Your Excellencies,

We, signatories of this letter who have also endorsed the enclosed background paper, are Eritrean citizens and friends of Eritrea. We are hereby submitting to the attention of the Peace and Security Council of the African Union the occurrence of unconstitutional grip and maintenance of power in Eritrea – a scenario clearly proscribed by the Lomé Declaration on the Framework for OAU’s Response to Unconstitutional Changes of Government (Lomé Declaration); the Constitutive Act; the African Charter on Democracy, Elections and Governance (Charter on Democracy) and the Protocol relating to the Establishment of the Peace and Security Council (PSC Protocol) of the African Union.

We note that the above three treaties also provide sanctions against unconstitutional usurpers and holders of power. We further note that in accordance with article 4(h) of the Constitutive Act and article 4(j) of the PSC Protocol, the African Union has the right to intervene in a Member State pursuant to a decision of its Assembly in respect of grave circumstances which include crimes against humanity. In the process of consolidating its power, we submit that in the past ten years in particular, the transitional Government of Eritrea has been committing serious and massive human rights violations which in many instance amount to crimes against humanity. A detailed record of some of the incidents will be submitted to the Union shortly.

We note that democracy has evolved into a form of governance which every community is entitled to, as of right. We cite article 21(1) of the Universal Declaration of Human Rights which provides that ‘everyone has the right to take part in the government of his country, directly or through freely chosen representatives’; and article 21(3) which provides that the will of the people shall be the basis of the authority of government and this will shall be expressed in periodic and genuine elections.

We realise article 1(2) of the United Nations Charter; article 1(1) of the International Covenant on Civil and Political Rights; article 1(1) of the International Covenant on Economic, Social and Cultural Rights; article 20(1) of the African Charter on Human and Peoples’ Rights and other sacrosanct treaties to which Eritrea is a party, provide for the right of peoples’ to self-determination – a right which has evolved into a more general notion of internationally validated political consultation - one that applies to postcolonial States by requiring them to adhere to a form of governance based on the wishes of the people. We further note that the African Commission on Human and Peoples’ Rights, as the ultimate interpreter of the African Charter, has observed that this right involves the right of citizens to be able to choose freely those persons or party that will govern them; and government by force is incompatible with the rights of peoples to freely determine their political future and contravenes articles 13(1) and 20(1) of the Charter.

We are cognizant of article 25 of the International Covenant on Civil and Political Rights which guarantees to every citizen the right and the opportunity, without any discrimination or unreasonable restriction to take part in the conduct of public affairs, directly or indirectly through freely chosen representatives and to vote and to be elected at genuine periodic elections guaranteeing the free expression of the will of the electors.

We further note that the above mentioned treaties and others also provide many more rights such as the right to liberty; the right to freedom of thought, conscience and religion; the right to hold opinion; the right to freedom of expression and the right to assembly and association and the duty of every State to establish or allow the establishment of relevant institutions by which democracy is fulfilled, protected, exercised and promoted.

We duly note and appreciate the recent strong commitments undertaken as objectives of the African Union to promote and protect human and peoples' rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law in Africa.

We realise that in pursuit of the above objectives the Union shall function in accordance with principles such as (1) intervention in a Member State pursuant to a decision of the Assembly of the Union in respect of grave circumstances such as commission of crimes against humanity, and (2) condemnation and rejection of unconstitutional changes of governments. We note that the Union has from time to time been passing resolutions and issuing declarations to affirm its commitment to protection of human rights and promotion of democracy in Africa.

We specifically note the Lomé Declaration in which the Organisation of African Unity outlined common values and principles for democratic governance in Africa. We mention the explicit commitment to rule of law, democracy and good governance undertaken by African leaders under the New Partnership for Africa's Development (NEPAD) and African Peer Review Mechanism (APRM) arrangements. We further note that these common values and principles for democratic governance have been elaborately codified in the Charter on Democracy.

These common values and principles include adoption of a democratic constitution by a democratic process. The constitution itself should adhere to the principle of separation of powers and independence of the judiciary; respect for fundamental human rights, freedoms and democratic principles; access to and exercise of state power in accordance with the constitution and the principle of the rule of law; promotion of a system of government that is representative; holding of regular, transparent, free and fair elections; effective participation of citizens in democratic and development processes and in governance of public affairs; strengthening political pluralism and recognition of the role, rights and responsibilities of legally constituted political parties, including opposition political parties, which should be given a status under national law; promotion of equality in all forms in public and private domains; transparency and fairness in the management of public affairs; condemnation and rejection of acts of corruption, related offenses and impunity; and condemnation and total rejection of unconstitutional changes of government.

We note the fact that the Lomé Declaration and the Charter on Democracy have defined ‘unconstitutional changes of government’ to included scenarios of refusal by an incumbent government to relinquish power to a winning party after free, fair and regular elections. We firmly believe that refusal to conduct elections is even worst sin which must be visited with sanctions as provided by the Constitutive Act and the PSC Protocol.

In view of the above stated sacrosanct norms which are now foundational laws of Africa, we, regrettably, bring to the attention of the Union the appalling deviation from, and flagrant disregard by the transitional ‘Government of Eritrea’ which now has bluntly launched coup over the rule of law. We submit to the Union that the repressive governance of the country in the past 10 years in particular has muzzled every freedom and right, and massive and serious violation of fundamental rights and freedoms have been committed. In many instances these violations amount to crimes against humanity.

We submit that legally, the transitional ‘Government of Eritrea’ is a self-established transitional government which, as a winning front that led and brought Eritrea’s struggle for independence to an end, assumed governance of Eritrea since May 1991. According to the interim constitution it enacted on 19 May 1993, the mandate of the transitional government was to govern Eritrea on transitional basis until a constitution would be enacted and accordingly constitutional government would be established. Clearly, in the preamble of the interim constitution, the transitional government has declared that ‘Eritrea must have a constitution which will be the source of all laws and that will guarantee fundamental rights of citizens; and a constitutional government elected by the people will be formed after national elections are conducted in accordance with the constitution’.

We submit that the timeframe set by the interim constitution for the preparation of a constitution and establishment of constitutional government was from May 1993 to May 1997. After almost four years long constitution-making process, the Constitution in the making was finalised and adopted on 23 May 1997 in accordance with the legal framework set for its making. Truly, there are some Eritreans who were not happy with the transitional government’s monopoly of the transitional period and the constitution-making process. Nevertheless, we submit that considerable majority of Eritreans are satisfied by the process and the content of the Constitution. Significantly, the constitution-making process has participated 500,000 Eritreans in and out Eritrea out of around 4 million Eritrea’s population. Importantly, the Constitution is crafted with full backing of the transitional Government of Eritrea and its parliament has endorsed the Constitution three times at different stages of the draft.

Yet, for more than 11 years now, the transitional ‘Government of Eritrea’ has completely ignored the Constitution as if it has not been born. We submit that there is a material beach of a covenant – a material beach of the principle of pacta sunt servanda – which also means material breach of the above mentioned treaties of the African Union.

For many yeas since 1998, the transitional government’s reply for its failure to implement the Constitution has been the prevalence of ‘emergency situation’ that was alleged to have existed due to the boarder conflict with Ethiopia that erupted in May 1998 and continued to 2000 - a conflict which, according to the ruling of the Eritrea and Ethiopia Claims Commission, the transitional government itself escalated to a full scale war in breach of relevant parts of the United Nations Charter. The government also resorted to arresting and jailing any one who demanded implementation of the Constitution. Except between May 1998 to June 2000, we submit that there has been nothing that hindered implementation of the Constitution. Allowing the Eritrean people to choose those whom they want to govern them in accordance with the Constitution they themselves adopted can in no way be harmful to the wellbeing of Eritrea even during emergency situation. We submit that the government’s argument was a pure case of evading internal demands – democratisation process of Eritrea.

Recently, on the 22nd of May 2008, the ‘President’ of Eritrea has made two very sad but also important declarations. (1) In clear and strong terms, the ‘President’ announced that the boarder conflict with Ethiopia is over and there is no any source of tension between the two countries. (2) Regardless of the elimination of the cause which the transitional Government of Eritrea alleged to have hampered implementation of the Constitution, the ‘President’ also, in unequivocal terms, declared that there will not be elections in Eritrea in the coming three or four decades. He also added that there might not be any election for ever; and he has no other option except to rule for ever.

We submit that the transitional government’s blatant defiance to allow the implementation of the Constitution and continue to rule with out any legal and popular legitimacy is unconstitutional grip and maintenance of power proscribed by Constitutive Act of the African Union, the Lomé Declaration and the Charter on Democracy. It is contempt to the laws and democratic aspirations of Africa. It is also clear contempt to the will of the Eritrean people as codified in the Constitution.

In this regard, we urge the Peace and Security Council to note pertinent parts of the Constitution. Paragraph eight of the Preamble reads that the Constitution will be ‘a covenant between the Eritrean people and the government, which the people will be forming by their free-will.’ In clear terms, article 2(1) provides that ‘the Constitution is the legal expression of the sovereignty of the Eritrean people’. Further, Article 1(3) of the Constitution clearly provides that ‘in the state of Eritrea, sovereign power is vested in the people, and shall be exercised pursuant to the provisions of this constitution’. Most importantly, article 2(2) reads that ‘this constitution enunciates the principles on which the state is based and by which it shall be guided and determines the organisation and operation of government. It is the source of government legitimacy …’ Article 2(3) also states that the Constitution ‘is the supreme law of the country and the source of all laws of the State, and all laws, orders and acts contrary to its letter and spirit shall be null and void’.

In view of the above mentioned sad situation in Eritrea which is explained in detail in the enclosed background paper, and in accordance with article 8(7) of the PSC Protocol, we call upon the Chairperson of the AU Commission and the Chairperson of the AU Peace and Security Council to table the situation for consideration by the Peace and Security Council in a forthcoming meeting.

In accordance with the Constitutive Act, the Charter on Democracy and the PSC Protocol, we also urge the Peace and Security Council to:

1. Immediately and publicly call the transitional ‘Government of Eritrea’ to respect, protect, fulfil and promote the fundamental rights and freedoms of Eritreans as provided in the Constitution and the international human rights instruments to which Eritrea is a party;

2. Immediately and publicly call the transitional ‘Government of Eritrea’ to allow establishment of constitutional order within a period of not more than six months;

3. Oblige the transitional ‘Government of Eritrea’ in clear terms to invite the exiled Eritrean opposition parties, civic-society organisations and individual activists to a forum in which framework for transition to constitutional governance should be developed; and,

4. Offer its assistance by, for example, providing good offices to facilitate the process of dialogue between the two sides.

We do not want to sound pessimistic on the prospect of success. At the same time, we cannot disregard the insincere and stubborn reply the transitional ‘Government of Eritrea’ has been turning to similar calls both from foreign and domestic sources including the exiled Eritrean opposition parties, noted Eritrean scholars and its parliamentarians many of whom have remained detained incommunicado for seven years merely for voicing similar demands. Therefore, should the transitional government stubbornly refuses to honour the above outlined recommendations within six months, we urge the Peace and Security Council to put into effect relevant parts of the Constitutive Act, the Charter on Democracy and the PSC Protocol. Without prejudice to Eritrean citizens, we in particular urge the Peace and Security Council to impose a range of limited and targeted sanctions which must include:

1. Immediate suspension of the transitional ‘Government of Eritrea’ from participating in any of the African Union’s organs; and,

2. Withholding of recognition of the transitional Government of Eritrea which must be enforced by visa denials for its officials, restrictions of government-to-government contacts and trade.

We also urge the AU to provide its support to the exiled Eritrean opposition parties, civic-society organisations and individual activists as the main actors for democratic change in Eritrea.

Sincerely,

The signatories

The Initiators

Enclosures

- List of signatories

- Background paper: ‘ Latent coup in Eritrea: A test case for the African Union’s Commitment to Democracy’