Sunday, June 16, 2024

The Shenanigans of small town justice in Ethiopia

By Samuel Estefanous


I intended to write this piece under the benign title “The Beauty of Small Town Justice in Ethiopia,” but I couldn’t dwell on the beauty for long, as it would oversimplify a serious threat to the country’s justice administration system—hence the shenanigans!

Ideally, the case flow chart of any judicial system is pyramidal, with the assumption that the original jurisdiction of courts is wider at the lower courts and narrows to a point of near nonexistence at the apex. Thus, the absence of any original jurisdiction (first instance) for Federal Supreme Courts isn’t implied but expressly noted, if not for the elusive qualifier ‘provided by other laws.’ Note also that the civil material jurisdiction of Federal Higher Courts is limited to amounts exceeding one million birr.

First Instance Justice

I wonder if folks are aware that the Federal Supreme Court delivers, or rather is expected to deliver, an annual State of the Judiciary Report. Along with the accessibility of Cassation decisions establishing what the initiated call ‘ratio decidendi,’ the State of the Judiciary Report is a commendable effort, though I have zero clue if the post-2022 report has been released. There are attempts by regional courts to adopt the practice as well, but I would prefer the State of the Judiciary Report be released independently of the ‘Performance Report.’

Never mind, that is beside the point. The thing is, if you find yourself in any one of the first instance courts in the country, chances are you will be taught a lesson or two you will never forget. The beauty of it is the level of informality that makes one feel at ease, if not at home. You wouldn’t believe the significance of this welcoming gesture to a party seeking justice from the blindfolded, sword-wielding, and scale-balancing courts of law. In a way, the fundamental right to ‘access justice’ is better guaranteed at lower courts, with their closer affinity to the community, than the ‘supercilious’ and extremely dignified higher courts.

That is, in a way, the beauty of first instance justice. The downside is that, in most instances, rights and obligations defined by law and juridical acts take secondary importance. First and foremost, justice is rendered by a sense of empathy and on grounds of other less lofty causes. Once the verdict is framed in this way, the ‘pertinent law’ is sought to justify it. “You will always find one, if you seek it,” it is said.

Another painful downside is the inability to bridge the local language barrier. If you don’t speak the local language, you are made to feel guilty. Invariably and instinctively, petitioners sometimes choose to hold their tongues, perhaps fearing anything they say will be held against them.

Even in this regard, that sense of familiarity occasionally comes to the rescue. I remember an incident where the lawyer of the other party protested the judge’s inadvertent slip into the local language after learning the representative of his adversary was tone deaf to the Gedeo tongue.

Thus, maximum resources should be allocated to lower first instance courts, which are by far more widely accessed by the multitude. Once you are denied justice at the first instance, your further journey to have the verdict quashed is costly both emotionally and financially.

Do you know what I would like to find in the State of the Judiciary Reports more than the usual increased rates and reduced ratios (you know, the customary reports of increased clearance rates, decreased congestion, and backlog ratios)? Hands-on findings on the questions of credibility, accessibility, and independence of the judiciary!

Appeal is Preferred as a Matter of Standard Procedure

Until recently, the Federal Supreme Court resembled the notorious long-distance transport hub in the heart of the city. The tendency to take a case from a Woreda first instance court all the way to the federal cassation bench must have clogged the arteries of the higher courts.

The supposed pyramidal flow of cases has virtually become rectangular. It is nothing less than a miracle to survive this flush flood on a regular basis with a decreased number of judges at higher levels. I haven’t come across any systematically computed figures, but as High Courts have concurrent first instance and appellate jurisdiction, it is natural that they are overwhelmed by cases.

Here is a simple example: the number of judges at the Federal Supreme Court is set at eleven. These eleven justices are expected to handle cases originating in eleven regions and two chartered city administrations, with a combined population of more than 120 million people.

In the United States, the formidable and insufferable nine old men (Justices of the Federal Supreme Court) are public figures with rock star notoriety among the American public and beyond. For obvious reasons, to this day, most African lawyers are awed and inspired by Justice Clarence Thomas—singled out and chosen by the color of his skin and his conservative demeanor. I know the days of the nine old men are gone, and the bench has gone a little more politically correct since.

What I am trying to say is, however much judges are bereft of the power to write laws under the Continental system, justices of the Federal Supreme Court are the ultimate judicial voice of the land. As such, we should be able to know them, their credentials and publications, their respective takes on definitive legal issues and questions.

They mustn’t be primarily preoccupied with the routine task of handling and rectifying the shenanigans of lower first instance courts.

Donations-Entailing the Foreign Agent Clause

By way of disclaimer, this is not a reference to the laws pertaining to NGOs and the media made notorious in Russia and Georgia, nor the government of the EPRDF.

A couple of years ago, the Federal Supreme Court’s Strategic Plan came out reading like any one of the corresponding plans of the line ministries. It was founded and aligned with the GTP adopted by the existing government of the FDRE. A few pages down, it talked about the independence of the judiciary in the customary noble terms. It wasn’t a good read, nah, it wasn’t.

At any rate, judicial independence shouldn’t be construed to imply independence from the executive branch of government alone. Independence from the invisible long arms of the benevolent ‘donor community’ should also be ensured. Almost all judicial reform programs are sponsored by donor agencies that make no pretense of their ulterior motives.

In almost all small-town justice halls, one comes across a freshly whitewashed adjacent building bearing the logos and colors of USAID, the Open Society Foundation, or the Bill & Melinda Gates Foundation. Their declared purpose? Sponsoring and running pro bono legal aid clinics. I have no problem with that, though I didn’t know ‘pro bono’ could be financially sponsored as such.

What makes one uneasy is the tendency of the donor agencies becoming sine qua non to undertake any kind of justice administration reform. I wouldn’t feel the judiciary is indeed independent if more than 20% of its budget or programs are underwritten by donor agencies.

God bless.

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