Eritrean boys in an Ethiopian refugee camp

Amare Tekle, former Eritrean Referendum Commissioner

In April 1992, the Provisional Government of Eritrea enacted the Referendum Proclamation and the Eritrean Nationality Proclamation, created a Referendum Commission and fixed the date of the referendum for April 1993.  The two proclamations provided for enabling legal and administrative frameworks that facilitated the registration of Eritreans as well as the conduct and supervision of the referendum.

The first question asked during the drafting of the proclamations was: “Who Votes?”  The answer: “an Eritrean”, only led to the next obvious question:  “Who is an Eritrean?”  The answer was found in an Italian colonial decree on Eritrean “subjects” which defined as Eritrean all persons, with the exception of Italian “citizens”, residing in the country before the end of 1933.  This then was the basis for the Eritrean Nationality Law.

Eritrean law defines an Eritrean as a person born to a father or mother of “Eritrean origin” while a person of “Eritrean origin” is defined as “any person who was resident in Eritrea in 1933.  This definition is extraordinarily inclusive because it does not discriminate against anybody except obviously the “Italian citizen”.  Suffice it to note that it had included many who, in most cases, would have otherwise been stateless but became as “Eritrean by birth” as the “indigenous people”.  To these were added persons who had been residents of Eritrea between 1934 and 1951, including Italians, (and their descendants who actually become Eritreans by birth) and who are automatically granted nationality by “naturalization” by simply submitting an application with proper identification documents to the Department of Internal Affairs.  Only persons who had actively collaborated with the enemy during the liberation struggle were denied this right.

A second group consists of persons who had “entered Eritrea legally and have been domiciled in Eritrea for a period of ten (10) years before 1974”.  These are granted Eritrean nationality on the basis of effective link, while similar persons whose effective link is questionable, such as seasonal workers and employers, are granted nationality only if they had resided in the country for at least twenty (20) years.  It is clear then that this law does not in any way discriminate on the basis of race, ethnicity, gender or religion.   The provisions of the laws relative to persons born to unknown parents, adoption of children and marriages have also been liberal and inclusive since the principle of the right of option is maintained such as, for example, the right of an adopted person to apply for naturalization and the right of a married person to renounce Eritrean nationality and “to acquire his (her) original nationality upon the death of the spouse, or by divorce, or when the marriage is declared null and void by a court of law.

No Eritrean is deprived of his nationality unless it has been determined by a committee composed of the Secretaries of Justice, Internal Affairs and Public Administration that he/she, being Eritrean by birth, has voluntarily acquired foreign nationality after the publication of this Proclamation or officially renounced his/her Eritrean Nationality; signed an “oath of allegiance of another country after the publication of this proclamation; and serves, or continues to serve, another country in violation of an explicit provision of Eritrean Law; has been convicted for treason by a court of law; acquired Eritrean nationality by fraud, deceit or concealment of decisive facts; has illegally contacted external powers (and) committed acts which aided and abetted an enemy; has committed treason outside Eritrea; and has been indicted for a crime and sentenced to more than five years.

Two issues become significant.  First, the clause “after the publication of this Proclamation” has been inserted to qualify the provisions with a view to ensuring the protection of the rights, and allaying the fears, of diaspora Eritreans, a significant percentage of whom had not only established themselves in other lands but also acquired the citizenship of other countries during the long years of the Eritrean liberation struggle.  Similarly, the clause “in violation of an explicit provision of Eritrean Law” has been inserted to protect Eritreans who have been – and continue to be – employed by governments, at all levels, in their respective abodes.  Herein lies the essentiality and salient significance of dual nationality in the context of Eritrean history.

Deprivation of nationality is, at the initial stage, decided by an administrative procedure rather than by a court of law.  This is objectionable.  Such a grave matter must be decided in the courts of law even in the first instance.  This is, however, tempered by Article 11 which provides for an appeal to the High Court within a month after receipt of a decision.

It is clear from the above that the Proclamation was designed to provide for the widest possible inclusiveness and to preclude any possibility of statelessness.  Obviously, it was not absolutely perfect and a few problems – some hypothetical and some real-were evident early enough.  The law, for example, does not provide for the protection of children born to stateless persons even as it provides protection for abandoned children.  More serious was the indirect and unanticipated but, nevertheless, very real problem of discrimination resulting from administrative decisions made against Jehovah’s Witnesses and the Pentecostals.  The action of the Government exposed some groups to de facto statelessness.

The Referendum Proclamation empowers the Referendum Commission to administer, conduct and supervise the entire referendum process.  The challenge was to ensure the participation of every Eritrean.

External registration and voting by Eritreans was seen not only as the exercise of an individual Eritrean’s right to self determination but also as a significant action needed to ensure inclusiveness and a major factor in nation-building as well as regional peace-building. The major problems faced in this respect were, inter-alia the:

• Identification and location of “Eritrean” nationals, not only in the country but also abroad;
• Identification and establishment of registration regions, sub-regions and centers  and
• Selection of “local” (i.e. Eritrean elders)  observers  abroad.

This was a daunting, but not an insurmountable, task because:

• Internally, Eritrean society was rooted in villages (Adis) in the case of  sedentary populations and strategic hamlets in the case of pastoralists, with each village and hamlet having its own elders;
• Externally, almost all Eritrean groups in the diaspora, mainly in the US and Canada, Europe, the Middle East (including Egypt), Australia and India had created well-organized communities and cultural centers with their own elected officials;
• Others, including refugees mainly in the Sudan, Kenya and Djibouti and displaced persons, were easily identifiable through the UNHCR and national governments;
• The Eritrean population in Ethiopia had, after liberation, also quickly created community centers in Addis Ababa and in the major towns of Ethiopia.

These constituted almost 98% of the diaspora populations and were organized in registration regions, sub-regions and centers.  The other 2% were advised to affiliate themselves with the nearest voting region.

Inclusiveness was the critical but not the sole factor in the determination of the registration procedure.  Protection of the integrity of the referendum process was also very important. Thus, registration and personal voting at predetermined and officially recognized registration centers and polling stations in the presence of “local” and “international” observers was regarded as critically important. The turn-out was almost total.

This successful outcome of a state succession process, hailed by the international community as a “good practices” case to be emulated in the future seemed to prove that state succession problems, including statelessness, can be avoided if properly addressed.  This was to be a hasty observation which did not take into account certain salient problems which had to be resolved before, or immediately following, the referendum.  The first significant lesson to be learned was that procrastination and the postponement of decisions are the major early signs of the failure of state succession problem resolution.  These errors were committed by the various Ethiopian-Eritrean committees created before and after the Referendum to discuss outstanding issues of mutual concern.

These committees repeatedly postponed decisions in vital matters like border demarcation, inter-state trade and investment and, of course, citizenship. Three years later the two sides agreed that, in principle, the right of option shall be granted to concerned individuals.  Yet, no mechanism or procedure was established to either inform the concerned populations of both countries or to regulate the implementation of decisions. Worse, they actually further agreed to link the issue of citizenship with issues of trade and investment and declared that an agreement on citizenship “should await the decision on the granting of the freedom of trade and to invest in either country for both nationals of Ethiopia and Eritrea.”  This too was to have a major negative consequence on the issue of citizenship when disagreements on the issues of trade and the border eventually led to war. Eritrean authorities were to claim that persons of Eritrean origin and possessing Eritrean ID cards at the time of the referendum could not possibly be considered as Eritrean citizens since Eritrea itself had not existed as an independent state.  On its part, the Ethiopian government insisted that the registration to vote was tantamount to acquisition of Eritrean citizenship.  Since Ethiopian law explicitly declares that any Ethiopian who acquires another nationality automatically forfeits Ethiopian nationality, tens of thousands on both sides were left in legal limbo, and eventually became victims of expulsion, resulting in statelessness.

Recommendations

It is feasible to make a few tentative recommendations on the basis of the brief survey.  These include, inter-alia, the:

• Signing  by concerned parties of agreements which would irrevocably commit them to the avoidance of statelessness;

• Signing and ratification, as a matter of priority, of international and regional conventions on statelessness and other relevant international and regional instruments;
• Creation of an inter-party and inter-elite cooperation mechanism to facilitate pre-and post election interactions with the view to obviating misunderstandings and suspicions, and creating a certain level of fiduciary obligations and responsibilities;

• Protection of human security by recognizing that the interest of the individual is as important as the interest of the state in matters related to the avoidance of statelessness;
• Signing of a Declaration of Principles and a Program of Action (DPPA) to operationalize the recommendations.  These shall, inter-alia, jointly guarantee that:

• Citizenship shall not be revoked by a predecessor state before the acquisition of the citizenship of the successor state;
• The right of option, (meaning that the individual has the sole responsibility to determine his status without discrimination based on race, ethnicity, religion, gender or political opinion) is strictly respected;
• Citizenship shall be granted to already existing stateless persons in both the predecessor and successor state;
• The rights of residence, movement, employment and the ownership of private property as well as to education, health and religion are respected;
• All parties are responsible for, and shall participate in, the creation of an enabling environment free of political violence and insecurity;
• All parties are responsible for the scrupulous compliance with, and implementation of, all relevant international agreements;
• The adoption of guidelines which will facilitate internalization and application of international standards ;
• The formulation of a clear operational plan;
• The development of a common awareness program and a sensitization campaign strategy which elaborate on the meaning, purpose and process of the referendum, the rights and responsibilities of all persons and the historic significance of the stakes involved as well as the contribution of all stake-holders and actors at all levels;
• The creation of an enabling environment for the promotion, safeguarding and effective functioning of human rights, media and electoral (i.e. observers, training and other supporting) groups;
• The empowerment and active participation of marginalized groups (women, ethnic and religious etc.)
• The popularization of democratic values, the rule of law, tolerance and diversity as well as the culture of peace;

Finally it is essential to note that any further broadening and deepening of international legal instruments, the commitment, good sense and courage of national and community leaders, the goodwill and cooperation of the international community as well as the dogged, hard work of international agencies, particularly the UNHCR and the Human Rights Council, and the commendable contributions of international NGOs must be complemented by equally and urgently addressing problems associated with human security( i.e. the security of individuals- all individuals- residing in any state, notwithstanding the nature of their status in, or effective link with, the state.