The courts may still be sluggish but they are less slavish to the demands of the state.
Source: Ethiopia Insight
September 5, 2021
The judiciary in Ethiopia has been known for its low levels of impartiality, integrity, and competency. It has thus fallen short of delivering justice for many Ethiopians who sought it.
Courts are characterized by long delays, while, in sensitive cases, politicians and bureaucrats have frequently meddled.
According to a 2005 report on legal reform, the judiciary was inaccessible, corrupt, politicized, and under-funded. A lack of respect for judicial autonomy, especially in cases involving the state, was apparent.
For example, following the post-election crisis in 2005, the Oromia Supreme Court judge Teshale Abera and federal judge Wolde-Michael Meshesha fled the country after being appointed to investigate possible election fraud.
In 2006, Teshale told the BBC of a plan to appoint new loyalist judges throughout the system, while Wolde-Michael said he received anonymous death threats after being pressured to alter the number of civilian deaths during protests.
Such episodes indicated the pressing need for reform—although that was not a new idea in Ethiopia. Since 2000, the government had attempted to improve the justice system, with the help of some donor funds.
In 2002, a Justice System Reform program was conducted by the Ministry of Capacity Building which proposed a number of recommendations in a 2005 baseline study report to all actors in the justice system, the legislators, courts, law enforcement agencies, and institutions offering legal education.
Although several seminars for local and state judges were conducted, the program yielded little result as fundamental problems identified in the baseline study persisted. As discussed in a 2015 article by legal academic Henock Gabisa—a prominent U.S.-based opposition activist for Oromo causes—in the name of judicial training, the reform budget was used to politically indoctrinate judges.
Meanwhile, justice has remained elusive, and the sector showed few signs of improvement. The reform looked like a fig leaf to try and hide rampant undemocratic practices.
Since 2018, Prime Minister Abiy Ahmed’s government has initiated reforms in the justice, political, and economic sectors.
According to a diagnostic study by the Legal and Justice Affairs Advisory Council, the previous reforms lacked the genuine participation of the public and professionals. The Advisory Council was established in 2018 with the mandate to advise the government on the design and implementation of reforms.
Since then, efforts to implement a long overdue overhaul were introduced.
Under the current president, Meaza Ashenafi, the Supreme Court has been carrying out a three-year project.
Solomon Ejegu, the Supreme Court’s head of communication, told Ethiopia Insight that reforms consist of projects ranging from creating more suitable working spaces and courtrooms to drafting a new Federal Courts Proclamation and Federal Judicial Administration Proclamation.
As delays have been amongst the major shortcomings, the Supreme Court has enacted the Federal Courts’ Case Flow Management Directive, which classified cases based on their nature and provides a maximum length that litigation of civil cases should take. The directive will be implemented by all federal courts from September 2021.
In the last fiscal year, federal courts planned to resolve 166,758 cases and managed to give judgments on 171,276 cases, surpassing their plan by 2.7 percent. The implementation of the new directive this fiscal year should reduce case times further.
The Supreme Court is also taking steps to guarantee the independence of judges and the judiciary. Measures include amending a Federal Judges Code of Conduct and Disciplinary Procedure Directive to improve transparency and accountability of federal judges.
The Supreme Court is also preparing to take over the administration of 4,000 federal court employees from the Civil Service Commission, and has drafted a relevant directive. The move is in line with the constitutional principle of judicial independence.
At a 13 August press conference, Meaza said surveys conducted by the Supreme Court showed the judiciary enjoyed a 70 percent satisfaction rate among plaintiffs.
The role of federal courts in reviewing election disputes was among the issues raised in the press conference. At the three levels of federal courts—First Instance, High, and Supreme— a total of 24 special benches were formed, and 74 election-related disputes were adjudicated, some of which still awaiting judgment according to Meaza.
Meaza stated that, although there has been extensive preparation, the number of cases was less than anticipated, and the cases brought to the special benches were not complicated and so proceeded without major difficulties.
In a webinar held on 15 March by the Royal African Society, Meaza elaborated that the focus of the reform is ensuring judicial independence as an institution as well as the independence of judges.
Among the first steps towards reform taken by the Supreme Court was—in line with Article 79 of the constitution—directly submitting a budget proposal to the House of Peoples’ Representatives, instead of having the proposal reviewed by the Ministry of Finance and Economic Cooperation, an unconstitutional practice that had been conducted previously.
Such deviation from the constitution by the former administration contributed to the judiciary’s shortcomings, along with an insufficient budget. In the webinar, Meaza said there had been a 30 to 40 percent increase in the budget of federal courts’ in the past two fiscal years. The allocated budget this fiscal year increased to 970 million birr from 660 million birr the year before.
Activities that necessitated an increased budget included taking over employee administration, establishing additional benches, and improving buildings and the use of technology
Although there is still a long way to go, the reforms are off to a promising start compared to previous efforts and considering the enormity of the task, according to prominent practitioners.
Attorneys told Ethiopia Insight that they have noticed improvements, albeit minor, in relation to the service provision of courts up to this point. They point out that this is the first genuine effort towards reforming the judiciary in decades.
Mulugeta Belay, best known for his role as a judge on the Chilot television series, wrote an article in which he discussed some of the problems. According to him, courts have been severely neglected by the government, and the appointment and promotion of judges often occurred without due care.
“The popular saying is that, ‘It is better to get sued than to sue’, the reason is, for anyone to get judicial remedies, they will have to spend an enormous time, energy, and money as some cases get dragged for years; and after enduring all this, the plaintiff might be left unsatisfied with the verdict,” he told Ethiopia Insight.
Some reasons for this, according to the interviewee, are the lack of proper time and budget management, shortage of courtrooms and judges, and lack of simple equipment such as audio recorders.
Mulugeta praised the work being conducted by the Supreme Court to digitize its archives and deliver services online, and also the legislative reforms. However, the attorney said there is still a shortage of court space and long frequent adjournments.
“The legislative reform is vital for realizing the betterment of the justice system, but I don’t think there is an administration in place that is capable of properly implementing legislative changes. A lot needs to be done on changing the system and mindsets of the responsible personnel,” he concluded.
The new Federal Courts Proclamation revises the material jurisdiction of federal courts so that civil cases involving up to ten million birr, which previously fall under the high court’s jurisdiction, are now being adjudicated by the first instance courts. “This will surely increase access to appeal, but…the question remains if the already loaded first instance courts can handle the extra pressure,” said Mulgeta.
Attorney Fasil Seleshi said, “although there are still delays and a lot of work to do to create true accountability, judicial independence is increasing.”
He suggested that along with personnel changes, the “courts were used by the state as a mechanism of terrorizing and punishing those who opposed it, the Prime Minister has openly acknowledged this fact and apologized, this might have served to adjust the attitude and mindset of those engaged in the justice system.”
Another lawyer, Kedir Bullo, who has represented accused political leaders over the last two years, stated “There might still be pressure from executive branches in some cases, but lack of independence is no longer what the Ethiopian judiciary is known for.”
A program coordinator at the non-profit Ethiopian Mediation and Arbitration Center, Meron Kassahun, broadly agrees. She said: “All problems existing in courts haven’t been solved, but cases take less time than they used to, and Supreme Court’s project on court annexed mediation [a process by which some civil cases are settled by departments of mediation, under the auspices of the court, instead of adjudication] is also appreciable as it consumes less time and money than seeking regular judicial remedies.”
The judicial reform endeavor is supported by Justice Activity, a USAID-funded organization assisting the Supreme Court and federal and state attorney generals.
The head of Justice Activity David de Giles believes the reforms have been a triumph so far, particularly the two new proclamations. “Judges are now much more independent, the system is more transparent, and case management is being improved,” he said. “I have operated in other countries, and what I appreciate in Ethiopia is the fact that there is a strong political will for change.”
In interviews, families of a defendant at a federal first instance court criminal bench praised the competence and fairness of judges, but expressed concern regarding time management, stating that no session they attended ever started on time.
The Federal Courts Proclamation and the Federal Judicial Administration Council Proclamation, both passed in January, give the reforms legislative backing. The former rearranges the jurisdiction of both civil and criminal benches of the first instance and high courts.
The proclamation has also given a new form to court annexed mediation, and that is hoped to result in increasing access to justice and decongesting the regular benches. So far, five special benches have been formed at the first instance court.
The Judicial Administration Council (JAC) Proclamation is expected to alter the composition of members of the council and increase members from judicial institutions.
In the past, the JAC has been criticized for taking undue measures against judges who resisted government interference, and also for lack of sufficient knowledge of court activities.
The JAC previously consisted of 12 members and was responsible for nominating judges and the presidents of the first instance and high courts. Promotion, salaries, and other benefits are also decided by the council, and it received and had a final say on disciplinary proceedings against judges.
Even though decisions passed by the council were based on majority vote, only five of its 12 members were judges and presidents of federal courts.
Generally, the efforts to reform legislation and the judiciary are heading in the right direction. However, the problems with law enforcement institutions have persisted, undermining improvements.
Hence, more attention needs to be directed towards this area. The judicial system still falls well short of ensuring the accountability of policing and prosecuting institutions, an enormous component of the justice system.
Arbitrary action by law enforcement personnel is at times blatant. One example was when, without a court order, they blocked journalists from attending sessions of a high-profile case involving politician Jawar Mohammed.
Furthermore, the courts’ inability to interpret the constitution is a barrier to justice, as is their failure to act as a check on executive power.
According to Simeneh Kiros, prominent attorney and researcher, “judicial power is clearly undermined; even the term ‘judiciary’ doesn’t fit their status because a judiciary is expected to hold other branches of government accountable in case of wrongdoing.”
Ethiopia’s courts are certainly in the process of resolving some major shortcomings. However, the judiciary must get to the point where it routinely effectively scrutinizes the government.
For now, federal courts might soon be able to serve justice for all—provided that the state is not the defendant.