December 1st, 2008
By Professor Alemayehu G. Mariam
Lipstick and Fingernail Polish
In July, 2008, the Zenawi regime commissioned an official report on riot control entitled “Modernizing Internal Security in Ethiopia”1. That report, prepared by retired British Colonel Michael Dewars, made “recommendations designed to create a modern security force that will function effectively by using strategies designed to pre-empt civil unrest which threatens the security of the State of Ethiopia and its People.” Col. Dewars, arguably one of the foremost experts in the world on riot control, was supposed to paint a kinder and gentler face for the Zenawi regime, and artfully excuse its manifest failure to prosecute the police thugs who murdered and wounded thousands of innocent Ethiopians after the 2005 elections.
Last month, the National Judicial Institute (NJI) of Canada issued a 209-page report on the “Independence, Transparency and Accountability in the Judiciary of Ethiopia” under the auspices of the Canadian International Development Agency. [2] This report, like Dewar’s, is intended to humanize Zenawi’s justice system with a façade of academic respectability. Dewars sought to provide the riot police lipstick; now NJI aims to provide fingernail polish to the judicial system. But the police and the court system in a dictatorship are merely tools of repression and control, and the means for legitimizing political power. A dictatorship with a police force and a court system is still a dictatorship just as a pig with lipstick and fingernail polish is still a pig.
Window Dressing the Star Chamber
The first sentence of the introduction to NJI report states, “The Federal Democratic Republic of Ethiopia (Ethiopia) has been engaged in court reform activities for more than a decade, designed to make Ethiopian courts more independent, accessible, effective, efficient, transparent, and accountable.” The decade-long reforms have been impressive, according to NJI: “Most of the people we met pointed out that the judiciary is now considerably more independent, more transparent and more accountable than it was prior to 1991 under either the monarchy or the Military Regime. There is no question that this is so.” (Italics added.) The “people” NJI talked to include “5 federal and state government officials, 2 members of the legislature sitting on Judicial Administrative Councils, 50 Court Presidents and judges in federal and regional Supreme Courts, eight judicial trainees, six court staff, three prosecutors, 8 lawyers, legal consultants and law teachers and 5 non-governmental organization and 14 judges of the Harari region.” NJI made no effort to assess “public perceptions and attitudes toward the judiciary.”
The NJI report effusively heaps praise on the Zenawi regime for its monumental achievements in all aspects of Ethiopian society: “The economy has been enjoying a buoyant expansion in the last five years, with an average gross domestic product (GDP) growth rate of more than 10 per cent… The Ethiopian government has embarked on an ambitious program of reforms to encourage economic and social development and poverty reduction… 1991 marked a profound change in the country’s judicial structure brought about by the federalization of the state structure. A sharp increase in the number of courts, especially at the lower levels of administration (where they were not previously available), brought the courts closer to the people, both physically and in allowing the use of local language in courts. According to published national statistics there were 2,729 judges in Ethiopia’s federal and regional courts in 2007, excluding the sharia courts and the social courts.” And so on….
According to NJI, there was virtually no judicial system worthy of the name prior to Zenawi’s take-over of power in 1991: “The period up to the 1931 Constitution was a history of absolute monarchy where justice was administered at the whim and desire of the monarch without there being any uniform law on which to base the administration of justice. Even after it was formally established in the 1931 Constitution, the Ethiopian judiciary functioned under authoritarian regimes, the worst being the reign of terror of the Derg (1974 to 1991). The massive extra-judicial summary executions, disappearances and abuses under that regime destroyed hope for the rule of law and an independent judiciary. In 1974, the military government (Derg) took power and suspended the operation of the 1955 Constitution and key civil institutions. Countless special tribunals or courts were set up, usurping the powers of the judiciary. Judges were literally reduced to insignificance, dealing with petty and mundane matters of no interest to the junta… It has thus been impossible to have the culture of judicial independence develop until quite recently in Ethiopia.”
Hogwash or Whitewash?
It is difficult to characterize the NJI report as hogwash or whitewash. More likely, it is both. Anyone who has taken (wasted) the time to read this piece of intellectual apologia and chicanery in defense of a dictatorship will conclude that it is nothing more than an elaborate crock prepared to window dress Zenawi’s “Courts of Star Chamber” (a court system that was used by the Tudor and Stuart monarchs in England to suppress political opposition, dissenters, and “freethinkers” and punish “all offences [as] may be here examined and punished if the King will.”) The co-authors of the report, a Canadian judge, a lawyer and other researchers, seem to be totally oblivious of a very simple truth: THE ESSENCE OF JUDICIAL INDEPENDENCE IS THE RULE OF LAW. This simply means the supremacy of law over the arbitrary rule of men. In England, the rule of law is guaranteed in the Magna Carta. In 1215, King John was forced to be “bound by the law”, and his subjects secured the right to challenge arbitrary limitations on their liberties by the King and his men in a writ of habeas corpus (a legal process by which a person can challenge the circumstances of his imprisonment). In the United States, the U.S. Constitution is the supreme law of the land. Under the Fifth and Fourteenth Amendments to the U.S. Constitution, no person shall be deprived of life, liberty or property without due process of law; and anyone may challenge violations of his due process rights using a writ of habeas corpus in court. In Canada, the rule of law means neither the prime minister, the Queen, the Governor General, Parliament or any other body can act in violation of the Constitution Act of 1867, the laws of Parliament, a provincial legislature or the common law of England as adapted. The Canadian Charter of Rights and Freedoms guarantees due process of law: “Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice… Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” (Italics added.) In the seminal case of Beauregard v. Canada (1986), Chief Justice Brian Dickson of the Supreme Court of Canada provided one of the clearest elaborations on judicial independence: “The role of the courts as resolver of disputes, interpreter of the law and defender of the Constitution requires that they be completely separate in authority and function from all other participants in the justice system… the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them; no outsider – be it government, pressure group, individual or even another judge – should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision.”
Could it be said even casually that Zenawi’s authority is exercised in accordance with the Ethiopian “Constitution” or other written, publicly disclosed laws? Can it be said that there is such a thing as due process of law in Zenawi’s courts? Are there any constitutional or legal safeguards against dictatorial rule in Ethiopia? How often is the writ of habeas corpus ( Art. 19, sec. 4 of the Ethiopian “Constitution”) used in court to challenge the hundreds of thousands of illegal arrests and detentions in Ethiopia? The rule of law allows citizens to enjoy the freedoms provided in a constitution, and ultimately safeguarded by courts: Is there freedom of speech in Ethiopia? Is there a free press? Is there freedom of association or the right to petition for grievances? Is the Ethiopian judiciary the guardian of the Ethiopia “constitution”? Is it within Zenawi’s arbitrary powers to remove any judge from the bench if he so wills it? Could any court or judge in Ethiopia assert total independence from the political control of the regime? Could any judge hold accountable regime leaders for corruption, malfeasance or misconduct in office? Can anyone deny the pervasive use of “telephone law” (a common practice in which judges are told how to decided cases) by regime officials? Is it possible to imagine the exercise of judicial review by Ethiopian courts? Can anyone realistically imagine the judiciary can be made an independent institution in Ethiopia, free of the intimidation and influence of regime officials? Aren’t party hacks the backbone of the Ethiopian bench?
In its 2007 report, Human Rights Watch concluded:
In high-profile cases, courts show little independence or concern for defendants’ procedural rights. The two-month recess in the treason trial in August-September 2006, coupled with frequent shorter adjournments, ensured the defendants’ prolonged detention. The trial judges put off addressing defense objections to evidence and ignored claims of serious mistreatment by prison authorities. Although criminal courts in Ethiopia have some independence with respect to less prominent cases, the judiciary often acts only after unreasonably long delays, sometimes because of the courts’ workloads, more often because of excessive judicial deference to bad faith prosecution requests for time to search for evidence of a crime.
The fact of the matter is that Zenawi holds absolute power — unbounded by any law — and pretensions to the creation of an independent judiciary in the context of such dictatorial rule is not just window dressing, it is an act of gross mendacity. Zenawi does not want an independent judiciary. Zenawi can’t handle an independent judiciary. He wants absolute power and complete control. It is delusional for anyone to believe — and intellectually dishonest for the for the NJI to propagate the canard — that the independence of the judiciary in Ethiopia can be achieved through technical refinements to the judicial structure and training of judicial officers under the rule of a one-man dictatorship.
Dictatorship and Judicial Independence are Like Oil and Vinegar
Dictatorship and judicial independence are like oil and vinegar. They do not mix. As vinegar is mostly water, dictatorship is mostly about the rule of one man. As oils are “hydrophobic” (chemically repel water), truly independent courts are “tyranno-phobic”. They repel arbitrary and dictatorial rule. For the two liquids that repel each other to remain in a stable configuration, the lighter of the two liquids must float to the surface and stay there in a unified mass. Oil is lighter than vinegar and therefore ends up on top in a unified mass. Dictatorship is heavier than the rule of law, and the courts must necessarily remain in a state of suspended animation under the relentless gravitational pull of a dictatorship.
Judicial Independence Pakistan Style (The Pinstripe Revolution)
There is an interesting lesson to be learned from the Pakistani “Pinstripe Revolution”, a four-month long lawyers’ movement in 2007 that came to symbolize the titanic and decades-old struggle between the rule of law and military rule in Pakistan. In 2007, General Pervez Musharaff, much like his predecessor junta leaders that dominated Pakistan’s history, declared an emergency and suspended the Constitution in a brazen attempt to subordinate the judiciary to his military dictatorship and maintain himself in power both as an army chief of staff and civilian president. Musharaff began the assault on the judiciary by literally removing from the bench Pakistan’s Chief Justice, Iftikhar Mohammed Chaudhry, on allegations of abuse of office. Chaudhry, well-known for his fearless judicial style particularly in human rights abuse cases, had expressed the view disapproving the amalgamation of military and civilian power in one person. Musharaff put Chaudhry under house arrest and installed one of his lackeys as an acting chief justice to implement his plans. He also ordered judges in the upper echelons of the bench to take a new oath under the emergency provisional constitutional order, which the Supreme Court later nullified. Musharaff also ordered the arrest and detention of the president of the Pakistan Supreme Court Bar Association and other leading lawyers of that bar. These flagrant actions had a chilling effect on the Pakistani bar and bench. Pakistani lawyers understood the grave threat posed to the independence of the judiciary by Musharaff’s actions. Thousands of black-suited lawyers and activist mounted mass protests throughout the country and galvanized civil society in defense of the independence of the judiciary, garnering support from lawyers all over the world. After four months, Musharaff threw in the towel, and the Pakistani lawyers emerged victorious. The full Supreme Court bench was reinstated. In the end, the rule of law won the day in Pakistan and the independence of the judiciary was defended by the men in black and pin-striped suits.
H.R. 2003 Is Vital for Judicial Independence in Ethiopia
We must all support H.R. 2003 because it provides robust mechanisms to ensure the growth and full development of an independent judiciary in Ethiopia. (See e.g. H.R. 2003, Sec. 2 (1); Sec. 3 (3), (4); Sec. 4 (2) (A); Sec. 5 (3) (c)). Specifically, H.R. 2003 provides support for a “judicial monitoring process, consisting of local and international groups, with special focus on unwarranted government intervention on strictly judicial matters, and to investigate and report on actions to strengthen an independent judiciary.” By having such a monitoring process, it is possible to restore confidence in the judiciary and insulate it from political influence and interference. Unlike the voluminous catalogue of meaningless NJI recommendations, H.R. 2003 provisions relating to judicial independence require a credible and demonstrable commitment by the regime to respect the rule of law.
Rex Non Potest Peccare (The King Can Do No Wrong)
In English common law, there is the maxim which declares, “The King can do no wrong.” It was King Charles II who proclaimed that the King rules by divine right and therefore can do no wrong. There is an equivalent Amharic maxim, “Negus eye-keses, se-my eye-tares (One can not sue or charge a king or plough the sky.”) The constitutional idea behind the maxim was to provide sovereign immunity while ensuring no official wrongdoing would go unchallenged in a court of law. Charles II, however, took it literally. He believed there could be no redress for royal abuses. The King could not be sued in civil court, neither can he be charged in a criminal indictment. The King can not be held accountable for his official acts or omissions. There can be no claims for damages against the King, nor does an injunction lie as an equitable remedy against him. The King can do no wrong because the King is above the law. The King is the Law. When the King is the law, there is no need for the rule of law. No need for a constitution. No need for courts and judges and lawyers. As the eminent Paksitani jurist Fakhruddin G. Ebrahim said, “If the constitution is the soul of a nation, then the judiciary is its heart. Our nation is without a heart and a soul just now.” So it is in Ethiopia, just now! “There is no question that this is so.”
[1] http://www.ethiomedia.com/accent/modernizing_internal_security_in_ethiopia.pdf
[2] NIJ Ethiopia Judiciary Assessment
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