Abadir M. Ibrahim and Abduletif Kedir Idris
Addis Abeba, February 27/2020 – For almost two years, every Ethiopian and every Ethiopia observer has been overwhelmed by discussion and news about the monumental changes that have been taking place in Ethiopia. Starting from PM Abiy Ahmed’s parliamentary speech in which he admitted that the state was responsible for “terrorizing” its citizens, to the subsequent opening of Ethiopia’s political, media and civil society scenes, and Abiy Ahmed’s winning of the Nobel Peace Prize were events that both deserved and caught much media attention. While these are indeed moments of historic significance, one nuance which seems to have been missing is that these achievements have a reasonably high chance of not translating into long-term progress or can even be easily reversed. The longevity of the reforms will, among other things, depend on ensuring that the gains are consolidated by detailed legal, administrative and regulatory changes to pre-existing authoritarian structures. Thus, the mainstay of the reform effort, the grueling legal and justice system reform work without which these short-term measures are bound to falter and eventually fail, is not only in its early stages but it has not caught the public’s eye or that of the media and social media spheres.
The responsibility to undertake the technical work needed to ensure the success of Ethiopia’s liberal reforms has been vested in a hitherto little-known body known as the Legal and Justice Affairs Advisory Council. But for public consultations regarding new laws that may have attracted some media/public attention, the Advisory Council worked mainly behind the scenes. In this article we will make a case for breaking this streak of relative obscurity as the Advisory Council is not only a unique organization from which other countries going through reform can learn from, but its contributions are about to bring about a transformation in Ethiopia’s legal system the scales of which are second only to the establishment Ethiopia’s “modern” legal system in the 1960s.
To highlight the significance of this work one only needs to point out that the Advisory Council has already completed reform packages and prepared draft laws Ethiopia’s legal framework in relation to civil society; counterterrorism; media; freedom of information; freedom of assembly, demonstration and petition; computer crimes; establishment of the National Electoral Board; electoral, political party registration and electoral code of conduct; administrative procedure; criminal procedure and evidence; prison administration; the regulation of legal practice; the Ethiopian Human Rights Commission; and in addition to submitting a new draft commercial code. If this were not enough, in the coming year the Advisory Council is expected to work on a similar reform initiatives in relation to the establishment of financial services code; the freedom of movement; the Office of the Ombudsperson; the Council of Constitutional Inquiry and House of the Federation; civil registration system; legal education; sustainability of legal reform; and other matters relating to civil law and the human rights infrastructure of Ethiopia.
The Birth of the of the Silent Fighters
The Advisory Council first started off as a group of 13 prominent lawyers who were pulled into a statutory body by the Attorney General of Ethiopia and given the responsibility of providing detailed and technical advice on how the government’s legal and justice system reform can entrench the gains of the political transition. What started as a band of 13 lawyers grew very quickly as these lawyers turned to their colleagues and contacts (most but not all of whom are lawyers) and the Advisory Council now boasts a staff of over 168. What is really interesting is that, for all the complex and sizable legal reform packages that the Advisory Council has produced, it only has eight full time staff. The rest, about one hundred sixty plus of its staff are volunteers. Using voluntarism, the Advisory Council was able to coalesce a group of high-demand (otherwise expensive) professionals who are among the best and most seasoned experts (academics and practitioners) within their respective fields. Despite their demanding schedules, most of the volunteers seem to continue to persist as volunteers because of the widespread realization that the country has a window of opportunity that may flee if not capitalized on. The result is a legal and justice system reform body with a highly capable workforce but without the large bill that comes with such projects.
In addition to low cost for high quality work, the added benefits of the volunteer model included the possibility of launching the reform work without waiting for prolonged budgetary allocation or hiring processes, and the ability of the Advisory Council to jealously defend its independence from powerful stakeholders including the government and funding institutions. Independence is an important precept based on which the Advisory Council is established as, according to the directive establishing the Council, members are expected to operate under the precepts of independence, professionalism, ethics and individual conscience. Although the Council does accept funding, not being dependent on funding institutions, or being primarily dependent on the goodwill of Ethiopian volunteers, no doubt helps in making it easier to uphold these precepts.
A Genuine Turning Point for Democracy and Human Rights in Ethiopia?
Ethiopia’s successful transition to a free and democratic country will not be secure until at least two credible, free, and fair elections have taken place. Thus, even if all of the Advisory Council’s technically-sound legal reforms are enacted, the successful implementation of the legal reform will take a long time and that will prove to be treacherous. However, the establishment of the Advisory Council and the way it has been run seem to at least be a strong starting point. This aspect of the reform was captured by a recent report by the UN Special Rapporteur on the right to freedom of opinion and expression which highlighted just how significant the Advisory Council may prove to be in the country’s democratization.
In his report, which is mostly on the state of the freedom of opinion/expression in Ethiopia, and later in some of his social media engagements, UN Special Rapporteur David Kaye highlighted the work of the Advisory Council and, more significantly, bringing to light some of the significant strengths of the Advisory Council and its working methods. In addition to specifically noting the voluntarism and professionalism present within the Advisory Council and commending the products of the Council’s work, the Special Rapporteur praised the inclusive and participatory aspects of the Advisory Council and its work. Regarding inclusivity, he applauds the government’s ability to entrust the reform process to a group of professionals who constitute the Advisory Council’s thematic Working Groups and who are not beholden to the government or the ruling party. Describing this as an “impressive” and “unusually inclusive process” that “should be celebrated” he rightly points out that some of these professionals are former members of opposition groups and some are themselves victims of human rights violations. While this aspect already makes the makeup of the Advisory Council participatory in the diversity of its participants, he also specifically points out the public participatory aspects of the Council’s methodology.
After going through an analysis of the current context, the UN Special Rapporteur, in the end, holds up the Advisory Council’s methodology as one “that should be a model for democratic processes worldwide”, a “model for the region and beyond” and one that “deserves support”. It is certainly a great feat for a country to get to a point where it is referred to in the UN human rights system as a “model for the region and beyond” especially where it is a country that had until just a year ago had attained notoriety for being among “10 worst jailers of journalists”, the wholesale closure of NGOs, the systematic torture of dissidents including religious leaders, and the occasional war crimes and crimes against humanity, to be described as “a model for democratic processes worldwide” is certainly a feat.
What comes Next?
At a time when Ethiopia is faced with both great prospects and serious challenges, it is extremely vital that the government is able to consolidate and double down on the things it has gotten right. Given the increasing skeptical turn towards various reform initiatives, and voicing disappointment on account of lacking genuine participatory processes, the government needs to support the legal reform Advisory Council and, where appropriate, work to improve and strengthen the institution. In so doing the government needs to be cognizant of the need to take advantage of but at the same time respect the independence and professionalism of the Advisory Council. This may, in part, mean that the government ought to seek support for the legal reform process from civil society and opposition political parties and a wide spectrum of Ethiopian society as a project such as this one ought to be seen as a project of the entirety of Ethiopia and not just the ruling party.
Where possible and applicable, the government should also replicate the strengths of the Advisory Council, more specifically its aspects regarding inclusivity, participation, professionalism, independence and voluntarism, in other transitional undertakings that require the participation of technically capable experts. In doing so, the government should, however, be cognizant of the fact that volunteers – especially those with high-level expertise – are not going to provide gratis services perpetually or where their contribution and advise is put aside for political, administrative or other short-term experiences. If the government wants to be seriously taken in its efforts to deal with legal reform, or justice and reconciliation and between identity and administrative boundaries, it needs to be serious about the technical advice provided by volunteers or paid staff.
On the side of the Legal and Justice Affairs Advisory Council itself, despite the successes of its volunteers, one improvement that it ought to make is to bring the work of the silent fighters into the limelight. It is understandable that the Council’s volunteers just want to contribute their technical capabilities without having to be pulled into the day’s radicalized political scene. However, they have to be cognizant of the fact that their work is about to introduce significant changes to the legal, administrative and regulatory system of Ethiopia. These are significant changes the likes of which have not been repeated since the 1960’s. However, unlike during the 1960’s, Ethiopia is currently in the process of transitioning to a more democratic and open polity. This means that public visibility and engagement are not just what the legal reforms ought to achieve – they should be part of the entire process. AS
Editor’s Note: Abadir M. Ibrahim (J.S.D.) is a human rights lawyer and an adjunct lecturer of human rights law at St. Thomas University School of Law. He is currently a volunteer filling the role of the head the Secretariat of Ethiopia’s Legal and Justice Affairs Advisory Council.
Abduletif Kedir Idris is a lecturer Center for Human Rights Studies at AAU and a PhD Candidate at the Max Plank Institute for Social Anthropology. He volunteered in filling the role of the deputy head of the Secretariat of Ethiopia’s Legal and Justice Affairs Advisory Council for a year and a half.