Establishing the Attorney-General: Reconstructing the justice system or heralding a new one?
The Ethiopian justice system has been one of the most struggling government institutions for decades. Cognizant of these challenges, the Government of Ethiopia has tried its hand on a number of reform programs and measures directed to this sector. It appears that once again the government is on a reform weave and the latest on the reform agenda is the reestablishment of the Office of the Attorney General. However, many in the legal community and the public look to be pessimistic from the outset, writes Solomon Goshu.
South Africa's constitutional court ordered President Jacob Zuma on March 31, 2016 to pay back some USD 16 million of state money spent upgrading his private home. The unanimous ruling by the 11-judge constitutional court, a central pillar of the democracy established at the end of apartheid, also said Zuma had failed to "uphold, defend and respect" the constitution by ignoring Public Protector Thuli Madonsela's findings on his sprawling residence at Nkandla in rural KwaZulu-Natal.
The ordeal started when Zuma completed a renovation process in his rural home, which according to corruption watchdogs in South Africa, is unconstitutionally paid for by the state.
According to South African law, the state is legally bound to cover the expense of the upgrade on the president’s private living quarters as long as it constitute security-related spending. Earlier on, Zuma argued that all of the spending that the state paid for in his private house renovation project was strictly security-related.
In 2014, Madonsela, a constitutionally mandated anti-corruption watchdog, identified a swimming pool, cattle enclosure, chicken run, amphitheatre and a visitor center as non-security items that Zuma had the state pay for; and demanded that the president must pay state back.
Though the president ignored the calls of the corruption watchdog, later on the following the ruling of the country’s constitutional court, Zuma issued an official apology to the public protector and vowed to comply with the ruling.
One wonders if such a thing is even possible in Ethiopia. Let alone courts and public prosecutors passing a decision against the head of the government, it is common to see top level officials in Ethiopia ignoring court summon and overall participation in the process. In the case of South Africa, the Directors of Public Prosecutions is organized to function autonomously from the head of the executive body. Detailed safeguards are provided in the Constitution. The South African Constitution clearly outlines ways on how to establish a prosecuting authority. Article 179 (1) of the Constitution stipulates that there is a single national prosecuting authority in the Republic, consisting of a National Director of Public Prosecutions, who is the head of the prosecuting authority, and is appointed by the President, and Directors of Public Prosecutions. Moreover, the Constitution provides the minimum standards of the Directors of Public Prosecutions that the national legislation must ensure including being appropriately qualified, and exercising its functions without fear, favor or prejudice.
Contrary to South Africa’s experience, the FDRE Constitution is silent on the prosecution organ. As a result, in the last 20 years, different piecemeal legislations have governed the prosecutorial aspects of the justice system. True, even an ardent supporter of the ruling government would have to acknowledge that the Ethiopian justice system is in serious trouble. Instability seems to be its main character. Many research findings suggest a complete overhaul of the justice system so that citizens can exercise their rights as embodied in and guaranteed by the FDRE Constitution.
It was against this bleak backdrop that the Justice Sector Reform Program was launched in 2004. In 2005, Justice System Reform Program Office of the now defunct Ministry of Capacity Building published the Baseline Study Report through its consultant, the Netherlands’ Center for International Legal Cooperation. The report dealt with the Law Making and Revision, the Judiciary, the Law Enforcement (Prosecution, Police and Penitentiary System), the Legal Education and the Information Flow within and outside the Justice System. The study highlights major shortcomings in the justice system and proposes changes in the form of recommendations.
The main findings of the study shows that the existing legislative and regulatory procedure leads to a fragmentation of the legal system, and a lack of coherence between existing codes and laws result in an uncertainty as to the legal norm. It also indicates that the lack of consultation with various stakeholders in the drafting process prevents drafters from fully meeting the needs of society for lack of precise information. According to the report, serious steps to tackle corruption, abuse of power and political interference in the administration of justice have yet to be taken.
The report also concludes that the fact that the authority of federal prosecution is vested on the Ministry of Justice which combines judicial and executive powers is a serious problem. The study also highlights the negative impacts of other government offices also having prosecutorial authority. “The fragmentation of public prosecution weakens the institution, especially as different prosecution authorities are accountable to different ministries. This may be detrimental to the independence of the Public Prosecution Service,” it states.
One of the recommendations states that the political/executive and judicial powers of the Minister of Justice should be divided. “An Office of the Prosecutor General, which has a judicial rather than executive relationship, should be established. The Minister of Justice should not be making day-to-day operational decisions in the Public Prosecution Service, nor should s/he be reviewing or changing decisions taken by line prosecutors,” it suggests.
On March 22, 2016 a draft proclamation for the establishment of the Office of thhe Attorney General was presented to the parliament. It is not clear what immediate cause has pushed the government to table the draft proclamation before parliament. However, it is the contention of the government that it was in the making in the last 12 years. What is surprising is in the period between the unveiling of the baseline study and the presentation of the draft proclamation to the parliament; the acts of the government were totally in contradiction to the recommendations. One notable change to such a trend is visible from the draft: prosecutorial power is consolidated under the Attorney General with the exception of the military.
The preamble of the draft lists the purpose of the law. Accordingly, the draft law is prepared to establish one strong law enforcement public prosecution institution which can comprehensively protect public and government interest and deliver uniform effective and efficient service; to enforce rule of law; to organize public prosecution institution governed by professional, institutional and public accountability that works with transparency and participation and serves with full independence and win public trust.
Obviously, any institution that successfully discharges these purposes will make a fundamental change to the struggling justice system of Ethiopia. Time will tell whether the intended purposes are going to see the light of day. However, many commentators are pessimist from the outset. “Structurally, the changes are symbolic. The Federal Attorney General is not organized in a way to solve the key problems of the justice system. Taking the past performance of the Ministry of Justice, and the political and institution building cultures of the country into account, no doubt, it will face serious obstacles to realize these objectives,” Alemu Mihretu (PhD), criminal justice expert, says.
In fact, the government’s plan of establishing the Attorney General was a subject of discussion in the legal community and media practitioners for a while. However, after looking at the draft and heard or read the news on the draft, it is clear that what they expected and what the government proposed are miles apart.
“Before I take a look at the draft proclamation it was my impression that the Attorney General will be an autonomous organ that only handles judicial or prosecutorial aspect. Unlike my expectation, the draft just adds more powers on what used to be the power of the Ministry of Justice and changes the name to the Attorney General,” Alemu says.
Alemu is not alone to in having a serious reservation on the draft proclamation. On a parliamentary public hearing organized by the Legal and Justice Administration Affairs Standing Committee on April 4, 2016, there were others who expressed concerns. Simeneh Kiros, a criminal justice expert and a practitioner who published two books on the Ethiopian criminal justice system, said that the Attorney General presented in the draft is different from the traditionally recognized ones. “I see the grace of the Attorney General both as an organ and individual when he prosecutes ministers and other higher officials and win the case after personally litigating it in the courtroom. I expect the role of the Attorney General to reach to this level,” Simeneh said.
It seems that Simeneh and many more others wish to see an Attorney General independent enough to have a say on the activities of the executive branch of the government and its officials just like what is happening in South Africa. It is interesting to note that in the explanatory note attached to the draft proclamation, it is expressed that South Africa is one of the countries’ experiences consulted in the preparation of the draft alongside the US, Canada, France, Germany and Kenya.
At a parliamentary public hearing, Sisay Mengiste, federalism expert from the Addis Ababa University, College of Law and Governance Studies, questioned the merits of emphasizing on comparative study without thoroughly examining and evaluating the weaknesses and successes of the domestic experience.
Overall, the structure of prosecuting authority is different from country to country depending on the political and legal culture of each society. However, experts identify two major classifications. On the one hand, Attorney General can be created under the Ministry of Justice which mainly serves as prosecuting authority and the chief legal adviser of the government. On the other hand, while the Ministry of Justice deals with political issues of the justice system, the Attorney General or the Director of Public Prosecutors under it performs prosecutorial function. For Alemu, what is provided in the draft proclamation is different from both models. “In both models, the public prosecutors discharge their responsibilities autonomously and free from the influences of the executive. The exceptional ways in which the executive intervenes in prosecution is well regulated by law. For instance, in Canada, the Attorney General gives prior notice and justification in writing when it intends to intervene in prosecution. It is also published in the Canadian Law Gazette. As a result, there will not be abuse of power and partisan political intervention. In the Ethiopian case, there is no independent prosecution office,” Alemu observes.
Bite off more than one can chew
The powers and duties of the Federal Attorney General include: preparing criminal justice policy, working as principal advisor and representative of the federal government regarding law. It also includes powers like causing criminal investigation to be started and ordering discontinuation or restart of discontinued investigations. The Attorney General can also receive and give decision on appeals presented by the police against decisions given at different levels of the public prosecution. He can also conduct plea bargaining, instituting criminal case charges by representing the federal government, following the implementation and enforcement of judgments and orders given by courts under criminal case. Furthermore, the Attorney General organizes the establishment of systems for the proper execution of criminal punishments imposed by a court of law. He can institute civil suits on behalf of government officials and represent them in civil litigation where they sue or be sued. He can also represent the government in litigations and conduct negotiations at international judicial or quasi-judicial bodies where the Government of Ethiopia sues or is being sued.
Still further, he can prepare draft laws to be promulgated by the federal government and ensure that draft laws prepared by government organs are consistent with the Constitution. He can also undertake legal reform studies and carry out codification, compilation and consolidation of federal laws, ensuring that international agreements to be signed or adopted by Ethiopia are in consonant with the Constitution and other laws of the country. The reforms should also be acceptable in view of the standards of national interest while ensuring the implementation of laws enacted by federal government and the consistency of their implementation and that the federal government offices.
In fact, the list of powers and duties of the Attorney General is not limited to these. Pursuant to the draft law, the powers and duties of the Ministry of Justice are transferred to the Attorney General. Similarly, the prosecution powers of the Federal Ethics and Anti-Corruption Commission, the Revenues and Customs Authority, and the Trade Competition and Consumers Protection Authority are transferred to the Attorney General.
According to many legal experts, the decision to merge all prosecutorial power under one institution is appropriate. “It is a delayed response from the government,” Sisay says. Instead, the central challenge of the Attorney General comes from the overstretched powers and duties on political issues. In addition to the fact that the Attorney General lacks the capacity to handle all the activities, the nature of these areas is feared of creating a negative impact on its autonomy.
However, considering that the investigation powers of these agencies are stripped of as well, some complain that the decision would have a negative impact on their performance. In this context, some assert that the fight against corruption will be undermined in the process. “Making the crime of corruption to be considered as ordinary crime is questionable and should be carefully revised. Anti-corruption commissions in other countries have investigation powers. Because corruption needs to be investigated by an organ independent from the executive,” points out Haregot Abrha from the Federal Ethics and Anti-corruption Commission.
Getachew Ambaye, minister of Justice, contends that, characteristically, investigation and prosecution powers belong to the police and public prosecution, respectively. “So, considering that the Federal Ethics and Anti-Corruption Commission and the Revenues and Customs Authority ceased to exist in the absence of investigation and prosecution power is unfounded and erroneous,” Getachew explains. The minister also said that fighting corruption is still a government priority as it is now becoming a direct threat on the system. “The new approach will strength the practice of having checks and balances. Now, these institutions can question the police and the public prosecutor. In the past, no one questioned their decision. Thus, the fight against corruption will even be stronger,” Getachew adds.
The power of the Attorney General in the affairs of human rights and international law is also criticized. It is feared that the move will further erode the already weakened position of the democratic institutions like the Human Rights Commission. “International law is the result of a long time discussion, conversation and agreement in the diplomatic forums. As a result, it is the Ministry of Foreign Affairs that takes the lead on the matter. The Ministry of Justice becomes part of the negotiation when the agreement passes through the process of becoming a domestic law so as to adjust its impact on the country’s justice system. What is the consideration behind the proposed change,” Ephrem Bezuayehu, Human Rights Director at the Ministry of Foreign Affairs asks.
The draft law seems to affect the activities of democratic institutions in general, and the judiciary and the House of Federation in particular. Some of the powers and duties are also criticized for being inherently and characteristically unsuited to the jurisdictions of the Attorney General. “For instance, legal auditing should be handled by other independent institutions,” Alemu states.
Placing all these activities under one institution seems to be too much to handle. “You cannot be effective and efficient with all these tasks,” Alemu maintains. Similarly, Semeneh predicts that the new approach will not succeed. “The number of responsibilities the new institution shouldered is way beyond its capacity. I don’t believe that we will achieve the intended result this way,” he maintains.
In response, the government points out that the capacity of the Attorney General will be adjusted to fit to the purpose. “It is not like as if one or two persons handle all these activities. We will have division of labor. Who is in charge of what and how is going to be sorted out. We have six months of transition to prepare ourselves for that,” Getachew says.
Many commentators also observe that the draft not dealing with the recruitment and selection criteria of the Attorney General is a serious omission. “Among other things, merit and strong personality should have been listed as criteria. Studies and the experiences of other countries show that the integrity of the individual is key for the autonomy of the institution. In the absence of clear criteria, it is easy to guess what type of individuals would come to power,” Alemu says.
Old wine in a new bottle
For Abdu Ali Higera, a senior law and political analyst, the draft introduces a new beginning with a sense of guilt on behalf of the government as it admits the total failure of the current approach of the justice system. “Destroying everything and starting from the scratch is a common phenomenon in the justice system. The law making procedure is the key problem in all these. The draft proclamation shows that the justice system is on a dangerous crossroad. Without a substantial law governing plea bargaining and withdrawal of charges, the law is giving jurisdictional power. This is not proper,” Abdu contests.
“Soon proclamations aimed at strengthening the Ministry of Justice and the Federal Police will be disclosed. Forces participating in the corruption chain will be dismantled through it,” Prime Minister Hailemariam Dessalegn, told MPs recently when presenting the six-month performance of his government. Even though, the word “reform” is one of the few words the PM often uses since coming to power four years ago, in reality, the system continues to work without fundamental change. He promised to take serious measures on corruption. Yet, while his government admits that corruption is a threat to the survival of the system, only a handful of lowly officials have lost their jobs because of it, and few of them prosecuted.
“Instability of the law on executives requires a broader study. The continuously changing political condition of the country has its impact on it. The weak institutional building and legal culture, enacting policies and laws without adequate study, and lack of meaningful participation on the draft laws are also other factors. This draft itself is not free from these defects,” Alemu adds.
Autonomy and accountability
Article 16 (1) states that the Federal Attorney General discharges its powers and duties based on law independently free from any person or body’s interference. By any stroke of measurement, this is indeed an encouraging stance to salvage the justice system which is highly criticized for succumbing to the interference of the executive organ since the beginning. In the Ethiopian government structure, the executive remains to be the ever dominant organ.
However, many other provisions in the draft law invite politically-motivated abuse and interference of the executive, according to experts. For instance, according to Article 3 (2), the Federal Attorney General is accountable to the Prime Minister and the Council of Ministers. In addition, the Attorney General and the Deputy Attorney Generals may be removed from their position by the decision of the Prime Minister even if the Attorney General is appointed by the House of Peoples Representatives. Moreover, under Article 6, one of the powers and duties of the Federal Attorney General is withdrawing and resuming withdrew charges by consulting the Prime Minister when found necessary in the interest of the public.
Members of the legal community voiced concern about the impacts of the Attorney General’s accountability to the Prime Minister. Combining political and prosecutorial roles for the Attorney General is also identified as a serious danger to autonomy of the justice system. Alemu argues that the involvement of the executive especially the Prime Minister on the day-to-day prosecutorial activities of the Attorney General will erode the institutional and professional autonomy of the office. “Removing the Attorney General by the Prime Minister like any other appointee exposes the institution for unwarranted political interference. It also denies office terms. In other countries, Attorney Generals do not leave office before their term expires. Without job security, the Attorney General will be dependent on the Prime Minister. If you want independent and strong institution, such approach is not appropriate. Moreover, withdrawing and resuming charges is the duty of the prosecutor. Even for public interest, consulting the Prime Minister in such a process is not appropriate. The experiences of other countries show that let alone the head of the government, even the Attorney General intervenes on limited issues like national security and diplomatic relations, and with clear procedure which mostly involves written notice. And, the word “public interest” is a vague one subject to abuse in Ethiopia,” Alemu contends.
In the draft proclamation, the Attorney General is established as a Ministerial office. To Getachew, this shows that the office is one wing of the executive and a member of the Council of Ministers. “As one member of the Cabinet, the appointment needs to get the approval of the parliament. However, when a member of the Cabinet is dismissed, the parliament is not required to approve it. So, why would the case of Attorney General be different? And, I don’t see how this erodes its professional independence,” Getachew attempts to justify and defend the position in the draft law. However, Getachew’s explanation fails to provide reasons for why other proclamations establishing ministerial offices do not have a double accountability arrangement as well. Furthermore, the other ministries are not necessarily watchdog institutions on the executive.
The great majority in the legal community suggest that the Ministry of Justice should remain a political organ. They are of the opinion that a special and independent organ responsible to discharge prosecutorial role be established instead.
Centralizing the justice system
To some analysts, the draft proclamation is a sign of the federal government’s particularly the executive’s interest in centralizing the decision-making process. “The draft has a sense of centralizing the decision-making process in the justice system,” Alemu says.
There is no question that the draft proclamation is full of new ideas. But some are of the opinion that these new ideas serve as little more than window dressing meant to give a new reform image.
The Public Prosecution Service is formally part of the executive branch of government. However, necessary safeguards are provided to insulate the uninhibited interference of the executive in the day-to-day activities of public prosecutors. One key reason not to put much faith in the latest reform proposal can be found by looking at the structure and content of the Attorney General. What worries many Ethiopians now is their well-entrenched doubt and suspicion that the executive is trying to force citizens abide by it without the former respecting it for itself. For starters, the talk of the corrupt justice system prevailing in the country is the government’s own admission. One consequence of this is the further degradation of public trust on the justice system. That’s worrisome, many analysts say.
To make a fundamental change on such perception, the reform proposals need to be genuine. The distinction between political and legal functions should be visible beyond a semblance of autonomous relations between organs. Considering the upper hand of politics over law in this country for so long, establishing an independent prosecution is a timely task. The bottom line is that the creation of independent Attorney General means nothing is off-limits, even the top echelon of the executive all the way up to the the Prime Minister. Then it can be safely imagined that any undue activity in the Office of the Prime Minister is under the supervision of the watchful eyes of the Attorney General.