The Constitution and the Eritrean Opposition
FIRS of all, I want to make it absolutely clear that I am engaged in this conversation not as a member of the EDP, but in my own individual capacity as a law professor and, of course, as the person who chaired the Constitutional Commission. It is important to bear this in mind particularly since I said at the outset that I want this conversation to be constructive and transformative. That would not necessarily be the case if people believe that I am using this public forum to advance the agenda of one particular party or group; I am not.
I became aware, at the very beginning of the constitution making exercise in 1994 and later in 1995 of some negative vibes coming from some former members of the ELF. This occurred during my visits to the united States at meetings where I and other members of the Commission addressed meetings of Eritreans to explain the process of constitution making as part of the public participation and expert consultation in accordance with the strategy worked out by the Commission.
The principal reason advanced by those who challenged us and the process underway was based on their contention that it was an EPLF-designed process and that because the EPLF does not represent them (or the ELF), the process was not acceptable to them. It is fair to say that many among former ELF members did not subscribe to this line of reasoning; in fact a good number among them participated in meetings convened and conducted under the aegis of the Commission's representatives in Europe, America, Canada, Australia, Ethiopia and the Middle East.
It is also undeniable that the vast majority of the Eritrean people both at home and in the Diaspora participated in the process from beginning to end, and the process was considerably enriched by their participation. It is in fact one important aspect of the fund of good will among the international community that that Eritrea has squandered that towards the end of the process, many foreign observers went out of their way to point out the uniqueness of what they termed the Eritrean model of constitution making, particularly as regards the active involvement of Eritreans in the Diaspora.When I was asked to act as a consultant to the constitution makers of several nations, this fact was brought up and I was asked in seminars to describe our own experience.
The statistics are there: the vast majority of Eritreans participated in the wide-ranging debates, lecture series and seminars that the Commission organized (as required under the law that created the Commission) inside Eritrea as well as among Eritreans in the Diaspora. Not only did they participate, but they did so enthusiastically, proclaiming that it was at once the continuation and the consummation of the protracted struggle that their country was forced to go through. They saw clearly and unambiguously that the constitution was their property and the property of those who paid the ultimate sacrifice to liberate their nation. They thus saw it as their duty duty to be active participants of its making.
In these circumstances and in the context of a government (yes, of the EPLF) that made a solemn undertaking to prepare the country for a democratic constitutional government, it makes little sense to object to constitution making on any ground. [Any one who doubts the EPLF governmetn's solemn undertaking, all they need do is see Procalamtion No. 37/1993]. pursuant to that solemn undertaking as stated in the law, the government established a Constitutional Commission under Proclamation No. 55/1994.
What the government has done or failed to do since then is another subject for another day. But the fact remains, they were committed to Democratic transition and to constitutional government. [Consult the above-cited laws and the text of the constitution itself].
To call a constitution that came out of such process, that it is a sectarian constitution--that it is Isaias' constitution--and refuse to accept even as working document, is beyond reason. The reason of curse is not far to seek. It is a function of the toxic politics of post-independence Eritrea, a toxicity that was inherited from the era of armed struggle and is now complicated by the poisoned politics of the region.
As for the legitimacy of the Commission, it is true that the National Assembly over which Isaias presides did indeed appoint the Commission. The fact is that only a functioning government can do such appointing, and this a practice everywhere. Even Commissions appointed by a military government have been accepted as legitimate. It is a question of international law. The real question is: once appointed, did the Commission act autonomously both in terms of its control of the process and in terms of the content of the constitution. The answer is a resounding yes on both counts. Then there s of course, the notorious fact that Isais has not implemented the constitution, even though some leaders of the opposition call it his constitution!! What does this indicate? What does the refusal of the opposition to touch the constitution that is the property of the Eritrean people imply? Who are the leaders and forces who are dead against it?
I'll leave it there for the moment.