Official Development Assistance Accountability Act, s. 4(1): The Case of Bashir Makhtal

A cutting-edge argument is before the Federal Court courtesy of lawyer Lorne Waldman. The facts stem from the high-profile case of Canadian citizen Bashir Makhtal. Makhtal has been held in an Ethiopian jail since he was sent there from Kenya in 2006.

Makhtal faces a life-sentence in a process human rights organizations assert his rights were grossly violated. Attempts to secure his release have failed, so Waldman argues Canada’s $146M annual aid to Ethiopia should be cut off under the new Official Development Assistance Accountability Act (“ODA”). This case is the latest attempt by Makhtal’s family and lawyer to secure the release of the Canadian citizen.

The Case of Bashir Makhtal

Born in Ethiopia and having lived in Somalia, Makhtal has resided in Canada since 1991, becoming a citizen in 1994. Makhtal’s business trip to Somalia in late 2006 is when his fate changed.

Makhtal fled Somalia for Kenya as the Somali terrorist organization, al-Shabaab, rose to power and intense fighting ensued. However, once Makhtal arrived in Kenya he was detained and illegally transferred to Ethiopia.

Makhtal was held without due process or access to any outside source, including family and Canadian consular affairs. For a period no one knew what was happening to Makhtal. News of Makhtal being in an Ethiopian prison came with reports of him was being tortured and potentially facing the death penalty.

Foreign Affairs Minister Peter MacKay brought up the case with Ethiopian authorities. Ethiopian authorities charged Makhtal with supporting the armed group, Ogaden National Liberation Front (ONLF). Makhtal was sentenced to life imprisonment in 2009.

Amnesty International (AI) says the only reason Makhtal was charged was because his grandfather had ties to ONLF. Furthermore, AI says Makhtal’s family members, as well as those from his Ogadeni ethnic group, have been “targeted as part of a long standing pattern of human rights violations” by the Ethiopian government. This claim is reinforced by the fact that Makhtal’s brother became ill in Ethiopian detention, dying shortly after his release, and his sister, too, fled Ethiopia.

Canadian Consular Affairs officials were not granted access to Makhtal until 2008. Canadian officials and Cabinet Ministers, including ex-Foreign Affairs Minister Lawrence Cannon and current Foreign Affairs Minister John Baird, publicly voiced concerns over Makhtal’s human rights. Efforts have been made for stronger Canadian intervention into the case, including a personal visit by Minister Baird, albeit without success.

In addition to AI, the Canadian Civil Liberties Association and Canadian Somali Congress have rallied behind Makhtal’s case, many protests have taken place, and a legal fund has also been set up for Makhtal.

Waldman’s Unique Application At The Federal Court

Because efforts to secure his release failed, Makhtal’s lawyer, Lorne Waldman, now brings his creative advocacy to the Federal Court.

Waldman’s application to the Federal Court argues Canadian aid to Ethiopia should be cut off because it “bankrolls oppression.” This unique argument focuses on the federal ODA, which came into force on 28 June 2008. Waldman focuses on ODA’s section 4(1):

4.(1) Official development assistance may be provided only if the competent minister is of the opinion that it

(a) contributes to poverty reduction;

(b) takes into account the perspectives of the poor; and

(c) is consistent with international human rights standards.

According to The Toronto Star, Waldman’s application says Canadian aid is being used as a “a tool of repression”, in contravention of the ODA.

Waldman’s application cites various sources, such as United States Department of State country reports and Human Rights Watch reports. In fact, Human Rights Watch identifies a connection between Ethiopia’s deteriorating human rights record and the increasing development aid it receives, approximately $3.3B US in 2008, mostly from “western” nations.

ODA s. 4(1): A Matter of Interpretation

This case brings the highly controversial question of Canadian foreign policy back into Canadian courts. The broader issue has been dealt with in several cases, including Operation Dismantle v The Queen, [1985] 1 S.C.R. 441, and the controversial Canada (Prime Minister) v Khadr, [2010] 1 S.C.R. 44. It is noteworthy that in Khadr, the SCC highlights the Canadian government’s human rights obligations, though stopping short of ordering a remedy.

This is not the first time Waldman has went after a foreign state in Canadian courts. In Arar v Syrian Arab Republic, 2005 CanLII 4945, Waldman unsuccessfully went after Syria and Jordan in the Ontario Superior Court on behalf of Maher Arar.

But, in this case, Waldman has a key source never previously available: the ODA. While there is room for Waldman’s argument, the outcome will likely depend upon the court’s interpretation of s. 4(1).

If the section is read broadly, Waldman will have an easier time moving his claim forward given the record and empirical data supporting his allegation that the Ethiopian government is violating human rights (especially in Makhtal’s case).

Conversely, s. 4(1) of the ODA may be read narrowly as referring only to specific projects which Canada funds directly. If so, Waldman will have the difficult task of making direct causal connections between the $146.83M in Canadian aid that Ethiopia receives and state human rights violations. But perhaps, and hopefully, Waldman will succeed.

How Did It Come To This?

At the higher level one must ask, “Should this case actually be litigated?” Must Waldman make such a creative argument to get the Canadian government to act more forcefully in securing a Canadian citizen’s release, a citizen whose human rights have been violated for several years by an ally nation?

Makhtal is a Canadian citizen, has been in detention for over five years (due to an illegal rendition), and throughout this process, the Ethiopian government has shown disdain towards the Canadian government with regards to one of its citizens. Interestingly, unlike Maher Arar and Abousfian Abdelrazik (Abdelrazik v Canada (Minister of Foreign Affairs), [2010] 1 F.C.R. 267), Conservative Cabinet Ministers have publicly supported Makhtal, including Minister Baird who believes Makhtal is innocent.

Yet, every year Canada continues to provide Ethiopia with over $140M in aid money. Granted Ethiopia, as one of the poorest nations in the world, needs aid for its population and we are in a good position to provide it. However, when these funds are used for human rights abuses and without accountability, how can we possibly justify our massive aid figures? Does it really require a Federal Court decision for us to think twice about our financial support towards an abusive regime?

Comparatively, a BBC investigative report found Ethiopia was using billions of aid dollars for political repression. The same report also connects the aid money to human rights abuses of Makhtal’s Ogaden ethnic group.

This prompted a response from British Secretary of State for Development Assistance, Andrew Mitchell, who called for an investigation into Ethiopia’s misuse of aid money. Even Germany may withhold aid to Ethiopia unless the human rights situation improves. Yet, the BBC report only served to emboldened Ethiopia to intensify its crackdown: a clear act of defiance.

Though Waldman’s application is unlikely to succeed, it has drawn attention to a very important case and a broader problem. In addition, this case may provide human rights advocates with another tool in their arsenal.

But most importantly, hopefully the application will serve as a catalyst for the Canadian government to act more sternly, or for Ethiopia to soften its position. Though the latter scenario seems unlikely.

Unfortunately, the side effect of this application will be litigation which will only further drain the Makhtal family’s resources, waste additional government time and resources, and an innocent Canadian citizen will continue to serve a life sentence while subjected to human rights abuses. At the very least this case should serve as a wake-up call for Canadians to become more vigilant about where their dollars go and how they are being used.