By Surafel Asrat -July 23, 2018
In your speech at the first rally in Ethiopia’s recent history to ever take place without government agitation, you challenged your fellow countrymen to send you their thanks by offering ideas and solutions. Mine will follow in the form of a blueprint for much needed legal reform to bring lasting freedom, justice, and democracy in Ethiopia.
I make these suggestions based on my 21-years experience as a lawyer practicing criminal defense and constitutional law in state and federal courts of the United States. In addition to handling cases, I have served at leadership levels in civil rights organizations such as the American Civil Liberties Union, where I served as a vice president of the ACLU of Massachusetts, and am currently serving a two-year term as president of the Massachusetts Association of Criminal Defense Lawyers. I was recently appointed by the Massachusetts Supreme Judicial Court to serve as one of the 15 committee members that oversee the state public defender service. In the past ten years, I was selected to train lawyers in different areas of the law related to the protection of Defendant’s rights and zealous advocacy. Last year, I was selected to receive the Justice Marshall award, anannual award the state public defender agency gives to a lawyer for making a significant contribution to providing access to indigent defendants. My purpose in mentioning these positions is not to provide my resume, but rather to highlight my experiences that are relevant to the suggestions I make to you. The issues I am addressing are issues that are close to my heart and that I have dealt with on regular basis.
I have reviewed the Ethiopia’s Constitutional Provisions, the 2004 Criminal Code, the Ethiopian Criminal Procedure Code, Proclamation 943 of 2016, Establishing the Office of the Attorney General, and other Proclamations including Proclamation on Anti-Terrorism. My comments will focus on areas that I find will benefit from immediate attention and is not intended to be a comprehensive review of the entire legal system. I will also not discuss areas which I believe are already being addressed, such as the Anti-terrorism proclamation. Finally, I will confine my comments mostly to areas of the law that fall within my expertise: individual freedom, civil liberties and constitutional rights, and the criminal justice system.
I will start with general overriding principles that I believe are essential to ensuring individual freedoms and liberties. I will then address substantive legal changes that are necessary to guarantee those rights. Finally, I will discuss procedural changes that are required to allow individuals to exercise the rights protected by the constitution and statutes.
General Principles Lacking in Our System
The goal in reforming the justice system has to be three fold: Establish a system based on bedrock principles; allow the judiciary to function completely independently of the parliament and the executive branch; pass substantive laws and establish procedural rules that allow the system to continually refine itself.
The criminal justice system must be built with time horizon encompassing multiple future generations in mind, to allow it to endure, refine itself, and ultimately command the respect of the people. The law and the legal system is as strong as the public trust and respect it commands and its ability to provide justice to every citizen without prejudice or favor, in a dispassionate and faithful application of the letter and spirit of the law.
The respect and trust of the public has to be earned over time. When the public respects the court, it accepts its decisions and interpretations even when disagreeing with the outcome. Individuals would resort to seeking redress in the courts as opposed to resorting to violence or corrupt methods. Individuals would be empowered to assert their rights and challenge laws that they find offensive to their rights and freedom guaranteed by the constitution. Instead of taking to the streets or raising arms, they will go to court to file suit.
My suggestions are based upon the foundation that the nation will hold supreme the rule of law and adopt a system of checks and balances between co-equal branches of government responsible for making the law, interpreting the law and enforcing the law. The judicial system should be designed to be a check on the executive and legislative branches.
Here is how we can build trust and respect for the legal system.
Shift the Legal Focus from Group Rights to Individual Rights
A shift from group rights to individual rights is paramount to ensuring individual freedom and democratic rights. Whenever the rights of the individual are fully protected, then the rights of the group to which the individual belongs shall be protected as well. The emphasis on group rights more often than not allows those in power to abuse the rights of individuals for the sake of the group. But there is no group without individuals.
A shift in emphasis from group rights to individual rights does not compromise the rights of peoples and nationalities to conduct their civic affairs as they see fit within their administrative regions. What it allows is for the individual to seek and obtain redress when his or her right is encroached upon in the name of the group. The rights of individuals to life, to liberty, to freedom of thought and expression, to movement, and to property should trump a claim of right by a group.
To accomplish this, the law should allow and encourage individuals to seek redress in federal courts throughout the country where local courts are unable or unwilling to protect individual rights. Suing the government should be a regular and commonplace practice that is encouraged by the courts. Government officials should be compelled to respond to court orders expeditiously and be subject to enforceable sanction when they deny the rights of individuals.
When the law protects the rights and freedoms of each individual, the group will benefit as a whole. Again, it behooves us to note that groups are made up of individuals with distinct interests, dreams, and pursuits.
Separation of Powers
As it is organized under the constitution, power is solely and exclusively controlled by the party that controls the Parliament. That party has the ability to name the Prime Minister who is the Chief Executive of the Federal Government. The same party gets to decide constitutional questions and disputes through its control of the Constitutional Council. The supreme court is supreme in name only. It neither resolves constitutional issues nor decides on the constitutionality of laws and regulations passed by parliament. This system stifles democracy, denies people meaningful legal redress for grievances, and allows for dictatorship of a single party, or in the worst cases, to a single individual or a small coterie of oligarchs. For now, I will set aside the broader discussion of the separation of the legislative body from the executive branch for a later day and focus on the judiciary.
The Judiciary has to be a truly independent branch of the government, free from interference or oversight by the Parliament. Currently, it is not. Despite pronouncements to the contrary in various parts of the Constitution, the Judiciary is set up to function under the ultimate supervision of Parliament. Specifically, the constitution allows Parliament to invalidate or ratify the “final” decision of the Supreme Court.
Articles 82, 23, and 84, of the Constitution strip the Supreme Court of any power to decide constitutional disputes. Under these articles, a Council of Constitutional Inquiry, comprised of legal experts, parliament members, among others, function as an advisory board to the House of the Federation. Such a structure flies in the face of the provisions in the constitution that declare the judiciary to be an independent body.
In a country with vibrant democracy, most important legal disputes center around constitutional questions and application of constitutional provisions vis a vis governmental actions and omissions. Unless the courts are free to tell the government that it has violated the constitution, the government cannot be held accountable for its violations of rights. Under the current system, Parliament has a final say on what is or is not a violation of the constitution. The same body essentially controls the executive branch. No wonder why individuals have not bothered to sue the government over the past decades for violation of constitutional rights.
Consider for example the plight of a political party which seeks to challenge the election results in the courts. If the existing House of the Federation is the body that ultimately decides the legal question, then the law, in effect, would absurdly place some or all of the Defendants in a position of deciding the case brought against them.
Building a Strong and Independent Supreme Court
A strong, independent Supreme Court whose judges are appointed by a super majority vote (75%) of the House of the Federation, upon nomination by the Prime Minister, is essential to hold government accountable and provide real protection to individuals. Procedural safeguards must be established to ensure that the selection and appointment process involves as many parties as deemed necessary and free from partisan politics inasmuch as practicable. The requirement of a super-majority vote would promote a multiparty selection process. Only widely respected jurists of the highest caliber and moral integrity should be nominated to serve on the Supreme Court.
The Supreme Court should be trusted by the law with the power of judicial review. It must be a body empowered by the constitution to interpret the constitution and resolve constitutional disputes, including whether or not a particular federal law, statute, state law, or local ordinance violates any provision of the constitution as applied or on its face. Any aggrieved party must be able to appeal all the way to the Supreme Court to have his or her case heard and decided. The Court may decline to decide certain cases, but must at least consider the case before so doing.
The people, however, can change or amend the challenged law through their elected representatives consistent with the applicable constitutional provisions.
Remove the Involvement of Parliament in Court Decisions by the Supreme Court
The Supreme Court should operate independent of the Parliament. In the current system, Parliament has unnecessary and intrusive involvement in the court process. The legislative body also controls the executive branch as the Prime Minister is elected by the Parliament. As such, there is no actual separation between the two. The constitution was drafted to give the Parliament yet another control over the third branch of the government. Under the constitution, Parliament can ratify or invalidate the decision of the Supreme Court. This renders the Supreme Court a lion without teeth. The law also allows Parliament to appoint 3 of its members to participate in constitutional interpretation in cases that come before the Supreme Court. This provision condemns the toothless lion to life lived in a circus. A Supreme Court organized in this manner is utterly useless. It is no wonder why most Ethiopians have no idea it even exists.
Build A Strong Federal Circuit Court System Throughout the Country
Strong and parallel state and federal court systems are necessary to ensuring the constitutional rights of individuals. While various states/administrative regions have their own court systems, the Federal Courts are the foremost guardians of the constitution. A strong, accessible federal court system that operates throughout the country with jurisdiction over constitutional and interstate matters is paramount for providing a legal avenue to address violations of individual rights. For example, a person denied the right to vote in an administrative region should be able to walk to the federal court with jurisdiction over the area and be heard without delay. These courts should operate in a manner that allows them to deliver justice without undue delay.
Currently, the system has parallel state and federal court systems with overlapping jurisdiction. The law, however, does not give the federal courts a clear mandate to make final determination of constitutional issues including the power to invalidate state laws that violate individual rights guaranteed by the constitution.
Again, a strong judiciary cannot exist under unless it operates independently, free from any interference in its decision-making process by any other branch of the government. Currently, under Ethiopian law, the judiciary does not operate as an independent branch. The delegation of constitutional disputes to a body outside of the court, the Council of Constitutional Inquiry, as discussed above, creates major structural and legal limitations that hamper the ability of federal courts to guarantee the constitutional rights of the people or provide a check and a balance within the governing structure.
Federal Courts must have the power to invalidate laws that they find offensive to the constitution. The decision of the court must be final unless reversed by the Supreme Court. The courts cannot ensure the supremacy of the constitution unless they operate independently and unless the Supreme Court, which ultimately upholds or reverses all lower courts’ decisions, has the power to have a final say on the application of the constitution.
Change the Rules of Procedure Applicable in Criminal and Civil Cases
In Criminal Cases:
While the right to be brought to court immediately upon arrest is important, that right is meaningless unless certain additional obligations are imposed on the government. The law must require the government to present sufficient evidence at the first appearance in court by defendants to establish probable cause to initiate the charge. The government must be required to give to the accused available police reports and allow him or her to seek release on bail or on personal recognizance.
The law should be amended to end the police practice of detaining individuals on mere suspicion and seeking extensions of court proceedings for “investigation.” The arrest must follow the investigation, and not the other way around. While investigation is often an on-going affair, individuals should not be detained until enough proof is obtained to sufficiently identify the crime and the alleged perpetrator.
Additionally, the procedural rules should require the government to produce all of the evidence in its possession, including exculpatory evidence that may undermine the government’s own case, and deliver it to the accused at the earliest possible date.
The rules should allow judges to dismiss charges where they find the government in violation of its substantive legal and procedural obligations, and exclude evidence obtained in violation of the defendant’s constitutional rights.
Appellate procedures should be changed to allow Defendants to appeal their conviction and also seek a reduction in the sentence imposed.
On the flip side, appellate procedures should NOT allow the government to appeal a finding of not guilty or seek an increase in the sentence. While the government should be able to appeal dismissals for violation of rules or constitutional rights, a verdict of not guilty must be final.
There is a good reason behind this appellate principle. The law against double jeopardy is designed to safeguard individuals from governmental abuse of power. Criminal charges have to end with a finding of guilt or a “not-guilty” verdict without recourse, for the government, to place the Defendant twice in jeopardy. The appeal process by nature takes an inordinate amount of time. The prospect of winning a case before a judge, only for the government to then appeal a verdict would take several years, and then retrying the Defendant for the same charge would subject citizens to excessive punishment aside from the enormous imbalance it creates. The law has to check the enormous power of the government. It is for this reason that advanced democratic countries design their legal system with specific intention to create some balance between the individual and the government.
All of these systems recognize that it is better for many criminals to go free than for one innocent person to be denied fair and equitable due process under an impartial, independent judicial body.
The famous Blackstone’s Principle has served as the bedrock of criminal justice systems that have endured the test of time. Sir William Blackstone wrote 350 years ago, “It is better that ten guilty persons escape than that one innocent suffer.” So let’s design the system not to ensure that every guilty person would not escape punishment. Let’s design it to ensure not a single innocent person suffer for a crime he or she did not commit.
In Civil Cases:
Build a system that encourages people to settle their disputes through the courts. Where individuals are unable to obtain redress through their elected officials and government offices, the courts should be the obvious next destination.
The civil rules of procedure should be made friendly to pro se litigants. The majority of people who seek legal redress may not be able to afford an attorney, but nonetheless,courts should strive to ameliorate the significant disadvantage caused by the indigency of a party by either appointing a lawyer at government’s cost, if the issue involves a significant constitutional issue, or by providing forms and resources to assist aggrieved individuals to obtain relief.
Courts should be also encouraged to explore ways of incorporating alternate dispute resolution, such as mediation, to resolve disputes if and where both litigants are amenable to engage in one.
Establish Speedy Trial Rights
The law should limit the time between arrest and completion of the trial phase of a criminal case to one year. Unless the accused requests an adjournment, the government should be required to bring every criminal case to close within one year. The rule will promote governmental efficiency, protect the rights of every citizen from suffering excessive pre-trial detention, encourages prosecutors to investigate thoroughly before bringing charges, and affirm the presumption of innocence of every accused individual.
Enshrine a right to due process of law and provide rules that allow individuals to assert their rights to due process.
The Constitution provides several rights but not the right due process of the law. The law should make it clear that government cannot deprive citizens of their freedoms, liberties or property without due process. At minimum due process requires notice and an opportunity to be heard.
Pass Laws that Protect the Free Exercise of Democratic Rights
The rights of each individual to vote and elect her leader must be protected by the law at the federal, state, and local levels. The right to vote, however, is meaningless if the system is not designed to protect free speech, freedom of the press, freedom of assembly, and the right to petition the government. There are substantive laws in the books that violate these basic rights. They must be abolished.
This process should begin by decriminalizing speech-related crimes. The Constitution should prevent the government from passing any laws which restrict free speech, the free exercise of religion, freedom of assembly and the right to petition the government for redress of grievances.
If the government is keen to provide legal protection for individuals harmed by acts of defamation, libel and other speech–related harms, it can provide for a civil remedy in civil courts. Defamation laws must leave complete space to criticize the government and impose no prior restraint on speech except where there is a clear and present danger.
The following laws should be repealed.
Chapter IV of the Ethiopian 2004 Criminal Code, “Participation In Crimes Relating To The Mass Media,” should be repealed in its entirety. This law is offensive to democracy. It chills speech and the free exercise of opinion and thought. It criminalizes conduct that serves as the very basis of a democratic society. It targets journalists, authors and individuals involved in print media. It serves as a tool of repression and intolerance. It has no place in a free society.
The following should also be repealed as they are prone to be misused by any party in power to repress dissenting views and opposition groups.
I have listed below a number of laws that need to be repealed or amended to ensure that criminal codes are not misused to stifle dissent or suppress opposing views. Additionally, some of the provisions should be significantly amended to give clear notice of the acts covered under the statute and to exclude mere exercise of free speech unaccompanied by acts of violence from being covered by the law.
Article 486.- Inciting the Public through False Rumors (should be repealed); Article 246. the Criminal Code of the FDRE, 414/2004; Article 239.- Obstruction of the exercise of Constitutional Powers; Article 240.- Armed Rising or Civil War; Article 244 of the Criminal Code of the FDRE, 414/2004; Article 241.- Attack on the Political or Territorial Integrity of the
State; Article 242.- Violation of Territorial or Political Sovereignty; Article 245.- Unlawful use of Official Emblems; Article 247.- Impairment of the Defensive Power of the State Article 249.- Treason; Article 248.- High Treason; Article 250.- Economic Treason; Article 254.- Indirect Aid and Encouragement; Article 255.- Attempted Incitement and Assistance; Article 257.- Provocation and Preparation; Article 258.- Aggravation to the Crime; Article 572.- Exposing to Danger through the Violation of Traffic Regulations (needs amendment to change the mens rea requirement from negligence to recklessness); Article 613.- Defamation and Calumny (needs to be repealed and converted to civil infraction); Article 618.- Special Cases Aggravating the Crime (relates to the preceding defamation code and should be treated as an aggravating factor for a civil infraction); Article 629.- Homosexual and other Indecent Acts (should be repealed); Article 813,- Alarming Announcements, News or Publications (should be repealed and converted to civil infraction); Article 814.- False Alarm (should be repealed and converted to civil infraction);
1. Pass Laws the Protect the Privacy Rights of Individuals
The law should protect individuals from searches and seizures by any government agent without a prior authorization by a judicial officer. The warrant authorizing a search of a home or person should be issued only upon showing a probable cause to support a finding that the person has committed a crime and the place to be searched contains evidence of the crime under investigation. Exceptions to the warrant requirement can be crafted to allow police to conduct searches without a warrant under exigent circumstances. However, any search, whether conducted pursuant to a warrant or under exigent circumstances, has to be based on probable cause. The court should exclude evidence seized unlawfully or dismiss cases where the police or government agent invades the privacy of individuals to collect evidence.
. Pass Civil Rights Laws with Provisions that Allow Individuals to Enforce their Rights in the Courts
Civil rights laws that protect the right to vote, provide equal protection of the laws, and civil liberties should be enacted. The law should prohibit discrimination based on based upon ethnicity, race, religion, gender, national origin, or sexual orientation by the government and in the workplace as well as places open to the public.
The civil rights law should allow individuals to enforce the rights guaranteed to them by the constitution and obtain monetary damages as well as attorney’s fees if they prevail.
The law must allow individuals to bring government officials to court, including members of the police and security agents who violated their rights and obtain civil damages including compensation for actual harm sustained and punitive damages designed to deter the wrongdoer as well as those similarly situated from committing such acts in the future.
The law should make it clear in both its letter and application that no one is above the law and everyone one is equal before it. The civil rights laws should be written and applied to prevent government officials, party officials, or the wealthy and well-connected from rigging the system, bending the rules to serve their interest, or avoid legal responsibility.
. Create A Civil Rights Division within the Office of the Attorney General with offices in each State, to Prosecuting Individuals and Government Officials Who Violate the Constitution and Individual Civil Rights
The Attorney General, as the Chief Law Enforcement of Officer, should build a strong civil rights office to address systemic violations of constitutional and civil rights and prosecute public officials, security agents, and prison officials who violate the law.
Pass Regulations That Encourage Lawsuits to Enforce Governmental Compliance and Help Make Government Efficient
An example of such regulation can be one that establishes rules on how governmental bids for the purchase of goods and services and provides for a legal remedy for an aggrieved party to challenge the bid procedure or award when irregularities occur.
Pass Public Disclosure Laws for Public Officials and Candidates for Office
Public officials should be required to disclose annually their income and assets –whether held individually or jointly with others, gifts received or bequeathed, loans received and debts incurred.
Build a Public Defender Service
Each person accused of a crime should be provided with counsel at his or her first appearance before the court. While providing a lawyer for every person poses a major financial burden, the cost is minuscule when compared to the loss of liberty a person may suffer for being too poor to hire his or her own lawyer. The law cannot promise equal justice if the justice it delivers depends on the wealth of the accused.
Establish a Strong Habeas Corpus Law
Habeaus Corpus laws allow prisoners and persons unlawfully detained to challenge their unlawful detention in a civil lawsuit after the criminal proceeding is completed. Habeaus corpus (Latin for bring the body) is intended to allow courts to correct a miscarriage of justice committed at the original criminal proceeding or address injustice when new evidence comes to light that raises questions about the integrity of the criminal proceeding. The law should allow detained individuals to bring a habeaus corpus petition without time or numerical limitation.
Pass Laws that Require Public Officials to Avoid Conflicts of Interest, Self-Dealing and Nepotism
Regulations are needed to bar government officials from engaging in conducts that create conflicts of interest in discharging their official duties. The hiring of public employees should be fair and based on the merit of candidates. Hiring of family members should be outlawed.
Pass Whistle Blower Laws and Provide for Whistle Blower Protection
The law should allow government or corporate employees to provide information to the public, disclosing fraud, improprieties, or criminal conduct within their office or organization. When an individual feels a moral obligation to do so, the law must protect her from suffering repercussion in her employment or public position. Such laws discourage wrongdoing and encourage compliance with the law.
Introduce Term Limits for Elected Officials
Term limits for elected officials serve to renew and replenish the democratic process and strengthen democracy.
Disband Infamous Police and Security Forces and Divisions
The public’s respect for the law starts with the respect for the enforcers of the law. The police and internal security agents of the government must be viewed as public servants who respect and follow the law they are charged to enforce. For most people, the face of the government they interact with at an individual level is that of a police officer. For far too many people, that face is marred by horrific images of governmental abuse of power and violation of basic rights of individuals. Disbanding forces that have a history of committing brutal acts and replacing them with a well-trained, disciplined, and law abiding police force would help restore the public’s trust and foster respect for the law and law enforcement agents.
Establish Regular Training and Continuing Legal Education for Judges
Just as you did with the military, convene the judiciary and empower judges to carry out their judicial function without fear, favor, or consideration of any factor outside of the law that governs the issue before the court.
Judges should receive training and reorientation on the role of the judiciary as the primary protector of the constitutional rights of individuals. Judges should be empowered to compel the appearance of any government official whose conduct violates the constitution. The culture of holding the government accountable can flourish only if the tone is set form the very top. The Prime Minister should inform judges that even he or she can be compelled to appear before a court of law if the law requires such an appearance to answer a claim.
Disband Infamous Police and Security Forces and Divisions
The public’s respect for the law starts with the respect for the enforcers of the law. The police and internal security agents of the government must be viewed as public servants who respect and follow the law they are charged to enforce. For most people, the face of the government they interact with at an individual level is that of a police officer. For far too many people, that face is marred by horrific images of governmental abuse of power and violation of basic rights of individuals. Disbanding forces that have a history of committing brutal acts and replacing them with a well-trained, disciplined, and law abiding police force would help restore the public’s trust and foster respect for the law and law enforcement agents.
Encourage the Creation of Strong Legal Associations
Lawyers’ associations should be organized in every city. These associations can serve in many capacities, such as developing their own rules of professional conduct, promoting pro bono representation of individuals unable to afford a lawyer, collectively advocating for procedural as well as substantive changes in the law, etc.
Encourage Partnership Between the Dept. of Education and the Attorney General
Create early educational tools to build a system that encourages independence, critical thinking, and foster a culture of Asserting Rights by Legal means.
Encourage law schools to establish and expand legal clinics
Law schools can fill the gap in access to justice and legal service. Legal clinics offer opportunities for practical legal experience for senior law students while providing legal assistance to underserved communities with free legal representation. In the United States, virtually every law school has a legal clinic that is run under the supervision of law professors and experienced practitioners, and offer free representation for individuals in criminal and civil cases. Students learn while representing clients in areas such as prisoner’s rights, protection of rights of domestic violence victims, and enforcing the democratic and constitutional rights of individuals.
Derege B. Demissie, J.D.