Monday, May 20, 2024
InterviewHuman Rights Litigation: Vacuums and Venues in Ethiopia

Human Rights Litigation: Vacuums and Venues in Ethiopia

Mesenbet Assefa (PhD) is an assistant professor of law at Addis Ababa University. He is also a consultant and attorney at law involved in human rights advocacy and research and litigation regarding human rights violations.

On April 16, 2024, he presented a research report dubbed “Assessment of the Compatibility of Procedural Laws for Strategic Litigation in Ethiopia.” The research was carried out in collaboration with Konrad-Adenauer-Stiftung (KAS) Office Ethiopia/African Union and Lawyers for Human Rights (LHR), and renowned judges, prosecutors, public interest litigators, representatives from judicial training institutions, MPs, lawyers, NGOs, government officials and scholars were in attendance.

Mesenbet sat down with The Reporter’s Ashenafi Endale for a crash course on the concept of strategic litigation, its potential for legal inclusivity and human rights violation cases in Ethiopia, and the obstacles that have made it difficult for strategic litigation to take root. EXCERPTS:

Ethiopia’s judicial system is often criticized for leaving no room for human rights issues, particularly as the courts litigate only civilian and criminal cases and not human rights cases. How many human rights violations do you think go unaddressed?

The protection of human rights and fundamental freedoms is one of the most important elements of the Ethiopian constitution. One-third of the constitution is devoted to the protection of human rights. One of its remarkable aspects is that it includes all categories of human rights. A closer look at the provisions of the constitution indicates that civil and political, socio-economic, and even third-generation human rights such as the right to development and the right to clean environment are also protected. The  constitution also recognizes the application of international human rights norms in giving effect to the meaning and scope of human rights protected in it. Moreover, the constitution establishes an independent judiciary that has the primary mandate of ensuring the protection of human rights.

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Nevertheless, the effective protection of human rights in the particular context of Ethiopia has been problematic because of various legal, institutional and political factors. One of the main challenges that continues to constrain the effective legal protection of human rights is the complex procedural hurdles in the civil procedure code, and the broader rules of evidence and  procedure. While the language of the constitution seems to be generous in terms of providing  access to justice to all justiciable matters including human rights, the various procedural requirements in Ethiopian laws have created a major legal hurdle for the effective application of human rights norms in Ethiopia. This is all the more difficult when it comes to strategic litigation. The potential to address wide-ranging human rights and social justice issues cannot be effectively achieved unless these complex legal issues are identified and properly addressed. In this regard the assessment study on the compatibility of procedural laws to strategic litigation in Ethiopia will have a significant contribution to improve the legal framework for  improved access to justice, strategic litigation and the broader judicial protection of human rights.

Research indicates there are very limited cases where human rights cases are taken to court. Is it due to the absence of legislation, lack of court mandates on human rights, or reluctance from judges to see human rights cases at regular courts?

We have carried out an assessment on the trend of human rights litigation in Ethiopia. We did this research in collaboration with Lawyers for Human Rights (LRH) and KAS. The study assessed challenges in Ethiopia’s procedural laws on strategic litigation. Strategic litigations are basically cases of human rights violations.

Strategic litigation has the objective of serving public interest. Unlike the traditional, individualized forms of litigation, the objective is to have broader societal impact and to make justice accessible to marginalized communities particularly. In this assessment study, we analyzed both the civil procedure code, the constitution, and several proclamations including the civil procedural proclamation. We analyzed their opportunities and limitations in strategic litigation.

There are challenges obviously because there is a lack of understanding of the concept of strategic litigation. The Ethiopian legal system does not have experience in strategic litigation. But strategic litigation is a source of social change. If you take a look at the Brown vs. Board of Education [case] brought to court by the American Civil Liberties Union (ACLU) in the 1960s, strategic litigation desegregated the racialized school system in America, and in many other jurisdictions also. We want to introduce that concept to Ethiopia.

The impact of strategic litigation goes beyond the legal sphere. At the heart of strategic litigation, as the name implies, is the objective of remedying structural injustices in society and ensuring respect for human rights of all, especially marginalized groups. This is demonstrated by the fact that historically some of the most significant strategic litigation cases have been litigated by public interest groups including the ACLU, which was instrumental in litigating some of the most enduring public interest litigation cases.

The ACLU  was pivotal in leading the case of Brown vs. Board of Education that fundamentally changed  segregated schools in the United States and in which the US Supreme Court made one of the  most significant decisions in its history. It ruled that separating children in public schools based on race was a violation of the 14th Amendment, which protects the right to equality and equal protection of the law. In more recent times, the growing influence and use of strategic litigation in many areas of legal and  policy reform such as fighting discrimination, environmental protection, refugee protection and other diverse areas has promoted a growing academic interest and scholarship on strategic litigation.

There are some opportunities in Ethiopia now. The revised Federal Court Proclamation, unlike the civil procedure code, and other procedures in Ethiopia, has some provisions. It allows not only individuals who have vested interest but also institutions and individuals who have sufficient reason to bring human rights violation cases before a court of law.

Through these processes we are initiating legal proceedings on private parties, state agencies that are violating human rights and public interest. The objective is a society should be ruled by law and these are rules the state has adopted. Both individuals, private entities and state actors must respect that broader concept of injecting rule of law and bringing social change and making justice accessible.

Nevertheless, there should be careful consideration of the consequences and effects of strategic litigation of human rights. For the most part, pursuing the strategic litigation of human rights is a positive step as it has noble ideas of social justice and addressing larger societal problems. But, a sound analysis of a strategic litigation should also consider any possible negative outcomes that could be counterproductive to that process. Advocates of strategic litigation of human rights provide the following key precautions in considering some of the issues related to its pitfalls.

First, potential litigants should consider the costly nature of strategic litigation and recognize that strategic litigation of human rights  involves a significant resource investment which may create barriers for litigation. Second, the inherent uncertainty in what outcome that litigation brings also creates difficulties in planning and predicting the outcome and as such it is advisable to plan for negative outcomes and the means of mitigating these outcomes. The unsuccessful outcome of a strategic litigation may  also trigger negative publicity towards the person or organization that brought the case in some cases. The research paper will address these issues further in its subsequent sections.

What are the forms of human rights violations that fall under strategic litigation?

The constitution is the broadest source of human rights protection in Ethiopia. Human rights are protected by the most fundamental of all laws, which is the constitution. Ethiopia’s constitution is very generous when it comes to human rights. From article 13 to article 44, it provides broad ranges of human rights in the form of socio-economic rights, political rights, labor rights, development rights, and democratic rights, and others.

The problem has been how to implement the constitution in a way that can have an impact on society. Especially in cases that involve collective rights and public interest like environmental pollution, violence against women, and other forms of human rights violations. These involve the interest of the state, CSOs, and others.

Our attempt now is to introduce the concept of strategic litigation into Ethiopia. We have a number of stakeholders here, from courts, prosecutors, public interest litigators, judicial training institutions, lawyers, NGOs, government and scholars. We have discussed potential avenues to introduce strategic litigation in Ethiopia.

If there are needs for legal reforms, we can identify them and improve them. This was the subject of the discussion.

Do ethnic violence cases and conflict issues also fall under strategic litigation? How do you relate transitional justice to strategic litigation?

The transitional justice arrangement has its own distinct process. There is also a policy adopted by the Ministry of Justice, which is being followed up. It is not finalized.

In strategic litigation, we do not rule out anything. Women’s and children’s rights, environmental, and many other issues can be seen under strategic litigation. As long as the objective is to serve justice, and that should be done based on the principles of law adopted; all agencies of the state, non-state actors, and citizens should support these causes as much as possible.

Apart from the absence of legal venues, what are the challenges of initiating or filing human rights cases at Ethiopian courts?

Most people, including lawyers and CSOs, in Ethiopia are unaware of strategic litigation and its utility in legal discourse. This is due to a number of factors, including the limited development of strategic litigation in Ethiopia, the lack of specialized training for judges and lawyers on  strategic litigation, and the lack of public awareness on strategic litigation. Ninety percent of respondents in our research indicated they believe that lack of awareness and exposure to strategic litigation is the main cause of underdevelopment of strategic litigation of human rights in the Ethiopian legal system.

The lack of specialized courts for human rights cases can make it difficult for strategic litigants to have their cases heard by judges who are familiar with the relevant international human rights laws and standards. As most judges are busy with entertaining civil and private matters such as property law and family law, it is difficult and time-consuming for them to entertain human rights cases. The establishment of the human rights division at the Federal High Court is seen as a positive outcome of the new law. It has opened up possibilities for  entertaining cases that were previously not practiced. However, many respondents in the  questionnaires indicated that this adoption of the law is not fully adequate due to various factors, including the negative attitudes of judges, public prosecutors, public defenders, and  lawyers. They argue that a comprehensive and effective implementation of the law requires a shift in approach from these key stakeholders. The challenges faced by the human rights bench are also evident in the execution and enforcement of its decisions, which further highlights the  need for a more robust and committed enforcement of human rights by the courts.

The cost of litigation in Ethiopia is also high, particularly for complex cases. Strategic litigation often  requires the retention of specialized lawyers and experts, which can be very expensive. Additionally, as strategic litigation requires injunction, restitution and pecuniary remedies for the victims of human rights violations and as it involves many victims, the court fees could be very high.

For instance, court fees for 50 million birr relief for the violation of environmental rights is 502,850 birr and if it is 100 million birr, the cost of litigation becomes one million birr. It is impossible for strategic litigants to pay the fee.

This poses a significant challenge because strategic litigation often involves advocating for causes that serve the broader public interest. Logically, it seems unjust that individuals or organizations engaged in strategic litigation, driven by the goal of promoting public welfare, are burdened with court fees. This situation raises concerns regarding the affordability and accessibility of the legal system. If individuals or organizations seeking to address human rights violations or other matters of public concern are deterred from pursuing litigation due to the financial burden, it undermines the fundamental principles of justice and equal access to legal remedies. The expense associated with court fees can discourage potential litigants from bringing forward meritorious cases, thereby impeding progress in advancing human rights and social justice. This creates a dilemma where those most in need of legal protection and redress may be deprived of their rights simply due to financial constraints. As a result of this, those few strategic cases brought before the court are compelled to request the court for non-pecuniary reliefs such as injection and restoration.

A significant number of respondents noted that fear of reprisal from the government is also a significant challenge for strategic litigants in Ethiopia. The Ethiopian government has a history of harassing and intimidating human rights defenders and lawyers who challenge the government’s policies and practices. This can create a climate of fear in which strategic litigants are afraid to bring cases against the government. There are a number of ways in which the Ethiopian government has harassed and intimidated human rights defenders, lawyers and even judges.

For instance, the government has arrested and detained human rights defenders and lawyers and placed  human rights defenders and lawyers under surveillance, raided the offices of human rights  organizations, prosecuted human rights defenders and lawyers, threatened and harassed human rights defenders and lawyers and their families. This climate of fear can deter strategic litigants from bringing cases against the government. Strategic litigants may be afraid of being arrested, detained, or prosecuted. Strategic litigants are afraid of losing their jobs, their homes, or their livelihoods. The fear of reprisal from the government is a particularly serious challenge for strategic litigants who are challenging the government’s human rights record. The data shows the Ethiopian government has a poor human rights record and it is sensitive to criticism of its human rights policies and practices. As a result, the government is more likely to harass and intimidate strategic litigants who are challenging it.

There have been mass demolitions and evictions in Sheger City and now in the capital. The victims, businesses as well as residents, often go to the institution of the Ombudsman because there are no courts where they can air their grievances. Can strategic litigation create venues for such issues?

The ‘development induced displacement’ has been a subject of controversy obviously. On one hand the government has every right to carry out development projects. But any development projects should be done based on principles of law.

These victims should have a venue to court, apart from the Ombudsman. This is exactly why we need to have strategic litigation, to support communities affected. If there are any illegitimate government projects, there must be a venue for victims to access justice. There has to be an avenue.

Which courts in Ethiopia have the mandate to see human rights violations? And are they free from government pressures?

Proclamation 12/34 assigns human rights issues to the Federal High Court. But there are discussions ongoing whether the High Court is the best venue for approaching human rights cases. But there are dedicated courts to handle such cases so we believe strategic litigation is taking root in Ethiopia.

We hope they are impartial because the constitution says there is an independent judiciary established. We tend to believe that they should be impartial.

After this validation workshop on the assessment on challenges on human rights litigation in Ethiopia, what would be the next step? What are the expectations?

We had very good inputs from stakeholders on the assessment study on strategic litigation venues in Ethiopia. Based on the critiques and suggestions and inputs we have collected, we will produce the final research document. It will be used for legal reforms in Ethiopia to enable strategic litigation to take root.

Because strategic litigation usually comes from very marginalized communities, it cannot be successful without pro bono services, and raising awareness of the judicial system.

Procedural law creates the most challenging situations for the application of strategic litigation. This must improve. The study shows that a large number of respondents identified difficulties in successfully  filing a case for strategic litigation under the Civil Procedure Code. This suggests that  there are obstacles such as complex procedural requirements, lack of clarity in the filing  process, or limited access to legal assistance that impede individuals or organizations from initiating strategic litigation cases. The laws currently applicable should have the flexibility to entertain strategic litigation of human rights cases, in line with the spirit of Article 37 of  the constitution and the evolving international and comparative law on strategic litigation of human rights.

Filling a case emerged as the most common challenge reported by respondents and providing evidence was identified as the next major challenge in human rights strategic litigation under the Civil Procedure Code. This indicates that there are difficulties in gathering, presenting, and substantiating the necessary evidence to support the claims made in the litigation. Other constraints include issues related to accessing relevant  documentation, obtaining testimonies, or allocating resources to meet the evidentiary requirements of the case. In contrast, the data indicates that the challenges related to the  hearing as well as decision and relief stages were reported by a smaller number of  respondents. This implies that once a case has progressed to these stages, the procedural  obstacles may be somewhat alleviated, and the focus shifts more towards presenting  arguments and obtaining a final determination.
All these obstacles can be resolved and we hope strategic litigation will take root in Ethiopia soon. In the meantime we also need to exploit the opportunities in the existing system and operate within the available venues.

What is your view on the transitional justice initiative currently underway?

Transitional justice discussion has been going on for a very long time. Transitional justice includes three basic elements. It must ensure accountability, reconciliation, and peace and security. We just need to follow through, very seriously. This is because transitional justice will have long-term legal, political, and socio-economic repercussions. If you do not create accountable systems in governance, tomorrow, the same problem would arise. Ethiopia must stick to implementing these elements. There is much expectation from the public on the transitional justice initiative.

[speaker]
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