Prepared by the Focus Group on Public Safety and Law of ERIPS (With Input from the Eritrean Law Society –ELS)
April 2021
This document highlights, in a summarised way, the most important features of a potential
transitional justice plan for the post-dictatorship era of Eritrea. Its focus is mainly on the
restoration of a fully functioning system of administration of justice. An independent judiciary
is one of the most important bulwarks against abuse of government power. It is precisely
because of this reason that the major institutions of justice in Eritrea (mainly the judiciary
and its concomitant partners, namely, the public prosecution authority and the police) have
been deliberately rendered ineffective when it comes to the protection and promotion of
fundamental rights and freedoms of citizens. In that context, the primary victim of abuse of
government power in Eritrea has been the very ideal of the rule of law itself.
For purpose of this document, the most important reference document for the definition of
the concept of the rule of law is the 2004 Report of the UN Secretary-General on the Rule
of Law and Transitional Justice in Conflict and Post Conflict Societies, in which context the
rule of law is understood as: a principle of governance in which government action is
subjected to the requirements of the supremacy of the law, equality before the law,
accountability to the law and avoidance of arbitrariness, among several other factors. As
noted above, it is an impartial and independent judiciary, loyal to the requirements of the
rule of law, which can effectively serve as a bulwark against capricious and arbitrary
government power.
Taking a very optimistic view of a transitional period that unfolds in the context of a relatively
stable political order, Eritrea will be expected to adopt a transitional justice policy that
adequately addresses the need for accountability for gross human rights violations
committed during the PFDJ era. This may have to be complemented by efforts of national
reconciliation, including among and between diaspora-based political forces. A central
element of this effort shall be restoring public trust in the institutions of administration of
justice: the judiciary, the public prosecution authority and the police. Needless to say, such
an effort, in particular the component of national reconciliation and healing, is also expected
to tap from the reservoir of wisdom Eritrean customary laws and indigenous knowledge
systems offer.
Potentially, Eritrea’s forthcoming transitional period is to be stirred by a government of national unity that shall make it possible for the country to address the legacies of the prevailing dictatorship in a more responsible way, including addressing the issue of re-establishment of the rule of law through an all-inclusive national process. There has to be accountability for gross human rights violations in a way that satisfies not only the needs of victims but also the requirements of post-conflict healing, including the intricacies of the early transitional period to democracy – a period of time often times characterized by high level of insecurity and uncertainty about the future, thus denoting a need to strike a delicate balance.
It is important to underscore that one of the most daunting challenges of the forthcoming transitional period would, therefore, be that of inculcating a rule-of-law-abiding political culture, one key aspect of present-day Eritrean polity that has been severely damaged by the political crisis in the country. For this to happen, there is a need for a robust planning in the area of Security Sector Reform (SSR), Security Sector Governance (SSG) and Judicial Sector Reform (JSR), including profound law reform process. SSR is related to “cleaning” key state institutions from elements that are in one or another way associated with the perpetration of gross human rights violations in the past. SSG is also related to improving the conditions in which the sector is governed.
JSR is that of reforming the administration of justice (mainly courts, the public prosecution authority and the police). In this sense, there is also a need to enhance the capacity of existing judicial officers, public prosecutors and the police force, by providing tailor-made capacity building programmes focusing specifically on the protection and promotion of human rights, including how to address large-scale prosecutions regarding violations committed during the reign of dictatorship. There is also a need for progressive recruitment of criminal lawyers (defence and prosecutorial), forensic investigators, social workers and other experts in order to constantly replenish the needs of an independent, impartial and efficient judicial system, as well as the broader objectives of post-regime change societal healing. The legal profession also needs to be reinstated by launching a national body of accreditation and association of legal professionals. In this regard, the Eritrean Law Society (ELS), the only association of Eritrean jurists and lawyers presently operating in exile, can serve as a stepping-stone to the next level of engagement once the requisite elements of political transition materialise. Related to this issue the establishment of a national commission of human rights or an ombudsman that shall serve as a vigilant watchdog against potential abuse of government power and/or human rights violations in the future.
In the meantime, adequate preparatory work needs to be done by diaspora-based Eritrean actors, both in terms of building consensus on major issues of national concern, such as: constitutionalism, minority rights, language issue, potential options for devolution of government power (federal or non-federal system of governance), etc. The articulation of potential options needs to be carried out in periodic reviews, consultations and deliberations with like-minded stakeholders of diaspora based democratic forces, who also need to harmonise their work, by bringing their resources together for a better and effective work. This is also important to avoid duplication of efforts by various initiatives doing almost the same thing but in different and tedious ways. In the most immediate time, the more daunting task is that of dismantling the dictatorial political order in Eritrea and in its ashes ushering the foundation for a stable and sustainable democratic order. This is the cardinal call of our time.