A COMPARATIVE ANALYSIS OF TWO SUBSTITUTE AMENDMENTS ON H.R. 4423

Posted June 13th, 2006 by almariamforthedefense.

INTRODUCTION

Over the past several months, there has been much discussion and debate over House Resolution (H.R.) 4423 and the two substitute amendments[1] offered by New Jersey representatives Christopher Smith (R) Chairman, House Subcommittee on Africa, Global Human Rights and International Operations and Donald Payne (D), ranking minority member of the same committee. While the active proponents and opponents of HR 4423 have been vigorously advocating their respective positions on the bill, it appears many Ethiopians who have been following developments on the sidelines may not have fully grasped the substance of the bill or the differences between the two substitute amendments.

Reading and understanding legislative language often requires specialized knowledge and training, and for most lay people such material tends to be legal “mumbo jumbo.” Lawyers and judges spend considerable time and energy disputing and deciphering the intended meaning, scope and application of a particular piece of legislation, often without reaching agreement. Given the complexity of statutory construction (formal rules of interpreting legislation), one may not reasonably expect the average Ethiopian reader of H.R. 4423 to engage in formal legislative analysis and arrive at a comprehensive understanding of its provisions or implications.

The following comparative analysis is intended to aid in a better understanding of H.R. 4423. The analysis aims to illuminate some of the major policy and legislative issues that appear in the two amendments, enhance the quality of the general public dialogue over the bill, and render intelligible the legislative language so that anyone with a cursory interest in the bill could understand its provisions.

Objectivity and impartiality are critical to a fair rendition of the various elements of the two substitute amendments, and this author shall attempt to provide such an analysis. In the interest of full disclosure, however, the reader should know this author supports Chairman Smith’s substitute amendment, and briefly explains his reasons at the end in a postscript.

The comparative analysis focuses on legislative objectives, legislative findings, proposed action plan to assist Ethiopia and sanctions for noncompliance.

I. LEGISLATIVE OBJECTIVES[2]

Smith and Payne appear to subscribe to similar legislative objectives, although the practical implications and outcomes of their respective objectives are quite different. Smith broadly aims to support human rights, democracy, and economic freedom in Ethiopia. Payne seeks to promote human rights, good governance, free and fair elections and economic development, as well an independent judiciary and free press institutions. (See Smith, Sec. 2; Payne, Payne, sec. 2.)

Analysis

While there is apparent overlap in the declared objectives of the two amendments, the conceptual and practical differences become readily apparent upon closer examination. Both amendments aspire to achieve similar outcomes, but overused words and phrases such as democracy, good governance, human rights, economic development, etc., are often understood differently not only by lay persons but also legislators, political scientists, economists and others.

One illustrative example of different outcomes in legislative policy objectives concerns the issue of promoting “economic development” in Ethiopia. Smith approaches economic development along the lines of “economic freedom” (broadly defined in terms of private entrepreneurship, private ownership of land to allow the peasant farmer borrowing opportunities, and compensation for persons whose properties were confiscated by the Derg), and specific mechanisms aimed at advancing such freedom, e.g. providing technical assistance to develop the Awash and Nile hydro resources, promoting joint Ethiopian-American joint commercial ventures, improvements in the system of taxation, etc. (See Smith, sec. 5.) Payne’s notion of economic development is limited to support for rural education and effective water resources management. (See Payne, sec. 6.)

II. LEGISLATIVE FINDINGS

Both Smith’s and Payne’s substitute amendments are based on several sets of factual predicates (evidence) related to violations of human rights, deficiencies in the Ethiopian legal system and political process, obstacles to economic development and functioning of free press institutions, and post-election events.

Human Rights

Smith’s amendment begins its findings of human rights violations in Ethiopia by focusing on recent evidence of killings, torture and persecution of Anuaks in the Gambella region. Smith finds widespread human rights abuses in Ethiopia, including occurrences of unlawful killings of opponents, abuse and mistreatment of detainees, excessive use of force by security forces, detention of thousands of people without charge, government restrictions on the freedom of speech and assembly, and limitations on citizens’ rights to peacefully change their government.

Smith makes specific findings that after the May 15, 2005 elections, the human rights situation in Ethiopia deteriorated significantly marked by the killing of scores of demonstrators by government security personnel, and detention of tens of thousands of government opponents, including opposition political leaders, human rights activists, community leaders, and journalists.

Payne’s amendment begins its findings by framing the issue of human rights violations in Ethiopia as a Derg legacy, and implicitly commends the EPDRF for ushering a new era of human rights by ending “Mengistu’s brutal dictatorship.” The EPDRF-led government is credited for setting up a coalition government which has integrated various groups, including liberation fronts (such as the OLF and ONLF) resulting in significantly improved human rights conditions and political stability in Ethiopia.

Payne acknowledges that human rights conditions deteriorated significantly in Ethiopia after the May 15, 2005 elections, but points out that serious abuses occurred only after opposition parties refused to accept the announced election results and called for civil disobedience protests. Payne’s findings confirm that the government has detained notable political leaders, human rights activists, and journalists; and in Oromia and Amhara regions, Payne finds that federal police have threatened, beaten and detained opposition supporters often in nighttime raids.

Analysis

On April 6, 2006, Smith provided a mark-up statement[3] to the Subcommittee explaining his reasons for introducing HR 4423. Smith became concerned after the May, 2005 elections when he learned of delayed release of election results and massive arrests of demonstrators. He was afraid the situation could “spiral out of control” and began working with international human rights organizations. He was able to craft legislation that would help improve “human rights abuses and encourage Ethiopia to pursue a more certain path to democratic elections, good governance and economic development.” Smith also sought to hold accountable those who were involved in the shootings of demonstrators.

Smith subsequently visited Ethiopia and observed first hand that opposition leaders were being followed and harassed. He met with Zenawi who bragged to him that he had “proof” opposition leaders had committed treason, and that he could arrest them at any time. Unbeknownst to Smith, Zenawi was telling him his actual plans, and within weeks, Zenawi had ordered the roundup and detention of hundreds of opposition leaders for treason and genocide. (See Smith Mark-Up Statement.)

In the absence of an official mark-up statement or other public declarations by Payne, one has to rely on the plain language of his substitute amendment and record of hearings, which in this writer’s view are insufficient to provide a substantial basis to ascertain Payne’s real interest in presenting his amendment or in deciphering the reasons for his opposition to Smith’s bill.

The differences in legislative findings on human rights in the two versions are significant and wide-ranging. Smith’s findings place the entire burden of human rights violations squarely on the shoulders of the government. He holds the regime exclusively responsible for the denial of due process to opposition detainees and the deteriorating economic situation in the country. He is critical of the government's human rights record, and makes no efforts to explain away the human rights abuses that have occured under the current regime. (See Smith, sec. 3-5.)

On a more subtle level, Smith frames the issue of human rights violations in Ethiopia as part of a comprehensive interplay of policy and institutional failures, including repressive government actions and policies, inept judicial officers and ineffective judicial institutions, general official indifference to the rule of law and unbridled use of security forces to violently suppress all opposition. The Ethiopian judiciary is criticized for its failure to protect the rights of the accused sua sponte (i.e. the court on its own power), and for its complicity with the government in denying due process to defendants by conducting closed proceedings, limiting or denying attorney-client consultations and disregarding the presumption of innocence accorded to those accused of political crimes.

Payne’s amendment takes a radically different view of the current and historical human rights situation in Ethiopia, and seeks to excuse the current regime’s record by condemning the Derg-era human rights violations. (See Payne, sec. 3 (1)) Payne portrays the defeat of the “brutal dictatorship of Mengistu’s regime” by the EPDRF as the dawning of a new age of human rights and participatory democracy in Ethiopia. (See Payne, sec. (2). Payne’s findings broadly acknowledge and commend the EPDRF and the current regime for creating a “spirit of a new start” in “the building of a democratic Ethiopia.”

Payne’s findings imply that any human rights violations that have occurred since the takeover of the EPDRF government in 1991 were episodic and not systematic or significant. (See Payne, sec. 3 (9)). Although Payne acknowledges a “significant deterioration of human rights conditions” after the May 15, 2005 elections, and disapproves of the killing of nearly 80 demonstrators by government security forces and detention of opposition leaders and thousands of others, he curiously seems to hold demonstrators and opposition leaders responsible for their own misfortunes. In other words, following Payne’s findings, had the Coalition for Unity and Democracy (CUD) abstained from civil disobedience protests and not challenged the election results, there would have been few human rights violations by the government in the post-election period! (See Payne, sec. 4 (1)) This conclusion is somewhat analogous to a provocation defense sometimes raised in domestic abuse prosecutions where the husband pleads to the court that his wife is responsible for the injuries he inflicted upon her because she has a bad habit of talking back to him and challenging his commands.

Payne’s amendment makes no finding on the current status of detainees or the ongoing arrests and detentions of persons suspected of opposition to the government, the nature and gravity of the charges leveled against opposition leaders, the general atmosphere of fear, loathing and intimidation throughout the country, and the need to guarantee due process to the prisoners of conscience or international oversight of their trial.

Payne makes specific findings with respect to the “marginalization” of “the Oromos” and Ethiopian Somalis, implying that with the exception of these groups, others do not feel marginalized. (See Payne, sec. 3 (4) (5). Acknowledgement is made of the fact that members of the original EPDRF coalition “were forced to leave,” but the impression is left that only the OLF has been the object of military action by the government. The manifest implication of this finding is that other groups who were forced to leave, or who remained “outside the political process” have not suffered military action or persecution by the government. (See Payne, sec. 3 (4)).

It is puzzling that Payne makes no findings that “marginalization” is a direct outcome of the government’s policy of “ethnic federalism” — a gentler and kinder version of bantustanization or tribal homelands — which has been used to force Ethiopians to declare their ethnic identities and establish narrow ethnic allegiances. One could conclude from Payne’s findings that Ethiopia’s “ethnic federalism” is the most significant recent innovation in the general political theory of federalism. It is remarkable that a distinguished member of the American federal government could find any merit in the fictitious notion of “ethnic federalism.”

Payne’s overall findings suggest that he has a threshold of human rights abuses to trigger his outrage. Unfortunately, the killing of scores of demonstrators and incarceration of hundreds of opposition leaders and thousands of opponents is insufficient to provoke his moral outrage and demand immediate remedial action.

Deficiencies in Legal/Political Processes

Smith’s amendment finds significant flaws and deficiencies in the political and judicial processes in the country. As alluded above, some of Smith's legislative findings accuse the Ethiopian courts for acting inconsistently with Ethiopian law and constitutional protections. The election board is criticized for what amounts to a dereliction of duty by failing or refusing to perform an impartial investigation of allegations of election irregularities, and for undermining opposition efforts to pursue their election complaints. The government is blamed for failing to release election results in a timely fashion, and expelling internationally respected nongovernmental organizations for political reasons.

Smith encourages Ethiopian opposition parties to follow through on court challenges of the May 15, 2005 elections, and urges reorganization of the National Election Board to be more representative of the spectrum of political parties and perspectives in the country, and to become more independent in its investigative functions and decision-making.

Payne’s findings on the performance of the EPDRF and the government it has led since 1991 are largely favorable. The EPDRF is credited with bringing “stability” and much improved human rights conditions in Ethiopia. (See Payne, sec. 3 (9)). It is given credit “for significantly changing the political structure” and “shifting political dominance among groups,” creating “ethnic federalism,” and a “multiparty system,” and is approvingly described as “the best organized political party in the country” with wide support in the countryside. It is also commended for conducting a “transparent, competitive and relatively fair and fair election” in May, 2005, and for establishing a commission to investigate the post-election killings of demonstrators. Casting a shadow on this illustrious achievement, according to Payne’s findings, was the threat of dissension within EPDRF and challenges to Zenawi’s power (which was resolved through “restructuring and ouster” of dissenting leaders). (See Payne, sec. 5 (a) (1), (4), (5), (6) (16))

Payne’s findings on opposition groups are far less favorable. They are characterized as “suffering from internal divisions” and “lacking clear policy objectives.” They are said to suffer from government and exile group interference. They are generally portrayed as a negative political force responsible for election boycotts, civil disobedience protests and causing election turmoil. (See Payne, sec. (a) (2) (5) (10) (12)). It is noteworthy that Payne is dismissive of Ethiopians in the Disapora, and by inference particularly those “exiles” in the United States. He finds little role for “exile” groups of Ethiopians in the political or economic life of their homeland.

Repression of Free Press Institutions

Smith’s findings are critical of the Ethiopian government’s treatment of press institutions and journalists. The findings lament the fact that the government’s “repressive media law,” which threatens capital punishment for its violation, has had a chilling effect on the free press and spawned rampant self-censorship. The government’s monopoly of the electronic media (radio and television and internet) and lack of progress towards licensing of private radio are singled out for special criticism. Smith’s amendment encourages the Ethiopian government to support freedom of the press by allowing print and broadcast media to operate without censorship, facilitate and expedite the licensing of independent radio and television, and provide unimpeded access to the Internet. Smith specifically urges the government to revise Press Proclamation No. 34 of 1992 with the aim of repealing criminal defamation provisions and other speech-related crimes.

Payne’s findings on the operation of a free press merely pays lip service to the severity of government control and censorship. He finds that while “foreign journalists continue to operate freely,” independent Ethiopian journalists continue to face harassment, prosecution, detention and exile. This parallel universe of a free foreign press operating alongside a decimated independent Ethiopian press does not seem to present any contradictions for Payne requiring immediate remedial action. (See Payne, sec. 4 (6) (7)).

Economic Issues

Smith’s amendment finds economic conditions in Ethiopia have worsened “measurably” over recent years due to the government's inability to formulate and implement effective policies and regulations and control corruption. The Ethiopian economy is deemed to be mostly unfree, largely due to a cumbersome bureaucracy that deters investment, a judicial system that does not offer sufficient protection for property rights, and a system of higher tariffs on imported products. The government’s refusal to change its policy of state ownership of all land and insistence on land leases is said to prevent financing opportunities for farmers and contribute to the suboptimal performance of the agricultural sector. Lack of water is considered a major reason for the recurrent famine in the country, but Smith finds that food insecurity in Ethiopia is exacerbated by misguided government policies, including prohibitions on the private ownership of land, excessive taxation of farmers, and the high cost of fertilizer sold by companies affiliated with the government.

Payne’s findings on the economic situation in Ethiopia merely acknowledge that the country remains poor country despite strong performance of the agricultural sector. His findings simply lack the depth and breadth of understanding of the complex economic issues facing the country.

LEGISLATIVE ACTION PLAN TO ASSIST ETHIOPIA ACHIVE DEMOCRACY AND GOOD GOVERNANCE, AND OVERCOME ITS HUMAN RIGHTS, ECONOMIC DEVELOPMENT AND POLITICAL PROBLEMS

To promote and preserve human rights in Ethiopia, Smith proposes various types of support and mechanisms: financial and technical assistance to independent human rights monitoring organizations working in Ethiopia, training to government officials and other leaders/activists on international human rights standards, readmission of the International Republican Institute (IRI), the National Democratic Institute (NDA) and the International Foundation for Electoral Systems (IFES) to continue their work in developing democratic institutions and practices, and use of the office of the United Nations Special Rapporteur on Torture to conduct an investigation of the conditions of prisoners of conscience in government custody.

Smith also provides for training assistance to strengthen local, regional, and national parliaments and governments, political parties and civil society groups in Ethiopia. Such assistance is expected to facilitate ongoing communication between political parties and the government and improve voter/party/candidate registration to ensure the credibility of the next election in Ethiopia. Assitance is also available to enhance the independence and competence of the Ethiopian judicial system, particularly to support institutionalization of procedural due process.

Smith’s amendment further provides additional technical assistance to the government in such areas as budgeting, taxation, debt management and banking. Assistance will be available to develop the Nile and Awash River resources and hydroelectric power and irrigations systems to prevent future famines. There is additional assitance in Smith's bill to promote use of financing programs for joint United States and Ethiopian commercial ventures. The bill also aims to remove obstructions that have prevented Ethiopia from participating in such programs as the United States Millennium Challenge Account.

Payne seeks to promote human rights in Ethiopia by creating a Victims Support Network for Ethiopia, which will provide assistance to families of individuals killed in demonstrations and others injured by security personnel, as well as financial support for the legal defense of prisoners of conscience, human rights groups and others actively monitoring the status of detainees. Payne proposes a Judicial Watch Network to monitor court proceedings throughout Ethiopia, and insulate and strengthen the judiciary from undue government usurpations.

Payne aims to promote democracy and good governance by providing assistance to strengthen local, regional and national parliaments and government agencies in Ethiopia in the form of training provided by such organizations as the National Democratic Institute (NDI), the International Republican Institute (IRI) and the International Foundation for Electoral Systems (IFES). These organizations are expected to undertake various tasks, including training of local groups in election monitoring and voter registration, and establish programs focused on reconciliation efforts between the government and groups outside the political process.

Payne’s amendment provides economic development assistance by increasing funds to support the education sector, especially in rural areas of Ethiopia, and by providing technical and financial support for irrigation and improved management of the Nile River and other water resources.

SANCTIONS

Smith’s amendment requires suspension of all joint military activities between the Ethiopian and U.S. governments other than anti-terrorism and peace-keeping activities. Travel restrictions will be imposed on any Ethiopian official or member of the security forces involved in the shooting of demonstrators. Non-compliance with the legislation could also result in the denial of non-essential United States assistance (all aid except humanitarian assistance, emergency food programs, assistance to combat HIV/AIDS, fistula treatment, health service planning, child/motherhood programs, etc.).

Payne’s amendment provides for denial of visa to any government official or member of the security forces involved in the shooting of demonstrators, unless waived by the U.S. President.

Commentary

The Ethiopian Government is Unlikely to Agree to Smith’s Demand for the Immediate and Unconditional Release of Political Prisoners and Prisoners of Conscience and Free Operation of Human Rights Groups, or Accept Economic Development Measures Prescribed in the Bill.

In his Mark-up Statement, Smith asserted that “H.R. 4423 is not merely a punitive measure,” but seeks to use “technical assistance and other support” to change the human rights situation and contribute to Ethiopia’s economic and political development. The first order of business for Smith is the “immediate and unconditional release of all political prisoners and prisoner’s of conscience.” This is to be followed by reactivation of international and local human rights organizations to operate in the country, and deployment of the U.S. Special Rapporteur on Torture to undertake an investigation of the conditions of the prisoners of conscience. It is highly unlikely that the Ethiopian government will accept either of these proposals.

First, the government has painted itself into a corner by detaining opposition leaders on charges of genocide, treason, incitement and so on. These are patently bogus charges. Amnesty International has characterized the genocide charges “absurd.” If the government were to release the political prisoners now, it would be an admission that they were held arbitrarily and improperly in the first place. Unlawful detentions are a violation of international human rights standards, and the government is unlikely to admit such culpability.

Second, release of opposition leaders in the foreseeable future would be tantamount to handing the opposition a political and moral victory. The prisoners will emerge from detention triumphantly as heroes who valiantly faced persecution and sacrificed their liberties for the cause of democracy and human rights. They will gain considerable popularity and moral authority among the people, and inspire others to become even more defiant of the government. The government can not take such a risk.

Third, releasing the prisoners now would create the impression that the government is giving in or buckling to U.S. pressure. The government does not want to be seen as weak and irresolute. It wants to maintain the appearance of standing up to U.S. pressure, and even pretend that it does not want or need U.S. aid. The government can not appear to be an American lackey.

Fourth, the government will not agree to the free operation of domestic and international human rights groups with monitoring and civil society training missions. Such organizations will in effect function as watchdogs limiting the government’s scope of action in controlling opposition groups and parties, and in ensuring observance of Ethiopian law and constitutional mandates and compliance with international human rights conventions. The government can not withstand such scrutiny or accountability.

As to Smith’s proposals for economic freedom, particularly private ownership of land, they are unlikely to be accepted by the government. Presumably, the government’s objection to private ownership of land is based on fears of protracted litigation by pre-Derg land owners who may seek to reclaim their land or seek compensation, and/or because the government believes the peasants who currently have possessory use of the land will sell it and move to the city if they had full ownership rights, creating large numbers of displaced and landless peasants in the urban areas. Regardless of the economic merits of these contentions, the government is unlikely to allow private ownership of land because control of the land is its principal means of controlling the economic lifeline of the rural population, and its most effective strategy in disempowering this population and perpetuating its dependency on government handouts.

Changes required in the bill in other areas of government economic policy such as budgeting, taxation, debt management, bank supervision and corruption control are likely to be rejected as well because these issues require implementation of complex regulatory systems and structures. For instance, Smith’s amendment aims to provide policy assistance to address key economic obstacles arising from deficiencies in the system of taxation. This may involve overhaul of the Ethiopian tax system –which by some accounts is antiquated, irrational and afflicted by massive corruption– to achieve substantial efficiency and spur economic growth. It is unlikely that the government will be open to abolition of certain taxes and tariffs that are considered disincentives to foreign investments, or introduce substantial changes in the system of taxation, tariff and custom duties to bring about significant gains for the country’s economy.

Smith’s proposals for technical and economic assistance to enable Ethiopia to participate in the U. S. Millennium Challenge Account, develop the Nile and Awash River resources and undertake other hydroelectric power and irrigation projects to prevent future famines and joint commercial ventures all seem to make eminent good sense. It is unlikely that such massive national projects could be undertaken in the context of an “unfree” economy

Why the Ethiopian Government Will Tacitly Endorse Payne’s Substitute Amendment

It appears Payne’s amendment has received the tacit approval, if not the active support, of the Ethiopian government. Some of the reasons for the government’s acceptance of Payne’s version seem obvious. Manifestly, Payne's version “waters down” Smith's robust provisions, which require significant policy changes and accountability on the part of the Ethiopian government. Under Payne’s version, the government is required to perform window dressing without undertaking any real changes in its policies or practices.

Payne’s amendment may be acceptable to the government because Payne does not really find any significant problems with Zenawi or the current regime, and in fact suggests that Zenawi and the EPDRF are the only viable option for the country today. Payne portrays the current regime as the only hope of political salvation and stability for the country. In the background of Payne’s findings on human rights violations and political repression in Ethiopia stands a shadowy specter of chaos and anarchy, which will consume Ethiopia should Zenawi and the current regime be removed from power. The government may find Payne's apologia a valuable political and ideological tool.

Payne may not be alone in his messianic appraisal of Zenawi and his regime. British Prime Minister Blair handpicked Zenawi for his Commission for Africa because he believed Zenawi was one of the new breed of progressive leaders who will take Africa to new heights. It may be that Payne subscribes to the same view that in the meager field of real leaders and parties on the African continent, Zenawi’s government may be the only hope for Ethiopia. He is wrong.

Dislike and distrust of Ethiopian opposition groups may provide common ground for Payne and the Ethiopian government to oppose Smith's bill. The fact that Payne's amendment castigates and discredits opposition groups should be a welcome development for the government. Payne seems to have had unpleasant personal experiences with some Ethiopian groups in the United States. Judging from his comments at the last full subcommittee hearing, he seemed quite bitter and critical of the tactics used by these groups in advocating their support for Smith's bill.

On the other hand, there is speculation that Payne’s own opposition to Smith’s bill may be based on ideological grounds. It is well known that the Congressional Black Caucus in the U.S. House of Representatives has played and continues to play a critical role in the formulation of U.S. policy in Africa. Payne, as a former chair of the Caucus, may find it difficult to accept the idea of republicans championing the cause of freedom and human rights in a black African country. One hopes such speculation is groundless, for the cause of human rights and justice knows of no racial or ideological boundaries.

There is also other speculation that Payne has grown sympathetic and fond of the current regime because of his long term involvement with them, and wants to protect the regime from critical external scrutiny. Payne's almost romantic fascination with the EPDRF and its efforts in dislodging the Derg regime, and his depiction of the regime as Ethiopia’s salvation should bring considerable delight to Zenawi and company.

Payne has not been vocal in explaining his version of H.R. 4423, nor has he articulated in detail his reasons for opposing Smith’s bill. For those who have had an opportunity to observe him at the hearings or other forums, he appears uncomfortable with the subject matter and overly defensive about his role.

In contrast, Smith has been forthright, passionate and candid in his views and comments on the situation in Ethiopia. His questions at the hearings were incisive, skillful and unrelenting, his observations keen and to the point, and his knowledge of the current situation in Ethiopia prodigious.

POSTSCRIPT

There are many supporters of Smith’s version of H.R. 4423, particularly in the United States. I support Smith’s version because his bill upholds the principles of human rights and civil liberties, and private property ownership rights in Ethiopia. It is my professional creed that every person is entitled to due process of law regardless of the nature of the accusations or the gravity of the alleged crime. This means the accused is presumed to be absolutely innocent until proven guilty, that s/he has the right to counsel paid for by the government if s/he can not afford one, that s/he is entitled to a speedy and public trial and that no person shall be convicted unless there is proof beyond a reasonable doubt. International human rights groups report that the prisoners of conscience in Zenawi's jails are denied these and many other rights. I call upon Zenawi and his government to release all political prisoners and prisoners of conscience in Ethiopia immediately and unconditionally!!!

In the same vein, I believe that private property ownership is a natural right, and that no person shall be deprived of it without due process of law and just compensation. I reject wholly the socialistic principle that only the state can own land. The government must make changes to allow exclusive ownership of land in private hands.

I have defended these principles of civil liberties, human rights and property rights not only in American courtrooms, but also in the court of public opinion. Smith’s bill deserves the support of all who believe in the preservation of civil liberties and human rights, and value the growth of democratic institutions, practices and culture in Ethiopia.

POST-POSTSCRIPT

This author remains perplexed by the singular fact that Representative Payne has not demanded and insisted upon the immediate and unconditional release of opposition leaders and other prisoners of conscience in Ethiopia. Payne knows that there is not a single government or international human rights organization that has recognized the legitimacy of the detention of opposition leaders in the aftermath of the May 15 elections.

Similarly, the stony silence of our brothers and sisters in the Congressional Black Caucus in the dialogue over H.R. 4423 and the detention of opposition leaders has, in the words of Martin Luther King, cast a “shadow of deep disappointment” upon a large segment of the Ethiopian community in the U.S. But we should be careful not to harbor resentment; rather we should reach out to the Caucus members and convert them to the cause of human rights and justice in Ethiopia with Dr. King’s message:

“Oppressed people cannot remain oppressed forever. The yearning for freedom eventually manifests itself, and that is what has happened to the American Negro. Something within has reminded him of his birthright of freedom, and something without has reminded him that it can be gained. The Negro has many pent-up resentments and latent frustrations, and he must release them. So let him march; let him make prayer pilgrimages to the city hall; let him go on freedom rides and try to understand why he must do so. If his repressed emotions are not released in nonviolent ways, they will seek expression through violence; this is not a threat but a fact of history.”

The yearning for freedom that African Americans experienced four decades ago is the same yearning that Ethiopians are experiencing today. Let’s share Dr. King’s message with our brothers and sisters on the Congressional Black Caucus in the spirit of solidarity for justice.

Whether H.R. 4423 will be enacted into law remains to be seen. It is abundantly clear, however, that regardless of the outcome of the bill, Ethiopians in the United States have gained a new consciousness and unflinching resolve to defend and sustain human rights and democracy in their homeland, and participate in its economic development. Those who continue to flagrantly abuse and trample upon the human rights of their citizens should heed the regretful observations of Japanese Admiral Isoroku Yamamoto after the ill-fated attack on Pearl Harbor: “I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve.”

Al Mariam, Ph.D., J.D. (Esq.) is professor of political science and a defense attorney in California.

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[1] Refers to the two versions of H.R. 4423 presented before the House Subcommittee on Africa, Global Human Rights and International Operations [hereinafter “Subcommittee”]: “Amendment in the Nature of a Substitute to HR 4423 Offered by Mr. Smith of New Jersey,” April 6, 2006; and “Amendment in the Nature of a Substitute to HR 4423 Offered by Mr. Payne of New Jersey,” April 6, 2006. Specific references to the two versions in the discussion will be captioned “Smith, sec.__”, and “Payne, sec__.”
[2] “Legislative findings” in a bill often provide insight on the facts and circumstances supporting the proposed legislation and component provisions. Such findings also provide insight into the thought processes of lawmakers (technically referred to as ‘legislative intent’) and are used in judicial interpretation (technically referred to as “statutory construction”) of a bill once it is enacted into law.
[3] See Mark-Up Statement for H.R. 4423, Rep. Christopher H. Smith, Chairman, Subcommittee on Africa, Global Human Rights and International Operations, April 6, 2006. “Mark-Up” refers to the preparation of a bill in final form in a congressional committee before it is reported out for a vote by the legislative body. Smith’s “Mark-Up Statement” was provided before H.R. 4423 was reported out of his Subcommittee to the House Committee on International Relations.

My Country, 'Tis of Thee...

MARTIN LUTHER KING

Part III

“Nonviolence is the answer to the crucial political and moral question of our time -- the need for man to overcome oppression and violence without resorting to violence and oppression,” declared Martin Luther King (MLK) in his Nobel acceptance speech in 1964. A trained theologian and Baptist minister, MLK was ultimately concerned with the issue of how black and white people can live together in America in peace, harmony and interracial unity. As a Christian and minister of the Gospel, he believed “we cannot be truly Christian people so long as we flaunt the central teachings of Jesus: brotherly love and the Golden Rule.”

MLK’s aspirations for racial equality and justice were a natural outgrowth of the long and arduous nonviolent struggle by African Americans and their supporters to end slavery and racial discrimination. The struggle to end slavery in America was essentially a moral one. With the major exception of the American Civil War which ended slavery, there were relatively few slave insurrections and rebellions in colonial or antebellum (pre-Civil War) America. Among the few notable violent slave rebellions include Denmark Vesey’s uprising in South Carolina; and in Virginia, Gabriel’s conspiracy, Nat Turner’s rebellion and white abolitionist John Brown’s raid on the federal armory.

African slaves in America toiled for their masters under the most inhumane conditions, while a few freed slaves and abolitionists agitated to end slavery through moral condemnation and other legal efforts. Some abolitionists sought to repeal or invalidate the Slave Codes (which legally recognized slaves as the personal property of the owner in much the same way as cattle) in the colonial legislatures or courts. Individual slaves who could afford to buy their freedom did so, or were manumitted by their masters.

By the mid-1800s, former slaves were directly challenging slavery, not through armed insurrections, but in the courtrooms asserting constitutional rights of American citizenship. They had a rude awakening when the U.S. Supreme Court delivered its final answer on slavery in the infamous case of Dred Scott v. Sanford (1851): “It is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted the Declaration of Independence.” Once a slave, always a slave! This case set the stage for the American Civil War.

MLK was certainly not the first African American to advocate a nonviolent struggle (in contrast to civil disobedience of unjust laws) against inequality and injustice in America. Notably, Frederick Douglass, a former slave, in the 1840s, influenced by the pacifist ethos of the abolitionist movement, preached widely that slavery could be ended only through moral persuasion. In the early 1900s, Booker T. Washington even argued that Black people should suspend the struggle for equality “political power, insistence on civil rights, and higher education of Negro youth and concentrate on industrial education.” He thought equality would naturally come to blacks once they became economically self-sufficient and commanded the respect of whites. W.E. B. DuBois took the opposite view and advocated the nurturing of a “small but well-educated negro youth” (“Talented Tenth”) to guide blacks in their quest for equality and justice in America.

The National Association for the Advancement of Colored Peoples (N.A.A.C.P.) continued the nonviolent struggle for equality and justice in its many successful legal challenges to discriminatory laws in education, voting and housing under the leadership of attorney Thurgood Marshall, who later became one of the greatest justices to ever sit on the United States Supreme Court. Black leaders such as J. Phillip Randolph in 1941 threatened to mount a peaceful protest march on Washington if racial discrimination was not ended in the defense industry. In response, President Roosevelt issued an executive order banning racial discrimination in defense industries that accepted federal contracts, and establishing the Fair Employment Practices Committee. Randolph called off the march, but in 1948, he again played a critical role in persuading President Truman's to desegregate the armed services. Other Black leaders such as Bayard Rustin and James Farmer, both conscientious objectors and pacifists, founded the Congress of Racial Equality in 1942; and two decades later organized convoys of nonviolent Freedom Riders into the deep South in an effort to desegregate interstate buses and bus terminals.

MLK’s imagination for a nonviolent struggle against segregation and racism was fired by Thoreau’s Essay on Civil Disobedience, which he read in his freshman year in college. He was fascinated by the whole idea of actively refusing to cooperate with a system that inflicted so much suffering on black people; but at the time the idea of civil disobedience as an effective tool for social change seemed impractical to him. He continued his philosophical exploration of nonviolent social change in the theological seminary by studying Gandhi.

By the time of the Montgomery Bus Boycott in 1956, MLK had made an irreversible intellectual commitment to nonviolent resistance as a tactical weapon against segregation and racial discrimination. However, it was his actual engagement in protest and civil disobedience that convinced him of the necessity of nonviolence in social change. He observed that “living through the actual experience of the protest, nonviolence became more than a method to which I gave intellectual assent; it became a commitment to a way of life. Many issues I had not cleared up intellectually concerning nonviolence were now solved in the sphere of practical action.”

MLK’s ideas about nonviolent civil disobedience rested fundamentally on his analysis of the nature of human laws, in contrast to the laws of God. In his Letter from Birmingham Jail, he explained that there were just and unjust laws in society: “A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.”

There are many manifestation of an unjust law; and MLK made a distinction between a law that is unjust on its face, and one that is unjust in its application. A manifestly unjust law is one “that a numerical or power majority group compels a minority group to obey but does not make binding on itself.” A law that imposes segregation on a group of people merely because of their skin color is morally wrong and unjust on its face. A law that is imposed on a minority that was never given a voice -- more accurately, prevented from voting by legal and illegal means-- either in electing the lawmakers or in the formulation of the law is not only unjust, it is also fundamentally undemocratic.

Most importantly, “all segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.” An example of a law that is unjust in application is a city parade permit ordinance, which in itself is not objectionable, but when used systematically to prevent demonstrations against segregation laws, becomes unjust in application.

Disobedience of unjust laws, according to MLK, is a hallmark of Christians who early in their history “were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire.” He even found civil disobedience practiced widely among the American colonists who staged the Boston Tea Party (colonial settler boycott of English tea after Parliament gave an English company monopoly on tea importation into the colonies) just three years before the onset of the American revolution.

By the mid-1950s, MLK had concluded that it took too long to end unjust laws through judicial pronouncements and injunctions, which were routinely ignored and flouted by segregationists. He was deeply offended and saddened by the daily indignities that black people had to endure in public accommodations --white and colored drinking fountains, whites’ only hotels and restaurants and racial epithets. Employment, education, and housing discrimination were inescapable facts of second class citizenship for blacks; and most had been resigned to these facts as immutable aspects of life in white America. He insisted on the moral imperative and duty of citizens to disobey unjust laws.

By the time of the Montgomery Boycott in 1956, MLK had come to the conclusion that change in segregation laws could come only through organized mass action, and not negotiation in the boardroom or litigation in the courtroom. The events leading to the boycott and launching of a mass-based nonviolent civil disobedience movement began in 1955 when Rosa Parks, a seamstress, calmly refused to give up her seat on the bus to a white person as required by the segregation laws of the time. Parks was arrested triggering massive protest in the black community in Montgomery, Alabama. A few days later, MLK reluctantly accepted the presidency of a new organization called the Montgomery Improvement Association, and began coordinating a boycott of the city’s bus system. After a year of sustained boycotts, the city's bus system was successfully desegregated.

The Montgomery boycott experience was instructive to MLK in combining Christian theology with Gandhian civil disobedience. While leading the boycott, MLK often thought about “the Sermon on the Mount (central principles of Christian discipleship) and the Gandhian method of nonviolent resistance. This principle became the guiding light of our movement. Christ furnished the spirit and motivation while Gandhi furnished the method.”

After the Montgomery victory, MLK and other black leaders determined that it was necessary to create an organization that could build upon the gains of the Montgomery boycott and launch a national civil rights movement, resulting in the establishment of the Southern Christian Leadership Conference (SCLC). This organization was intended to serve as a coordinating mechanism for a national mass-based nonviolent direct action campaign against racism and racial discrimination.

In 1959, MLK traveled to India as a guest of Indian Prime Minister Nehru and spent some time there learning about Gandhian principles. The experience reaffirmed his commitment to nonviolent social change. Upon returning to the U.S., he noted similarities in the treatment of the “untouchables” in India and blacks in America. He found it ironic that India’s leaders had accepted integration of “untouchables,” while some major American leaders continued to stridently support racial segregation.

By the early 1960s, MLK found himself not only fighting unjust laws, but also in the middle of two opposing forces in the Black community: one “made up in part of Negroes who, as a result of long years of oppression, are so drained of self-respect and a sense of ‘somebodiness’ that they have adjusted to segregation,” and a second group of black people “who have lost faith in America and absolutely repudiated Christianity, and have concluded that the white man is an incorrigible 'devil'.” MLK “tried to stand between these two forces, saying that we need emulate neither the ‘do-nothingism’ of the complacent nor the hatred and despair of the black nationalist.” He sought to offer a “more excellent way of love and nonviolent protest” that could prevent bloodshed and avoid “a frightening racial nightmare.”

MLK faced a number of organizational and tactical problems in managing a mass-based civil rights movement: mobilizing that part of the black community that had been “drained of self-respect” into joining a mass civil rights movement, mitigating the violent tendencies of black youth and that part of the black community that has “absolutely repudiated” Christianity, particularly black nationalists and separatists, managing the cross pressures applied on him by sympathetic white liberals who wanted him to be more patient in seeking changes, and fending off the personal attacks of FBI’s J. Edgar Hoover.

In weighing his options and in developing a comprehensive strategy for the civil rights movement, MLK drew some fundamental conclusions about the realities in American society. He became convinced that “privileged groups seldom give up their privileges voluntarily nor willingly give freedom to the oppressed.” Black people must, therefore, be insistent in demanding their rights, but in doing so they “must not allow themselves to become bitter or indulge in hate campaigns.” They “must have sense enough and morality enough to cut off the chain of hate” and make love the “center of their lives.” He instructed: “Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that.”

MLK believed it served no purpose to engage in acrimony with such leaders as Malcolm X, who believed that the whole idea of nonviolence and integration was a trick devised by whites to keep blacks in subordinate positions in American society, and urged black people to respond to white oppression “by any means necessary.” MLK understood the rage and impatience of young blacks, and found it counterproductive to engage their leaders in public debates. However, he supported the Student Nonviolent Coordinating Committee (SNCC) as its members engaged in lunch counter sit-ins, took freedom rides into the deep South, and integrated them in the planning of the march on Washington.

MLK determined white liberals were misguided in understanding the urgency of the demands of the Negro because they have never seen “vicious mobs lynch (their) mothers and fathers at will and drown (their) sisters and brothers at whim,” or experienced the feeling of being “smothered in an airtight cage of poverty in the midst of an affluent society.” He cautioned: “The white liberal must rid himself of the notion that there can be a tensionless transition from the old order of injustice to the new order to justice. It is important for the liberal to see that the oppressed person who agitates for his rights is not the creator of tension.”

Throughout the 1960s, MLK applied Gandhi’s strategy in launching successful nonviolent civil disobedience campaigns based on the existence of four preconditions: existence of sufficient facts showing substantial injustice, attempts at genuine negotiations to remedy the injustice, self-purification, and ultimately, direct action. From his jail cell in Birmingham, Alabama in 1963, MLK explained how he applied his four point direct action program in the civil disobedience campaign in that city. Birmingham’s “ugly record of brutality is widely known. Negroes have experienced grossly unjust treatment in the courts. There have been more unsolved bombings of Negro homes and churches in Birmingham than in any other city in the nation.” Black leaders tried unsuccessfully to negotiate with local merchants and government officials to repeal segregation laws and symbols of racial humiliation in public accommodations.

Failing in their efforts to achieve a negotiated settlement, black people in Birmingham had no choice but to prepare for direct action, but before acting, they needed to undergo self-purification by engaging in a “a series of workshops on nonviolence” and asking themselves: “Are (we) able to accept blows without retaliating?” “Are (we) able to endure the ordeal of jail?” Following “self-purification,” they began lunch counter and library sit-ins, marches on City Hall and the county building, and started voter registration drives. They enlisted thousands of high school students to join the demonstrations, and many of them ended up in jail attracting national and international attention. MLK’s efforts in Birmingham transformed American public opinion and heralded the end of the legal system of segregation that had been a fact of life throughout the South since the Civil War.

By the mid-1960s, MLK felt a certain amount of disillusionment with his efforts and the lack of tangible successes the nonviolent civil rights movement had produced for black Americans. He became increasingly critical and condemnatory of American involvement in the Vietnam War. He preached that America should solve its own racial and social problems before sending young Americans, particularly black men, to fight in some distant land. He criticized the FBI for failing to aggressively investigate violations of the rights of black citizens. FBI Director Hoover, stung by the criticism, undertook a personal vendetta against MLK and spared no effort, including use of illegal wiretaps, to discredit him personally and as a public leader. When MLK was chosen as Time Magazine’s “Man of the Year,” Hoover remarked that “they had to dig deep in the garbage to come up with this one.”

MLK was criticized as an extremist for his nonviolent disobedience and advocacy, but he often turned the question on his critics: “So the question is not whether we will be extremists, but what kind of extremists we will be. Are we to be extremists for hate or for love? Will we be extremist for the preservation of injustice or for the extension of justice? Jesus Christ, was an extremist for love, truth and goodness.” He explained that the central purpose of direct action was to produce negotiations with those that have historically refused to discuss the issue. “Nonviolent direct action seeks to create such a crisis and establish such creative tension that a community that has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored.”

Like Gandhi, MLK saw nonviolent resistance not as end in itself but as a tool to “awaken a sense of moral shame in the opponent.” The aim is not “to defeat or humiliate the opponent, but to win his friendship and understanding,” and ultimately spiritual redemption and social reconciliation. The target of nonviolent direct action are the “forces of evil rather than against persons who are caught in those forces.” The struggle against racism and discrimination is to “defeat injustice and not white persons who may happen to be unjust.” MLK believed nonviolent civil disobedience was “not a method for cowards,” and in the spirit of Gandhi, advised that nonviolent civil disobedience should be done “openly, lovingly, and with a willingness to accept the penalty.”

MLK will be remembered as one of the great champions of equality and justice throughout the world. His leadership of the civil rights movement produced two of the most important pieces of civil rights legislation in American history -- the Civil Rights Act of 1964 and the Voting Rights Act of 1965. He brought a renewed sense of dignity and self-assurance for black people in America, and hope to all oppressed peoples throughout the world.

Above of all, MLK was a man of vision and dreams, and saw America as the Promised Land. Were he alive today, I wonder if he would have urged Ethiopians to set aside their ethnic, religious, linguistic, regional and gender differences and “sit down together at the table of brotherhood (and sisterhood) and work together, pray together, struggle together, go to jail together, and stand up for freedom together, knowing that they will be free one day.”

I feel certain that he would have gladly shared his favorite verse, “My Country, ‘Tis of Thee”, to lift our weary souls:

My country,' tis of thee,
sweet land of liberty, of thee I sing;
land where my fathers died,
land of… (our) pride,
from every mountainside let freedom ring!

My native country, thee,
land of the noble free, thy name I love;
I love thy rocks and rills,
thy woods and templed hills;
my heart with rapture thrills, like that above.

Let music swell the breeze,
and ring from all the trees sweet freedom’s song;
let mortal tongues awake;
let all that breathe partake;
let rocks their silence break, the sound prolong.

Our fathers’ God, to thee,
author of liberty, to thee we sing;
long may our land be bright
with freedom’s holy light;
protect us by thy might, great God, our King.

---

Al Mariam, Ph.D., J.D. (Esq.) is professor of political science and a defense attorney in California.

May the Force Be With You...

GHANDI

Part II

“Nonviolence is a weapon of the strong. With the weak, it might easily be hypocrisy…,” declared Ghandi in 1891. Over the succeeding decades, Ghandi proved time and again the irrefutable truth about the efficacy and morality of nonviolent civil disobedience in resisting unjust laws and colonialism, culminating in Indian independence in 1947 in the only successful nonviolent revolution in history.

Gandhi was a lawyer whose conscience was seared by the humiliation and indignities forced upon the Indian population in South Africa in the 1890s. Indians had been brought there to work on English tea and coffee plantations. They were disparagingly called “coolies” by the English colonial settlers. They had no rights, and were prohibited from owning property or traveling between towns, and were required to pay settlement tax. Ghandi himself was a victim of discrimination and humiliation. On various occasions, he was forcibly removed from passenger trains and beaten for refusing to give up his seat to a white person. Once he was ejected from court for failing to take off his turban.

Between 1906 and 1913, the colonial government in South Africa passed laws which required fingerprinting and registration of Indians, banned Indian immigration, imposed an annual tax on former indentured Indian servants, and invalidated all but Christian marriages. Ghandi was outraged by these repressive measures, and successfully organized the Indian community to engage in acts of civil disobedience. Although he was successful in getting these laws repealed, he was jailed repeatedly for his leadership and participation in the civil disobedience campaigns.

Ghandi drew two fundamental lessons from his early experiences in civil disobedience in South Africa: First, as a lawyer, he concluded that his duty was to champion the cause of truth, and not necessarily defend or advance the interests of a client merely because he was paid for his legal services. Second, he determined philosophically that all disputes could be settled if the opposing parties discovered the “truth” about their disagreements. To Ghandi, violence arose from disagreements over the “truth” and “error” in understanding between opponents.

Based on these two lessons, Ghandi developed a comprehensive approach to discovering and applying “truth” to the resolution of disputes. He called his approach “Satyagraha,” which he defined as “truth-force,” “love-force” or “soul-force.” The practitioner of this “force” begins with the assumption that one can only change “an opponent from error by patience and sympathy. And patience means self-suffering. So [Satyagraha] means vindication of truth, not by infliction of suffering on the opponent, but on one’s own self.” The quest for and discovery of the “truth” is not a simple task; it requires time and patience, and admits of no violence, while offering limitless capacity for love.

Ghandi was profoundly influenced by the teachings of Christ, and often cited Jesus' teachings as the supreme example of his “truth/love force.” Jesus taught his followers to “to love their enemies,” and to “turn the right cheek” if struck on the left. As Christians know all too well, Jesus suffered great physical suffering culminating in his crucifixion. He also suffered spiritually by carrying the weight of the sins of mankind. At the last moment of his life, Jesus did not ask to be delivered from death, but rather asked forgiveness for his tormentors: “Father, forgive them, for they know not what they have done.”

Ghandi found it ironic that Christian Europe should conveniently forget the essential message of Christ: “Even in Christian Europe the principle of non-violence is ridiculed. Christians do not understand the message of Jesus. It is necessary to deliver it over again in the way we can understand ... But I must say that so long as we do not accept the principle of loving the enemy, all talk of world brotherhood is an airy nothing.” In a moment of frustration, Ghandi said:“I like your Christ, I do not like your Christians. Your Christians are so unlike your Christ.”

From 1917 until independence, Ghandi continued to use nonviolent civil disobedience to protest unjust colonial laws and actions of the British colonial government. He traveled throughout India learning about the exploitation of workers and peasants, often participating in their meetings and strikes, and invariably being arrested and jailed. In 1919, in an incident prominent in the colonial history of India, a mob killed several Englishmen. In retaliation, the British general ordered his soldiers to fire at a peaceful gathering Indians causing significant casualties. The general at the time observed: “Force is the only thing that an Asiatic has any respect for.” Ghandi was ever more determined to prove that “truth/love force” was far more powerful than the force of an expelled bullet from the barrel of a gun.

Ghandi explained that in committing acts of civil disobedience, the person disobeying the law should be civil and not hurt or inflict suffering on the opponent. His idea of “ahimsa (non-hurting)” made a distinction between resistance of an unjust impersonal political system, and the individuals who happen to be in it and have to defend, serve and support it. He believed that persons who work in unjust systems need to be taught the “truth” so that they can correct the error of their ways, but never be targets of violence. His message to the colonial oppressors of India was simple. “My ambition is no less than to convert the British people through nonviolence, and thus make them see the wrong they have done to India. I do not seek to harm your people.” His perspective could be summarized in the modern cliché “Hate the sin and not the sinner.”

Gandhi continued to organize massive disobedience and non-cooperation campaigns throughout the 1920s, and was arrested and jailed numerous times. When he was put on trial for one of his civil disobedience campaigns in 1922 -- arguably the only judicial trial he ever had despite his numerous arrests and detentions -- he was unrepentant and unapologetic, and ready to practice his “Satyagraha.” He defiantly told the judge: “I do not ask for mercy. I do not plead any extenuating act. I am here, therefore, to invite and cheerfully submit to the highest penalty that can be inflicted upon me for what in law is a deliberate crime and what appears to me to be the highest duty of a citizen.” He served 22 months in prison.

Ghandi resisted popular calls for armed struggle against the British. He believed that he would simply demand independence, and if the British did not grant it, he would declare it himself. He did just that in 1930, and asked people to celebrate independence day. He simultaneously announced an eleven-point program which included land reform, release of political prisoners, and repeal of the infamous salt tax which prohibited Indians from making salt, among others. In his inimitable way, Ghandi notified the British Viceroy that he intended to disobey the salt law, and promptly set off on a long walk to the sea where the salt was being made, joined by thousands along the way. Over 100,000 Indians were imprisoned in the uncontrollable salt law civil disobedience campaign. Unable to contain the massive numbers of protesters, and hoping to blunt the ever growing campaign, the British repealed the salt law. Ghandi’s civil disobedience campaign was triumphant once again!

Ghandi’s problems in the 1930s were not limited to the struggle for independence from colonialism. The recurrent sectarian (religious) conflict between Hindus and Muslims became a source of deep frustration and anxiety for him. His teaching of love and tolerance did not seem to resonate meaningfully among these religious communities. He went on numerous fasts protesting sectarian violence and encouraged others to follow his example. When India formally gained independence on August, 15, 1947, Gandhi was not present in New Delhi at the ceremonies; he was in Calcutta working feverishly to calm sectarian strife and mourning the partition of India. Barely a year and half after independence, the modern architect of nonviolent civil disobedience and champion of the downtrodden was gunned down at a prayer meeting.

Ghandi’s Philosophy in a Nutshell

Ghandi never doubted that his “truth/love force” technique could serve as a tool for human freedom, and “if it became universal, would revolutionize social ideals and do away with despotisms and the ever-growing militarism.” Ghandi was so convinced of the efficacy of his nonviolent methods that he believed even Abyssinia (Ethiopia) could prevail over fascist Italian aggression using his method. He explained that “if every Abyssinian man, woman and child refused cooperation, willing or forced, with the Italians, the aggressor would have to walk over the dead bodies of their victims and to occupy the country without the people.” It was unlikely that most Abyssinians at the time were aware of Ghandi’s prescription of nonviolent civil disobedience, but ultimately the Ethiopians drove out the Italian colonists, proving to the world that a ragtag African army could defeat a mighty European power in the battlefield.

Ghandi’s ideas of “love/truth force” (Satyagraha) and nonviolence (ahisma) are at once simple and complex. The simplicity arises from the fact that the concepts are easily understandable. The complexity arises in application of these ideas to real life situations. It is for that very reason that Ghandi said nonviolence is for the strong, and not the weak. It takes great spiritual, intellectual and physical strength to renounce the use of violence against those who cause us great suffering, not to hate them as evildoers, champion a righteous cause despite adverse consequences and accept unlimited suffering, including the possibility of martyrdom, in the pursuit and defense of truth.

Gandhi’s idea of willingly accepting suffering is not some sort of benign masochism. It is based on his belief of self-purification in which the violence of the perpetrator purges the evil that resides within the victim, which in turn cleanses the conscience of the victimizer. The victim by not responding to the violence committed against him becomes the terminating point for the violence, ending the vicious cycle of attack and counterattack, revenge and retaliation, reprisals and retribution. He observed: “The end of violence is always defeat, but nonviolence is endless and is never defeated.”

It is important to understand that Ghandi’s idea of nonviolence does not only refer to the absence physical violence; it also embraces other more spiritual and psychological manifestations of harm (violence) that arise from such behavior as lying and deceitfulness, hatred, jealousy, greed, anger and impatience.

Ghandi believed that it is futile to try and convert a person to a just cause by violence and coercion; rather one must use persuasion and genuine dialogue to communicate with one’s opponent and reach the humanity buried deep in his heart. Once the truth is awakened in the conscience of the victimizer, the irresistible force of truth will transform and guide him to do the right thing. One must therefore be very careful in using the great spiritual power of nonviolence, and the “slightest use of violence can taint a just cause.”

Ghandi believed that hatred, anger, greed and other negative forces that dwell in the individual are destructive and must be harnessed and transformed into positive energy of love, patience and compassion. If they are not, the individual who responds to evil in anger or hatred becomes consumed by the anger and hatred he bears towards his victimizer losing his spiritual balance and strength. It is only through self-discipline and self-control that the individual accepts the abuse and suffering of his victimizer, and manages to remain above the hatred while developing the capacity for boundless love of his enemy and convert him to the truth.

Gandhi saw the practice of nonviolent civil disobedience as “the inherent right of a citizen. He dare not give it up without ceasing to be a man.” Indeed, the citizen not only has the natural right to civil disobedience but is also under a moral imperative to defy unjust laws, which are in themselves a form of “error” (untruths) requiring correction. When peaceful demands for removal of unjust laws fall on deaf ears, and all peaceful methods have been exhausted, the person at that point acquires the moral right to “break an unjust law and willingly suffer the penalty in order to call attention to the injustice.” However, in breaking the unjust laws, one must avoid all use of violence.

Ghandi always stressed that acts of civil disobedience are not things to be done impulsively. Rather they should “be undertaken only after extensive preparation and as a last resort.” It is not something that is “engineered by only a handful of leaders. It must, rather, arise as a natural response to widespread moral distress,” and should “be attempted with calm deliberation and a clear resolve to benefit others.” The ultimate aim of civil disobedience should be “overcoming evil with good, hatred with love, anger with patience, falsehood with truth, and violence with ahimsa (nonhurting).” In short, nonviolent civil disobedience does not seek the destruction of the opponent, but rather seeks to convert him to truth and the ways of justice.

Ghandi understood that the practice of nonviolent civil disobedience is extremely challenging since one has to undergo intense internal struggle to overcome the negative energies of anger, hatred, greed and so on, and attain a “power which can move the world.” The internal struggle requires not only great spiritual strength, but also training, education and personal development through self-discipline and self-purification. But it is not difficult to pursue: “The beauty and efficacy of Satyagraha are so great and the doctrine so simple that it can be preached even to children.”

Ghandi makes a distinction between civil disobedience and non-cooperation which “involves the withdrawal by individuals of allegiance and support from various public institutions.” Ghandi believed that if people could “no longer in good conscience participate in or support a government that has become oppressive, unjust, and violent,” they have the right not to participate in it or support it. The may demonstrate their non-cooperation by “refusing to pay taxes, participating in government programs, and even refusing to participate in the legislatures. Non-cooperation is less about disobeying the law as much as it is an “effort to purify the soul by disassociating it from evil.”

Ghandi always taught that nonviolent civil disobedience was for the strong and not the weak. A person practicing nonviolent civil disobedience must be “fearless.” He must not be afraid to be arrested, jailed, beaten, tortured or even die for the cause of truth. But fearlessness in the physical sense is not enough. The persons must also have spiritual fearlessness. He must never show anger, animosity, hatred, hostility or disrespect towards an opponent. Ghandi went as far as prescribing against the use of offensive language and curse words against opponents, and protecting them from mob violence if the occasion arose.

Ghandi reminded his followers that the nonviolent civil resister must not only be fearless, he must also not inspire fear in the opponent. If the opponent perceives a threat, not only will he be unable to see and experience the truth that is before him, but he will instinctively react from a position fear, often violently. Therefore, in nonviolent civil disobedience, it is important to avoid arousing fear and striving to reassure the opponent.

Ghandi believed people “are politically weak not because they lack weapons or votes, but because they lack moral and ethical direction.” Satyagraha empowers them to make choices based on morally and ethically defensible truths, and help them nurture leaders and institutions that promote justice, equality and fairness.

Although Ghandi was fully committed to nonviolence, he did believe that in certain extremely narrow circumstances, it may be justified. He explained that “nonviolence is superior to violence, violence, in turn, is superior to passivity in the face of injustice.” Moreover, if the “only choice is between cowardice and violence, I would advise violence....I would rather have India resort to arms in order to defend her honour than that she should, in a cowardly manner, become or remain a helpless witness to her own dishonour. But I believe that non-violence is infinitely superior to violence...”

In practice, Ghandi often notified the colonial authorities that he intended to violate a certain law and fully expected to suffer the consequences of his actions, a fact that was a source of great confusion and frustration for the authorities. He did so because he felt that engaging in civil disobedience by hiding his identity or actions would make him indistinguishable from a common criminal. He would equally frustrate his followers by canceling a civil disobedience campaign because he felt there was potential for violence or the motive for the campaign was not pure.

Gandhi believed in the singular importance of the individual in nonviolent civil disobedience. He explained that in acts of nonviolent civil disobedience, what mattered the most was not the “quantity of people involved” but the quality. He believed a single satyagrahi (civil resister) could serve as an exemplar to the masses and move them to great action. Of course, he was the paragon of the nonviolent civil resister.

Ghandian principles have been applied in diverse societies throughout the world. The most notable recent examples include South Africa’s Truth and Reconciliation Commission, and even Ruwanda’s traditional system of Gacaca (pronounced gachacha) reflects basic Ghandian elements. In both cases, the victims and victimizers are brought into a genuine truth searching process, with the promise of amnesty and forgiveness for victimizers and self-purification for the victims of suffering once the truth is established, giving renewed meaning to the biblical precept: “The truth shall set you free.”

One wonders if Ghandi would have counseled nonviolent civil disobedience to contemporary Ethiopians as he did to the Abyssinians during the Italian occupation. I should like to think, at least, he would say: “May the (Truth) Force be with you!”

---

Al Mariam, Ph.D., J.D. (Esq.) is professor of political science and a defense attorney in California.

Of Civil Disobedience and Nonviolence - Part I

There is rumor of mass civil disobedience in Ethiopia. Over the past month, the U.S. Embassy has been reminding and urging Americans in Ethiopia to “avoid demonstrations intended to be peaceful [which] can turn confrontational.” On April 22, Sudan Tribune online published a press release purportedly issued by Tegbar League Addis Ababa announcing the initiation of a “peaceful civil disobedience campaign against the Meles dictatorship.” The campaign is aimed at pressuring the “government to respect the people’s vote and to demand the release of all political prisoners.” According to the press release, the objective of the concerted nonviolent acts of civil disobedience is to “systematically make the country ungovernable and choke the Meles regime by drying up its sources of revenue.”

In a three-part series, we shall attempt to present an overview of the history, practice and philosophy of civil disobedience and nonviolence, and the unique contributions of Henry David Thoreau, Mahatama Ghandi and Martin Luther King to the global nonviolence movement.

Henry David Thoreau

Is there a moral duty for men and women to nonviolently resist oppressive and unjust laws, and the commands and demands of a despotic government? If there is such a duty, what is the best method of resistance? If civil disobedience and nonviolence are morally justified methods of resistance, what are the foreseeable consequences of such resistance for the individual and society?

Henry David Thoreau, the 19th Century American philosopher, was the first modern thinker to systematically consider the moral dimensions of disobeying unjust laws and oppressive civil government. He concluded that nonviolent civil disobedience was justified, because in a democracy government derives its just powers from the consent of the governed and by delegation from free individuals. If government abuses or perverts the will of the people, Thoreau argued, any individual has the moral right, indeed a higher moral duty, to stand apart from the laws of that government and actively and nonviolently resist it.

Thoreau, an ardent abolitionist and pacifist, condemned the practice of slavery in America, and railed against the federal fugitive laws which allowed slave masters to recapture and repossess slaves who had escaped to the free states. He also opposed the westward territorial expansion of the United States and annexation of what is now western United States by President James Polk in the Mexican-American War (1846-48) under a general doctrine known as “Manifest Destiny,” which was based on a belief that God had given America a mission to expand its borders from “sea to shining sea.”

In his book, On the Duty of Civil Disobedience(1), Thoreau explained his philosophical justifications for civil disobedience and the moral duty of individuals to engage in it to preserve their individual integrity and advance the common good.

Thoreau had little confidence in elected leaders or governmental institutions. He believed that “government is best which governs least,” but such government he did not find in his day. He acknowledged government was necessary, but only in so far as it is the “mode which the people have chosen to execute their will.” He believed the leaders of his day, entrusted with the people’s will, were “liable to abuse and pervert [that will] before the people can act through it.”

The inevitable “perversion and abuse” of the people’s will presented Thoreau two problematic issues in the functioning of democratic government: 1) the tendency for majority rule to degenerate into tyranny of the majority, and 2) the tendency for citizens in a democracy to abdicate their moral responsibilities in favor of blind obedience to the law. Thoreau questioned: “Can there not be a government in which majorities do not virtually decide right and wrong, but conscience? Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience, then?”

For Thoreau, men could be distinguished by their demonstrated abilities to act their conscience and convictions. He felt most citizens -- out of ignorance, indifference, or cowardice-- would rather show blind respect for the law than disobeying it even when they are convinced the law is oppressive and unjust. He believed government had reduced ordinary citizens to “serve not as men, but as machines, with their bodies. They are the standing army, and the militia, jailers, constables.” He felt these citizens had no “moral sense, but they put themselves on a level with wood and earth and stones. Such [men] command no more respect than men of straw or a lump of dirt. They have the same sort of worth only as horses and dogs.”

Thoreau had an equally dim view of the “esteemed good citizens” of society -- legislators, politicians, lawyers, ministers, scholars, businessmen and office-holders -- who have compromised their capacity to make moral distinctions and judgment to advance their self-interest and were “as likely to serve the devil, without intending it, as God.”

Thoreau saw social redemption in a third and much smaller group of citizens -- heroes, patriots, martyrs and reformers -- whose chief distinction is that they “serve the state with their consciences, and necessarily resist it for the most part; and they are commonly treated as enemies by it.”

In his day, Thoreau saw his civil disobedience as a proper response to the evil institution of slavery and the unjust expansionist war in Mexico. He thought the American government of his day was a “disgrace,” and declared: “I cannot for an instant recognize that political organization as my government which is the slave’s government also.” Thoreau refused to accept a government that kept a sixth of the American population in bondage, yet piously claimed to be the land of liberty. He found it necessary to oppose an unjust war against Mexico resulting in the destruction of indigenous populations in a shameless land grab.

Thoreau demonstrated his civil disobedience by becoming part of the antiwar movement of the day and refusing to pay poll tax which he felt was used to support an unjust war and extend slavery into the western territories, which proved true when Texas became a slave state upon joining the union in 1861.

The greatest source of frustration for Thoreau was the inertness of the thousands of his countrymen who were opposed to slavery and the Mexican War, yet did nothing to put an end to them. Thoreau complained that these citizens will “sit down with their hands in their pockets, and say that they know not what to do, and do nothing.... They hesitate, and they regret, and sometimes they petition; but they do nothing in earnest and with effect. They will wait, well disposed, for others to remedy the evil, that they may no longer have it to regret. There are nine hundred and ninety-nine patrons of virtue to one virtuous man; but it is easier to deal with the real possessor of a thing than with the temporary guardian of it.”

The impact of Thoreau’s advocacy of civil disobedience has been wide-ranging, inspiring notably Ghandi to mount a passive resistance independence movement in India and Martin Luther King to lead a nonviolent civil rights movement in the in the United States.

If there is a lesson to be drawn from Thoreau’s philosophical discourses, it is that civil disobedience is both an act of uncommon virtue and valor, and an extraordinary act of patriotism by an individual in a given society. As to the “ninety nine patrons,” they have a choice of not acting, and continuing to practice their well-worn virtues: ignorance in the face of manifest injustice, indifference in the face of suffering, deprivation and oppression, and cowardice in the reflective mirror of their own conscience.
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1 Originally titled Resistance to Civil Government.

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Al Mariam, Ph.D., J.D. (Esq.) is professor of political science and a defense attorney in California.

.... A Friend in Deed

There is much confusion and consternation in the Ethiopian community in North America over the fact that the democrats on the House Subcommittee on Africa, Global Human Rights, and International Operations of the House International Relations Committee voted against a bill in subcommittee titled the “Ethiopian Freedom, Human Rights and Democracy Act (HR 4423), introduced by subcommittee chair Rep. Christopher Smith (R-N.J.). Many Ethiopians are perplexed by the fact that the ranking democrat on the subcommittee, Donald Payne -- an African American supported by other African American representatives on the Subcommittee -- should spearhead the opposition to HR 4423. Perhaps out of a sense misplaced ethnic solidarity, many Ethiopians thought the African American members of the Subcommittee would take the leadership in promoting human rights, the rule of law and democracy in Ethiopia. This turn of events appears to have been an epiphany to many Ethiopians in the U.S. who are now openly questioning the value of their allegiance to the Democratic Party.

HR 4423 is a piece of legislation designed to promote human rights, due process and the rule of law in Ethiopia. It requires the unconditional and immediate release of all political prisoners in Ethiopia and demands legal protections for journalists along with guarantees of free speech rights for Ethiopian citizens, offers support and training for human rights groups working in Ethiopia, and provides for technical assistance to Ethiopian law enforcement authorities to ensure due process of law in the administration of justice, among other things.

Donald Payne offered a substitute amendment which sought to provide assistance to Ethiopia to strengthen local, regional, and national parliaments and government agencies, promote reconciliation efforts between the Government of Ethiopia and opposition political groups, and facilitate participation of opposition groups in the political process. Payne’s failed substitute consisting of lofty platitudes did not call for the immediate release of political prisoners nor did it require compliance with various human rights issues boldly featured in HR 4423.

Part of the confusion and bewilderment among Ethiopians on the voting patterns of the democrats on the subcommittee may stem from a lack of understanding of the history of the Republican Party and their uncritical allegiance -- bordering on blind faith -- to the Democratic Party. Many Ethiopians subscribe to popular misconceptions about the Democratic Party, and know even less about the Republican Party or its history.

Conventional wisdom has it that the Democratic Party in the United States is the defender of human rights, democracy and freedom not only in America but also throughout the world. Democrats are said to be champions of the poor and weak and advocates of civil liberties and social justice.

On the contrary, the Republican Party is often depicted as the party of the “rich,” mostly white and conservative, and unconcerned with the plight of the downtrodden and the dispossessed. Republicans are portrayed as indifferent and insensitive to the cause of human rights and individual liberties.

The historical facts negate the conventional wisdom. When the Republican Party was formed in the early 1850s, it was impelled by two factors: an abolitionist ideology committed to the eradication of the institution of slavery -- an institution that is the very antitheses of human rights-- and economic modernization driven by robust business institutions and a strong national government.

In 1856, the first Republican presidential candidate, John Freemont, adopted the slogan “Free soil, free labor, free speech, free men, Fremont,” which summed up the essential concerns of the early Republicans. When republican Abe Lincoln became president in 1860, he had to decide whether to go to war with his Southern brothers over the issue of slavery. Lincoln understood the grave consequences of liberating the slaves -- the real possibility of disintegration of the Union-- but he affirmed the humanity and human rights of the slaves by boldly issuing the Emancipation Proclamation against weighty advice to the contrary. This decision made Lincoln a reluctant partner in a civil war that was fought in no small part over the question of slavery.

The Republican Party did not stop with a proclamation telling the slaves they were free. After the Civil War, republicans played a pivotal role in amending the U.S. Constitution to abolish slavery altogether and guarantee the former slaves the equal protection of the laws and the right to vote. But they did not stop with constitutional amendments. During Reconstruction -- the period after the Civil War when the defeated southern states were reintegrating into the Union -- the republicans pushed a number of bills in Congress which had a decisive effect on the lives and rights of the newly freed slaves. Progressive republicans known as “radical republicans” advocated for and secured more legal protections for the freed slaves, and Congress passed the Civil Rights Act of 1866 -- overriding a presidential veto for the first time in U.S. history-- recognizing blacks as U.S. citizens and guaranteed them a whole panoply of economic and political rights. In 1869, the first blacks were elected to Congress as members of the Republican Party, and continued to serve as part of the republican delegation until 1935 when the first black Democrat joined them.

Republicans continued to defend human rights and remained in the forefront of the struggle for women’s right to vote, providing the decisive ratification victory in the various states for the 19th Amendment. Montana sent the first woman and republican member of Congress -- Jeanette Rankin who incidentally was the only member of Congress to vote against U.S. involvement in the two world wars-- in 1917. Needless to say, the Democratic Party was conspicuously absent in the long march for human rights, until the civil rights movement in the 1960s when it discovered the electoral value of black voters.

Unlike Jimmy Carter who pronounced the May, 2005 elections in Ethiopia as “fair and free,” Ronald Reagan in 1982 stood in the British Parliament and predicted the “march of freedom and democracy will leave Marxism-Leninism on the ash-heap of history as it has left other tyrannies which stifle the freedom and muzzle the self-expression of the people.” A few years later, he stood at the Brandenburg Gate in West Berlin, and issued his challenge: “General Secretary Gorbachev, if you seek peace, if you seek prosperity for the Soviet Union and Eastern Europe, if you seek liberalization: Come here to this gate! Mr. Gorbachev, open this gate! Mr. Gorbachev, tear down this wall!”

HR 4423 is the legislative equivalent of Reagan’s challenge to Gorbachev to “tear down this wall.” The bill states in its preamble that its purpose is “to encourage and facilitate the consolidation of security, human rights, democracy, and economic freedom in Ethiopia.” It contains a simple message: “Mr. Zenawi, if you seek peace, if you seek prosperity for Ethiopia as you say you do, if you seek liberalization, release the political prisoners you have packed in your jails, respect the rule of law and ensure due process of law in your courts, allow your citizens and journalists to engage free speech and free press. Respect the human rights of your citizens! Regimes planted by bayonets do not take root.”

It is obvious and natural that the Republican Party should reflect a diversity of views and opinions across the ideological spectrum. The important point is that there are republicans such as Chairman Smith, Representatives Royce, Tancredo, Flake, Mark Greene, Boozman and Fortenberry on the Subcommittee, who believe in the original republican principles of “Free soil, free labor, free speech, free men” and women. They have proven their commitment to our cause, the cause of human rights in Ethiopia!

As we ponder HR 4423, we should perform a reality check and see if we have misplaced our trust and relied upon misguided political alliances. We should candidly ask ourselves whether we believe in equal rights, equal justice and equal opportunity for all regardless of race, creed, gender, age or disability, free enterprise and individual initiative, fiscal responsibility and low taxes, democracy, freedom and human rights throughout the world and the principle that the “the best government is that which governs least.” These are core republican principles. It may be that the moment of truth has arrived for many Ethiopians in America to decide one way or the other. As they say, this is the time to fish or cut bait! As we express our gratitude to Chairman Smith and the other republicans on the Subcommittee -- and each one of us who supports HR 4423 must do so by email, letter, fax or telephone-- we should remind ourselves that “a friend in need is a friend indeed!”

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Al Mariam, Ph.D., J.D. (Esq.) is professor of political science and a defense attorney in California.