There is nothing to celebrate about the injunction against the ETV documentary

Jawar Mohammed

Lighten up people!!

There is nothing to celebrate about the injunction against the ETV documentary. That is not going to change the reality inside the country’s torture chambers-some of them inherited from the Dergue and some of them new. And nothing will change inside the country’s courts- one of the most important repressive tools in the arsenal of the Ethiopian state. It is probably tempting to think that the Court’s decision to impose an injunction against this intensely expected melodramatic documentary suggests that the court system is not fully integrated. Reaching decisions that are sometimes painful to the system/government is a necessary precondition of strategies of litigation. As technologies of repression, courts cannot manufacture legitimacy without a veneer of neutrality. To the extent possible, the court adheres to the rules and court rituals as rigorously as possible. My favourite author says something like this: “The more elaborate the paraphernalia of authentication, the greater the chance of vicarious popular participation in its conundrums”. In situations like today, there is simply no other way. There is no room for flexibility, no space of manoeuvre. And who is the winner in this game? The system. Period. With or without disguise, one way or another, we have been told these lies several times in the past. The only difference is that the repression is relocated from one group to another- a key strategy of survival for a regime whose life depends on a constant production of crisis. EPRDF sustains itself on crisis. Without continued crisis, EPRDF will sustain a blood clot.

This does not change anything on the ground lest legitimize the regime. The lawyers are doing what they must- offering professional help for their client. They might genuinely believe that this will help protect the defendant’s right to presumption of innocence and justice. But government leaders have been on the record accusing persons that have not yet been convicted.
This does not change anything because the state will still use the confessions tortured out of your committees as evidence in the court of law. The regime will continue to try defendants without the gesture of a trial worthy of its names. It will use its right to determine who lives and who must die to crush their spirit and compel them to submit, as it did with those who come before these committees. The precedent is very clear. People will be accused of the ‘ultimate’ crime, the court will reduce it to ‘high’ crimes, in the process secures some semblance of independence and neutrality, evidence will be manufactured, sometimes extorted through torture (a practice as routine as a “shay buna inibal?”), defendants will be denied the right to sometimes even see let alone contest the evidence, the court will convict, and you will be offered a pardon document that confirms everything the government wanted. In the end, the court will reconstruct reality in the image of the regime. Even if we recognize the process for the sham that it is, there is something about courts that makes them so valuable in technologies of oppression.

In Stalinist USSR, Under the Nazi regime, and in Apartheid South Africa, courts have played an indispensable role in preserving and consolidating those pernicious systems. I am not trying to compare this system for doing so will require some research. But based on a few observations, I can say that Apartheid courts were much more judicial and judicious than their Ethiopian counterparts. In his autobiography, Long Walk to Freedom, Mandela explains the legalistic but yet biopolitically oppressive nature of the white South African society. Authoritarian, racist, undemocratic but yet unusually legalistic! The courts unabashedly enforced racial inequality but this is not tantamount to arbitrary abrogation of constitutional rights. In his autobiography, he writes, “The court system, however, was, perhaps the only place in South Africa where an African could possibly receive a fair hearing and where the rule of law might still apply.”

On the contrary, Ethiopia is a nation constitutionally committed to a multi-ethnic democratic federalism. Its constitution accords human and democratic rights an indispensable place in the constitutional structure. The human rights section of the Constitution is almost a verbatim copy of international human rights instruments. But yet, its judiciary is lacks the perks of independence and neutrality that Apartheid judges enjoyed- i.e., judges legally required to enforce racial inequality. I wonder if there is a single person among those who had the misfortune of facing Ethiopian courts who would give the same testimony as Nelson Mandela did. I will not prejudge history but I highly doubt it.

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UPDATE

In my earlier reflection on the ruling of the injunction issued against ETV’s documentary film, I have expressed concerns about the role of Ethiopian courts as technologies at the disposal of a pernicious oppressive regime. One of the most salient features of a judicial system integrated into the administrative agencies of the state is complete elimination of core normative distinction between administration and adjudication. Within less than two hours of the ruling by a trial chamber, we heard that the President of the High Court has nullified the court’s injunction. This is the penultimate elimination of those distinctions between law, and politics, guilt and innocence, truth and falsehoods that are distinctive feature of authoritarian systems. The trial chamber’s action in issuing an injunction against the broadcasting of a hostile and prejudicial documentary concerning a matter under consideration in court is a judicial act.

The decision of the president to nullify the trial chamber’s ruling as a matter of administrative decision is an administrative act. To nullify a judicial decision with an administrative action is indicative of the kind of rotten, ruined, and ruinous justice administrated by these courts. Here you have the most authentic example of a system that uses the sovereignty of the state, including its court system, as tactical instruments in the elimination of the political foe. This is no justice, it is a railroad operation par excellence. These defendants have already been convicted. The verdict is predetermined. They are not expecting justice, but waiting to be railroaded.