by Professor Alemayehu G. Mariam 

WE live in a time that gives new meaning to Shakespeare’s line in Julius Caesar: “The evil that men do lives after them…” Today we come face to face with the evil Meles Zenawi has done when he lived. A piece of Ethiopia is retailed once again to the Sudan. They call it “border demarcation.” I call it call it border slicing, dicing and pricing — all for thirty pieces of silver!

In July 2008, I gave an impassioned speech in defense of the territorial integrity of the Ethiopian motherland at a conference called by a North American civic society group known as “Gasha for Ethiopia”:

We are here today to help stop Meles Zenawi from completing his evil plans to dismember our motherland. When Meles gave away the Port of Assab, we remained silent and paid the price of being landlocked. In 1998, Badme was invaded and 80,000 Ethiopians sacrificed their lives and drove back the enemy. But Meles promptly converted Ethiopia’s battlefield victory into total diplomatic defeat by agreeing to deliver Badme to the invaders in arbitration… (Today) we are told by people who live in Western Ethiopia that Meles has delivered their ancestral lands and homes to Sudanese dictator [and fugitive from justice at the International Criminal Court] Omar al-Bashir in a secret agreement…

I deeply regret that six years after I gave that speech, we have not been able to thwart Meles’ evil plans to dismember our motherland. Meles is gone and we now face the evil that lives after him. Is it true that “All that is necessary for the triumph of evil is that good men and women do nothing”? Has evil finally triumphed?

Ethiopia on the Meles Zenawi’s chopping block

In December 2013, Sudanese foreign minister Ali Karti announced that the ruling regimes in Ethiopia and the Sudan “have ended their border disagreement on ‘Fashaga’ area” and “agreed to resolve all their border demarcation disputes.” Karti said the leaders of the two regimes have “signed a historical document putting the final demarcation lines.” Sudan’s foreign ministry rejected any suggestion of “border disputes” between Ethiopia and the Sudan indicating only that there were minor disagreements on “limited points at the border”. The public relations strategy of the regime in Ethiopia over the past weeks has been to been to underplay the “border demarcation issue” and overplay the “enormous significance” of the “strategic framework agreement” which allegedly includes “cooperation agreements on security, economic, agricultural, educational and cultural levels.”

In 2001, the reasons given for the “border demarcation” were quite different.The Sudanese regime at the time explained the demarcation was necessary to “‘develop and integrate’ Al-Qadarif State with Tigray State in northern Ethiopia… The two regions were agriculturally productive, with Al-Qadarif, considered to be the ‘bread basket’ of Sudan… The existing road from Al-Qadarif to Mekele… is being repaired and upgraded… Tigray State would benefit through having better access to the Red Sea, as the road to Al-Qadarif connected to Port Sudan. ‘That makes Port Sudan closer to Mekele than the Eritrean port of Massawa or the Somali port of Berbera…”

In 2008, Meles Zenawi wagged his forked tongue dripping with lies about the “agreement” with the Sudan. In May of that year, his foreign ministry first put out a statement categorically denying any agreement for the transfer of any Ethiopian land to the Sudan. That statement accused alarmist “media” and “irresponsible” elements outside the country for creating fear and panic. Sudanese officials contradicted that statement by  publicly announcing “acquisition of territory” from Ethiopia. By mid-May, Meles and his henchmen could not keep a lid on the secret land transfer deal and began backtracking on their initial story. They said only preliminary work on border demarcation had been done, but nothing had been finalized. Within days, Meles and Co., had invented a brand new lie. They casually admitted to “implementing prior agreements” concluded by the imperial/Derg regimes with the Sudan.

Their lies began to unravel even more when the Ethio-Sudan Border Affairs Committee began to aggressively probe the issue and investigate what was really happening on the ground in the affected border areas. Ethiopians victimized by Meles’ land giveaway to the Sudan began giving interviews to the Voice of America and other international media outlets. The victims complained bitterly that they had been driven out of their ancestral lands by occupying Sudanese forces. Their farm equipment and tools had been confiscated by Sudanese forces and scores of Ethiopians had been arrested and detained in Sudanese jails. At that point, Meles had no choice but to “fess” up and admit that he had indeed signed an agreement with Sudan.

On May 21, 2008 Meles publicly described his agreement with Bashir as follows:

We, Ethiopia and Sudan, have signed an agreement not to displace any single individual from both sides to whom the demarcation benefits…We have given back this land, which was occupied in 1996. This land before 1996 belonged to Sudanese farmers. There is no single individual displaced at the border as it is being reported by some media.”

In November 2008, more conclusive evidence was revealed in a Wikileaks cable. “Former TPLF Central Committee member and former Defense Minister Seeye Abraha told” American embassy officials in Addis Ababa that in a move to deal with “on-going tensions between Ethiopia and Sudan”, Meles had turned over land to the Sudan “which has cost the Amhara region a large chunk of territory” and that Meles’ regime had tried to “sweep the issue under the rug.”

Meles then and his flunkies today insist on keeping that agreement “under the rug”. However, Meles’ 2008 public statement on the “agreement” he “signed” with Bashir reveals some valuable indications. By Meles’ own admission, there is no question that as of May 2008 there existed a formal “signed agreement” between himself  and Bashir which memorialized detailed terms and conditions of the “land giveback”. As to the subject matter of the “agreement”, Meles put on the record a number of important issues. The “agreement” 1) pertains to questions of non-displacement of persons in the giveaway territories; 2) addresses preservation of benefits of all persons affected by the border demarcation;  3) restores ownership rights to Sudanese farmers on land supposedly occupied illegally by Ethiopian farmers; and 4) in its entirety cedes territory (“give back of land”) illegally “occupied” by Ethiopians “in 1996” back to the Sudan.

It is important to understand and underscore the fact that the “agreement” Meles and Bashir “signed”, by Meles’ own description  and admission, has nothing to do with the so-called Gwen line of 1902 (“Anglo-Ethiopian Treaty of 1902” setting the “frontier between the Sudan and Ethiopia”). It also has nothing to do with any other agreements drafted or concluded by the imperial government prior to 1974, or the Derg regime between 1975 and 1991 for border demarcation or settlement. Meles’ “agreement”, by his own admission, deals exclusively with border matters and related issues beginning in 1996, when presumably the occupation of Sudanese land by Ethiopians took place under Meles’ personal watch.

Why do they insist on keeping secret and refuse to make public “agreements” that have given a “large chunk” of Ethiopian territory to the Sudan?

The whole “border demarcation” canard (hoax) fabricated by Meles and Hailemariam is nothing more than smoke and mirrors. The real deal went down in 2008. There is no question whatsoever that Meles signed, sealed and delivered a “large chunk of territory in the Amhara region” to the Sudan and tried to “sweep the issue under the rug.” In 2014, the marionette prime minster Hailemariam Desalegn is staging another elaborate political theatre to continue Meles’ charade and trying to “sweep the issue under the rug” forever more.

Hailemariam and his puppet masters think they can hoodwink, dupe and bamboozle the Ethiopian public. They think Ethiopians are too dumb and stupid not to see through their smoke and mirrors land giveaway games. They can play their foolish games all they want, but Hailemariam has to answer one question: “Where are the secret “agreement(s)” that have given up a ‘large chunk of territory in the Amhara region’?” Why did Meles in 2008 and Hailemariam and Co., today insist on keeping the secret agreement(s) secret from the public ‘by sweeping them under the rug”?  Why are they not willing to present the “agreements” to the parliament (“Council of Representatives) for ratification as mandated by the Ethiopian Constitution?

The answer is simple: The secret “agreement” Meles talked about in 2008 and Hailemariam babbles about today are not what they are  portrayed it to be. They are all lies. Of course, to say Meles lies is to mention his name,  MeLies. They all lie through their teeth. If Meles’ and Hailemariams’ public statements on their “agreements” truly reflect the words in the written “agreements” they signed with Bashir, what possible harm could come from making the actual “agreements” public? Wouldn’t the actual written “agreement(s)” be the best evidence of the truth or falsehood of Meles’ and Hailemariam’s public statements?

Secrecy is the lifeblood of the ruling regime in Ethiopia. They think by keeping things secret, they have fooled everyone. Meles when he was alive and his lackeys today have such total contempt for the intelligence of the Ethiopian people that they truly believe they can pull the wool over the people without detection or scrutiny.   When Meles and his gang delivered the Port of Assab and Badme on a silver platter, few muttered their objections. Meles and his gang learned an important lesson from that: Ethiopia is their private estate and they can do whatever they pleased with Ethiopians or Ethiopian territory with impunity.

Any “agreement” by Meles/Hailemariam to relinquish any part of Western Ethiopian territory to the Sudan is unconstitutional

Back in May 2008, I argued that Meles has no legal authority to hand over Ethiopian land to the Sudan, or for that matter anyone else. Today, Hailemariam also has no legal right or authority to turn over Ethiopian land to the Sudan. Having said that, there is no question that Meles has “signed” an “agreement” to relinquish a “large chunk of territory in the Amhara region” to the Sudan. Hailemariam and his puppet masters are now trying to make us swallow this illegal land transfer by sweet talk of a “strategic framework agreement”. The fact of the matter is that any transfer of Ethiopian land to the Sudan or any other country by the regime in power today is without any legal basis under the Ethiopian Constitution or international law.

The threshold legal question is whether a secretly concluded international agreement in violation of Article 12 of the Ethiopian Constitution can pass constitutional  muster. Meles, while he was alive, and his successors today have defiantly concealed the actual text of  the so-called “agreements” with Bashir  from the general public and the Council of Representatives. Under Article 12 of the Ethiopian Constitution, Meles and his successors have a strict duty of accountability. Article 12 (“Functions and Accountability of Government”) provides, “The activities of government shall be undertaken in a manner which is open and transparent to the public… Any public official or elected representative shall be made accountable for breach of his official duties.” Meles and his successors as “public officials” have an affirmative constitutional duty to perform their duties in an open and transparent manner. Secret deals to hand over a significant slice of the country’s territory without full public disclosure of the terms and conditions and without formal ratification by the Council is a clear violation of Article 12.

The are several core legal questions that arise from the “signing” of the purported “agreements” by Meles and his successor: 1) Whether Meles and/or Hailemariam has independent constitutional authority to sign a binding “agreement” (treaty) on behalf of Ethiopia. 2) Whether any “agreement” by Meles and/or Hailemariam have any legal significance under the Ethiopian Constitution.  3) Whether any “agreement(s)” entered into by Meles and Hailemariam are biding upon a successive legitimate Ethiopian government under international law. 4) Whether any territory seized by the Sudan under any “agreements” signed by Meles and/or Hailemariam could properly be characterized as an “occupied territory” by the Sudan under international law.

Article 51, section (4) of the Ethiopian Constitution specifies that one of the “powers and duties of the Federal government” is to “determine foreign policy and implement the same. [It also] enters into and ratifies international agreements.” The general foreign relations powers of the “federal government” are divided between executive management of the foreign policy field, and ratification of “international agreements” by the parliament. Article 55 (12) specifically reserves as one of the exclusive “powers and duties of the Council of Peoples’ Representatives”, the power to “ratify international agreements signed by the executive branch.”

The land giveaway “agreements” signed by Meles and Hailemariam are in flagrant violation of Article 55(12).  Meles and Hailemariam may negotiate agreements with other governments and even sign them. Their   constitutional power is expressly limited to negotiating, drafting and signing international agreements. However, any “agreements” with other governments signed by Meles or Hailemariam are not worth the paper they are written on unless the Council of Representatives ratifies them as required under Article 55 (12).

It is undisputed that both Meles and Hailemariam have not only failed and willfully refused to present the “agreements” with the Sudan for ratification to the Council. They have also defiantly declined to extend the simple courtesy of presenting the “agreements” for parliamentary review and discussion. Failure to present the “agreements” to the Council for ratification is a gross violation of constitutional separation of powers principle and a flagrant interference in the ratification powers of the Council.

Article 86 describes the “principles of foreign relations” the “federal government” (the prime minister and the Council of Peoples’ Representatives) must follow in conducting Ethiopia’s relations with other countries and international entities. Sections 2 and 3 of Article 86 provide that the federal government must follow a foreign policy “based on equality and mutual benefit; ensuring that international agreements entered into, protect the interests of Ethiopia” and further requires “respect [for] international laws and agreements that respect Ethiopian sovereignty and are not contrary to the interests of its peoples.”

It is manifest that the only reason Meles and Hailemariam have chosen to keep the “agreements” they signed with the Sudan secret is because those “agreements” are patently and manifestly offensive to Ethiopian sovereignty. They keep the “agreements” secret because it can be objectively shown that they put Ethiopia at a distinct disadvantage and are completely contrary to the interests of the Ethiopian people. There is absolutely no other reason to keep the agreements secret! Alternatively, they can disclose the secret agreements and disprove my claim that those “agreements” are based on inequality and to the singular disadvantage of Ethiopia.

Article 9 (“Supremacy of the Constitution”) of the Ethiopian Constitution provides that the “Constitution is the supreme law of the land. All laws, customary practices, and decisions made by state organs or public officials inconsistent therewith, shall be null and void… All citizens, state organs, political organizations, other associations and their officials, have the duty to comply with this Constitution and abide by it… Assuming power in any manner other than as provided by this Constitution is prohibited.”

Any “agreement”, “treaty”, “pact” or “deal” with any government concluded by Meles and Hailemariam in violation of Articles 12, 55(12), 86(2)(3) are “null and void”.

Is an agreement “Null and Void” under the Ethiopian Constitution binding on any legitimate successive Ethiopian government and enforceable against Ethiopia under international law?

Article 9 (4) of the Ethiopian Constitution states, “International agreements ratified by [by the Council of Representatives] Ethiopia are an integral part of the law of the land.” What about “international agreements that are not ratified [by the Council of Representatives] by Ethiopia?

One need not be a constitutional scholar to answer this question: International agreements that are not ratified by the Council of Representatives are not worth the paper they are written on! No future legitimate Ethiopian government is bound by “null and void” “agreements”; and under international law, Ethiopia reserves the right to denounce any such agreements and demand removal of Sudanese occupation forces from Ethiopian territory at an international tribunal.

While international law favors effectuation of treaty obligations between states (principle of “pacta sunt servanda” or “agreements must be kept”), it also fully recognizes specific legal grounds for a state to denounce (terminate) or withdraw from an agreement if it can prove the existence of improper or wrongful circumstances at or during  the time of entry into agreement. The Vienna Convention on Treaty Law which governs resolution of treaty disputes provides various grounds for invalidation of treaties. Article 46 (1), (2) (“Invalidity of Treaties”) recognize invalidation of “agreements” that are concluded in violation of the “internal laws” of a state party:

A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

Article 49 provides that “if a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty.” Article 50 enables a state to invalidate an agreement if the “treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State.” If coercion has been used either against the state or the representative of the state in procuring the agreement, such coercion is a further basis for invalidation of a treaty.

What is incontrovertible about the purported agreements executed by Meles and Hailemariam is that both individuals concluded “agreements” that are “null and void” under the Ethiopian Constitution as demonstrated above. The only remaining  questions are 1) whether the ratification requirement of Article 55 (12) was “objectively manifest” to the Sudanese regime at the time of the signing of the “agreements”;  2) whether there was “corruption”  and “fraud” in the “agreement” process and 3) whether there was conduct that amounted to “coercion” in the negotiation or agreement process.

There is little doubt that the requirement of legislative ratification in Ethiopia was “objectively evident” to Bashir when he signed the “agreements”; and no ratification took place in the Ethiopian Council of representatives as required. Sudan has a legal duty under the Vienna Convention to undertake due diligence in the ratification process of the Ethiopian state. Sudan “conducting itself in the matter in accordance with normal practice and in good faith” would have easily discovered the particular ratification requirement. In light of the total secrecy surrounding the “agreements” and all of the smoke and mirrors gamesmanship, it is reasonable to assume that future investigations into the negotiations and drafting of the purported “agreements” will yield substantial evidence of “corruption, fraud and coercion”.

Other constitutional issues negating the validity of the “agreements” to give away Ethiopian lands to the Sudan

Meles and Hailemariam have also violated the collective rights of the people living in the “large chunk of territory in the Amhara region” that has been given away to the Sudan. The “agreements” effectively invalidate Article 39 (right of nations, nationalities and peoples) of the Ethiopian Constitution by imposing upon the people living in the territory transferred to the Sudan by forcibly separating them from Ethiopia without their consent. Neither Meles nor Hailemariam have the constitutional power to do a land give back” or to bargain away the territory and the nationality of the people living in those areas, or to unilaterally force upon the “nationalities and peoples” in that area an “agreement” over which they have not been consulted or asked to decide in a referendum. Under interntional law, a state has an obligation to consult the inhabitants of a territory before ceding sovereignty over it. No such consultation occurred before Meles and Hailemariam turned over “a large chunk of territory in the Amhara region” to the Sudan.

Moreover, Article 2 of the Ethiopian Constitution  provides that “the territory of Ethiopia shall, as determined by international agreements, comprise of the borders of the member states of the Federation.” This constitutional language implicates a direct role for the “member states” as their internal and external borders are determined and set. It is manifest that Article 2 requires a plebiscite (vote of the people) in the “Amhara region” before the “agreement” with the Sudan could be effectuated by any organ of the Ethiopian “federal” government.

Not all that concerned about an illegal agreement with the Sudan

I am dismayed but not overly concerned about the validity of illegal agreements concluded by Meles &  Hailemariam and Co. There are many known unknowns about the so-called agreements. We know they concluded the “agreements” with cloak and dagger secrecy because they are hiding something big, but what exactly they are hiding is unknown. We know there is corruption in securing the “agreements” but the magnitude and depth of corruption is unknown. We know there is deception in securing the “agreements”, but the slickness of deception is unknown. We know there is fraud in the agreement, but the breadth and scope of the fraud is unknown. We know there are all sorts of shenanigans in the agreements, but the medley of tricks, chicanery and  intrigue is unknown. In time, the secret “agreements” will be laid bare and the truth revealed. For “Truth will not remain forever on the scaffold, nor wrong sit forever on the throne.”

The territorial integrity of Ethiopia is simply and absolutely non-negotiable. Meles Zenawi, Hailemariam Desalegn —  whoever — can pretend to play their game of Ethiopian land giveaway to the Sudan, Saudi or Indian “investors”. The fact of the matter is that they have as much right to give away Ethiopian land as Jesse James and his gang to give away the banks they robbed.

There is an ancient land called Ethiopia that is our motherland. Ethiopia cannot be sliced into “kilils”, diced into “ethnic federalism” or priced into a border “agreement”. When it comes to the territorial integrity of Ethiopia, there is no Oromo Ethiopia, Amhara Ethiopia, Tigre Ethiopia, Gurage Ethiopia… or Gambella Ethiopia. There is simply the people of Ethiopia.  We must unite around the  territorial integrity of the motherland and the indivisibility of the Ethiopian people. We must remain vigilant so that the evil that lurks in the grave remains in the grave. Let no tyrant — tin pot dictator — put asunder what God has put together: One Ethiopia Today. One Ethiopia Tomorrow. One Ethiopia Forever.

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