Rule of Law

The rule of law is the legal principle that law only should rule a nation, as opposed to being ruled by individuals such as government officials. The rule of law implies that every citizen “(1) should be ruled by the law and obey it and (2) that the law should be such that people will be able to be guided by it.”

Have a factual and objective glance at the situation in Eritrea and compare it to elementary principles in modern societies:

Basic principles of rule of law Current situation in Eritrea
Supremacy of Law
It is the principle that all persons are subject to law. Constitution is the supreme law of any country that protects rights of individuals and groups (such as right to personal liberty) against other individuals, groups or states agents.
Absence of supremacy of Law
Eritrea does not to implement its Constitution ratified on 23 May 1997. Several countries across the world, including Switzerland, have called on the Government of Eritrea to implement the 1997 Constitution. Despite repeated international and local calls, the Constitution remains suspended.
Basic principles of rule of law Current situation in Eritrea
Separation of the powers, among legislature, executive and judiciary
Separation of powers, refers to the division of government responsibilities into three distinct branches, legislature, executive and judiciary. The intent is to prevent the concentration of power and provide for checks and balances.
Concentration of the power in the executive branch
The Proclamation 1991 proposes the separation of power in Eritrea. However, in practice, power remains concentrated at the hands of the only party, the PFDJ, which is also the sole governing party in Eritrea. President Isaias Afewerki has enacted several measures through unilateral proclamations, since Eritrea’s independence in 1991, which had the effects of concentrating power at the hands of the executive branch, essentially at the hands of the president. The national assembly, the parliament of the country, only gathers at the calling of the president, and it has not convened since 2002. In 2001, many of its members were arrested and imprisoned after being accused by the government of treason and national security related offences, without due legal process. The people arrested had simply asked for a democratic reform.
Eritrea has no independent judiciary branch. Senior military officers, without the necessary legal qualifications are appointed as judges at Eritrea’s Special Court, which operate at the command of the president, surpassing the judicial branch of the government, whose function is merely as a bureaucratic façade. According to the first report of the UN mandated Commission of Inquiry on Human Rights in Eritrea “their decisions are reportedly not taken on the basis of the domestic laws in force in Eritrea or established jurisprudence but on the basis of the judges’ opinions.”
Source : A/HRC/29/CRP.1 page 88 para. 329
Basic principles of rule of law Current situation in Eritrea
Elections must be recurring, transparent, open and competitive. The leaders must be based on the will of citizens. No open and transparent election since 1991
The current president, Mr. Isaias Afewerki, was the leader of the former movement of liberation during the thirty-year armed struggle against Ethiopia. After Eritrea gained its independence from Ethiopia in 1991, he became the president of the party, and the interim president of the Eritrean government. Since then, national elections have not been held, and the president continues to maintain his tight grip on power. Other political parties have never been allowed to operate in the country since 1991. With the only political party being the one in power: the PFDJ (People’s Front for Democracy and Justice).
Basic principles of rule of law Current situation in Eritrea
Due process of law and fairness
States have the obligation to enact laws that guarantee the fundamental rights and liberty of its citizens. States must also respect and uphold the laws enacted. Due process of law also gives the judiciary to assess the fundamental fairness, justice, and liberty of any legislation. It protects the individual against the arbitrary action of both executive and legislature
Arbitrary decisions and no access to justice
Courts in Eritrea, including community courts, are limited to handling minor civil disputes. According to the UN Commission of inquiry report, “the function of ordinary courts have no tangible role in protecting citizens from gross human rights violations.”* The UN Commission of inquiry also reports that, “the judiciary is not in a position to protect the fundamental rights of Eritrean citizens”.* The Special Court oversees major cases of political and human rights significance, and wield a disproportionate and excessive authority, with no rights of appeal. The Special Court was allegedly established for cases such as theft, corruption, illegal foreign currency exchange but it has also integrated jurisdiction over political dissidents. In its first report, the UN Commission of inquiry observed that in Eritrea’s Special Court: “Judges are senior military officers without legal training, directly appointed by the President and directly accountable to him. One judge acts as Prosecutor. There is no right to have a legal representative or to present one’s defense. Trials are not public and there is no public record of the proceedings. Decisions are not published. The Special Court (may) re-open cases that have already been decided by other courts. The decisions, which are final and binding, are reportedly not taken on the basis of the domestic laws in force in Eritrea or established jurisprudence but on the basis of the judges’ opinions.” Finally, this report highlights the links of the Special Court which powers derive from the Ministry of Defence rather than from the Ministry of Justice.*

Sources: 1. A/HRC/32/CRP.1 page 61 para. 244 2. A/HRC/29/CRP.1 page 191 para. 722 3. A/HRC/29/CRP.1page 88 para. 329 4. A/HRC/29/CRP.1page 88 para. 329
Basic principles of rule of law Current situation in Eritrea
Freedom of speech should be strongly protected by governments. It is the right to express one's thought, belief and ideas without fear and censorship. Denial of the right to speak without fear
Civilians are not allowed to express their opinions publicly and / or privately. Nor are they allowed to criticize the government. According to the Human Rights Watch 2017 World report on Eritrea, "Less prominent citizens are also subject to arbitrary imprisonment. Very few are given a reason for their arrest. Few, if any, receive trials; some disappear. The length of imprisonment is often indefinite and conditions are harsh." Private media have been banned since 2001. Only state-owned media exist in the country. Civilians are not allowed to publicly and/or privately express their opinions or criticize the government. Journalists are regularly arrested and imprisoned without access to due legal process under subhuman conditions in detention centres across the country. In 2001, the Eritrean-Swedish journalist Dawit Isaak was arrested like many other journalists. Their families do not know about their whereabouts and have not visited them until this date.

In June 2016, the Commission of inquiry on Eritrea issuing the following recommendations to the Eritrean government:

a. Ensure the separation of powers among the legislature, the executive and the judiciary, and establish the rule of law;

b. Adhere to the principles of the supremacy of law, equality before the law, accountability to the law and legal certainty, and procedural and legal transparency;

c. Establish without delay an independent, impartial and transparent judiciary, and ensure access to justice for all;

d. Ensure that court processes, including judgements, are transparent, open and accessible to the public, and transmitted to accused persons immediately;

e. Bring into force the Penal Code, the Criminal Procedure Code, the Civil Code and the Civil Procedure Code of May 2015, and amend them to reflect all international human rights standards;

f. Allow for the creation of political parties, and hold free, fair and transparent democratic elections at all levels;

g. Establish an independent national human rights institution with a protection mandate, including to investigate human rights violations;

h. Permit human rights defenders and independent civil society organizations, to operate without interference.