By Alemayehu G. Mariam | 26 October 2009

In the first part of our commentary on the madness of Ethiopia’s 2010 “elections”, we posed the question: “Is it possible to have a fair and free election in a police state?” In light of the persuasive anecdotal evidence presented by former Ethiopian president Dr. Negasso Gidada, which pointed to the complete absence of a level electoral playing field, we concluded it was not possible. We were cautiously optimistic that all stakeholders, acting transparently and in good faith, and with robust accountability mechanisms in place, could take a leap of faith into what appears to be a sham election in the offing to vindicate the cause of democracy, rule of law and popular sovereignty. But our optimism and aspirations for a fair and free election in 2010 hinge precariously on whether the following question is answered affirmatively, and without any mental reservations and purpose of evasion: Will the dictatorship agree to and in good faith abide by an election code of conduct that is based on the principle of respect for the rule of law and human rights, and conforms to its own constitution and election laws?

The Pillars of Free and Fair Elections: Co-equality, Equity, Civility, Good Faith, Mutual Respect and Tolerance

Free and fair elections are best guaranteed if certain basic principles are accepted and fully adhered to in the relationship between the political parties, candidates, their supporters and other stakeholders. The first pillar is the principle of co-equality. In George Orwell’s Animal Farm, “All Animals are created equal but some are more equal than others.” Not so if we are to have free and fair elections in Ethiopia. All parties are presumed to be co-equal under the Ethiopian “constitution” because fundamentally elections are about equal access and participation in the democratic governance process based on the principle of one person, one vote. This proposition is consistent with Articles 56, 60 and 72 of the Ethiopian “constitution” which prescribes the rules for the formation of party governance, scope of power during a period when elections are underway and coalition-building to form a government.

In the run-up to the 2010 “election” what we witness is a one-man, one-party dictatorship in which the ruling “EPDRF” party is astronomically “more equal” than all of the other opposition parties combined. The leaders of that party serve as prosecutor, judge, jury and executioner in all matters relating to elections. If fair and free elections are to take place, the ruling party and its leaders must accept in principle and in practice that the opposition political parties are their equals in the eyes of the law; and that their complete dominance of the society does not entitle them to harass, mistreat, abuse and persecute the opposition in the electoral process.

There is a huge equity gap between the ruling party and its leaders and the opposition. The rulers enjoy extraordinary legal and political privileges, advantages, benefits and entitlements because they literally own the political system. Their party members and leaders dominate the bureaucracies, the courts, the police forces and the local administrative structures. Most importantly, they own the election commission. It is a necessary precondition for a fair and free election that there be mechanisms in place to ensure all parties and stakeholders have equal opportunities to compete fairly for votes. Equitable principles require that the opposition receive and disseminate information freely, have access to state media on the same terms and conditions as the ruling party, be able to educate and canvass voters, hold meetings, conduct campaigns freely and vigorously engage fellow citizens to exercise their right to vote in an informed manner.

Civility is an attribute of civilized people in the way they relate to each other particularly in controversial matters. Civility is one thing that is abundantly available in Ethiopia. As the 2005 election has demonstrated, political campaigns, debates and discussions were conducted largely focused on the issues and less on leadership personalities. Passionate statements and speeches were given and robust exchanges of views took place in the media; and even in heated debates, the rule was reflective reaction than reflexive counteraction. In 2005, the stakeholders “disagreed without being unduly disagreeable.” That is civility!

Good faith and fair dealing are two things missing from the ethical satchel of the ruling party. They have used “bait and switch” tactics as evidenced in their recent attempts to finesse Medrek to sign a prefabricated “code of election conduct”. They have shown little honesty of intention in what they do or promise to do. They have a long history of bad faith dealing with opposition parties. They have relentlessly sought to outsmart, outfox, outwit, hoodwink and bamboozle the opposition through organized trickery, misrepresentation, duplicity, slyness and other underhanded techniques. These things will simply not work in 2010. As the old saying goes, “You can fool some of the people some times, all of the people some of the time; but you can not fool all of the people all of the time.” Everyone in the world knows that the ruling party is at the end of its wits desperately trying to fool all of the people all of the time. It is time they tried a little bit of good faith bargaining, negotiations, compromising and fair dealing with their opposition. They must stop their brinksmanship games and their peculiar diplomacy by ultimatum: “Our way or the highway!”

Respect and tolerance in the context of free and fair elections mean, first and foremost, respect for the rule of law; and secondly, respect for each other in the electoral process. The ruling party must respect its own constitution and laws and its international treaty obligations which require compliance with basic standards in the conduct of free and fair elections. They must also respect the electoral process and the participants in it, including the voters. The evidence shows that the ruling party has been consistently paternalistic, disdainful and dismissive of the opposition. They have arbitrarily imprisoned major opposition party leaders and their supporters; and Ethiopia’s preeminent political prisoner, Birtukan Midekssa, remains jailed without legal cause. She must be released along with the thousands of other political prisoners forthwith.

The ruling party’s contempt and disrespect for the opposition has its roots in the party leaders’ views that they came to power through the barrel of the gun, and that no one will take that power away from them through the ballot box. That is their fundamental existential problem. The issue of respect, however, goes deeper to the level of respect for the sovereign verdict of the people in a free and fair election. If the ruling party has no respect for opposition parties and their leaders, and is unwilling to show tolerance for competing views, ipso facto, it does not have respect for the citizens who cast their votes or for the choices made by the people. In the context of free and fair elections, respect means “Respect the Vote!”

Code of Conduct for a Level Electoral Playing Field

As we have argued on New America Media (NAM) , there is really no need for an “election code of conduct” in 2010. In 2005, without such a code, real opposition parties were able to campaign vigorously. There were free and open debates throughout the society. A free private press challenged those in power and scrutinized the opposition. Civil society leaders worked tirelessly to inform and educate the voters and citizenry about democracy and elections. Voters openly and fearlessly showed their dissatisfaction with the regime in public meetings. On May 15, 2005, voters did something unprecedented in Ethiopia’s 3000-year history: They used the ballot box to pass their verdict. That is the best way to conduct the 2010 election - by letting the people pass their sovereign verdict in a fair and free election.

But if an “election code of conduct” could help facilitate fair and free elections and enable the people to pass their sovereign verdict, it is worth trying, even against overwhelming odds. But there is no need to reinvent such a code; one is readily available from the largest democracy in the world, India. Since 1947, India has successfully conducted thousands of elections at regular intervals as prescribed by its constitution, elections laws and international obligations. There are 7 national and 39 state registered parties by the India Election Commission, along with 730 unregistered ones competing for office. There is no doubt that the Indians know a thing or two about conducting free and fair elections.

The 2009 Model Code of Election Conduct of India (Model Code) offers arguably the best archetype that could be adopted for elections in Ethiopia . The Model Code is “a unique document that has evolved with the consensus of political parties themselves and the Commission implements and enforces it with the aim of providing a level playing field for all political parties and ensuring free and fair elections.” It is comprehensive and addresses nearly every potentially disruptive and unfair election practice that could undermine confidence in an election outcome. It disapproves of actions and messages by any party that creates ethnic hatred or communal tensions, prohibits the use of inflammatory rhetoric based on personal attacks and false allegations; it strongly discourages demagogic appeals to communal feelings and divisive propaganda for votes; and it prohibits and penalizes corrupt and illegal practices such as bribery, voter intimidation, violation of election laws, improper use of public property and resources for partisan advantages.

To ensure a level playing field, the Model Code prohibits government ministers from combining their official visits with electioneering. They are prohibited from using official equipment, vehicles or government employees in electioneering work; and they may not make payments, financial grants or promises of money or other public works projects to any person or constituency from the time elections are announced by the Commission. There are special rules for election day to “ensure peaceful and orderly polling and complete freedom to the voters to exercise their franchise without being subjected to any annoyance or obstruction.” Criminal penalties in the form of a three-year simple imprisonment or fine are provided “for persons who create enmity between people in the name of religion, caste, community or language during the election campaign.” There are ample mechanisms to challenge the party in power where there is reason to believe officials are exploiting their offices for partisan advantage.

Central to the whole process of free and fair elections in India is the constitutional role played by the independent Election Commission of India, which has broad authority in elections administration. The Commission decides and announces the election schedules for general or bye-elections, registers political parties, settles disputes and conducts periodic consultations with them. It has broad authority to review charges of election fraud and corrupt election practices. It has the power to disqualify candidates who fail to meet basic requirements of the election law. It has advisory jurisdiction in post-election disqualification of sitting members of parliament. The Commission maintains its transparency and reinforces its impartiality by holding regular press briefings during elections. Most importantly, the Commission is insulated from executive, legislative and judicial interference.

To Have or Not To Have Free and Fair Election in 2010

We would like to end on a hopeful note. We believe that an election code of conduct that is forged through a consensus of all the political parties and administered by an independent and impartial electoral commission could go a long way to ensure a peaceful, fair and free election in 2010. We are also realistic. We may try to analyze, theorize, slice and dice the obvious. In the final analysis, it may all end up being the old zero-sum game the regime has played so well for the past two decades, this time dressed up as a new game of “election code of conduct.” We can wax eloquence all day but none of us understand or are able to tell the truth about elections in Ethiopia with greater moral clarity and conviction than Birtukan Midekssa, who, a day before she was manhandled and whisked back to Kality prison on December 27, 2008 by the regime’s security officers said:

The message [of the regime] is clear not just to me but to all others involved in peaceful struggle [in Ethiopia]: Participation in the political process shall be as approved by the regime in power or at the discretion of individuals [wielding state power]. For me, this is extremely difficult to accept.

It may be difficult for many of us to accept this bizarre reality as well. “To have or not to have a free and fair election in 2010,” that is the question facing the people of Ethiopia today. We used the word “madness” in describing the 2010 election advisedly. Albert Einstein once said, “The definition of insanity is doing the same thing over and over again and expecting different results”. Participating in a bogus election over and over again and expecting a different result could be an alternative definition of insanity.
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The writer, Alemayehu G. Mariam, is a professor of political science at California State University, San Bernardino, and an attorney based in Los Angeles. He can be reached at almariam@gmail.com