It is not unusual to hear people preferring not to file cases before the courts to claim their rights through them, despite the fact that article 37 of the Ethiopian Constitution reads “every person has the right to bring justifiable disputes to and to obtain a decision or judgment by, a court of law or, where appropriate, by another body with judicial power.”
If they have to go to court at all, it seems that people are happier to stand as a defendant than appear as a plaintiff. There is also a saying that circulates among law students, “victims may, at times, go even to the extent of relinquishing their claims than demanding them through the existing intricate procedure.’’
It is also common to hear public figures such as leaders of opposing political parties, activists, and journalists expressing their doubt and frustration over the judicial system.
Of course, the government and authorities in the judicial system have never denied that there exists a problem except that they are always disingenuous in figuring out where exactly the primary institutional bottlenecks lie and do not give a lasting solution.
A week ago when celebrating Seventh Justice Week, the president of the Federal High Court and others, for example, attributed the root causes of the problem in the judicial system – like EPRDF’s usual rhetoric – to rent-seeking attitudes, unethical behaviours, and inefficiency due to lack of ICT infrastructure. However, these are manifestations of the problem, not the causes, and such assessments are meant to be intentionally distracting from knowing the main cause.
It is not, in any way, to indicate that the absence of judicial infrastructure, lack of professionalism, an insufficient number of justices and judges, lack of commitment, rent-seeking mentality are not contributors to the partial, intolerably sluggish, inefficient, unpredictable, and costly judicial system in the country. Indeed they are, including the many cultural legacies and practices that are allergies to justice.
However, in the absence of interest to look into the root of the problem, which is a lack of judicial independence, it would be impossible to improve the effectiveness and the level of impartiality of justice, put in place an efficient system of justice, and advance efficient law enforcement.
Even though the essence of judicial independence is founded on the premise that decisions should be impartial and not be subjected to influence from other branches of government or political interests, the interventionist behaviours of the successive governments of Ethiopia could not institutionalise an independent judiciary, that all citizens could trust and feel confident about.
Putting the past regimes aside for now, it would not be simple for us to imagine that the current EPRDF government wants to see an independent judiciary. It all emanates from its ideological conviction. The EPRDFites are interventionists. The type of developmental state they run is all about intervening in the political economy. It is hard to be convinced that the behaviour of playing vanguard and the long hand of the government could suddenly hold itself back from the gates of the judicial system. It is a stand and most of all a behaviour of the government that not only applies to the institutions that may need routine political guidance but it also overflows to those institutions that are supposed to work only by the rule of law.
With the intention of making the concept of a developmental state and revolutionary democracy a hegemonic public belief, the ruling party has scratched multipartyism and diversity of political views from its mind and is desperately demanding everyone to conform to its ideals. The coalition does not like to see any obstacle coming from anyone against its ideological conviction. Neither is the judicial system left out from the list, albeit in a systematic way.
The process of nominating judges is not transparent in practice. EPRDF works tirelessly in selecting and indoctrinating university students in preparing its future leaders. The process of indoctrination includes law school students who become the future judges. It has been witnessed that many among the appointed leadership of the judicial system were previously public prosecutors or part of the executive body of the government, who may want to be more catholic than the pope in defending their ideology instead of working to maintain the rule of law.
The tribunals under the many executive branches of the government are where the government influences decisions or, if not, do not create the impression of an independent judiciary among the public. Add up to this the broad laws that the law-making body of the government produces. Proclamations that give a chance for wider interpretation are opportunities for the executive body to manipulate and use the gap to its advantage.
Above everything else, there is not a strong parliamentary check on the accountability of the process in particular and the judicial establishment in general due to the fact that the parliament itself is troubled for its gross partisanship to the ruling party.
All these make the judicial system not act independently. Without independence, it cannot get massive support from the public, and gain its trust and confidence. In the end, unless the system genuinely investigates to understand its institutional problems and try to transform itself accordingly, trying to achieve good governance, human security, and sustainable development in the country will be in vain.
But in case there is an interest to change the trend, there is a practice in South Africa worth considering. While the legislative body of the country is largely dominated by the ruling ANC, like Ethiopia’s EPRDF, South Africa’s judicial establishment is ferociously autonomous and zealously independent despite the many attempts by the executive body to interfere.