Separation of powers and its implications for the judiciary in Ethiopia

Abstract

This paper examines the role of the judiciary in Ethiopia. Implicit in the notion of separation of powers is the fact that the judiciary has a crucial role in resolving disputes impartially, ensuring the rule of law and in setting limits to power. Yet in Ethiopia the legislature has sought to take away power from the courts, placing them in quasi-judicial bodies within the executive. The judiciary has also failed to check that the executive is acting within the framework of the law. The overall assessment is that the judiciary has not yet defined its role; has not properly interpreted the concept of separation of powers; and has not yet become a key organ for enforcing human rights. The judiciary has abdicated its core function of reviewing acts and decisions of the executive and administrative agencies and is in danger of paving the way for arbitrary and unchecked government.

Keywords:

• Ethiopia
• judiciary
• rule of law
• courts
• political transition

Notes

1. Statement by President Museveni of Uganda made in 2004, quoted in Mzikamanda, “The Place of the Independence of the Judiciary.”

2. World Bank, “Ethiopia: Legal and Judicial Sector Assessment”; National Judicial Institute of Canada, “Independence, Transparency and Accountability in the Judiciary of Ethiopia”; Dutch Center for International Legal Cooperation, “Ethiopia Comprehensive Justice System Reform Program.”

3. Pankhurst and Getachew, Grass-roots Justice in Ethiopia.

4. Federal Democratic Republic of Ethiopia (FDRE), Proclamation No. 1/1995, Constitution, Arts 34 and 78 (hereafter FDRE, Constitution).

5. Aberra, An Introduction, 219, 227, 240.

6. See Toggia, “The State of Emergency,” 116ff. For a detailed account of the arguments behind the dismissal of judges in the Transition period, see Elgesem, Derg Trials in Context.

7. FDRE, Constitution, Art. 50(2). See also FDRE, Proclamation No. 322/2003.

8. FDRE, Constitution, Arts 78(2); 80(2) and sub (4), (5) and (6).

9. One law school was established during the imperial era (in 1963). The total number of graduates never exceeded 50 a year. Most preferred to work in Addis Ababa. Since the expansion of the 1990s, there are now 12 public law schools. Since 2010 private law schools have been allowed. There are now some 7000 law graduates annually, and an estimated 6000 judges throughout the country.

10. FDRE, Constitution, Art. 2.

11. Interviews, Ministry of Federal Affairs, January 2003.

12. FDRE, Constitution, Arts 80 and 81, and Art. 50(7). This is also covered in the individual state constitutions of Amhara, the South, Tigray and Oromia.

13. FDRE, Constitution, Arts 79(1), 80(1). This is rather vaguely defined in FDRE, Proclamation No. 25/1996, Art. 3. The proclamation allocates subject matter jurisdiction to federal courts on the basis of three grounds: laws, parties and places. The border line between federal and state matter however is far from clear in practice. See Assefa, Federalism and the Accommodation of Diversity, 357–68.

14. See FDRE, Constitution, Arts 62 and 84.

15. Mgbako et al., “Silencing the Ethiopian Courts,” 281.

16. FDRE, Proclamation No. 251/2001, “Consolidation of the House of the Federation”; see also, FDRE, Proclamation No. 250/2001, “Council of Constitutional Inquiry Proclamation”; FDRE, Constitution, Art. 84.

17. FDRE, Constitution, Art. 84(2) reads in full: “Where any Federal or State law is contested as being unconstitutional and such a dispute is submitted to it by any court or interested party, the Council shall consider the matter and submit it to the House of Federation for a final decision.” In this provision, the Amharic version makes it clearer by specifying that “laws,” or Higoch, refer to an act of the legislature (Be Federalu Mengistim Hone Be Kilil Hig Awchi Akalat Ye Miwotu Higoch) at federal and state level.

18. FDRE, Proclamation No. 251/2001, Art. 9, states: “Unless otherwise proved to the contrary, the enacted law is presumed to be constitutional …”

19. FDRE, Constitution, Art. 50(3).

20. Decision of the CCI on Tirr 17/1992 EC, January 25, 2000, unpublished.

21. Decision of the CCI on an application made on Miazia 30 1989 EC, May 8, 1997, unpublished.

22. FDRE, Proclamation No. 251/2001, “Consolidation of the House of the Federation,” Art. 2(2); and FDRE, Proclamation No. 250/2001, “Council of Constitutional Inquiry Proclamation,” Art. 2(5).

23. The two proclamations are in the process of revision by the HoPR.

24. FDRE, Proclamation No. 272/2002, Arts 17–19; FDRE, Proclamation No. 455/2005; FDRE, Proclamation No. 555/2007, Arts 6 and 12; FDRE, Proclamation No. 286/2002, permits the Inland Revenue Authority to confiscate the property of defaulting tax payer without going to courts, Arts 77–78. Of the several semi-judicial tribunals, the Tax Appeal Commission, the Administrative Tribunal for Civil Servants, the labour courts, Re-enactment of Urban Lands Lease holding Proclamation (Arts 17 and 18) allow appeal to the regular judiciary only if there is a basic error of law. See FDRE, Proclamation No. 42/1993; FDRE, Proclamation No. 272/2002.

25. The proclamation does not expressly prohibit review of such measures by the regular courts. It remains to be seen how the practice will evolve.

26. Federal Supreme Court Cassation File No. 33552 Hamle 24, 2000 EC.

27. The most outrageous decision is “Mahberawi Watsina Belesiltan vs Ato Birhanu Hiry and Ato Kebede G. Mariam,” Federal Supreme Court Cassation Division, File No. 18342, Tahsas 17, 1998.

28. Federal First Instance, Arada Bench, File No. 25016, decided in 1997 EC.

29. Federal First Instance, Lideta Bench, File No.140618, decided in 2001 EC.

30. Kommers, “Autonomy versus Accountability,” 135.

31. Mgbako et al., “Silencing the Ethiopian Courts,” 281.

32. In constitutional jargon this is called non-delegation doctrine. See for example Kischel, “Delegation of Legislative Power.”

33. See Jowell, “The Legal Control of Administrative Discretion,” 178–220.

34. In countries with developed systems of administrative law, one of the goals is to keep powers of the government within the legal bounds and thereby prevent abuse of power.

35. See for example FDRE, “Regulation No. 155/2008,” Art. 37.

36. “Yeka Land Development and Administration Office v. Asmelash Tafese and others,” Federal Supreme Court Civil Cassation File No. 27604, March 2007.

37. FDRE, Proclamation No. 361/2003, Art. 41.

38. See, for example, “Solomon Shiwaye and Birhanu Yalew v. Felege Limat Mesriyabet Cooperative Association and Nefas Silk Lafto Land Development Administration,” Civil File No. 05308, March 2009. Other lower federal courts, however, seemed to have qualified the implications of the above case. The author has greatly benefited from discussions and cases collected by former students, currently judges, see Kedir, “The Status, Powers and Functions of Local Government”; Desta, “The Role and Competence.”

39. Discussions with Presidents of Federal Courts, August 2009. See also Mandefrot, “A Review of the Ethiopian Justice System,” 429–50.

40. Steadman Group and InterAfrica Group, Ethiopian Opinion Poll Survey.

41. This has been highlighted in a number of EPRDF documents, but see especially Amare, Finote Gedil.

42. Cappelletti, The Judicial Process, 58.

43. Dutch Center for International Legal Cooperation, “Ethiopia Comprehensive Justice System Reform Program,” 159.

44. In the last decade expressions like “ande tera dagna” (a certain ordinary judge abusing his power), or “leba dagna” (thief judge), were commonly repeated in press reports and other commentary.

45. During 2003, out of 120 federal judges appointed, 20 had resigned within a year. Anon., “Ke Federal Megemeria Derega”; Anon., “Ye mangewalel higu dagnochim”; Anon., “Meles be wastina mebit lay.”

46. Article 9 of the Constitution makes such treaties expressly part of Ethiopian Law.

47. Turton, Ethnic Federalism.

48. For example, van der Beken “Ethiopia: Constitutional Protection.”

49. FDRE, Constitution, Art. 10(2).

50. Yonatan, “Whose Power is it Anyway”; Mgbako et al., “Silencing the Ethiopian Courts,” 278.

51. The President of the Regional Supreme Court stated that it is not common to find decisions citing the provisions of the constitution on rights: Interview, Addis Ababa, March 2009.

52. Markakis, Ethiopia, 333. See also, Ottaway, “The Ethiopian Transition,” and Abbink “The Ethiopian Second Republic.”

53. The figures come from an unpublished study carried out by Assefa Fisseha and Solomon Niguse. The study covered Oromia, South, Somali, Benishangul Gumuz and Addis Ababa regions, with 341 judges participating in all.