Coup in Eritrea
Posted 20th April 2008
By Simon M. Weldehaimanot
Unusual it may seem for an opener, allow me to guess the instant impression the title I have chosen for this article gives to an Eritrean reader. One will definitely read it with eagerness to get to the lines that tell coup has taken place in
But I guarantee you that military takeover have already taken place in
Most imminent scholars of international law have convincingly argued that there is a right to democratic governance within the domain of international law.[i] They have also outlined the parameters of the right.[ii] Unusual in the trend of the making of international law in which Africa has been largely the subject than a contributor, African leaders have, after long hesitation, strongly cemented the right to democratic governance in Africa more than in any part of the world not only by their paper declarations – law of treaties[iii] – but also by their practice – African customary international law – as Levitt called it.[iv] The right to democratic governance thus now has more strong hold in
Seen inline to this right, PIA now finds himself as coup maker who is in power by unconstitutional means unequivocally prohibited by the African Charter on Democracy, Elections and Governance (the African Charter)[v] and whole set of international and regional human rights instruments many of which Eritrea has ratified. The source of these instruments is largely the world population’s desire for justice. As I have tried to show below, revolutions and social movements constantly push a desire that societies value most into the book of rights; and once the desire is successfully crowned as a right we start enjoying it. Thus, it is the world’s order that we rely on those instruments as the ultimate sources of the rights we have. As such, the international and regional covenants of rights should inform the Eritrean opposition’s advocacy strategy directed towards the African Union and other actors with the aim of forcing PIA to abide by law. It is hoped that this article will give clue. This is therefore an external version of the estoppel discourse I recently outlined. Gratitude is due to the anonymous reviewer (commentator) who drew my attention to the relevance of the African Charter to the political situation in
Evolution: how ‘non-rights’ become rights
In 1977 Karel Vasak introduced the concept of generations into the corpus of human rights discourse; and classified the existing rights in to three generations. The first, he called them liberté (liberty), which applies to civil and political rights; the second, he termed them egalité (equality), which relates to economic, social, and cultural rights; and the third, he termed fraternité (solidarity), referring to those rights that are held by the collectives, in other words, group or peoples’ rights.[vi] According to Vasak each generation was accepted before the other and each is presumably more developed and sophisticated than its predecessor; and his discourse does help to understand how ‘non-rights’ graduate to rights. Professor Umozurike agrees and clarifies the generational discourse arguing that:[vii]
It must not, for instance, be understood to mean that the earlier generations of rights fall into disuse giving place to a later generation, but that the earlier ones were recognized first, in point of time, before the later ones.
Udombana has offered definition of each generation.[viii] According to him the first-generation rights (civil and political rights) are negative rights, or ‘immunity claims’ by citizens toward the State, in the sense that they limit the power of a government to protect peoples’ rights against its power. They relate to the sanctity of the individual and his rights within the socio-political milieu in which he is located. They imply that no government or society should act against individuals in certain ways that would deprive them of inherent political or personal rights, such as the rights to life, liberty, and security of person, freedom of speech, press, assembly, and religion. The second-generation rights are claims to social equality, consisting of economic, social, and cultural rights. They are positive rights in that they enhance the power of the government to do something for the person, to enable her or him in some way. They display a highly social orientation in the sense that they evolve to temper the equally highly individualistic orientation of first-generation rights. The third-generation rights include the rights of peoples and groups which include rights to self-determination and to disposal of natural wealth, the right to development, peace, environment, ownership of the common heritage of mankind, and perhaps the right to democratic governance in consolidated form.
Vasak’s concept, although subjected to stiff attack, offers significant indication as to how rights evolve. Apparently, the global socio-political orientation is evolving towards increasingly human rights-respecting era. Hence the list of rights is expanding. There is constant push to convert certain societal needs or desires to rights and thus the ongoing attempts ‘to convert needs into rights’, as Udombana put it, ‘is the hallmark of contemporary human rights’.[ix]
On the other hand, scholars and human right students are concerned that the generational proliferation of rights tends to expand the scope of human rights and such expansion may sacrifice quality at the altar of quantity. The current pace of inclusion of all types of endeavors as ‘human rights’, according to this view, may serve to dilute the concept and render the enforcement of rights difficult. In a cynical portrait of the attempt to convert every human desire, need, or want into human rights, Milan Kundera, for example, offered interesting remark:[x]
The world has become man’s right and everything in it has become a right: the desire for love the right to love, the desire for rest the right to rest, the desire for friendship the right to friendship, the desire to exceed the speed limit the right to exceed the speed limit, the desire for happiness the right to happiness, the desire to publish a book the right to publish a book, the desire to shout in the street in the middle of the night the right to shout in the street.
In the context of the current debate on the rights to homosexuality, the same concern is echoed from many commentators. A classmate also tried to sponsor a right to beer! If every desire could be turned to a right, those who desire to oppress, suppress, muzzle, kill, harass, intimidate, discriminate, dominate … will unfortunately coin their desires as rights. There is, thus, a call for some quality control of human rights, an identification of core human rights, whose respect by all States and humans should be mandatory, giving rise both to international concern and direct action.[xi]
To the international lawyer, a mere societal desire for something does not automatically turn the ‘something’ to a right. How does a desire or a need graduate into a right; and whether or not the right to democratic governance has matured to the level of a right is thus important point to merit brief explanation. In this regard, Professor Heyns offered clue in his ‘struggle approach to human rights’ philosophical discussion in which he hinted that those who push a desire to be a right, do it by a struggle, and eventually make it when they win over their opponents.[xii] A new norm needs to fight for place in the community of already accepted norms in different ways. Some years back, blacks had fewer rights than they have now; women had fewer rights than now … Blacks fought for their rights, women are continuously fighting, gays and lesbians are fighting to ‘introduce’ rights that seem new and strange to others. In fact the struggle does not end at turning a desire to a right; the right needs to be implemented and often implementation requires price.
Thus, Heyns’ contention seems to have strong validity. Agreeably, Baxi sets out tests of quality for the enunciation or ‘production’ of new human rights based on the following:[xiii] . . .
(2) clarity and communicability (or translatability) of textual outcomes . . . levels of consensus reached (on individual formulations and the text as a whole) . . .
(3) consensus levels measured, partly, by the extent of reservations, derogations, declarations and statements of understanding when right enunciation takes the form of an international treaty and by patterns of voting power when it assumes forms of declarations or resolutions) . . .
(4) specificity or diffuseness of definitions of violative behaviours and levels of accountability monitoring or implementation . . .
(5) mechanisms or processes for promotion and protection …
Thus it can be concluded that we are free to fight to force the desires we value most to get accepted by those opponents – put them in books or cement them as custom – and start enjoying them after they are reduced to documents or uncontestable custom.
Do we have a right to democratic governance and what is this right?
Applying these above standards, a right to democratic governance has certainly emerged. Writing in 1992, immediately after the end of the Cold War, Professor Thomas M. Franck is generally considered as the first to announce the existence of the right.[xiv] He anchored his theory on two notions: the idea that governments derive their just powers from the consent of the governed and the idea that the international legitimacy of a State requires acknowledgement by mankind. He thus summarized his contention:[xv]
The entitlement to democracy in international law has gone through both a normative and a customary evolution. It has evolved both as a system of rules and in the practice of states and organizations. This evolution has occurred in three phases. First came the normative entitlement to self-determination. Then came the normative entitlement to free expression as a human right. Now see the emergence of a normative entitlement to a participatory electoral process. The democratic entitlement, despite its newness, already enjoys a high degree of legitimacy, derived both from various texts and from the practice of global and regional organizations, supplemented by that of a significant number of nongovernmental organizations. These texts and practices have attained a surprising degree of specificity, given the newness of the entitlement and especially of its requirement for free and open elections.
Since the fall of the Cold War, there have been waves of democratization that swept many parts of the world and particularly
Article 1(2) of the UN Charter proclaims ‘the principle of equal rights and self-determination of peoples’. The right to self-determination has evolved into a more general notion of internationally validated political consultation, one that is beginning to be applied even to independent (postcolonial) States in the form of governance based on the wishes of the people. It enjoys primacy in international law, acquiring the status of jus cogens – that is, a peremptory norm of international law from which no derogation is permitted.
The Universal Declaration of Human Rights, although not a treaty, is nonetheless an international document of high persuasion which many scholars confidently argued that it represents international custom.[xviii] Article 21(1) of the Universal Declaration provides for the right to democratic governance in these words: ‘Everyone has the right to take part in the government of his country, directly or through freely chosen representatives’. More importantly, article 21(3) states that:
The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Under article 1(1), the International Covenant on Civil and Political Rights (ICCPR) which
The African Charter on Human and Peoples’ Rights, which
The Addis Ababa Declaration adopted in 1990; the Algiers Declaration adopted in 1991 and the Lome Declaration adopted in 2000 – all of them declare commitment to democracy. Importantly, the Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government (adopted in 2000) proclaims a continent-wide commitment to democracy and attempts to give substance to that commitment by setting out ‘common values and principles’ for democratic governance. It firmly rejects unconstitutional change in government as ‘an unacceptable and anachronistic’. The Declaration articulated certain common values and principles for democratic governance in
These are: (i) adoption of a democratic Constitution: its preparation, content and method of revision should be in conformity with generally acceptable principles of democracy; (ii) respect for the Constitution and adherence to the provisions of the law and other legislative enactments adopted by Parliament; (iii) separation of powers and independence of the judiciary; (iv) promotion of political pluralism or any other form of participatory democracy and the role of the African civil society, including enhancing and ensuring gender balance in the political process; (v) the principle of democratic change and recognition of a role for the opposition; (vi) organization of free and regular elections, in conformity with existing texts; (vii) guarantee of freedom of expression and freedom of the press, including guaranteeing access to the media for all political stake-holders; (viii) constitutional recognition of fundamental rights and freedoms (ix) guarantee and promotion of human rights.
Credit to them, African leaders defined the situations that constitute an unconstitutional change of government which included refusal by an incumbent government to relinquish power to the winning party after free, fair, and regular elections. Refusal to carry out elections at all is even nastiest sin.[xx]
In 2003 Udombana noted that ‘the norms of democratic governance in
It should be noted that the development of the right to democratic governance in Africa is more than a paper declaration; and has been supported by concrete examples which Levitt argued amounts to African customary law of ‘pro-democratic intervention’ in case established democracy is reversed by unconstitutional means.[xxiii] Levitt’s argument is framed based on practical examination of the pro-democratic interventions by the Economic Community of West African States (ECOWAS) in Liberia, Sierra Leone, Guinea-Bissau, Guinea, Côte d’ Ivoire, and Togo; the Mission for the Implementation of the Bangui Agreement (MISAB) in the Central African Republic; Southern African Development Community (SADC) operation in Lesotho; and African Union’s action in São Tomé and Príncipe. It is also based on the binding treaty law and security mechanisms of the AU, ECOWAS, and SADC that gave impetus to these interventions.[xxiv]
Contrarian or PIA’s view to the emergence of the right to democratic governance
Although not a challenger, a slightly contrarian view against the strong argument that a right to democratic governance exists has been echoed by some writers. Same Varayudej thus argued:[xxv]
While international law appears to have embraced the idea of democracy, it has not yet articulated a detailed normative framework or an extensive body of practical rules defining the meaning of democracy. A major problem with the notion of democratic governance is that no legal definition of ‘democracy’ has been generally agreed upon in State practice or in any international document. This leaves it subject to a variety of interpretations, depending upon the persons providing the definition and the context in which they are speaking. This makes democracy an “essentially contested concept.”
Varayudej’s assertion comes very handy to dictators such PIA who often argues that he knew democracy before it became a fashion and he has his own ‘top quality’ version by which he is governing Eritrea. Whereas Varayudej’s assertion had some validity,[xxvi] it is not however controversial that there is something called ‘democracy’ that appeals to the man on the street or the farming ground, no matter where he is. Thus his challengers rely on minimalist definition – the will of the governed – which article 21(3) of the Universal Declaration on Human Rights provides. As Saleh stated, ‘democracy’ might not appeal to the
A bold challenge to Varayudejs assertion is offered by Ezeta who not only asserted that there is definitive notion of democratic governance but also reduced the right to democracy into 9 articles in the form of a convention to which he urged the world to adhere.[xxvii] Article 1 of Ezeta’s Convention thus in part provides:
(1) All human beings have a right to democratic governance which shall consist of: (a) a political system based on the free will of the people expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be by secret vote or by equivalent free voting procedures. (b) a political system based on constitutional guarantees and institutional framework for the realization of the fundamental human rights …
Indeed as shown above, although recent (2006), Varayudej’s assertion has been taken by developments particularly when it applies to
The African Charter on Democracy, Elections and Governance
As clearly stated in the preamble of the Charter, the AU adopted the Charter, among other reasons, (1) inspired by the objectives and principles enshrined in its Constitutive Act which emphasizes the significance of good governance, popular participation, the rule of law and human rights; (2) committed to promote the universal values and principles of democracy, good governance, human rights and the right to development; (3) seeking to entrench in Africa a political culture of change of power based on the holding of regular, free, fair and transparent elections and (4) concerned about the unconstitutional changes of governments that are one of the essential causes of insecurity, instability and violent conflict in Africa.
Thus, the objectives of the Charter as outlined in article 2 include (1) promotion of adherence to the universal values and principles of democracy and respect for human rights and enhancement of adherence to the principle of the rule of law premised upon the respect for, and the supremacy of the Constitution and constitutional order; (2) promotion of the holding of regular free and fair elections to institutionalize legitimate authority of representative government as well as democratic change of governments and (3) prohibition, rejection and condemnation of unconstitutional change of government in any member State as a serious threat to stability, peace, security and development.
Respect for human rights and democratic principles, access to and exercise of state power in accordance with a constitution and the principle of the rule of law; promotion of a system of government that is representative; holding of regular, transparent, free and fair elections; condemnation and total rejection of unconstitutional changes of government and strengthening political pluralism and recognizing the role, rights and responsibilities of legally constituted political parties, including opposition political parties, which should be given a status under national law are the key principles outlined under article 3 on the basis of which African States have committed themselves to implement the Charter.
As one of the many enforcement mechanisms, under article 14
Specifically, in accordance with article 25(1) of the Charter, when the Peace and Security Council observes that there has been an unconstitutional change of government in a member State, and that diplomatic initiatives have failed, it shall suspend the said State from the exercise of its right to participate in the activities of the Union in accordance with the provisions of articles 30 of the Constitutive Act and 7(g) of the Protocol. The suspension shall take effect immediately. In addition article 25(7) of the Charter empowers the Assembly of Heads of States and Governments to decide to apply other forms of sanctions on perpetrators of unconstitutional change of government including punitive economic measures. Clearly, as the practice of
There could be different theories as to when PIA launched coup in
Although inversely, PIA’s reluctance to end its transitional existence and open the country for constitutional democracy, fits into the definition of unconstitutional change of government provided under article 23(4) of the African Charter. PIA’s defiance demonstrates a typical case of illegal holding of power in clear contempt of the Constitution ratified ‘after active popular participation’ which PIA could be barred from denying. Now the opposition divides and some are saying ‘to hell with this Constitution – it is not the product of democratic and popular participation’. If this contention is partially true, it is not strategic political option.
PIA must have personally endorsed the Constitution three times – twice in his capacity as a Chairman of the National Assembly and ones as a member of the Constituent Assembly. Or was he a dissenter? So he has endorsed that in the State of Eritrea, sovereign power is vested in the people, and shall be exercised pursuant to the provisions of the Constitution; he has indorsed that the Constitution is a covenant between the Eritrean public and governments like his which must be formed by free-will of Eritreans and he has endorsed that the Constitution enunciates the principles on which the state is based and by which it shall be guided and determines the organization and operation of government and that it is the source of government legitimacy – any thing against it being null and void.
It is true that promises and endorsements can be betrayed as PIA has done; but the word and act of betrayal is strong enough to ignite people. We are lacking few but decisive icons that could ignite the Eritrean populace, at least the diaspora, to make a revolution or a civil-rights movement properly so-called. According to my previous estoppel discourse, the Constitution can be one. Shghey habuni… shghey habuni … PIA’s co-equals have illegalized what PIA has done. Thus, according to this version of my estoppel discourse, we can use the Constitution ‘to place PIA in a political conundrum’, if I may use a friend’s expression. From the public’s perspective, the Constitution is written to govern. Nevertheless, it has been 10 yeas – unimplemented and with no forthcoming timeframe. Two rounds of elections for the national legislature should have been done; the national legislature in return should have elected President of the State of Eritrea twice; and PIA should have been turned Mandela or Bush for good– retired and chairing some sort of human right committee. Without risking himself to a scenario of adghi zeyblu beQli ynEQ, PIA could have been now in a position to advise his friend – PMMZ – not to wriggle elections.
PIA’s failure, or rather defiance to implement the Constitution makes application of African Charter easier. Professor Bereket has put it eloquently:[xxix]
There can be no excuse for such failure much as the government and its apologists have tried to explain. To neglect a ratified Constitution is tantamount to negating the will of the people whose delegates ratified the Constitution.
The unimplemented Constitution is therefore one main tool that the
Mugabe is unwelcome in
Dr Jendayi Frazer too is not happy with
BTsfrna and foreign intervention
Recently, I noted that the ‘bTsfrna’ doctrine is embraced not only by PIA’s government but also by some Eritrean opposition parties, media outlets and individuals – count me with the last group. When it applies to regime change, the bTsfrna doctrine argues that no body should fight on behalf of Eritreans the fight Eritreans need to fight to remove or reform PIA. In the context of alleged meddling of PMMZ’s government in the affairs of the Eritrean opposition parties making the EDA, for some bTsfrna has become emotionally strong expression of nationalism.
I subscribe to bTsfrna in a different context which Yoel Alem could explain better and Dawit Maekele has just explained it. I think Saleh Johar’s ‘the second liberation’ also fits into Dawit’s. Indeed, there will be nothing as good to see as huge Eritrean mobs storming Eritrean and western capitals demanding the restoration of the entire package of rule of law, declaration of rights and freedoms, demanding the unconditional release of political prisoners, call for reconciliations … After all, our right to democratic governance is severely violated. However, to chant bTsfrna and then hide your nails or keep them well painted is duplicity which Reisman lamented about:[xxxi]
The tendency … to see the violation of the right to democratic government … as lamentable, of course, but somehow less urgent than other human rights violations, is a serious error. It should not take a great deal of imagination to grasp what an awful violation of the integrity of the self it is when men with guns … dismiss your law, kill and destroy wantonly and control you and those you love by intimidation and terror. When that happens, all the other human rights that depend on the lawful institutions of government become matters for the discretion of the dictators. And when that happens, those rights cease.
How about asking for help, if we are legally and morally entitled to it? Would it be incompatible with bTsfrna? Nothing comes for free, immediately bubbles in the mind of the proponents of bTsfrna. Valid may be particularly when it comes to Dr. Jendayi Frazer and PMMZ. But how about going for mutualism? How about doing exactly what Mandela did – touring
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