Re-Examining Access to Justice and Fair Procedures in Ethiopia in Light of International Human Rights Law

Abstract

This article examines the right of access to justice and fair procedures in Ethiopia in general and the conceptual and normative frameworks of access to justice and due process, the international and national human rights law standards related thereto, and critical analysis of the Ethiopian practice in particular with respect to these human rights as procedural as well as substantive guarantees. It further highlights the what ness of access to justice and fair procedures, the potential scenarios which are of great implication on the enjoyment of these rights such as the availability of courts and the independence of the judiciary. Additionally, it thoroughly examines Ethiopia’s degree of compliance with the international human rights standards on the practical application and enjoyment of the rights of access to justice and fair procedures in the ground, and the importance as well as prospects that can be followed from adhering to these human rights law standards and principles.

Introduction

Given the area affected by frequent wars and instabilities, fostering access to justice and devising fair procedures is a critical issue in Ethiopia. Over the years millions of Ethiopians have been denied access to justice and subject to unfair procedures due to some structural, procedural, and institutional challenges which have been prevailing in the country. Although the existence of robust international, reginal, and national legal frameworks, Ethiopian justice institutions were acting, if not completely, contrary to these standards in discharging their duty to deliver justice. In this legal article, the international and national legal frameworks that govern access to justice and fair procedures will be examined along with the Ethiopian practical adherence to these standards on access to justice and fair procedures. Having analyzed the practical gaps between the legal frameworks and the Ethiopian practice, the article will wind up by setting up conclusions and some would be practicable recommendations that facilitate Ethiopia’s compliance to the international and national standards on access to justice and fair procedures.

Conceptual and Normative Framework

Concept of Access to justice

Access to justice is a right that constitutes both substantive right and procedural guarantee due to which any one can have his legal rights and claims enforced by bringing his claims to the attention of the court of law or another competent authority authorized by the law to decide on individuals’ interests. Access to justice is available to every person without discrimination based on sex, religion, and background. Thus, everyone is not just entitled to get legal remedies and fair outcomes, but also to get legal aid overcoming financial barriers to justice and awareness to realize equality and dignified human existence. It’s a core rule of law principle ensuring people can access remedies, prevent problems from escalating, and participate fully in society. Availability of courts, awareness and knowledge, affordable help, accessible as well as effective systems, time lines, accountability can be mentioned as the key components of access to justice. That means, people need to know what their rights are, and they should be provided with pro bono services and effective representations to defend their interest well.

Fair Procedures/Due Process

Due process or Fair procedure is a procedural guarantee given to everyone and ensures the way governments and government officials treat individuals by prescribing certain principles and established non arbitrary rules in the governments’ action of depriving life, liberty or property of the subjects. It guarantees rights like notice, unbiased tribunals, opportunities to present evidence, and cross-examine witnesses, ensuring legal proceedings are just, transparent, and lead to accurate outcomes rooted in principles from the Magna Carta. Notice, hearing, impartial tribunal, right to present evidence, right to cross examine, representation, and decision based on evidence constitute the central components of due process. This is essential to safeguard rights, ensure fairness, prevent abuse, and promote truth.

International Human Rights Law Standards

International human rights law establishes comprehensive and widely applicable legal standards and frameworks for access to justice and due process, putting on as many obligations on state governments. States’ duty to promote, respect, and fulfill human rights is defined under many international human rights standards like the Universal Declaration of Human Rights (UDHR) and , specifically the legally binding International Covenant on Civil and Political Rights (ICCPR). Under these standards States assume obligations to respect, protect, and fulfill human rights, which involve:

Provide Effective Remedy: states must ensure that victims have got an effective and enforceable remedy to their satisfaction.

Protection: States must protect private individuals from third party abuses and external violations.

Ensure Enforceability: The competent authorities must not be reluctant in enforcing awarded remedies.

Take Positive Action: States must not only refrain from interference in the enjoyment of the right of access to justice, but also they have to provide them with comprehensive necessities to ensure access to justice and due process, like pro bono service and state funded representation.

Refrain from Interference: State governments and authorities must not obstruct and challenge peoples’ access to justice and effective remedies.

Moreover, these standards include the principles of equality before the law and courts, the right to an effective remedy, and the right to a fair and public hearing by a competent, independent, and impartial tribunal. These principles are enshrined in various articles of international human rights instruments, such as UDHR Articles 7, 8, and 10, and ICCPR Articles 2(3), 14(1), and 26. What is more, ICCPR Article 14(3) outlines several minimum guarantees for individuals facing criminal charges. These include the right to be promptly informed of charges in a language they understand, adequate time and facilities to prepare a defense and communicate with counsel, and the right to a trial without undue delay. Individuals are entitled to be present at their trial, defend themselves personally or through legal assistance, which should be provided if they are indigent and justice requires it, examine witnesses against them, and obtain the examination of witnesses on their behalf. They also have the right to free assistance from an interpreter if needed and the privilege against self-incrimination. Additional guarantees under the ICCPR include the presumption of innocence (Article 14(2)), the right to appeal (Article 14(5)), compensation for wrongful conviction (Article 14(6)), and the prohibition of double jeopardy (Article 14(7)).

Ethiopian Legal Framework

The Federal Democratic Republic of Ethiopia constitution provides that any one has the right to bring a justiciable matter to, and obtain a decision or judgement by, a court of law or any other competent body with judicial power. This emphasizes that any one has the right of access to justice without having any reference to sex, age, race, religion, and any other ground of difference. In addition to this, the FDRE constitution further stipulates that persons arrested have the right to be informed promptly, in a language they understand, the reasons of their arrest and of any charge against them, right to remain silent, right to be informed that any statement they make may be used as evidence against them in court, right to be brought before court within 24 hours of their arrest, and the right to be released on bail. The constitution also goes on to say that all international agreements ratified by Ethiopia are an integral part of the law of the land.This implies that all international agreements ratified by Ethiopia have the same status with the domestic laws regarding their application and binding nature.
Procedures of arrests, seizure, police investigations, prosecution, trials and appeals, and the substantive and procedural rights that the accused can have during the course of these all stages are also expressly provided under the criminal procedure code of Ethiopia proclamation number 165/1961. On the other hand, the procedures for civil litigation such as filing of a suit, hearing, presenting defense and evidence, execution of judgements, and the processes of appeals are regulated under the governing procedural law, Ethiopian civil procedure code. This guarantees the rights of litigants to a fair hearing, impartial and independent tribunal, transparency, and speedy and expeditious disposition of cases by regulating court procedures.
Besides, several parliamentary legislations such as the Proclamation No. 1234/2021 which establishes the jurisdiction and structure of the federal court system provide a legislative framework for court autonomy in management and administration. This can play a role in fostering people’s access to justice by limiting executive and political influences on the judiciary.

To sum up this part, access to justice is a constitutional right in Ethiopia, guaranteed under Article 37(1) of the FDRE Constitution. Article 20(5) of the Constitution guarantees accused persons the right to state-funded legal representation if they cannot afford it and if a miscarriage of justice would otherwise result. Pro Bono Obligations are also stipulated by some legislations of the country. The Federal Court Advocate’s License and Registration Proclamation imposes a mandatory obligation on practicing lawyers to provide a certain number of hours (e.g., 50 hours annually) of pro bono legal aid to the poor.

Critical Analysis: Law and Practice Gap

Ethiopian courts are not as such easily accessible to all due to costs and geographical limitations. Many victims and justice seekers have faced a lot of barriers to enforce their right in the courts of law. Among these, some face financial constraints to afford court fees, lawyers’ fee, and other related costs. And others face geographical barriers to access these courts timely which there by expose them to unnecessary transportation and related costs. A court of first instance embraces unreasonably high number of population coming from both the remote rural and urban areas to be served which is practically far more unbearable and inevitably leads to court congestion and workloads. This congestion make people lose their confidence on courts and opt to take the law in their hands since it is unlikely to their belief that the court will enforce their rights and interests. In addition to that, delays and procedural inefficiencies are obvious. A single case simply takes at least 5 or 6 months period. Procedures are also not in accordance with what our procedural laws prescribe. For instance, the law says an arrested person has the right to remain silent and to be informed that the statements he may make may be used as evidence against him in court. But the practice is that, let alone the police tell the arrested of his rights, he forces him to confess or admit the facts alleged against him by his adversary, even to the extent of inhumane flogging if he is not willing to confess. Moreover, the law clearly stipulates that a police officer has to inform the person who is going to be arrested as to who is, what is of required from him, and bring him to the court within 24 hours of his arrest . But the prevailing habit of police officers in Ethiopia is that when an arrest is to be conducted, the police simply go to the person needed and hit him with a stick arbitrarily and then detain him in a closed house for a time period he wishes. As to indigent persons, our laws allow to sue as a pauper or to have a representative or lawyer financed by the state. Unfortunately however, when these kinds of persons come requiring these kinds of services to the courts and relevant authorities, what the authorities and registrars ask them first, among other things, is that to produce proof that discloses such status. Then when they go to the relevant authority to bring that proof, they encounter with unnecessary costs and procedural difficulties which make them to finally give up and waive their rights guaranteed under the law. The same procedural difficulties have also been experiencing by the persons who require NGOS or universities funded legal aid service. Beyond this, vulnerable groups such as women and children are treated alike with others in granting the mentioned services, in trial proceedings, and even in detention and prison centers. To be specific, criminal cases involving children as a party are required to be seen in chamber or in camera by the criminal procedure code. And juvenile offenders must be kept separately from the other criminals in prison or detention centers. But the Ethiopian courts have been seeing deviating from these rules which is clearly against the long standing rules of international and national laws applicable there to. Women especially pregnant women also faced the same situations.When I turn to the independence of courts sought by the constitution and subordinate legislations, which has a bearing on the access to justice and due process, some inconsistencies exist. The judiciary is required to have its own sufficient budget and administer its internal affairs by the law. But due to the practical insufficiency of judges’ remuneration and benefits, they were seeing to undermine the justice system to pursue their financial interest which in effect resulted in loss of the public’s trust in the courts and there by strongly affect the peoples’ access to justice and seeking judicial remedies.

Ethiopia’s Compliance with International standards

Ethiopia’s compliance with international human rights standards on access to justice and fair procedures can be seen in two respects. Firstly, Ethiopia’s incorporation of the fundamental principles of the international law on access to justice in to the constitution and other parliamentary acts is commendable. Nevertheless, Ethiopian justice institutions and actors failed to comply with these standards many times in many respects as discussed above. But this is not to mean absolute incompliance. On the other hand the most principles of fair procedures or due process enshrined in the international standards are also made integral part of the land under the FDRE constitution and other subsequent legislations. As said before, the problem is not on the availability of legal frameworks, but on the practical application in the ground. Which means it is safe to say that Ethiopia is almost not complying with the well-established fair procedures guaranteed under the international human rights law to all people without any kind of discrimination.

Therefore, given my finding Ethiopia’s partial and complete incompliance with the international human rights law on the right of access to justice and fair procedures respectively, I conclude by emphasizing the huge importance of Ethiopia’s compliance with the international human rights law standards to realize and sustain justice beyond words, enhance and foster democracy, advance wellbeing of the citizens, and finally grow economically.

Recommendations

Having carefully studied and critically examined the international and national legal standards on access to justice and fair procedures, and Ethiopia’s practical compliance with these international human rights standards as well as their implication on sustaining justice and overall growth of the country, I came up with certain recommendations that I thought to fix the existing problem, as will be following:

The government should manage to recruit educated persons, who possess at least some intellectual knowledge on the ever changing world, to the sensitive posts such as police offices which helps to avoid blind performance of duties by the persons employed in these offices.

Ethiopia should work on bringing a comprehensive reform on its justice institutions by providing periodical training to the employees of the justice institutions and public officials to build their awareness on the people’s right of access to justice and due process, and to keep them updated with the recent procedural developments that the country introduce to align with international human rights law standards, inter alia.

Independent Institutions should be established to specifically follow up the people’s enjoyment of the right of access to justice and due process even if it might be cost ineffective, as nothing can outweigh this concern.

Reference(S):

Laws

The Constitution of the Federal Democratic Republic of Ethiopia, Proclamation No.1/1995, Federal Negarit Gazeta, No 1, Addis Ababa 21, 1995.

Civil Procedure Code of Ethiopia, 1960, Proc. No. 165/1960.

Ethiopian Criminal Procedure Code Proc. No.185/1961.

Federal Advocacy Service Licensing and Administration Proclamation No.1249/2021.

Federal Courts Proclamation No.1234/2021.

Treaties and other International Instruments

International Covenant on Civil and Political Rights, adopted 16 December 1966, entered in to force 23 March 1976, 999 UNTS 171.

UN General Assembly, ‘Universal Declaration of Human Rights’ UN DOC A/RES/3/217A,10 December 1948.

African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered in to force 21 October 1986, 1520 UNTS 217.

UN office of the High Commissioner for Human Rights, Access to Justice for Victims of Human Rights Violations, United Nations, 2014.

Human Rights Committee, General Comment No 32: Article 14, Right to Equality before Courts and Tribunals and to a Fair Trial, 2007 UN DOC CCPR/C/C/GC/32.