Cablegate: Ethiopia's Judicial System: In Transition

VZCZCXRO4777
RR RUEHROV
DE RUEHDS #2143/01 2191302
ZNR UUUUU ZZH
R 061302Z AUG 08
FM AMEMBASSY ADDIS ABABA
TO RUEHC/SECSTATE WASHDC 1558
INFO RUCNIAD/IGAD COLLECTIVE
RUEAWJA/DEPT OF JUSTICE WASHINGTON DC
RUEAIIA/CIA WASHINGTON DC
RHMFISS/CJTF HOA
RUEWMFD/HQ USAFRICOM STUTTGART GE
RHMFIUU/HQ USCENTCOM MACDILL AFB FL
RUEKJCS/JOINT STAFF WASHINGTON DC
RHEHAAA/NSC WASHDC
RHEFHLC/DEPT OF HOMELAND SECURITY WASHINGTON DC
RUEKJCS/SECDEF WASHINGTON DC

UNCLAS SECTION 01 OF 04 ADDIS ABABA 002143

SENSITIVE
SIPDIS

AF/E FOR KNIGHT

E.O. 12958: N/A
TAGS: PGOV PHUM KJUS ET
SUBJECT: ETHIOPIA'S JUDICIAL SYSTEM: IN TRANSITION

REF: ADDIS ABABA 2116

Summary
-------

1. (SBU) This cable provides a brief overview of Ethiopia's
judicial system, based on contacts with legal practitioners.
Ethiopia has both a regional (state) and a federal court
system. The federal system handles matters of federal law
and has benefited from external assistance, primarily from
Canada, focusing on judicial administration and information
technology and designed to boost the efficiency of process.
Corruption is not a significant concern, but judicial
independence remains at issue as there is no judicial review
and constitutional interpretation remains with the
ruling-party dominated parliament, which is also responsible
for judicial appointments. Access to judicial mechanisms is
gradually increasing but is still difficult for Ethiopia, due
to chronic underdevelopment. Ethiopia's legal practitioners
underscore that Ethiopia is committed to professionalizing
the judiciary and the United States Mission will continue to
work with the American Bar Association, Ethiopia's law
schools and implementing partners toward that end. End
Summary.

2. (SBU) To get a portrait of Ethiopia's judicial system,
Emboffs interviewed the Vice President of the Federal Supreme
Court and judges from the Federal High Court and Federal
Court of First Instance, members of the Ethiopian Bar
Association, faculty at Addis Ababa University Law School,
and a staff member at the Ethiopian Ministry of Justice.
Emboffs also spoke with contacts at the American Bar
Association office in Addis Ababa (whose activities are
currently suspended due to uncertainty over the pending civil
society law's effects on its programs) and the Canadian
Embassy.

Judicial Heritage and Structure
-------------------------------

3. (SBU) The Ethiopian judiciary is "still in transition,"
according to Ethiopian Bar Association (EBA) members, who
added that three governments in 34 years have imposed steep
costs on the administration of justice. "Changing governments
without elections," an EBA member said, "is expensive. It
disrupts priorities and directions. We have had three
distinct economic and political philosophies in three
governments. With completely different people in office,
institutional knowledge and manpower has been squandered and
there has been no relay of ideas and capacity from generation
to generation. Nothing has been inherited from previous
regimes." EBA members said the 1994 federal constitution did
improve on the Dergue-era constitution in a number of areas,
but that application of law remains unpredictable due to a
young, inexperienced judiciary and the relative newness of
the current legal regime. Ethiopia practices a "hybrid"
system of law, based largely on the French code and other
continental influences, but with elements of common law
practice, particularly in procedural matters. There are no
juries and in most instances in federal court three judge
panels hear cases.

4. (SBU) As a federal system, Ethiopia has both federal and
regional (state) courts. In ascending order, woreda, zonal
and regional (state) courts comprise the regional (state)
system. The state system hears matters under state law,
although decisions at the State Court are appealable to the
Federal Supreme Court. The federal courts are composed of,
in ascending order, the Court of First Instance, the High
Court and the Supreme Court. Federal courts have
jurisdiction over matters of federal law. Most federal
benches are located in Addis Ababa, although the following
regions have Federal High Court benches: Somali,
Beneshanghul, Afar, Gambella, and Southern Nations,
Nationalities and Peoples (SNNP). In regions without federal
benches, zonal courts handle federal matters. Most larger
regions, such as Oromiya and Amhara, do not have federal
benches because their state court systems are presumed to
have the capacity to handle delegated authority. In both
systems, the courts hear both civil and criminal cases.

ADDIS ABAB 00002143 002 OF 004

There are some special administrative courts as well, and
some social (or traditional) courts at the kebele (village)
level. Sharia courts are permitted for family/inheritance
matters, but individuals theoretically have the right to opt
out. In such cases, disputes are resolved through the
federal courts. The relationship between the formal courts
and more traditional dispute resolution mechanisms is still
to be defined. Jurisprudence is underdeveloped in key
emerging areas, such as anti-trust law, and there is no
system for reporting cases (other than from the Federal
Supreme Court's Cassation Bench). Access to judicial
mechanisms is gradually increasing but is still difficult for
Ethiopians given the country's chronic underdevelopment and
poor educational system. Many impoverished Ethiopians know
little about their legal rights nor can they afford to pursue
them within the courts.

The Lower Federal Courts
------------------------

5. (SBU) The Federal Court of First Instance has jurisdiction
in civil cases for matters below 500,000 birr (approximately
USD 50,000). The Federal High Court hears civil cases in
excess of 500,000 birr and serious criminal offenses
(including, according to a High Court judge, murder,
counterfeiting and crimes against the Ethiopian
Constitution). The Federal High Court has 48 judges, drawn
from all regions of the country: 10 Amhara, 9 Oromo, 7
Tigray, 5 Gurage, 2 Harar, 2 Agoa (Amhara), 2 Afar, 2
Kambetta, 1 Somali, 1 Berta, 1 Gamo, 1 Tambaro, 1 Benji, plus
four recent hires (background unknown). The court makes an
effort to reflect Ethiopia's diversity but does not expressly
balance ethnicities/origins with population, as demonstrated
by the relative dearth of Oromos, by far Ethiopia's largest
ethnic group.

6. (SBU) Progress is being made on judicial administration.
The current backlog of cases pending has been reduced to
6,500 from 15,000 three years ago. More than 75 percent of
cases are adjudicated fully within one year. Transcription
machines and case management software and databases have
contributed greatly to more efficient administration,
provided with the assistance of the Canadian government. In
addition, prior to 2005 three judge panels were required for
all criminal cases; now, a single judge can rule on criminal
cases subject to penalties of less than 15 years. However,
as efficiency of judicial administration has increased, so
too have caseloads, due, according to several interlocutors,
to greater assertiveness by potential claimants and greater
awareness of legal rights by the Ethiopian population.

The Federal Supreme Court
-------------------------

7. (SBU) The Supreme Court has 21 judges who serve in two
divisions, Cassation (jurisdiction limited to fundamental
errors of law) and Appellate (jurisdiction over both
questions of fact and of law). The Cassation Bench convenes
a three judge panel to determine if there has been a
"fundamental error of law." If so, five judges will be
paneled to the case. The Appellate Division convenes three
judges both to screen and hear cases. Case management is
efficient, with only 2078 cases pending and an average
duration for each case only 4.27 months. Supreme Court
judges are paid as much as 9,000 birr per month, and receive
2,000 birr and 450 birr in non-taxable housing and transport
allowances respectively. About 30 percent of cases are
inheritance-related, due to administrative inefficiencies
throughout Ethiopia (such as the absence of any mechanism to
register births). In 2006, the Cassation Bench introduced
stare decisis (essentially, precedent-based law) and now
publishes its decisions and distributes them to federal
judges.

Judicial Capacity
-----------------

8. (SBU) Federal judges cited the effective administration
of justice as their primary focus (and challenge),
particularly in criminal cases, where investigative capacity

ADDIS ABAB 00002143 003 OF 004

is weak and can adversely affect the whole process. As noted
above, the members of the federal bench are also relatively
inexperienced. Anyone over 25 can be a federal judge, and
for many at the Court of First Instance, where the average
age is 30-32, their judgeship is their first job. The
average age for Federal High Court judges is 35. Legal
practitioners trained under the Emperor or Dergue regimes
lament this relative inexperience on the bench, but members
of the federal judiciary defended the system's hiring
practices by arguing that the current legal regime is less
than twenty years old (so there has been a need to train a
new generation of lawyers and judges) and that Ethiopia's
youth movement is not out of the norm for many Continental
law-based countries. "For some time we will rely on new
graduates as a practical matter, because Ethiopia simply does
not have many experienced legal professionals," the Supreme
Court Acting President said. Attrition for judges is high as
many jump to private practice, although a recent bump in
federal judges' salaries has produced higher retention.
Federal courts require law school diplomas. Most regional
court systems are also raising their education requirements
for the bench, with the exception of Gambella. A training
institute for judges and prosecutors has been established for
four regions: Addis Ababa, Oromiya, Amhara and Southern
Nations, Nationalities and Peoples (SNNP).

9. (SBU) An Addis Ababa Law School (AAU Law) contact told us
that graduating classes at AAU comprise approximately 120
students, up from 50-60 a decade ago. With private schools
in Addis, Ethiopia graduates approximately 1500 law students
per year, our contact said, adding that he believes the
economy can absorb the recent graduates. The EBA, however,
has only approximately 450 members, and EBA contacts told us
only Ethiopia only has 800-900 licensed trial attorneys,
relatively low numbers for a country with a population of
roughly 80-90 million. The law school now has fifty percent
female students, although there are still very few female
judges. The Ministry of Education places students from AAU
in the law school and the process is not transparent. Though
AAU Law is 40 years old, the alumni association has only been
around for the past eight years. AAU Law has 25 teachers,
plus 7-8 retired judges who work part time. Only two AAU Law
faculty members are women.

Judicial Independence
---------------------

10. (SBU) Judicial practitioners interviewed painted a mixed
picture on judicial independence. Judges said that they
decide cases in accordance with law and are not subject to
interference by the executive branch of the government. The
Federal High Court judge who presided over the post-2005
trial of leading opposition figures was particularly adamant
that he did not face any government pressure in deciding the
case. However, EBA members contend that "legal practice is
totally dominated by Ethiopia's Executive branch" and point
out that Ethiopia has no judicial review. "The Courts," as
one put it, "are not the guarantors of the Constitution, the
highest law of the land." In fact, the House of Federation,
the second house of parliament, has the sole authority to
interpret constitutional issues. The 108 members are
appointed by the EPRDF-dominated regional governments. What
constitutes a "constitutional issue" is still undefined, our
interlocutors underscored, thereby giving the government
broad authority to intervene on even petty matters "in
defense of the constitution." Finally, in absence of a grand
jury system, the judiciary has often served in recent years
as a proxy of the Executive branch because those charged can
be detained throughout the prosecution phase of a trial, and
only after the prosecution rests does anyone consider if the
prosecution (led by the MOJ) presented an adequate case to
justify continuation of the trial to the defense phase. If
not, the court can, sometimes after a number of years,
dismiss the charges for their inadequacy. Accused persons
can thus spend great lengths of time in prison even where the
government has no case.

11. (SBU) There are other abrogations of judicial authority.
For example, the newly passed media law purportedly devolves
the authority to rule on the legal matters related to the law

ADDIS ABAB 00002143 004 OF 004

to the ombudsman and makes defamation against government
officials prosecutable as a matter of state, with the truth
of the facts underlying any defamatory statement no defense
(thus leaving little role for courts aside from sentencing).
Likewise, one contact told us that under the new banking law,
banks can foreclose on property without a court order, and
the law is silent on whether appeals can be made to the
courts. "We have," the EBA member said, "separation of
function, not separation of power." Moreover, certain court
actions, coincidentally or not, echo the government's recent
efforts to chill and diminish civil society. On August 4,
the Federal High Court detained Mesfin Negash, the editor of
a popular local paper, for "contempt of court" for simply
printing an exact quote from a defense lawyer in the Teddy
Afro trial, in which the lawyer threatened to sue the
presiding judge for bias (septel). In addition, an EBA
member also noted that in politically sensitive cases, the
ruling party works behind the scenes to ensure presiding
judges understand the party's position and rule accordingly.
While such allegations are difficult to prove, the recent
release of Assefa Abraha, the brother of Seeye Abraha,
patently a political decision (and following senior level
United States-Ethiopia bilateral consultations), does
indicate the ruling party retains considerable influence on
the judicial system (reftel). NOTE: The Ethiopian judges we
spoke with were careful to distinguish between their role in
sentencing and the penal system's role in enforcing
sentences, to argue that pardons or commutations of sentences
did not reflect government influence on the judiciary itself.
END NOTE.

Corruption
----------

12. (SBU) Judicial practitioners interviewed said that there
appears to be little egregious corruption in the court
system. One Federal High Court judge said, "We hear some
complaints of some corruption, but they are hard to
substantiate. In any event, such complaints are rare and at
worst reflect petty corruption." The Ministry of Justice
(MOJ) has brought cases against 17 judges over the past year,
and all but two have been dismissed. MOJ has no direct role
in the administration of the courts. A fifteen member
judicial commission, composed of members from two judges each
from the three federal courts and three Ministers of
Parliament (MPs), is charged with discipline and also deals
with judges' nominations, remuneration and benefits. The
judicial commission reports to Parliament once per year.

Comment
-------

13. (SBU) Overall, the judicial system is in transition, but
making discernible progress in judicial administration and
information technology, with outside help. Ethiopia's legal
practitioners underscore that Ethiopia is committed to
professionalizing the judiciary and the United States Mission
will continue to work with the American Bar Association,
Ethiopia's law schools and implementing partners toward that
end. Even with efficiency gains, however, as in most
developing countries concerns remain about judicial
independence and the Embassy will continue to urge the
government to accept our technical assistance designed to
boost judicial independence and capabilities. End Comment.
MALAC

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