The trashing of constitutional rights
The Ethiopian Constitution guarantees, “Persons arrested have the right to remain silent. Persons arrested shall not be compelled to make confessions or admissions which could be used in evidence against them. Any evidence obtained under coercion shall not be admissible.” (Article 19(2)(5).) In reality, this guarantee is not worth the paper it is written on!
Last week, Human Rights Watch (HRW) issued a report documenting the horrors that take place in the little shop of horrors of the ruling regime in Ethiopia known as the “Federal Police Crime Investigation Sector” (the dreaded “Maekelawi (Central) Police Station”). Located in the capital Addis Ababa, Maekelawi is “the country’s most notorious police station.”
Maekelawi lives up to its reputation as “third degree” central — a place “beyond wrath and tears” where “looms but the horror of the shade” to borrow from William Ernest Henley. Regime opponents, dissidents, independent journalists and others are “interrogated, and, for many, at Maekelawi they suffer all manner of abuses, including torture.” I have met some former detainees who were delivered from the “clutches” of Maekelawi — that black pit of physical and mental suffering and citadel of false confessions. HRW’s report barely scratches the tip of the iceberg of horrors that take place at Maekelawi.
Numerous credible sources confirmed in 2009 that in Maekelawi, the central police investigation headquarters in Addis Ababa, police investigators often used physical abuse to extract confessions. Citizens widely believed that such treatment remained a common practice at Maekelawi. Authorities continued to restrict access by diplomats and NGOs to Maekelawi.
A genuine Medieval torture chamber in 21st Century Ethiopia!
Maekelawi evokes images of Medieval torture chambers of Europe infamous for inflicting “horror, dread and despair” on their victims. According to HRW, “Police investigators at Maekelawi use coercive methods on detainees amounting to torture or other ill-treatment to extract confessions, statements, and other information from detainees.” Not unlike many Medieval European torture chambers, Maekelawi has four categories of prisoners grouped in terms of their level of cooperation and compliance with the demands of their interrogators: “Maekelawi has four primary detention blocks, each with a nickname, and the conditions differ significantly among them. Conditions are particularly harsh in the detention blocks known by detainees as ‘Chalama Bet’ (dark house in Amharic)… [where] detainees have limited access to daylight, to a toilet, and are on occasion in solitary confinement… In ‘Tawla Bet’ (wooden house) ‘access to the courtyard is restricted and the cells were infested with fleas.’ Short of release, most yearn to transfer to the block known as ‘Sheraton,’ dubbed for the international hotel, where the authorities allow greater movement and access to lawyers and relatives.” There is also “an overcrowded women’s section”.
The ruling regime in Ethiopia uses a variety of torture methods to extract information, statements and confessions from political prisoners. “Detainees are repeatedly slapped, kicked, punched, and beaten with sticks and gun butts. Some reported being forced into painful stress positions, such as being hung by their wrists from the ceiling or being made to stand with their hands tied above their heads for several hours at a time [Medieval “strappado”], often while being beaten. Detainees also face prolonged handcuffing in their cells [Medieval hand shackles] —in one case over five continuous months—and frequent verbal threats during interrogations. Some endured prolonged solitary confinement [popular during the Spanish Inquisition].” Detainees are subjected to “severe restrictions on access to daylight, poor sanitary conditions, [Medieval dungeons] and limited medical treatment. Conditions are particularly harsh during initial investigations.”
The purpose of these torturous practices is “to maximize pressure on detainees to extract statements, confessions, and other information—whether accurate or not—to implicate them and others in alleged criminal activity. These statements and confessions are in turn sometimes used to coerce individuals to support the government once released, or as evidence against them at trial.”
There is little detainees can do at Maekelawi to seek “redress. Ethiopia’s courts do not demonstrate independence in political cases. Courts that have received allegations of detainee torture and ill-treatment at Maekelawi have on occasion failed to take adequate steps to address the allegations. Several former detainees told Human Rights Watch they kept silent about their treatment in court, fearing reprisals from investigators. Others said they had never appeared before a court.”
In July 2008,
retired British colonel Michael Dewars, an internationally recognized security expert commissioned by the regime to undertake an assessment of the prison system and make recommendations, described what he witnessed when he “was taken to an Addis Ababa sector police station and shown the detention facilities.” He recounted, “I asked to go into the compound where the prisoners are kept. This consisted of a long yard with a shed to one side which provided some sort of shelter. The compound had a wall around it and a watchtower for an armed sentry overlooking it.
Inside must have been 70 – 80 inmates, all in a filthy state. There was insufficient room for all these people to lie down on a mat at once. There was no lighting.
The place stank of faeces and urine. There appeared to be no water or sanitation facilities within the compound. There was a small hut in an adjacent compound for women prisoners but there had been no attempt by anybody to improve the circumstances of the place. The prisoners were mostly on remand for minor crimes, in particular theft. Some had been there for months….”
Col. Dewars concluded: “Detention conditions of prisoners are a disgrace and make the Federal Police vulnerable to the Human Rights lobby…. The prison I saw was a disgrace. No one is recommending a Hilton Hotel, but, if any human rights organization were to get inside an Ethiopian jail, they would have enough ammunition to sink all our best efforts… The result of all these circumstances is chaos, injustice for the detainees and condemnation by the human rights lobby and the international community.”
In October 2013, HRW reports, “Over the past decade Human Rights Watch and other domestic and international human rights organizations have documented patterns of serious human rights violations, including arbitrary arrest and detention, ill-treatment, and torture in many official and unofficial detention facilities throughout Ethiopia. The government has invariably dismissed these findings or conducted investigations that lack credibility.”
Maekelawi as a metaphor for Open Prison Ethiopia
I have previously commented on prison conditions in Ethiopia. In my February 2012 commentary,
Political Prisoners Inside Ethiopia’s Gulags, I sought to expose the abuse and mistreatment of political prisoners by the regime. In February 2013, I wrote about
Ethiopia as the Prototype African Police State. I argued, “The singular hallmark — the trademark — of a police thug state is the pervasiveness and ubiquity of arbitrary arrests, searches and detentions of citizens. If any person can be arrested on the whim of a state official, however high or petty, that is a police state. If the rights of citizens can be taken or disregarded without due process of law, that is a dreadful police state. Where the rule of law is substituted by the rule of a police chief, that is a police thug state.” In that commentary, I focused on widespread allegations of targeted nighttime warrantless searches of homes belonging to Ethiopian Muslims in the capital Addis Ababa. One of the disturbing allegations was the claim that “federal police” officers illegally searched the homes of Ethiopian Muslims and stole cash, gold jewelry, cell phones, laptops, religious books and other items of personal property. A police chief in one of the capital’s districts gave a telephone interview on these allegations to the Voice of America- Amharic program and threatened the reporter who irked him with tough questions: “I don’t care if you live in Washington or in Heaven. I don’t give a damn! But I will arrest you and take you. You should know that!!”
We saw what an African police state looked like when I was in Ethiopia last month… At the airport, it took an hour to clear customs – not because of lines, but because of checks and questioning. Officials tried multiple times to take us to government cars so they’d know where we went. They only relented after forcing us to leave hundreds of thousands of dollars of TV gear in the airport…
Seen the video of interrogation in a police state!?
The interrogation office has a stylishly stained and paneled door. A fancy white curtain is visible in the background. Expensive imported high back executive leather chairs and sofa furnish the portion of the interrogation room visible to the camera lens. There is a map of Ethiopia hanging behind the suspect. It is obvious that the interrogation is not taking place in the dingy bowels of Maekelawi. Knowledgeable sources suggest that the interrogation was likely conducted by a top police official within the office of the “Federal Police Commissioner”.
The videotape shows a young suspect in handcuffs steepling his palms from time to time as though in a praying position. The interrogator gives the young suspect the “third degree” lite (possibly because the camera is rolling). The interrogator has the sinisterly commanding voice of a seasoned interroagtor. The interrogator questions the suspect as thought he were a Medieval inquisitor extracting a confession from a heretic during the Inquisition. The interrogator grills the cowering and soft-spoken young suspect and hammers him with questions about his religious beliefs. He hectors the suspect on the meaning of the “Salafia” brand of Islam and lectures him on radical Islam and the dangers of the “Brotherhood”. He whipsaws the suspect with sarcasm and baits him with wisecracks. The interrogator accuses the suspect and his group of intending to establish an Islamic government in Ethiopia and using a certain local Islamic school as a cover for subversive activity. The suspect is badgered on the sources of funds used to support his organization. Throughout, the interrogator ridicules, sneers, taunts and contemptuously laughs at the suspect. He puts words in the mouth of the suspect; and when the suspect begins to answer by denying allegations, the interrogator cuts him off abruptly and dismissively. The interrogator browbeats, bullies and berates the young suspect who sat helplessly handcuffed in a high back executive chair trying to answer the questions in soft almost inaudible voice while displaying great respect to his interrogator.
Knowledgeable sources say there is much that is hidden in plain view in the video. For instance, it is often the case that a few days before the videotaping of an interrogation, a suspect is given a full round of interrogation by lower rank police officials who will not hesitate to “work him over” (beat) and “soften” him up to make him more cooperative during the suspect’s his video confession. The videotaped interrogation session is usually attended by other police and civilian officials who will later testify in court that they were present when the suspect voluntarily made his confession and that they observed no coercion. (Neither the court nor defense lawyers are given copies of the videotaped interrogation.) The interrogation is done in a casual manner and conversational tone to avoid the appearance of an intimidating police interrogation atmosphere. The questions are laid out cleverly like landmines in a field. The interrogator will ask the suspect general questions about the organization to which he belongs, its ideology, its supporters, its sources of funding, alleged illegal activities and so on. Those questions will be followed by other questions which place the suspect in a compromising position. Why did the suspect belong such an organization; what role he play; why did he not report alleged criminal activities and so on. The video interrogation becomes the perfect set up for the suspect to make confessions of criminal wrongdoing and hang himself.
Top police interrogators obviously do not want to leave a videotape of their brutal or coercive interrogation practices. Knowledgeable sources are surprised to see the young suspect in the aforementioned video in handcuffs while he is being interrogated. The visual impact of a handcuffed suspect being interrogated by a high level police official is rather shocking; and knowledgeable sources are not sure why the young suspect was left in handcuffs during the videotaping. The videotaped interrogation is also said to have value in the regime’s psychological warfare against its opponents. It is intended to embarrass and demean the suspects and make them an object lesson for all opposition leaders and dissidents. Energetic and passionate young leaders are shown cowering and frightened once in the claws of the mighty Maekelawi. It sends out a message to all opposition leaders that if they end up in Maekelawi, they will be broken into pieces, ground down, chewed up and spit out. As the HRW report noted, “confessions are sometimes used to coerce individuals to support the government once released”.
Be that as it may, it is incredible and mindboggling to watch on video the interrogator’s complete and depraved disregard for the constitutional rights of the suspect as a pretrial detainee who is “presumed to be innocent until proved guilty according to law and not to be compelled to testify against themselves” (Eth. Const. Article 20(3). The interrogator trashes the young suspect’s constitutional rights like a bull in a china shop. The fact that the young suspect has a constitutional “right to remain silent” is of little concern to the interrogator (Article 19(2)(5) “Persons arrested have the right to remain silent. Persons arrested shall not be compelled to make confessions or admissions which could be used in evidence against them. Any evidence obtained under coercion shall not be admissible.” The fact that the suspect’s lawyer is not present during the custodial interrogation does not faze the interrogator (Article 20(5); Article 21(2) “Accused persons have the right to be represented by legal counsel… and communicate with their legal counsel.”). The fact that the suspect must be timely notified of the charges against him is ignored by the interrogator (Article 20 (2) “Accused persons have the right to be informed with sufficient particulars of the charge brought against them and to be given the charge in writing.”).
The interrogator flagrantly disregards the suspect’s right to religious freedom by badgering and lecturing him on which brand of Islam is “radical” and by demanding the suspect renounce the radical brand of Islam of the “Brotherhood” and accept the brand preferred by the regime (Article 27(1) (3) “Everyone has the right to freedom of … religion. This right shall include the freedom to hold or to adopt a religion or belief of his choice… either individually or in community with others… (3) No one shall be subject to coercion or other means which would restrict or prevent his freedom to hold a belief of his choice.” The interrogator could not care less about the suspect’s “right to assemble and to demonstrate together with others peaceably and unarmed, and to petition” when questioning him about his religious affiliations and doctrinal preferences (Article 30 (1). Suffice it to say that the interrogator trashed the suspect’s rights guaranteed not only under the Ethiopian Constitution but also various international conventions to which Ethiopia is a signatory.
Defending the right against self-incrimination under the Fifth Amendment to the U.S. Constitution
The privilege against self-incrimination or the right to remain silent is at the core of the bundle of rights guaranteed to Americans citizens in their Bill of Rights. No person “shall be compelled in any criminal case to be a witness against himself”, declares the Fifth Amendment to the U.S. Constitution. Puritans who fled England and established colonies in North America did so in large part because of their belief in their right to remain silent and the punishment they suffered for their refusal to cooperate with the Crown interrogators. The Crown inquisitors often coerced and tortured the Puritans into confessing their religious affiliation and determined they were guilty if they remained silent. English law granted its citizens the right against self-incrimination in the mid-1600s.
This hallowed privilege against self-incrimination is the foundation of American criminal jurisprudence: The accused is presumed innocent until proven guilty beyond a reasonable doubt by the government. It is the duty of the government and its prosecutors and police to prove the guilt of the accused. The accused does not have to do anything, especially talk to or cooperate with the police or the prosecutor in proving his own guilt. Neither the U.S. Congress, the U.S. Supreme Court, the President of the United States nor the local policeman could force an American citizen to make statements or admissions that could potentially incriminate him/her.
The U.S. Supreme Court stopped the practice of coerced police interrogations in 1966. The Court mandated a simple procedural safeguard popularly known as “Miranda warning”. In practice, the Miranda rule requires police who seek to interrogate a suspect in their custody or in circumstances where the suspect’s freedom of action is restrained, to warn that suspect of his/her right to remain silent; that any statements made by the suspect may be used as evidence against him/her; that the suspect is entitled to consult a lawyer prior to interrogation, and if s/he cannot afford a lawyer, the state will make one available to him prior to interrogation. The privilege against self-incrimination and the right to counsel may be waived if the waiver is knowing, intelligent, voluntary and not the product of illegal police tactics. The U.S. Supreme Court pronounced, “Miranda has become embedded in routine police practice [in the U.S.] to the point where the warnings have become part of our national culture.”
It has been the greatest privilege of my legal career to defend the privilege against self-incrimination under the Fifth Amendment to the U.S. Constitution. In 1998, in People v. Peevy, I had the distinct honor and privilege to argue before the California Supreme Court for the exclusion of testimonial evidence (admission, confession) obtained in deliberate and intentional violation of the Miranda rule at trial. At the time, it was an accepted practice among many police departments in California to continue interrogation of a suspect despite the suspect’s invocation of his right to remain silent and demand for a lawyer during questioning. This illegal interrogation practice was known among certain police and prosecutorial circles as “outside Miranda interrogation”.
As a result of the Court’s decision in Peevy, the practice of “outside Miranda” interrogation in the State of California ceased. In 2000, the U.S. Ninth Circuit Court of Appeals held in CACJ v. City of Santa Monica that individual police officers who violate a suspect’s right to remain silent by continuing interrogation after the suspect has invoked his right to remain silent (conduct “outside Miranda interrogation” and obtain admissions, confessions) could be held personally liable for civil damages for any such constitutional violation.
Confessions obtained by coercion or torture are unfair and unreliable
There is no evidence in a criminal case that is more compelling than a confession in which the suspect admits his/her guilt. When the police interrogate a suspect, their aim is not to seek the truth or to help the suspect prove his innocence. Their singular aim is to obtain incriminatory statements and admissions (confession) from the suspect’s mouth and provide the factual basis to formally accuse and convict him/her. During coercive police interrogation, the suspect is made to prove his guilt by his own words, or to actively assist the government in proving his own guilt. The privilege against self-incrimination levels the playing field against overbearing and manipulative police investigators who interrogate in a “police-dominated” environment and “exploit the weaknesses of individuals”.
There are many compelling reasons why the suspect’s or the accused’s right to remain silent as a target of a criminal investigation or prosecution must be respected. The most important one is fairness. It is unfair to allow a trained, professional police interrogator to ask questions of a citizen suspected of violating the law with the singular aim of eliciting admissions likely to incriminate the suspect. Coerced interrogation unfairly shifts the burden of proof from the government to the defendant. The importance of having a lawyer present during police interrogation is to ensure the suspect is treated fairly. It is unfair to force the suspect or the accused to answer police questions before the suspect’s lawyer has fully investigated the facts of the case. The lawyer needs to know what evidence government has against the suspect and available defenses before advising his client to answer or not answer any questions.
Confessions obtained by torture or other forms of coercion are notoriously unreliable. Suspects confess to crimes they have not committed to stop the physical and psychological pain inflicted upon them by their police interrogator. Innocent suspects who are deprived of food, water and sleep will confess because they are confused, in pain and to ease their suffering. When questioned by the police, the innocent will talk thinking their innocence will protect them against accusations. They are unaware of the traps laid by manipulative police investigators. They believe telling truth will free them, but the truth is often twisted and distorted by a trained police interrogator who wears down a suspect by asking confusing questions, intimidation, threats and deception. There are plenty of social scientific studies which show innocent people admitting to crimes they did not commit (gave false confession) after hours of unrelenting interrogation. Silence to the accused during custodial interrogation is worth more than all the gold, platinum, emerald or diamond in the world!
Why pretend? Re-create a Star Chamber
In 15th Century England, the Star Chamber (the ceiling of the court had stars painted on it) court was established to enforce the law against prominent people in society who were unlikely to be convicted in the ordinary courts. Star Chamber court sessions were held in secret and prosecuted without indictments or witnesses. The Crown eventually transformed the Star Chamber into a powerful legal weapon to suppress and destroy rivals, opponents and critics. The ruling regime in Ethiopia might as well re-invent its own Star Chamber court complete with a ceiling painted in the occultish pentagram that adorns its flag.
Confessions of an outlaw regime: A regime that breeds contempt for the law
I am often baffled by the regime’s flagrant defenestration of its own Constitution. The rhetoric of constitutionalism often babbled by regime leaders, apart from being laughable, reminds me of the religious acolyte who mindlessly jabbers sacred texts and performs rituals without any meaningful understanding of what he is saying or doing. I am also mindful of a line from Shakespeare, “The devil can cite Scripture for his purposes.” The regime leaders are quick to defend their Constitution against the perceived wrongs and desecrations of opponents. They are conveniently blinded to their own debasement of their Constitution. For years, I have been saying that preaching constitutional law (the rule of law) to the regime leaders in Ethiopia is like preaching Scripture to a gathering of heathen or pouring water over a slab of granite. The latest HRW report goes to show the deep contempt the regime has for the rule of law.
Louis D. Brandeis, one of the great justices to sit on the United States Supreme Court observed, “In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution.” Justice Brandeis was objecting to the use of illegally wiretapped private telephone conversations by the government as a form of compelled self-incrimination.
What can be done when a regime is the lawbreaker? The Constitution trasher? What can be done when the regime is the outlaw? A government that respects the rule of law needs to replace a regime that trashes the rule of law. The ruling regime in Ethiopia by lawlessly forcing its opponents to make false confessions itself confesses silently to its own lawlessness.
“The healthy man does not torture others – generally it is the tortured who turn into torturers.” Carl Jung
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