THE QUEST FOR JUSTICE: PAST, PRESENT AND FUTURE

(A Paper Prepared for the International Conference On Ethiopia:

Scope for Partnership, Justice, Peace and Development.)

02 - 04 August 2001
Centre for Civic Action and ECB,
London, United Kingdom

by Girma Ejere, PhD

1. Introduction

1.1 Ethiopia is one of the oldest polities in human history that has been able to sustain survival and continuity against all odds. Due to continuous resistance against foreign invaders, its history is full of unparalleled heroism and colossal sacrifice.

However, due to internal conflicts and civil unrests, destruction and death have overshadowed all that has been achieved in the struggle against foreign aggressions. As a result, destruction and discontinuity have become the only continuity that renders its unique history. In this regard, the demand for justice has been the élan vital that has perpetuated the continuum of destruction, whether triggered by external incursion or instigated by internal conflicts. Sadly enough, instead of uniting our society, the definition and practice of justice have remained a divisive force and a bone of contention among interest groups and stakeholders in our society.

Today, when humanism has become a universal value and human rights have taken global dimensions, the Ethiopian soul is still crying for basic rights and natural justice. At present, the call for justice is reverberating in every household and in every Ethiopian mind due to the cabaret of bloodshed that has littered our recent history. All who were/are involved in this tragedy, either as victims or as offenders or as spectators would need the truth and justice. Once truth has been established and justice is done, then, the healing process and national reconciliation can take a full stride.

• Flag up conventional definitions of the subject matter - justice
  
• Explore practice of justice, with a specific focus on transitional societies that have gone through internal conflicts and civil wars.
  
• Examine the DNA or the main problem of justice in the Ethiopian society
  
• Reflect on the current discourse among stakeholders regarding justice and solutions
  
• Make some recommendations.

2. Definitions and Practice of Justice

2.1 Definition: Justice has been one of the concepts that have captured intellectual fascination since antiquity. Hellenic thinkers, such as Socrates, Plato and Aristotle discussed justice from political and moral points of view. For Socrates, ' what is lawful is just', law being made by 'citizens as covenants or agreements with each other'. Describing the moral side of justice, he says, justice shouldn't be limited to public laws, as 'unwritten laws' are equally important for society. Further more, he taught that the universal principle of law based on divine will was the best system for justice. Socrates' speech before the jury (that sentenced him to death) where he said, 'justice is more important than death' clearly shows his value for justice. Talking to his friends before he was going to die, he is quoted as saying 'better to suffer injustice than do it' and ' better to suffer wrong than to do wrong'.

Plato in the 'Republic' argues that, justice is the right to do ones own job. He talks about inclucivity as an element of justice. He emphasized the right of the citizen to be a party in a system or in any form of contract. His statement about justice as 'an attribute of a good state' underpins the foundation of his argument. The holy books, the Bible and the Quran give great emphasis to justice and moral values.

Later on, thinkers of the medieval age and many others in the modern world have defined justice differently. For instance, for St Thomas Aquinas, justice is 'the good of the intellect, i.e. truth'. Espinoza believes that, justice is an ethical value that emanates from logical necessity. Benjamin Disraeli, a British politician (late 1890s), states that, 'justice is truth in action'.

With the change of time, one can see how the discourse about justice has also moved on. In the 20th Century, people like Webber, Skinner and Benedict Anderson further developed the moral, ethical, legal and functional bases of justice. With the advancement of systems thinking and dialectical logic, the universality of justice and its role in maintaining balance and promoting progress were further elaborated. Such concepts like healing, restoration, fairness, equity, etc. are now fully imbedded in the definition and administration of justice.

Definitions given in modern Dictionaries support the above argument. For instance, Websters define justice as' the maintenance or administration of what is just, especially by the impartial adjustment of conflicting claims. The same continues to explain justice as the ' quality of being just' and 'conformity of truth, fact or reason'. The Hutchinson Encyclopedia even goes further by defining justice 'as fairness, equity, rightness, the equal distribution of resources and positive discrimination in favour of underprivileged groups'.

The summary one can make from the above is that:

• Justice is a moral, ethical and legal force that maintains and promotes the 'common good'; the common good that gives every one and all members of the society opportunities to full fill their ambitions in life.
  
• The foundation of justice is its acceptance by society as a shared value that is reflected in its norms, laws and beliefs.
  
• Justice ought to play a healing role as opposed to punishing the offender.
  
• Understanding and practice of justice are determined by the level of social development and by cultural and ethical values.
  

2.2 Practice of Justice: As mentioned above, justice as a means that promotes a common good need to focus on what is good for society but not for the law perse or for the state. Hence, great emphasis is currently given to restorative justice as opposed to retributive justice.

Justice as a system and as a due process of law involves three parties: the victim, the offender and society at large. Principles of retributive justice 'lies in the law and in the punishment of the offender. Since it is based on the law, it ensures sanction and punishment'. This conception indicates that the process is limited to offender - victim relationship while the role of the society in mending broken relationship is not given any consideration.

The argument is that, justice can't be done until truth is established and acknowledged by all parties involved. Hence, all stand to defend their own 'domain' of truth. If an offender has not accepted the truth 'established' he/she fails to acknowledge it. It he/she fails to acknowledge it, then, he/she is not prepared for repentance and remorse. Subsequently, the feeling of injustice creeps in and revulsion against institutions, society and the victim consumes the offending mind. Alas, no positive contribution and no restoration.

Likewise, the victim will not be satisfied, as the offender does not acknowledge the truth and would not recognize the harm. No means to heal the wound, and memory continues to feed up on the soul and mind of the victim. Further more, society, which now embodies injured parties stops to be a normal society that enjoys, shared visions and common values. Moreover, society can hardly learn from the process and will not be able to maintain and promote the 'common good'.

On the contrary, restorative justice (RJ) is a reconciliation process, which involves the victim, the offender and society at large. The focus is on establishing the truth, on the acknowledgment of responsibility and on healing the harm of crime committed. With the aim of advancing the 'common good', RJ restores broken relationships. According to Paul McDonald, RJ is a process involving the direct stakeholders in determining how best to repair broken relations and wounded souls due to crimes and violations of human rights.

Truth is very hard to uncover and healing a wounded soul is even more complex. The task demands a good will, determination, tolerance and patience. As Kimberly A Mayrora rightly says, 'the problem of rebuilding houses can be solved. But the problem of rebuilding souls is difficult'. The process gets even complex and more difficult, when truth is not fully established and shared by all parties.

Establishment and understanding of truth is influenced by many factors, among which social structure, cultural values and institutions play very crucial roles. In closed family, group or community relationships where the existence of the individual is expressed in terms of the 'whole', 'truth' is what the 'whole' accepts or dictates not what is actual or what has occurred. In a society where institutions stand above society and where there are no signs of accountability, transparency and participation, truth always comes from the citadel of power. Reward and punishment are handed down on the basis of 'truth' and 'scales' set from above.

Equally, if cultural values tend to appease or associate 'truth' with institutions or transdental forces, establishing and sharing the truth remains difficult. Moral justification and looking up to the almighty, 'igzabiher yawekal', also influences our values and pursuit of truth. Further more, if people do not trust institutions, particularly the government, either they would become party to violations and repression or do nothing about it.

Accordingly, the level of development, social structure, and cultural and moral values influence the understanding and administration of truth and justice. For instance, attempts made by transitional societies that have gone through internal conflicts and civil wars to establish the truth and ensure justice validate this argument.

2.3 Experience of transitional societies: Many countries that have gone through social strife and civil wars during and after the end of the Cold War, have tried to establish truth in order to ensure justice and advance national reconciliation.

In fact, while some nations that have gone through civil conflicts have chosen not to discuss the past, many others have felt that knowing exactly what went wrong and what had happened to their loved ones and to themselves is an important step in the healing process.

In countries where the national situation did not allow the creation of appropriate system and structure to take the issue forward, external actors (forces) have had to be involved. For instance, in Salvador, because of the balance of power and huge involvement of all sides, it was chosen to use externals to undertake the task of establishing the truth. However, the establishment of truth did not go beyond recording the annals of death and destruction from the evidence made available to them. Contact with remote areas and the public at large was totally limited.

Guatemala learning from Salvador chose to have a mixed institution (a truth commission). This created a sense of ownership and impartiality. It also ensured trust, giving the process a very good foundation. However, greater emphasis was given to recording atrocities and forming a national database.

In South Africa, however, the process has been conducted internally since the government and all major stakeholders in the country embraced the need for national reconciliation. Even though, restitution and reparation have not been satisfactory, as some argue, the process has been able to save the country from slipping into a civil war.

In Rwanda and former Yugoslavia, the process took a very different form. In Rwanda, due to the scale of atrocities committed and the political arrangements made aftermath the international community felt that international tribunal was necessary. While the international tribunal has been dealing with external cases, the government formed internal tribunals in order to handle internal cases. The main criticism emerging from the processes is that a government that represents the 'victim' party not the broader society leads the internal process. Moreover, there is an argument about the process being one sided despite the involvement of the victorious party in lynching and violations of human rights. The conflict between the international and internal tribunals over evidence and territory of jurisdiction etc. is another factor that has thwarted the due process of justice. Instead of promoting establishment of truth and using national reconciliation as a healing process, Rwanda has chose to punish the offenders who have only been the lead partners in the national tragedy.

In former Yugoslavia, the international community has been able to bring few culprits to The Hague. Nevertheless, communities are still as divided and antagonized as ever. Hatred and vengeance, mistrust and division continue to haunt every household. There are no societies: only communities living side-by-side divided by a wall of rejection and repulsion.

One can also mention about the Reitgg Commission in Chile, the Cambodian Peace Project, Angola, the Middle East, etc) where political reconciliation among major actors have failed to bring about long lasting solutions. In the Middle East, no sooner than a handshake has taken place between political leaders, innocent lives are mowed down by rockets n the Gaza Strip or bombs go off in the center of Jerusalem.

Hence, establishing the truth is a starting point. Making sure that all parties are involved, past mistakes are acknowledged and future actions agreed puts the process on a slid foundation. Subsequently, sincere apology, repentance and compensation restore broken ties and wounded souls.

Needless to say, healing processes can't be materialized without appropriate legal, political and moral frameworks that support and drive the process to the sublime. Further more, the role of political leadership is extremely important. A leadership that represents and promotes the 'common will' as opposed to sectarian motives and group ambition is very crucial. A leadership that can shape a vision and inspire the people in order to achieve a common task is highly important. A leadership that relies on its competence, high moral and ethical standard as the sources of authority plays a very significant role in the administration of justice and in promoting justice as a means to build a healthy relationship and national consensus.

Following from this discussion, one may ask if justice could be achieved in Ethiopia at all. Would our past history and the current situation in the country allow the establishment of truth that we all acknowledge and share? Do we have a leadership that can ensure and promote justice as a means to building a common good? The next part of this paper attempts to explore some of these questions.

3. The Context

3.1 The Paradox of history: Most of our history, particularly since the 8th century AD is filled with internal conflicts and external aggressions. The country has never had respite of peace for the development of common will, shared values and a unified identity. Because of continuous disruptions, forces of integration and development: economic (resources), ethno-cultural (diversity) and political (institutions) factors have turned into the main causes of misery, disintegration and moral retardation. Since we have always committed all our best to war and destruction, we have missed chances for growth and development. While sitting on abundant natural affluence, we have continued to starve. Our means and methods of production are hardly different from those used by our ancestors thousands of years back. Our means and techniques of destruction: guns and institutions are the finest of the fine. Such a power with scarcity and destitution at its foundation, breeds fear, submission and despair. Instinct for survival suppresses ambition for immortality and desires for a higher good.

Further more, diffusion of political and economic powers under the 'gebar' system and then under 'socialist' and currently under 'democratic' Ethiopia has created a situation where, truth, morality and justice are dictated. Religion under the feudal system and ideology under successive systems justified and still justifies the flow of truth and moral standards from above. Hence, those who control state power give and take rights, truth and justice at their convenience. The 'citizen' and society have always been the recipient and, the state, the benefactor.

The other factor that continues to debilitate our understanding of justice and its application is the negative role of the power structure that stifles diversity, cultural identities and local values. Like many other nations in history, the modern state structure of Ethiopia evolved through occupation and expansion. What makes our history different from that of Italy, France or Germany is the incessancy of force and repression as the raison d'etre. Governments have put too much effort in maintaining or reinventing the status quo through blood and steel rather than through the promotion of a common good and shared values. In addition to perpetuating tension, this element has become one of the main causes for mistrust, division and conflict among the elite.

On the contrary, at grass root levels, relations across religious and cultural barriers reflect mutual respect, tolerance, understanding and cooperation. As far as I know, Ethiopia is the only country where Muslims and Christians would eat from the same table. Moreover, in many parts of the country the two groups often form common associations, such as 'Debbo', 'Edir' and 'Iequb'. Further more, traditional institutions, such as Arraarsa' among the oromos and Shimglena' among amharic speakers play very significant role in the administration of justice.

As opposed to retributive justice promoted by the government, traditional institutions and values play a healing role by bringing together all parties and ensuring consensus and future actions. Compensation in a form of 'Guumaa' or 'Kassa' in oromo and amhara cultures respectively, symbolizes acknowledgement of the truth, recognition of harm done and sincere repentance on the part of the offender and forgiveness from the victim.

Sadly though, governments have been undermining the role of traditional institutions persistently. The process of dismantling these institutions took a new dimension since the eruption of the revolution in the mid 70s.

3.2 Revolution and civil war: The 1974 the revolution that led to the overthrow of Emperor Haileselassie was a popular reaction to years of maltreatment, injustice and repression. The revolution promised changes and a better life. It raised peoples' hopes and dreams. The 'gebar' system was dismantled and the Provisional Military Administration, the Derg promised to ensure individual dignity, justice, local and cultural freedom and national regeneration. Contrary to all the promises, the country was turned into a killing ground. The government was transformed into an organized criminal institution by giving ideology, system, legal and moral framework to terror and cruelty. Equally, opposition groups took the law into their own hands and used torture and killing as a means to terrorize and eliminate the enemy and suppress dissension.

As a result, the nation lost its best to the civil war and a great number of people fled the country. Likewise, meager resources were either consumed by the war or misappropriated by greedy politicians and their cronies. Unfortunately, the same continued unabated, rather in a boorish manner, after the change of government in the early 90s.

Fresh evidences that are reaching public domain following the split in the TPLF distinctly indicate the level of atrocities and corruption the Front has been involved in while they were in the bush and after the takeover of political power in 1991. Newspapers and e-media including pro-government websites are now inundated with annals of treason, atrocities and the systematic destruction of national institutions and assets by the TPLF and affiliates. Resolutions coming from the recent meetings of the CC of the ruling coalition, the EPRDF and that of the lead partner, the TPLF partly acknowledge the above-mentioned facts. However, the same group continues to act as the 'guardian' of justice and the bearers of moral and ethical values that are being dictated from above.

It is a travesty of justice that a group, which has been one of the lead parties in the carnage, is administering retribution and punishment on a selective basis. The regime has been promoting retributive justice as opposed to restorative justice in order to ensure that real as well as assumed enemies are severely punished and totally broken. It is not meant to serve the 'common good' since it does not address the central problem of justice in the country. Hence, the system and process of justice in today Ethiopia can't repair wounded souls and broken ties. On the contrary, they exacerbate hatred, vengeance and despair.

Psychological, emotional and material impacts of the civil war that has involved every one (the citizen, groups and society) and every institution (the judiciary, the media, schools, faith and civic groups etc.) could not be resolved through snap shots of judicial intervention, which is tainted with ideology and sectarian values.

As we all know, the country is at a crossroad. The level of economic and social deprivation is getting worse. Millions of lives are threatened by famine and disease. AIDS alone is expected to claim millions of lives in the coming 10 years. These problems alongside with all other problems mentioned above may lead to incalculable catastrophe. However, we can avert the catastrophe if we are prepared to overcome our past and stand together as a nation and work towards a 'common good'. This is not a choice and it needs to be done, but the 'how' is one thing that needs to be discussed and explored.

4. What is to be done?

There is a logical link between the past, present and the future. Today was born in yesterday and the future evolves in the present. If we can't change the past, we should be able to learn from it and reconstruct our time so that a strong foundation is laid for a better future. This could be achieved if we are prepared to go through a healing and regeneration process that may involve the following steps:

• Creating a common understanding among all the stakeholders (government, political, civic and faith groups etc) regarding the need for a healing process that involves the whole society.
  
• Forming clarity about the nature of justice we would like to put in place. As indicated above, restorative justice that creates a triad interface; victim - offender - community involvement is a superior fit.
  
• Agreeing that the role of major institutions: governments, the judiciary, political, civic and faith groups as well as the media, learning institutions, the army, the citizen and society need to be investigated. Mothers who did not mourn for their loved ones, fathers who failed to protect siblings and the citizen who did not try to defend the innocent need to be helped to reflect on their parts in the carnage.
  
• Accepting compensation and rehabilitation as elements of the healing continuum.
  
• Accepting the role of traditional institutions, for instance elders and faith groups, in the healing process.
  
• Agreeing on the legal, structural and technical framework that will drive the process. A Truth and Reconciliation Commission that enjoys the trust of the national and support from the outside world may be appropriate. Due to the volume of atrocities committed and the high level of mistrust among stakeholders; it might be necessary to consider whether involving international institutions would be necessary.

It goes without saying that, the above mentioned imply the full involvement of the ruling party and the government. If they, as usual, continue to deny the need and obstruct the process, alternative strategy needs to be drawn up by forces of justice, peace and reconciliation. One of the immediate tasks should be the formation of a pressure group at a national and international level that will propagate the idea and the need for the healing process. To this end, this Conference can take the idea forward by creating a provisional working group that would:

• Disseminate the idea and lobby with national actors and international bodies in order to put pressure on the government.
  
• Use media and all available means to raise public awareness at home and abroad.
  
• Cooperate with interest groups that are working on/towards peace and national reconciliation.
  
• Prepare background works for the creation of a legitimate body that will promote justice and reconciliation in the country.

Bibliography source is obtainable on demand at the discretion of the author.

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