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‘Justice System Reform Programme’ in Ethiopia: Is Rule of Law Lost in Translation?

Document Cited authorities 6 Cited in Related
Vincent
AuthorHenok G. Gabisa
Pages291-313
Published date01 June 2015
Date01 June 2015
DOI10.3366/ajicl.2015.0122
INTRODUCTION

The post-Colonial period marked a new paradigm of triangular discourse among law, justice and development in the international playing field between global north and south.1

B. Z. Tamanaha, On the Rule of Law: History, Politics, Theory, Cambridge University Press (2004); P. Bergling, Rule of Law on the International Agenda, Intersentia (2006); C. Trenkov-Wermuth, United Nations Justice: Legal and Judicial Reform in Governance Operations, United Nations University Press (2010).

Foreign Direct Investment (FDI), aid and development assistance are considered as the fundamental vehicles used to transport these international operations. The assumption is that strong legal and judicial institutions, and effective rule of law, including respect for property rights and access to justice, are important cornerstones of sustainable economic and social development.2

See R. H. Coase, The Firm, the Market and the Law, University of Chicago Press(1988) and D. C. North, Institutions, Institutional Change and Economic Performance, Cambridge University Press (1990). Nobel Laureates Ronald Coase and Douglass North have stressed the important role that legal norms and institutions play in the functioning of markets. Douglas North defines institutions as the formal and informal rules governing human interactions: ‘Institutions are the rules of the game in a society or, more formally, are the humanly devised constraints that shape human interaction. That institutions affect the performance of economies is hardly controversial. That the differential performance of economies over time is fundamentally influenced by the way institutions evolve is also not controversial’. Robert Zoellick , the 11th president of the World Bank echoed a similar understanding in November 2010.

 In fact, the recent couple of decades have seen international practitioners and legal theorists considering effective rule of law as the fundamental prerequisite for sustainable development and as a solution to the world's troubles.3

T. Carothers, The Rule of Law Revival, (1998); M. J. Trebilcock and R. J. Daniels, Rule of Law Reform and Development: Chartering the Fragile Path of Process, 1–3 (2008).

The conceptual peregrination of law and economics in the context of developing countries is a quite interesting dynamic in that it carries a visceral understanding towards the newly emerging interdisciplinary concepts of law and development. The complex nexus between rule of law and economic development, despite the cloudy and problematic nature that presents itself in the cause and effect relationship of both concepts, is embedded in the rationale that ensuring the rule of law at the national level enables the international investment activities flow safely and securely.4

D. Reiling, L. Hammergren and A. Di Giovanni, Justice Sector Assessments: A Handbook, World Bank Legal Vice Presidency (2007).

Any effort focusing on the fostering of rule of law contains in itself a main goal of articulating the empowerment of local citizens so that they would directly benefit from the ultimate efforts of improving the effective and efficient functioning of justice systems of the country,5

World Bank, Legal Department, The World Bank and Legal Technical Assistance: Initial Lessons, Policy, Research Working Paper No. 1414, Doc. No. WPS1414, 1995, p.1.

 and instantaneously being an instrument of poverty alleviation in poor countries.6

See, for example, D. North, Institutions, Institutional Change, and Economic Performance, 54 (1990); D. Rodrik, A. Subramanian and F.ancesco Trebbi, Institutions Rule: The Primacy of Institutions Over Geography and Integration in Economic Development’, 9(2) Journal of Economic Growth (JEG): 131–65 (2004); R. Messick (WB PREM), ‘Judicial Reform and Economic Development: A Survey of the Issues’, 14 World Bank Research Observer, no. 1 (1999): 124–6. Though the precise channels of causation are complex and contested, there is broad consensus that an equitable, well-functioning justice system is an important factor in fostering development and reducing poverty. Although the specifics of causality are unclear, history and comparative analysis support the view that a better judicial system fosters economic growth.

A country's justice system shapes whether citizens have recourse from breaches in policy or failures in service delivery, whether corruption and other crimes are punished, and whether the power of the executive has limits.7

R. Zoellick, ‘Fragile States: Securing Development’, speech to Institute for Strategic Studies, 12 September 2008, available at http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:21898896∼pagePK:34370∼piPK:42770∼theSitePK:4607,00.html

Since recent decades, along with other bilateral development cooperation venues, it appears that the World Bank had institutionally been pioneering the policy and programmes of justice system reforms in the developing south under its poverty alleviation strategy.8

Ibid.

As a result, justice sector reform and rule of law initiatives in developing countries became juggernaut agenda and a defining role in the interdisciplinary discourse of law and development. Over the last four decades, donor-driven justice reform efforts have largely followed two parallel paradigms: one primarily concerned with promoting development and economic growth, the other centred on state-building and the consolidation of peace in countries emerging from violent conflict.9

Ibid.

A justice system reform programme as a global justice initiative is by all accounts an opportunity for poor countries to bring a positive change with respect to their poor system of handling human rights. However, it is not too difficult to understand that the achievement of a reform demands an existence of a genuine and laborious or perceptible political effort from the government so as not to be lost in translation. Fundamentally, a reform in the justice sector is required to strengthen the democratic and political culture and extend civil rights.10

J. M. Maravall and A. Prezeworski (eds), Democracy and the Rule of Law, Cambridge University Press (2003); German Foundation for International Development, ‘Rule of Law, Legal Certainty and Judicial Reforms in Latin America’, Report of Findings and Recommendations from the International Round Table Held in Berlin 28 November–- December 1995.

The origin of the fear is that despite instrumental and intrinsic importance of the rule of law to development, and despite the fact that donors have invested millions and billions of dollars in the rule of law reform initiatives in many developing countries, rule of law deficiencies in those same countries are both persistent and serious.11

Trebilcock and Daniels, supra note 2, p. 37.

Relying on multilateral and bilateral financial supports and donations, since early 2000, the Ethiopian government had been attempting, albeit in a piecemeal mode and rhetorically decorated manner, to engage in the improvement of justice system reform with technical and financial support from overseas. Locally known as ‘Comprehensive Justice Sector Reform Programme’, that is, ‘joined-up justice’, the initiative contains major components ranging from court administration or judicial training and a law-executing organ capacity building to legislative capacity building and legal education upgrading.

Quite contrary to the logic behind the essence of any reform initiative, which actually meant to materialise the improvements or enhancement of the justice institutions and systems thereof, the Ethiopian version of justice system reform programme found itself in an adverse or a self-defeating end. Respect for basic freedoms, liberties, and international standards of human rights have never been in reality in the book of contemporary political and justice discourse of Ethiopia. Despite the increasing rhetoric and shibboleth of rule of law and justice reform by the political elites in the country, the situation on the ground represents that the notions of access to justice and constitutionalism appears to have dwindled and deteriorated over time. For example, with the legal ban on the advocacy services and civil society participation since 2009 (Charities and Societies Proclamation No. 621/2009) and the lack of judicial independence owing to the continuing dominance by the executive organ, many agree that Ethiopia continues to take a wrong path.

This paper seeks to scrutinise and dig deeply into the implementation standard of the Ethiopian version of justice system reform programmes, both its basic theories and modus operandi. It does this by unfolding the critical interface between the intrinsic and philosophical values of ‘justice reform’ and its Ethiopian version. The author argues that the version of justice system reform programme used by the Ethiopian government is a mere façade or a political masquerade that the regime puts in place to shirk its international responsibility to ensure access to justice and realise equal treatment of all of its citizens. By diverting away from a real value of justice reform, ironically, the government of Ethiopia has been observed to have hidden itself under the rhetoric of the reform while engaging in practices and policies that continually breach the rules of justice and constitutionalism.

The author approaches the problem by reviewing the global movements and philosophical underpinnings of justice and rule of law reform initiatives, and then comparing this with the reality in Ethiopia. Basic tenets and the structural blocks of a successful justice and rule of law reforms will be examined with the goal of better understanding how and why the Ethiopian version of reform activities is unsatisfactory. By investigating the theoretical and practical status of the independence of the judiciary, the access to justice, and the status of legislative competency, and scrutinising some of the newly made laws and statutes and human rights...

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