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InterviewMeaza Ashenafi laying "the foundation for judicial reform"

Meaza Ashenafi laying “the foundation for judicial reform”

Meaza Ashenafi, who is best recognized for her work to empower women, was elected as the Federal Supreme Court’s first female president. She has held this role ever since, leading numerous initiatives to modernize the justice system. It wasn’t an easy task, especially in a nation where the separation between the three branches of government—the Executive, the Legislature, and the Judiciary—is blurred.

Meaza holds LLB from Addis Ababa University and a master’s degree in Gender Studies and International Relations from the University of Connecticut in the United States. Meaza is a founding member of both Ethiopian Women Lawyers Association (EWLA) and Enat Bank. She served as gender advisor at the United Nations Economic Commission for Africa (UNECA) before taking the helm of the Federal Supreme Court (FSC). While there, she received numerous awards, including the Women of Courage for Ethiopia Award from the US Government and the Hunger Project Award.

Her four years at FSC have not garnered as many honors as her earlier works. The court system has undoubtedly advanced significantly under Meaza’s reform agenda. The PM and the parliament have, however, recently expressed their concerns about the alleged rising corruption, inefficiencies, and frustrations that have been occurring in the justice sector while she is in charge.

The Reporter’s Ashenafi Endale went to her office in Sidst Kilo and sat down with her to discuss the reforms that are now being implemented and what has been accomplished thus far.

Excerpts:

The Reporter: It has been four years since you became president of the Supreme Court. What were your plans and accomplishments?

Meaza Ashenafi: When I came to this position, my major objective was to improve service delivery in the federal courts. My colleagues and I wanted to improve public confidence and trust in the judiciary. So we conducted research to find out the best way to ensure efficiency and effectiveness. We launched a three-year plan and embarked on court reform initiatives.

The justice sector is broader. The police, prosecution, prison administration, and others are under the executive organ. Any reform is not easy. But reform of the judiciary is even more complicated. For several years, the judiciary did not get the attention it needed, in terms of resources, human capacity, and others. It has been functioning under so many constraints.

Judicial reform is very process-oriented. The judiciary is also vulnerable because there are many interests involved. So there is a lot of criticism, and sometimes even attacks. These are some of the factors hindering the reform. But according to the public perception surveys we have conducted, the public recognizes the progress and achievements we have made in the last three years.

Can we break down those achievements in terms of quantifiable parameters? What is Ethiopia’s judiciary’s ranking in east Africa, at regional or continental levels?

It is difficult to summarize the activities we do or our achievements. The key arteries for the court reform agenda are efficiency (speedy trials), effectiveness (quality trials), and accessibility (of courts to people using technology and other platforms). To achieve these three targets, we undertook several measures, including the introduction of new legislation and new legal frameworks, setting up systems in place, and training both judges and support staff.

For the first time in Ethiopia’s history of a modern judicial system, we introduced the Case Flow Management Directive. We have been implementing it since last fiscal year. For instance, since this directive was enacted, 97 percent of the cases have been disposed of within the same year they were lodged with the Supreme Court. The rate is 80 percent for both the high court and the first-instance court. This is a good indicator that the reform is on the right track.

In terms of accessibility, we use technology. We introduced the e-filing system so people in regional or remote areas could upload their appeals. We also have centers in regional states. We also use plasma TV, though there are internet interruptions sometimes. In terms of quality, that is an ongoing discussion. Not only here but in advanced countries as well, quality is always relative. The quality of court decisions is not at the level to which we aspire.

We are training our judges both in substantive and procedural laws. Then the quality of decisions passed by judges will improve. Of course, there is the appeals mechanism if the decision at the lower court is not satisfactory. We have introduced several comprehensive laws and codes of conduct to improve the judiciary system. One of the many pieces of legislation we have enacted is the performance valuation directive. In a nutshell, the foundation is set for judicial reform.

Is there a case auditing mechanism to review court decisions?

Yes, we have an appeal mechanism. But if there is misconduct, that is another procedure. In cases of misconduct, it goes to the Judicial Administration Council, a disciplinary committee. If a judge deliberately misinterprets the law and there is evidence, it becomes a disciplinary issue. But in cases of errors, it goes through the normal appeal system.

I have seen the public satisfaction survey done by the FSC and USAID, which was done recently.

Yes, one is supported by USAID and conducted by an independent company.

The survey concluded that the scores were below the thresholds.

I do not remember any of the parameters having scores below the minimum threshold. We did not score below 50 percent in any of the parameters. The average score is above 75 percent in terms of satisfaction. The survey found that over the last three years, 75 percent of the respondents said they were satisfied with federal courts services. The breakdowns are internationally accepted indicators.

The area with the lowest score is decisions. It is about 56 percent. This is because there are two parties in the litigation. One of the parties is satisfied with the decision, while the other is not. But in terms of transparency, impartiality, and other parameters, the scores are really high.

But according to the survey, there are 25 parameters. The survey concluded the average scores of FSC for the 25 indicators were less than 75 percent, which is the minimum threshold. The score for efficiency is 50 percent. Only 46 percent of the respondents said there was less corruption.

What I remember is only the general summary, not the details. Regarding efficiency, a low score is expected because of the judge’s decision-making capacity. In other countries, there is no agreement on the judge’s decision because it is 50/50. Someone is happy; someone is not. But I am not saying our courts have no problems. There are a lot of problems. This reform has begun but is not yet complete. It is on the right track. But we need time and resources. This change needs to be entrenched eventually.

Regarding time, how long does it usually take to reform a judiciary system and ensure the rule of law?

400 years (laughs). Yes, it took the United Kingdom 400 years to develop a democratic government and the rule of law. The adoption of the US Constitution dates back 230 years.

For us, the concepts of judicial independence, separation of powers, and the importance of the rule of law are novel. The history of modern courts in Ethiopia is less than 100 years old. This will take quite a lot more time. It will take generations. It is also related to development, education, the maturity of political forces, and democracy.

How have the political ups and downs in the country for the past couple of years affected your reform programs?

This reform government has been committed to judicial reform, which is part of its vision and reform agenda. It is a big departure from the previous experiences. Internally and externally, there is no negative government intervention. Securing judicial independence is not easy. So, we have to give credit. For the first time, an independent judicial administration council is established. Judges are independent now. They are solely guided by the law. They are free of any intervention to render justice.

But in terms of the conflicts in the regional states, they have affected our efforts to clear the backlog of cases. New and complicated cases have been arriving at our regional centers. So we have to be careful about resource management. Judges are limited in number, especially at the high courts. Judges at the high court have to go to the regional centers. We have a circuit court system for some regional states. It is a rotating system to conduct trials in some regional states. So it is a complicated effort. The conflict and lack of political settlement in the country have impacted us.

When will regional states have their own circuit instead of circuit judges?

Initially, some regional states provided judicial services on behalf of the Federal Supreme Court through a delegation system. But the proclamation changed that. So now our judges have to go to regional states like Gambella, Somali, Benishangul, and others to render justice. In the future, circuit courts for supreme courts will be established for all regional states. This requires legislative amendments. But we believe federal circuit courts must be established in all regional states. This issue will be tabled for discussion in the near future.

New regional states are also being formed. Is that stretching your capacity?

Definitely. The more demand is created at regional government levels, the more we need to give attention to all regions. That is why we need regular structures at the regional level.

You have been to Parliament recently. The Parliament’s Legal and Justice Standing Committee echoed complaints from the public. Parliamentarians are strongly concerned about the grave complaints, especially about ruling made by courts that are not enforced, many people being detained without court knowledge, etc. How do you reflect on this?

I heard the complaints. Usually, such issues occur at regional levels, sometimes at the federal level. That is not good. The decisions of judges should be respected and there is no two way about it. It is about the rule of law. This is extremely concerning. We also need to avoid generalization. When such complaints come at the federal level, I always ask if there is a concrete case. If judges’ rulings are not being enforced, we can follow up and take corrective measures. In most cases, there are delays in executing court decisions. But I doubt there are cases decided by judges and not executed by the police at the federal level. We do not even tolerate delays.

The PM also told Parliament that there are unethical activities and corruption in the judicial system. This is not the first time he has made this comment, saying courts and police are leading in corruption. Of course, the PM might have evidence. Did you inquire about such remarks? What are your thoughts on this?

We reacted to it. In fact, I tweeted about the PM’s statement. He clarified that not all judges are corrupt. But there are judges who are unethical and corrupt. But evidence is required to hold them accountable.

If we have evidence, we have no problem holding the judges to account. The challenge now is to collect evidence in order to establish accountability. We established a hot line headed by senior judges, but so far, people are not reporting concrete cases.

The public must come up with concrete evidence, not only rumors. We need factual information, not hearsay. That is a challenge for us.

Many insiders say that the corruption in the judiciary recently is just embarrassing. What can you tell us to assure us that the corruption level will decrease in the near future?

Corruption has become a big problem in this country. The PM also stated that the judiciary, the justice sector, and every aspect of government are facing this problem. It is a very unfortunate development. It has to be reversed.

There is undoubtedly corruption in the judiciary. We have 400 judges. I cannot tell you how many of them are corrupt or ethical. It needs concrete evidence. But whenever we get information or get evidence, the disciplinary committee makes the judges accountable.

Basically, federal court judges have immunity. They are protected from being sued. But when there is sufficient evidence to charge a federal judge, we revoke the immunity. This has happened in the case of two or three judges.

We designed a strategy for corruption mitigation at the level of the Judicial Administration Commission and launched a call line.

When I was appointed to this position, we were talking about introducing vetting, sort of a background checks on the ethical background of certain judges. It is all about determining who is who.

But many lawyers, judges, and academicians objected to the idea at the time. Their concern is that the judiciary is already weak, and they warned me that if I embark on such a mechanism from the outset, it will shock the judiciary system.

But we did not abandon the idea only because of this advice. We wanted to make sure the necessary tools were in place before taking this major step.

Now we are in conversation with the Parliament. We are ready to take any measure that will help us separate the good apples from the bad ones.

Vetting is different from other performance evaluation mechanisms. It is about using different laws to examine the background and behavior of judges. It requires different legislation and procedures to do that.

What are the standards required to recruit judges?

There are standards set by proclamation for federal courts. For First Instance Court entry level, one has to be over thirty years old and have five years of experience in the legal field.

At the High Court level, ten years of experience is required. To reach Supreme Court level, 20 years of experience is required. Since I came to this position, we have recruited about 90 judges. We use exams, interviews, and background checks. It is very competitive.

Then the list is sent to the Office of the PM. The list is then forwarded to the parliament, which appoints the judges. They are not my appointees, but those of the legislatures. This is how it works for federal judges.

Some legal experts comment that the court systems have become a place for job creation for fresh graduates instead of seniority, merit, and professionalism.

Two things. We have a common law system and a civil law system. Countries like the UK and the US use the common law system. In the common law system, it is from the bar to the bench. Senior lawyers join the judiciary.

But in the civil law system, experts or graduates with some level of training can join the judiciary. They have the expertise and training to do it. Of course, experience is very important for a judge. They do, however, hire young people for entry-level positions. So it depends on the system.

When it comes to our country, sometimes we aspire a lot. It is good to aspire. But we have to think about the benefit packages for the judges and the salaries the government is able to offer them. If I, as administrator of the Supreme Court, want to recruit senior lawyers to come and sit on my bench, I have to compensate them.

There have been a lot of demands from the judges. What are the new benefit packages? Also, is the budget sufficient?

Our benefit package is not sufficient. Our salary is, I think, the lowest in Africa. But the work expected from our judges is arduous. They are exposed to criticism and vulnerable. Compared to that, the salary and benefits are quite low. But this is what our country can afford at this point.

Since the new leadership came to power, there have been improvements. At least most of the judges have housing. Yet, the judges’ task and the compensation are not commensurate. This said, it is much better than what it used to be.

I am optimistic that it will improve in the future. But the public and government must understand the key role of the judiciary.

By 2030, Ethiopia’s population is estimated to reach around 150 million. We will have more cases. So we need to invest in a robust judiciary system that can handle it. The people and leadership of this country really need to think about a strong, independent, and efficient judiciary system. To this end, political commitment is needed.

Scholars say two issues make Ethiopia’s judiciary system expensive. One is that all regional states have their own autonomous judiciary systems along with the federal state structure. So they argue that a centralized judiciary system could be less expensive. The other is that similar cases are seen at first instance, high, and supreme courts, which creates duplication of efforts.

Since the country has a federal system, all three government organs must be distinct at the federal and regional levels. This is more of a constitutional issue.

Regional courts apply laws enacted by the legislature of their respective regions. As I mentioned, regional courts also exercise delegated power on federal cases, for now. The delegation continues until we establish federal circuit courts at regional levels.

There is new legislation that distinguishes which types of cases fall under the jurisdiction of municipal courts and federal courts. For instance, the First Instance Court used to handle only civil cases amounting to 500,000 birr, which has been raised to 10 million birr.

The federal high court is now more like an appellate court, but not entirely. Of course, the Supreme Court is an appellate court. So their jurisdiction is now specified, both for civil and criminal cases.

There are allegations that the police also usually request longer adjournments, and the courts just comply without asking for justification, resulting in cases taking more time than they actually need.

It is not true. In fact, adjournment is one of the areas in which federal courts have made quite impressive progress. Yes, previously, that was the case. The police ask for a long remand and we are very permissive. But after the reform, judges do not rubber-stamp the police’s request. They genuinely demand that police explain why investigations are not completed on time. Judges do not allow long adjournments unless the case demands it. If it is a complicated case and collecting evidence takes time, judges note that. But these days, judges are careful.

Decisions made by courts are usually not executed by the police. The parliament also raised this issue. Do you think courts are exercising their power over police?

I believe so. If a decision is not executed, it is the responsibility of the judge to follow up and take all necessary actions. If this is not happening, as I always say, I would like to know about it.

In terms of transparency, why are courtrooms not open to the media?

There is no jurisdiction that allows cameras and so on in courtrooms. But some trials are online today. However, allowing media recording amounts to obstructing justice. But we have regulations for court reporting. So we use certain international standards.

A cassation bench decision is used as a precedent. But different judges usually make different decisions on similar cases. How can a cassation bench decision be called law if the decisions differ?

Unfortunately, there is an influx of cases to the bench. We are trying to filter the flow to the extent possible. The constitution states participants may appeal to the cassation court only if there is an error of law. That gives everybody the right to appeal for cassation. Mistakes can happen sometimes because judges are overwhelmed.

Interpreting the law is not science. It depends on the kind of experience the judge has and how the judge interprets the law. As a result, decisions are not always consistent. But we track such trends. There is a panel of seven judges in a cassation bench case. This is a mechanism used to rectify lack of clarity on a certain issue.

Many people also complain that their case is dismissed without even considering whether the case merits a review by the cassation bench.

Cassation is not a legal right. People should assume that the deliberation ends at the Supreme Court. Cassation is very exceptional, and it occurs when there is a major error of law. The federal courts’ proclamation has articulated what this error of law consists of.

Too many cases are coming up for cassation. There is a hearing for all cases before the five-judge panel. But most of the cases are dismissed because the judges do not think there is a major error of law.

If every case has to go through trial, it is extremely difficult. Sometimes I watch the discussions. Usually, when a case is decided to be inadmissible for cassation trial, there is no written decision, which leads people to think it has not been reviewed. It is very difficult to issue a written decision for every rejection. In any advanced judiciary in developed countries, there is no explanation for rejection.

How many of the cases lodged with the cassation court are admissible?

Roughly, only 10 percent.

You stated that the court system is now free and independent. To what extent can we say that, and is there a real separation of powers and a check and balance among the three organs?

This is also a work in progress, as in any democracy. This is a relatively new concept in our country. It has to be nurtured.

The Constitution is very clear. When we say “separation of powers,” it does not mean we are different islands. This is the third branch of the same government.

For instance, Parliament issues proclamations and laws that govern the structure of courts. They approve the appointment of judges. We also get budget from the parliament and submit periodic reports to it.

In general, there are borders but also collaborations among the three government branches. So check and balance is a work in progress in any country, but it is an important aspect of democracy.

The Supreme Court has the authority to summon the Prime Minister and investigate executive misbehavior. Are we in that state of freedom and check and balance?

We talk about the supremacy of the law and equality before the law. Ordinary citizens and high-ranking government officials are both equal before the law. That is the principle.

When certain officials of the Tigray People’s Liberation Front (TPLF) were released from detention, presumably because of a government order, many people argued the judiciary is still under the influence of the executive.

The prosecutor discontinued the case. That is within the purview of the executive prosecutor. They do not even have to give an explanation to the judiciary if they decide to stop pursuing the case anymore. They might have to give a political explanation, but not to the judiciary. If an individual is also disinterested in a case, then it is abandoned. We do not worry about those things.

The judicial system was not independent during the EPRDF because there was no distinction between government and party. The ruling party currently holds the majority. How can we say there is autonomy, and check and balance among the three branches?

Historically, there was no clear separation between the ruling party and the three government organs. There is improvement now, I believe. Of course, this needs research. But obviously, this is also a work in progress. It improves with institutional development. There are a number of factors.

Is the progress happening because of the commitment of political leadership, or are there really institutions in place?

Compared to the practices of governments in this country regarding the separation of parties from the civil service, judiciary, and other organs, one has to sit down and do the analysis. So it needs study to reflect on the influence of parties on different branches of government.

Since I have no facts on this, I cannot say much.

Institutional building is critical for this country in many aspects, including development. The gains we have made so far will be entrenched, otherwise.

The Supreme Court intends to launch a number of initiatives, including digitization and the establishment of a data center. What is the progress?

We are building data centers both here in the compound of the Supreme Court and the High Court. It is a huge project supported by the government.

USAID is providing both financial and technical support. They are also supplying experts to develop applications that will make the courts paperless.

But there is a budget cut, and we are facing problems regarding the development of the soft components. We are trying to find a way to close that budgetary gap. That is one of our concerns lately.

In one of the reports you presented recently, you stated that more cases should be left for high courts, and the Supreme Court should focus only on cases involving constitutional issues and that have a national benefit. Is this to imply that the Supreme Court will hear fewer cases in the future?

Yes, we are trying to narrow it down. The judiciary is being forced to process thousands of cases while maintaining quality at the same time. Without curtailing the right of people to access the judiciary, we have to strike a balance.

That is why we defined “error of law” in the proclamation, so that the nature of cases that come up is limited and only selected cases make it to the cassation bench.

Why was the land given for the headquarters of the Supreme Court taken back by the Addis Ababa city administration?

The land was given to the Supreme Court before I came to this position. Then it was taken back by the government. The land was located near the Hilton hotel, where the palace parking is currently being built.

So, since I started in this position, we’ve been looking for a replacement. There was a lot of back and forth. Finally, a decision was taken at the top government level, and land has been assigned for the Supreme Court headquarters.

The existing head office has no space for judges. It could not accommodate modern benches and technologies. Our entire staff does not have enough working space. So this is very urgent.

Currently, we are trying to get the title deed.

Where is the location?

Around Wollo Sefer adjacent to INSA. The plot was previously ethio telecom’s space. We will launch a design competition as soon as we receive a title deed for it.

We want the headquarters to be a landmark.

Federal judges’ performance evaluation directive, external court council directive, federal judges’ selection criteria directive, judges’ leaves and research time directive, and several other directives were in the pipeline. What is the progress on introducing them?

The federal judge’s performance evaluation directive is crucial, and it is enacted. A judge’s performance evaluation manual is also enacted. Here at the Supreme Court, nothing is a joke.

Depending on the complexity of the cases, we require judges to complete a certain number of cases every month. It could be 25 or 35 cases per month, depending on the case’s complexity.

But the directive is more sophisticated and is up to international standards. It is a monitoring and evaluation mechanism. So far, we have evaluated judges. But the directive introduced a comprehensive system.

The performance evaluation directive, which we introduced recently, has been demanded for the last 12 years. Many of the new directives we are introducing today were previously considered.

I am proud to finalize and launch them. We are introducing advanced directives. This is what I call institutional building. There are still some directives in the pipeline.

What is the external court council directive?

The council is already established. The judiciary has to be supported, especially by lawyers. There are many lawyers who understand how complex the judiciary is.

But the lawyers and the bar association in Ethiopia are not at that level yet. They have to campaign for impartiality in the judiciary.

There are a few committed lawyers who support and advise the judiciary. We wanted to institutionalize that. We want to establish a permanent council. This support is now provided by law so that lawyers can now provide legal counsel to the judiciary. We have to introduce a directive to specify how the lawyers are recruited for the council.

There are ongoing arguments over whether human rights issues can be handled in the existing court system or whether a separate justice system should be established in line with extra-national judiciary mechanisms. What is your take on this?

This is another reform area. Human rights violation cases can be processed by a bench at the high court. This bench was established after the new proclamation was introduced the previous year.

Another new bench is also established for administrative cases. Decisions of ministries and other governmental institutions can now be revised by the judiciary. It is a very important aspect of the democratic process. These are the two very important new benches at the higher court level.

So this bench reviews government decisions?

Yes, it reviews the decisions of ministers.

Including the PM?

Yeah, any minister. The Council of Ministers, ministries, and individual ministers.

We are not talking about individuals here. We are talking about institutions and the rule of law. There decisions are subject to review. That means the judges are custodians of the constitution and the rule of law.

If a particular decision violates the law in terms of administrative measures taken by ministries or directives issued by them, this bench determines whether it is compatible with the laws and constitutional provisions.

How many courts are affected by the conflict in northern Ethiopia?

We provide assistance in the form of furniture, office supplies, and other items. Our budget is limited. But during our discussions with development partners, we agreed the judiciary needs the same attention as other post-conflict recovery programs. But thank God we have peace now.

You usually mention former US Chief Justice Taft. What is that?

In every country, the judiciary is criticized. Everything in the judiciary is sensitive. We cannot stop the critics. But always, we have to do what is expected of us. Taft said this a century ago. It still holds true.

How long do you plan to serve in this position? Will we see you after another four years?

I believe so.

But rumors have it that your resignation is pending.

This is totally false.

I used to work at the United Nations, where I was paid in hard currency at a much higher rate than I am now. I left that job and came to the Supreme Court because I wanted to serve my country.

The responsibilities and tasks we perform here are far greater than the salary and benefits. Still, many people delve into negative comments. That is unfair.

The court system is usually considered the government’s weak spot. Courts have no resources of their own or executive power. It cannot also defend itself. So it is lawyers and academicians who fight for the courts.

For instance, lately judges have been detained in Oromia and Amhara. This is not a good trend for our country. If there is any misconduct, it should be evidenced, the immunity lifted, and the judge can be arrested according to the procedure.

The rule of law cannot take root unless it becomes a way of life. It cannot become a way of life without institutions. A nation is built on laws.

 

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