“When you punish/remove a judge, you relegate him to a public defender”
Henok G. Gabisa, Special to Addis Standard
The concept of rule of law is deeply linked to the principle of justice, involving an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Whether it is from the time of ancient Cush civilization to Athenians democracy or back again from Oromo’s Gadaa democracy to the enlightenment era inspired US constitution, there is a clear and consistent jurisprudential narrative that human liberty, justice, equality, legitimacy, governance, security and rights are the rubrics and fabrics of societal mechanisms to avoid tyranny and promote rule of law. The ultimate goal boils down to having a “national” political system free of tyranny, governed by the rule of law which forms the core of a society in which individuals feel safe and secure; where legal protection is provided equally for all and disputes are settled peacefully and effective/fair redress is available for harm suffered, and where all who violate the law, including the State itself and its echelons, are held to account.
The right to an attorney and fair trail is considered the tower of jurisprudential and practical equality in the process. Unfortunately, in Ethiopia, a place where I can say Bread might be more luxurious than Benz, a decent legal representation is unimaginable. The absence of an independent structure of the profession of public defender is a self-contained predicament and also testimonial of the sweeping failure of the justice system itself. In this short piece, I would like to scrutinize the current situation of public defenders in Ethiopia. I will approach this, first by micro-analyzing the problem through the theoretical framework of theory of nation-state vis-à-vis Ethiopia. Then, I will turn to inspect the substantive deficiency of what has been known as Ethiopian “Constitution” and its hostility towards the practical notion of legal representation. Finally, this piece would employ a set of empirical data from within to highlight on an embarrassing state contempt against the profession of public defender itself.
The justice system failure radiates from anatomical error of Ethiopia as State
The Ethiopian justice system is obnoxious, the understanding of which is not indispensable from synoptic look into the nature of law, state and government in the “country.” As always, I believe that Ethiopia is simply a disorganized “political” territory that got stuck in the Hobbesian State of Nature, where it is “war of all against all”, where the powerful gets all, where a self-proclaimed group of elites in the regime constantly seek and continue to destroy the critical mass in an incessant pursuit for power.
The epistemological absence of what constitutes Ethiopia and its nation, nationals, interest, stakes, tradition, culture, knowledge, wisdom, and language are yet to be settled; and the historiographical defalcation or uncertainty over domestic political legitimacy and sovereignty, which is deep-rooted in the exclusionary policy of the one group over the other- a typical example of state of nature – continue to loom over the country since time immemorial. No genuine “social contact” has ever been made in Ethiopia. With the highest person’s level of Machiavellianism, which in fact dictates the highest cynical political phycology, cold selfishness and personal gain with absolute disregard for convention, a few group of political elites have always piloted to deceive or force the mass to remain on the receiving end of national agony and woe. Historically, courts have been forced to become a major accomplice in the process. Judicial apparatus, trials, laws and legal systems in general seem to have been majorly set up as rubber-stump to “legally certify” the actions of the few ruling elites against the ruled mass. So, it has become visible to anyone in recent times that the court trial has shifted from being a hallow place to become a government venue where critical voices, dissents and journalists are constantly convicted. For example, the Oromo leaders from all walks of life have been the subject of a politically corrupted trial system over decades. Similarly, the ongoing conviction against the leaders of the peaceful movement of Ethiopian Muslims is a clear indication of the hideous justice system in the country.
The regime’s willful ignorance of the profession of public defender and practical dismissal of the right to competent legal representation is nothing but an epitome of the dead end to an effective public space.
Public defenders as collateral damage of “Political Supremacy”
Ethiopia’s legal origin is mostly exogenous. Unabashed importation of foreign legal theories and jurisprudential transplantation that had surfeited with the legal historiography of the country offers a complex ticket of oft tricky correlation between colonial history and legal origin. Unlike other African nations with pen-and-ink category of being either Franco-phone or Anglo-Saxon legal system, Ethiopia is sort of a hybrid. The Civil Code is Napoleon while the Criminal Procedure slightly parrots a common law legal system (albeit no jury system or plea bargaining). And the modern legal education as started at Addis Abeba University in 1963 was assisted by overseas legal expert from both system under the auspices of Ford funded Academic Initiative known as SAILER (Staffing of African Institutions of Legal Education and Research).
The current constitution was adopted in 1995. It carries 106 articles, all of which are nothing but rosy-in-color but pale-in-practice. About 31 articles are devoted to human rights (article 13-44). Perhaps, from a dewy wide-eyed pragmatist point of view, it sounds thrilling for a random post-conflict African country such as Ethiopia to own something like a constitution, given that in mid-80’s Ethiopia was an internationally depressing icon of famine & drought. But, hold on! The devil is in the detail, as they say!
The constitution, with its political shibboleth has a lot to be excoriated and moaned about at least for diminishing the essence of judicial function. It usurped the court the power to interpret and review constitutional disputes. Exasperatingly, it is too hostile of a milieu for a delicate right such as free legal representation to transpire. The political parochialism is another disappointment. The mediocre and frivolous political will from the highest echelons of the government is also a major factor in explaining the institutional/professional evisceration of public defender/legal representation. Consequently, the service found itself between a rock and a hard place. Below, I will take stock of constitutional/doctrinal and legal scenes to laser-beam how that continues to debilitate the notion of free legal counsel and fair trial in Ethiopia.
The right to legal counsel is symbolically spelled-out under article 20 (5) of the constitution for an accused who do not have sufficient means to pay for it and miscarriage of justice would result. This particular provision could fairly precipitates the fundamental question of legitimacy and constitutionality. But, at this juncture, I am not surfing deeper into a micro-cosmic analysis of the text of the laws and its symbiotic relationship. I am only interested to demonstrate how executive/political dominance over the constitution and interpretation thereof could be an existential threat to the right of the indigent.
The power to review the constitutional dispute and interpret the meanings, contents and scope of the rights is bestowed upon a political entity, aka, the House of Federation (the upper House Chamber) under article 83 of the constitution. The House of Federation, not to be confused with House of Peoples Representative, is made up of political appointees and hosts a group of politicians who are at the same time wanted to be constitutional lawyers. In other words, Ethiopia is still stuck in a pre-1803 Marbury vs. Madison era, where executive supremacy is the guiding principle. The implication is that the content of the right to free legal counsel/fair trial is constructed at the pleasure of the political entity (i.e., the House of Federation)in a way that abjures engagement with principles of constitutionalism. So, I am leery of the possibility of future constitutional sprouting in Ethiopia like in a way Gideon v. Wainwright, 372 U.S. 335 (1963) overturned Betts v. Brady, 316 U.S. 455 (1942) to become a hymn sheet jurisprudence of ‘fair trials,’ which in Justice Hugo L. Black’s word, “cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”
The dirty little secrets of Ethiopian criminal trial process
The absence of independent structure of public defender creates practical quandaries. In 2008, I came across a ridiculous court file in Dembi Dollo High Court in Western Oromia, where an alleged “felon” was already eight years behind bars serving 30 years of sentence just when the victim (who was allegedly murdered) walked into town from his long hiding. Alas! Concepts such as material element of a crime and proof beyond a reasonable doubt are still up for fair debate in Ethiopia. This is rooted in prosecutor’s slobbering desire to always obtain court conviction at any cost (at the cost of justice) against every accused person. This is sordidly inspired by the wrong rationale-policy of 100% conviction-which entails “any accusation or complaint should not go without earning court conviction” because the “higher the rate of convicting the more it insinuates prosecutorial performance,” and hence, professional promotion. So, given how nauseously asymmetrical the prosecutorial arm is by its essence in contrast to the public defenders’, Ethiopia’s criminal trial system is an ignominious defeat. In recent time, Ethiopia adopted a trial technique called Real Timer Dispatch according to which a felony case can be investigated, convicted and sentenced in span of hours without further adjournment given for preparation of the defense. With a dirty judiciary and judicial system that operates under a delusional neurotic tyranny, and with no effective system of free legal representation, the net balance, therefore, is obviously unbalanced criminal trial venue. I think this could partly explain the ongoing trial against dissent voices by the ruling party.
Here is how a judge is relegated to a Public Defender (PD)
The entry into the legal profession of the Public defenders in Ethiopia is depressing; direct hiring rarely exists. To understand what I would like to call the government’s PD-phobia, let us see some ineffable data from the Oromia regional state, which has the largest population size among the units. In this region, there are about 300 District Courts, 18 Appellate Courts and a Supreme Court. There are roughly2500 judges and 2000 prosecutors. But the entire region has just about 32 Public defenders. And yet, these PD’s are mostly former judges who, because of ethical culpability (bribe, nepotism, favoritism, and corruption),were removed from the bench by Judicial Administrative Commission.
The existing defenders are spread unevenly across the region’s 18 High (appellate) Courts, the courts with original jurisdiction over “serious” crimes such as robbery and homicide. The District Courts, which have original jurisdiction over lesser crimes “(which include rape)” are not presently covered by the system. With the proliferating number of cases, even in courts where the service exists, a public defender isn’t assigned to meet with the suspect during investigation, no matter what. Hiring a private attorney is not for Ethiopians, majority of whom are flat broke. The World Bank’s 2012 data estimates about 39.9% of Ethiopian population live under poverty line. Add that lawyering is the most expensive service to buy in the world. This makes justice a luxurious commodity available only to a few who can afford it.
That encourages one to conclude that the state of public defender in Ethiopia is a mess. Many of them are forced to be a public defender as a punishment and demotion from judgeship. As a result, they have lacked all necessities for doing their job and no professional sense of belongingness and dexterity whatsoever. They are dangerously under resourced and are excluded from the broader legal profession by the government’s persistent dejection. Hence, the prospect of fair trial remains just a myth. In another future piece, I will follow up with reform ideas and proposals that I think might help to mitigate the problem.
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Ed’s Note: Henok G. Gabisa isVisiting International Law Fellow, Washington and Lee University School of Law, Lexington-Virginia. He can be reach at gabisaH@wlu.edu
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