Author’s Note: While this commentary stands on its own merits, the author strongly recommends reading Part I of the series to appreciate the enormous complexity and fierce urgency of judicial/justice sector reform in Ethiopia today.
Judicial/justice sector reform is an integral element of Ethiopia’s Homegrown Reform Agenda
Ethiopia has been undergoing massive reform over the past five years.
The reforms, which are guided by the principle “Ethiopian solutions to Ethiopia’s problems,” have focused on, among other things, creating accountable public institutions, democratization of the political process, institutionalization of the rule of law, and transformation of the economy from the so-called “developmental state”-led growth to private-sector led growth.
Ethiopia’s Homegrown Economic Reform Agenda is transitioning Ethiopia from an Asian Tiger wannabe to a proud, self-sufficient, self-feeding and self-reliant African lion.
The equivalent homegrown political reform agenda has produced a democratically elected government certified by the African Union.
Ethiopia’s homegrown foreign policy agenda has transformed regional peace in the Horn of Africa. The no peace, no war two-decade status quo between Ethiopia and Eritrea has been transformed into peace, amity and comity between the two countries.
Ethiopia has been a fulcrum and driver of peace in the Sudan as well as in South Sudan.
Ethiopia has leveraged its unique role in the Horn to improve relations between Eritrea and Djibouti.
As part of a broader regional peace initiative and engagement, Ethiopia has played a key role in restoration of diplomatic relations between Somalia and Kenya.
Ethiopia’s homegrown environmental and conservation agenda has resulted in a massive Green Legacy program and planting of billions of seedlings as of 2022.
Ethiopia’s homegrown tourism and quality of life enhancement agenda has transformed the capital Addis Ababa to live the true meaning of its name (Addis Ababa means New Flower).
The Sheger Park Project aims to transform Addis Ababa in to a greener, cleaner and attractive tourist friendly city with open spaces, walkways and bikeways.
Unity Park, Entoto Park, Friendship Park and Museum of Science and Technology are unique urban institutions and attractions that will not only revitalize Addis Ababa and enhance the general well-being of its residents but also attract tourists and potential investors.
Then there are the Gorgora, Wenchi and Koysha projects which will offer stunning eco-tourist destinations when completed in the foreseeable future.
Ethiopia’s homegrown reform agenda is a blueprint to transform Ethiopia from a low-income agrarian country to a lower-middle-income industrializing country by 2030.
The judicial sector reform currently underway is a critical element of Ethiopia’s Homegrown Reform Agenda.
The 2014-2018 Ethiopian Federal Judiciary Strategic Plan
In January 2022, the Ethiopian Federal Supreme Court issued its “Five-Year (2014-2018 [Ethiopian Calendar] Strategic Plan [‘Plan’]”
To be sure, it is a Plan limited to the federal judiciary and does not include the country’s justice sector which includes, among others, prosecutorial services, police and investigative services, the private bar, legal assistance providers and corrections.
The 161-page Plan is presented in 4 major sections with an executive summary, introduction and appendices.
The executive summary provides a brief retrospective on achievements from 2008 to 2012 and an overview of the 2014-2018 plan, the methodology for preparation of the Plan, a discussion of mission, vision and values and identifies key focal areas of reform, strategies to be used in the reform and implementation and follow-up monitoring mechanisms.
The introduction provides justification for the necessity of federal court improvement reform strategy, lessons learned from the 2008-2012 and 2003-2007 strategic Plans, an overview of the issues, problems, challenges and achievements, engagement of the judicial leadership at different levels with input from professionals and technical support personnel.
Section 1 (pp. 7-47) provides a comprehensive discussion of the structure, organization and operation of the federal courts and explains the applicable constitutional and statutory (proclamations) basis for the operation and functioning of the federal courts. It offers an update and analysis of the current state of the judiciary including, among others, federal judicial administration, new legislation aimed at improving the operation and functions of the judiciary, independence of the judiciary, transparency and accountability, access to judicial services and public confidence in the judiciary, budgeting, judicial appointment, training and accountability, appellate process and case management.
Section 2 (pp. 48-62) deals with mission, vision, principles, objectives and outcomes. The section sets impressively detailed strategic objectives and performance metrics. It does a SWOT analysis (Strengths, Weaknesses, Opportunities and Threats) in Gantt chart-like format. The analysis focuses on metrics dealing with 1) freedom and independence of the judiciary, noninterference in its operations by external actors, transparency and accountability, 2) judicial efficiency and quality, and 3) user access to justice. The metrics and strategic actions to be taken with respect to the three elements are detailed on pp. 66-73.
Section 3 discusses implementation of the strategic Plan throughout the judiciary and methods of implementation as it “cascades” through the federal judicial hierarchy to the lower levels. It sets parameters for strengthening the structure of the judiciary and leadership capacity, gathering and effective use of resources, and publicizing the strategic plan to create broad public awareness.
Section 4 deals with follow-up, analysis and reporting on implementation of the strategic plan. It examines ways of creating systems and processes for data collection, undertaking periodic reviews and generating reports.
The extraordinary execution and implementation plan is detailed on pp, 81-125 in Gantt chart-like format tracking activities for 2014 to 2018, setting baselines, identifying outcomes/targets by year and designated monitoring entity. A second Gantt chart-like presentation provides details on monitoring and analysis plan strategy outcome indicators baseline target data source monitoring body presentation of report are provided at pp. 127-160.
Summary observation on the strategic plan
Generally, all strategic plans follow similar approaches. First, they set out vision/mission statements that profess high goals and aspirations. Second, they set out a list of detailed initiatives that the organization will undertake to achieve the goals. Third, it discusses the budgetary requirements to achieve the goals. Fourth, it identifies oversight, monitoring and outcome evaluation processes of the strategic plan.
In terms of the narrative of the Plan, it is done consistent with established practices in strategic planning.
Public satisfaction survey and findings about the performance of the judiciary
Of special interest in the appraisal of the Plan is a “Court Users’ Satisfaction Survey Report” issued in March 2022.
The user survey was “commissioned” by Federal Supreme Court and conducted by the Feteh (Justice) Activity in Ethiopia which is “a USAID-funded project designed to assist the Government of Ethiopia in critical democratic reforms.”
In the survey 17 federal court district bench locations are included, 15 in Addis Ababa and 2 in Dire Dawa.
The study aims to “gather court users’ experiences and perceptions about the judiciary’s efficiency, transparency, access to justice, ethics and progress made in implementing reforms.”
The overall goal of the survey is to “provide the FSCE and other courts with actionable information to continue their reforms and further improve court services” and “serve as a baseline for future periodic assessments and a source of potential interventions.”
Among the key finding of the survey are the following:
Accessibility and Transparency – An “overwhelming majority of court users” found physical access to courts easy and “felt safe”. They expressed satisfaction in having an open and public hearing.
Ethical Behavior and Impartiality– An “overwhelming majority (91%) of users reported being treated equally” without regard to “ethnicity, religion, gender, economic status, and age had no effect on their cases.” Judges were reported to be “courteous, respectful and fair.”
Effectiveness, Efficiency and Predictability of Service Delivery – “The findings showed 78% of users reported that they had confidence in the courts’ operations.”
Performance during the Last Three Years– “Slim majorities of only one in two users reported that courts process cases more efficiently and provide better services nowadays than compared to three years ago.”
“With respect to corruption, however, slightly less than half of users (only 46%) agreed that courts were less corrupt now than they were three years ago.”
Accessibility and Transparency– Survey results showed 74 percent of users reported “facing no difficulty accessing information and getting related services such as legal aid and translation and interpreter services.”
Ethical Behavior and Impartiality– Similarly, 74 percent of users reported “receiving services without any issue of sincerity, loyalty, and integrity.”
Effectiveness, Efficiency and Predictability of Service Delivery – 71 percent of users reported the “courts performed effectively” by providing timely and efficient services and in helping with mediation and reconciliation.
Corruption: The elephant in the judicial living room
In her recent interview, Chief Justice Meaza Ashenafi explained the complexities and challenges of judicial sector reform:
But reform of the judiciary is even more complicated. For several years, the judiciary did not get the attention it needed, in terms of resources, human capacity, and others. It has been functioning under so many constraints.
Judicial reform is very process oriented. The judiciary is also vulnerable because there are many interests involved. So there is a lot of criticism, and sometimes even attacks. These are some of the factors hindering the reform. But according to the public perception surveys we have conducted, the public recognizes the progress and achievements we have made in the last three years.
The key arteries for the court reform agenda are efficiency (speedy trials), effectiveness (quality trials), and accessibility (of courts to people using technology and other platforms). To achieve these three targets, we undertook several measures, including the introduction of new legislation and new legal frameworks, setting up systems in place, and training both judges and support staff.
PM Abiy Ahmed in his recent appearance before Parliament identified corruption as the critical and fundamental problem of the judiciary and underscored the fierce urgency of now to deal with it.
PM Abiy addressed the problem of corruption in the judiciary broadly: taking bribes, receiving gifts and personal favors, denial of due process, abuse of discretion, abuse of power and arbitrary treatment of criminal defendants, conspiring and bragging about bribes on social media, delaying cases to favor one side or another, special treatment for friends and relatives, lack of impartiality and diligence, not showing upon time, conflict of interest and ex parte communications, among others.
He stated in the strongest language possible that the culture of corruption in the judicial and justice sectors has undermined public confidence in those institutions. For all intents and purposes, it could be said that he called for a national war on corruption not only in justice institutions but also other institutions of government as well.
He declared:
The time for justice sector reform is now. We have not been successful with our intervention until now [in controlling corruption]. If there’s going to be judicial sector reform, the time is now. If reform is not done now, if the foundation is let to collapse, it will never be fixed.
Two days after his appearance in Parliament, PM Abiy announced the establishment of a 7-person national anti-corruption committee which includes the Attorney General and the head of the Ethiopian National Intelligence and Security Service.
The Feteh Users’ Survey concluded, “With respect to corruption, however, slightly less than half of users (only 46%) agreed that courts were less corrupt now than they were three years ago.”
It is true the corruption undermines confidence in government, and the legitimacy of government institutions in the eyes of citizens.
In my August 2013 commentary, “Corruption in the Ethiopian JUST US Sector,” I observed:
I have long caricatured the “justice sector” of the TPLF/EPDRF as a kangaroo justice system founded on a sham, corrupt and whimsical legal process. What passes off as a “justice system” in Ethiopia is little more than a marketplace where “justice” is bought and sold in a monopoly controlled by one man supported by a few nameless, faceless and clueless men who skulk in the shadows of power. It is a justice system in which universal principles of law and justice are disregarded, subverted, perverted and mocked. It is a system where the poor, the marginalized, the audacious journalists, dissidents, opposition and civic society leaders are legally lynched despite the criticism and bootless cries of the international community. It is a system in which regime leaders, their families, friends and cronies are above the law and spell justice ‘JUST US’.
The Ethiopian judicial and justice sector has to deal with the legacy of 30 years of “JUST US” system driven by corruption and a legal system that has been politicized, compromised, merchandized and privatized.
Like it or not, the “elephant in the judicial living room” is CORRUPTION.
Corruption is a hot and controversial issue in Ethiopia today.
Everyone talks about corruption, and it has manifestly become a source of embarrassment and shame for many in the justice/judicial sector.
There is a great deal of public anger and frustration around corruption and anti-corruption policies not just among the elites but also ordinary Ethiopians.
There is skepticism and cynicism about corruption reform the general attitude appears to be, “We have seen all the big bang anti-corruption reforms and it has made no difference.”
PM Abiy expressed frustration when he told Parliament, “The time for justice sector reform is now. We have not been successful with our intervention until now.”
Best practices suggest corruption in state institutions, particularly in the judiciary, is decisive.
Corruption in the judiciary is a denial of justice.
The great African American slavery abolitionist Frederick Douglas said:
Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is in an organized conspiracy to oppress, rob, and degrade them, neither persons nor property will be safe.
Over the past decade, there have been many ;popular anti-corruption protests and uprising in many countries in the world to pressure government to take radical action.
Professor Alan Dershowitz observed, “Judges are the weakest link in our system of justice, and they are also the most protected.”
Unless the issue of corruption in the judiciary is addressed effectively and in a timely manner, all other reforms will be stillborn. That is the driving force in the fierce urgency of now to deal with judicial corruption as the Prime Minster has exhorted.
So, the million dollar question is whether the 2014-2018 strategic plan which focuses on “efficiency (speedy trials), effectiveness (quality trials), and accessibility (of courts to people using technology and other platforms)” is capable of effectively addressing the issue of structural corruption in the judicial sector.
The cumulative empirical evidence over the past three decades reveals that structural reforms do not consistently improve corrupt conduct, and they do not have a lasting effect. At best, they may reduce the opportunities for corruption but do not prevent motivated actors from seeking unethical advantages.
Does the 2014-2018 strategic plan pay enough attention to the issue of endemic corruption Prime Minister Abiy asserted as the core problem of the judiciary.
As they say, the devil is in the details.
There are elements in the strategic plan that are broadly aimed at dealing with corruption.
The fact is that corruption is not one of the declared core missions of the Plan.
The Plan mentions strengthening of control and oversight mechanisms within the judiciary.
The question is whether the judiciary by itself could effectively deal with corruption.
Best practices indicate control and oversight mechanisms should be broadened to include civil society and even lay persons in judicial appointments and judicial monitoring bodies for greater accountability, transparency and scrutiny.
Some countries have experimented with independent “Court Users Committees” to receive public complaints and provide feedback to the federal judicial administration on the effectiveness, efficiency and integrity of their work.
The Plan addresses issues of transparency and accountability in the judiciary. The question is whether that can adequately address the issue of corruption.
Best practices emphasize transparency and accountability begin with recruitment and appointments of judges and the standards used to select court officials based on merit in a transparent process. Use of political considerations in the appointment process, inadequate salaries and working conditions result in attracting the least qualified and more prone to corrupt practices.
The strategic plan addresses the issue of improving the education and training of judges to promote high standards of professionalism. The question is whether it provides sufficient opportunities to deal with corruption.
Best practices suggest specifically the need for training programs, peer-to-peer mentoring, etc. to handle ethical dilemmas which could result in corrupt practices.
The strategic plan addresses strengthening judicial accountability and discipline using internal disciplinary mechanisms to maximize and safeguard judicial integrity.
Best practices suggest, minimally, judges and other judicial officials should be required to 1) sign codes of conduct and conflict of interest policies, 2) complete asset/income declarations annually with a verification mechanism, 3) establish an independent body to investigate and report on allegations of judicial misconduct and 4) robust whistleblowing policies and effective complaints mechanisms should also be in place to ensure safe reporting of corruption and other misconduct.
The strategic plan aims to promoting transparency in the judiciary in a variety of ways including by requiring courts to improve access to information on how courts function as well as the progress of individual cases, using the courts need to have access to information on due process rights and the nature of their rights during and after court proceedings, easy access to court information.
The Court Users’ Survey results indicated high levels of user satisfaction in terms of access to information and operation of the federal courts but the question is whether this directly aids in the control of corruption.
Best practices indicate the media can play a critical role in enhancing judicial transparency by reporting freely and fairly on legal proceedings.
Legally trained journalists can play a critical role in investigating allegations of judicial corruption, uncovering corruption and focusing prosecutorial attention on corruption suspects in the judicial sector.
The strategic plan addresses budgeting processes within the judiciary.
The Chief Justice noted the “judiciary did not get the attention it needed, in terms of resources, human capacity, and others. It has been functioning under so many constraints.”
PM Abiy has said the judiciary is well-resourced and the budget for the judiciary has been transferred to Parliament.
In his recent appearance before Parliament, he said:
As you know, even in terms of budget, we have now taken the justice system out of the executive branch and transferred it to Parliament. It has received substantial support.
Best laid plans…
The 2014-2018 strategic Plan reviews lessons learned from 2003-07 and 2008-12 plans.
PM Abiy says corruption is so bad in the judicial sector and other public institutions that it threatens national security as much as inflation and war.
It is an understatement to say the image of the federal judiciary, public perception and confidence is at an all-time low following PM Abiy’s scorching criticism of judicial corruption.
The fact is despite the enormity and complexity of the problem, corruption in the Ethiopian judicial/justice sector can be dealt with effectively if is addressed as a national security threat to the viability of the Ethiopian nation and survival of the Ethiopian people, and all elements of society join hands to strike a blow against it.
Robert Burns penned the stanza:
“The best laid schemes of mice and men
Go often awry,
And leave us nothing but grief and pain,
For promised joy!”
The best laid plans often go awry because they are too ambitious, complex and with too many moving parts.
The cliché success breeds success is true.
It is best to build on small successes which will cumulatively result in big success.
That is especially true of the struggle against corruption.
The success of the justice/judicial reform is at the heart of Ethiopia’s homegrown reform agenda.
Its success will pivot as much on internal structural reforms as it does on high public confidence as well as affirmation of the institutional integrity of the the judicial branch by the coordinate executive and legislative branches.
TO BE CONTINUED…
Judicial Sector Reform in Ethiopia: The Five-Year (2014-2018) Strategic Plan (Part II)
Posted in Al Mariam's Commentaries By almariam On November 26, 2022Author’s Note: While this commentary stands on its own merits, the author strongly recommends reading Part I of the series to appreciate the enormous complexity and fierce urgency of judicial/justice sector reform in Ethiopia today.
Judicial/justice sector reform is an integral element of Ethiopia’s Homegrown Reform Agenda
Ethiopia has been undergoing massive reform over the past five years.
The reforms, which are guided by the principle “Ethiopian solutions to Ethiopia’s problems,” have focused on, among other things, creating accountable public institutions, democratization of the political process, institutionalization of the rule of law, and transformation of the economy from the so-called “developmental state”-led growth to private-sector led growth.
Ethiopia’s Homegrown Economic Reform Agenda is transitioning Ethiopia from an Asian Tiger wannabe to a proud, self-sufficient, self-feeding and self-reliant African lion.
The equivalent homegrown political reform agenda has produced a democratically elected government certified by the African Union.
Ethiopia’s homegrown foreign policy agenda has transformed regional peace in the Horn of Africa. The no peace, no war two-decade status quo between Ethiopia and Eritrea has been transformed into peace, amity and comity between the two countries.
Ethiopia has been a fulcrum and driver of peace in the Sudan as well as in South Sudan.
Ethiopia has leveraged its unique role in the Horn to improve relations between Eritrea and Djibouti.
As part of a broader regional peace initiative and engagement, Ethiopia has played a key role in restoration of diplomatic relations between Somalia and Kenya.
Ethiopia’s homegrown environmental and conservation agenda has resulted in a massive Green Legacy program and planting of billions of seedlings as of 2022.
Ethiopia’s homegrown tourism and quality of life enhancement agenda has transformed the capital Addis Ababa to live the true meaning of its name (Addis Ababa means New Flower).
The Sheger Park Project aims to transform Addis Ababa in to a greener, cleaner and attractive tourist friendly city with open spaces, walkways and bikeways.
Unity Park, Entoto Park, Friendship Park and Museum of Science and Technology are unique urban institutions and attractions that will not only revitalize Addis Ababa and enhance the general well-being of its residents but also attract tourists and potential investors.
Then there are the Gorgora, Wenchi and Koysha projects which will offer stunning eco-tourist destinations when completed in the foreseeable future.
Ethiopia’s homegrown reform agenda is a blueprint to transform Ethiopia from a low-income agrarian country to a lower-middle-income industrializing country by 2030.
The judicial sector reform currently underway is a critical element of Ethiopia’s Homegrown Reform Agenda.
The 2014-2018 Ethiopian Federal Judiciary Strategic Plan
In January 2022, the Ethiopian Federal Supreme Court issued its “Five-Year (2014-2018 [Ethiopian Calendar] Strategic Plan [‘Plan’]”
To be sure, it is a Plan limited to the federal judiciary and does not include the country’s justice sector which includes, among others, prosecutorial services, police and investigative services, the private bar, legal assistance providers and corrections.
The 161-page Plan is presented in 4 major sections with an executive summary, introduction and appendices.
The executive summary provides a brief retrospective on achievements from 2008 to 2012 and an overview of the 2014-2018 plan, the methodology for preparation of the Plan, a discussion of mission, vision and values and identifies key focal areas of reform, strategies to be used in the reform and implementation and follow-up monitoring mechanisms.
The introduction provides justification for the necessity of federal court improvement reform strategy, lessons learned from the 2008-2012 and 2003-2007 strategic Plans, an overview of the issues, problems, challenges and achievements, engagement of the judicial leadership at different levels with input from professionals and technical support personnel.
Section 1 (pp. 7-47) provides a comprehensive discussion of the structure, organization and operation of the federal courts and explains the applicable constitutional and statutory (proclamations) basis for the operation and functioning of the federal courts. It offers an update and analysis of the current state of the judiciary including, among others, federal judicial administration, new legislation aimed at improving the operation and functions of the judiciary, independence of the judiciary, transparency and accountability, access to judicial services and public confidence in the judiciary, budgeting, judicial appointment, training and accountability, appellate process and case management.
Section 2 (pp. 48-62) deals with mission, vision, principles, objectives and outcomes. The section sets impressively detailed strategic objectives and performance metrics. It does a SWOT analysis (Strengths, Weaknesses, Opportunities and Threats) in Gantt chart-like format. The analysis focuses on metrics dealing with 1) freedom and independence of the judiciary, noninterference in its operations by external actors, transparency and accountability, 2) judicial efficiency and quality, and 3) user access to justice. The metrics and strategic actions to be taken with respect to the three elements are detailed on pp. 66-73.
Section 3 discusses implementation of the strategic Plan throughout the judiciary and methods of implementation as it “cascades” through the federal judicial hierarchy to the lower levels. It sets parameters for strengthening the structure of the judiciary and leadership capacity, gathering and effective use of resources, and publicizing the strategic plan to create broad public awareness.
Section 4 deals with follow-up, analysis and reporting on implementation of the strategic plan. It examines ways of creating systems and processes for data collection, undertaking periodic reviews and generating reports.
The extraordinary execution and implementation plan is detailed on pp, 81-125 in Gantt chart-like format tracking activities for 2014 to 2018, setting baselines, identifying outcomes/targets by year and designated monitoring entity. A second Gantt chart-like presentation provides details on monitoring and analysis plan strategy outcome indicators baseline target data source monitoring body presentation of report are provided at pp. 127-160.
Summary observation on the strategic plan
Generally, all strategic plans follow similar approaches. First, they set out vision/mission statements that profess high goals and aspirations. Second, they set out a list of detailed initiatives that the organization will undertake to achieve the goals. Third, it discusses the budgetary requirements to achieve the goals. Fourth, it identifies oversight, monitoring and outcome evaluation processes of the strategic plan.
In terms of the narrative of the Plan, it is done consistent with established practices in strategic planning.
Public satisfaction survey and findings about the performance of the judiciary
Of special interest in the appraisal of the Plan is a “Court Users’ Satisfaction Survey Report” issued in March 2022.
The user survey was “commissioned” by Federal Supreme Court and conducted by the Feteh (Justice) Activity in Ethiopia which is “a USAID-funded project designed to assist the Government of Ethiopia in critical democratic reforms.”
In the survey 17 federal court district bench locations are included, 15 in Addis Ababa and 2 in Dire Dawa.
The study aims to “gather court users’ experiences and perceptions about the judiciary’s efficiency, transparency, access to justice, ethics and progress made in implementing reforms.”
The overall goal of the survey is to “provide the FSCE and other courts with actionable information to continue their reforms and further improve court services” and “serve as a baseline for future periodic assessments and a source of potential interventions.”
Among the key finding of the survey are the following:
Accessibility and Transparency – An “overwhelming majority of court users” found physical access to courts easy and “felt safe”. They expressed satisfaction in having an open and public hearing.
Ethical Behavior and Impartiality– An “overwhelming majority (91%) of users reported being treated equally” without regard to “ethnicity, religion, gender, economic status, and age had no effect on their cases.” Judges were reported to be “courteous, respectful and fair.”
Effectiveness, Efficiency and Predictability of Service Delivery – “The findings showed 78% of users reported that they had confidence in the courts’ operations.”
Performance during the Last Three Years– “Slim majorities of only one in two users reported that courts process cases more efficiently and provide better services nowadays than compared to three years ago.”
“With respect to corruption, however, slightly less than half of users (only 46%) agreed that courts were less corrupt now than they were three years ago.”
Accessibility and Transparency– Survey results showed 74 percent of users reported “facing no difficulty accessing information and getting related services such as legal aid and translation and interpreter services.”
Ethical Behavior and Impartiality– Similarly, 74 percent of users reported “receiving services without any issue of sincerity, loyalty, and integrity.”
Effectiveness, Efficiency and Predictability of Service Delivery – 71 percent of users reported the “courts performed effectively” by providing timely and efficient services and in helping with mediation and reconciliation.
Corruption: The elephant in the judicial living room
In her recent interview, Chief Justice Meaza Ashenafi explained the complexities and challenges of judicial sector reform:
PM Abiy Ahmed in his recent appearance before Parliament identified corruption as the critical and fundamental problem of the judiciary and underscored the fierce urgency of now to deal with it.
PM Abiy addressed the problem of corruption in the judiciary broadly: taking bribes, receiving gifts and personal favors, denial of due process, abuse of discretion, abuse of power and arbitrary treatment of criminal defendants, conspiring and bragging about bribes on social media, delaying cases to favor one side or another, special treatment for friends and relatives, lack of impartiality and diligence, not showing upon time, conflict of interest and ex parte communications, among others.
He stated in the strongest language possible that the culture of corruption in the judicial and justice sectors has undermined public confidence in those institutions. For all intents and purposes, it could be said that he called for a national war on corruption not only in justice institutions but also other institutions of government as well.
He declared:
Two days after his appearance in Parliament, PM Abiy announced the establishment of a 7-person national anti-corruption committee which includes the Attorney General and the head of the Ethiopian National Intelligence and Security Service.
The Feteh Users’ Survey concluded, “With respect to corruption, however, slightly less than half of users (only 46%) agreed that courts were less corrupt now than they were three years ago.”
It is true the corruption undermines confidence in government, and the legitimacy of government institutions in the eyes of citizens.
In my August 2013 commentary, “Corruption in the Ethiopian JUST US Sector,” I observed:
The Ethiopian judicial and justice sector has to deal with the legacy of 30 years of “JUST US” system driven by corruption and a legal system that has been politicized, compromised, merchandized and privatized.
Like it or not, the “elephant in the judicial living room” is CORRUPTION.
Corruption is a hot and controversial issue in Ethiopia today.
Everyone talks about corruption, and it has manifestly become a source of embarrassment and shame for many in the justice/judicial sector.
There is a great deal of public anger and frustration around corruption and anti-corruption policies not just among the elites but also ordinary Ethiopians.
There is skepticism and cynicism about corruption reform the general attitude appears to be, “We have seen all the big bang anti-corruption reforms and it has made no difference.”
PM Abiy expressed frustration when he told Parliament, “The time for justice sector reform is now. We have not been successful with our intervention until now.”
Best practices suggest corruption in state institutions, particularly in the judiciary, is decisive.
Corruption in the judiciary is a denial of justice.
The great African American slavery abolitionist Frederick Douglas said:
Over the past decade, there have been many ;popular anti-corruption protests and uprising in many countries in the world to pressure government to take radical action.
Professor Alan Dershowitz observed, “Judges are the weakest link in our system of justice, and they are also the most protected.”
Unless the issue of corruption in the judiciary is addressed effectively and in a timely manner, all other reforms will be stillborn. That is the driving force in the fierce urgency of now to deal with judicial corruption as the Prime Minster has exhorted.
So, the million dollar question is whether the 2014-2018 strategic plan which focuses on “efficiency (speedy trials), effectiveness (quality trials), and accessibility (of courts to people using technology and other platforms)” is capable of effectively addressing the issue of structural corruption in the judicial sector.
The cumulative empirical evidence over the past three decades reveals that structural reforms do not consistently improve corrupt conduct, and they do not have a lasting effect. At best, they may reduce the opportunities for corruption but do not prevent motivated actors from seeking unethical advantages.
Does the 2014-2018 strategic plan pay enough attention to the issue of endemic corruption Prime Minister Abiy asserted as the core problem of the judiciary.
As they say, the devil is in the details.
There are elements in the strategic plan that are broadly aimed at dealing with corruption.
The fact is that corruption is not one of the declared core missions of the Plan.
The Plan mentions strengthening of control and oversight mechanisms within the judiciary.
The question is whether the judiciary by itself could effectively deal with corruption.
Best practices indicate control and oversight mechanisms should be broadened to include civil society and even lay persons in judicial appointments and judicial monitoring bodies for greater accountability, transparency and scrutiny.
Some countries have experimented with independent “Court Users Committees” to receive public complaints and provide feedback to the federal judicial administration on the effectiveness, efficiency and integrity of their work.
The Plan addresses issues of transparency and accountability in the judiciary. The question is whether that can adequately address the issue of corruption.
Best practices emphasize transparency and accountability begin with recruitment and appointments of judges and the standards used to select court officials based on merit in a transparent process. Use of political considerations in the appointment process, inadequate salaries and working conditions result in attracting the least qualified and more prone to corrupt practices.
The strategic plan addresses the issue of improving the education and training of judges to promote high standards of professionalism. The question is whether it provides sufficient opportunities to deal with corruption.
Best practices suggest specifically the need for training programs, peer-to-peer mentoring, etc. to handle ethical dilemmas which could result in corrupt practices.
The strategic plan addresses strengthening judicial accountability and discipline using internal disciplinary mechanisms to maximize and safeguard judicial integrity.
Best practices suggest, minimally, judges and other judicial officials should be required to 1) sign codes of conduct and conflict of interest policies, 2) complete asset/income declarations annually with a verification mechanism, 3) establish an independent body to investigate and report on allegations of judicial misconduct and 4) robust whistleblowing policies and effective complaints mechanisms should also be in place to ensure safe reporting of corruption and other misconduct.
The strategic plan aims to promoting transparency in the judiciary in a variety of ways including by requiring courts to improve access to information on how courts function as well as the progress of individual cases, using the courts need to have access to information on due process rights and the nature of their rights during and after court proceedings, easy access to court information.
The Court Users’ Survey results indicated high levels of user satisfaction in terms of access to information and operation of the federal courts but the question is whether this directly aids in the control of corruption.
Best practices indicate the media can play a critical role in enhancing judicial transparency by reporting freely and fairly on legal proceedings.
Legally trained journalists can play a critical role in investigating allegations of judicial corruption, uncovering corruption and focusing prosecutorial attention on corruption suspects in the judicial sector.
The strategic plan addresses budgeting processes within the judiciary.
The Chief Justice noted the “judiciary did not get the attention it needed, in terms of resources, human capacity, and others. It has been functioning under so many constraints.”
PM Abiy has said the judiciary is well-resourced and the budget for the judiciary has been transferred to Parliament.
In his recent appearance before Parliament, he said:
Best laid plans…
The 2014-2018 strategic Plan reviews lessons learned from 2003-07 and 2008-12 plans.
PM Abiy says corruption is so bad in the judicial sector and other public institutions that it threatens national security as much as inflation and war.
It is an understatement to say the image of the federal judiciary, public perception and confidence is at an all-time low following PM Abiy’s scorching criticism of judicial corruption.
The fact is despite the enormity and complexity of the problem, corruption in the Ethiopian judicial/justice sector can be dealt with effectively if is addressed as a national security threat to the viability of the Ethiopian nation and survival of the Ethiopian people, and all elements of society join hands to strike a blow against it.
Robert Burns penned the stanza:
The best laid plans often go awry because they are too ambitious, complex and with too many moving parts.
The cliché success breeds success is true.
It is best to build on small successes which will cumulatively result in big success.
That is especially true of the struggle against corruption.
The success of the justice/judicial reform is at the heart of Ethiopia’s homegrown reform agenda.
Its success will pivot as much on internal structural reforms as it does on high public confidence as well as affirmation of the institutional integrity of the the judicial branch by the coordinate executive and legislative branches.
TO BE CONTINUED…
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