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. -------------- BENCH NOW CONTEMPLATES MOUNTAINS OF EVIDENCE -------------- ¶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 ADDIS ABAB 00000192 002 OF 006 court sessions, recaps the case as presented by the prosecution and assesses the relative strength of the evidence. -------------- VIDEOS: RALLIES AND RIOTS -------------- ¶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). -------------- AUDIOCASSETTES: HAILU SPOUTING OFF -------------- ¶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 ADDIS ABAB 00000192 003 OF 006 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). -------------- 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). -------------- WITNESSES SHOW THE VALUE OF A DEFENSE -------------- ADDIS ABAB 00000192 004 OF 006 ¶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 ADDIS ABAB 00000192 005 OF 006 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.) -------------- -------------- -------------- COMMENT: SOME EVIDENCE FOR INDIVIDUAL CRIMES, NONE FOR CONSPIRACY -------------- -------------- -------------- ¶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. ADDIS ABAB 00000192 006 OF 006 ¶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