CESSATION OF ADMINISTRATION OF JUSTICE IN ETHIOPIA
Special Report No. 2/1996
April 9, 1996

Both the Universal Declaration of Human Rights(Article 8) and the International Covenant on Civil and Political Rights (sub-art. 3 of Article 2) provide that everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by other laws. It is also enshrined in Article 37(1) of the Constitution of the Federal Democratic Republic of Ethiopia (FDRE) that Every person has the right to bring justifiable disputes to, and to obtain a decision or judgement by, a court of law or where appropriate by another body with judicial power.

However, this right has not been respected for the residents of Addis Ababa and Dire Dawa and for those persons who have cases before those courts which were established in the two cities. Those individuals who have filed suits or lodged appeals before the Central Courts have also faced similar problems. This is because the Central and Regional Courts which were established in these two cities have been restricted from conducting their major functions. The reason given for this is that these courts and the judges assigned to them have been denied their legal status as they were established and appointed by the previous administration prior to the ratification of the Constitution.

This situation was created because the Government did not establish the Federal Courts and appoint judges, despite the fact that 16 months have lapsed since the adoption of the new Constitution. The Government has not also issued the relevant laws dealing with the Administration of Addis Ababa and Dire Dawa. Article 49 of the Constitution provides that Addis Ababa shall be the Capital city of the Federal Democratic Republic of Ethiopia. It also states that the residents of Addis Ababa shall have a full measure of self-government and laws shall be enacted to that end. However, despite the time lapse of 16 months, the Government has not issued the law in accordance with which Addis Ababa and Dire Dawa shall be governed. Although it is stated in Article 78 of the Constitution that an independent judiciary is established and supreme federal judicial authority is vested in the Federal Supreme Court, the Federal Courts have not been established and the judges have not been appointed up to now. It was only a month ago that the Government appointed the President and the Vice President of the Federal Supreme Court. The President is the same person who had been serving as President of the Central Supreme Court during the transitional period.

Article 78(2) of the Constitution provides that The Council of Peoples' Representatives may, by a two-third majority vote, establish nationally or in some regions of the country such federal high and first-instance courts it deems necessary. And, unless and until such lower federal courts are established, federal high and first-instance judicial powers are delegated to the State courts.

Article 81 of the constitution which deals with the selection and appointment of judges provides: (1)The Council of Peoples' Representatives shall, on submission of nominees by the Prime Minister, appoint the President and the Vice President of the Federal Supreme Court.
(2)The Council of Peoples' Representatives shall appoint all Federal Supreme Court judges whose nominations shall be submitted to it by the Prime Minister on the basis of selections made by the Federal Commission for Judicial Administration.
(3) State Councils shall appoint State Supreme Court President and Vice President on the basis of nominations submitted to them by State heads of the executive branch of government.
(4) State Councils shall also appoint State Supreme and High Court judges on the basis of nominations submitted to them by State commissions of judicial administration. ...
(5) State Councils shall appoint all first-instance State judges on the basis of nominations submitted to them by State commissions of judicial administration.

This article does not say anything about the selection and appointment of the Federal High and First Instance Court judges.

The members of the Federal Government are the 9 States stated in Article 47 of the Constitution. Addis Ababa and Dire Dawa are not States. Since these two cities are not included in any of the States, the provision of Article 78(2), which states that federal high and first-instance judicial powers are delegated to the State courts, cannot be implemented in these two cities. The only way out is to implement the alternative provision of this same Article which says: The Council of Peoples' Representatives may, by a two-third majority vote, establish nationally or in some regions of the country such federal high and first-instance courts it deems necessary.
Even if the Constitution does not have a provision for the selection and appointment of the Federal High and First Instance Courts, it is possible to interpret Article 78(2) very broadly and solve the problem. If the Council of People's Representatives can establish these courts, it should also be able to appoint the judges for these courts since it is obvious that a court cannot be established without judges.
Alternatively, it is also possible to issue a separate legislation and appoint the judges. However, until this is done, the judges who were appointed by the Transitional Government must continue to discharge their functions.
Since the current judges have not been appointed in accordance with the Constitution, they may not have confidence in the legality of their authority. Due to such an attitude, already much of their time has been devoted to giving adjournments rather than hearing arguments and deciding cases. This could have been avoided by assuring them of the legality of their status until the new appointments are made in accordance with the Constitution.
It is true that the Federal Democratic Republic of Ethiopia has been established as of August 21, 1995 (see Art. 2 of Proclamation No. 2/1995). Despite this, the judges who were appointed by the Transitional Government and by Region 14 Administration have been carrying out their functions until the beginning of March 1996. What they have done up to now cannot be set aside or annulled. If so, we do not see any reason why they should not continue to perform their regular function. Until the new appointments of Federal Court judges, the restrictions become illogical when we consider the fact that these same judges are performing certain judicial functions. They can give a remand order, consider bail applications, give injunction order and make adjournments. Hearings are now being adjourned for the next year. For instance, on March 29, 1996 the case of EHRCO vs. the Commercial Bank of Ethiopia was adjourned for October 5, 1996. If the judges can issue a warrant of arrest and search or remand a prisoner, or consider bail applications and give injunction orders, or adjourn hearings, why should they be barred from considering cases and giving decisions? Why should they be prevented from ordering judgement debtors from fulfilling their obligations in accordance with the judgement? We know that the judges who are trying the Derg officials have continued their hearing in spite of the fact that they have not been confirmed in accordance with the new Constitution. Is there any problem with regard to cases of other citizens? Does not this appear to be a practice of double standards?

The citizens should not be deprived of their rights of access to justice every time there is a change of administration or whenever the judicial system is restructured. Judicial reform can take place while the courts are performing their functions. There are also precedents for this. For example, the Transitional Government had stayed in power until the establishment of the Federal Democratic Republic of Ethiopia on August 21, 1995, even though the life of the Charter which established it came to an end in January 1993. And, the judges who were appointed by the Transitional Government had been performing their functions until the end of February 1996, albeit unsatisfactorily. Why should they be barred now? Why should the people be denied access to justice?

The Constitution does not have a transitional provision and it does not say any thing as to who will appoint the judges for the courts that will be established in Addis Ababa and Dire Dawa. However, withdrawing the legal authority of the courts before a solution is found to the problem will be a denial of the citizens' right of access to justice. Such a withdrawal of authority particularly at the time when thousands of persons are languishing in prison without trial will be a very serious violation of human rights. There is no benefit to the Government if the people's grievances are aggravated by a denial of justice.. Therefore, the Ethiopian Human Rights Council requests the Government to authorise the judges to resume their duties as before until the courts are reorganised in accordance with the provisions of the Constitution and proclamations which may be issued in the future.

EHRCO also urges all persons of good will, human rights and religious organisations, international organisations and governments to do whatever they can for the reinstatement of the right of access to justice in Ethiopia.