OP:ED: Establishing confidence in the judiciary: Why Meaza Ashenafi should lead a process of judicial vetting

Dr Adem Kassie Abebe,  For Addis Standard

Addis Abeba, November 07/2018 – The wave of reforms that has dazzled Ethiopia, and the world, has reached the shores of the judicial sector, with the appointment of Meaza Ashenafi as the first ever woman President of the Supreme Court, and the real time character that inspired the award-winning movie ‘Difret’ where a young lawyer confronts the tradition of forced abductions into marriage. With Ethiopia tethering on the edge of a new era of democratic contestation, the importance of an independent judicial arbiter of the democratic game cannot be overstated. In an interview soon after her formal appointment, she indicated that her top priority will be to ‘restore public trust’ in the judiciary. This is a commendable goal, although Ethiopian courts have never really enjoyed public confidence that ought to be redeemed, and her challenge will therefore be building and nurturing new confidence in the judiciary. This is an extraordinary challenge and this piece suggests one possible measure that could help Meaza make progress. But before getting to the core focus of this contribution – judicial vetting, I would like to share my thoughts on the broader context of reforms with a view to underscore the importance of complementing goodwill, which has so far been the source of most of the celebrated moves in Ethiopian politics, with institutional safeguards.

Prime Minister Abiy Ahmed has led and inspired a process of renewal and democratic opening unprecedented in Ethiopia history. Not everyone is happy, and most are cautiously optimistic; and the security lapses and the relative breakdown of law and order, while often unavoidable under circumstances of revolution, for what is unraveling is more than just a slow evolution, must be addressed with foresightedness, skill and in time. The wariness is understandable in a country eerily familiar with short moments of relief and jubilation overtaken by exhausting periods of gloom. The caution is not necessarily bad or disruptive. A bit of dissatisfaction is a needed oil that will continue to fuel and fire the reform engine. Prime Minister Abiy and his core team must be continuously challenged if they are to relentlessly grow and refine their policy agenda and approaches. The encouraging signals towards a democratic dispensation will hopefully channel the dissatisfaction to organized and rigorous but peaceful competition of ideas.

From individual goodwill to institutional reform

So far, the reforms have mainly taken the form of appointments of new faces to critical positions. The new wave of women appointments has particularly enamored the Ethiopian public, and continental and international observers of Ethiopian politics. Ethiopia now has a balanced cabinet where women have taken 50% of the positions, including notable ministries dealing with defense and the security sector. We have also seen new and younger faces. This pivot towards including women and the youth in leadership positions will likely have structural effects in the way society evolves. Nevertheless, all these positions remain to be political appointments, based on assumptions of political loyalty.

A better test of the goodwill of the new administration should instead be measured based on appointments to institutions that require independence from the political machinations. And in this regard the appointments to the head of state and the president of the Supreme Court are notable beginnings. In addition to staying the course of raising qualified women to positions of prominence, these two appointments are distinct in that they involve individuals that are perceptibly politically unaffiliated. The presidency, if it is to be relevant and unifying, must stay above politics. And the appointment of Sahle-Work Zewde, a prominent diplomat, as President of the country stands the test of the position. Similarly, the appointment of Meaza Ashenafi, a prominent advocate and founder of the Ethiopian Women Lawyers’ Association, as the President of the Supreme Court is the first time a genuinely independent figure has occupied the post. The reform train has also knocked closer to home than I expected. A good friend and competent scholar, Dr Gedion Timothewos, has been appointed as one of the three deputies to the Attorney General. As the two above, he is one of the new cohort of politically unaffiliated appointments. While I believe that the prosecutorial functions of the Attorney General should be separated and granted to an independent institution, for now, the appointment of a young expert into the office is a welcome beginning.

An even better and sustainable test of the commitment to reform towards a democratic dispensation is the adoption of institutional reforms. All the good names that have climbed the ladders of power have been the result of individual goodwill. Political goodwill, while necessary, is fickle. Institutions and procedures must be established with the assumption that the people that will occupy them are not necessarily angels, and are always fallible. We should therefore work towards establishing procedures that are, more often than not, likely to lead to the appointment of qualified candidates with the needed integrity. This is particularly indispensable for the independent institutions, including the presidency, the judiciary, the electoral board, the human rights commission, the ombudsperson, etc. The recently appointed Law and Justice Reform Advisory Council is working on some of these issues and I am hopeful that, with time, the individual goodwill will be complemented by procedural and institutional safeguards.

Establishing confidence in the judiciary: Making the case for judicial vetting

While many have expressed concern that Meaza lacks the requisite judicial experience, this will probably work to the judiciary’s advantage. As an outsider, she will not be deterred by the untested assumptions and sticky working habits that afflict any lethargic institution, such as the Ethiopian judiciary. The challenges that await her are enormous. She will be presiding over a judiciary that has time and again failed the hopes of a nation; a judiciary that has caused more tears than it has dried. Quite simply, it is a judiciary that was complicit, if not an active and willing participant, in the excesses of the last decades. Even in cases where independence from the political institutions was not an issue, the judiciary has often been marred by allegation of rampant corruption, extreme incompetence and lack of professionalism. The courts are often seen as more executive-minded than the executive itself. I am hopeful that Meaza has the integrity, competence, drive and vision to rise to the occasion. But to achieve this, she would have to face the problem head-on. One possible idea is judicial vetting.

Judicial vetting essentially involves a process through which sitting judges are required to undergo competence and integrity tests to ascertain the justifiability of their continued positions. At the heart of the idea of judicial vetting is that a judiciary that has failed miserably to protect the freedom from fear and want of the ordinary fellow cannot be trusted to uphold the ideals underwriting Ethiopian constitutional, continental and international commitments. A unique aspect of vetting processes is the opportunity for the general public to express their opinions and experiences regarding individual judges.

Because judicial independence requires that judges be protected from undue influence and threats, vetting may be controversial to implement through normal procedures of judicial discipline. Nevertheless, bypassing existing legal protections would continue a dangerous precedent and may send the wrong signal that the new power holders are attempting to get even and replace the ‘old’ guard of judges with their own minions. Nevertheless, judicial independence must be counterbalanced by judicial accountability. As such, to the extent that the independence, fairness and integrity of the vetting process is guaranteed, it is justifiable. To ensure such independence and integrity, the appropriate procedures should be determined in advance in consultation with judicial officers, including if necessary through constitutional amendments to protect the legality of the process. While the reputation and position of individual judges could suffer as the vetting process unfolds, the long-term institutional interest of the judiciary is likely to flourish. Kenya engaged in a similar vetting process following the adoption of a new constitution in 2010. In combination with other measures to enhance access to justice, the process recorded significant success, with the popular approval of the judiciary rising. Nevertheless, maintaining judicial credibility requires more than just a one-off vetting. It must be accompanied by deliberate and relentless efforts to enhance the accessibility, speed and quality of the delivery of justice, as well as communication strategies to continuously engage the public and other critical actors.

The new president of the Supreme Court has a historic opportunity to push forward a procedure to clean the judiciary and build and strengthen its relative credibility. Popular support is the surest way to sustainable judicial independence. There is of course the danger that the vetting process could be captured by the new power holders. That is why the independence of the process is critical. In Kenya, one strategy was to ensure that three of the nine members of the vetting body were foreigners. Ethiopia need not necessarily replicate the Kenyan process, but could draw on the success and failures of the Kenyan and other comparable experiences, in crafting a process that will be, in perception and reality, independent. Crucially, most Ethiopian judges serve at the state level and Meaza will have limited power to take the vetting process downwards. The problems at the federal level are as rampant as, and possibly worse than, at the state level. Nevertheless, any vetting effort at the federal level will likely inspire similar processes at the state level.

Editor’s Note: Dr Adem Kassie Abebe works for the Constitution Building Program of the International Institute for Democracy and Electoral Assistance (International IDEA). He may be reached at a.abebe@idea.int / adem.abebe@gmail.com. The views expressed in this piece do not necessarily represent the official position of IDEA.