Year I Activities Report





  • 1.  CONTENTS

    TABLE OF ACRONYMS.........................................................................................................

    TABLE OF APPENDICES.......................................................................................................

    1.   INTRODUCTION...............................................................................................................

    1.1   BACKGROUND...............................................................................................................

    1.2   OBJECTIVE......................................................................................................................

    1.3   SUB-PROGRAMS............................................................................................................

    2.   FUNCTIONAL STRUCTURE AND STAFF.....................................................................

    2.1   THE ADVISORY COUNCIL...........................................................................................

    2.2   THE SECRETARIAT........................................................................................................

    2.3   WORKING GROUPS......................................................................................................

    2.4   STRUCTURE
    OF THE LJAAC, ITS SECRETARIAT AND WORKING GROUPS
      

     3.   WORK STREAMS AND PROGRESS FOR YEAR I.....................................................

    3.1   JUDICIAL AFFAIRS WG................................................................................................

    3.2   CIVIL SOCIETY WG........................................................................................................

    3.3   ANTI-TERRORISM PROCLAMATION WG...............................................................

    3.4   MEDIA LAW WG..............................................................................................................

    3.5   DEMOCRATIC INSTITUTIONS WG............................................................................

    3.6   LAW-MAKING PROCESS AND
    ADMINISTRATIVE LAW WG
    ............................

    3.7   CRIMINAL JUSTICE SYSTEM WG.............................................................................

    3.8   COMMERCIAL AND CIVIL LAW WG........................................................................

    3.9   LEGAL AND RELATED SERVICES WORKING GROUP......................................

    4.   SUPPORT FRAMEWORK................................................................................................

    5.   CHALLENGES AND PROSPECTS FOR THE FUTURE............................................

    5.1   HUMAN RESOURCES.....................................................................................................

    5.2   OFFICE AND EQUIPMENT............................................................................................

    5.3   BROAD-BASED PARTICIPATION IN THE REFORM.............................................

    5.4   PUBLIC AWARENESS....................................................................................................

    5.5   EFFECTIVENESS AND SUSTAINABILITY OF REFORMS...................................

    TABLE OF ACRONYMS

     ACSO  Agency for Civil Society
    Organizations

     AAU    Addis Ababa University

     AGO    Attorney General’s Office of the FDRE

     BPR     Business Process Reengineering

     CoMin Council of Ministers

     ECSOF Ethiopian Civil Society Organizations Forum

     FDRE   Federal Democratic Republic of Ethiopia

     GTP     Growth and Transformation Plan

     HoPR   House of Peoples’ Representatives

     LJAAC The Legal and Justice Affairs Advisory Council

     PSCAP  Public Sector Capacity Building Program

     RPDR  Regulatory Policy and Delivery Review

     WG     Working Group

    1. INTRODUCTION

    The Legal and Justice Affairs Advisory Council (LJAAC, the Advisory Council) was established by the Attorney General’s Office (AGO) of the Federal Democratic Republic of Ethiopia (FDRE) in 29 June 2018.[i] Composed of 13 prominent legal professionals, the Advisory Council is mandated with advising the Attorney General’s Office in matters relating to the reform of the legal and justice system in a way that is compatible with constitutional principles relating to human rights, democracy and the rule of law. More specifically, the Advisory Council’s mandate and role includes:

    undertaking a rigorous assessment of laws, institutions, and practices affecting the efficiency and effectiveness of justice and democratic governance institutions;

    • identifying/analyzing/collating the key challenges encountered in realizing an accountable public administration system, rule of law and full implementation of constitutionally guaranteed rights; and

    • proposing to the Office of the Attorney General methodically researched, pragmatic and programmatic reform packages that address the legal and institutional shortcomings.

    In order to accomplish its mandate, the Advisory Council commenced by staffing a Secretariat and technical Working Groups (WGs) composed of volunteer legal and other prominent professionals from different sectors who would undertake research on these laws and propose recommendations for amendment. It also staffed a Secretariat with technical staff to lead on providing technical and administrative support to the working groups and the Council. In addition to describing the work of the Advisory Council and its different bodies, this report illustrates their achievements, plans, and current and expected challenges.

    1.1 BACKGROUND

    The current reform program comes on the back of a long tradition/history of legal and justice system reform which, at least in its
    modern iterations, dates back to the early 20th Century. During this time Ethiopia not only began to look to foreign legal models to reform its constitutional and customary legal systems but it later eagerly embraced the law and development movement in its pursuit of modernization and rapid economic development. Although some communist inspire changes followed the fall of the Imperial regime, another significant wave of legal and justice system reform would not be introduced until the 1990s when the current constitution, the 1994/1995 FDRE Constitution, was adopted.

    The establishment of a new regime under the FDRE Constitution was immediately followed by efforts to reform different components of the legal system including the constitution, the judicial system, and law enforcement. Some of the main projects included:[ii]

         
    • land law reform intended to undo the Derg’s socialist-inspired legislation and create new configurations of state-peasant relationships (1991-1997);

     •   • the
    Civil Service Reform Program (1996) which aimed at strengthening public sector
    institutions including aspects of the judiciary;

    • a number of judicial training programs (beginning 1997) aimed at staffing the federal and state judiciaries with personnel trained
    in law;

     the establishment of the Justice and Legal Research Institute (1997);

    • the reestablishment and “consolidation” of Federal Sharia Courts (1999); and

     the National Capacity Building Program (2001) which contained components regarding justice sector reform connected with the judiciary, law making institutions, law enforcement bodies.

    While these efforts would have had some impact in achieving their respective objectives, it was recognized early on that any attempt to reform the legal and justice system needed to be comprehensive, rather than ad hoc and uncoordinated, if it were expected to have any significant impact. This realization led to the next generation of rather comprehensive reform programs such as the 2002 Justice System Reform Program which sought to remedy the “[f]ragmented and piecemeal” nature of previous reform drives by concurrently addressing the capacity of judicial and prosecutorial personnel, improving state and federal court administration systems, and improving the coherence of legal norms.[iii]

    In 2005, the Comprehensive Justice System Reform Program built on and expanded the reform program to focus on institutional structures, personnel development, resources and performance aspects of law-making, the judiciary, law enforcement, and legal education and research.[iv]  

    Other reform initiatives with significant legal and justice reform components, such as the two Growth and Transformation Plans (GTP I and II),[v] the Public Sector Capacity Building Program (PSCAP)[vi] and Business Process Reengineering (BPR)[vii] were synergized with the above justice reform programs. The subsequent legal and justice system reform initiative, an initiative that is a direct antecedent to the current one, began as a two-year study conducted by the Office of the Prime Minister.

    The initiative included the Justice Sector Delivery Unit which focused on, among other things, Regulatory Policy and Enforcement. After these reports were completed but before their recommendations were implemented, political changes that swept the country leading to a reset of both the understanding and direction of legal and justice system in Ethiopia. After assuming office in April 2018, Prime Ministers Dr. Abiy’s government took some immediate measures that inaugurated the new understanding by publicly apologizing for previous abuses, releasing and later pardoning thousands of political prisoners, removing media and internet restrictions, revoking the terrorist designation of opposition groups, and allowing formerly exiled politicians, journalists and media organizations to return to and operate in the country. As medium-term measures, the government promised to review repressive laws including the anti-terrorism, the media and the civil society legislations that were considered to have restrained constitutionally guaranteed rights. Given the new political dispensation, which underscored the importance democratization and the respect for human rights, the legal and justice system reform also found a new focus. Whereas previous legal and justice system reform initiatives were generally deemed to be technically sound, the consensus among stakeholders and observers was that they were not able to fully achieve their goals, in a great measure, because of the increasingly authoritarian policies of government. The need of the government to control and repress challenges to its power led to the politicization of the reform process and in fact the entirety of the legal and justice system.[viii]

    With the new political impetus, the realignment of the legal system with the previously disregarded human rights and democratic demands enshrined in the FDRE Constitution were placed at the core of the reform process. The government, having acknowledged the need for the continuation of the justice sector reform program, decided that the reform should be implemented in a new way that allows legal professionals and other stakeholders provide input in an independent but institutionalized manner. The result was the establishment of the LJAAC which is intended to function as an independent advisory body that plays a leading role in the reform process on the basis of independence, professionalism, experience, ethics, and conscience of its members rather than political expedience.[ix]

    1.2 OBJECTIVE

    The objective of the LJAAC is to effectively advise the government of Ethiopia in its effort to advance the cause of justice, uphold rule of law, protect human rights and build a genuinely democratic federal system of governance.

    1.3 SUB-PROGRAMS

    The reform program has eight focus areas which constitute the sub-programs of the reform process headed by the LJAAC. Whereas the specific plans through which these sub-programs are being implemented have seen different iterations depending on needs identified as different diagnostic studies progressed and it is expected that other focus areas deserving the attention of the Council will evolve as its work progresses the following are its eight focus areas which compose its sub-programs.

    1.1. Law Reform

          The law reform program focuses on changing laws that are widely perceived to be incompatible with the Constitution or as having had a detrimental effect on human rights and democracy. In particular, the laws that fall within this sub-program are the Anti-Terrorism Proclamation, the Charities and Societies Proclamation as well as various legislation having to do with the regulation of the press/media. The objective of this sub-program is to ensure that the norms and institutions established in these legislations are compatible with the Constitution and relevant international human rights standards. The revision to be undertaken in this sub-program will pave the way for a statutory regime conducive for the emergence of a vibrant and strong civil society and media.

    2. 2. Law Making Process and Administrative Law

         The objective of this sub-program is to ensure that the legislative process, including the way in which various pieces of law are drafted and adopted will become more participatory and democratic. The reform in this sub-program is geared towards creating mechanisms that enhance both the formal and substantive quality of our laws. The reform also incorporates in the law-making process mechanisms to ensure the compatibility of laws with the Constitution and Ethiopia’s international obligations. The sub-program looks into not only how proclamations are enacted but will also include the process through which administrative rules and laws are made. This sub-program investigates the way through which regulatory policy is implemented through rule making and adjudication by administrative agencies. One objective of this sub-program is the enhancement of the capability of regulatory agencies and ordinary courts to discharge their obligation of administering justice in a predictable and efficient manner.

         3.      Judicial Affairs

    This sub-program focuses on the federal judiciary and its objective is to enhance the integrity and capability of the federal judiciary. The reform process identifies the factors that are detrimental to the credibility and effectiveness of the federal judiciary and propose ways in which these problems will be addressed. The sub-program will be implemented in such a way that the independence of the judiciary, the practical existence of which leaves much to be desired, is bolstered and reinforced. The reform will come up with proposals to increase the confidence of the public in the judiciary and to enhance the capacity of the judiciary to be more assertive, independent, accountable, accessible and effective in protecting the
    rights of citizens. In so doing, relevant laws, regulations and work practices will be reviewed and, where appropriate, legislative reform or introduction of new laws will be recommended.

    4.      The Criminal Justice System

    This sub-program is intended to identify problems in the criminal justice system. In particular, the sub-program identifies aspects of the system that lead to abuse of rights and disproportionate punishment. The sub-program would propose administrative and legislative interventions designed to engender a coherent, rational, just and effective criminal justice system. The proposed solutions will also address institutional bottle necks and problems that hinder the effectiveness and fairness of the criminal justice system.

    5.      Civil and Commercial Law

    The sub-program will also include a review of the current state of affairs in relation to the commercial code and major civil law matters to identify the salient issues both in the law and its implementation that call for legislative reform.

    6.      Democratic Institutions

    This sub-program focuses particularly on the institutional and legal problems that have undermined the performance and credibility of democratic institutions such as the National Electoral Board, the Ethiopian Human Rights Commission, and the Institution of the Ombudsman. The sub-program will also explore the mechanism for the interpretation and enforcement of the Federal Constitution. The sub-program will result in a set of recommendations that substantially improve the overall autonomy, credibility and effectiveness of these institutions. It also addresses revisions that could be necessary in the laws that these institutions are supposed to apply and come up with recommendations on how the mechanism for constitutional interpretation and enforcement in Ethiopia could be improved and strengthened.

    7.      Legal and Related Services

    This sub-program addresses the various services provided to the public by the legal profession. These include the provision of legal advice and representation as the well as arbitration, trusteeship, investigation and so on. The sub-program is intended to identify the major problems and shortcomings in the provision of legal and related services as well as the legislative and administrative measures that could enhance the level of professionalism, accessibility and ethical conduct among the providers of legal and related services. It also explores the alternative ways in which the providers of these services could be regulated and organized with a view to safeguard the interest of justice and the society.

    8.      Legal Training and Education

         This sub-program investigates the problems in terms of the quality and relevance of legal education and training in contemporary Ethiopia. It also evaluates the results of the previous round of reforms in this sector and propose ways in which the provision of legal training and education in Ethiopia will produce professionals with a high degree of technical competence and ethical integrity.

    2. FUNCTIONAL STRUCTURE AND STAFF

    The Advisory Council, established by Directive No. 24/2010 (Annex 2), is the topmost institution vested with the power to determine the overall direction of the legal reform currently being undertaken in Ethiopia. Although the decisions and resolutions of the Advisory Council are non-binding, its policy recommendations are given a great deal of weight and are generally adhered to. The composition, function, and mandate of the Advisory Council as well as the responsibility of its Secretariat and other bodies established under it are set in accordance with the relevant rules provided in the Directive establishing it and the rules of procedure it adopted (Annex 3). In order to achieve its goals, the Advisory Council has established a Secretariat and a number of Working Groups composed of professionals of the highest caliber in their respective fields.

    2.1 THE ADVISORY COUNCIL

    The Advisory Council is composed of 13 prominent legal professionals and scholars drawn from academia, private practice, human rights law, pro-democracy activism, civil society law and other fields. A brief biography of the current and former members of the Council is represented in Annex 1 enclosed with this report.

    2.2 THE SECRETARIAT

    The Secretariat, also established by Directive No. 24/2010, is the Advisory Council’s administrative arm. It is responsible for planning, administering and implementing the Advisory Council’s mandate in addition to liaising between the Advisory Council and the Attorney General’s Office. Some of the Secretariat’s specific responsibilities include:

     keeping the records of the AC and provide the necessary administrative and logistical assistance for the AC;

     overseeing and conducting technical work and research necessary for the AC to discharge its mandate;

     making proposals to the Advisory Council regarding priorities based on diagnostic and other studies;

     preparing the Advisory Council’s annual and where applicable contingency plans;

     administering the implementation of workplans and reform plans of the Advisory Council;

     fulfilling the administrative and operational needs of the Working Groups by, among other things, by providing guidelines to WGs, securing experts from Ethiopia and internationally where needed, planning and hosting public or stakeholder consultations;

     publishing and/or publicizing some of the work-products of the Advisory Council in addition to accompanying material (for e.g. reports, draft laws, exposé des motifs and other     legislative material akin to travaux préparatoires etc.);

     the implementation of the decisions of the Advisory Council;

    The organizational structure of the Secretariat is set up by the Head of the Secretariat in close consultation and collaboration with the Chairperson of the AC. The current organizational structure of the Secretariat includes a head and vice-head and a number of subject-area staff. Although the Secretariat has been intended to have fulltime administrative staff, these positions have not been filled due to financial restraints.

     2.3. WORKING GROUPS

    The Working Groups were established to undertake technical work and research necessary for the AC to discharge its mandate. Composed of subject-area experts who work on a voluntary basis, WGs are supported by fulltime and part-time experts and consultants contracted by the Secretariat from inside and outside of the country. Each WG is headed by a Chairperson and, in situations where the WG is large or is working on a narrow timeframe, the Secretariat supports the Chairperson by assigning WG Coordinators.

        
    Whereas each WG has its own specific mandate, deliverables and timeline, the general mandate of the WGs include:

        • adopting evaluative frameworks relevant to the sub-program they are working on;

        • undertaking diagnostic studies which include rigorous assessment of laws, institutional frameworks, performances and competence of the justice system in relation to the relevant sub-programs;

        •identifying/analyzing/collating the key challenges encountered in realizing an accountable public administration system, rule of law and full implementation of constitutionally guaranteed rights;

        •conducting consultation forums on the findings of the diagnostic studies with the support of the Secretariat;

        •proposing to the Secretariat of the Legal and Justice Affairs Advisory Council carefully researched, pragmatic and programmatic reform packages that address the legal and institutional shortcomings;

       •where their findings call for drafting new laws and the AC approves such, drafting legislation and conducting the requisite public consultations with the support of the Secretariat and submitting the final product
    to the AC; and

        • Any other activities requested by the AC including in advising the AGO regarding the implementation of the AC’s recommendations.

    2.4.STRUCTURE OF THE LJAAC, ITS SECRETARIAT AND WORKING GROUPS

         
    The current structure of the LJAAC is represented in the organogram below: 












    3. WORK STREAMS AND PROGRESS FOR YEAR I 

         In the early stages of its inception the work of the Advisory Council focused on establishing a functional structure, staffing that structure with competent personnel, preparing a roadmap for its work, and launching the activities of the WGs, the Secretariat, and the Council itself. With the Secretariat and members of the Advisory Council taking the initiative, the Council:

          - Recruited members of the WGs and Secretariat, and continue to do so as the need arises;

          - Reviewed and evaluated Inception Reports from each of the WGs;

    - Established a website, and online email and drive accounts;

    -  Established an online voting system for the Advisory Council;

    -   Prepared and endorsed a Working Group Code of Conduct;

    -   Prepared and endorsed the Rules of Procedure of the Advisory Council;

    -   Prepared and endorsed a Public Consultation Strategy;

    -   Developed the Secretariat’s Diversity and Inclusion Policy;

    -   Developed the Secretariat’s Non-Disclosure Policy;

          -    Secured funding and/or other forms of cooperation and support from international institutions; 

    Where the need arose, recruited and hired subject area experts both locally and internationally with the support of funding and partner institutions; 


    With the establishment and staffing of the WGs, the LJAAC saw an exponential expansion of its capacity deploying 143 long-term volunteers, 8 fulltime staff, and 13 (local and foreign) short-term consultants.While its staffing activities were ongoing, the LJAAC set out to achieve the first year of its mandate (i.e. in 2011 Ethiopian) which prioritized normative and institutional frameworks without which the country’s pro-democracy and pro-rights course could be hampered. In accordance with its plans, the Advisory Council focused on primary legislations and institutional changes in the Law- Process, Judicial System, Criminal Justice System, Civil and Administrative Justice System, and Democratic Institutions Sub-Programs. The major milestones achieved by the Advisory Council and its roadmap for the remainder of the first year of its plan are outlined in following sub-section.

    3.1JUDICIAL AFFAIRS WG

    Whereas the Judicial Affairs WG had been established to undertake all activities related to judicial reform, this WG was relocated to the Federal Supreme Court after it was decided that such a move was in keeping with the independence of the judiciary. Because of this, the Judicial Affairs WG is not discussed in this report at any length.

    3.2.CIVIL SOCIETY WG

    The LJAAC established the Charities and Societies Working Group, which was later renamed the Civil Society Working Group, with the mandate of conducting a rapid diagnostic study of the effects of the Charities and Societies Proclamation (Proc. No. 621/2009) and recommend ways of reforming the relevant regulatory and institutional frameworks. Members of the WG were drawn broadly from the civil society sector and comprised of legal experts, academics, leaders of civil society organizations as well as international human rights organization.

    The work of the Civil Society WG was deemed a high priority from its inception since the creation of a favorable environment to civil society organizations was deemed necessary for the democratization and human rights related mandate of the AC. Due in part due to the prioritization of civil society law reform by the LJAAC and the AGO, and the prompt action of members of the WG, both the diagnostic and drafting work of the WG was the first to be completed and submitted to the government. Before the Drat was submitted successive consultation forums with stakeholder were conducted both on the findings of the diagnostic study and the draft proclamation. These included engagements with the leadership of both the former and current leadership of the CHSA, leadership of civil society organizations and networks. The working group also conducted at least one consultation in every regional state.



         3.3ANTI-TERRORISM PROCLAMATION WG

    The LJAAC established the Anti-Terrorism Proclamation Working Group, with the mandate of conducting a rapid diagnostic study of the existing Anti-Terrorism Proclamation (Proc. No. 652/2009) and recommend ways of reforming the relevant regulatory and institutional frameworks.
    Members of the WG are composed of most experienced Terrorism suspects’ defendants, specialized experts from the academia, drafting experts from the Office of the Attorney General.

    Since the Anti-Terrorism legislation was at the center of the human rights abuses in the country, the reform the normative structure of this sector was given high priority. With this, the WG has conducted the diagnostic study on the existing Anti-Terrorism Proclamation (Proc. No. 652/2009) identifying the gaps and limitations vis-à-vis human rights standards. The final Anti-Terrorism Legislation was prepared in light of the study and with the specific aim of avoiding previous limits to human rights. Among other reforms, the new legislation does not contain provisions providing for an independent procedure. This means that all terrorism suspects will be subjected to the same treatment with other suspects under criminal law legislation. Thus, the lacunas in the existing Anti-Terrorism legislation are addressed by
    addressing due process concerns. As to the substantive reforms made on the new draft legislation, it has to be indicated that the draft tries to solve the defects observed in due course of implementations of the existing Anti-Terrorism Proclamation (Proc. No. 652/2009). Furthermore, it puts a limitation to the
    interpretations of substantive provisions to provide guarantees against misapplications of the criminalizing provisions. Finally, the new draft legislation also provides for a safeguard against abuse in the process of labelling as a terrorist group.
                                                                                                           

    Milestone

    Deliverables

    Date

    Implementer

    Phase I – DIAGNOSTIC STUDY/REPORT

    WG begins conducting diagnostic study.

    2 Jul. 18

    WG

    Diagnostic report submitted to Advisory Council

    28 Aug. 18

    WG, Sec.

    Advisory Council reviewed report and approved next steps.

    31 Aug. 18

    AC, Sec.

    Phase II – LEGISLATIVE DRAFTING

    Stakeholder Consultation with Civil Societies Regulation Agency

    Nov. 2018

    WG, Sec.

    Held public consultation on Draft Proclamation in 9 Regional
    States, Addis

    Ababa and Dire Dawa.

    Sept 2 to 10,

    2018

    WG, Sec.

    Draft CSO Proclamation submitted to Advisory Council

    WG, Sec.

    Advisory Council reviews and submits draft with comments and

    recommendations.

    December

    AC

    Phase III – SUPPORTING THE LAW-MAKING PROCESS

    Participated in public hearings at HoPR

    25, Jan. 2019

    WG

    Reviewed the English translation of the draft law to ensure its
    compatibility with

    the meaning of the Amharic version.

    Mar. 15-18

    Sec., ACSO

    Civil Society Organizations Proclamation No. 1113/2019 is passed
    and Agency

    for Civil Society Organizations (ACSO) established.

    12 Mar. 19

    HoPR

    Phase IV – IMPLEMENTATION-SUPPORT &

    EVALUATION

    Agency’s implementation plan is complete.

    25 Mar. 19

    ACSO/Sec.

    A local expert is hired for 30 days to support the drafting of
    regulations and

    directives.

    15 Apr. 19

    ACSO/Sec.

    Provided regulation drafting support to Agency

    9-31 May 19

    Sec.

    Held a consultative forum on a draft regulation to implement the
    CSO law.

    16 May 19

    ACSO/Sec.

    Draft regulations submitted to AGO

    20 Jun. 19

    ACSO/Sec.





      3.4.MEDIA LAW WG

    The LJAAC established the Media Law Working Group in August 2018 with the mandate of studying the current normative and regulatory regime and recommend reforms that can achieve a comprehensive transformation of the country’s communications and media sector. More specifically, the WG was tasked with the analysis of the shortcomings associated with laws governing the media with special emphasis to laws affecting the media, freedom to information, broadcasting, computer crimes, and other laws and practices connected with media and expression rights. In addition to providing research-based recommendations the WG has the mandate to draft laws and regulations in order to ensure the growth of an independent, diverse and vibrant media sector. The Working Group is comprised of professionals with special expertise in the areas related with the media sector. It includes media law researchers, practicing journalists, media owners, practicing lawyers, members of the civil society and a gender specialist.

  • Although the Media Law Working Group was one of the first working groups established by the AC, its work has not gone as fast as expected, among other things, because of the seriousness of the legal and practical threats faced by the media sector and the vastness/complexity of the subject-matter. The state of freedom of expression and media freedom in Ethiopia is one of the lowest in the world. Ethiopia ranked 150 out of 180 countries in Reporters without Borders world rankings in 2018.

    As a result, the number of media outlets in Ethiopia is very low even by African standard and the media sphere is dominated by government owned/controlled media. The WG had to cover a large amount of material in studying the legislative, administrative and political measures that have been taken to weaken the status of the media and its actors in the country. The enormity of this task was not helped by the fact that a variety of laws directly or/and indirectly, deal with the right to freedom of expression and media in Ethiopia. The WG has prioritized the reform of media, broadcasting, access to information, computer crimes legislation based on their level of importance.

     3.5    DEMOCRATIC INSTITUTIONS WG

    ·         The Democratic Institutions WG, consisting of 12 members drawn from diverse professional and practice backgrounds, has the mandate to conduct legal and institutional review on the subject areas of election related laws and institutions, the Human Rights Commission, the Institution of the Ombudsman, the House of the Federation, and the Council of Constitutional Inquiry. While the WG’s mandate is broad, it prioritized election-related laws and institutions as per the advice of the Advisory Council in light of upcoming elections, including the 2020 general elections. The legislative areas the WG prioritized include those related to setting up a sound electoral system including the reorganization of the NEBE, regulation of elections, regulation
    of the conduct of political parties, the registration of political parties and their codes of conduct. 

    Although the seat of the Democratic Institutions WG was transferred to the NEBE because of the legislative reform packages it prioritized, it is institutionally ththered to the LJAAC and the NEBE also submits its reform packages to the AC for review and counsel. The Democratic Institutions WG will refocus its attention to other regulatory and institutional frameworks connected with democratic development once completes its work with the NEBE.

    3.6  LAW-MAKING PROCESS AND ADMINISTRATIVE LAW WG

    The Law-Making Process and Administrative Law WG was established by the LJAAC following the findings and recommendations of a study by the World Bank named the Regulatory Policy and Delivery Review (RPDR). The purpose of the RPDR is to identify and review regulatory policy, institutions, tools and delivery mechanisms, and to offer recommendations to improve the functioning of the regulatory management system. Part of the findings of this study was a gap in the streamlining of the law-making process and implementation of regulatory standards though subsidiary legislation and utilization of standard regulatory enforcement procedures. Accordingly, it came up with a set of recommendations including the adoption of an administrative procedure code that would introduce regulatory good practice criteria and processes to administrative rule making and enforcement.

    Moreover, the objective of this sub-program is to ensure that the legislative process, including the way in which various pieces of law are drafted and adopted will become more participatory and democratic, and it is geared towards creating mechanisms that enhance both the formal and substantive quality of our laws.

    Hence the working group was given the task of reviewing the existing draft administrative procedure proclamation and enhances its quality. But it was also tasked with reviewing the law making process of primary legislations and look into ways of incorporating in the law-making process mechanisms to ensure the compatibility of laws with the Constitution and Ethiopia’s international obligations. Given the fact that there were already a number of studies and draft administrative proclamations produced by various institutions, the working group was instructed to prioritize the work of preparing an enhanced draft administrative proclamation based on the draft prepared by the AGO in 2016.

    3.7. CRIMINAL JUSTICE SYSTEM WG

    The LJAAC established the Criminal Justice System Working Group with the mandate of studying and recommending reforms to the criminal justice system broadly. The WG is composed of twenty 21 professionals. The formation of the Criminal Justice System WG was formally announced on August 17, 2018, which also marks the date of commencement of the WG`s activities. Since the formation of this WG, it has been working to produce a comprehensive criminal justice administration baseline study. As part of the empirical component of the study, four expert presentations were made to members of the WG and ensuing deliberations. In due course, personal experiences and reflections of members of the WG as to the possible reform areas are also discussed upon.

    Although the WG originally planned to complete the initial assessment of the present state of criminal justice system in Ethiopia within five months (running from December 1, 2018 to May 31, 2019), in deliberation with the Advisory Council and the AGO, elected to prioritize working on the already existing Federal Prison Administration Proclamation and the Criminal Procedure and Evidence Law.

     

    Accordingly, selected members of the WG were assigned to work on the draft proclamation prepared by the Federal Prison Commission. The draft prepared by the Commission is fundamentally changed in terms of scope and mainstreaming human rights concerns of the prisoners into the proclamations. After the members of the WG enhanced the draft legislation, negotiation between the high-ranking officials of the Federal Prison Administration Commission and members of the WG are conducted successfully resulting in consensus among them for the final version of the draft proclamation.

    Regarding the draft Criminal Procedure and Evidence code, the working group received the draft prepared by the AGO. On March 2, 2019, the WG has made a discussion on the “Criminal Procedure and Evidence Code”. Due to the urgency given to the completion of the criminal procedure and evidence law, and since the WG does not have the capacity to carry out such a large project simultaneously with other tasks, the WG paused all other planned tasks focusing on making an inventory of findings on the draft CPC’s conformity with international and constitutional standards, international and constitutional standards, contextualization, completeness, clarity and simplicity of the arrangement.

    3.8 COMMERCIAL AND CIVIL LAW WG

    The LJAAC established the Working Group on Commercial and Civil Law in August 2018. The group consisted of only ten members at the time. All of them were part-time volunteers. There are hundreds of proclamations that cover various areas of commercial and civil law. That being the case, the WG discussed where to begin the revision work with pertinent people at the Secretariat of the Advisory Council and the Office of the Attorney General. The Government had made the revision of the Commercial Code a priority for years. In fact, a revised draft of the Commercial Code had been prepared by the Office of the Attorney General by the end of 2017.

    Hence, an understanding was reached to conduct a comprehensive review of the draft, make the necessary changes, and provide technical support for the passing of the law. 

    3.9 LEGAL AND RELATED SERVICES WORKING GROUP

    The LJAAC established the Legal and Related Services Working Group to broadly analyze the various services provided by the legal profession to the broader public and make recommendations as to how these may be reformed. The WG was mandated with the task of identifying the major problems and shortcomings in the provision of legal and related services as well as the legislative and administrative measures that could enhance the level of professionalism, accessibility and ethical conduct among the providers of legal and related services. It also explores the alternative ways in which the providers of these services could be regulated and organized with a view to safeguard the interest of justice and the society. Given the instrumental role of the legal profession in ensuring the rule of law, and the experience of the legal profession under the previous regime which sought to ensure that there would not be an assertive and independent profession, the WG prioritized the drafting of legislation regulating the legal practice and one that would ensure that the legal profession was not beholden to the favor or fury of the executive branch of government.

    4.SUPPORT FRAMEWORK

    Although the AC is established by and accountable to the Attorney General, and the directive establishing the AC obligates the AGO to fulfill the financial and logistical needs of the AC, in practice the AC has sought to ensure its obligation to provide professional, independent and objective advise by ensuring that it also has functional independence and autonomy of decision-making.[x]  One of the ways in which the AC has sought to achieve this is through its financial infrastructure. Accordingly, the LJAAC does not rely on the AGO extensively and its members and key staff are not employees of the AGO. In fact, the LJAAC does not rely on any single governmental or non-governmental institution to meet its financial, personnel, material and other needs. The largest and most impactful contribution to the work of the LJAAC comes from the volunteers staffing the AC, the WGs, and the Secretariat.

    Whereas a number of institutional and other employees and law firms have, many a time at some cost to their bottom-line, provided volunteers with the flexibility they need to contribute to the achievements of the LJAAC, this report highlights institutions that have a formal engagement with the Secretariat as supporting institutions. In this respect, the financial, personnel, material and other support formally attained by the AC include the following: the AAU Law School, the AGO, British Embassy and the Department for International Development, Center for Human Rights and the School of Law at AAU, Ethiopian Civil Society Organizations Forum (ECSOF), Ethiopian.Investment Commission, Ethiopian Lawyers Association (ELA), European Centre for Electoral Support (ECES), European Union (EU), Fojo Media Institute, Friedrich Ebert Stiftung Ethiopia (FES), Human Rights Watch, International Bar Association (IBA), International Center for Not-for-Profit Law (ICNL), International Foundation for Electoral Support (IFES), Irish Aid; Netherlands Institute for Multiparty Democracy (NIMD), Open Society Initiative for Eastern Africa (OSIEA), UNDP, UNODC, UNOHCHR, USAID, United States Embassy, World Bank.

     5.CHALLENGES AND PROSPECTS FOR THE FUTURE

    As can be reflected in the third section, the LJAAC has been able to achieve much in a short period of time. Some of the laws that it drafted, such as the Organizations of Civil Societies Proclamation and the Proclamation on the Re-Establishment of the National Electoral Board of Ethiopia, have already had a positive impact in their respective fields. About a dozen similar laws, two of which are sizable legal codes, are slated to be introduced to Parliament. These achievements do not, however, mean that the LJAAC has not faced or will not face challenges. The following represent the major ones.

     5.1    HUMAN RESOURCES

    One of the foremost strengths of the legal and justice reform process within the ambit of the LJAAC has been the level of commitment shown by the legal, civil society, media, human rights, pro-democracy and other specialist communities to carry the workload of and indeed lead the reform. It was not lost on the diverse groups involved that this was an historic opportunity that had to be ceased. It is, thus, not surprising that all actors involved have been proactive in answering the call for and carrying the reform, and to do so on a voluntary basis.

     However, an undertaking based on the voluntary exertion of highly trained professionals with demanding schedules was bound, ab initio, to face challenges with coordination and supervision, and eventually volunteer burn-out and the volunteer’s dilemma. The fact that the LJAAC’s Secretariat has been understaffed and has itself been propped up with a volunteer taskforce has not helped the challenges of volunteer management either. The heavy reliance of volunteerism, therefore, while a testament to the commitment of the different participants who have achieved much for the reform process, has manifested itself as a strain on the LJAAC’s planning, monitoring, delivery of results, compliance with various timelines and financial/business management. The challenge of and the need for balancing the reliance on volunteers with the need to engage fulltime staff and consultants will continue into the LJAAC’s second year.

     5.2    OFFICE AND EQUIPMENT

    The one limitation the LJAAC has struggled with since its inception is the shortage of material supplies that it needs to conduct its work. The first set of challenges relate to office space. Although the LJAAC has been provided office space by the AGO, this space has not been sufficient to meet its needs. The LJAAC’s current office space is not sufficient to accommodate the fulltime and volunteer staff of the Secretariat and to meet the meeting space needs of the AC and the WGs. This has meant that the meetings of the AC, the Secretariat and the WGs take place mostly in borrowed spaces with a great deal of haphazardness with respect to where and when meetings take place. At times, even the AC, which has regular meeting biweekly and holds extraordinary meetings quite regularly, has had to change venue after finding out that other meetings are taking place in the borrowed spaces. This has also meant that most of the AC’s fulltime consultants are not be able to work inside its office and come into the office only for meetings. And finally, although the inflow of new employees and interns to the AC is a positive development, the AC will not have the space to put these employees once they are hired. In addition to challenges with office space, the LJAAC also does not currently have office sufficient equipment and tools that will allow it to properly run its business. The computers, internet connectivity, cellphone costs, transportation costs of the LJAAC, and occasionally printer paper of the office are provided at the cost of the LJAAC’s paid and volunteer staff. Whereas the efforts of LJAAC staff and volunteers in providing their own office spaces and material for the work is commendable, that does not relieve the LJAAC of a duty to provide an accessible and healthy workplace in addition to tools, equipment, and other implements to its employees and volunteers.

    5.3    BROAD-BASED PARTICIPATION IN THE REFORM

    Despite budgetary shortages, the LJAAC has done relatively well in meeting its public consultation needs. Due to the recognition of the need for the broadest possible participation of citizens to make up for Ethiopia’s democratic deficit and owing to funding from partners and administrative support from the AGO and to some extent Civil Society Organizations, the LJAAC was able to conduct numerous public consultations especially in Addis Ababa and a good number of these were covered in the media. Relative success in this front does not, of course, mean that more cannot be done and especially in reaching outside of Addis and in having a more robust media strategy.

     5.4    PUBLIC AWARENESS

    As pointed out above, LJAAC has done relatively well in terms of holding public consultations especially given its human resource shortages. It has, however, not been able to publicize its work beyond the media buzz created by the nature and significance of its work. In addition to acquiring funding to hire a fulltime public relations consultant, which is being processed at the time this report was issued, the LJAAC has also sought to establish a website and social media accounts on which it can promote its work. These resources and implements have however not been fully utilized due to the lack of personnel. In addition, whereas the LJAAC had planned to use electronic media ensure that its work, and in particular its studies and draft laws, are made easily accessible to the public its website development has stalled because of the lack of resources. A robust and well-maintained website would allow the LJAAC to supplement its public consultations on top of to providing it with a platform for public debate, for collecting feedback from the public, and for conducting public legal education regarding upcoming legislation.

     5.5    EFFECTIVENESS AND SUSTAINABILITY OF REFORMS

    As the LJAAC goes into its second year one of the challenges it is bound to face, one may even argue that it is already facing, the question of how it is going to gauge the successes and failures of normative reform efforts and how it can support the sustainability of the same. Since much of the LJAAC’s recommendations and efforts are going to set boundaries to the power and discretion of the institutions and sometimes individuals mandated with the implementation of the reform, the LJAAC ought to be deliberate about recommending activities that go beyond normative change and recommend strategies that address resistance to change, capacity development, and the participation of a broad spectrum of the public in the realization of change.






    [i] Federal Attorney General Legal and Justice Affairs Advisory Council Establishment Directive, Directive No. 24/2010.  

    [ii] See World Bank, Ethiopia: Legal and Judicial Sector Assessment (2004); The World Bank, Ethiopia Legal and Judicial Sector Assessment (2004); Svein Ege, “Peasant Participation in Land Reform: The Amhara Land Redistribution of 1997” ETHIOPIA: THE CHALLENGE OF DEMOCRACY FROM BELOW 73 (Bahru Zewde and Siegfried Pausewang, Eds., Stockholm: Elanders Gotab). The Federal Courts of Sharia Consolidation Proclamation No.188/1999.

    [iii] Ministry of Capacity Building, The Comprehensive Justice System Reform Program Baseline Study Report, Justice System Reform Program Office (2005). 

    [iv] Ibid. Other reform initiatives with significant legal and justice reform components, such as the two Growth and Transformation Plans (GTP I and II), the Public Sector Capacity Building Program (PSCAP), and Business Process Reengineering (BPR) were synergized with the above justice reform programs. The subsequent legal and justice system reform initiative, an initiative that is a direct antecedent to the current one, began as a two-year study conducted by the Office of the Prime Minister. 

    [v] Ministry of Finance and Economic Development, Growth and Transformation Plan (GTP) 2010/11-2014/15

    (2010); National Planning Commission, Growth and Transformation Plan II (GTP II) (2015/16-2019/20) (2016).

    [vi] World Bank, Ethiopia: Public Sector Capacity Building Program Support Project (12 May 2004).

    [vii] The World Bank, Federal Democratic Republic of Ethiopia: Public Sector Reform Approach Building the Developmental State – A Review and Assessment of the Ethiopian Approach to Public Sector Reform, Report No: ACS3695 (2013).

    [viii] Generally, Henok G. Gabisa, ‘Justice System Reform Programme’ in Ethiopia: Is Rule of Law Lost in Translation? 23 Afr. J. of Int'l & Comp. L. 291 (2015); Elias N. Stebek, Judicial Reform Pursuits in Ethiopia, 2002-2015: Steady Concrete Achievements - versus - Promise Fatigue, 9 Mizan L. Rev. 215 (2015); 

    [ix] See Preamble and Arts. 4 (1), 5 (3), 6 (2) and (3), and 11 (2) of Directive No. 24/2010. 

    [x Directive No. 24/2010 lays sufficient emphasis on the need for members of the AC to give precedence to their independence, their professionalism, their experience, their ethics and conscience, in addition to reliance on empirical evidence, the findings of research, and to the scientific method. See Preamble and Arts. 4 (1), 5 (3), 6 (2) and (3), and 11 (2).













     

     

     

     











































































































































































































































































































































































































     








     

     

     











































































































































































































































































































































































































































































     3.

  •  Judicial Affairs

  •  the Civil Service Reform Program (1996) which aimed at
    strengthening public sector institutions including aspects of the judiciary;





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