By Prof. Al Mariam
I cut my “legal teeth” nearly four decades ago pouring over the Magna Carta, Blackstone’s “Commentaries” and Edward Coke’s legal treatises on the primacy of common law principles and the rule of law. Coke enunciated the principle of judicial review (and supremacy) in Bonham’s Case declaring, “when an act of parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void.” Blackstone later described the power of Parliament to make laws in England as absolute and without control. Judicial review today is the linchpin of American democracy as President Donald Trump has learned.
More recently, I took great pride in celebrating the 800th anniversary of the Magna Carta on my campus with my students (arguably the only celebration of its kind on any American campus in 2015). It was an honor to have my commentary, “A Magna Carta for Ethiopia” posted on the official website of the 800th Magna Carta Committee.
For nearly three decades, I have taught my course on civil liberties and free speech by requiring my students to read John Milton’s tract Areopagitica, “for the Liberty of Unlicenc’d Printing, to the Parlament of England”, arguably the most influential and impassioned philosophical defences of the principle of a right to freedom of speech and expression.
I have always had the highest regard for British jurisprudence in the historical context. I have not had the opportunity to study contemporary English law.
I began to doubt my fascination with British law when I recently became aware of “terrorism” allegations against Tadesse Biru Kersmo, an Ethiopian dissident living in the U.K. Kersmo was charged in several counts with violation of section 58 of the U.K. “Terrorism Act 2000”.
According to one report, the charges against Kersmo include allegedly possessing documents and materials “deemed to be useful for committing or preparing to commit terrorist acts” and publications “about security and intelligence, urban guerrilla warfare tactics and sniper manuals.” He was also charged for “attending terrorist camp” in Eritrea.
I was flabbergasted by the allegations, but even more stunned by the apparent essential similarity between the Licensing Order of 1643 against which Milton railed in Areopagitica and section 58 of the Terrorism Act which criminalizes the “possession, collection or recording of information of a kind likely to be useful to a person committing or preparing an act of terrorism” in documentary, photographic or electronic form. The Licensing Order criminalized and aimed to suppress the publication and possession of “false, forged, scandalous, seditious, libellous, and unlicensed Papers, Pamphlets, and Books to the great defamation of Religion and Government.”
Ironically, the Licensing Order of 1643 appears to be more enlightened than section 58 of the Terrorism Act in the fact that it imposed blanket censorship subject to exceptions of the official censor. Section 58 uses vague and overbroad language to criminalize any publication deemed “useful in committing terrorism”. An academic researching guerrilla tactics or other forms of asymmetric warfare could easily be charged under section 58 for possession of information likely to be useful for the commission of terrorism. That is the abysmally incomprehensible nature of section 58. It gives the Crown prosecutor unfettered and limitless powers to suppress and criminalize information merely by asserting that it is “likely” to be “useful to a person committing or preparing an act of terrorism.”
Roll over in your grave, John Milton!
What is utterly incomprehensible is the fact that the “proscribed” publications alleged to be in the possession of Kersmo are all available for purchase online from Amazon.com or could be freely accessed on various websites according to reports in social media. (No, Amazon.com is not a co-defendant in the Kersmo prosecution.)
The publications allegedly possessed by Kersmo deal with “urban guerrilla warfare” and include manuals on sniper training, hand-to-hand combat, and analysis of intelligence principles. Kersmo’s computer(s) allegedly contained photographs of persons apparently clad in camouflage and Kersmo interacting with persons in military-style uniform, a tract on non-violent struggle against the regime in Ethiopia, documents written in Amharic allegedly providing instructions on making explosives and other sundry documents.
Who is Tadesse Biru Kersmo?
Kersmo is an academic who holds an interdisciplinary doctoral degree in social sciences and Master’s in Economics. In Ethiopia, Kersmo was department chair of economics at Unity University. He also taught at Addis Ababa University. In the U.K., he taught at the International Leadership Institute, affiliated with the University of Greenwich in London.
For a number of years, Kersmo served on the executive committee of the Ethiopian Economic Association and was a member of a taskforce for higher education reform at the Ministry of Education of Ethiopia. Kersmo has a weekly public affairs television program “Yetimihirt Bilichita” [Spark of Education] broadcast on Ethiopian Satellite Television and available on the internet. Kersmo has conducted numerous programs on civil disobedience and nonviolent resistance.
In 2005, Kersmo and his wife “campaigned for the country’s pro-democracy party, the Coalition for Unity and Democracy, which achieved a sweeping victory in the capital of Addis Ababa.” Kersmo’s “ties to the opposition subjected him to continued threats, harassment, and intense monitoring long after the election” and fled to the U.K. in 2009 where he received political asylum. The TPLF is “a regime that shoots street protesters, locks up dissidents and jails more journalists than almost any other country in the world.”
The ruling TPLF regime in Ethiopia has been persecuting Kersmo even after he left the country.
In March 2014, The New Yorker magazine wrote, “Before Edward Snowden sparked a global debate about government surveillance, it was a fact of life for Tadesse Kersmo.” Kersmo was the first identified victim of the TPLF regime’s global hacking campaign against its opponents and dissidents. Examination of Kersmo’s computer by experts revealed “traces of FinSpy, part of an “intrusion” software suite known as FinFisher.” Kersmo filed a complaint with British police requesting “a probe of Gamma Group, a Britain-based company that produces the FinFisher software.”
Who is the real terrorist?
The charges against Tadesse Biru Kersmo are the first and only terrorism charges ever brought against a “member of Ginbot 7”, an organization that has members not only in the U.K. but also in the U.S. where it was established and many other countries in Europe and throughout the world.
The Ginbot 7 movement is not listed as a “terrorist group or organization” in any country in the world, except in Ethiopia where the ruling Thugtatorship of the Tigrean People’s Liberation Front (T-TPLF) has “outlawed” that organization.
In an ironic twist of the pot calling the kettle black, the ruling TPLF regime in Ethiopia is itself a terrorist organization listed in the Global Terrorism Database.
The last recorded terrorist act by the TPLF was committed almost a year ago on August 26, 2016 when TPLF “assailants opened fire on protesters in Bure, Amhara, Ethiopia. At least one person was killed and three others were injured in the assault.”
In July 2014, the TPLF “kidnapped” Andaragatchew Tsgie, General Secretary of Ginbot 7, a British citizen of Ethiopian ancestry from an airport in Yemen.
The TPLF regime triumphantly announced the “Ethiopian national security service coordinating with its Yemeni counterpart had detained and transferred to Ethiopia [Andaragatchew Tsgie] as he tried to enter Eritrea through Sanaa [Yemen].” Reprieve, the British human rights organization, following up on Tsgie reported:
Eight months after Andy Tsege’s abduction by Ethiopian forces, it’s astounding to see that British ministers knew he was being tortured from the start—but still chose to make nice with their Ethiopian counterparts. This is a British citizen facing a death sentence at the hands of a notoriously brutal government—one that appears to face no consequences for its actions. It is high time the UK took decisive action to end his ordeal.”
Tsige is still held captive under a death sentence in Ethiopia in violation of international law and the UK government has made no public call for his release. “The UK government has the power to negotiate Andy’s return home, but has so far failed to do so.”
In 2013, the TPLF jailed Abebe Wondemagegn, an alleged Ginbot 7 member, on trumped up charges of possession of explosives. The U.K. government has failed to call for his release.
In August 2016, Boris Johnson, U.K. Secretary of State for Foreign and Commonwealth Affairs, tried to mislead the public on his government’s failure to demand the release of Tsgie by issuing a statement in which he claimed, “Britain does not interfere in the legal systems of other countries by challenging convictions, any more than we would accept interference in our judicial system.” That is simply not true because in October 2015 British Foreign Secretary Philip Hammond twitted his “delight” in getting the release of a British citizen in Saudi Arabia.
TPLF persecution/prosecution by British proxy: I smell a rat!
I am not convinced that the prosecution of Tadesse Biru Kersmo is a genuine “terrorism” prosecution.
I believe it is a sophisticated and highly coordinated legal strategy between the U.K. and the TPLF regime in Ethiopia and the first step to decimate or completely neutralize the Ginbot 7 movement and strike fear and trepidation in its members in the U.K.
This is not the first time for the T-TPLF has tried to coordinate legal action with another country to neutralize its opponents.
The T-TPLF tried to get Ginbot 7 listed on the U.S. terrorist organizations list but was unsuccessful. However, the T-TPLF was successful in getting Obama and other high- level officials to declare de facto that Ginbot 7 a terrorist group.
In 2015, U.S. Undersecretary of State Wendy Sherman traveled to Ethiopia and declared the U.S. has “concerns about all of those terrorist groups that Ethiopia considers Ginbot 7 a terrorist group as well. The United States believes no group, including Ginbot 7 should attempt to overthrow or speak of overthrowing a democratically elected government.”
Obama repeated the same message when he visited Ethiopia in July 2015. “We are opposed to any group that is promoting the violent overthrow of a government, including the government of Ethiopia, that has been democratically elected.”
The U.K and the TPLF government have longstanding relationships. The U.K. has provided billions of pounds over the years to finance and sustain the TPLF regime and perpetuate its oppressive rule.
On March 18, 2017, the foreign minister of the T-TPLF said, “the long-standing strategic relationship between Ethiopia and UK is growing year in, year out with the unfolding of emerging issues such as migration and terrorism.”
The T-TPLF openly brags about its “partnership and cooperation in such global forums as the G8 and G20” with the U.K., and the fact that “Ethiopia today is the second largest recipient of the UK’s development support next to India.”
According to a Wikileaks document, the U.K. government regards the TPLF’s “antiterrorism law” odious and “very bad.” The U.K, government knows and has “continuing concerns about practices and behaviours within the security and justice sector, including incidents of unlawful or arbitrary arrest or detention, mistreatment in custody, and unfair trial. Most citizens and communities across the country experience inadequate access to justice and security.” Yet, the U.K. government is “helping the Ethiopian government buildup its capability to respond effectively to [terrorism] incidents.”
In 2012, the UK Government agreed to “spend £2 million over five years to fund a series of master’s degrees in “Security Sector Management” for 75 Ethiopian officials. In supporting documents, the Department for International Development (DfID) said the country’s police and defence forces were “considered amongst the best in the region in terms of effectiveness and with regards to human rights”.
Describing the T-TPLF’s “police and defence forces” as “among the best” in the region is a shameless hypocrisy or an outrageous insult to the intelligence of those who toil to defend and advocate human rights for all people.
Why I believe the British Government’s persecution by prosecution is a coordinated effort to suppress the Diaspora Ethiopian opposition with the TPLF regime
First, I have no personal knowledge of “Ginbot 7”, its charter, leadership, membership or activities.
Ginbot 7, a political movement was established in the United States on May 15, 2008. It has been operating in the U.S., U.K, various European countries since that time without any adverse legal or political action by any government, except the T-TPLF regime.
In 2008, Ginbot 7 manifesto set forth its political goals and fundamental values.
Gibot 7 is not mentioned in any official “terrorism list”.
Ginbot 7 is not listed on U.S. Foreign Terrorist Organizations List or any other U.S. domestic violent extremist organizations.
Ginbot 7 is not listed on the U.K. Proscribed Terrorist Organizations List.
Ginbot 7 is not listed on European Union List of Terrorist Persons and Organizations” or the “2017 updated list of persons, groups and entities involved in terrorism.
Since its establishment in May 2008, Ginbot 7 has conducted numerous fundraising campaigns in the U.K., the U.S. and elsewhere without any legal action by any government.
Indeed, in June 2008, Ginbot 7 held its first meeting in London and generated substantial support from the Diaspora Ethiopian community there.
In August 2015, Ginbot 7 held a major fundraiser in London garnering $50 thousand dollars without any legal complaints or preventive action by the U.K. authorities. It has conducted similar fundraisers in many states and cities in the U.S., in Norway, Switzerland, Germany and other countries.
The only “legal action” taken against Ginbot 7 from the very beginning has been by the T-TPLF.
In April 2009, the T-TPLF “joint anti-terrorism task force” claimed to have “arrested 35 alleged plotters” of Ginbot 7 “who were in final preparation to launch wide terrorist attacks and to sabotage the government.” Ethiopia’s “state run television today displayed different arms, bombs, satellite facilities, radio communications, computers, military uniforms and planning documents that were seized from the hands of suspects.”
The T-TPLF has made it fashionable to jail its opponents by labeling them “Ginbot 7 members”.
In September 2011, the TPLF “federal police and national intelligence and security service joint taskforce” claimed the world-renowned Ethiopian stage and screen actor Debebe Eshetu was arrested “working undercamouflage for the self-styled Ginbot 7 group.” Eshetu was tortured to give a false confession.
In September 2011, the winner of several prestigious international press awards journalist Eskinder Nega was arrested on trumped up charges of involvement with Ginbot 7 and sentenced to a long prison term.
In 2012, award-winning journalist Reeyot Alemu was sentenced to 14 years in prison, reduced to five years on appeal, for alleged membership in Ginbot 7.
In 2009, the T-TPLF railroaded to long prison terms dozens of innocent citizens as members of Ginbot 7. The T-TPLF kangaroo “court sentenced five defendants to death, 33 defendants to life terms, and two defendants to 10 years.”
The T-TPLF uses “Ginbot 7” as the terrorist boogeyman to scare U.S. and U.K. officials into dumping the hard earned dollars and pounds of their taxpayers to support its repressive rule.
There are two simple questions that need to be answered at the threshold: 1) If Ginbot 7 is a “terrorist organization”, why is it not included in the U.K. Proscribed Terrorist Organizations List? 2) If Ginbot 7 is a “terrorist organization”, why has the U.K. government rounded up all of the members and charged them with membership in a terrorist organization?
U.K. terrorism prosecutions
I had an opportunity to review terrorism prosecutions of the Counter Terrorism Division of the Crown Prosecution Service (CPS) between 2007-2016.
In 2016, there were 31 terrorism prosecutions listed on the Counter Terrorism Division of the Crown Prosecution Service’s website. Among the “terrorist” offenses charged include the following:
Transportation of chemicals and components for making fireworks, display of materials of an extremist nature on Facebook, providing a terrorist suspect in Syria funding, providing one’s “brother in Syria with a pair of walking shoes,” “arrangement to make available a pair of ballistic glasses”, sending a book entitled, “Join the Caravan” written by Sheikh Abdullah Azzam, making funding arrangements for terrorist purposes, making statement on Facebook about the risks to Sikh girls should they go out with men from the Muslim community, possession of a handwritten letter of an extremist nature, planning to go on to Syria to fight with Islamic State, posting twitter messages in support for IS and their actions in Syria and Iraq, travelling to Syria with the intention of joining a terrorist group and showing of ISIS propaganda videos, demonstrating “a significant interest in Islamic extremism”, possession of chemicals to make lethal poisons, attempt to “purchase chemicals in order that a bomb could be manufactured and targeted on British soldiers”, “systematically deleted a number of instructional videos regarding combat fighting”, possession of “substantial quantities of chemical explosives including primary and secondary detonators and relevant paraphernalia”, “disseminating a terrorist publication”, mailing out “letters praising the actions of Islamic extremists and encouraged the reader to engage in similar activity,” “plotting with an Australian jihadist to commit an attack upon an Anzac Day Parade in Melbourne”, possession of ISIS materials, “publishing written material intending to stir up racial hatred”, “disseminating terrorist publications”, failure to answer questions at an airport, possessing “handwritten notes entitled ‘Mujahid Minimum Training’, using a forged qualification certificate, sharing “extremist ideological beliefs and supporting the use of serious violence in order to create an Islamic state,” and “social media posting material of an extremist nature.
In 2016, there were 24 terrorism prosecutions listed on the Counter Terrorism Division of the Crown Prosecution Service’s” website. Among the “terrorist” offense charged include the following:
Plotting to harm police officers in pursuance of ISIL goals, encouraging terrorism and membership in ISIS, giving assistance to unnamed terrorists in Syria, possession of a magazine called ‘Smashing Borders – Black Flags from Syria’/ information likely to be useful to a person preparing to commit terrorism, sending money to unnamed terrorist elements in Syria, wilfully failing to comply with passport inspection requirement, failure to answer questions at the airport, planning to join ISIL, disseminating pro-ISIS literature and video, tweeting to encourage others to join Daesh, suspected involvement in a plot to behead a member or members of the public, support for Islamic State, travel to Syria to join and fight with ISIS or the Islamic State, possession of attire that could be of use in Syria, possession of 33 thousand Euros at an airport, use of library computers for materials on Nazis and other racist groups, attempt to leave the UK covertly for the purposes of joining Daesh, soliciting funding for terrorist activity, funds and equipment for Jabhat al Nursra, dissemination of a terrorist publication, travelling to Syria to join ISIS.
Nearly all of the “Crown terrorism prosecutions” over the past decade involved radical and extremist individuals and organizations claiming to operate under Islamic religious principles. The major allegations involved preparation for acts of terrorism, training to commit acts of terrorism, fundraising for terrorist purposes, dissemination of terrorist publications and possessing, collection and or dissemination of information of a kind to provide practical assistance to a person committing an act of terrorism with the clear, imminent and actual (not “likely) possibility of use in terrorism.
Kersmo’s prosecution simply does not fit or even approximate the profile of previous terrorism suspects or defendants in any way, shape or form.
Why is Tadesse Biru Kersmo the object of U.K. government persecution and prosecution?
I have no doubts that Tadesse Biru Kersmo is being prosecuted and persecuted by the U.K. government because the T-TPLF has made a special deal with the U.K. government to wipe out Ginbot 7. I believe it is a prosecution well-coordinated with the T-TPLF to send a clear message to all Ethiopians in the U.K. that if they continue their support and membership in Ginbot 7, they too should expect prosecution for terrorism. (I hope Kersmo will be allowed to conduct full discovery into the relationship between the U.K. government and the TPLF with respect to their coordinated activities to neutralize Ginbot7.)
Truth be told, for the longest time I have had doubts about the role of the U.K. government in the abduction of Ginbot 7 secretary general Andargachew Tsgie in 2014. The gnawing question that has always bothered me is whether the U.K. government had a role in his kidnapping and subjection to “extraordinary rendition” in Yemen.
There is irrefutable evidence that the U.K. government has been involved in “extraordinary rendition” (the “practice of apprehension and transfer of detainees to foreign countries for interrogation, outside of the law, where there is a risk that the person might be tortured or subjected to other ill-treatment”).
In 2005, U.K. foreign secretary Jack Straw said, “there simply is no truth” in claims of UK involvement in rendition.
In February 2008, the “UK Government acknowledged that UK airspace and territory (on the small island of Diego Garcia in the Indian Ocean) had been used for extraordinary rendition flights.”
In February 2009, the “UK Government admitted that it had yet again misled Parliament over extraordinary rendition, acknowledging that UK forces had handed over individuals in Iraq to US authorities who then illegally rendered them to an Afghan prison known for its inhuman conditions.” British complicity in torture.
In January 2017, U.K.’s highest court ruled that “former foreign secretary Jack Straw said, “MI6 and the government will have to defend claims that they participated in the 2004 kidnapping of a Libyan dissident and his wife, the supreme court has ruled.”
Did the U.K. government facilitate or play any role in the extraordinary rendition of Andargachew Tsgie?
Given the lackadaisical attitude and complete indifference to the plight of Andy Tsgie, I am not convinced that the U.K. government did not have a role in his “kidnapping” (extraordinary rendition) in Yemen in 2014.
Three top British legal officials have sent a letter to British Foreign Secretary Boris Johnson, urging him to push for Tsege’s release from detention because he is being held “in violation of international law.”
Johnson responded by issuing a statement declaring, “Britain does not interfere in the legal systems of other countries by challenging convictions, any more than we would accept interference in our judicial system.”
Johnson simply does not tell the truth because in October 2015 British Foreign Secretary Philip Hammond twitted, “Delighted to announce Brit Karl Andree will be released from Saudi custody within a week & reunited with his family.” Andree was imprisoned for possessing alcohol in Saudi Arabia who had been facing a punishment of 350 lashes.
It is also a fact that the U.K. security services and police have been “getting access to advanced travel details on more than 40 million passengers a year who travel on domestic flights” since 2006. They have access to the personal online details of all passengers as they book seats and subsequently check in at the airport under the Terrorism Act 2000.
I ask myself a simple question: What is the role of the U.K. government in the kidnapping and abduction of Andargachew Tsgie?
Suffice it to say that I have my own theories and conjectures based on analysis of specific facts.
What next for Tadesse Biru Kersmo?
I am following the persecution by proxy prosecution of Tadesse Biru Kersmo with considerable interest.
I will conclude this commentary by making two observations.
First, I hope my modest commentary will spark public debate in the U.K. about section 58 of the U.K. Terrorism Act. (No! No! I have no delusions of grandeur.) My “problem” is and has always been that I speak the inconvenient and unvarnished truth to power!
Second, as a votary of English literature and law (at least historically) and thinking about section 58, I am reminded of few lines from “Oliver Twist” by the great British author Charles Dickens:
“That is no excuse,” returned Mr. Brownlow. “You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.”
“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass — a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”
That is exactly what I wish for the section 58 of the U.K. Terrorism Act of 2000; that “his” eye be opened by experience.
In his closing argument defending a cabinet minister of a former British colony somewhere in Africa, Rumpole of the Bailey argued to the jury,
“… When London is nothing more than a memory, and the Old Bailey has sunk back in the primeval mud, my country will be remembered for three things: the British breakfast, the Oxford Book of English verse and the presumption of innocence. That is the golden thread which runs through the whole history of our criminal law… No man shall be convicted if there is reasonable doubt as to his guilt.”
I shall argue that there are a thousand doubts based on reason and facts as to the guilt of Tadesse Biru Kersmo on charges of terrorism.
To be continued….