May 1, 2022
Kalewongel Minale (Ph.D) [1]
The debate over the priorities of justice and stability, spawned by the decision of the government to release of high profile and prominent prisoners including TPLF’s founder and first chairman, Sebehat Nega, has continued unabated. In a recent meeting of the House of People’s Representatives on February 22/2022 of which the Prime Minster appeared to respond to questions, one key opposition figure argued that the release of prisoners constituted a sheer transgression of the constitution and of the law of the country, and demanded for a retraction. Prime Minster Abiy, in his reply, stated that the decision was made in a bid to strengthen the positive gains made, attempt to seek a peaceful settlement to the conflict, avoid a costly protracted war and safeguard the unity and territorial integrity of the country. While freshly going, such debates, however, are far from new in war to peace transition discourses. This piece describes the tensions and tradeoffs between priorities of justice and stability in a bid to shed light on the current debate in Ethiopia.
PUBLIC REACTIONS TO THE RELEASE OF PRISONERS
In January 2022, the government of Ethiopia declared that it would be releasing some high profile prisoners and politicians. The announcement came following Prime minster Abiy’s message of “national reconciliation” on the occasion of Ethiopian Christmas, the 7th of January 2022. Consequently, high level political detainees from Oromia, Amhara and Tigray constituencies, including leading TPLF members were freed.
Public reaction on social media platform which many Ethiopians these days quickly take to air their opinions is one of absolute despair, disbelief, and widespread opposition. Even those activists expected of having a better and informed opinion have failed to provide a nuanced analysis of the issue. Most these reactions have proved to be very simplistic, linear, emotionally charged. Only very few had pondered what this would mean to the ongoing horrors of the war in Northern Ethiopia, Oromia and the search for peace and security. Of all social media reactions explored by the author all but one asked if somebody could provide an analysis of the relationship between “forgiveness” and “Justice”.
These frustrations, of course, are not unfathomable, and sprung out from the legitimate concern for justice to be served. They, specifically, hail from the view that these individuals have committed egregious crimes and gross violations of basic human rights and /or have been found to be responsible for, and thus need prosecuted and punished. This is precisely in the sense of the fundamental conception of justice in its retributive forms. Such retributive concerns, however, are just one side of the justice-stability nexus debate. Pragmatic needs of political stability and peace in many countries on the other hand have forced a painful choice in favor of amnesty, forgiveness and reconciliation.
THE “JUSTICE” VS “STABLITY” DEBATE
The debate over the priorities between justice, accountability, and peace is a long standing one. In most general terms, this has been held between the idealist/legalists, and pragmatists. The recent confusion, debate and discussion over the release of prisoners in Ethiopia brings to spotlight this debate and the very stark choices we face as a society under transition.
LEGALISTS INFAVOR OF PROSECUTIONS
With a risk of some oversimplification, the legalists support prosecution and punishment on the basis of three premises. First, they argue that trials are appropriate mechanisms for dealing with the atrocities and human rights violations committed by perpetrators (Vinjamuri and Snyder, 2004:347). According to them societies have an absolute duty to honor and redeem the suffering of the individual victims on the basis of the fundamental conception of Justice i.e prosecution. Legalists are opposed to other alternative forms of justice such as truth and reconciliations. They say that these strategies represent a compromise of justice because they fail to guarantee the legitimate rights of either victims or perpetrators (Vinjamuri and Snyder, 2004:347).
The deterring effect of Prosecutions in preventing future atrocities and crimes is the second major point legalists stress. Prosecutions are considered as actions that can “deter future lawbreakers and inoculate the public against future temptations” to crimes, human right violations and atrocities (Orientlicher, 1991:2542). Most importantly, legalist-idealists are concerned of the consequences of failure to prosecute and the power of the law being lost due to inaction. Explaining this argument, Orientlicher states the following:
If law is unavailable to punish widespread brutality of the recent past, what lesson can be offered for the future? A complete failure of enforcement vitiates the authority of law itself, sapping its power to deter proscribed conduct. This may be tolerable when the law or the crime is of marginal consequence, but there can be no scope for eviscerating wholesale laws that forbid violence and that have been violated on a massive scale.
Others tend to explain the importance of prosecutions with specific reference to the transition process and search for sustainable peace. According to these scholars, the debate between justice and peace is a “false dichotomy” (Ostojic, 2014:12). The goals of peace and stability are rather “compatible” and “mutually reinforcing”. For them, the pursuit of accountability measures, fosters democratization and peace by reinstating rule of law, discarding the former regime and transforming political identities and relationship to enable some form of reconciliation.
Legalists are thus opposed to any amnesty extended on grounds of some realpolitik considerations and political expediency. They are backward looking and see prosecutions as key for serving the justice needs of the victims as well as furthering the democratization process and the search for peace.
THE CASE AGAINST PROSECUTIONS BY PRAGMATISTS
Pragmatists are political realists who subscribe to the “lesser evil” approach on grounds of real politick considerations. They are not inherently opposed to prosecutions but see the question of prosecution / non- prosecution with particular reference to its consequences and implications to the needs for stability. The chief argument is that trials against politically motivated violence may further undermine the peace and security situation of the country. According to Orientlicher (1991:2544) “fragile democracies may not be able survive the destabilizing effects of politically charged trails”. She goes on and adds on to say that:
Many countries emerging from dictatorship are polarized and unstable, and may be further fractured by prosecutions of the prior regime’s depredations. Under these circumstances, some urge, democratic consolidation can be furthered by implementing a policy of reconciliation embodied in an amnesty law covering past violations.
Pragmatists therefore are not dictated by idealist, rigid and normative justifications for trial and punishments. Rather, they maintain that policy makers should take into account “political considerations” when dealing with and administering justice. Pragmatists suggest the adoption of other alternative trajectories of transitional justice. They are also dismissive of the idealist argument that prosecutions are necessary for peace and democratization. According to them, justice is a function of a viable democracy, and not necessarily a precondition for democracy.
In a nutshell, pragmatists forgo prosecutions in a possible trade off to measures aimed at peacemaking and consolidating processes of democratic transition. In the African continent, nobody has been a loud proponent of the pragmatic approach other than Professor Mahmoud Mamdani of the Makerare Institute of Social Studies. In his article on the New York Times (together with former South African President Thabo Mbeku), Mamdani dismissed the ability of courts to end wars in Africa and suggested other alternative approaches to justice to deal with cases of politically motivated violence. Besides, in one of his lectures at Kenyatta University, Mamdani argued for the need to differentiate between criminal violence and political violence which unlike the former has a constituency. According to Mamdani, political violence is not just driven by perpetrators, but issues and any attempt to prosecute the perpetrator is likely to exacerbate crisis rather than resolve.
Mamdani also argues about the difficulty of finding a conflict settlement when each of the parities view the other as a criminal to be apprehended and jailed. Referring to the experience of South Africa, he writes,
If South Africa is a model for solving intractable conflicts, it is an argument for moving from the best to the second best alternative. That second best alternative was political reform. The quest for reform, for an alternative short of victory, led to the realization that if you threaten to put the leadership from either side in the dock they will have no interest in reform. This change in perspective led to a shift, away from criminalizing or demonizing the other side to treating it as a political adversary.
Reframing of the Debate in Ethiopia and alternatives to Retributive Justice
Regardless of some of the progresses already made, the warring parties in Ethiopia has continued to undertake military operations justifying these on ground of vengeance to the lives lost and goals of neutralizing the enemy. Every other loss of life, however, is far too many. It is foolhardy to continue to justify the ongoing cycle of violence with reference to lives already lost and idealistic goal of fully eliminating the enemy – a goal which has proved elusive so to date. Such an approach will keep us in the loophole of an unnecessary loss of life, mayhem, destruction of property and mass suffering and protracted conflict.
It is important that efforts are made to bring an end to the conflict apart from the battle field with gestures and practical measures of peace. The release of prisoners is predicated on considerations of attaining some positive energy towards a lull to the widespread insecurity and bloody conflict that has engulfed the country. Government officials have described it as a vital gesture of peace and move to buy-in support from the populace in Tigray. Moreover, the significance of the decision in denouncing TPLF’s narrative and propaganda campaign that the federal government is after the annihilation and extermination of the people of Tigray is also high.
The reactions to the release of political prisoners’ have been logically inconsistent. Many have opposed it solely on the basis of an argument predicated on retributive justice. Others questioned the very timing of the decision while some others tried to forge a dichotomy or tri-dichotomy between those inmates released. Still others describe it alleging some form of conspiracy against the Amhara people who have endured a lot as a result of the invasion by TPLF marauders.
This debate, however, should also be framed in terms of the actual relevance of the decision in finding a peaceful settlement to the ongoing war and insecurity and putting a halt to the daily carnage, destruction and loss of life. Only few have seen the merit of the decision in this regard. It is imperative that the decision is also scrutinized in terms of its practical relevance in ending the war and improving the security situation in the country. In this regard, the widespread opposition to the decision by the public could in fact be interpreted in terms of its positive force building pressure on TPLF, widely known for its allergy to any persuasion and peaceful resolution of conflict and compromise. To break away from its embedded and deep seated zero sum political culture, TPLF needs to be put on spotlight to seriously entertain and consider a compromise and peaceful settlement of the conflict.
We also know that retributive justice is not the only form of transitional justice and the discussion in Ethiopia should be open to the consideration and application of others forms of justice which has been effectively utilized elsewhere. Mamdani speaks about survivors Justice. This is a form of restorative justice, and compared to retributive justice survivor’s justice shifts the emphasis from the perpetrators to the victims. It focuses on strategies of reconciliation, rehabilitation and healing the wounds of the victims and reconstructing their future. In short, a broader debate on the issue is very important. This won’t be the last time we would be facing this conundrum as a society under conflict or emerging out of conflict.
[1] Assistant Professor and Consultant in Peacebuilding.
REFERENCES
Mbeki, T and Mamdani, M (2014) “Courts Can’t End Civil Wars”. The New York Times, available at https://www.nytimes.com/2014/02/06/opinion/courts-cant-end-civil-wars.html Accessed on 3/20/2022.
Orientlicher, DF. 1991. Settling accounts: the duty to prosecute human rights violations of a prior regime. Yale Law J.100(8):2537–615
Ostojic, Mladen (2014) Reassessing the “peace” and “Justice’ Tradeoff .International Justice And Democratic Stability in Post Milosevic Serbia. Revue d’études comparatives Est-Ouest Vol. 45, No. 3/4, La fabrique européenne des politiques de réconciliation (SEPTEMBRE-DÉCEMBRE 2014), pp. 107-148 (42 pages).
Vinjamuri, Land Snyder, J (2004) Advocacy and scholarship in the study of international war crime tribunals and transitional justice. Annual Review of Political Science, (2004), 345-362, 7