It is therefore essential not to be lulled by the seemingly learned commentary of some intellectual prostitutes who are ready to be at the service of falsehood in exchange of advancement of career. These are people who live for their belly with no principle, no sentiment of ethiopiawinet. They don't even bother about the fate of their children tomorrow. If history were to go by, they could learn from yesterday's experience. But, like the animal in Ethiopian tradition, their life is guided by "after me the heavens can fall" . We should therefore be able to see through their snare to tranquillise us to accept long ordeal. We should not forget that what happens today to our compatriots can happen to each of us. What is more, we let ourselves humbugged as to consider the border commission's decision in terms of gaining or losing something, then we are giving a legitimacy to the anti Ethiopia Algiers Agreement. The only significance of the political decision of the border Commission is that it has shown in an unambiguous manner what every body has known since a long time ago, viz, the very well orchestrated international conspiracy to reward Eritrea at the expense of Ethiopia.

In this regard, there are in fact some issues of importance which I would like to raise because they show in no uncertain terms the international conspiracy to destroy us. These issues are related to professional ethics of the members of the Commission and the EPRDF hired attorneys. It is true that all the members of the Commission and the advocates of EPRDF are internationally renowned jurists and some of us have used their books and articles in our study of international law. Because of our prior knowledge of their scientific works, we were inclined to believe in their integrity and expected that they would work for the supremacy of legality although the deliberate narrowing of their terms of reference by the illegal Algiers agreement has led to an unprecedented miscarriage of justice. However, to our dismay as Ethiopians and as jurists, the learned men have neither lived up to our very limited expectations nor to internationally recognised legal deontology. As a result of EPRDF's betrayal and the professional fault committed by the members of the Commission and EPRDF hired attorneys, Ethiopia has now been declared the great loser in the "juridical battlefield" just as the signing of the Algiers Agreement had sanctioned its diplomatic humiliation.
ETHIOPIA - VICTIM OF ANOTHER BETRAYAL 
The particularity of the Ethiopia-Eritrea case is that it is not only our nation which has been victimised by EPRDF's conspiratorial policy and the Border commission's politically motivated decision. International rule of law is also a great loser. It is precisely because of this travesty of justice that we have entitled our article miscarriage of justice. In this respect, it is essential to know that the travesty of justice in The Hague is not an isolated incident. It is the corollary of the political reality in Ethiopia. Namely, the absence of rule of law. If Ethiopians were to have the power to stop the regime from auctioning away their territories and their maritime outlet, then not only the Algiers Agreement would not have been ratified but also the prime minister and his government would have been impeached for being a menace for the territorial integrity and the sovereignty of our country. However banking on its repressive machinery and true to its policy of "after us the heavens can fall", the government has imperiously decided to present our territories as a gift to Eritrea. And the reason why this shunt of Ethiopicide is being presented barefacedly as a "victory of rule of law both in international and internal politics" is because of the reign of autocracy and utter contempt of Ethiopians.
RULE OF LAW à la EPRDF 
Since the EPRDF colonisation of the Ethiopian state power in 1991, its politico-juridical dictionary has incorporated many jabberwockies such as Bonapartism, rentier class, revolutionary democracy, revolutionary rule of law, hegemony of revolutionary democracy, revolutionary market economy et cetera. However surprising this may be, no EPRDF member, except the Prime Minister is really capable of decrypting such abracadabra save parroting the former. One can argue that the EPRDF leader coined such gibberish to impress his followers after the fashion of all former revolutionaries. It is possible that the prime minister can be intelligent although this may mean different things. The proof is that he has realised from the outset that monopoly of knowledge means having unquestionable ascendancy and power over members of his political organisation whose door has always been closed to critical thinking intellectuals. This explains perhaps why the whole EPRDF is tied to the Prime Minister's apron strings. What is more, the parade of knowledge and oratorical skill can also help to cover ones real political intentions and to offset fundamental defects which militate against one being a national leader material. Behind this exists therefore a strategy which aims to confuse people by provoking a false lexical debate while the real political and economic issues of the country are deliberately evaded. This is why there has never been political pluralism. Despite this, the EPRDF considers its complete monopolisation of state power through the policy of ethnic divide and conquer policy as proof of the reign of revolutionary democracy in Ethiopia. Not only that. The illegal secession of Eritrea and the land locked status of Ethiopia have also been considered as the advent of revolutionary democracy in Ethiopia. Now, the illegal cession of Ethiopian territories for the sake Eritrea's territorial aggrandisement is being presented as the triumph of democracy and rule of law in favour of Ethiopia. The restriction of the development of a culture of private entrepreneurialism which is the only way to bail Ethiopia out of its present economic quagmire and political decay is justified as enabling to prevent the exploitation of man by man. Planned poverty seems to be the fate meted out to Ethiopia. As a result, the EPRDF's conception of democracy and rule of law have been Greek to Ethiopians and to those who observe the messy political situation which obtains in our nation.

Why does the EPRDF tell us that we have won when we have been the victims of its betrayal and international collusion? Why does the EPRDF say that the Border Commission's pro-Eritrea decision ushers in an era of peace and economic development whereas there is no doubt that it is a time bomb ready to explode when the occasion presents itself?

There is a lack of communication between Ethiopians and their current masters. We need a government which can speak and understand our language. Because what the EPRDF politico-juridical dictionary defines as rule of law, our dictionary defines it as reign of jungle law. Its democracy is a violation of our fundamental individual and group rights. Its self determination is the balkanisation and disintegration of our beloved ancient nation .Its peace is our humiliation and oppression. Its "democratic unity" is the reign of ethnic divide and conquer policy and the spread of distrust and hatred among members of our national community. Its economic policy is the aggravation of our living conditions. There has never been any political communication between Ethiopian masters and our people who have been reduced to a status of political minority. We have never seen any political output in response to a public demand. This is principally because the regime banks on gun than on popular support and free dialogue. Its boundless partiality for Eritrea and its insensitivity to the suffering of our people are the greatest stumbling blocks against it becoming a real Ethiopian political organisation.

This is the darkest period in our history. We believe therefore and there is no doubt as to the absolute correctness of our position that the Algiers Agreement is the clearest manifestation of the triumph of falsehood over truth, injustice over justice, authoritarianism over accountability; treason over patriotism. The so-called arbitration award is also a miscarriage of justice because both EPRDF hired attorneys and the members of the Border Commission have chosen to be instruments of injustice rather than standing by justice.
THE PARTIALITY OF THE BORDER COMMISSION 
Some of us had the premonition as to the partiality of the Commission towards Eritrea. The political nature of the decision has proved what we feared. We will not have time and place to comment the decision seriatim. We will concentrate on the above cited excerpt from the Commissions decision to substantiate our argument that the decision a travesty of justice. Our argument is based on the principle that the binding nature of an arbitration decision is a function of the award being rendered in accordance with the relevant validly applicable law. The Commission has pretended to have based its decision on null and void treaties of 1900, 1902 and of 1908. Our first question is: do the members of Commission who are specialists of international law believe sincerely that the null and void treaties are part of international law? If the answer is affirmative, on what basis? Of course, they can say that they have not the right to raise such issues. My question is: shouldn't have they refused, for the sake of supremacy of the law, to be members of a Commission expected to render an award on the basis of illegally exhumed colonial treaties which cannot form part of international law? If their answer is that their role was limited to applying the "treaties" and not to work for the supremacy of law, why did they have recourse to rules concerning the interpretation of treaties? General rules of treaty interpretation can be applied only when the treaty in question is a valid treaty? Colonial treaties which served to Italy as a title deed, which were imposed on Ethiopia by force, treaties which Italy had never respected and which it had never had the intention of respecting, treaties which were long dead cannot be considered as valid treaties, neither is it proper to apply to them normal rules of international law as if they were valid treaties.

While the Commissioners are perfectly aware of this, why did they decide to have recourse to such notions as contemporaneity, actions of the state pursued à titre de souverain? Herein lies the Commissioners' dishonesty because if they thought that the principle of contemporaneity is indispensable, then they could not fail to examine the ideology of the Berlin Conference, the repeated attempt by Italy to colonise the whole Ethiopia in collusion with Britain and France despite the so-called treaties. If no delimitation was made it was because Italy wanted to take more territories gradually. So, if there had never been a delimitation and if Italy renounced its colonial possessions, and if as the Commissioners say that the Ethiopian government had already declared colonial treaties null and void on September 1952, can they still be applicable against Ethiopia? Should not have they examined all these questions before having recourse to establishing the meaning of the defunct treaties? Do they believe really that Italy which came to Ethiopia and robbed our territories in order to feed its impoverished population was acting in good faith when Commissioners say that "the Commission will apply the general rule that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose"?

Very surprising as it is, the Commissioners have also considered the reference to the 1964 OAU summit declaration to be relevant. They argue" ...the Commission does not read article 4, paragraph 1 as altering the general direction given to it in paragraph 2 of the same article. However the Commission does see the provision as having one particular consequence. It is that the parties have thereby accepted that the date as at which the borders between them are to be determined is that of the independence of Eritrea, that is to say, on 27 April 1993. Developments subsequent to that date are not to be taken into account save as in so far as they can be seen as a continuance or confirmation of a line of conduct already established, or take the form of express agreements between them".

The incomprehensible thing here is that the Commission has, like all other issues, tried to interpret the principle of uti possidetis in a very partial way. The principle of uti possidetis cannot be seen in isolation from colonialism. It is a principle which is applicable between countries whose territories were demarcated by Europeans colonialists. Uti possidetis cannot be conceived of outside this situation. Do the Commissioners believe that such a situation existed in the case of Ethiopia and Eritrea? Can one argue safely that this principle applies without establishing before hand whether Eritrea was decolonized in 1991 or seceded from Ethiopia? They deliberately avoided these questions because they write in their substantive introduction "there is little need to present any detailed account of the history of the parties or their relations outside the events that are immediately relevant to the issues before the Commission..."

If the relationship of the parties and history are not relevant, how can the application of uti possidetis can be relevant? This principle could only applicable to countries which obtained their independence from European powers in the 1960s and to countries which were regarded by the UN as colonial territories. Outside this, the Cairo summit of 1964 cannot have any sense. Therefore without determining before hand whether Eritrea is a secessionist or a decolonized one, one cannot blindly say that the OAU summit Declaration of 1964 is relevant unless on wants to hurt Ethiopia. The Commission's decision to take April 27, 1993 as the critical date for the application of the uti possidetis based EPRDF decision is also a great mistake. The Commission should have determined itself what the critical date is. That said, we know that Eritrea was de facto independent as of May 1991. Nevertheless, regarding the issue of Eritrean territory the question should have been: what was Eritrean territory when it was under "Ethiopian colonialism"? The EPRDF government cannot be considered to be an Ethiopian government in the EPLF sense of the word. It is not either so considered by Ethiopians because it fought against Ethiopia for Eritrea including in The Hague. The fact that the EPLF annexed Assab with the help EPRDF does not mean that Assab is not Ethiopian. The annexation is not surprising given that the EPLF had vassalized Ethiopia from 1991 to 1998. However, the annexation is null and void as far Ethiopians are concerned. No one, leave alone the EPRDF, has the right to cede our territories without the express approval of the Ethiopian people. While this the fact the Commission has made a great error in interpreting the principle of uti possidetis as being retroactively applicable from 1890 to 1993. Because by doing so it has behaved in such a way as to make invalid the UN resolution which federated Eritrea with Ethiopia, the UN's recognition that Ethiopia has a legitimate need to have an adequate access to the Red Sea. What legal grounds the Commission has to rewrite history and international law in favour Eritrea? The argument of the Commission is that it has done nothing other than implementing the will of the EPRDF to reward Eritrea. But, it has become the instrument of EPRDF's pro Eritrean policy. And that is why we say it has committed a professional fault because it has considered this case as a normal case by referring to international precedents and principles, et cetera which are normally applicable to valid treaties. Justice requires that the historical right of Ethiopia on what is called present day Eritrea before the arrival of Italian colonialists and the relationship of Ethiopia and Eritrea after the decolonization of Eritrea in 1952 be taken into account to determine if the principle of uti possidetis can legally and appropriately be applied to the demarcation of new border between Ethiopia and Eritrea?

The other argument which shows the partiality of the Commission is its decision to have recourse to a criterion of effective administration, to legislate by modifying its terms of reference and to give deliberately obscure decisions regarding for example the case of Badme with view to avoiding popular unrest in Ethiopia. Let us examine this one by one. Regarding the first point we read that "...the Commission is satisfied in terms of administration range, quantity area, period to justify treating the Acran region as part of Eritrea". This shows clearly that the Commission has acted beyond its terms of reference which are the null and void colonial treaties. It has not said that the Acran region is Eritrean on the basis of a null and void treaty but it has given it to Eritrea on the basis of effective administration and that is based on a "proof" submitted by anti Ethiopia forces.

In other words, instead of deciding in accordance with its terms of reference, it has decided on the basis of who administered effectively Acran region no matter to whom this region belongs according to the defunct treaty. What is saddening is that the Commission has not applied the same criterion regarding many localities integral part of the Agamè awradja or other territories in Western Tigrai and in the Afar region. One can clearly see that when the application of a defunct treaty does not favour Eritrea, the Commission has applied effective administration contrary to its terms of reference. On the other hand when its criterion of effective administration is unfavourable to Eritrea, it has applied the illegal treaties. This shows undoubtedly how much the Commission has been politically pro Eritrea. The Commission has tried to justify its position by referring to article four of the Algiers Agreement which says that the border dispute shall be resolved in accordance with international law in addition to defunct colonial treaties. But as I said above, reference to the international law applicable to resolution of border dispute would have been justified had the Ethio-Eritrea case been the similar to other international border disputes. However, the history of Ethiopia and the historical Ethiopianness of Eritrea and the reunification of Eritrea with Ethiopia militate against drawing a parallel between this case and other international border disputes. It should not be forgotten that Eritrea is the only country in world history whose independence has been rendered possible by Ethiopians fighting for Eritrea against Ethiopia. National ego may not dispose to accept this fact. But one cannot change it. If EPRDF and TPLF were pro Ethiopia organisations, there is no reason why they should try to kill Ethiopia by coalescing with Eritrean rebels who are the number one enemies of Ethiopia and its people. Without taking into account all these facts, it is impossible to speak of all other things. However, the partiality of EPRDF towards Eritrea has led the Commission to be partial to Eritrea.

The partiality of the Commission can also be shown by its decision regarding the area of Fort Cardona and Tsorona. The Commission has clearly stated that these areas were on the Ethiopian side of the treaty line. However, the EPRDF argued that they were undisputed Eritrean territories. While the pro Eritrean argument of the EPRDF is not at all surprising, it is incomprehensible why the Commission decided to give effect to the conspiracy of the EPRDF? Was it not supposed to decide on the basis of its terms of reference as indicated in article four of the Algiers Agreement? Shouldn't the Commission have clung to its terms of reference? It has deliberately overstepped its jurisdiction to hurt Ethiopia by modifying its terms of reference. The decision of the Commission shows how much the establishment of the Commission was intended to give a semblance of legality to the cession of Ethiopian territories. The anti Ethiopian decision of the Commission is not limited to these examples. Its obscure decision regarding Badme again shows how much it is a politically active Commission. It is a well known principle that any organ exercising a judicial activity should render a decision as clear as possible as to let know who has lost and who has won. The Commission knows that tens of thousands of men and women have been sacrificed for Badme. Why hasn't it indicated Badme clearly in the maps and why hasn't it said clearly that Badme has remained Ethiopian or has been ceded to Eritrea? Why render a deliberately obscure "decision"? Given its partiality and its active political involvement in favour of Eritrea, should we deduce that it wanted to save the EPRDF from public condemnation? In doing so, it has failed in its duty of giving unambiguous decisions which would not be susceptible of interpretation? We fear that the Commission made a deliberate obscure decision so that UN Cartographer on the ground should give Badme to Eritrea in collusion with the EPRDF? What guarantee Ethiopians have if their remaining territories are to be given again to Eritrea tomorrow under the pretext of demarcating the boundary line? The above examples show in no uncertain terms how much our nation is the victim of internal and international conspiracy.

However, in this anti Ethiopia conspiracy, the EPRDF hired attorneys have also committed a very grave professional fault. One of "Ethiopian attorneys", Ian Brownlie is a known specialist of international law of the time. He has written a lot about international law and on the reunification of Eritrea with Ethiopia. The same questions that we raised as regards the members of the Commission are applicable to Ian Brownlie and the rest of EPRDF attorneys. Does he really believe that long dead illegal treaties can be legally exhumed to be valid? No doubt, for those us who have read several times his articles and especially his work entitled "principles of public international law", a treaty extinguished can by no means be exhumed. Because a dead is a dead. Our question is why did Brownlie accept to "represent Ethiopia" knowing full well that the Algiers Agreement is not in accordance with international law for it supposes that the long dead treaties are still in vigour and pertinently applicable? Doesn't legal deontology oblige an attorney to tell to his client that the "law" on which he wants to base his case is contrary to his interest or that even if the "law" is not contrary to his interest, shouldn't the attorney tell to his client that it is a null and void treaty? Did Brownlie try to prove his lawyerly integrity by saying to the EPRDF that the Algiers Agreement is not only invalid but also contrary to the interests of Ethiopia? Can he tell us that he did that despite the insistence of the EPRDF to cling to null and void treaties? If he said that to the EPRDF why didn't he refuse to represent Ethiopia while the "treaty" on the basis of which he was to "defend" Ethiopia was against Ethiopia? Shouldn't he have declined the offer of the EPRDF? Is it in accordance with requirements of legal ethics and integrity to be highly paid by Ethiopia for having participated in the crime against Ethiopia?

If money was not so important as to override the exigency of the professional obligation to work for the respect of rule of law, why did Brownlie agree to plead that Tsorona and Fort Cardona were undisputed Eritrean territories while the null and void treaty indicates the contrary? Shouldn't he have tendered his resignation when he realised that the EPRDF was acting in a bad faith? Why did he continue despite his knowledge that Ethiopia was being cornered? We believe therefore that not only has he committed a professional fault in being an accomplice, but he has also miserably failed to live up to the requirements legal deontology. Because of this we believe he and the members of the Commission have the obligation to return the money they have been unjustly paid by Ethiopian tax payers. One cannot be paid to act contrary to the interests of the person by whom he is paid. Because the decision is a politically motivated one-sided decision, a great miscarriage of justice has been perpetrated. The miscarriage of justice results from the fact that the decision is not based on rule of law.

We will indicate below that the idea of rule of law refers, inter alia, to hierarchy of laws. The principle of hierarchy of laws requires that juridical acts should be in conformity with the higher laws. We believe firmly that the Border Commission's decision does not respect the hierarchy of laws. It is not therefore conform to rule of law. The decision is purportedly based on the Algiers Agreement. But, the Tsorona and the coastline question have clearly shown that the decision is not even in accordance with this agreement which is anyway illegal. Because, instead of limiting itself to implementing the exhumed illegal treaties of 1900, 1902, and of 1908, the Commission has overstepped its jurisdiction by legislating a new treaty. It has modified the defunct treaties in such a way as to give Ethiopian territories to Eritrea. The Border Commission might argue that EPRDF and its lawyers have pleaded on behalf of Eritrea instead of pleading Ethiopian cause duly. But this is not a sufficient reason to modify the Algiers Agreement. It was "entrusted" to implement the "treaties" independently and impartially and not to modify them. Therefore, by overstepping its restricted competence, not only it has violated Ethiopian right and has been unduly paid by Ethiopian tax payers but it has also violated an arbitration deontology. It knew full well that tens of thousands of Ethiopians have died for their territory. It received also a deluge of petitions from Ethiopians that the EPRDF government could not properly represent Ethiopia's national interest. If it were an impartial body of integrity, it could not have contented itself to render a slapdash decision knowing full well that Ethiopia was not represented.

Nonetheless, even if the decision of the Commission were not a botch-up, it goes without saying that it is against the principle of rule of law. Because, as we have said many times, the Algiers Agreement is in contradiction with higher laws which are municipal and international. From the point of view of municipal law, we demonstrated that the Algiers Agreement is unconstitutional in the sense that it violates the most important provision of Ethiopian constitution. On the international law plane, the Algiers Agreement is not either based on rule of law. Because, it is based on the idea that Eritrea was a colony of Ethiopia. But, this is in stark contradiction with international law which defines colonialism as a European adventure in the third world. It nullifies all UN resolutions which clearly showed the historical and legal Ethiopianness of Eritrea. The fact that it selectively exhumes defunct colonial treaties is against international law. Dead treaties can by no means be exhumed. Because they are dead and it is impossible legally speaking to exhume them. Of course, politically nothing is impossible. However, the exhumed defunct treaty is not a treaty in itself. It is the political will to exhume it which makes it seem treaty. In fact behind the conspiracy of exhuming a defunct treaty, there is a new treaty. In this case, the territorial demarcation is not taking place in accordance with dead treaties. But in accordance with a new Treaty which we can rightly call the Algiers treaty of 2000. This is why I argued and entitled one of my previous articles "territorial cession under the pretext of border demarcation".

Of course, this is contested by EPRDF and EPLF. But as these two organisations have fought for Eritrea, they, in particular the EPRDF has a conflict of interest. EPRDF's exceedingly pro Eritrea policy has always been the greatest menace on Ethiopian sovereignty and independence. Therefore, it cannot at the same time argue for Eritrea and pretend to represent Ethiopia. When Ethiopian strongman orders Ethiopians to accept that Ethiopia has not any right of access to the Red Sea, he argues for Eritrea against Ethiopia. If he were a true representative of Ethiopia and a veritable pacifist and legalist as he pretends to be, he could have pleaded Ethiopia's right of access to the sea before the International Court of Justice instead of signing the Algiers Agreement in such a way as to satisfy each and every demand of Eritrea. It would have been up to the court to decide if Ethiopia has indeed a right or not. However, knowing full well that Ethiopia's maritime right is a legally established one, he has left no stone unturned to prevent Ethiopia from getting its sovereign right respected through legal means. The signing of the Algiers Agreement is the clearest manifestation of the desire to corner Ethiopia. In a case like the Ethiopia-Eritrea, the establishment of an arbitration commission was meant to enable Ethiopian and Eritrean strongmen to achieve what they have fought for years. If there were good will to get respected what is rightfully Ethiopian, then one could not have signed the Algiers Agreement. There were only two possibilities which could satisfy Ethiopia's demand for justice. The demarcation of the border on the basis of negotiation and mutual concession or the submission of the case to International Court of Justice so that the Court would determine in accordance with all relevant rules and international law the respective territorial rights of both countries. The regime did not want this to happen because that would not allow Eritrea to take Ethiopian territories as is the case with the Algiers Agreement and The Hague based decision. However instead of acting in civilised manner, the regime has resorted to the primitive way of issuing intimidatory statements of war mongering as if it did not bleed our country and people during seventeen years of war of collaboration with an enemy. Belatedly the prime minister is affirming in a surprisingly impertinent manner that he does not want to change Assab for peace and democracy. We know what such phoney arguments are intended to: It is a great shame to decide to reign on our country and people while working against us and our country? In the name of peace and democracy we are being asked to accept passively to live under political servitude and economic oppression. So if our country is, for the time being, rendered landlocked , it is precisely because it is the personal desire of Ethiopia's strongman. This means that Ethiopia needs to be represented by an irreproachable government in its respect of Ethiopia's sovereign right so that the EPLF and the Ethiopiawi government can battle in the legal field by presenting their claims before an independent and impartial court which should decide if Eritrea as the EPLF say was a colony of Ethiopia under international law.

As long as these requirements are not met, neither the Algiers Agreement nor the botched border decision are in conformity with rule of law. From this, it follows that both the Algiers Agreement and The Hague based decision are a heavy blow to the empire of rule of law. It is true that Ethiopia's strongman and his foreign minister are saying that the decision is in accordance with "rule of law" à la EPRDF. On the other hand, the Ethiopian people say that it is a decision based on jungle law. Who should be right? Who should judge us? As long as the EPRDF is an adverse party of Ethiopia, it cannot be at the same time a judge of its own case. It has a dispute against Ethiopia. Therefore, as the principle of rule of law requires the existence of an independent and impartial body to decide a case between two contending parties(Ethiopia versus EPRDF/EPLF), EPRDF cannot speak on behalf of Ethiopia. The conspiracy which started from fighting for the independence of Eritrea against Ethiopia to ceding Ethiopian territories to Eritrea by demanding the Commission to give Ethiopian territories to Eritrea shows beyond doubt that there have been no disputing parties with conflict of interest in The Hague.

As far as the present writer is concerned not only Ethiopia has been unable to plead its case fully as a result of the illegal Algiers Agreement but she has not been summoned. The decision of the Border Commission has condemned Ethiopia in absentia to cede its territories. The fact that EPRDF and its legal representatives appeared before The Hague Border Commission does not change anything. What matters is that the Ethiopian people do not believe that EPRDF can work for the respect of Ethiopia's sovereign right. The behaviour and the pro-Eritrea argument of the EPRDF have confirmed Ethiopians in their distrust of the EPRDF. As the decision of the Commission shows the Ethiopian government and its lawyers have "obliged" the Commission to give Tsorona to Eritrea by modifying a defunct treaty according to which Tsorona was Ethiopian. I am very sure that all international law commentators will find this botched decision a very scandalous one. Not only because that it is defective but because it is for the first time in the history of international settlement of border disputes that a government argues against the country it rules in order to favour an enemy country. The lesson that we should learn why we are victims miscarriage of justice in Algiers and in the Hague is that because our people continue to live under jungle jaw in lieu of a modern government characterised by twin principles of rule of law and democratic governance. In order to distinguish what is rule of law from jungle law, we need to discuss briefly what we mean by rule of law.
THE CONCEPT OF RULE OF LAW 
It is not necessary here to go into jurisprudential niceties to study rule of law. For the purpose of this article, we can limit our selves to studying it by looking at its practical relevancy to efforts to make Ethiopia a constitutional democracy. There are two ways of looking at the concept of rule of law. First, it can be defined as the supremacy of law over arbitrary and capricious decision of men who hold the reins of state power. This means that not only a government's decision should conform to an existing higher law but also the government should make sure that there is a law which enables it to make a decision. This is what we call competence. If an act of government is in accordance with law whereas the organ of government which authored the act does not have the competence, then this act can be annulled for lack of competence. This enables to prevent the powers that be from acting in an arbitrary and cavalier fashion. Implicit in this requirement is therefore the principle of hierarchy of laws. According to this principle, a lower law will be valid when it is in conformity with the immediate higher law. The principle of hierarchy of laws is a corollary of the principles of the hierarchy of authority. This means that an inferior authority should obey to the legal orders of his superior. Obviously this principle excludes the possibility of the superior being commanded by his inferior. Astounding as it is, this has, however, happened in Ethiopia. Namely, presidents of the Southern Ethiopian and Somali provinces were dismissed from their respective responsibilities by letters signed by their respective vice-presidents. There is no doubt that the vice presidents violated the law with the complicity of their masters in Addis-Ababa. In a society of rule of law, this act would have been a unthinkable.

The idea is that in a society ruled by law even the highest authority does not have unlimited power. Legally speaking, though the prime minister is the highest executive authority, his powers are limited and he is accountable to the parliament. The power of the parliament is not unlimited either. The Ethiopian constitution provides for a constitutional review of parliamentary acts which do not conform to the constitution. This is indispensable because if there is a threat of oppression in today's world, it emanates mainly from parliaments and executives whether they be popularly elected or hand-picked. The fact that the Ethiopian parliament rubber-stamps the cession of our territories and the waiver of our right of maritime outlet shows once again how much a parliament can be the source of great suffering and oppression for the people. The Algiers Agreement is in complete contradiction with the constitution. However, neither the "House of Representatives" nor the "House of federation" has done anything to ensure the respect of the constitution. They have rather actively participated in the violation of the constitution. This shows that the presence even of a true popularly elected representatives does not mean necessarily that power will be exercised in the interest of the people. Conversely, a democratic election can be a means for dictators to take power by resorting to populist rhetoric as the case the German Third Reich republic showed. That is why democracy without rule of law and rule of law without democracy are incomplete to ensure citizens against the dictatorship of the majority or the autocracy of the minority.

The principle of rule of law requires also that laws should be general and impersonal. The requirement of generality and impersonality protects citizens from being the selective targets of revenge by wielders of power by ensuring that law is not the reflection of the personal wish of rulers intended to hurt particular individuals. Concretely this means that the EPRDF's anti corruption law and the provision which prevents a release on bail of a person accused of corruption do not meet the requirement of the generality and impersonality of laws because they are politically motivated and intended to inflict revenge on particular individuals. Far from being intended to ensure a clean administration in Ethiopia, they are translations of the personal whims of Ethiopian masters. The principle of generality and impersonality of laws has as its corollary the principle of equality before the law. There is no doubt that the anti corruption law does not apply to EPRDF's dignitaries and their protégés. We remember that Ethiopian masters publicly acknowledged that the EPRDF rule of Ethiopia had been characterised by rampant corruption. This means that the EPRDF government has been responsible for dereliction of duty because it has presided over kleptocracy during eleven years. Despite that, EPRDF dignitaries continue to enjoy full immunity. This shows that the anti corruption law does not apply to them but to their adversaries and some scapegoats.

Although, the definition of corruption might be controversial from the academic point of view, there is no doubt that corruption is not limited to misappropriating public money. It includes all governmental action in violation of law with view to procuring an advantage to oneself or to others. In this regard, the Algiers Agreement will remain in Ethiopian history the mother of all corruption because the EPRDF government has abused its powers to cede Ethiopian territories for the benefit of Eritrea. The fact that the government has used the anti corruption law against its political adversaries by washing its hands of any crime doing violates one of the principle of equality before the law. It was only under a feudal era that inequality before the law was the accepted norm. The are many unconfirmed reports of malversation by the dignitaries of the regime. But, no one can dare verify this. No one can conduct an investigation to verify whether or not the prime minister and his cronies are as clean as they pretend to be. We should not forget that the impunity which the EPRDF enjoys is the political antidote of rule of law.

Worse still is, the fact that this differential treatment has received a tacit judicial imprimatur. In this regard, the Ethiopian Supreme Court's decision to reject the request by Ato Siye's lawyers to review the "unconstitutionality" of the prohibition of release on bail is a cause for concern which some Ethiopians have considered rightly as a judicial suicide. That the Court said it did not have the right to interpret the constitution while at the same time interpreting the constitution (the fact that it said it did not have the power to interpret the constitution is nothing other than interpreting the constitution) shows how much the courts have shirked from their responsibility of being the guardians of the constitutional rights of citizens.

It is true that the ordinary courts do not have the power to declare that a legislation passed by parliament is unconstitutional. But, they have the duty to interpret the constitution. If they find out that the law in question is indeed unconstitutional, they must refer it to the constitutional inquiry council. If, on the other hand, they find it constitutional, they must apply it. In both cases, courts are obliged to interpret. Otherwise, they cannot be courts. They do not have any raison d'être if they don't interpret. In fact a court which does not interpret is a contradiction in terms. Interpretation of law including a constitution which is the highest law inheres with courts. The fact that article 83 of the constitution under the title of "constitutional interpretation" gives the power to decide constitutional disputes to the "House of Federation" does not mean that the courts don't have the power to interpret the constitution. The reading of article 84(2) shows clearly that courts have the power to interpret the constitution.

There is no doubt that the wording of the title of article 83 of constitution is the apparent source of the problem. However the intention of the "constituent assembly" under articles 83 and 84 is not to prevent courts from interpreting the constitution, but to prevent them from reviewing the constitutionality of legislation passed by a parliament which is believed to be the "representative of the people". The theory of popular sovereignty in general and democracy in particular militate against the judicial control of legislation. This theory is based on the Rousseauean conception of legislation as the reflection of the general will which according to Rousseau cannot be oppressive. After Jean-Jacques Rousseau, Marxists consider legislation as the reflection of the will of the proletariat which cannot oppress the proletariat, therefore not susceptible of being reviewed by any body. However, contrary to Rousseau, Marxists don't adhere to the idea that the general will is incapable of being oppressive for the dictatorship of the proletariat aims to oppress the bourgeoisie. The result in both cases is that the constitution should not be an obstacle to parliamentary legislation. If there is a contradiction between the constitution and a legislation, then the constitution should be amended. Briefly the Marxists regard the constitution not as a politico-juridical rule of game (because of the premise of dictatorship of the proletariat and the withering away of the state, the idea of the constitution as a rule of game is a contradiction in terms) but as a programmatory document which any legislation can modify. This devaluation of the constitution by Marxists is a direct consequence of their conception of power as belonging to the proletariat and only to the proletariat. This leads them to reject the principle of separation of powers as advocated by Charles Montesquieu. As a Marxist-Leninist organisation, the EPRDF is also opposed to the principle of separation of powers. It argues that the constitution being a " political contract" between different ethnic groups, its interpretation cannot be left to independent and impartial judges.

The difficulty with such kind of ideology especially in countries where power is personalised is that it is not at all conducive to the advent of a democratic governance and a constitutional state. The political body entrusted with reviewing the constitutionality of a legislation can not be expected to act independently as the experience of the Ethiopian Constitutional inquiry council and the "House of Federation" shows. The constitutional inquiry council which is considered as the legal advisor of the "House of federation" is peopled by lawyers some of whom have the record of participating actively in the writing of the 1974 constitution providing for a constitutional monarchy and whose drafting was finished in August 1974 but which the Dergue threw into a dustbin, the 1987 Dergue constitution and the 1994 constitution. One cannot expect that such political chameleons can cling to principles and work for the reign of constitutional rule of law. As if they did not teach that EPLF/TPLF were led by confused people who had understood nothing as to the real problem of Ethiopia, they preachify now that Ethiopian political malady is solved definitely thanks to the advent of "ethnic politics". The "federal council" is not better either because it is peopled by EPRDF members; it is therefore naive to expect that a legislation passed by EPRDF controlled "House of representatives" can be reviewed unconstitutional by EPRDF controlled "House of federation" The Supreme Court could have been the only sheet-anchor for Ethiopians.

However, the Supreme Court's failure to consider the request by lawyers of Ato Siye has resulted in a great miscarriage of justice. A court cannot say that it does not have the power to examine the unconstitutionality of a statute while ordering the imprisonment of individuals on the basis of the same statute. What is saddening in this case is that the lack of seriousness of our judges has resulted in the violation of fundamental individual liberty and suffering of individuals.

It seems that the Supreme Court has "not understood" the tenor of the interdiction of ordinary courts to review the constitutionality of laws. The constitution clearly says that when a court is seised of the unconstitutionality of a statute law, it has to interpret it. And if it deems it constitutional it proceeds to dispose of the case on the basis of its merit. But the individual not satisfied with the interpretation of the court can make an appeal to a higher court. On the other hand, if the court finds the law unconstitutional, it has to refer it to the Constitutional inquiry council. If the Council finds that the law is constitutional, it returns it to the court. But an individual not satisfied with the ruling of the Council can appeal to the "House of federation". If, on the other hand, the Council finds it unconstitutional, then it should explain why it believes the law is unconstitutional and must submit its finding to the "federal council" for final decision. The Supreme Court should follow these steps when faced with such kind of questions.

However, in the case of the anti corruption law prohibiting release on bail, there can not even be a question of constitutionality or unconstitutionality. Article 19(6) of the constitution says "All persons arrested have the right to be released on bail. The court may, in exceptional cases as prescribed by law, deny bail or demand adequate guarantee for the conditional release of the arrested person". This means that it is the constitutional right of an accused to be released on bail. The only exception to this general rule is that in exceptional cases the court may deny bail or demand an adequate guarantee. It is very clear from this article that the exceptionality of the case is to be discretionarily appreciated by a court even if a law like the anti corruption law prohibits release on bail. The fact that a law prohibits release on bail is not important per se. What is important is that the court considers the case to be exceptional as to lead it to deny bail. But first, it is very important to bear in mind that the constitution does not make it obligatory on the court to deny bail even when there is an exceptional case as the expression of "the court may" clearly shows. The word "may " shows that it is a court's discretionary power. Second the argument that it is the court's appreciation which is more important than the law which prohibits release on bail can also be demonstrated easily. Assume that the parliament passes a law which prohibits release on bail of a person accused of stealing a loaf of bread in a super market. The court will not in this case limit itself to examining whether or not the law prohibits release on bail. It will examine if the stealing of a loaf of bread in a super market is so exceptional as to deprive the accused of the right to release on bail. This ludicrous example is necessary to show that article 19(6) of the constitution does not say that an accused can be denied of the right to be released on bail if a law says so. As one can see, the constitution gives a great responsibility to the court not only to interpret the constitution but also to interpret it in such a way as to ensure that the rights of the accused are well protected. All this shows clearly that the question of constitutionality or unconstitutionality cannot even be raised when it comes to release on bail.

What is crucial under this article is the court's appreciation of the exceptionality of the case. But the question of exceptionality can only be raised if there is a law which prohibits release on bail like the anti corruption law. If there is no law which prohibits release on bail, then release on bail is automatic even if the court were to consider the case so exceptional as to deny release on bail. On the other hand, when there is a law which prohibits release on bail, it is not sufficient by itself to deny bail. The court should be convinced that the case is so exceptional as to override the constitutional right of the accused to be released on bail. For it is only a case which the court deems exceptional which leads to deny release on bail and not any law which prohibits bail as the case of the hypothetical law prohibiting release on bail of a person accused of stealing a loaf of bread in a super market shows.

The issue in the Ato Siye case is therefore to determine if the act which he is accused of is so exceptional as to deny him the constitutional right to be released on bail. This means that the court should have examined if it was exceptional or not. It did not. It has committed a great error. But as it has never ruled on the issue of the exceptionality of the case, Ato Siye attorneys can still try to convince the court to release their client on bail. They can argue that it is the power of the court to appreciate if there is an exceptional case as to lead it to deny release on bail. They can argue that the court's argument that it has not jurisdiction to interpret the constitution or to declare a law unconstitutional is not well founded. In fact this ruling is unconstitutional and can be considered as a dereliction of judicial duty. If the judges are really men of integrity and independence, then they cannot fail to examine the case on the pain of being considered political judges as Addis-Ababans tend to say. As we said above, the issue is to weigh the exceptionality of the case. But even in that case, Ato Siye's case was already considered by the same court not exceptional as to prevent his release on bail. Every body remembers that the court was to release the accused on bail had the government not revised the anti corruption law to prevent release on bail on learning that Ato Siye was to be released on bail. The amendment of the anti corruption law does not in anyway affect the case if the judges are determined not to be marionettes at the service of the strongest. The fact that the government amended its law to prevent release on bail cannot render a case exceptional while three days before the amendment the case was considered to be ordinary. The court should not forget that in this case Ato Siye may be ordered to produce adequate guarantee but he cannot be denied bail. Only in this way can our courts contribute to the building of a constitutional state.

Regarding the irreplaceable role of the judiciary in the building of a constitutional state, the court can look at the experience of other countries. In particular the experience of the United States Supreme Court regarding judicial review of legislation is instructive. The United States constitution did not give the courts the power to review legislation. However, the court was so bold as to review a federal law. If the court had said that there was nothing in the constitution which would enable it to review a legislation then it would not have gone into the annals of judicial history as the pioneer of judicial review of legislation and would not have the relative respectability that it enjoys now not only in the United States but all over the world. I am not saying that Ethiopian courts should try to review legislation for they are expressly forbidden by the constitution to do so. What I want to say is that judges should be creative intellectually in such a way as to contribute towards the advent of a constitutional state in Ethiopia. If the judges don't show intellectual creativity as to enjoy the respect of our people, then no one can come to their help when they are humiliated by the executive as the wholesale dismissal of 1996 showed. In that case, the prime minister, true to his usual behaviour, dubbed them thieves without any proof. The Ethiopian people did not bother about that although it is very clear that a strong and responsible judicial system is indispensable to secure the protection of individuals from being victims of wielders of power.

A responsible judicial system is not politically neutral contrary to what most people believe. We know that law is a solidified policy. Therefore he who is involved in the interpretation of the law is indirectly interpreting policy. But, a creative judge is he who tries to strike a balance between policy of a government and the need to respect the rights of individuals. Such a balance is indispensable because if the judge renders a decision in such a way as to please the government, he will lose his reputation of an independent judge. This may lead the government to pressurise judges to be its marionettes. On the other hand, if the judge is so active as to render decisions which are manifestly anti government, then the government may use this as a pretext to attack the judges accusing them of judicial activism. In both cases, an independent and efficient judicial system cannot be built in countries with no developed democratic tradition unless the courts are so intelligent as to be capable of striking a balance as to enjoy respectability on the part of the population and the government. Obviously, the Supreme Court's refusal to interpret the constitution is a heavy blow to its reputation.

The court's behaviour may also be explained by what the judges were taught regarding the interpretation of laws in their school days. There are some legal myths that law masters teach their students in the Addis-Ababa University. Namely the myth of interpretation. According to this legal myth, the role of the judge is to interpret only when the law is not clear. When it is clear, the judge is prohibited to interpret. He has to apply the law as it is. The other related myth says that when the judge interprets, he must seek the intention of the law giver. These myths form part of the teaching of the legal gospel. However, these myths have nothing to do with the reality. In the first place, it is essential to bear in mind that law becomes law when it is interpreted, when it is applied to concrete facts. As we saw above law should be general so that it can apply to particular cases. This means that what we call law is what the courts consider to be law. This is why we argue that the court is not limited to applying the law. For example when a plaintiff and a defendant present their case before a court, they have their respective interpretation of the law. In fact they don't know what the law is until the court determines whose interpretation is right. Otherwise they would not hire attorneys and spend money knowing that they would lose. When the court determines the meaning of the law with regard to the particular case before it, its interpretation becomes law and the parties must respect that. In our school days we were taught apropos interpretation of law that the court should look for the intention of the legislature. But this is also a myth because no one, even a legislator who voted the legislation, can tell what was the real intention of the legislature. For this reason, what matters is what the court thinks is the intention of the legislature. It is therefore the court's interpretation which becomes law. From this, it follows that the role of the court is not limited to passively implementing the intention of the law giver as one might think. Whether one believes it or not courts are legislators although they don't vote law officially. They make laws by interpreting. No one can deprive them of this legislative role. So our courts should realise how much their responsibility is a big one. If they fail to live up to their responsibility, then our people will continue to suffer a lot.

The Ato Siye's case is a good indicative of how much courts by their negligence, unreasonable fear or incompetence can be a mediocre administrators of justice contributing thereby to the suffering of individuals. That said, it is not all clear if there was a mistake or if the refusal of the court was a deliberate one intended to please the jailers of Ato Siye. I am not at all a supporter of Ato Siye. I am speaking about the violation of a principle that law is the bulwark of individual liberty whether that liberty is that of Ato Siye or other sixty five million Ethiopians. The foregoing example concerning the violation of rule of law in Ethiopia is the tip of the iceberg. Personalism and its corollary impunity continue to be the characteristic features of the functioning and organisation of state institutions..

We know that the principle of equality before the law is the juridical expression of equality between citizens on the one hand and equality before the law between rulers (as individuals) and the ruled on the other hand. If the law is to be observed by the ruled whereas rulers take the liberty to violate it with impunity, then the relationship between a government and its population is not a relationship of government and a citizen but a relationship of master and slave. Although the word citizenship might appear to be laden with western individualist philosophical underpinnings, it has an equivalent meaning in our culture. Namely, a citizen is a free person. A person is free when he has a right to assert against any individual be it a prime minister or a man in the street. If you are a free man, a minister or a president cannot order you to be his domestic servant unless you wish so or unless he uses force to oblige you. If he forces you, you forfeit your status of a free person. In a society where there is rule of law, the minister's or the president's act is illegal and he has to answer for it. In this regard, the case of the former president of Zimbabwe who obliged one of his body guards to sleep with him is instructive. The victim made a complaint against the former president for homosexual abuse. The fact that the former president was made to answer for his depraved act before a court of law shows that the principle of equality before the law has been restored.

What we can see from this is that in a society under the empire of law, no one can be beyond the law. Under the present circumstances in Ethiopia, the Ethiopian people can do nothing against its rulers even when the latter outrageously cede their territories and deprive them of their maritime outlet. It is therefore impossible to speak of citizenship in Ethiopia. Because one cannot be a citizen if one does not have a right opposable to anybody including rulers. Although, one cannot say that we are slaves, we do not have for sure citizenship rights opposable to the government. Our situation is not therefore essentially different from that of our ancestors who lived as subjects of a "feudal" rule. There is, however, a fundamental difference between traditional "feudalism" and modern "feudalism" in Ethiopia. Traditional feudalists did not have an absolute power. Their power was limited by weg na hig (customary and written law). They were also God-fearing. More importantly, they were the first to die when the security of the country and its inhabitants was threatened. A reading of the Fit'ha Nagast shows that human rights were practised in Ethiopia with out being known by their contemporary western appellation. It suffices to cite one example. An individual suspected of committing a crime against the state (Atse) could demand an asylum in a Church. Once he is in the church yard, no one can force him out against his will. (If he decides to become a monk, then he was absolved from his crime). In contemporary Ethiopia not only the Church is not a refuge but it has become the political instrument of the feudalized "modern" ruling elite.

The other principle of rule of law is that laws should be prospective. This enables an individual to know before hand what is permitted and prohibited by law and to conduct himself accordingly. If an act is not prohibited by law, then an individual has the right to think that it is permitted unless such act, though legally not prohibited, is manifestly illegal. For example the 1957 penal code of Ethiopia did not contain a provision criminalising the act of hijacking an aeroplane. But we know that following the EPRDF taking of power, there were repeated instances hijacking. I remember some of the hijackers arguing before the courts that the penal code contained no provisions criminalising the act of hijacking. There is no doubt that hijacking endangers the life of innocent individuals therefore it is reprehensible act per se. That said, if we take the case of the anti-corruption law, it is in contradiction with the principle that a criminal legislation should not be retroactive unless it benefits the accused. I am not saying that the act of misappropriating public fund should be tolerated. What I am saying is that the existing laws were sufficient enough if the intention of the government was really motivated by the need to make sure that the Ethiopian "public administration" is governed by rule of law. The promulgation of a draconian new anti corruption law under the circumstances which obtained in Ethiopia following the illegal ouster of the EPRDF leaders could only have a revanchist purpose. As it targets particular individuals while others are immune from it, it cannot be a general law. It is a personal whim clothed with "legal formality".

This practice of devaluating law by using it to further private ends has far reaching negative political and economic consequences for the country and its people. In a society of rule of law, just as a state takes every measure to make sure that its citizens are responsible and law abiding ones, citizens have also the right and a vested interest to make sure that the government rules them in accordance with existing law. This means that the government is duty bound to respect the law in the same manner that it expects its citizen to respect the law. This is indispensable because unless the government acts in accordance with law, its actions can do a lot of damage. As a result, citizens would suffer individually and collectively as the case of 20th century Ethiopia amply demonstrated

When a government does not respect the law which it has proclaimed, it becomes an outlaw in the same manner that an individual who violates the law becomes a criminal. In the case of an individual, the society will use, if need be, force to make him comply with what it considers is a normal standard of behaviour. However, when a government which controls the machinery of repression (police, army, et cetera) violates the law and the people has no means of stopping it legally and peacefully from violating the law, the government becomes an outlaw. It cannot therefore be said to be governing in the interest of the people. In traditional Ethiopia, an Atse who violated the Fit'ha Nagast was considered to be a rebel and the church authorities could release the people from their obligation to obey him. This shows how much traditional Ethiopian conception of law based on tefetroawi hig (natural law) was the pillar of Ethiopian philosophy of law. (Unfortunately, the expression of tefetroawi hig in particular and philosophy of law in general may sound as something strange for many of Ethiopian lawyers who were trained only in legal exegesis after the fashion of 19th century western legal teaching. It is a fact however that it is ours. So we must do everything to rediscover the intellectual heritage of our ancestors if we are to use our legal knowledge towards contributing to the modernisation of the now existing backward and autocratic techniques of government in our country).

Modern proponents of natural law have the same approach in that the a population has the right to resist by any means against a government which does not respect the law and the right of citizens. As for legal positivists, it seems a bit difficult to advocate the right of resistance when the law is violated by a government because, they argue that recommending violence by a lawyer is not lawyerly for violence is contrary to the very idea of law. The question however is to know if a law not respected by rulers can be considered to be law as the repeated violation of the Ethiopian constitution by the EPRDF amply shows. It is true that law is made knowing that it will be violated and that is why the law provides for punishment. The idea that law is made to be violated may surprise but that is the reality. If it cannot be violated , it ceases to be human law. It is only physical laws such as the law of gravity which cannot be violated as far as present day teaching of physics shows. Therefore, law and its violation are inseparable. However, a law which is always violated without any sanction being applied becomes ineffective. As a result, it ceases to be law. Is the fate of the constitution of Ethiopia different from this?

The most internationally prominent legal scientist of the 20th century Hans Kelsen agrees with this analyse. Though Kelsen is a guru of legal positivism, he argues that a law which is ineffective cannot be a law. Kelsen also compares the case of a government and that of a robber by taking the payment of a tax as an example to bring out differences and similarities between the two. He says that an individual has the duty to pay taxes. If he fails to do so he may be obliged and may be imprisoned if he still fails to comply. On the other hand, the same individual may be forced by a robber to give him his money. In both cases, the individual is forced to give his money to a government and to a robber. The difference is that the payment of a tax to a government is considered to be legal whereas robbery is a crime. In the first case, the refusal to pay taxes is a violation of the law. In the second case, the refusal is a legitimate act and if the individual injures the robber, he may be justified legally on the grounds of legitimate self defence because the robber's act is against law. Kelsen argues that if the robber manages to extort money from his victim, there is no fundamental difference between giving money to a government and to a robber because the individual is in both cases obliged to pay.

However, Kelsen tells us that there is a fundamental difference from the legal point of view. What could have been a robbery in the case of a government forcing its citizens to pay a tax is nonetheless legal because the obligation of the individual to pay taxes is based on a pre-existing impersonal and general law which applies to every body. The raison d'être of a government being to ensure the well being of the people, it needs money for conducting properly the business of governing. The "social contract" of living in society requires that every individual make contributions towards the preservation of the well being of the society which he is a member. Because of this the constitution vests a government with the power of levying taxes on citizens. As the constitution ( written or customary) is supposed to be based on the common belief of what is considered normally acceptable by the people, the payment of a tax by an individual is supposed to be an act of discharging his obligation towards the society. In return, the individual has the right to be provided with a proper public service. For example, when he is in disagreement with someone he has the right to demand that justice be made by a court of law. He expects the government to ensure his personal security and rights and defend the country when it is faced with external aggression. The relationship between individuals and their government is therefore based on a political tacit agreement that as members of a society there must be a law which regulates inter individual relationships and the relationship between a government and the individual or the community as the case may be.

When a government violates the law while obliging the population to respect it, the government becomes an outlaw and therefore an oppressor. As a result, individuals are not duty bound to obey it just as they don't willingly obey to a robber's demand to give him their money. Because the population's obligation to obey the law is a function of the government obeying its laws. A law obeyed by the weak but violated by the strong is not a law. It is a pure force. It is true that a pure force can be legitimate when it gets the blessing of the people.

The issue of legitimacy leads us to tackle the question of rule of law from the substantive point of view. We know that most of the laws of Ethiopia during the twentieth century were not only bad laws but they were not respected by rulers. The question that one can ask is: what happens if a government makes very bad laws and respects them? Can we speak of the reign of law? From the procedural point of view, these laws may be valid and effective. But from the point of view of justice they are oppressive laws. In that case, we cannot say that the society in question is ruled by law. This means that rule of law is not limited to the respect of a simple formal procedure as legal positivists think although there is no doubt that the non respect of procedure can have disastrous consequences as the experience of today's Ethiopia shows. Consequently, rule of law requires that laws should not be oppressive. This is what we call constitutionalism in modern legal parlance.

The principle of constitutionalism teaches that it is not enough that hierarchy of authority and laws be respected to speak of a veritable rule of law. The best illustration of the "insufficiency" of the positivistic Kelsenite conception of law based on the respect of hierarchy of formal laws is the case of apartheid law. We know that apartheid ideology is based on racial discrimination. However apartheid South Africa was a law ruled society in the sense that any decision by any government organ was made in accordance with Kelsenite conception of the principle of hierarchy of laws. Neither the black people nor the European population of South Africa had complained of the violation of rule of law in its procedural sense. From this point of view there is no doubt that apartheid south Africa was by far a rule of law respecting country than many of contemporary African countries including Ethiopia. Power in apartheid South Africa was not exercised in a personalised manner as is the case of today's Ethiopia. State power was impersonal. There were "democratic" elections although the black Africans did not have the right to vote. The other case concerns the United States. This country considers itself as a champion of democracy and rule of law. For this reason, it prides it self on being the oldest democracy with the oldest constitution. However, from the procedural point of view, the United States was not different from apartheid South Africa. In both countries, persons of European descent were the only beneficiaries of the rule of law. Blacks in the United States were discriminated officially till the 1960's just as South African blacks were discriminated till the abolition of apartheid. This means that from the substantive point of view neither the United States nor apartheid South Africa was ruled by law. Because their laws were racist. The human rights provisions and the democratic ideals enshrined in the constitutions of both countries did not apply to black people. Briefly, there was no constitutional democracy in both countries because a political system which legalises racial discrimination directly or indirectly, tacitly or expressly without providing legal mechanisms to repress it when rights and liberties of individuals are violated cannot be said to be society of rule of law.

The concept of constitutional rule of law is based on the idea that law should not be understood only as a simple formality but also as a substance. It should meet the requirements of justice. For example we know that the Holocaust was perpetrated in accordance with anti-Semite laws. Nonetheless, the killing of innocent people even in accordance with a pre-existing law cannot be justified. It is a crime against humanity despite its formal legality. This is intended to avoid that law become substantially an instrument of oppression. Law should be based on what the population considers is just. For example, the Ethiopian constitution recognises a myriad of individual rights among of which is the right of freedom of expression. This includes the right of free press. However, the exercise of this fundamental constitutional right has been extremely restricted to the extent of becoming meaningless because the parliament passed a press law which makes the exercise of free speech practically impossible. Belatedly, the government has declared its intention to modify the press law so that any Ethiopian who wants to publish a news paper should deposit several thousands of birr before starting his activity. This is intended to discourage people from exercising their constitutionally recognised right. The exercise of a constitutionally recognised fundamental right should not be subject to any precondition which renders it meaningless. The mere existence of a law is not sufficient to speak of rule of law from the substantive point of view. The Ethiopian press law is therefore unconstitutional because by imposing draconian preconditions not only it makes the exercising of this right very difficult but also it has violated the constitution because people have been imprisoned simply because they exercise their right recognised by the constitution.

If there were a free and competent judicature in Ethiopia, the press law would have been reviewed unconstitutional. Many of the laws passed by the EPRDF controlled parliament are not constitutional. Examples are legion to show the violation of rule of law both in its procedural and substantive senses. The fact that the EPRDF has monoplized power and it has redefined democracy in a way to enable it to remain always in power is the clearest manifestation of the violation of the political pluralism as is proclaimed by the constitution. Instead of being a party with a limited mandate, the EPRDF has transformed itself into a state party. The idea of state as a custodian of the common good of all Ethiopians has disappeared as a result of the colonisation of the state power. By transforming itself into a dominant party and colonising the state power, it has rendered state and nation building impossible. This has led to the desinstitutitonalisation of the state. The fact that the Algiers Agreement is signed in a manner to satisfy every and each demand of Ethiopia's number one enemy, Eritrea shows beyond doubt how much the desinstitutionalisation and its corollary the colonisation of the state are threatening the very survival of our country. The desinstitutionalisation of the state has hampered the constitutionalisation of the political system where the constitution as a rule of game should be respected religiously.

It is essential to know that the Ethiopian constitution poses insuperabe procedural and substantive problems. This difficulty can be illustrated by the recognition of the right of self determination including unconditional right to secession. If we start with the substantive issue, this is a very bad constitution because it legalises the disintegration of the country and renders the objective of the "constituent assembly" to build a political community founded on rule of law meaningless. If the country can disintegrate at any time what is the use of taking about the building of a political community? Can one invest time and money in constructing a house knowing that the house is going to be demolished? One builds a house with the intention of living in it and bequeathing it to ones descendants. If the country is not to disintegrate, what is the use of legalising the right of self determination up to secession?

Germane to this is the question recourse to violence to make this right practical. Assuming that an OLF member who fights for the secession of Oromia is captured by the Ethiopian army and invokes the oromo population's right to self determination up to secession as recognised by the Ethiopian constitution, what should be the decision of our courts? Undoubtedly, there would be a great dilemma if the constitution were to be observed religiously by the government. Because, from the OLF point of view, violence can be invoked as being in accordance with the constitutionally recognised right of self determination. It is true that violence is not a normal means of exercising one's right. The problem in the Ethiopian case is that exercising one's right by peaceful means is not either possible. If the EPRDF were law abiding, the OLF would not need to go to the bush. If they were to be convinced that there is a democratic governance in Ethiopia and that they have a possibility of governing Ethiopia like any other party, I wonder they can decide to resort to violence. That said, the OLF's endeavour to dismember Ethiopia, despite its prima facie constitutionality, is for us Ethiopians, the greatest threat to the territorial integrity of our nation. From the substantive point of view, the constitution is therefore anti Ethiopia because it has legalised the Yugoslaviazation of our country. The difficulty for the constitutional lawyer is that if we say that the constitution is anti Ethiopia ( no doubt that it is), the legal question is on what basis? Here comes the very difficult philosophical question of determining the foundation of law. As the constitution is the highest law, it cannot be a priori illegal. This means any action by the government to capture or imprison OLF fighters is unconstitutional. However, if we say that the constitution should be obeyed, we are accepting the disintegration of our country. And we are not at all ready to hear of that let alone to give it legal approval. Far from being an academic inquiry, this is a problem of the highest practical importance in the construction of a modern constitutional state.

We are therefore faced with insuperable legal hurdle. Because of this, the Ethiopian constitution is the worst of its kind together with the Soviet 1977 constitution. The word constitution refers to the idea of being constituted which signifies the construction of one whole. However, the idea of self determination and secession refers to the negative idea of "deconstruction". This is borne out by historical facts. Historically, self determination was the expression of nationalist movements of the 19th century whose aim was to create nation states after the fashion Western Europe out of the disintegration of Ottoman and Austro-Hungarian Empires. Both Marxists and Liberals had accepted the idea of self determination not because they believed in democratic rights but because it enabled them to weaken and disintegrate these two empires which were the adversaries of the Western "nation states". Marxists and especially Lenin accepted the right of self determination in the case of tsarist Russia not out of democratic conviction but because Lenin was either a spy in the pay of Germany or because he wanted to use self determination as a means of weakening the tsarist monarchy so that he could take power. Again in the aftermath the First World war, the United States president advocated the principle of self determination with view to weakening what the West considered were empires whereas the application of self determination to peoples under the yoke of Western colonialism was automatically excluded.

One can clearly see how much the idea of self determination is used as a geopolitically strategic instrument to weaken one's enemies or adversaries. If we take the case of our country, when the former Ethiopian students movement espoused self determination including secession, the students were either regurgitating it or used it deliberately to weaken the Solomonic monarchy. In both cases, it had nothing to do with democracy. It was a means of taking power or facilitating the secession of Eritrea. This is what the practice of the EPRDF since 1991 amply shows. It uses self determination as a means to achieve its objective of realising the secession of Eritrea and to divide and conquer the Ethiopian people so that it will wield power in monopoly to the exclusion of any other party. It does not envisage at all becoming one day an opposition party because it knows full well that it would disappear the day when it loses control of the army, the finance, the media, the courts, the police. The fact that EPRDF is naturally violent militates against it becoming a peaceful opposition party respectful of law. Who can really believe that the EPRDF can observe laws made by others whereas its history shows that not only it has never obeyed the laws made by others but it has never observed its own law when it is an obstacle to its policies or to the personal desire of its leaders? If that were not the case, EPRDF as a political party could not have the right to imprison leaders or members of other political parties in the same manner that an individual cannot imprison an individual in a society ruled by law. But, the fact that it has privatised the army, police, bureaucracy, judiciary, et cetera, to its private ends enables to it do whatever it wants in the name of the state.

The inequality between the opposition political parties and the EPRDF shows the complete absence of rule of law. The fact that the EPRDF has belatedly intimidated the Ethiopian Democratic Party and that it has several times imprisoned its leaders shows beyond doubt that the EPRDF is beyond the law. The fact that it has prevented the same party from organising a peaceful demonstration against the Algiers Agreement and The Hague based border decision despite the constitutionally recognised right of demonstration shows also the EPRDF considers the state as its private estate and the constitution as a useless scrape of paper when it is an obstacle to its caprice. That is why we argue that in today's Ethiopia there is no rule of law but rule of men therefore a rule of the gun. Under such circumstances, neither peace nor economic development is conceivable. Peace as a precondition of economic development means peace of the mind and the heart of all Ethiopians, i.e., their firm belief in the existence of an effective constitutional rule of law. This kind of peace can exist only when there is an accountable government who advocates only Ethiopian interest and not of its enemies. An accountable government is inconceivable in the absence of real political pluralism which in turn is inconceivable when the state is denationalised by the EPRDF. That is why we believe that constitutional rule of law and accountable government are the twin characteristics of the modern governance without which economic development is inconceivable.

Our country and people can savour rule of law, accountable governance and economic prosperity only when Ethiopia has modern leading elite imbued with highest sense of public service for the benefit of her sixty five million sons and daughters. The advent of such a political system depends on the will of each and every Ethiopian to fight as one man with view to making sure that our country, the eternal home of the past, the present and the future generation of Ethiopians is well protected from the evil doing of external enemies and their Trojan Horses. If Ethiopians fail to realise the urgent need to create a constitutional democracy by working towards the meeting of their hearts and minds, they are certainly taking the risk of witnessing the disintegration of their own country as the case of our neighbour Somalia shows. It is therefore indispensable that Ethiopians work hard together to save their country from economic and political collapse. Such a noble national cause can bear its fruit if only Ethiopians are capable of de-ethnifying themselves and lead the struggle of nation saving and building in the sole interest of sixty five million Ethiopians. De-ethnifying oneself means stopping to look at Ethiopia and Ethiopians from the angle of one's power or the possible advantage one's ethnic group; it means to have the ability of political abstraction. It means to believe firmly that Ethiopia is a home of every Ethiopian who believes in his Ethiopianness and that he has equal right like other Ethiopians. It means a belief in equality and harmony of Ethiopians based on mutual consideration and a sentiment of fellow Ethiopianness. This means fighting against divisive behaviour on group or person to person basis. We are not expected to fall in love with each other. We are expected not to forget that our love for our country is inseparable from having a sentiment of fellow Ethiopianness towards our compatriots irrespective of religion, sex, language. Concretely this means that to bear always in mind that Ethiopian unity is inextricably linked with unity between and amongst Ethiopians. As I said a few months ago, this requires a radical change of mentality as a precondition to the modernisation of our country. The change of mentality that our country needs badly does not call for a community of political views regarding our political or economic system. It calls only for community of view and action when it comes to protecting Ethiopia from being weakened and finally disappear. Positively, it means working hard for the renaissance of Ethiopia so that it can have its proper place among the society of nations This is a great historic challenge indeed. Is every Ethiopian who loves his country more than anything else ready and resourceful to take it up? The near future will tell it.

Before closing, I would like to acknowledge that I was inspired, in preparing the preceding paragraph regarding rule of law, by Bahlbee ZeMariam's excellent article "Lewt Asfeligewal"; which grosso modo means "the urgency of a political change in Ethiopia" and that of Hailu Aberra entitled "Suicide of the Judiciary".