ETHIOPIA: BENCH RULES CUD LEADERS MUST ANSWER

C O N F I D E N T I A L SECTION 01 OF 05 ADDIS ABABA 001104

SIPDIS

SIPDIS

DEPARTMENT FOR AF/E AND DRL
LONDON, PARIS, ROME FOR AFRICA WATCHER

E.O. 12958: DECL: 04/12/2017
TAGS: PHUM KJUS KDEM PGOV ET
SUBJECT: ETHIOPIA: BENCH RULES CUD LEADERS MUST ANSWER
CHARGES

Classified By: ACTING POL-ECON COUNSELOR ERIC WONG. REASON: 1.4 (D).


1. (SBU) SUMMARY. In a series of rulings between April 4-9,
the High Court dismissed charges of "attempted" genocide and
treason against all defendants in the nearly year-long trial
of opposition Coalition for Unity and Democracy (CUD)
leaders, independent journalists and civil society
representatives. However, the court also ruled that many
defendants, including the CUD leadership, must answer other
serious charges. The court acquitted 26 defendants in
custody (7 journalists, 18 lower-level CUD members, and 1
civil society representative) and ordered them released from
prison. Most of those being tried in absentia, many of whom
reside in the U.S., were also acquitted. However, citing
public statements critical of the federal government and the
ruling EPRDF coalition, and statements questioning the
neutrality of the National Electoral Board, the Court ruled
that 49 of the most prominent defendants must remain on trial
to answer charges including "Outrages against the
Constitution," punishable in extreme cases by life
imprisonment or death. Many defendants may change their
previous strategy of not actively defending themselves. A
defense, if mounted by each defendant, may extend the trial
many more months. If they do not, this interim ruling
becomes a de facto guilty verdict, and sentencing would
follow. END SUMMARY.

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TRIAL RESUMES, DRAMATIC FINISH DELAYED
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2. (SBU) Following a nearly three-month break to allow the
three-judge panel to evaluate the prosecution's year-long
presentation of evidence, the trial resumed February 19.
Local and diaspora media incorrectly reported that the court
would issue a verdict. In fact, the bench was to rule on
whether the prosecution presented sufficient evidence to
warrant the defendants mounting a defense. After the long
evaluation period, and nearly one year into the trial, the
much-anticipated ruling faced further delays. In the first
session, the bench simply asked the prosecution to have
several pieces of evidence submitted last fall translated
from English to Amharic. Anticipation by the international
community, journalists, family members, and friends of the
defendants remained high, with the courtroom packed for each
session. The next two sessions on March 5 and March 23 were
also anticlimactic, however. On March 5, the bench simply
accepted the documents and said more time was needed to
evaluate the evidence. On March 23, lead judge Adil
inexplicably did not appear in court, leading to another
one-week adjournment.


3. (SBU) Defendants were notably upset at the repeated
postponements. In separate sessions, defendant Bertukan
Mideksa (a former high court judge) and Professor Mesfin
Woldemariam protested at length that enough time had already
been allowed to review the evidence, and that the bench
should proceed. These and other defense objections were met
with curt answers from the bench that the amount of evidence
was vast, and that the case was complex.


4. (SBU) As was the case when the trial resumed following the
summer break, upon entering the courtroom on February 19,
defendants greeted each other warmly and spent several
minutes exchanging pleasantries and catching up. Defendants
appeared healthy; Post has not received any reports of any
major new illnesses during the break. (NOTE: Post continues
to work closely with the family of lead defendant Hailu
Shawel to facilitate a South African eye specialist coming to
Addis Ababa to treat him. END NOTE.)

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RULING BEGINS WITH RECAP OF EVIDENCE
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5. (SBU) On March 30, the bench commenced a three-day summary
of every video, audiocassette, document, and witness
presented by the prosecution. The judges repeated in detail
what the prosecution claimed each article of evidence would
prove, as well as what was demonstrated in the presentation.
Despite a relatively extensive cross-examination of witnesses
and several objections to the prosecution evidence raised by
civil society representatives Daniel Bekele and Netsanet

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Demissie, the bench gave only a very brief review of defense
efforts. During the course of testimony, several other
witnesses had also attempted cross-examination. While this
defense was occasional and often ineffective, the bench made
no mention of it.

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MOST MUST DEFEND 'OUTRAGES AGAINST CONSTITUTION'
-------------- ---


6. (SBU) In the seventh session following reconvening, the
bench finally began ruling on the first charge: &Outrages
against the Constitution or the Constitutional Order.8 Over
three days, the bench explained in detail their rulings on
this charge, which all defendants faced. Judges declared
that evidence was divided into three periods: 1) before the
May 2005 election; 2) after the election and up to the June
2005 demonstrations; and 3) after the June demonstration
through the November 2005 demonstrations. The bench said
that the most convincing evidence were press statements and
videos of CUD meetings and rallies, such as:

-- A December 2004 CUD rally at which Hailu Shawel said (as
quoted by the judge) "no one can control or force the public.
(The people's) authority has been taken. Today we will
begin toppling the government authorities from the lowest
level to the highest."
-- A rally in Debre Markos at which defendant Befekadu Degife
says, "the public would revolt against the Government, if it
refused to give up power."
-- A February 8, 2005 CUD press release that said the
National Election Board (NEB) is not an institution to solve
problems in Ethiopia.
-- A CUD meeting at which Berhanu Nega noted that a peaceful
struggle by the public could not be controlled.
-- A CUD meeting at which Hailu Shawel said, "The EPRDF is
not willing to come out as a victim."
-- A CUD rally at which Gizachew Shiferaw said, "The NEB is
an organ of the EPRDF and is not independent."
-- A press conference at which Mesfin Woldemariam said, "What
happened in Ukraine will happen in Ethiopia."
-- Adil also noted 'pre-election' reporting in newspapers
stated that the May 2005 elections would be rigged (by the
EPRDF),that a Ukrainian revolution would then follow, and
that the public should be prepared.


7. (SBU) The bench also recalled evidence presented relating
to June 2005 demonstrations, claiming that police videos
showed large groups of protestors displaying the CUD hand
sign, chanting that the EPRDF lost the election and that the
CUD won, and carrying machetes, clubs or knives. The videos
also showed the widespread violence that took place and the
resulting loss of property and life, according to the bench.


8. (SBU) "The CUD press releases, public gatherings and
newspaper articles (which were submitted as evidence)
encouraged the public to engage in violence and to not trust
the NEB and the judicial system," Adil said. Pre-election
communication had biased the public to believe that the
election would be rigged by the EPRDF, he explained. Adil
said that it could therefore be determined that the action of
the CUD leadership had a direct effect on the June violence,
and that their actions created the expectation that the
election would be rigged. CUD leadership made repeated calls
for "public violence similar to what took place in Ukraine,"
Adil said, but he declared that, "What happened in Ukraine
does not reflect our situation in Ethiopia." These
statements motivated people disgruntled with the election and
"convinced them to commit illegal acts," he summarized.


9. (SBU) The agitation of the public by CUD leaders continued
between the June and November 2005 demonstrations, Adil
added, citing many CUD meetings shown by video evidence.
"Though meetings were allegedly meant to discuss whether or
not to join parliament, the real agenda was that the current
regime needs to be overthrown forcibly," he opined. This was
compounded by the CUD's insistence that the NEB and judiciary
be reformed. Adil said that this showed the connection
between those in the CUD leadership to those in the media who
held similar beliefs. It was "crystal clear" that the EPRDF
won the elections, but the CUD tried to topple the government
anyway by motivating people, as happened in "violent
revolutions in Ukraine and Georgia." "The demonstrations in

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June and November were targeted at individuals and government
organizations in an attempt to overthrow the government,"
Adil concluded.


10. (SBU) Of the 111 eleven defendants that faced charge
number one, 57 were told that they must present a defense.
This included all of the members of the CUD Supreme Council,
who the bench found to have acted in conspiracy via the
issuance of official CUD press statements. Others who must
answer the charge include human rights activist Mesfin
Woldemariam, civil society representatives Daniel Bekele and
Netsanet Demissie, and several journalists. Of those
acquitted, the bench said that there had not been sufficient
evidence to convince them that the defendants had directly
participated in a crime or were connected to the conspiracy
to do so.

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GENOCIDE AND TREASON DROPPED
--------------


11. (SBU) While the explanation of the first charge lasted
three days, the bench's ruling on the remaining 5 charges
took less than one hour. On the second charge, "Obstruction
of the Exercise of Constitutional Powers," the bench said
evidence presented by the prosecution in the form of CUD
press releases and public statements showed that calling for
stay-at-home strikes intended to bring economic crisis upon
Ethiopia. Defendants also committed defamation and
"threatened the existence" of the NEB by stating that it was
not impartial, judges said. In the end, there was no
evidence to support this charge against lower-level CUD
members, but the members of the CUD Supreme Council must
present a defense, as it was their press releases that were
deemed damaging by the bench.


12. (SBU) Regarding the third charge, "Inciting, Organizing
or Leading Armed Rebellion," Adil said witness testimony
showed that defendants Hailu Shawel, Abayneh Berhanu,
Getachew Mengiste, Mamushet Amare, and Tesfaye Tariku were
organizing an armed struggle against the government. "They
were attempting to arm a group of bandits to attack
government forces," he said. "Though some others in the CUD
Supreme Council may have supported armed struggle," he said,
"there was no official publications from them to prove this."
Therefore, only these defendants must answer the third
charge, while others are acquitted. (NOTE. The fourth
charge, "Endangering the Integrity of the State," was dropped
in March 2006 before the trial began. END NOTE.)


13. (SBU) In discussing evidence supporting the fifth Charge,
"Impairing the Defensive Power of the State," the bench
claimed videos of the June and November violence showed that
the CUD provoked and incited people to attack the Ethiopian
defense forces. In particular, Adil recalled that military
vehicles had been burned. Therefore, the top ten CUD
leaders, who were active in meetings and rallies from which
demonstrators were allegedly incited, must answer the charge.
Additionally, journalist Mesfin Tesfaye had published a
newspaper article stating that the military would stand by
the side of the people and not the government, in the case of
a clash. This shows rovocation, Adil said, ordering Mesfin
to answer the charge, while acquitting all other defendants
of this charge.


14. (SBU) Though the prosecution presented evidence in the
form of witnesses and documents that claimed the CUD had
cooperated with Eritrea and "other forces against the
Ethiopian government," the bench could not conclude by
majority that there was a link between the Ethiopian
Patriotic Front, the Eritrean government, and the CUD
leadership. Therefore, all defendants were acquitted of the
sixth charge, "High Treason."


15. (SBU) Similarly, four witnesses had testified that they
were attacked during the June and November 2005
demonstrations simply because they were Tigrayans. However,
"CUD public provocation was aimed at attacking the
constitutional order and focused on the government, rather
than an ethnic group," Adil said. He added that, had the
violence lasted longer it may have become genocide, but as it
stands, there is no proof that the CUD incited ethnic hatred.
He said that by a majority vote, the bench acquitted all

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defendants on the seventh charge: "Attempted Genocide."
Following the reading of all the charges, second judge Leoul
announced his dissenting opinion on the sixth and seventh
charges. He concluded that the evidence had clearly shown a
link between the CUD, the Ethiopian Patriotic Front, and the
Oromo Liberation Front, and by connection the Eritrean
government, which is a "hostile threat against Ethiopia."

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26 DEFENDANTS TO FINALLY LEAVE KALITI
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16. (SBU) Following the reading of all the charges, the bench
identified 26 defendants acquitted on all charges and ordered
them released that day, after nearly a year-and-a-half in
prison. These included 7 journalists and several lower-level
CUD members. Nearly all those being tried in absentia also
had their entire cases dropped. This leaves 49 defendants
who remain in prison and who must present a defense. (NOTE:
Possible penalties for the remaining charges all include long
imprisonment or death. Charge 1 is punishable by 3 -25 years
imprisonment, or when the crime has entailed serious crises
against public security or life, life imprisonment or death.
Charge 2 is punishable by up to 15 years imprisonment; charge
3: life imprisonment or death; and charge 5: 5-25 years, or
in cases of exceptional gravity, life imprisonment or death.
END NOTE)

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COMMENT: LITTLE APPARENT SCRUTINY FROM BENCH;
LEADERS MAY NOW DEFEND
--------------


17. (C) Most international observers agreed that the interim
ruling took on much more of the tone of a verdict, though
Post believes that the judgment is far from final. In their
statement, the judges frequently used many of the same
phrases the prosecution had used to explain why a particular
piece of evidence was proof of guilt. They frequently
stated, particularly on the first charge, that the body of
evidence shows that the defendants committed a crime, which
suggests a decision of guilt has already been made. In only
a few cases did the bench show any misgivings about
prosecution evidence, despite numerous inconclusive videos,
documents of questionable validity, and witness who
frequently contradicted themselves and otherwise were not
credible. Though most defendants made no attempt to
cross-examine witnesses, the bench gave the extensive defense
by civil society representatives Daniel Bekele and Netsanet
Demissie little credit, despite the fact that observers were
unanimous that they had thoroughly addressed each piece of
evidence presented against them. Those who were released had
little or no evidence presented against them at all.


18. (C) Most observers who are suspicious of GoE interference
predicted the outcome as it occurred: the more provocative
charges of genocide and treason would be dropped, some
lower-level defendants released, while the more vaguely
defined "Outrages against the Constitution" would be used to
keep CUD leaders in jail. Despite that most in the
international community foresaw with some accuracy the
ruling, many of the defendants, including the leadership, and
their families were visibly surprised at the ruling. While
all but three defendants had chosen not to defend themselves,
because they "do not recognize the authority of the court,"
they are now rethinking their strategy. Whether this is a
last-ditch effort to prevent what would almost surely become
lengthy jail sentences or a prolonging of the trial, or
simply an attempt to discredit the court by effectively
addressing the evidence, is unclear. As the remaining
defendants include several former attorneys and at least one
former High Court judge, they are quite capable of mounting a
strong defense against what is inarguably a weak case by the
prosecution. (NOTE: EU observers allege that prosecutors
privately concede their case was not very strong. END NOTE.)
Post will remain in contact with family members and friends
of defendants in order to gain insight into their plans.


19. (C) How the bench's decision affects sensitive efforts
underway by Ethiopian elders to broker a negotiated
settlement between the CUD leaders and the GOE (reftel)
remains to be seen. Negotiations have been in progress for
many months, but currently center on arriving at language

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from the detainees that would be acceptable to the GoE in
which they state their complicity in circumventing the
constitution. This ruling may provide impetus for the
detainees to come to an agreement, by underscoring that
otherwise many may face long imprisonment. Alternatively, it
may simply strengthen their resolve and enhance their
position as martyrs for the Ethiopian political opposition.
The elders' ability to find a solution in the coming weeks
will have a major influence on the future of Ethiopian
domestic politics. END COMMENT.
YAMAMOTO