Courts' Role in Applying Human Rights in Ethiopia

Ghetnet Metiku Woldegiorgis
gmgiorgis@gmail.com Page 1
The powers of courts in Ethiopia in the interpretation and application of international human rights provisions
Contents
1 Introduction .......................................................................................................................................... 2
2 The Judiciary ......................................................................................................................................... 2
2.1 Federal Courts ............................................................................................................................... 2
2.2 State Courts ................................................................................................................................... 3
2.3 Municipal Courts ........................................................................................................................... 3
2.4 Religious Courts ............................................................................................................................ 3
3 International Human Rights Instruments Ratified by Ethiopia ............................................................. 4
3.1 Status ............................................................................................................................................ 5
3.2 Justicibility ..................................................................................................................................... 6
4 The Powers of the Judiciary .................................................................................................................. 7
4.1 Duty to Protect and Promote Human Rights ................................................................................ 7
4.2 Role in Constitutional Interpretation ............................................................................................ 8
5 Challenges ............................................................................................................................................. 9
5.1 Status of International Human Rights Instruments ...................................................................... 9
5.2 The Mandate of the HoF under the Constitution ......................................................................... 9
5.3 Absence of Official Publications of International Instruments ..................................................... 9
5.4 Limited Domestic Legislation on the Substance and Scope of Rights........................................... 9
References .................................................................................................................................................. 10

1 Introduction
The role of the judiciary in the protection of human rights has been widely recognized. However, the discourse has not been without its controversies. This brief piece seeks to briefly explore these issues in the specific context of Ethiopia. As indicated by the topic, the focus here is on the implementation of the provisions of international human rights instruments.
2 The Judiciary
The FDRE Constitution provides for the establishment of an independent judiciary vested with judicial power. In line with its federal structure, Ethiopia has a dual judicial system with separately structured federal and state courts.
2.1 Federal Courts
At the federal level, supreme judicial authority is vested in the Federal Supreme Court with subordinate federal courts established by the HPR.1 There is a Federal Supreme Court in Addis Ababa, Federal High Court in five Regional States and the two federal cities, and First Instance Courts in the federal cities.2 Federal courts at any level may hold circuit hearings at any place within the State or “area designated for its jurisdiction” if deemed “necessary for the efficient rendering of justice.”3 The President and Vice- President of the Federal Supreme Court are appointed by the HPR upon nomination by the PM, while other federal judges are appointed by the HPR from a list of candidates selected by the Federal Judicial Administration Commission.4 Judicial independence is guaranteed under the FDRE Constitution which prohibits the removal of judges before retirement age except for a predetermined list of causes as determined by the Federal Judicial Administration Commission.5 The Federal Judicial Administration Commission is a nine-member body comprising of six Federal judges and three members of the House of Representatives6 is also mandated to make determinations on issues of appointment, promotions, disciplinary complaints, and other conditions of employment.7
1 Article 78/2, FDRE Constitution
2 Federal High Court Establishment Proclamation No.322/2003
3 Federal Courts Proclamation 25/1996, as amended by Federal Courts (Amendment) Proclamation 138/1998, Federal Courts (Amendment) Proclamation 254/2001, Federal Courts (Amendment) Proclamation 321/2003, and Federal Courts Proclamation (Re-amendment) Proclamation 454/2005 (Federal Courts Proclamation), Article 24(3)
4 Article 81, FDRE Constitution
6 The members of the Commission are: the President of the Federal Supreme Court, Chairman; the Vice- President of the Federal Supreme Court; three members of the House of Peoples' Representatives; the most senior judge of the Federal Supreme Court; the President of the Federal High Court; the most senior judge of the Federal High Court; and, the President of the Federal First Instance Court.
7 Article 4, Federal Judicial Administration Establishment Proclamation 24/96

2.2 State Courts
The FDRE Constitution provides for the establishment of three levels of State courts: the State Supreme Court, High Courts, and First-Instance Courts.8 State Supreme Courts sit in the capital cities of the respective States and have final judicial authority over matters of State law and jurisdiction. State High Courts sit in the zonal regions of States while State First Instance Courts sit at the lowest administrative levels of States. Moreover, the Constitution delegates to State Supreme Courts and State High Courts the jurisdictions of the Federal High Court and Federal First Instance Courts respectively.9 Decisions of a State High Court exercising the jurisdiction of the Federal First Instance Court are appealable to the State Supreme Court while decisions rendered by a State Supreme Court on federal matters are appealable to the Federal Supreme Court.10
The State systems of judicial administration and accountability mirror the federal process. The State governments have also established Judicial Administration Commissions with a view to safeguarding the independence and accountability of State Courts. With respect to appointment, the President and Vice- President of the State Supreme Court are recommended by the President (Chief Executive Office) of the States and appointed by the State Council; all other State judges are appointed by the State Council based upon recommendations made by the State Judicial Administration Commission. Similar gurantees of tenure of judges exist in State Judicial Administration Commissions.
2.3 Municipal Courts
The Addis Ababa City Charter creates two levels of City Courts exercising municipal jurisdiction: First Instance and Appellate Courts.11 The Federal Supreme Court is mandated to give determinations on jurisdictional conflicts between the city and federal courts.12 The Regional State of Oromia has also established similar Municipal Courts in cities with more than 10, 000 people.
2.4 Religious Courts
Pursuant to article 34 (5) of the FDRE Constitution, disputes arising in relation to marriage, personal and family laws are to be adjudicated in accordance with religious or customary laws, with the consent of the parties thereof. The HPR and State Councils can establish or give official recognition to religious and customary courts. Accordingly, Sharia Courts have been established at federal and state levels13 The Sharia Courts at the federal level have been reconstituted in to a three-level judicial structure, distinct from the regular federal judicial structure. These are: (1) Federal First-Instance Court of Sharia, (2) Federal High Court of Sharia, and (3) Federal Supreme Court of Sharia. Like the federal state judicial organs, all the federal Sharia courts have been made accountable to the Federal Judicial Administration
10 Article 80/5 and 6, FDRE Constitution
11 Articles 39/1 and 43, Addis Ababa City Government Revised Charter Proclamation 311/2003
12 Article 42, Addis Ababa City Government Revised Charter Proclamation 311/2003
13 Implementation of the African Charter on Human and Peoples’ Rights: Combined Report of the initial and four periodic reports to the African Commission on Human and Peoples’ Rights (2009) para. 41.

Commission. All of the State Councils have also given official recognition to Sharia Courts within their respective jurisdictions. Federal Courts of Sharia have common jurisdiction over the following matters:14
 any question regarding marriage, divorce, maintenance, guardianship of minors and family relationships; provided that the marriage to which the question relates was concluded or the parties have consented to be adjudicated in accordance with Islamic law;
 any question regarding Wakf, gift/Hiba/, succession of wills, provided that the endower or donor is a Muslim or the deceased was a Muslim at the time of his death;
 any question regarding payment of costs incurred in any suit relating to the aforementioned matters.
As per the governing legislation,15 Sharia Courts follow the procedural rules of ordinary courts and receive their budgets from the state. Parties must voluntarily submit to the jurisdiction of these courts, expressly or tacitly.
3 International Human Rights Instruments Ratified by Ethiopia
Ethiopia has signed the UDHR and ratified almost all of the major international and regional human rights instruments including the ICCPR, ICESCR, CEDAW, UNCRC, CERD, CAT and the PwDs Convention. The following table identifies some of these instruments with the date of adoption and ratification.
Major Human Rights Instruments Ratified by the Government of Ethiopia
The human rights instrument
Adopted (UN)
Ratified (Ethiopia)
The International Covenant on Economic, Social and Cultural Rights
1966
June 11 1993
The International Covenant on Civil and Political Rights
1966
June 11 1993
International Convention on the Elimination of All Forms of Racial Discrimination
1965
June 23 1976
Convention against Torture and other Cruel, Inhumane or Degrading Treatment
1984
March 14 1994
Convention on the Elimination of All Forms of Discrimination against Women
1979
September 10 1981
Convention on the Rights of the Child
1989
May 14 1991
African Charter on Human and Peoples’ Rights
1981
June 2 1998
The 1995 Constitution of the Federal Republic of Ethiopia has an in-built mechanism of incorporating international agreements. Article 9(4) of the FDRE Constitution provides that “all international agreements ratified by Ethiopia are an integral part of the law of the land.” Article 13/2 of the constitution has a specific provision for international human rights instruments such as the UDHR,
14 Article 4/1, Proclamation No. 188/1999
15 Articles 4/2 and 5/2&3, Proclamation 188/1999

ICCPR, and ICESER which also provide standards for the interpretation of the Constitution in matters related to fundamental human rights.
3.1 Status
The Constitutional provisions for the incorporation of international agreements into the Ethiopian legal system do not make explicit determination as to the ‘status’ of the instruments within the hierarchy of laws. This has led to the development of a number of perspectives and arguments attempting to place international human rights instruments within the hierarchy of Ethiopian laws.
One approach starts with the supremacy clause under the FDRE Constitution making the constitution ‘the supreme law of the land’ while international agreements ratified by Ethiopia are referred to as ‘an integral part of the law of the land’. Obviously, this provision places international agreements on a lower level of hierarchy compared to constitutional provisions. This argument has two considerations in its favor. First, the place of a piece of legislation in the hierarchy of laws is normally determined by reference to the source of mandate of the organ promulgating the piece of legislation or its formal source. Since international agreements are adopted by the House of Peoples’ Representatives through a simple majority required for adoption of any piece of primary legislation, they hold the same place as proclamations issued by the HPR. This would put international agreements below constitutional provisions emanating from popular sovereign mandate, and above regulations of the Council of Ministers.16 Secondly, reference to official documentation relating to the drafting of the constitution indicates that this was what was intended by the drafters.
An alternative approach draws upon the stipulations under article 13/2 of the FDRE Constitution providing for the interpretation of the human rights provisions of the constitution in a manner consistent with the provisions of international human rights agreements. the status of ‘standards of interpretation’ for human rights provisions of the Constitution. At least in terms of the contents of the rights, this would put the provisions of international human rights agreements ratified by Ethiopia as well as the UDHR in par with the provisions of the Constitution under Chapter III.17
Still another approach draws from the principles of international law, namely the principles of good faith and pacta sunt servanda under the law of treaties. These principles generally hold that a state party to an international agreement cannot use its domestic laws to shy away from its international responsibilities. From this perspective, the status of the provisions of international human rights instruments is superior to that of constitutional provisions which form part of the domestic laws of Ethiopia.
16 The Constitution, which was adopted by a Constitutional Assembly representing the peoples’ sovereign power, is the supreme law of the land. Next in hierarchy come proclamations issued by the federal legislature, i.e. the House of People’s Representatives. Regulations issued by the Council of Ministers under legislative mandate delegated by the HPR occupy the next level. Finally, directives issued by any of the executive bodies appointed by the Executive are the lowest in the hierarchy.
17 One could also argue that the fact that the provisions of international human rights instruments are used as standards of interpretation for the provisions of Chapter III gives them a higher position than the constitutional provisions.

3.2 Justicibility
For rights to have meaning, effective remedies must be available to redress violations. This requirement is implicit in and consistently referred to in the major international human rights treaties. The possibility of bringing a case before the courts and seeking a remedy for violations is referred to as justicibility18. As such, justicibility is a key feature of a right referring to the ability to use a human rights standard before the courts or to enforce such rights. The issue of justicibility is directly related to the manner and effects of incorporation (or domestication) of international agreements.
The incorporation of international human rights agreements is intended into domestic law is intended to enable the direct application of the provisions therein in the domestic courts as well as facilitating implementation by national authorities. International practice show that states tend to follow either the monist or dualist approaches to the incorporation of international agreements.19 The former is based on the principle that international and domestic laws have identical sources, subjects and substantive contents. Hence, domestic courts can directly invoke and apply international agreements without the need for an “enabling legislation” from the domestic legislature, say in some instances when the treaty itself requires that. The dualist approach on the other hand asserts that international law and municipal laws have different subjects and operate on different planes, thus requiring at all times a ‘domestic version’ of the treaty, which is carried out by either annexing the treaty to an enabling legislation or rewriting it.
The legislative practice in Ethiopia involves publication of the fact of ratification in the official legal gazette. With the exception of the OAU Establishment Charter that was reproduced in the Negarit Gazeta,20 the texts of international agreements ratified by Ethiopia are not included in the body or annexes to the enabling legislation. This practice, considered in conjunction with article 9/4 of the Constitution, suggests that courts can directly apply the text of the agreements upon ratification without the need for further legislative measures. However, this approach does raise some important challenges in the justicibility of international human rights agreements.
Courts in Ethiopia are required by law to take legal notice of laws published in the official law gazette21. This had in the past pushed the very applicability of international agreements in judicial proceedings to the forefront of serious debate, a debate not yet resolved decisively. Moreover, not being published in the official legal gazette deducts from the status of international human rights instruments, especially where in conflict with existing legal provisions or inconsistent practices are entrenched. Availability and accessibility issues also arise since the texts are not published and distributed as part of the legal documents and there are no official translations of the texts of international human rights instruments in the official/working languages of the federal and regional courts. Finally, a more comprehensive
18 UNDP-OHCHR, Toolkit for Collaboration with NHRIs, December 2010
19 Oppenheim L, ‘International Law of Treaties,’ 8th ed., London, Longmans, Green and Co, vol. 1, 1986, pp.37-38
20 OAU Establishment Proclamation No. 202/1963

legislative approach could provide an opportunity to address issues of implementation and justicibility in a more holistic manner.22
4 The Powers of the Judiciary
The overall nature of the judicial function is inherently linked to the enforcement of rights “by determining entitlements, punishing violators, and by redressing the victims”23. This is the reason why courts are considered the custodians of human rights and often referred to as “the bulwark against abusive governmental practices”24. This conception of the nature of the judicial function and the role of courts in the context of human rights is reflected in the international human rights framework as well as the FDRE Constitution.
4.1 Duty to Protect and Promote Human Rights
The responsibilities of the judiciary in the protection and promotion of human rights draws upon the overall idea of state responsibility. The State is the main actor responsible for the realization of human rights for reasons arising from the international as well as national human rights frameworks. At the international level, the State assumes the obligation to take measures for the realization of human rights upon signing international human rights agreements. In general, the recognition of each specific right entails generic obligations to respect, protect and fulfill25 without undue discrimination on the part of the State having become a party to the agreement. Each instrument also contains provisions describing the nature of general and specific measures to be taken by the State towards the implementation of the rights.
“All States have an obligation to endeavour to ensure the widest possible enjoyment of all the rights recognized in the Covenant without any discrimination and on the basis of equal opportunity, paying special attention to the protection of the rights of the most vulnerable segments of the population and to the equitable and effective use of the available resources.”
Mr. Hatem Kotrane, Independent Expert on the question of a draft optional protocol to the International Covenant on Economic, Social and Cultural Rights
22 Typically, the provisions of international instruments are not always self-executing, i.e. they require more detailed domestic legislation to identify mandates, structures, procedures and remedies. In addition to review and promulgation of legislation on various issues, the government could provide for a specific piece of legislation focusing on child rights (a child right bill).
23 Tsegaye Regassa, note 58, September 2009, p. 304
24 Lawrence Friedman, “Turning to the Courts: Human Rights before the Bench” (Book Review), Harvard Human Rights Journal, Vol. 13 (2000), p. 316 [Quoted in: Tsegaye Regassa, September 2009]
25 The State should not directly violate the rights of its citizens (obligation to respect), it should protect its citizens from violations committed by others (obligation to protect), and it should facilitate and promote the full exercise of rights by its citizens, becoming a direct provider in exceptional circumstances (obligation to fulfill).

The state’s obligation to protect human rights involves taking measures to ensure that the rights are not violated by other members of the society. To this end, the state needs to take legislative, executive and enforcement measures. In addition to proscribing or prohibiting violative acts and omissions, this duty covers “the provision of (judicial, administrative, or other) remedies in the face of violations although providing remedies is mainly in the realm of enforcing rights”26.
The FDRE Constitution has also provided for the duty to respect the constitution in respect of all state and non-state actors in general and federal and state legislative, executive and judicial organs.27 The Constitution also vests judicial power in the courts in line with international practice.28 Moreover, the mandate of the courts to entertain cases arising under international treaties, including human rights instruments has been reaffirmed under the provisions of the Federal Courts Proclamation.29
4.2 Role in Constitutional Interpretation
The FDRE Constitution vests the mandate to interpret its provisions in the House of Federation (HoF), which is the upper house of Parliament, composed of “representatives of Nations, Nationalities and Peoples”30 that are elected by the State Councils in each of the Regional States.31 The HOF is mandated to interpret the Constitution, to decide upon issues related to the rights of states to self-determination including secession, find solutions to disputes between states, and determine the division of joint federal and state revenues and the federal subsidies to the states.32 The HoF is also expected to settle all constitutional disputes.33
This has been taken to imply that courts have not role to play in the interpretation of constitutional provisions save for the task of referring cases to the HoF or CCI. However, there have been arguments against this perspective. Tsegaye Regassa proposes that courts should take up the task of enforcing constitutionality without recourse to “the platform of constitutional interpretation and the need to ban an unconstitutional law”34. His argument is based on the recognition of judicial power under the Constitution35 understood as ‘the power to find and declare law’ and the constitutional supremacy provision36. In addition, the right to access to justice as stipulated under the constitution is also used to support the argument that the courts do have a legitimate role in the implementation of the Constitution in the context of specific disputes.
26 Tsegaye Regassa, September 2009, p. 308
27 Articles 9/2 and 13/1, FDRE Constitution
30 One seat is reserved for each officially recognized with an additional one representative extra for each million of its population.
34 Tsegaye Regassa, September 2009, p. 327

5 Challenges
The role of the judiciary in the implementation of the provisions of international human rights agreements in Ethiopia stands on firm ground as far as legitimate mandate is concerned. However, with the exception of a few cases before the cassession bench of the Federal Supreme Court, there is limited (if any) judicial practice of referring to the provisions of international human rights agreements. This reality indicates that the practical implementation of this function faces a number of challenges. Some of the major ones are raised in the following paragraphs.
5.1 Status of International Human Rights Instruments
As noted in the introductory sections, the status of international human rights instruments under the Ethiopian legal system is far from clear. While the official documentation relating to the drafting of the constitution and the relevant academic discourse go a long way in illuminating the issue, these sources do not provide adequate guidelines amenable to uniform application. This has impacted on the actual judicial practice by limiting the tendency of courts to refer directly to the provisions of international human rights instruments ratified by Ethiopia in the adjudication of cases.
5.2 The Mandate of the HoF under the Constitution
The mandate to interpret the provisions of the FDRE Constitution is vested in the HoF and CCI rather than the courts. Although courts can arguably take up a role in this process, the very fact that the mandate has been so designated has had the effect of making judges cautious in entertaining cases where constitutional issues may be at stake. Since the provisions of the constitution also cover fundamental rights and freedoms, courts have developed a tendency to equate human rights issues under international agreements with the human rights provisions of the constitution and thereby shy away from engaging such issues.
5.3 Absence of Official Publications of International Instruments
The legislative practice in Ethiopia regarding the ratification of international agreements including international human rights instruments involves publication of the fact of ratification rather than the text of the agreements in the official legal publication. This has repeatedly been raised as a handicap in the enforcement of the provisions of international human rights treaties by the judiciary. The absence of an official translation in the local languages constituting the working languages of the courts is also an issue related to official publication.
5.4 Limited Domestic Legislation on the Substance and Scope of Rights
In an ideal scenario, international human rights instruments are translated into domestic legislation that addresses the substantive scope of the right, procedures for its enforcement and remedies for violation.37 In such a scenario, courts will have little trouble enforcing the provisions of international human rights instruments. In the Ethiopian context, significant efforts have been made to harmonize domestic legislation with international human rights standards through a process of legislative review
37 Tsegaye Regassa, Making Legal Sense of Human Rights, September 2009, pp. 309-310 [Tsegaye provides a very coherent presentation of the critical importance of domestic legislation for the enforcement of human rights treaties]

and reform. However, this process is not yet complete posing challenges for courts in the exercise of their human rights mandate.
References
Amare Tesfaye, Justiciability of Socio-Economic Rights in the Federal Democratic Republic of Ethiopia, Thesis Submitted to Addis Ababa University School of Law in Partial Fulfillment of the Requirements for the Award of the Degree of LLM in Human Rights, December 2010
Amsalu Darge Mayessa, The Integrated Approach: A Quest for Enhancing Justiciability of Socio-Economic Rights under the Ethiopian Constitution, Thesis Submitted to Addis Ababa University School of Law in Partial Fulfillment of the Requirements for the Award of the Degree of LLM in Human Rights, December 2010
Assefa Fisseha, Constitutional Adjudication in Ethiopia: Exploring the Experience of the House of Federation (HoF), 2007
Chi Mgbako et al, Silencing the Ethiopian courts: Non judicial constitutional review and its impacts on human rights, Fordham International Law Journal, Vol.32 No.1, 2008, p.269-297
FDRE, Implementation of the African Charter on Human and Peoples’ Rights: Combined Report of the initial and four periodic reports to the African Commission on Human and Peoples’ Rights (2009)
Oppenheim L. ‘International Law of Treaties,’ 8th ed., London, Longmans, Green and Co, vol. 1, 1986
Sisay Alemahu Yeshanew, The justiciability of human rights in the Federal Democratic Republic of Ethiopia, African Human Rights Law Journal, Vol. 8, No. 2, 2008, pp. 273-293
Sisay Bogale Kibret, Competence and Legitimacy of Ethiopian Courts in the Adjudication of Socio- Economic Rights: An Appraisal of the Challenges and Prospects, Thesis Submitted to Addis Ababa University School of Law in Partial Fulfillment of the Requirements for the Award of the Degree of LLM in Human Rights, December 2010
Tigist Asefa, Judicial Review of Administrative Actions: A Comparative Analysis, Thesis Submitted to Addis Ababa University School of Law in Partial Fulfillment of the Requirements for the Award of the Degree of LLM in Human Rights, January 2010
Tsegaye Regassa, “Courts and the Human Rights Norm in Ethiopia” in Tsegaye Regassa and Assefa Fiseha (eds), Courts and the Constitution: Proceedings of a Symposium on Courts and the Enforcement of the Constitution, June 2000. Addis Ababa: Ethiopian Civil Service College, 2001
Tsegaye Regassa, Making Legal Sense of Human Rights: The Judicial Role in Protecting Human Rights in Ethiopia, Mizan Law Review, Vol. 3 No. 2, p. 288-330, September 2009
UNDP-OHCHR, Toolkit for Collaboration with NHRIs, December 2010

Yemane Kassa, The Judiciary and its Interpretive Power in Ethiopia: A Case Study of the Ethiopian Revenues and Customs Authority, Thesis Submitted to Addis Ababa University School of Law in Partial Fulfillment of the Requirements for the Award of the Degree of LLM in Human Rights, November 2011

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