The politics of the Ethiopian Justice Sector Reform Program: Justice “reform” or “deform”?

Author: Henok G. Gabisa
International Law Fellow, Washington and Lee School of Law, VA, USA

The African post-colonial period marked a new paradigm of triangular discourse amongst law, justice and development in the international playground. The intellectual metamorphoses of this discourse quickly gained momentum in the mid-60s and was patented the “Movement of Law and Development”. Highly alluring to professors and intellectuals from American law schools, this intellectual movement regarded “law” as an instrument to reform the society and ‘lawyers and judges” as social engineers. With this movement, the narrative was that law is central to the development processes. Then in the early 90s, the movement gave birth to the idea of the “Justice System Reform Program”, also referred to as the “Judicial Reform Program”. The emergence of this idea immediately became a serious agenda in the strategic themes of international financial institutions and bilateral states cooperation structures under the wrestling juxtaposition of “rule of law” and “poverty eradication”. The geographical focus of this idea was only limited to the developing nations of Africa, Asia, Eastern Europe and some Latin American countries.

There are two main rationales behind the theoretical innovation of ‘judicial reform’: a well-established and effective justice system is not only robust enough to confront corruption and violation of rights (with the assumption that courts as custodies of human rights), it can also be relied on to protect the property rights of foreign investors (the concept of development has always been viewed as capitals flowing from north to south-until very recently that the newly rising economies of BRICS- an acronym for the multi-dimensional partnership between Brazil, Russia, Indian, China and South Africa- proved otherwise that capital can also flow from south to south). The ambition of reforming judiciaries in developing countries beseeches building the practical meaning of judicial independence and professional competence that can help build an unwavering system of justice delivery. However, this initiative seems to have totally been lost in translation and taken advantage of for political purposes by the Ethiopian government.

The financial requirement to run this program is mobilised mainly under the auspices of the World Bank and bilateral donors (Australia, Canada, Norway, the United States, and others) with a quid pro quo expectation from the government of Ethiopia to engage itself into a comprehensive public service reform agenda that includes the judicial system of the country. Ethiopia is one of those countries that year-in and year-out signs up for a mammoth of foreign aid and credit cash under the pretence of “justice system reform program”. Yet, the reform remains mystery to the vast majority of Ethiopians. “Justice” is only available to the elite.  The global motive behind the “justice reform” initiative continues to elude practical application when it comes to Ethiopia. There are two main reasons for this: the Ethiopian constitutional set-up and theory is so antagonistic that it renders the judiciary (the colossal entity in a justice system) a vulnerable organ exclusively ready at the disposal of the ruling political elites; second, as the situation stands now, the legislative processes and parliamentary scrutiny (the prime aspect of law making and justice system) serves the political interest of the regime while hindering the protection of freedoms and liberties from severe encroachment by the government.

The “jurisprudential” innovation of a “justice system reform program” is fundamentally understood as the improvement of judicial quality. This necessitates the establishing and strengthening of a pure, impartial and independent judiciary that can be relied upon as the custodian of human rights. The judiciary is an organ that, more often, sympathises with the people and shields them from executive and legislative interference with their rights and freedoms. It is only through a strong and independent judiciary that a country can truly treasure the tradition of rule of law. The philosophical rationale behind the idea of judicial reform stands mutually exclusive to constitutional models that theorise more governmental and less private ownership of property in an attempt to find solutions to the legal equation of poverty. This is mainly because the idea of tackling poverty through the instrumentality of law presupposes a constitutional theory that allows a greater degree of judicial activism and protection in the discourse of governmental checks and balances.

An active judicial organ can guard against human rights violations and interference with freedoms by the government; and can understand the human rights approach in the process of comprehensive development. Nonetheless, the Ethiopian constitutional theory has never allowed for a kind of judiciary that can enforce the rights and freedoms entrenched in the country’s constitution itself. Even though the intelligible logic behind “reform” simply requires improving and performing better than the initial point, the Ethiopian version of “justice system reform” program stands contrary to that and finds itself in an adverse phenomena. The constitution entrusts the political unit of the government- the House of Federation- to give meaning to rights and freedoms by constitutionally prohibiting courts to interpret the law in their daily adjudicatory function. As a result, the concept of rights and freedom is just a shipwrecked reality in the contemporary discourse of Ethiopian constitutional and justice practice.

Further, the standoff nature of the constitutional theory in Ethiopia, the other inherent crises of the reform program, is highly attributed to the problem of implementation. The work of reforming the justice system is advertently and wittingly lost in translation and taken advantage of for furthering up the exclusive political interest of the government. Continuous judicial education and training is one of the deliverables in the science of justice reform program as witnessed elsewhere in the world. There is nothing a government would need to politicise about with regards to judicial education and training. However, the Ethiopian version of judicial training, contrary to the essential need of Ethiopian judges, is tainted and wrought for the sole political gain from the soup-to-nuts of the training processes. The tight political control over the operation and contents of the training by the political executives does nothing but delegitimise the judicial training and reform program in Ethiopia. Is the content of the training commensurable to the country’s recipe for reformation needs? Or is it just another systematic channel for the political brainwashing of judges? How are judicial training centres established and under whose leadership do they operate? A closer look into the institutionalisation of judicial training centres in the country exposes the overwhelming political leadership of ministerial structures. This is a prima facie manifestation of the political game played at its best in the so called Ethiopian “Justice Reform Program”.

Given the above stated difficulty, investigations into the justice reform program in Ethiopia brings forth the true colour of the legislative system of the country in which laws are simply made to encroach on peoples’ freedoms and liberties. In countries where the judiciary is highly respected and given the power to strike down unconstitutional laws, the judicial organ is superior to the other two organs. This is what is normally referred to as the principle of “judicial supremacy” which means that courts have the “final say” on an important and sensitive issue facing a country via the interpretation of the constitution. The United States’ constitutional system is a typical example in this regard. On the other hand, other countries follow the theory of “legislative supremacy” where the legislature is superior to the other two governmental branches. According to the spirit of this theory, the only available safeguard keeping parliament from passing “unjust and arbitrary laws” is through the idea of “parliamentary scrutiny”. This means, proclamations and statutes are made through a highly deliberative and democratic participation of all stakeholders; this includes civil society and non-governmental organisations. The high degree of scrutiny and participation is just to redress the fact that judges will not have the opportunity to review and interrogate the constitutionality of the laws through the phenomena of constitutional interpretation.

The Ethiopian legal system prohibits the judiciary from reviewing sensitive matters related to the constitution, this task is assigned to political bodies such as the House of Federation. The worst case scenario presents itself when the country does not utilise any formal or informal technique of parliamentary scrutiny that could have mitigated possibilities of enacting arbitrary and unjust statutes. Neither “judicial supremacy” nor “legislative supremacy” is what the country knows to follow as a constitutional theory. What the country knows best is “political supremacy”. Can one expect the country to develop and reform the legislative techniques when there is absolutely no room for political pluralism and there is only one seat for opposing political parties out of the total 547 seats in the main house? This is the context in which the government markets the rhetoric of “justice system reform program”.

Concluding Remark

Under the disguise of the “Justice System Reform Program”, the political elites in Ethiopia had long been involved in systematically creating a more dependable and parasitic judicial system; laws and statutes are enacted in arbitrary and unjust ways that endanger the fundamental rights and freedoms of the people which primarily furthers the political agenda of the government. This is an unprecedented justice system that clearly betrays the widely recognised rights and freedoms of any human being. The Ethiopian government is well remembered for harassing and exiling journalists and cracking down on dissidents and the defenseless. From the very beginning, the “Justice System Reform Program” was only one of the political pomposities put in place by the government to secure aid and donations. The reform program appears to have been politically oriented and less concerned about access to justice and the rule of law in the country. International stakeholders and donors are highly recommended to re-think how they engage in development cooperation with the government of Ethiopia pertaining to the reform agenda.

About the Author:
Henok G. Gabisa holds LL.B (JD equivalent) from Mekelle University School of Law in Ethiopia; LL.M from St. Thomas University School of Law in Florida and currently he is a JSD/PhD candidate at same school. Henok worked as a Trainer and Researcher in Ethiopian Judicial Training Institute where he trained Ethiopian judges, prosecutors and judicial officers on different subjects of international human rights law. He was also an adjunct at Royal University College and Wolayita Sodo University Faculty of Law in Ethiopia. Henok can be reached at hgabisa@stu.edu. The author would like to thank Ms. Ephrata T. Fogi for her valuable comment on the draft of this article.