You have asked several questions, all important and all in need of commentary. I don't know if you are aware that all these and more are covered in detail in my book, "The Making of the Eritrean Constitution" (2003). But I will answer your questions in batches of two or three at a time.
1. Article 17--Arrest, Detention and Fair Trial.
You ask why there is no effective remedy "by Te Competent National Tribunals" for acts violating the fundamental right granted by the constitution.
Let me begin with what the constitution has laid down in this respect. The constitution being the basic framework for the resolution of all issues of contention, we must start from there--we need to refer to its provisions. That is what judges or anybody entrusted Th the duty of adjudicating a dispute must do. So what does the constitution say on this question.
If you read (or reread) the constitution, you will find that this question is covered in the penultimate article of the chapter on Fundamental Human Rights...of the constitution (Article 28), titled, "Enforcement of Fundamental Rights and Freedoms.
The constitution charges the courts of law with the duty of protecting fundamental rights. Protection of rights necessarily includes enforcement of rights and providing the necessary redress when the rights are violated or infringed upon (Article 28(2)).
Actually, Article 28 begins with a prohibition; it says, "The National Assembly or any subordinate legislative authority shall not make any law, and the Executive and the agencies of the government shall not take any action that abolishes or abridges the fundamental rights and freedoms conferred by this constitution unless authorized by this Constitution. Any law and any action in violation thereof shall be null and void."
Note the wording of the last sentence--"Any law and any action in violation thereof (i.e. of the rights conferred by the constitution) shall be null and void." That is to say any law enacted, or any action taken in violation of this provision of the constitution shall have no force ad effect.
And who is to enforce this? who else but the courts of law, which brings us to sub-section 2 of Article 28. It provides,"Any aggrieved person who claims that a fundamental right or freedom guaranteed by this constitution has been denied or violated shall be entitled to petition a competent court for redress..." The sub-articles also says that in cases where the court finds that a right had been violated or denied, it has the power to make orders to secure the violated right. Where damages had been suffered, the court has also the power to order an award of monetary compensation.
This provision of the constitution is the anchor of what is generally known as The Rule of Law. The courts of law lie at the center of the legal system as enforcers of the rule of law, as guarantors of fundamental Rights.
Now in a democracy, the courts do not stand alone; they are backed by the general public, but a free press and by a responsible representative institution elected, among other things, to fight for fundamental rights and freedoms of their constituents. Also in a democracy, even the executive is supposed to tread carefully not to violate any rights and freedoms. The police, for instance, have to obey the law being careful not to infringe on the rights of an individual even when enforcing the law in arresting a suspect. I can give other examples, but I think you see my point. In fact, as I said in answering another question yesterday, the President is under a duty to protect and defend the constitution, and he/she can be impeached where he/she has been found o have violated it. (See articles 32(9) and 41(6)].
To come back to your question, why are the competent authorities (.e. the courts of law) not fulfilling their duty in providing effective remedy for acts of violation of fundamental rights, I must first point out that we are working on the basis of an assumption that the courts are failing in their duty. Let me begin by saying that it is problematic to make a blanket statement like this,which gives the impression that all courts are failing in their duty on all occasions and that they do not lift a finger to redress wrongs committed by members of the executive, like the police or Ministers and/or their agents.
That surely cannot be right because we can also make a counter assumption that thee ares some judges who are burning to exercise their constitutional duties and provide redress, as they are supposed to. Let me also say that there have been many reports of egregious violation of human rights in Eritrea particularly as concerns prisoners held in camps and other places of incarceration. This is a matter of record and does not need elaboration.
First of all, before we conclude that the courts have failed in their duty it is necessary to ask if they have been petitioned by members of the public whose loved ones have been detained and treated inhumanely, asking for legal redress. Such redress would inevitably ask for an order to release the detainee or bring him/her to court and explain the reason for their detention. I assume that there have been such requests and I also assume, however, that the courts are unable (and perhaps unwilling) to entertain petitions asking them to send orders to the government authorities telling them to release the detainees or bring them to court and explain why they have been detained.
Of course, we know the reality in Eritrea today. What judge would go all the way in enforcing the constitutionally-guaranteed rights of individuals to the extent of probing happening in Saws or even in detention centers other than Saws. If there are such judges and if they have made heroic attempts to stand up to the Executive, history will indeed write their acts in golden letters, as the saying goes. The truth is that the above citation of the constitution is the ideal situation that we all hoped and expected to be the condition for which martyrs gave their lives and on which there were great expectations on our part that the constitution would be implemented as it was supposed to be by the end of 1997 or (at the latest) by the middle of 1998. As we all know that has not happened. Therefore all talk about constitutional rights has been frustrated by a simple fact that the constitution has not been implemented.
The point about the question is why have the institutions that are charged with protecting or defending the rights of people not done their duty. As we saw in the present Eritrean reality the most that we can expect from some courageous judges is to register their views and face the consequences.
One such judge did so and was summarily dismissed from his post. He happens to be the President of the Supreme Court, that is to say, the head of the judiciary. In dismissing him at his first attempt to stand up for constitutional rights, objecting to the undue interference of the Executive in judicial matters, the powers-that-be dealt a severe blow to judicial independence and thus instilled fear and intimidation in the rest of the judiciary.
All Eritreans who had pinned their on a constitutional governmetemerging with the implementation of the constitution were bitterly disappointed. Some of them took up the cause of democracy and the rule of law demanding that the constitution be implemented and that a people's representative body be elected in accordance with and electoral law as stipulated in the Constitution. They also called upon the president to fulfill his promise and the promise of the party that he heads to institute democracy and the rule of law. You know what happened t some of those who pressed such demands top the ultimate point of challenging the president.
Others have taken the struggle from the realm of law into that of politics and formed opposition movements abroad. The vast majority, however, have been silenced into submission, I suppose expecting others to do the job for them.
Does this sound familiar? And can you feel the deafening silence in the count
That will be all for now; I will answer your seven other questions later today or tomorrow.
Have a good summer and thank you for asking truly probing questions.