The intricate legal dimensions of President Birtukan�s case was recently handled by two sparkling articles by distinguished legal scholars: Professor Alemayehu G.Mariam and Professor Tecola W. Hagos, published in Ethiomedia and Tecolahagos respectively. And Professor Mesay Kebede, in Ethiomedia and Tecolahagos, most powerfully articulated the moral dimension of Birtukan�s arrest and imprisonment.

I am most grateful to these scholars from whom I continue to learn.

My own modest contribution is in the area of moral philosophy, to which I will return momentarily, and on which moral edifice, I will seek to ground the complexities of the legal arguments so ably articulated by the two mighty scholars.

The legal arguments as presented by Professor Alemayehu G. Mariam are the following:

(1) President Birtukan did not deny asking for pardon, but when asked a question pertaining to the pardon in Sweden , she specified asking for pardon as a matter of due process, which the detainees did not do, and signing for a pardon agreement negotiated by the Shimagles. She denied the first, as a matter of fact, but admitted the second, and that the prime minister has no shred of evidence for arguing that she denied receiving a pardon.

(2) President Birtukan also stated that the person who submits an appeal for clemency ought to have been either the concerned person�s lawyer, or family member. This duty was illegally assumed by the Prime Minister, who felt obligated to stand for the detainees as their lawyer and took the document to the board and the president.

(3) President Birtukan has the legal right to discuss, reflect and examine her condition at any time, any place, in the right manner, since the document that she signed did not precisely specify what she can and cannot say, regarding her condition.  That is her legal right as a citizen, a person and a thinking human being.

(4) Assuming that she has violated the law, the person who threatened to arrest her, unless she retracts her statement should not have been the police commissioner. According to Proclamation 395/1996, Arts, 16 and 17, there is a lawful process by which pardon could be revoked. The lawful process was flagrantly violated, since she was denied her due process, which was taken over by a police commissioner, performing an illegality, under the said proclamation.

(5) Under the conditions, specified above, President Birtukan was arrested without a criminal charge.

Professor Tecola W. Hagos�s earlier article is similar in several of his important views with Professor Alemayehu G.Mariam�s arguments in (1) and (2) and most specifically emphasizes the human and democratic rights of freedom of thought, speech, and expression which is emphasized in (3). We may surmise Professor Tecola�s views in the following three points:

(1) Professor Tecola points out that the right to speak ones mind even includes the right to openly advocate the peaceful removal of Meles Zenawi from office. Thus, signing a pardon cannot possibly be used to muffle President Birtukan�s mouth. The Ethiopian Constitution itself grants her fundamental and inalienable rights of speech, expression and thought, thereby fully in agreement with Professor Alemayehu G. Mariam�s views in (1).

(2) It is Professor Tecola�s understanding that in discussing the pardon, President Birtukan, was making a fine legally analytic distinction between constitutionally supported processes (Due process) and an ad hoc improvised process mediated by a third party, the Shimagles, a point that Professor Almemayehu G. Mariam also sharply noted in (1).

(3) One could argue that President Birtukan might have played with fire, when she spoke her mind at the wrong time, in the wrong place and to the wrong authority, in this case, a relentless dictatorship, an instance of a lapse of judgment but excusable, as plainly stated by Professor Tecola.  

Haimanot Lakew, also shrewdly noted the same point in a thoughtful article, �Magnanimity Should Have Been The Order of the Day� (Aiga Forum) Summarizing considerably, and with a sincere attempt of not sacrificing the technical legalities, I now move to articulate the moral dimensions of this perturbing case, by following the important lead most eloquently put forward by Professor Messay Kebedes� eye-catching argument.

For Professor Messay Kebede, what is at issue is the moral status of the very idea of asking for pardon, when one is not convinced that one has committed any wrong, in light of the indisputable legal facts that Professors Almayehu G. Mariam and Tecola W. Hagos compellingly presented, with both concluding that President Birtukan did not commit a crime. According to Professor Messay Kebede, the intention then was not that President Birtukan committed a crime and that she must be punished by the rule of law, but that the Dictatorship wanted to humiliate her publicly.

Disagreeing with the view that it was a lapse of judgment, Professor Messay Kebede, praises the heroine for being true to herself by speaking conscience to power.  For him, President Birtukan did not lack in judgment, she chose the path of the moral virtues, and presented herself as upright, principled, courageous and selfless. 

To Professor Messay Kebede, President Birtukan is a moral heroine, the voice of principle, the path of resistance, the orchestration of revolutionary political action in the agora.

She has set a standard of moral greatness�an example to us all by presenting herself as a catalyst of change, and a barometer of what Dessalegn Asfaw, luminously called, �An inward struggle.�

Indeed, she is a moral figure that the regime attempted to silence by life imprisonment, by using her as a spectacle, and sending signs to the masses that the prize of courage is prison and torture, and that material comfort and government appointments are the rewards to the servile, docile and those who live only for bread.

President Birtukan has proved them wrong, and that we the Ethiopian masses must now assemble, protest and be vigilant citizens, working on our inner selves, and make Birtukan�s struggle our very own, our very moral fiber, and fight docility with moral action, comfort with suffering, alienation with vibrant moral life, fragmentation with Andent, and Ethnicity with Ethiopianity.

We must move on full speed and use the complex legal arguments as the justifications for the exercise of the moral virtues.

Now is the time, in which we can fight by the use of the moral edifice on which stand the legal defenses.

Teodros Kiros ( PH.D)

January 7, 2009