The Priority of an Independent Judiciary

By Samuel Wolde-Yohannes

Whenever one thinks about democracy, the first thing that comes to mind is freedom of speech. We naturally equate democracy with freedom of expression because that is the predominant meaning we have ordinarily given to the term; and only as an afterthought, to a system of government. We must first and foremost think of democracy instead as a system of government which has as its core the rule of law and an independent judiciary. Freedom of expression is merely a consequence of this. To put the matter in perspective, no one in his or her right mind would call democratic a government headed by an autocrat who, on a whim, allows citizens to speak freely their minds. We may call such a government a tolerant autocracy, but never a democracy. On the other hand, we would not call undemocratic a system of government founded on the rule of law with a completely independent judiciary, which sometimes for the security of the State and its citizens, suspends or curtails free speech. What needs to be clarified first is what we mean by rule of law and an independent judiciary. 

To take the simple traditional interpretation, rule of law means simply where laws instead of decrees or ordinances of a person or a group of persons in position of power govern the State. It must be presumed, of course, that the word law in “rule of law” must meet the requisites of being first of all rational, meaning that it must be enacted for the “Common Good” or benefit of the collective for which it is intended. Secondly, it is the considered and deliberated expression of duly elected officials; and thirdly it would suspend itself or lose its legitimacy if intended only for the advantage and benefit of an individual or class of people. 

Similarly, an independent judiciary means one that is not beholden to the executive power, or worse yet to powerful individuals or interest groups in the State. It is one that is fully protected from outside pressure, functions on its own schedule, and is not liable to the vagaries of politics. In a sense, since it is constructed on solid rational grounds, it would represent the one permanent and stable core of the State. The process by which it is constituted must be fair, transparent and with minimal intervention from the executive. Nevertheless, some level of interaction is to be expected with the legislative body, since the legislative power, being the direct representative of the people, would naturally have a say in the election of those who implement the laws that it enacts. The other element that makes a solid judiciary, besides competence, is the moral quality of the judges and prosecutors; and in ideal world, of lawyers as well. 

It can be asserted without much qualification that in Ethiopia the judiciary has never enjoyed autonomy. Under the imperial regime of Atse Menelik II, there dominated a kind of “Solomonic” perception of the emperor as both legislator and ultimate judge. Thus, the judiciary was seen as being part and parcel of the executive. As Professor K.I. Vibhute put it poetically “[the] King was the fountain of justice”. Justice indeed was sought in the name of his majesty. It was in the name of the emperor that the people sought adjudication. 

Atse Haile Selassie I, in his valiant attempt to modernize the nation, promulgated two constitutions (1931 and 1955) which outlined the separation of the judiciary from the legislative, but not entirely from the executive. Upon his return from exile, with the proclamation n°2 of 1942 he established hierarchically layered four court systems. From the Supreme Imperial Court, headed by the Afe Negus (literally the “mouth of the king”), and effectively the highest judge in the constitutional scheme, to the lowest provincial and communal courts. Unwritten in the constitution, but de facto functional in the judicial system was the Zufan Chelot (literally, the Throne’s Court, often translated in English as the Crown’s Court) where the emperor continued to hear appeals and render final judgment to cases submitted to him either directly or indirectly. Thus, even though Atse Haile-Selassie I established court systems that may not have been as efficient and not always reliable, they had all the delineations of a functioning modern judiciary. However, by not relinquishing in effect his perception of himself as the ultimate judge, Atse Haile Selassie I had essentially vitiated the separation of powers in the State, and ultimately hampered the independence of the judiciary. 

The Derg period maybe considered to have been the lowest point for the Ethiopian judiciary. Not only did the Derg destroy the imperial court system, but also depleted the judiciary of its most experienced judges and prosecutors, through retirement, imprisonment, exile,  rendering the whole system ineffective. Instead of hierarchically layered courts, what emerged were “revolutionary tribunals” competing and overshadowing the regular courts. While these latter dealt with ordinary, everyday cases, the momentous decisions were left to the politically motivated revolutionary tribunals, and the ultimate decisions rested in effect in the Head of the State. In point of fact, Ethiopia functioned without a constitution for 15 of the Derg’s 17 year rule. 

With the current constitution that came in effect in 1995, what we have is a three-tiered court system at both the federal and regional levels, i.e. the Federal First Instance Courts, the Federal High Court and the Federal Supreme Court, which are mirror-reflected at the regional level. On paper, this set-up indeed meets logically the requisites of a federal system of government. However, in practice it did not secure either the independence or the effectiveness of the judiciary despite the repeated assertions to the contrary in the constitution’s Articles 78 (1), 79 (2), 79 (3) and 79 (4). The fact is that the JAC (the Judicial Appointment Commission) which has been responsible for the recruitment of judges, was dominated by members of the executive, and consequently by the members of the most dominant political party. The establishment of the legal competence of judges and their staff was determined neither by the legislative nor by ad hoc parliamentary committees, but by the Civil Service Commission, which was highly politicized and partisan. What further eroded the effectiveness of the judiciary was the fact that the House of Federation, and that is the Upper House of the Ethiopian parliament, was, and still remains, vested with the power of judicial review, and the “interpretation and adjudication of constitutional disputes”.

The result of all the above is that Ethiopians could have never had full confidence in their legal system. To this day courts are not perceived as institutions where justice is rendered, but where cases are tied-up indefinitely, and justice is never rendered definitively or fairly. 

As long as Ethiopia continues to make do with a highly politicized and executive-controlled judiciary, not only will there never be reliable and trustworthy legal proceedings and resolutions, but talk of establishing a truly democratic state would be empty. It is not even farfetched to say that the first and foremost mandate of Ethiopia’s current government must be the establishment of a thoroughly independent, competent, ethically managed judiciary that would ideally survive any regime change. In a sense, there is nothing that profoundly defines the character of a nation and garners for it respect and prestige than a judiciary that is highly professional and resistant to corruption and, most of all, that is thoroughly autonomous. 

“Democracy” is something that we have been clamoring about for a very long time. But we must realize that the consequence of a strictly and rationally enforced rule of law, where an individual’s human and civil rights are clearly and consistently protected, is the best expression of democratic rule. Freedom of speech, as we have come to realize, is not only a civil right, but fundamentally a human right. Free speech, as it were, can only exist truly only where there is rule of law. If we endeavor to establish a nation where laws are equitably and consistently administered by an autonomous judiciary we can expect that democratic norms and free speech will follow naturally. 

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