‘International law condemns genocide, torture, hostage taking and crimes against humanity. These are not functions of a head of state’- Justice Lord Nicholls in the General Augusto Pinochet case
Mengistu Haile Mariam was the chairman of the Derg which deposed Emperor Haile Selasie 1 in the 1974 coup d’etat. He ascended to power through the bloody power consolidation between 1977-1978 known as the Ethiopian Red Terror (Qey Shibir). The death count according to Human Rights Watch is close to 100 000 people. Amnesty International estimates the death count at 500 000 people. Mengistu became the head of state of Ethiopia from 17 November to 28 November 1987 before becoming the first president of the Ethiopia. He served as president from November 1987 to May 1991. His time in the presidential office is marred by brutality, autocracy and economic mismanagement. His government was authoritarian and repressive. Students, intellectuals and politicians opposed to his government policies and atrocities were often found hanging at lampposts. He instigated the mass murder of peasant farmers and the expropriation of their property without compensation leading to the famine of 1983.
Mengistu’s fall is owed to internal and external factors. The consolidation of power by the Derg caused the civil war between the Derg, The Ethiopian People’s Revolutionary Party Front (EPRPF) and the Ethiopian Socialist Movement from 1974 tom 1991. During the protracted famine of 1983 to 1985, Mengistu’s government manipulated drought relief and intentionally starved millions of Ethiopians. This human rights violation brought serious international attention to Ethiopia. On the external side, Ethiopia was engaged in the Eritrean war and the Ogaden War with the Somali. Mengistu increasingly became unpopular leading to the dissolution of the National Assembly by the People’s Democratic Party of Ethiopia and the call for the transnational government. He was eventually forced out of power by the Ethiopian People’s Revolutionary Democratic Front forces and fled for Zimbabwe on the 21st of May 1991.
Mengistu was received in Zimbabwe as an official guest of former President Robert Mugabe. The 84-year-old former dictator of Ethiopia is now a citizen of Zimbabwe and is by all indication safe from extradition and will never pay for the sins he committed in Ethiopia. It has been widely speculated that Mengistu served as a security advisor for Robert Mugabe and that he was instrumental in the Operation Murambatsvina, the cleanup campaign that left many Zimbabweans homeless and unemployed. The modus operandi employed during Operation Murambatsvina is similar to the mass displacements which occurred in Ethiopia during Mengistu’s time in office. The Zimbabwean government has denied these allegations.
In November 1995, there was an assassination attempt on Mengistu by two Eritrean nationals while he was walking with his wife, Wubandi Bishaw. Solomon Haile Ghebre Michael was sentenced to ten years in prison while his partner, Abraham Goletom Joseph was sentenced to five years in prison. These sentences were later appealed and reduced to two years in prison. In 1999, Mengistu traveled to South Africa to seek medical attention. The Ethiopian government requested for his extradition. The South African government rejected this request on the grounds that the two countries did not have an extradition treaty. History repeated itself in 2017 when South Africa failed to arrest Al Bashir despite an active warrant for his arrest.
Since the International Criminal Court was established by the Rome Statute which was only adopted in 1998 and came into force in 2002, Mengistu and the senior members of the Derg were tried by the Ethiopian High Court. The trial ran from 1994 to 2006. He was charged tried and convicted in absentia of genocide (for killing between 1,2 million and 2 million people), war crimes and crimes against humanity under Article 281 of the 1957 Ethiopian Penal Code. He was also found guilty of the murder of Emperor Haile Selasie, the 1976 May day massacres, the Ethiopian Red Terror, forced movements and resettlement of people, manipulation of famine relief, malicious arrests, illegal confiscation of property and the attack 1987 attack on the Hawzen civilians. Mengistu was sentenced to life imprisonment in January 2006. That sentence was overturned by the Supreme Court of Ethiopia in 2008 where he was sentenced to death along with 18 other senior officials of the Derg. These death sentences were commuted in 2011. The Human Rights Watch believes that Mengistu should still be tried by the International Criminal Court at the Hague for crimes against humanity. In his memoirs, he has denied killing his people.
When Mengistu was convicted and found guilty in absentia of genocide and crimes against humanity in 2006, the Ethiopian government made an extradition request to the Zimbabwean government. The Zimbabwean government rejected that request and stated that the butcher of Addis would continue to enjoy asylum in Zimbabwe. The well-spoken Mugabe argued that in the spirit of pan Africanism and the fight against colonial capitalism, Mengistu would not be extradited back to Ethiopia because Mengistu had assisted the Zimbabwean guerrilla forces during the Second Chimurenga (their liberation struggle against the Rhodesian government) by providing training and military equipment. Mugabe and Mengistu were two peas in a pod and it was no surprise that Mugabe was willing to use taxpayers money to finance the luxurious lifestyle and security of a dictator who had killed close to two million of his own people.
Few African dictators have paid for the atrocities they committed while in power. Charles Taylor of Liberia was in exile in Nigeria before he was extradited and became the first former head of state to be tried and sentenced in the International Criminal Court for war crimes. Hissene Habre of Chad was in exile in Senegal until paramilitary police arrested him. He was the first head of state to be tried and convicted by the African Tribunal for crimes against humanity. In most cases like the case of Mengistu, they retire peacefully with no threat of extradition. Yahya Jammeh of The Gambia is in exile in Equatorial Guinea. This exile was negotiated by ECOWAS and he chose Equatorial Guinea because then it was not part of the International Criminal Court (ICC) and he would be guaranteed long term protection. Idi Amin of Uganda died in exile in Saudi Arabia. Mobutu Sese Seku of Zaire also died in exile in Morocco. Blaise Compaore of Burkina Faso is in exile in Ivory Coast.
Under international customary law, states have universal jurisdiction to extradite criminals and the jurisctionaut dedere aut judicare (either you extradite or prosecute) principle applies. However, exile is still an attractive option for African dictators. States can give asylum to anyone as long as such asylum does not breach international obligations. The granting of asylum to dictators means that host countries turn a blind eye to international law thus making extradition difficult. The cycle of impunity must be stopped, and dictators must be extradited, tried and convicted of their crimes as a deterrence measure.
For a country which demanded the extradition of Walter Palmer after the illegal hunting and killing of Cecil the Lion, it is hypocrisy at best that Zimbabwe has refused to extradite Mengistu. Zimbabwe’s failure to extradite Mengistu violates international law and its own Extradition Act 6 of 1982 (Chapter 9:08). The aim of that Act is to provide for the extradition of persons between Zimbabwe and other countries when any person is accused or convicted of an offense or crime within Zimbabwe or that foreign country. Extradition applies to all persons (save for cases of diplomatic immunity). The Act provides that Zimbabwe may enter into an extradition agreement with any country based on reciprocity and obligations that Zimbabwe has in terms of any international convention, treaty or agreement. The extradition agreement may relate to any offenses committed on, before or after the date of commencement of the extradition agreement. Mengistu’s Zimbabwean citizenship does not absolve him of extradition in terms of the Extradition Act. Zimbabwean citizens can be extradited if a case is established that the person concerned committed the offense to which the extradition relates or has been convicted of the offense and is required to be sentenced or to serve their sentence in the foreign county concerned.
Mengistu has overstayed his albeit ‘illegal’ welcome in Zimbabwe where he is spending taxpayers money when he is a wanted and convicted criminal. In 2017 when Robert Mugabe was diplomatically forced into a retirement through the ‘coup d’etat which was not a coup d’etat’, the Ethiopian people followed the developments in Zimbabwe with faint hope that the Emmerson Munangagwa administration would extradite Mengistu. This remains to be seen as no new extradition requests have been submitted since 2006.
Sources: Rome Statute of the international Criminal Court, Penal Code of Ethiopia 1957, Extradition Act 67 of 1962, Extradition Act 6 of 1982 [Chapter 9:08]
MUSINGS OF CHIEF JUSTICE CHIVENGE 
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