freedom of movement“Government announces temporary ban on traveling abroad for work”

Last week the “Ministry of Foreign Affairs” of the ruling regime in Ethiopia announced:

In an effort to curb the rising tide of abuse and exploitation of Ethiopian migrants, [there will be]  a temporary freeze on citizens traveling abroad for employment. The temporary ban has been issued to prevent abuse and even killings of many Ethiopians who have travelled abroad for work. The ban is intended to remain in force until legal, administrative and institutional gaps in foreign employment have been addressed. These measures had become necessary because previous efforts by the Government to ensure the rights of Ethiopian workers abroad had failed to achieve their aim. Ensuring safe working remains one of the priority areas of the government. The temporary freeze on foreign employment travel and suspension of foreign employment agencies is expected to speed up improvement of working conditions for Ethiopians working overseas.

Is the “temporary freeze on foreign employment travel” constitutional? Does the regime have the constitutional power to suspend the “liberty of movement” of Ethiopian citizens for the purpose of “prevent[ing] abuse and even killings of many Ethiopians who have traveled abroad for work”? The answer to both questions is a resounding NO!

I am compelled to write this commentary on the constitutional “liberty of movement” of Ethiopian citizens for  two reasons. First, for quite some time I have been concerned about and very critical of the regime’s policy of forced displacement or internal deportation (that is, the forced expulsion of Ethiopian citizens from locations they have chosen to establish residence and engage in employment and sending them back to their so called “kilils” [“autonomous regional states”] or “homelands”). In April of this year, Prof. Yacob Hailemariam, a prominent Ethiopian opposition leader and a former senior Prosecutor for the International Criminal Tribunal for Rwanda commented that the expulsion of members of the Amhara ethnic group  from Benishangul-Gumuz (one of the nine “kililistans” in Ethiopia) was a de facto ethnic cleansing. “The forceful deportation of people because they speak a certain language could destabilize a region, and if reported with tangible evidence, the UN Security Council could order the International Criminal Court to begin to examine the crimes.”

There is substantial and compelling eyewitness and victim testimony to show the flagitious nature of the regime’s policy of internal deportation from various regions including Gambella, Benishangul-Gumuz, Oromiya, Somali and the Ogaden and   Benji Maji/Gura Ferda area in Southern Ethiopia, among others.  I have previously addressed the internal deportation of the so-called “sefaris of North Godjam Amharas” by the late leader of the regime from the Benji Maji/Gura Ferda area. On the issue of the regime’s culpability under Article 7(1)(d) of the Rome Statute of the International Criminal Court (“Deportation or forcible transfer of population”), I opined: “Whether the expulsion of the Amhara ‘sefaris’ is part of a deliberate and systematic policy of ‘ethnic federalism’ in which ethnic purges of a civilian population are undertaken to ensure the ethnic homogeneity of the southern part of the country to the detriment of other Ethiopians of a different ethnic stripe will bear significantly on the question of ethnic cleansing.”

Second, I was puzzled by the regime’s manifestly willful ignorance and/or willful indifference to its constitutional limitations when it recently imposed a “ban on travel abroad for work”. Due to space limitations (yes, I have heard it whispered that my commentaries are too long; but though “brevity is the soul of wit” as Shakespeare commended, it would be witless of me to sacrifice substance for the sake of brevity), I will address the second  issue here and defer my discussion of forced internal deportation and ethnic cleansing for another time.

Ethiopians’ constitutional right to freedom of movement and travel

Article 32 (“Freedom of Movement”) guarantees Ethiopian citizens an untrammeled freedom of movement: “(1) Any Ethiopian or foreign national lawfully in Ethiopia has, within the national territory, the right to liberty of movement and freedom to choose his residence, as well as the  freedom to leave the country at any time he wishes to.”  This “liberty of movement” is further secured and reinforced in two binding international conventions to which Ethiopia is a signatory. The Universal Declaration of Human Rights (UDHR) which is explicitly incorporated into the Ethiopian Constitution under Article 13(2) provides, “The fundamental rights and freedoms specified in this Chapter shall be interpreted in a manner conforming to the principles of the Universal Declaration of Human Rights, International Covenants on Human Rights and International instruments adopted by Ethiopia.” Article 13 of the UDHR similarly provides, “1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country.” Article 12 of the International Covenant on Civil and Political Rights incorporates the identical language of the UDHR, except in subsection 3 makes certain exceptions for national security and public order.

Article 9 of the Ethiopian Constitution (“Supremacy of the Constitution”) provides, “(1) The Constitution is the supreme law of the land. Any law, customary practice or a decision of an organ of state or a public official which contravenes this Constitution shall be of no effect.”

Can the regime impose a “temporary freeze on foreign employment travel” on Ethiopian citizens without flagrantly violating Article 32 of the Ethiopian Constitution and other international conventions?

The language of Article 32 is clear and unambiguous. No special interpretive aid or analytical method is needed to understand the plain meaning of the words. Article 32 is sweeping and comprehensive in its  guarantee of complete freedom of movement. “Any Ethiopian has the right to liberty of movement and freedom to choose his residence, as well as the freedom to leave the country at any time he wishes to.” There are absolutely no preconditions that a citizen must meet before “choosing his residence”, moving from one part of the country to another or in deciding to “leave the country”. The only precondition, if there is one, is that the citizen “wishes” to travel or exercise his/her freedom of movement.

Article 32 also requires no additional legislative act to effectuate its purpose  with such conditional operative clauses as “in a manner to be prescribed by law”. Article 32 is self-executing, which means it fully operative by virtue of its constitutional declaration. It cannot be changed, altered, modified or suspended by legislation or executive fiat.

The regime’s “temporary ban on travel” reviewed within the mandatory language of the supremacy clause of Article 9 (“any decision of an organ of state or a public official which contravenes this Constitution shall be of no effect”), is manifestly offensive and flagrantly repugnant to the sweeping guarantees of Articles 32. The right of law abiding Ethiopian citizens who “wish” to travel cannot be “frozen”, “suspended temporarily” or otherwise  subjected to encroachment. The regime’s travel ban should be roundly condemned and legally declared null and void. (I will not waste ink or time writing about why proper constitutional adjudication of this issue is impossible in the regime’s kangaroo courts or its make-believe “Council of Constitutional Inquiry” under Article 82.)

The plight of Ethiopian domestic workers abroad

There is no question that over the last few years many young Ethiopian women who have voluntarily traveled to or have been  trafficked into various Middle Eastern countries as domestic workers have suffered and continue to suffer horrific abuse and inhumane treatment. I commented on the subject and expressed my outrage over the maltreatment of these  workers nearly three years ago in my commentary “From the International Slave Trade to the International Maid Trade”. Even today, countless Ethiopian domestic workers throughout the Middle East suffer forcible detention by their employers, sexual violence, denial of wages and economic exploitation, demonization in the host countries as criminals and other unspeakable abuse. Their situation is not only heart aching, it is heartbreaking!

However, trashing the unfettered liberty of movement of citizens will not alleviate the suffering of Ethiopian domestic workers in the Middle East nor prevent their abuse or exploitation. The policy rationale that because “previous efforts have failed to ensure the rights of Ethiopian workers abroad” a  “temporary freeze on travel is expected to speed up improvement of working conditions for Ethiopians working overseas” is a nonsensical non sequitur (does not logically follow). To argue that  “Freezing (stopping) employment travel” in its tracks domestically “will speed up improved working conditions overseas” is like saying standing water will cause a flood. The policy justification makes very little sense because the Ethiopians being “exploited and abused” are already in the various countries suffering exploitation and abuse.

It is true that the regime has been the target of intense criticism for its years of depraved and callous indifference to the suffering of these workers. The regime’s “embassies” in that part of the world have turned a deaf ear, blind eyes and muted lips to Ethiopians who have sought their help and support.

Will a “temporary freeze” materially improve the abject conditions of those Ethiopian domestic workers already suffering abuse and exploitation? It will not! Will it facilitate the prosecution of the abusive employers? It will not! Will the “freeze” prevent human trafficking in “forced labor” by criminal elements and their official protectors inside Ethiopia and in the host countries? It will not! Is the “freeze” much of a bargaining chip in negotiations with host governments that allow such abuse and continue to deny basic and minimal legal protections to such workers? It is not! At best, the “freeze” is a last-ditch public relations stunt by the regime to cover up its years of depraved indifference towards the plight of these workers. It is a clever ploy to distract attention from the fact that the regime has done diddly-squat in the face of daily reports and revelations of suicides, homicides and abusive treatment of these workers throughout the Middle East.

The need for special protection of Ethiopian domestic workers abroad  

I believe the exploitation and abuse of migrant domestic workers is among the most important human rights issues of the Twenty First Century. The estimated 150 thousand Ethiopian domestic workers scattered throughout the Middle East and elsewhere are part of the millions of migrant domestic workers facing human rights abuses throughout the world. However, in contrast to the indifference and inaction of the regime in Ethiopia, other legitimately elected governments facing similar problems have taken affirmative action to deal with the problem.

If the regime in Ethiopia is serious about its claims of  “curbing the rising tide of abuse and exploitation of Ethiopian migrants workers”, it must go beyond window dressing and take actions commensurate with the professed concern. First, the regime should accede to  the International Labor Organization’s (ILO) “Migration for Employment Convention (Revised), 1949 (No. 97). That Convention provides a comprehensive framework for the implementation of legislation which provides robust protections to such workers including a “system of supervision of contracts of employment between an employer, or a person acting on his behalf, and a migrant for employment”. Second, the regime should also accede to the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. That convention provides, among other things, “No migrant worker or member of his or her family shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The elements of this Convention should be incorporated by reference or included by enumeration in any agreements the regime enters with host countries with migrant domestic workers programs.

Third, the regime should take advantage of available opportunities to learn from the experiences, policies and laws of other countries with large numbers of migrant workers deployed abroad. Here I use the word “learn” advisedly. By “learning”, I do not mean cutting and pasting the laws and policies of other countries mindlessly and robotically and rubberstamping them.  To this day, I cringe with embarrassment and shame when I recall the braggadocio of the late leader of the regime in February 2012 explaining to his parliament how he had crafted a “flawless” “anti-terrorism law” by plagiarizing and cannibalizing the laws and policies of other countries: “In drafting our anti-terrorism law, we copied word-for-word the very best anti-terrorism laws in the world. We took from America, England and the European model anti-terrorism laws. …Because they have experience, there is no shame  if we learn or take from them. Learning from a good teacher is useful not harmful. Nothing embarrassing about it. The [antiterrorism] proclamation in every respect is flawless. It is better than the best anti-terrorism laws [in the world] but not less than any one of them in any way…” Of course, there was no “drafting” of an “anti-terrorism law”. It was all “copied word for word” (plagiarized) from the laws of other countries. It was a shameless cut and paste job. Today, thousands are imprisoned on the authority of a “law” mindlessly pieced together by ignoramuses who believe laws and policies are mere random words strung together in sentences and paragraphs.

My simple suggestion here is that the regime should carefully study the policies of those governments that have taken effective action to protect the rights of their migrant workers. I believe there is much to be learned from the laws and policies of the Government of the Philippine (GoP) designed to protect the human and economic rights of their migrant workers. In 1982, the GoP established the Philippine Overseas Employment Administration (POEA). The central aim of the POEA is to promote and monitor the overseas employment of Filipino workers. In 1995, the GoP enacted The Migrant Workers and Overseas Filipinos Act of 1995 with the aim of expanding “overseas employment and establish[ing] a higher standard of protection and promotion of the welfare of migrant workers, their families and overseas Filipinos in distress”. This Act was amended in 2009 by  REPUBLIC ACT No. 10022  reaffirming the GoP’s intent to “deploy overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected.” To ensure the rights of these workers are respected, the GoP requires host countries to adopt  “labor and social laws protecting the rights of migrant workers”, ratify or accede to “multilateral conventions, declarations or resolutions relating to the protection of migrant workers” and take “concrete measures to protect the rights of migrant workers.” In 2011, pursuant to the Republic Act No. 10022,  POEA issued a list of countries where Filipino workers may not be deployed owing to the failure of host countries in adopting domestic laws that protect migrant workers. Among the countries where Filipino workers may not be deployed or deployment to be reconsidered include the Kingdom of Saudi Arabia, the United Arab Emirates, Qatar, Kuwait and Bahrain.

Republic Act No. 10022 provides for a comprehensive scheme of detection, surveillance, investigation, apprehension and prosecution of “illegal recruiters” and human traffickers in forced labor. It also provides services for reintegration of returning overseas Filipino workers, legal support for Filipino migrant workers who may need assistance in the enforcement of contractual employment obligations by agencies or employers and victims of illegal recruitment, compulsory insurance for migrant workers at no cost to the workers and establishes a legal assistance fund for the migrant workers.

The significance of the “liberty of movement”

Let me briefly return to the subject of “liberty of movement”, a topic near and dear to my heart. Having practiced  immigration law and represented or consulted with individuals seeking asylum in the U.S. or facing deportation, I understand and empathize  with those persons who have “voted with their feet” to escape some of the most ruthless and wicked regimes in the world. The “liberty of movement” has special significance and meaning for me. It is at the core of what I consider makes a human being free; it quintessentially defines the free man/woman from those who are not free. Prisoners (including political prisoners) have no liberty of movement. They are confined within the prison walls; often political prisoners in countries like Ethiopia are placed in solitary confinement for long periods. Ultimately, the deprivation of the liberty of movement is the essence of the deprivation of liberty. The wages of crime is deprivation of the liberty of movement.

Indeed, liberty of movement transcends the narrow confines of the prison walls. A free citizen is free to roam about the cities and the countryside of his/her country and establish residence, seek gainful employment or earn a legitimate living without fear of official harassment, expulsion or displacement. A free citizen cannot be forced to move from his/her choice of residential or employment location by any official without due process of law.

The liberty of movement occupies a central position in the history of liberties of the most advanced societies in the world today. Over 2000 years ago, Plato wrote of the liberty of the Athenian who “does not like us when he has become of age and has seen the ways of the city, and made our acquaintance, [to] go where he pleases and take his goods with him. None of our laws will forbid him or interfere with him.”  The greatest scholars and seminal thinkers of international law including Hugo Grotious and Emmerich de Vattel  have defended the individual’s liberty of movement. Vattel argued, “Every man is born free; and the son of a citizen, when come to the years of discretion, may examine whether it be convenient for him to join the society for which he was destined by his birth. If he does not find it advantageous to remain in it, he is at liberty to quit it…”  William Blackstone, arguably the most influential commentator on the development of  English law and whose work profoundly shaped the American legal system defined the essence of “personal liberty” “consist[ing] in the power of locomotion, of changing situation, of removing one’s person to whatever place one’s inclination may direct, without imprisonment or restraint, unless by due course of law.”

America, the great Land of Immigrants is founded on the very idea of liberty of movement. Thomas Jefferson wrote, “[O]ur ancestors, before their emigration to America, were the free inhabitants of the British dominions in Europe, and possessed a right, which nature has given to all men, of departing from the country in which chance, not choice, has placed them, of going in quest of new habitations, and of there establishing new societies, under such laws and regulations as, to them, shall seem most likely to promote public happiness.” Today we find that poem familiar to all Americans inscribed on a bronze plaque inside the Statue of Liberty, “… Give me your tired, your poor,/ Your huddled masses yearning to breathe free,/ The wretched refuse of your teeming shore./ Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!/…”

I perceive one of the gravest threats to human rights emanating from attacks on the liberty of movement. The greatest weapon of control and subjugation in apartheid South Africa was the creation of a pernicious system of movement control which deprived black  south Africans the liberty of movement. Indeed, apartheid (policy of “separate development of blacks and whites”) was based on an ideology of keeping black South Africans confined to the “homelands” and townships. For decades, black South Africans were virtual prisoners in their own country. The apartheid regime incapacitated them by restricting their liberty of movement in a variety of ways. They were forcibly corralled in bantustans (“homelands”) like cattle. They were legally prevented and sanctioned severely if they relocated from their “homeland” to another part of their country. They were forced to carry passes (internal passports of sorts) just to have the privilege of moving from one part of their country to another to work. They were subjected  to curfews and random stops. They were arrested and jailed for being in the wrong place at the wrong time. The apartheid regime incapacitated the leadership of the African National Congress and other organizations by declaring them “banned persons”, which meant house arrest, no association with more than one person at a time or communicating with any group.

Black South Africans had no right to travel outside of South Africa and were ineligible to receive  a passport under the apartheid regime. If they wanted to get a passport and travel, they had to first become “citizens” of one of the four “independent homelands”, renounce their South African citizenship or accept the revocation of South African citizenship imposed upon them by the apartheid regime. Only then would they receive the passports” of their “independent homelands”. In 1962, after arrangements were made for Nelson Mandela to enter Ethiopia for military training, H.I.M. Haile Selassie granted him an  Ethiopian passport under the name “David Motsamayi”. Mandela later fondly remembered, “Ethiopia has always held a special place in my own imagination and the prospect of visiting [it] attracted me more strongly than a trip to France, England and America combined. I felt I would be visiting my own genesis, unearthing the roots of what made me an African. Meeting the emperor himself would be like shaking hands with history.” Today, for millions of Ethiopians Ethiopia is not a “special place” and so they uproot themselves and seek refuge in France, England, America, the Middle East… Such is the irony of history!

“Free to come and go as one wishes”: Hope springs eternal

I have often criticized the ruling regime in Ethiopia for its willful ignorance of its own Constitution, willful indifference and oversight of its duties under the “supreme law of the land” and flagrant disregard of its obligations under international law. For more years than I care to remember, I have hectored and “sermonized” them  on the sanctity of the rule of law and the inviolability of the supreme law of the land. Needless to say, I harbor no illusion that they will ever pay any attention to my admonitory exhortations, moralizing discourses or constitutional edifications. Nor do I labor under any fantasy that they have the political will, technical sophistication or administrative competence to deal with the enormous problems facing Ethiopian migrant workers in the Middle East. I have long concluded that “evangelizing” the “gospel” of the rule and supremacy of law to the benighted and misbegotten is like preaching Scripture to a gathering of heathen or pouring water over a slab of granite. However futile, vain and bootless my efforts may be, I shall continue to “sermonize” for I believe “Hope springs eternal in the human breast: Man never is, but always to be blest…”, to quote a verse from Alexander Pope. I also believe in the essential truth of an old Chinese saying, “Dripping water penetrates the stone.” One must cherish the hope that it is possible to save those lost in the wilderness of tyranny, trapped in a wasteland of brutality and cruelty and adrift on a sea of crimes against humanity.

Is it not wonderful to be a utopian Ethiopian? 

Professor Alemayehu G. Mariam teaches political science at California State University, San Bernardino and is a practicing defense lawyer.

Previous commentaries by the author are available at:

http://open.salon.com/blog/almariam/

www.huffingtonpost.com/alemayehu-g-mariam/

Amharic translations of recent commentaries by the author may be found at:

http://www.ecadforum.com/Amharic/archives/category/al-mariam-amharic

http://ethioforum.org/?cat=24