Authored By: Haftom Endrias Weldegergs
Aksum University
Abstract
This article examines the constitutional basis for the quasi-judicial functions of Administrative Authorities in Ethiopia and their compatibility with the Human rights law. It briefly highlights the existence or otherwise of a constitutional basis that authorizes administrative agencies to assume judicial powers, and the subsequent legislations that provide a legal basis for it, while criticizing their propriety. Moreover, the article analyzes the institutional practices and case laws employed in Ethiopia with respect to the quasi-judicial functions of the administrative agencies by stressing the significance that the quasi-judicial power of administrative agencies can have in the protection of human rights.
Introduction
Quasi-Judicial power of Administrative Agencies refers to the judicial activities exercised by the executive agencies of the state in addition to their inherent power of implementing the law. In Ethiopia, Administrative Agencies have been assuming quasi-judicial functions for years, although constitutional debates were forwarded by many scholars. Therefore, in this article, the quasi-judicial powers of administrative agencies in Ethiopia, constitutional debates thereon, and their importance from the human rights law perspective will be briefly discussed. In addition to that, the article comes to an end by examining the institutional practices and case laws relating to the topic, concluding the main points of the article, and proposing some recommendations thought to be useful for tightening the debates on the constitutional basis of the quasi-judicial power of administrative agencies, and promoting the protection of human rights.
Quasi-Judicial Powers under Ethiopian Law
As has been noted above, the existence of the judicial functions of the Ethiopian Executive Agencies is obvious. Recognizing the relevance of the sector-specific legislations, like the Tax law providing a legal basis to the judicial functions of the Administrative Agencies, the most central and comparatively comprehensive one is the Federal Administrative Procedure Proclamation No.1183/ 2020.[1] This proclamation provides the definition of administrative decision, initiation of administrative decision, principles to be adhered to in rendering administrative decision, and other procedural requirements that the administrative agencies must follow in their task of deciding administrative matters.[2] However, many federal and state-specific parliamentary legislations also provide the legal basis for exercising judicial functions by administrative authorities and the processes of administrative decision-making. Among these, the tax laws, labor laws, and the Federal as well as state civil service proclamations provide rules and procedures of administrative decision making to be followed by the Administrative Tribunals established by these legislations.[3]
Constitutionality Debate
Article 79 of the Constitution of the Federal Democratic Republic of Ethiopia clearly stipulates that judicial powers, both at the Federal and State levels, are vested in the regular courts.[4] As an extension to this assertion, we find a sentence that special or ad hoc courts which take judicial powers away from the regular courts and which do not follow legally prescribed procedures shall not be established, under article 78 of the constitution.[5] As may be known, the FDRE Constitution is the supreme law of the country to which any law, customary practice, or decision of an organ that contravenes it is rendered null and void.[6] Even though subordinate laws provide the legal framework for administrative decision making, it is clear that it is deviation from the constitutional provisions for an administrative organ to assume judicial functions, as the Constitution does not empower so.
Human Rights Law Perspective
When I turn to see the establishment as well as authorization of administrative organs with a quasi-judicial power from the perspective of human rights law, it can undeniably promote the protection of human rights. Because if administrative organs are allowed to assume judicial functions, court congestion will be reduced. This means people can get access to justice easily, and timely decisions will be given, since the load is distributed. Secondly, as the main aim of assuming judicial functions by the administrative agencies is providing specificity and expert-based decision making, inter alia, this has a lot to do with the right of people for effective remedies and fair procedure. What I mean is that administrative decision makers most of the time possess a special expertise on the subject matter of the dispute to be decided. Thus, having a special expertise on the issue can help in providing more effective remedies than the court can provide. All in all, there is no doubt that the quasi-judicial power of administrative authorities reinforces the right of peoples to get access to justice stipulated under article 37 of the FDRE Constitution and other international human rights law instruments.[7]
Case Law and Institutional Practice
The Ethiopian Human Rights Commission and the Institution of Ombudsman, executive organs accountable to the House of peoples’ Representatives, are established to ensure that government or administrative decisions and actions comply with the constitutionally recognized human rights, and investigate maladministration and rectify executive abuses, respectively. These Institutions provide procedures where individuals can lodge complaints, most of the time, with more liberal standing rules than ordinary courts. That is, they exercise quasi-judicial functions involving individuals, NGOs, and 3rd parties in examining administrative actions or decisions, whether they violate the constitutional rights.
Although it is difficult, if not impossible, to find published decisions of the Ethiopian Administrative Agencies with quasi-judicial power, administrative Tribunals like the Labour Relations Board exercise quasi-judicial functions on matters that fall within their competence, such as unfair dismissal, discrimination, and freedom of association, which might also potentially involve human rights claims.[8] Furthermore, many administrative agencies impose administrative penalties on persons alleged to have violated disciplinary rules, such as fines, closure, and license suspension, which have a direct and substantial effect on property rights, due process rights, and livelihood, demonstrating the human rights implications of exercising quasi-judicial functions of administrative organs.[9]
Conclusion
In Ethiopia, the Federal Administrative Procedure Proclamation and other sector-specific legislations provide the legal basis for the quasi-judicial power of administrative agencies. Though the constitutionality of the administrative decision-making or quasi-judicial power of administrative agencies is being impugned by scholarly debates, its existence is far more crucial in fostering the promotion and protection of the universally guaranteed human rights, such as the right of access to justice and effective remedies.
Recommendations
Recognizing the great importance that the quasi-judicial power of administrative agencies can bring about to the end states strive to achieve, creating a democratic society in which justice is timely and equally served to all without distinction, I came up with certain recommendations that would be of great value in achieving that end.
Articles 78 and 79 of the FDRE Constitution should be amended in such a way that recognize the indispensability of administrative decision-making for the protection of human rights and serving justice at all.
Along with the constitutional amendment, the parliament should come up with a comprehensive administrative proclamation that assembles the administrative law provisions found scattered here and there.
Reference(S):
FDRE Constitution, Proclamation No 1/1995, Federal Negarit Gazeta, Year 1, No 1.
Federal Administrative Procedure Proclamation No. 1183/2020, Federal Negarit Gazeta, Year 26, No 4.
Labour Proclamation No 1156/2019, Federal Negarit Gazeta,Year 25, No 65.
Federal Civil Servants Proclamation No 1064/2017, Federal Negarit Gazeta, Year 24, No 8.
Tax Administration Proclamation No 983/2016, Federal Negarit Gazeta, Year 22, No 104.
[1] Federal Administrative Procedure Proclamation No. 1183/2020, Federal Negarit Gazeta, Year 26, No 4.
[2] Ibid, arts 20-42.
[3] Labour Proclamation No 1156/2019, Federal Negarit Gazeta,Year 25, No 65, arts 145-156; Federal Civil Servants Proclamation No 1064/2017, Federal Negarit Gazeta, Year 24, No 8, arts 74-82; Tax Administration Proclamation No 983/2016, Federal Negarit Gazeta, Year 22, No 104, arts 86-92.
[4] FDRE Constitution, Proclamation No 1/1995, Federal Negarit Gazeta, Year 1, No 1, art 79(10).
[5] Ibid, art 78(4).
[6] Ibid, art 9(1).
[7] Ibid, art 37.
[8] Labour Proclamation No 1156/2019, Federal Negarit Gazeta,Year 25, No 65, arts 145-156.
[9] Ibid ; Federal Administrative Procedure Proclamation No. 1183/2020, Federal Negarit Gazeta, Year 26, No 4, arts 30-37; Federal Civil Servants Proclamation No 1064/2017, Federal Negarit Gazeta, Year 24, No 8, arts 68-72; Tax Administration Proclamation No 983/2016, Federal Negarit Gazeta, Year 22, No 104, arts 101-115.
