ETHIOPIA: PROSECUTION RESTS IN CUD TRIAL - A

C O N F I D E N T I A L SECTION 01 OF 06 ADDIS ABABA 000192

SIPDIS

SIPDIS

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

E.O. 12958: DECL: 12/14/2016
TAGS: PHUM KJUS KDEM PGOV ET
SUBJECT: ETHIOPIA: PROSECUTION RESTS IN CUD TRIAL - A
REVIEW OF EVIDENCE

REF: A. ADDIS ABABA 03130

B. ADDIS ABABA 01402

C. ADDIS ABABA 01539

D. ADDIS ABABA 01645

E. ADDIS ABABA 01788

F. ADDIS ABABA 01987

G. ADDIS ABABA 02179

H. ADDIS ABABA 02304

I. ADDIS ABABA 03003

J. ADDIS ABABA 02731

Classified By: POL/ECON Counselor Kevin Sullivan
Reasons: 1.4 (B)and(D).


1. (C) SUMMARY. On November 29, 2006, the prosecution rested
its case against detained opposition Coalition for Unity and
Democracy (CUD) leaders, independent journalists and civil
society representatives, ending a 7-month presentation of
evidence. The next court session will be on February 19,
2007, which gives ample time for the judges to sift through
piles of documents and hours of videos. The judges must
consider not only the evidence presented against each
individual defendant, but also determine whether the
prosecution has succeeded in establishing the charge of
conspiracy amongst the defendants. If not, many defendants
could walk free on February 19, while others may be asked to
present a defense. International observers generally agree
that some evidence points to some of the defendants not
adhering to their stated "peaceful struggle" philosophy.
However, observers also believe that the prosecution has
failed to successfully prove the more severe charges of
genocide, treason and other capital offenses. Moreover, in
the view of international observers, the prosecution has not
established that a coordinated conspiracy existed amongst the
defendants. Whether defendants choose to defend themselves
-- which all but a few have so far refused to do -- could
ultimately determine the fate of their case. (COMMENT:
Despite the extensive legal process, the case against CUD
leaders is undoubtedly part of a larger political process.
In the end, the result of mediation between the GoE and
senior defendants could possibly decide the outcome of this
case, rather than a decision based on the strength of the
prosecution's or defense's case (reftel A). END COMMENT.)
END SUMMARY.

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BENCH NOW CONTEMPLATES MOUNTAINS OF EVIDENCE
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2. (C) After nearly seven months of presentation of evidence
in the trial of CUD leaders, journalists and civil society
members, the prosecution rested it case. On November 29, the
last of 54 witnesses testified, ending the multi-phase case
begun in May. The prosecution's evidence has been divided
into four phases: videocassette, audiocassette, documents and
witnesses.


3. (C) According to the Ethiopian criminal judicial system,
the prosecution is required to fully complete its case before
the defense proceeds with its portion. The exception to this
is the cross-examination of the prosecution's witnesses,
which defendants in this case have done in a limited way.
The criminal code states that the bench has the option
(though it is rarely used) to utilize the period after the
prosecution has finished to consider whether or not a defense
is necessary. Typically, the defense commences immediately
following the prosecution, then closing arguments by both
sides, followed by a final verdict from the bench. In this
case, however, the three-judge panel has exercised its option
to consider the strength of the prosecution's case. If they
decide the prosecution has not presented sufficient evidence
against any defendant, he or she will be released from
prison. (NOTE: Poloff has been informed by a reliable source
that one defense attorney, Aklilu Solomon, has recently fled
Ethiopia following threats on his life. He is reportedly in
Uganda and is pursuing options for asylum in a third country.
It is unclear what course his client, Kassahoun Kebede, a
civil society member, will pursue in his absence if asked to
defend himself. END NOTE) The bench has allowed ample time
for consideration of the evidence, having set the date for
reconvening of the trial on February 19.


4. (U) This cable, prepared by Poloff who has attended most

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court sessions, recaps the case as presented by the
prosecution and assesses the relative strength of the
evidence.

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VIDEOS: RALLIES AND RIOTS
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5. (SBU) The prosecution began presentation of evidence on
May 8 with the video stage, which lasted until June 27. The
prosecution originally submitted 24 cassettes, but in the end
withdrew 7, claiming that they did not contain any new
information different from the previous 17. However, they
requested the introduction of 3 new videos not originally
included on the evidence list. The third of these was
eventually thrown out by the court following an objection
from the defense stating that the video consisted of only
10-15 second sound bites. (NOTE: The prosecution
distributed copies of the disallowed video to members of the
international community, claiming that the tape contains some
of strongest evidence against the defendant. The cassette
was largely a montage of the most damaging quotes from
previously presented videos and included very little new
evidence. END NOTE).


6. (SBU) Before the presentation of each cassette in court,
the prosecution offered only brief introductory remarks,
simply stating that the evidence presented would substantiate
the specific charges indicated. Once the cassettes were
played, prosecutors did little to place the events shown in
context, nor did they identify defendants who appeared in the
tapes.


7. (SBU) The theme of the videos generally fell into one of
three categories: CUD Supreme Council meetings; CUD public
rallies; or the riots of June and November 2005. Generally,
the videos of CUD Supreme Council meetings featured
defendants from the CUD leadership (including some prominent
CUD members not arrested) debating party strategy following
the elections in May 2005. The debates centered largely on a
list of demands they developed that were to be presented to
the ruling party as preconditions for the CUD to consider
joining parliament. The tapes of the public rallies also
touched on this point, depicting events staged by the CUD in
order to gauge public opinion on whether or not to join
parliament. The videos of the riots were from footage taken
by police of rock-throwing youths and injured policemen, but
did not show any of the defendants.


8. (SBU) The 19 videocassettes did little to demonstrate
criminal activity by any of the defendants. Furthermore,
they centered largely on the top leadership of the CUD and
did not feature journalists, civil society members or
lower-level CUD defendants. The video evidence revealed that
the CUD party was unwilling to accept the results of the May
2005 election or to join the parliament unless the EPRDF made
significant concessions. In addition, it was clear that the
party had a great deal of support at rallies in areas in and
around Addis Ababa. However, CUD leaders maintained a
consistent line in the videos in favor of resistance through
non-violent struggle. The videos of the riots showed the
devastation caused by the June and November uprisings, but
drew no direct link to any of the detainees (refel B,C,D,E).


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AUDIOCASSETTES: HAILU SPOUTING OFF
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9. (SBU) As was the situation with the videos, the
prosecution decided to withdraw many of the audiocassettes
originally submitted as evidence, stating that they were
redundant. In fact, only one of the original 11 was played
in court, as well as one additional cassette allowed by the
bench. This phase of the trial took only two days - June 29
and July 3.


10. (SBU) The audio cassettes, in contrast with the videos,
featured significantly harsher CUD rhetoric, though this came
exclusively from defendants who are being tried in absentia
and CUD Chairman Hailu Shawel. The cassettes were excerpts
from radio interviews given by defendants to various radio
stations, most of them outside of Ethiopia. Some of the most

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damaging statements made by Hailu included repeated calls for
the establishment of a "provisional government," for "removal
of the oppressive regime," and repeated references to the
military. Hailu claimed that if a conflict between the
people and GoE were to arise, the military would side with
the people rather than the government. Beyond this, the most
severe statements came from defendants being tried in
absentia and referred to cooperation with Eritrea and
toppling the government through armed resistance. However,
these statements did not refer to any action or cooperation
with CUD leadership in Ethiopia.


11. (SBU) The addition of the audiocassette stage of evidence
undoubtedly revealed a fiery and defiant Hailu Shawel.
However, it is was not clear that these comments, coupled
with his limited appearance in the videos, showed that he was
guilty under the charges levied against him. Regardless, in
meetings with Emboffs, the prosecution team stated its view
that the video and audio stages alone provide sufficient
evidence to convict all the defendants (reftel F).

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DOCUMENTS: POSSIBLY DAMNING, IF LEGITIMATE
--------------


12. (SBU) In contrast to the video and audio phases of the
trial, the prosecution did not withdraw any of the 91
documents originally submitted as evidence. In fact, they
chose to submit an additional 88 documents they said had been
discovered since the start of the trial. The defense
attorney for civil society members Daniel Bekele and Netsanet
Demissie objected to the inclusion of the additional
documents -- 9 of which directly referred to his clients --
on several grounds, claiming some were found illegally, some
falsified, and that some were merely hearsay. The judge
overruled and allowed the prosecution to submit all 179
documents.


13. (SBU) The bench allowed the prosecution to present orally
only a summary of the documents (rather than the entire text
of all the documents),while providing a written copy of the
full text to the bench and defendants. Most of the 91
originally submitted written documents were press releases
issued by the CUD party or interviews with party leaders.
There were also a number of articles and editorials presented
against and written by defendant journalists and publishers.
The strongest evidence appeared to be a "top secret list of
TPLF/EPRDF party members to be eliminated," as well as an
"agenda" that stated that the CUD would "supply grenades (and
other munitions) to members and will cooperate with the
Eritrean government." Regarding the additional 88 documents,
the prosecution explained that "this evidence is presented to
show the relationship among the conspirators for their common
illegal conspiratorial goals," and "this is evidence that the
conspirators have forged a close bond of cooperation to
overthrow the system." The evidence focused on civil society
representatives, journalists and those defendants being tried
in absentia. Notes and letters allegedly found in the
offices of civil society representatives, as well as minutes
from meetings that were held for the purpose of "gathering
support for a CUD-led conspiracy" were presented. The
prosecution accused these civil society organizations of
operating under the "cover of reconciliation" and "under the
umbrella of the CUD (to) foster the conspiracy."


14. (SBU) The strength of the documentary evidence is
difficult to determine at this stage, as the defense has not
yet had the opportunity to individually address the
documents. Though some of the evidence presented is easily
verifiable (i.e. published newspaper articles, information
from the internet, etc.),other documents, such as letters
and the alleged "hit list," may have been forged. If asked
to present a defense, the attorney for the civil society
members Daniel and Netsanet will vigorously attack the
documents presented against his clients. However, as the
remaining defendants have so far chosen not to retain an
attorney and not defend themselves, it may be exclusively the
bench that decides whether the documents are relevant and
genuine (reftel G,H).

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WITNESSES SHOW THE VALUE OF A DEFENSE
--------------

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15. (SBU) On October 25, prosecutors commenced the witness
stage of evidence. Though they had initially submitted a
list of 367 witnesses, they brought forward only 56. Of
those brought forward, only 41 testified, as the prosecution
dismissed the others during various sessions, stating that
their testimony would be redundant. However, as in the
previous stages of evidence, they requested and were granted
permission to bring forward 15 additional witnesses, 13 of
which testified. From the total of 54 witnesses that
testified, 6 testified against CUD leaders, 16 against middle
and lower-level party members, 7 against civil society
members Daniel and Netsanet, and 25 did not specify any
defendant.


16. (SBU) Following the prosecution's questioning of each
witness, the defense attorneys and defendants were free to
cross examine. Despite multiple objections by the defense,
the bench ruled that the names of the witnesses would not be
revealed in advance to the defense. This meant that defense
attorneys had no "discovery" period in which to prepare.


17. (SBU) The witnesses brought forward to testify against
the CUD leadership stated one of three things: 1) that the
witness attended a CUD rally organized by a top CUD official
and had been told to "stand by and await a call from the CUD"
(presumably to incite street demonstrations); 2) the witness
had been requested to organize dissidents in their respective
areas; or 3) the witness was asked to recruit "gangs of
bandits" that would be prepared to combat government forces
if needed. The defendants typically did not cross examine
these witnesses.


18. (SBU) The testimony by the 16 witnesses against the
middle and lower level CUD members ranged broadly from
accusing CUD officials of incitement of people in their
villages to arson and assault. Most of these witnesses
focused on 10 lower-level CUD members that they accused of
leading crowds of protestors during the November 2005
protests. Witnesses accused several defendants of telling
crowds to throw rocks and burn their houses or offices, or to
beat them up because they are Tigrayan or EPRDF members.
Witnesses claimed that following the actions of the
defendants, they continue to suffer psychological damage. In
their cross examination, many of the defendants attempted to
discredit the witnesses, rather than disputing the acts
claimed by the witness. Generally, they were ineffective in
their attempts, obviously hampered by the fact that they had
no attorney and no time to prepare their own questions. The
exception was one of the additional witnesses brought forward
on the last day. The witness, when pressed by the defendants
on whether they assaulted him as he had told the prosecution,
broke down in court and said that in fact the defendants had
done nothing wrong and that the prosecution told him what to
say.


19. (SBU) Nearly half of the witnesses brought forward by
the prosecution did not testify against any defendant in
particular. Rather, they described their individual
experiences during the course of the June and November 2005
demonstrations. Most of these were police officers who, with
little variation, told the court the same thing: they were on
duty during the demonstration; they saw crowds of people
chanting anti-EPRDF slogans and holding up CUD signs; they
encountered many rock-throwing, Molotov cocktail and
knife-toting rioters; and that the police were unarmed and
many of their colleagues were injured. Other witnesses were
civilians who said they either saw or personally experienced
rioters damaging personal and city property.


20. (SBU) The remaining 7 (and most hotly contested)
witnesses were brought forward to testify against civil
society leaders Daniel Bekele and Netsanet Demissie. Some of
the witnesses simply testified that they had been asked by
police to act as observers during the search of houses in
which documentary evidence presented against Daniel and
Netsanet had been found. Two other witnesses were fellow
civil society leaders and testified that they attended a
meeting in late 2005 organized by Daniel and Netsanet in
which they allegedly attempted to rally attendees to protest
against the EPRDF. A few others, however, told the court
that they had met one of the two defendants following the
elections of 2005 and that they were asked to recruit and

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motivate demonstrators to take part in the November riots.
Contrary to other defendants, Daniel and Netsanet, who are
both lawyers, actively cross examined witnesses together with
their attorney. With little preparation time, they were able
to mount a thorough and exhaustive cross examinations that
effectively called into question the reliability of the
witnesses that testified against them. They utilized a
strategy of asking the witnesses questions that would
seemingly be simple to answer if their testimony had been
accurate. Daniel and Netsanet asked for names of people that
the witnesses recruited, details of alleged meetings with the
defendants, where they worked, etc. Often witnesses gave
contradictory answers or simply said they could not answer
the question. The prosecution objected to many of Daniel and
Netsanet's questions, particularly when they seemingly had
the witness trapped. However, the bench gave Daniel and
Netsanet adequate space and time to defend themselves. Other
defendants seemed to appreciate the effectiveness of having a
professional defense and tried later to employ the strategy
used by Daniel and Netsanet, but with significantly less
effectiveness (reftel I). (NOTE: Once the trial resumes, and
if the bench decides that there is reason for a defense,
defendants will still have the opportunity to retain an
attorney. Whether they will do so or continue their current
strategy of no defense is unclear. END NOTE.)

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COMMENT: SOME EVIDENCE FOR INDIVIDUAL CRIMES, NONE FOR
CONSPIRACY
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21. (C) Taken collectively, the four stages of the
prosecution's evidence have been more effective against some
defendants than others but have done little to support the
charges. The top CUD leadership appeared frequently at the
start of the trial during the video stage, seemingly setting
the stage for more evidence to come. Though transcripts of
some interviews with Hailu Shawel were played in the audio
stage, the lack of witnesses that testified directly against
such defendants as Berhanu Nega, Mesfin Woldemariam and
Birtukan Mideksa was surprising. Some documents could prove
damaging if they are ultimately judged as admissible by the
bench and if the CUD leaders do not discredit them. The
evidence against lower level CUD members was focused almost
entirely on the witness stage. While some of the witnesses
were believable, their testimony does not seem to incriminate
the defendants of organizing an armed rebellion or attempted
genocide, as charged. At most, defendants appeared to be
rabble rousers that caused property damage during the
November demonstrations. Civil society representatives
Daniel and Netsanet mounted a thorough and effective defense
against the witnesses brought forth against them and will
undoubtedly do the same in reference to the documents, if
asked by the bench to further their defense. The other civil
society member, Kassahoun Kebede, had very little evidence
presented against him, amounting to 3 documents outlining
meetings of the Ethiopian Teachers Association, of which he
was a member. Lastly, the journalists saw many articles they
wrote or published included in the documentary evidence.
Many were extremely critical of the government and some made
accusations of election interference. As with the audio
transcripts of Hailu, these articles by journalist defendants
were harsh, but it would not seem that in and of themselves
they constitute evidence of the severe charges against them.


23. (C) A key question is whether the prosecution has proved
a conspiracy (reftel J). Ethiopian criminal law states that
to prove conspiracy, the prosecution must show: 1) that there
is an explicit agreement among the accused to commit a crime;
and 2) a crime was committed. International observers had
varying opinions on whether crimes were committed and, if so,
how severe. However, none expressed an opinion that the
prosecution proved an agreement among all the defendants. If
the judges agree with this assessment, then it is possible on
February 19 that they will free many defendants and ask
others to present a defense against the body of evidence the
prosecution has brought against them over the last 7 months.
Prosecutors have told Post, however, that in their view the
evidence shows a common aim -- to overthrow by force -- and
should be sufficient justification for a conspiracy
conviction.

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24. (C) Finally, there is little doubt that the CUD trial is
part of a larger political process. Separate, ongoing
efforts to mediate between the GoE and senior defendants
could well determine the outcome of this case (reftel A)
YAMAMOTO