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| Report assesses judicial independence in Ethiopia |
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| Saturday, 01 November 2008 | |
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By Bruck Shewareged The study, which deals with independence, transparency and accountability in the judiciary of Ethiopia, uses thirty indicators to try to gauge how much courts are independent of the executive. Following are some of the more important indicators as listed in the study, conclusions and the recommendations forwarded. INDICATOR Constitutional or legal provisions mandating the clear separation of powers between the executive, legislative and judicial branches of government, and the independence of the judiciary. The study acknowledges that the country's federal and state constitutions establish a clear separation of the powers of the three branches of the government and that the federal constitution "unequivocally embraces the principle of judicial independence." Although there is a perception that federal and regional governments have become more and more respectful of judicial independence, opinions are sharply divided on the actual level of independence enjoyed by the courts. The study says that since 2005 many judges have left the country protesting government interference. There were also allegations that some judges were "arrested, threatened, intimidated, pressured to resign, transferred to remote locations or somehow removed from active judicial duties." As an example of the interference by the executive organ, the study disclosed one incident in which the Minister of Justice expressed his dissatisfaction over decisions given by the courts: "Recently, the Minister of Justice wrote to judges to admonish them for assuming jurisdiction over cases that, in his view, fell outside of their mandate. He also filed complaints against those who had rendered decisions that did not agree with his interpretation of the law." It recommends that awareness training of officials at all levels, and of the legislators should be pursued. It also suggests that judicial education curriculum should include courses that help judges understand in practical terms how to protect judicial independence, exercise it properly as well as understand the accountability that comes with it. INDICATOR Judicial powers to review the constitutionality of legislation and administrative actions of government, and for courts to determine their own jurisdiction in accordance with legal standards. The constitution empowers the House of the Federation to pass decisions regarding all constitutional disputes, aided by the Council of Constitutional Inquiry (CCI) which investigates constitutional disputes submitted to it. And courts or litigants who have exhausted all administrative remedies can submit issues for the constitutional interpretation to the council of the House of the Federation. The study found out that to this point, only a few cases have been decided, all brought directly by litigants, although many applications have been dismissed by the council on procedural ground. It, therefore, recommends that the judiciary needs training in the application of constitutional law, and the need for clarifying the role of courts in applying constitutional principles established in the House of the Federation's decisions when deciding on the legality of rules, orders, regulations and actions of the executive. INDICATOR Guaranteed tenure of judges and heads of court Although the constitution provides that judges at both state and federal levels can be removed from office only if he/she has reached retirement age determined by law, the study points out that there were stories of harassment in order to pressure them into resignation. "Whatever the validity of these stories, the very fact that they circulate in judicial circles cannot but affect the sense of security and independence of judges," the study says. The study also discloses a concern over safeguards for the court president and vice president: "Although the constitution sets out the process through which the President or Vic-President of a Court are appointed, Ethiopian laws and regulations are silent as to the process for dismissing them from their position or from the court. In actual fact, Presidents and Vice-Presidents have been removed from courts, but through an unknown process that did not involve the legislature that had appointed them to the position." The study concludes that the protection of judicial tenure in the provisions of the constitution and in regulations is in line with international standards, and it is important that both the letter and the spirit of those guarantees be respected in practice. It suggests that the role of court presidents as head of courts should be clarified and their tenure designed in a way that is fully compatible with independence of the judiciary. It also stressed that stability in court leadership in an important success factor in implementing broad and challenging reforms, such as reform of the courts. INDICATOR Qualified judicial immunity and independent judicial association. The study points out that action for liability may not be brought against a judge as a result of an act connected with his her function. It says that a limited criminal immunity would contribute to giving judges the confidence to make independent decisions based only on the law. But it also argues that criminal immunity, no matter how limited, is fraught with risks of abuse, and that it would require clear criteria and procedures and for the Judicial Administrative Councils (JAC) to report to the legislature on the cases. The study recommends that two measures would further strengthen judicial independence: - A limited criminal procedural immunity - no judge could be charged with out JAC's involvement unless the judge was caught committing a flagrant offence - with appropriate criteria and procedures for JACs and reporting to the legislature on these cases. - An independent judges' association to represent the interests of the judges and contribute to strengthening judicial independence and ethics, and fostering in the public a better understanding of the role of the judge. |
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