A Macro-Cosmic Look into Justice Reform Program
By Henok G. Gabisa
April 11, 2013 (The Gulele Post) — Post-Colonial period marked a new paradigm of triangular discourse amongst Law, Justice and Development in the international playgrounds. The intellectual metamorphoses of this discourse quickly managed to gain a momentum during mid-60s under an academic nomenclature known as the ‘Movement of Law and Development’. Alluring to brainpowers from leading law schools in the US, this intellectual movement regards ‘law’ as a central instrument in development processes and ‘lawyers and judges’ as social engineers and architectures. Then in the early 90s, the movement transmuted itself into the notion of ‘Justice Sector Reform Program’ or often referred to as ‘Judicial Reform Program”. The emergence of this idea instantaneously became a serious agenda in the strategic themes of international financial institutions and bilateral development cooperation structures under the wrestling juxtaposition of ‘revival of rule of law’ and ‘poverty eradication’. The geographical focus of this idea is only limited to developing nations of Africa, Asia, Eastern Europe and some Latin American countries.
There are two main rationales behind the jurisprudential birth of ‘judicial reform’: a well-established and effective justice system is not only robust enough to confront corruption and violation of rights (with the assumption that courts are custodies of human rights), but it can also be relied on to protect the property rights of foreign investors (the concept of development has always been viewed as capitals/wealth flowing from north to south-until very recently that the newly rising economies of BRICS proved otherwise that capital can also flow from south to south). Yet, the ultimate desire of judicial reform is building a firm judicial system that possesses the capacity to realize rights and freedoms. One of the most notable theorists of current time,Sen Amartaya, building on the work of Aristotle, argues that development is a process of expanding peoples’ real freedoms and rights. He finally expounds his theory of judicial reform as an ultimate enhancement of freedom and exercise of rights that must be associated with a legal progress.
The constituency of justice sector reform program, without being confined to court administration and judicial trainings, also extends towards any other units in governmental structures that pour into the comprehensive notion of justice system at its broad domain. These constituencies are: legislative processes, investigative police officers and prosecution agency, law school legal education and curriculum. Justice system reform program as a global justice initiative is by all accounts an opportunity for poor countries. However, one is not too oblivious to understand that the achievement of a reform demands a genuine and laborious political efforts and willingness from a government. Good luck to the justice reform initiative in a country with despotic political system, to start with!
The centrifugal force of global political economy shoves the initiative of justice reform to make sure the so called ‘post-conflict’ nations align themselves under the structure of this cosmopolitan theory of justice reform, which in most cases end up, ironically, in a de facto“de–forming” of the justice itself. There is either a hostile and inimical constitutional model that these countries are built on and/or the implementation strategy of the reform theory will advertently be lost in translation while serving as an elitist purpose of furthering-up a bottlenecked and unfair political gain of a government over what is right and good for the vast majority of the people.
This so called ‘justice sector reform’ is financially maintained under the auspices of programs run by the World Bank and Bilateral Donor Agencies (eg: USAID, CIDA, DFID, USTAID, Norwegian Development Agency and the like) with a quid pro quoi anticipation from the country hosting a comprehensive “justice sector”. The government of Ethiopia is one of those countries that year in and year out accumulates a mammoth financial aid and credit cash under the masquerade of ‘reforming justice system’. Yet, the reform remains mysterious to the vast majority of Ethiopian people; and many agree that “justice” has become the service availableonly to the elitist group in the country. This so called “justice sector reform”, in Ethiopian context, is nothing but a hopeless idiosyncratic political behavior of the government that refutes its very essence. The Ethiopian version of the reform program fails to function for two main reasons: the practical test of Ethiopian constitutional set-up and theory, from soup-to-nuts, is so on the warpath that it renders the judiciary (the colossal entity in a justice sector) a parasitic and paralytic organ ready always at the disposal of the ruling political elites; second, as the situations stand right about now, legislative process and parliamentary scrutiny (one of the essential gadgets of a justice system in countries like Ethiopia where there is no judicial supremacy) are only set to serve a narrow political interest of the regime on power while pigeon-holing the fundamental rights into the harsh and remorseless camps of violations.
Is it Justice “Reform” or Justice “Deform”
The “jurisprudential” innovation of a ‘justice system reform program’ at a global scale was fundamentally thought as an important strategy for the improvement of judicial quality in poor and post-conflict-like nations. This needs establishing and strengthening a pure, impartial and independent judiciary that can keep custody of human rights and freedoms. It is only through strong and independent judiciary that a country can truly treasure the tradition of rule of law. The philosophical rationale behind the idea of judicial reform, therefore, stands mutually exclusive to the constitutional models that don’t allow for a greater room of judicial activism in the discourse of governmental checks and balances. Even though a comprehendible logic behind a “reform” lucidly alludes to the state of improving and performing better than an initial point in time, the Ethiopian version of “justice sector reform” program finds itself in an adverse phenomena to the ‘macro-cosmic’ desire to resuscitate the principle of rule of law in a global scale. Let us examine some of the notable but hidden theoretical mischiefs in Ethiopian constitutional discourse.
The Ethiopian Constitution entrusts the political unit of the government-the House of Federation-to give an ultimate meaning to the rights and freedoms of Ethiopian people. House of Federation is the principal political power house based on ethnic representation (the sweetheart political vehicle and interest of the Ethiopian government). Pursuant to the constitutional power, the final say to define the exact content and scope of disputed rights and freedoms ultimately lies on the generosity of this political unit. Nevertheless, the benchmark, in the discourse of constitutional interpretation, mainly follows either the principle of ‘Judicial Supremacy’ (eg the supremacy of the US Supreme Court established since Marbury v. Madison in 1803) or an independent ‘Constitutional Courts’ established for that specific purpose (e.g. as in South Africa, Germany, Spain and etc). Others follow the principle of ‘Legislative Supremacy’ as a way to making sure those statutes are democratically enacted in a manner that reduces risks of unconstitutionality. In this situation, ‘parliamentary scrutiny’ is a technique put in place to help attain a democratically deliberated statutes and laws. Based on this, neither ‘judicial supremacy’ nor ‘legislative supremacy’ is what Ethiopia knows to follow in practical discourse. What the country knows best, however, is a “political supremacy”,but unprecedented in the world. Evidently, the recent statute that banned NGOs/SCOs from advocating in Ethiopia, and also the so called anti-terror proclamation are the prime examples in exhibiting the failing justice and political experiment of the country. Can one expect the country to employ and reform the legislative techniques when there is absolutely no room for political pluralism and there is only one seat for opposing political parties out of the total 547seats in the main house? This is the context in which the government markets the rhetoric of“justice system reform program”. It is only in Ethiopia and other autocratic nations that a political entity is the final arbiter of what the constitutions (the main legal document and source of laws in a country) means in respect of the rights and freedoms.
The constitutional prohibition of the judiciary from refereeing the encroachments on rights (by mere statues enacted by the parliament who can politically be well-motivated) is an eloquent elucidation of a constitutional model that, at its best, is window-dressing phenomena that’s marketed only for Western consumption to help fulfill the requirements of international pseudo-legitimacy. This is one of the main reasons that the idea of real freedom is just a shipwrecked reality in the contemporary discourse of Ethiopian constitutional discourse. It is difficult to have a legitimate and functioning theory of justice sector reform against these kinds of constitutional milieu.
Besides the standoffish nature of the constitutional theory in Ethiopia, the other inherent crises of the justice sector reform program is highly attributed to the practical problem of implementation. The reform work is inadvertently and wittingly lost in translation and traded for the exclusive political interest of the government. Continuous Judicial Education and Training is one of the deliverable in the science of justice sector reform program as recognized worldwide. There is nothing that a government would need to politicize about a judicial educations and training. However, the Ethiopian version of judicial training, contrary to the training need of Ethiopian judges, is wrought into the staunch party-politics of the government. The tight political control over the operation and contents of the judicial training delegitimization the justice sector reform program in the context of Ethiopia. Are the contents of the training commensurable with the justice reform need assessment of the country? Or is it just another systematic channel of politically brainwashing judges? How are judicial training centers/institutes established, and under whose leadership do they operate? Closer look into these question and the institutionalization of judicial training centers in Ethiopia overwhelmingly exhibit the unconscious political initiative of the government to continue to corrode the independence of the judiciary which of course has always been delusional in the historicity of the country’s justice system. This is a prima facie exhibition of the unfair political game played at its best in the so called Ethiopian “Justice Sector Reform Program.”
The fundamental of a justice sector reform program demands to strengthen the democratic and political culture and extend civil rights. Despite the fact that donors have invested millions and billions of dollars in the rule of law reform initiatives in many developing countries, rule of law deficiencies in those same countries are both persistence and serious. Justice Sector Reform program, is one of the rhetorical and political commodities that the Ethiopian government markets to the outside world as part of continuing to gain and consolidate foreign legitimacy. It is just a masquerading tool of hiding the true color of the deadly and bloody regime. If one needs to know how phony and pretentious the justice system in Ethiopia is, ask Prisoners of Conscience Bekele Gerba, Olbana Lelisa, Eskindir Negga et al.
*Henok G. Gabisa is a JSD/PhD candidate at St. Thomas University School of Law. He has worked in Judicial Training Centers and was also an adjunct at Wolaita Sodo University Faculty of Law in Ethiopia. He can be reached via firstname.lastname@example.org