netsanet D., called EPDRF a “thief” that will rig elections. The two cautioned trainees to be vigilant against EPDRF shenanigans. They even handed out flashlights in case power is mysteriously cut to the location where the trainees were assigned to do the election monitoring. Her major complaint was that she was assigned to a monitoring location far away from her home. She testified that she could not tell apart Daniel from Netsanet.
Another woman testified that during a meeting to discuss whether the elected parliamentarians should take their seats and what civil society groups could do in the post-election period, she heard Daniel B., and Netsanet D., criticize the government for being oppressive, and the election board for not being independent. At this meeting, the two complained that the May, 2005 elections had been rigged and the parliamentary procedures changed to disadvantage opposition members. The two shared their conclusion that under such circumstances it would be difficult for the newly elected candidates to join parliament. This witness testified that she had heated exchanges with Daniel B., but at no time did either one threaten to do anything violent or unlawful.
One man testified that Netsanet D., told him to organize the youth in the neighborhood because the EPDRF had stolen the elections. Netsanet D., gave him flyers to distribute, and directed him to organize anti-government activities. As a result, the witness organized youth to burn tires in the streets, and talked to people in the bars and tea rooms and stopped taxi drivers and buses to tell passengers that the May, 2005 elections had been stolen. The witness also damaged some fencing in the course of his activities. This witness did not tell anyone of his subversive activities, including his family members and friends. Another man testified that Netsanet D., gave him 200 birr and flyers in a tea room, and told him to organize youth. The witness stopped people in the street and tried to organize them. He did not remember the names of any of the persons he met in the streets.
Three other eyewitnesses were called to corroborate the proper execution of search warrants to obtain evidence from the residences of certain individuals supposedly connected to Daniel B. and Netsanet D. None of these witnesses actually saw the so-called search warrant. Their testimony as to what they observed was confused and contradictory. They had more “I don’t recalls/I don’t knows” than Alberto Gonzalez at a Congressional hearing.
The documentary “evidence” is equally laughable. A prime piece of “government” evidence was a doctored email allegedly showing Daniel B., and Netsanet D., as Kinijit contact persons. Other documents admitted into evidence included a civic society conference report, a notice of public meeting and flyers describing the difficult situation in Ethiopia after the May elections. No evidence was presented to show the two participated in any demonstrations or engaged in any violent or potentially violent activity.
This is the corpus delecti, the whole body of the crime, for which Daniel B., and Netsanet D., have been in jail for more than two years now. As a technical matter of law, the critical question is whether the foregoing evidence is sufficient to prove beyond a reasonable doubt that Daniel B., and Netsanet D., committed the alleged “crimes”, or any crimes at all? The obvious answer is: NO! No reasonable person with common sense anywhere in the world, let alone impartial and neutral judges, could possibly find sufficient evidence to convict Daniel B., and Netsanet D., of any crimes on the “evidence” presented against them. The totality of the so-called evidence is perfectly permissible political activity under the ruling regime’s constitution, and other universally recognized human rights conventions.
But beyond the laughable testimonial and documentary evidence, there were numerous not-so-funny and egregious procedural and ethical violations by the so-called prosecutors. The defense was denied important discovery (evidence legally required to be turned over to Daniel B., and Netsanet D's., lawyers to prepare their defense); and illegally obtained evidence was admitted at “trial”, as was fabricated, hearsay, irrelevant and immaterial evidence. The prosecution was allowed to call witnesses whose identities were concealed from the defense. Defense lawyers were denied the opportunity to investigate prosecution witnesses and prepare effective cross-examination. Prosecutors were given preferential treatment in court proceedings. But let’s not be sidetracked by real issues of law and procedure. After all, we are talking about a monkey trial in a kangaroo kourt.
The Defense of Innocence
The funny thing about a kangaroo trial is that it’s a judicial circus performed with smoke and mirrors. In “prosecuting” (more accurately, persecuting) Daniel B., and Netsanet D., (and the other 129 victims of arbitrary prosecution), Zenawi sought to put on a “dog-and-pony” show for the international community. He wanted to use the “trials” to project an international image that he is a liberal democrat who believes in the rule of law, and practices due process in his courts. But like the best laid plans of mice and men, his scheme went completely awry over the past two years. His show proved to be a farcical kangaroo court complete with hacks robed to look like judges, sleazy henchmen masquerading as prosecutors, and two innocent young men sitting in the dock facing a low-tech legal lynching for nonsensical crimes based on fabricated evidence.
The fact of the matter is that Daniel B., and Netsanet D., do not have to present a “defense” in kangaroo court. They have committed no crime to defend against, and the ultimate verdict in their illegal prosecution has already been rendered. They have been found innocent (not “not guilty”) of all charges in the hearts and minds of their countrymen and women, and in the court of world opinion. Amnesty International has declared Daniel B., and Netsanet D., are innocent prisoners of conscience. So has Human Rights Watch and the other international human rights organizations.
Even Richard Morgan Chambers, the U.N. official assigned to advise the chairman of Ethiopia's “election board” in 2005, testified to their innocence in kangaroo court. He said Daniel B., and Netsanet D., had “performed in accordance with the constitution and the legal framework of the country... Their report on the election was balanced and contained the negative and positive aspects. They performed an impressive job as election observers despite the difficult situation.” The defense rests!
There is no need for the rest of us to play a game of charade guessing when the “court” will render a “judgment/verdict”. In kangaroo court, there is no fair trial, and no fair judgment/verdict could be expected. “Conviction” is a foregone conclusion in the mistrial of Daniel B., and Netsanet D., as it was for the 129 or so other victims before them. If truth be told, they were all “convicted” long before they committed, or even thought of committing the alleged crimes.
On May 6, 2005, a week and half before the elections, and seven months before the November demonstrations, Reuters quoted Zenawi accusing the CUD leaders and the others of trying to cause a “Rwanda-type genocide” by spreading ethnic hatred and strife, and by organizing a violent uprising aimed at overthrowing the government. Congressman Chris Smith stated during the mark-up of H.R. 2003 a couple of months ago in the House International Relations Committee that in August, 2005, Zenawi told him that he had “big dossiers” on all of the victims and could throw them all in jail at will. He merely used the November, 2005 demonstrations as a pretext to implement his long-hatched plan to incapacitate and intimidate the opposition by incarcerating their leaders.
The Triumph of Innocence
The inevitable “conviction” of Daniel B., and Netsanet D., presents Zenawi with two problems. First, what can he really do after convicting them? He has several options: 1) “sentence” them to the maximum, which would be life in prison, 2) impose a determinate sentence of a term of several years, 3) impose a suspended sentence with probation, 4) release them by giving them “credit for time served”, 5) offer them the same bogus pardon which they rejected back in July, or continue to play the “oh-the-judge-is-sick-today” charade and delay final action. Of course, none of these options give him bragging rights to smugly claim “they admitted their guilt and I pardoned them.” Second, his credibility, if he has any left, will completely evaporate if he does anything other than acquit them outright.
Zenawi probably feels that he is in one of those “damned-if-you-do, damned-if-you-don’t” situations. That is, if he sentences Daniel B., and Netsanet D., to a prison term, he will surely make them larger-than-life Heroes of Ethiopian Human Rights. They will be the international “poster boys” for human rights abuses in Ethiopia, and a cause célèbre of the Diaspora. Their cause will galvanize and energize the Ethiopian Diaspora’s human rights struggle in Ethiopia. On the other hand, he may wrongly conclude that that if he just lets them go, he may risk “losing face”.
Zenawi can save himself from his colossal folly and “put his money where his mouth is” by simply acquitting them outright. He could tell the world that he truly believes in the rule of law, and in this case he lost “fair and square” in a real court. He just could not prove his case beyond a reasonable doubt. There really is nothing shameful in losing a court battle where the ends of justice are served. For instance, Thabo Mbeki of South Africa had his deputy prime minister Jacob Zuma falsely charged with a heinous crime so that he could remove him as a candidate for the next president of South Africa. A real judge acquitted Zuma, and Mbeki accepted the ruling of the court, as he had to accept the ruling of his African National Congress a few weeks ago when it elected Zuma as its leader, ensuring Zuma’s election as the next President of South Africa.
The fact of the matter is that Daniel B., and Netsanet D., are factually innocent of any criminal wrongdoing, and there is nothing wrong in saying to them, “We made a big mistake in making false accusations against you. We are very sorry.” Better yet, make a judicial finding of factual innocence (that is, issue a court order declaring that there is no reasonable cause to believe Daniel B., and Netsanet D., committed any crimes alleged in the charges, and that they are factually innocent of the alleged crimes) and move on! It is never wrong, and never too late, to do the right thing! Zenawi could also take the high road and free the thousands of other political prisoners, and prove to skeptical court of world opinion that he truly believes in the rule of law, and not just enjoy yakking about it in the international media.
But there is a greater lesson to be learned from an outright acquittal of Daniel B., and Netsanet D. Zenawi and his regime should know better than anyone else that the table can one day turn. It did on the Derg. As Scripture teaches, “The arrogant one will stumble and fall with no one about to raise him up.” Scripture admonishes the arrogant: “Woe to those who enact unjust statutes and who write oppressive decrees, depriving the needy of judgment and robbing my peoples’ poor of their rights, making widows their plunder, and orphans their prey.” And those who sit in judgment should heed the Word: “In the same way you judge others, you will be judged, and with the measure you use, it will be measured to you.” Those who inflict injustice today should beware that they are schooling others who will inflict injustice upon them tomorrow.
Personal Reflections on Innocence and Injustice: We Must Take A Moral Stand
Hannah Arendt in her 1963 book Eichmann in Jerusalem used the phrase “banality of evil” to explain how great evils in history, including the Holocaust, were not committed by maniacs and psychopaths, but by ordinary people who believed their actions were normal because the state had legitimized and authorized it. She argued that torture, murder, arbitrary detentions and other inhuman and degrading practices become routine and accepted as “the way things are done” because ordinary people fail to express moral outrage in the face of great evil.
There is, I believe, a “banality of tyranny” in the world today which seeks to justify and normalize tyranny and dictatorship as “the way things are done”. The “banality of tyranny” nurtures the idea that it is necessary to destroy democracy in order to save it; the rule of law must be rooted out of society in order to create a just society; that totalitarianism is morally justified against the threat of terrorism; and state violence, crackdowns, arrests and repression are moral imperatives to save society from itself.
Consider the recent actions of Pakistani dictator Pervez Musharaf. He jailed thousands of lawyers, social, human rights and political activists, independent journalists, union members, opposition party leaders and activists, judges, religious leaders and students throughout Pakistan in an a desperate effort to cling to power. He declared martial law, or Musharraf’s law, to make it all possible. The people of Pakistan are forced to accept this as “the way things are done”.
Robert Mugabe has made Zimbabwe a basket case of poverty and human rights abuses. Human Rights Watch reports as many as 3 million Zimbabwean refugees have fled into South Africa. Zimbabwe has an inflation rate of 7,000 percent! According to the World Health Organization, Zimbabweans have the shortest life expectancy in the world. The average life today is 35 compared to 69 in 2000! The African Human Rights Commission has condemned Mugabe for widespread human rights violations. And the people of Zimbabwe are forced to accept this as “the way things are done”.
In Ethiopia today, Zenawi has banned the political opposition from organizing (or even using the lobby of a private hotel to have a press conference about internal party matters), decimated the independent press and is currently ramming through his rubberstamp parliament a bill to criminalize financial contributions to opposition parties from outside of Ethiopia. All expressive freedoms are suppressed. Thousands of innocent Ethiopians languish in prison. Peaceful protesters are gassed, beaten, arrested and/or shot. Must the people of Ethiopia be forced to accept this as “the way things are done”?
We Must Take A Moral Stand!
As Ethiopians we must all take a moral stand against injustice, and those who victimize the innocent. Laura Bush did. She took a principled moral stand on human rights violations in Burma. On December 10, 2007, on the occasion of International Human Rights Day, Laura Bush said the people of Burma “are denied nearly every right” enshrined in the Universal Declaration of Human Rights adopted by the U.N. General Assembly in 1948. “For nearly 20 years, Burma's military regime has crushed peaceful dissent and jailed thousands of political prisoners. President Bush and I call on all nations, especially Burma's neighbors, to use their influence to help bring about a democratic transition. Members of the junta have promised to engage in serious dialogue with democratic representatives of the Burmese people. If Than Shwe and the generals cannot meet these very basic requirements, then it's time for them to move aside and make a clear path for a free and democratic Burma.”
Laura Bush, where art thou? Light the way in Ethiopia, too! Daniel B., and Netsanet D., need you, now! Tell Zenawi that if he “can not meet the very basic democratic requirements, then it’s time for him to move aside and make a clear path for a free and democratic Ethiopia.”
Daniel and Netsanet in the “Lions’ Den”
Scripture teaches that the Prophet Daniel, whose name means “God is my judge”, was thrown into the den of hungry lions because of false accusations by his enemies in the court of the Persian king Darius, and for his refusal to betray his God and worship Darius instead. But the lions did not touch Daniel. Darius asked Daniel in amazement how he had managed to survive the mouths of the hungry lions. Daniel told Darius, “My God sent His angel, and shut the lions’ mouths. They have not hurt me because I was found innocent in His sight. And also toward you, O king, I have committed no crime."
Netsanet is a most unusual name in Ethiopia. It means “freedom/liberty”. Netsanet’s parents must have named him so because of their deep love of freedom and liberty. Perhaps they dreamt that one day their son will become an instrument to bring freedom to Ethiopia. Perhaps they dreamt in the lifetime of their son, all Ethiopians will enjoy freedom of speech, and of religion, and of the press, and association and assembly; and undergo the exhilarating experience of freedom from fear of their government, and from arbitrary arrest, detention and persecution, and ultimately, freedom from dictatorship and tyranny. Perhaps…
Just as the Prophet Daniel was thrown into the lions’ den because he refused to betray God and for refusing to lie and cheat, Daniel and Netsanet are in captivity in the squalid and overcrowded cells of Kality prison because they refused to betray truth, democracy, freedom, human rights, and ultimately, themselves. But no harm will come to them because they are “innocent in His sight. And they have committed no crime” against any earthly king!
Free Daniel B., and Netsanet D., NOW!
 The defense closing argument in the kangaroo trial of Daniel B. and Netsanet D. is available in Amharic at: http://www.ethiopolitics.com/pdfiles/final%20statmentDanielandNetsanet.pdf