I read the Eritrean Accord with interest as I did to the Eritrean Covenant. I have objections to some of the assertions therein. Moreover, I wish the introductory note was written in a less incriminatory tone. I do not think excessive incriminations help us at this stage. Yet, I have embraced the Eritrean Accord and the reasons for its relevance. I admired the courage of the authors. But their courage is incomplete. For reason I do not know, they are not known to the public. Ideally, I would like to see openness and transparency in all our activities. Yet, if they think a common good is served by them being anonymous and working in a less transparent manner, let it be. Ideas matter most! However, at some stage, they should adequately reveal themselves to public. Otherwise, it is not conducive to respond, even positively, to their call. What will happen if they simply disappear after a while?
Having written on several occasions on the 1997 Constitution, having been an advocate of the document, having called many times for the opposition to accept the document, I felt compelled to go public and express my support to the Eritrean Accord which is a proposed transitional constitution crafted from the 1997 and the 1952 constitutions of Eritrea.
I supported and called all opposition forces to accept the 1997 Constitutions for good reasons which have remained valid to this day. I am glad that one of them is now catered by the Eritrean Accord. The opposition against the injustices at home has been lacking a common guidance and a KNOWN END. Many Eritreans have been calling for commonly agreed rules by which our political discourse must be guided now and a clear indication of what the end will be. I thought the 1997 Constitution could be one. I am a late-comer to the debates on the 1997 Constitution. In 2003, the Awate Team proposed the idea which now has produced the Eritrean Accord. Indeed, many sensible Eritreans whom I branded “the Eritrean Federalists” have been making similar proposals since 2000.
I will not delve on all the good reasons for which I supported accepting the 1997 Constitution without tampering with it, at least as a starter. There are legal technicalities which may sound insignificant to our common logic. From the perspective of rendering the PFDJ’s dictatorship legally an illegitimate government, from the perspective of simplifying our politics, from the perspective of the current foundational legal framework of the African Union, from the perspective of the evolving norm of pro-democracy intervention, from the perspective of regional and international diplomacy, and from the perspective of international law in general, the orphaned Constitution is a good tool for the opposition to use against the dictatorship at home. I have made this argument in my posting on this website: “Government In Exile And Its Legitimacy”. I have made this argument in two other publications (The Status and Fate of the Eritrean Constitution on African Human Rights Law Journal and the Law of Coups in Africa and the Situation in Eritrea on Journal of African Law).
But, political struggle is not always about taking rational actions as much as it is about being unable to overcome emotions. As Daniel G. Mikael in his “Time for Unconventional Ideas” indicated, there are Eritreans who distance the 1997 Constitution even though they never read it. Yet, good politics is, in part, about attending to prejudices and emotions. Now, I really hope the Accord will have some attraction to them. From this perspective, and of course for sensible Eritreans, Mejlis Ibrahim Mukhtar has simplified our politics in unconventional manner. But, we may now have PFDJ’s funs who will hate the Eritrean Accord without glancing at it. Of course, this would be a big political problem. In fact, one of the main reasons I supported accepting the 1997 Constitution is in order not to leave any excuse to the PFDJ’s funs to join the regime at home in orphaning the document. Now, I am willing to take this risk.
Those of us who laboured to argue that the 1997 Constitution is legitimate did it for good reasons but, I fear, we may have disappointed some fellow citizens. In assessing the legitimacy of the process, we admit, even though we did not misstate facts, on matters of opinion, we tilted towards concluding that the document is legitimate. Do we have to apologize for our opinions which we are entitled? Now I see much worse and biased assessment from the advocates of the National Conference for Democratic Change (NCDC) and many of them happen to be Eritrean Muslims. I hope they are being biased to a common good. Of course, it is the nature of political life. Let alone politicians, even distinguished scholars make advocacy. The international regime of human rights reached this level of advancement, in part, because of biased scholarly advocacy but all to a better end. Another main reason why I supported the 1997 Constitution is because I wanted Eritreans to get out from this seemingly endless cycle of writing a charter, declaring it illegitimate, writing another one and then declaring it the same. We have the 1994-97 experience declared illegitimate by some of us, the NCDC is bound to face the same fate, another one is most likely to face the same fate. At a critical time when we need national charters, I fear we may fail once more.
I have no means of knowing how many Eritrean Muslims are behind the Eritrean Covenant. But the document stated:
Eritrean Muslims base their patriotism on the spirit of the Eritrean constitution of 1952 which was willingly adopted by all Eritreans when they expressed their vision of Eritrea in a relatively free environment where the rights of citizens and founding principles of the Eritrean nation was agreed upon by representatives of the people. Despite its limitations with regard to women’s right to vote or be elected, the 1952 constitution was ratified by a democratically elected legitimate assembly in 1952.
I wish all Muslims are behind the Covenant and buy the above assertion. Ten years ago, I read the 1952 Constitution. I found it compiled in one of the materials the Constitution Commission of Eritrea (1994-97) prepared for purposes of discussions. In 2007, some friends also suggested that I re-read the 1952 Constitution. For this reason and more so in reaction to the above quoted part of the Eritrean Covenant, recently I soberly sat to look at both documents. After spending three week making some more reading, I wrote a paper in which I compared both constitutions. I will let you read the paper: Eritrea’s Two Constitutions: A Comparison. I have also engaged in a study where constitutional design features prominently. I am into the right of self-determination, rights of minorities and indigenous peoples and how these rights should be translated in designing a model of governance. In short, I am into “the politics of accommodation” on which Arend Lijphart worked for half a century. Without further ado, in comparing the two constitutions, I found a high level of similarity. I also found the harmonised Eritrean Accord capturing many of the good features of both constitutions.
Recently, the Eritrean Law Society initiated discussion on the possibility of writing papers which address current Eritrean political and humanitarian issues. I myself tipped contributors to take on some of the researchable issues on which Mejlis Ibrahim Mukhtar called for input. Yes, we should complement each other, respond to each other and work together. In that context, one colleague raised the idea of revising the 1997 Constitution. ELS’ plan for papers may no longer be on track but if the colleague has participated in producing the Eritrean Accord, I have my hat off for him.
The authors of the Eritrean Accord tried to turn a unitary constitution into a federal one. They also tried to cater for transitional affairs. In addition, the authors may not be individuals with legal training and specialists in legislative craftsmanship. For this reason, there are many vague parts in the Eritrean Accord. However, what is important is the act of compromise – that they were able to say ‘this satisfies all Eritreans’. All in all, they have done a decent work in unconventional manner. Importantly, they showed courage, even though they are still perceived as hidden souls. My endorsement does not mean I have no suggestions to offer. Laws are not refined by legislators but by judges and litigants in courtrooms. Thus, I would like not to open Pandora’s Box by suggesting for improvements at this stage. In fact, the biggest risk in not accepting the 1997 Constitution is opening a Pandora’s Box.
One of the radical imports in the Eritrean Accord is federalism. How do you see a federal Eritrea? For those who study preludes that affect the content of a constitution, with all its emphasis on its own approach to national unity, the fact that the EPLF opted for a unitary constitution with a strong signature of national unity is not surprising. In fact, national unity in the way it is reflected in the Constitution was the dominant sentiment of the day. As much as that is not surprising, at this time, considering the journey of our national politics, it is not surprising that the authors opted for a federal order. I myself, in a paper contributed to CDRiE’s conference in January this year (The Right of Rebellion and Secession in Current Eritrean Context, see page 24) have recommended that as a compromise “a federal government should not be bothersome to accept.”
I expect, as much as many of the Amharas of Ethiopia do not love the ethnic-based federal arrangement, as much as the Sinhala in Sri Lanka abhor proposals for more devolution of power to their minorities, Tigrinya Eritreans who buy the PFDJ’s way of national unity may find a federal order unattractive. Do not rush to blame the Tigrinya. It is in the nature of dominant group to tend to be economical when it comes to power-sharing. Human beings being what they are, had the Kunama been the majority and the Tigrinya the minority in Eritrea who claim Gash-Barka as theirs, we would have had a Tigrinya rebel group based in Ethiopia. For objectivity, it is important to force yourself into the others’ shoes and see matters from that angle.
It seems the issue of official language is long settled within the opposition. It remains one of the few things on which consensus is reached. The issue of flag is handled well. The question of land has been vague in both documents. In real life, we would be fighting in courtrooms to fill the indeterminacy of the few words in the Accord.
All in all, I found the ideas leading to the production of the Eritrean Accord very helpful. I have been calling for it. Many good people I know have been calling for it. WE NEED TO AGREE ON WHAT FUTURE ERITREA WOULD LOOK LIKE just like the South Africans agreed on 32 imputable principles. We that certainty, we can work in union with more resolve, without buts and ifs, on matters that deserve priority.
I want to use this opportunity to call up on all Eritreans to endorse the Eritrean Accord. I will name a few because of my formal or informal affiliation such as CDRiE and the Eritrean Law Society. Recently, I read a letter from the Eritrean Youths for Change (EYC) calling the EDA on the occasion of the NCDC to accept the 1997 Constitution. Having made that call, I hope the EYC will find the Eritrean Accord pleasant to accept. The same should apply to the Eritrean Democratic Party (EDP) which advocates for the implementation of the 1997 Constitution. I also call up on the civil society organizations in EGS and others outside such as the EMDHR to endorse the Eritrean Accord. Emotions are high at this time but I also hope the EPDP and others who are not in the NCDC will look at the Accord with the interest it deserves.
I have no idea if the initiative behind the Eritrean Accord and the Eritrean Covenant is linked to the EDA and the coming NCDC. In any case, the call is squarely addressed to the EDA and I hope the authors will bring their proposal to the attention of the NCDC. I also hope that Eritreans on the side of the PFDJ will buy the Eritrean Accord. After all, it is the PFDJ’s making which is now modestly tailored to meet the aspirations of other Eritreans who had no say in it. I seriously hope because we are witnessing some Eritreans who, somehow disappointed with the opposition, are taking every excuse to continue supporting the regime. Have we, as Eritreans, ever agreed on something? Have we ever produced a national stuff? In the traditions of the Tigrinya which I know most, consensus is reached not necessarily because everyone got what he or she likes but because there is this ምሳሕ ማርያም ክንብሎ፡ ኣብ ብርኩ ክንወድቆ፡ ስምዓና ክንብሎ … role elders and religious leaders play. On the Accord or any other matters where national consensus is needed, I hope there will those who can plead ምሳሕ ማርያም and those who would listen.
In our activities, cynicism is becoming excessive to a level which is not helpful. Conspiracies can be neutralized by vigilantly or innocently participating in them. And, saving a nation requires a little bit of innocence and naivety. It is not helpful to be an irreparable cynic. It is true that the lack of transparency on the side of the people behind the Eritrean Covenant/Accord is not helpful. One may even think that they are part of unholy conspiracy circles. If the initiators of the idea leading to the Eritrean Accord are neither innocent nor naive, the rest of us can buy their idea in a sprit of innocence and in a sprit of compromise.