Jump to Content Jump to Main Navigation
Oxford Law Citator
Sign up for alerts

Part III The Relationship Between the Judiciary and the Political Branches, 11 Relations Between the Legislature and the Judiciary in Ethiopia

Assefa Fiseha

From: Separation of Powers in African Constitutionalism

Edited By: Charles M. Fombad

Content type:
Book content
Product:
Oxford Constitutions of the World [OCW]
Series:
Stellenbosch Handbooks In African Constitutional Law
Published in print:
03 March 2016
ISBN:
9780198759799

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 11 December 2024

(p. 265) 11  Relations Between the Legislature and the Judiciary in Ethiopia

1.  Introduction

The 1995 federal constitution of Ethiopia establishes federal and regional state courts distinct from the political branches. A dual court structure was introduced during the transition (1991‒94) but was further elaborated in the new constitution and subsequent laws that established a more detailed hierarchy of court structures and defined their respective powers.

A thorny relationship seems to be emerging between the judiciary and the legislature in Ethiopia. One indicator is the ever increasing tendency by the legislature to issue ouster clauses that take away power from courts, placing them instead in quasi-judicial bodies within the executive and at times making their decisions not reviewable by courts.1 On occasions the legislature is also engaged in enacting or amending laws in response to final court decisions. Based on the assessment of existing laws and decisions of federal courts, this chapter investigates whether these developments are in line with the notion of separation of powers as outlined in the federal constitution. By virtue of the constitution, the judiciary is established as an independent body and is vested with broadly stated judicial mandates that give rise to the question of whether the legislature can issue the ouster clauses without limits and whether the courts, particularly those at the highest level, can review decisions of quasi-judicial bodies established by the legislature at least on the basis of errors of law. In providing answers to this question, the relationship between the judiciary and the legislature is explored both as envisaged in the constitution and as it manifests itself in practice. Laws enacted by the federal parliament and decisions of the Federal Supreme Court are the main materials used in analysing the relations between the legislature and the judiciary. The practice of ouster clauses being enacted by the legislature that take away the courts’ mandate and placing it instead in quasi-judicial bodies within the executive that are neither impartial nor tenured, together with the self-imposed positivist conception of the rule of law adopted by the highest court, has given rise to a unique conception of separation of powers in Ethiopia. The judiciary is evolving as a handmaiden of the legislature, the latter having little constraint on its mandate.

(p. 266) 2.  Historical Background

Except for some efforts since the second half of the twentieth century, Ethiopia’s judicial system is characterized by a fusion, not separation, of administrative and judicial functions in one organ. Historically, adjudication in Ethiopia of cases formed part and parcel of public administration. One finds a merger of functions within the executive, the administration of justice, and the executive proper. Indeed, adjudication of cases was considered to be the principal function of the executive. For example, in Emperor Menlik’s (1889‒1913) era, the Minister of Justice was also the Chief Justice.2 The attempt to separate the judiciary from the executive was not easy. A long and tiring process of negotiation in 1942 led to a partial victory as far as the judiciary was concerned: only the highest benches, that is, the High Court and the Supreme Imperial Court were able to be relatively free from the influence of provincial administrators. In all other respects, the court structure reflected until 1992 the traditional practice of combining judicial and executive functions in the person of the local chiefs and provincial governors. At the apex of the court structure, until 1974, was the Emperor, who dispensed justice in the Zufan Chilot (Crown Court). Under the Derg regime (1974‒91), the Ethiopian judicial system was unitary and the country was divided into fourteen provinces that merely served as agents of the centre in which the High Courts would sit and only one Supreme Court in the capital, Addis Ababa. It remained a unitary system until 1992.

The blend of judicial and executive functions in the latter is not without implications. The crisis of the state and its institutions also had its effects on the judiciary. In fact, it is difficult to see the judiciary in isolation from the whole political system under which it operated. Primarily, the judiciary never had a separate existence of its own as an institution. Rather, it sat within the political branches and predominantly within the executive. Second, the judiciary never survived the regime that established it. It was no surprise to see every new regime setting up its own version of the judiciary that suited its purpose. It was never designed to operate as the third branch of the government in the real sense. This left the impression on ordinary citizens that changes in government necessarily entailed another round of appointments and dismissals of judges. Thus, when the Ethiopian People’s Revolutionary Democratic Front (EPRDF) came to power and introduced the new federal system after overthrowing the military junta (1974‒91) in 1991, the prestige and reputation of the judiciary was at its lowest ebb. It was associated with all forms of nepotism, corruption, and worst of all, an arm of the most despotic regime, notorious for execution of people without any semblance of due process of law.3 As indicated later in this chapter, although an independent judiciary (p. 267) is proclaimed in the constitution, it continues to face challenges from the political branches and its reputation is still far from improved.4

The 1995 federal constitution establishes federal and regional state courts distinct from the political branches. Article 78(1) states that: ‘An independent judiciary is established by this constitution.’ The constitution further stipulates that ‘Judicial powers … are vested in the courts’.5 A dual court structure was introduced during the transition (1991‒94) and further elaborated upon in the new constitution.6 Supreme federal judicial authority is vested in the federal Supreme Court and reserves for the House of Peoples’ Representatives (HoPR) to decide by a two-thirds majority vote to establish such lower level federal courts as it deems necessary, either nationwide or in some parts of the country. There is only one Federal Supreme Court with nationwide jurisdiction and until 2003, the Federal High Court and first instance courts were limited to Addis Ababa and Dire Dawa. As far as the organization of the lower level federal courts in the states is concerned the constitution stipulates that the jurisdictions of the Federal High Court and of the first instance courts are delegated to state courts. By virtue of this delegation, the state Supreme Court exercises, in addition to its state jurisdiction, the jurisdiction of the Federal High Court. In order to guarantee the right of appeal of the parties, decisions rendered by a state High Court exercising the jurisdiction of the federal first instance court may be appealed to the state Supreme Court. In addition, decisions rendered by a state Supreme Court on federal matters may be appealed to the Federal Supreme Court.7

As far as the state courts are concerned, from the provisions of the federal constitution (state constitutions also provide the same) one finds that the judicial structure consists of the state first instance courts at the lowest level, also called wereda courts, above which we have the intermediate zone/High Court and at the highest level we have the State Supreme Court.8 As a result the Ethiopian judicial system is organized formally on a dual basis in which there are two parallel court systems, the federal courts and the state courts with their own independent structures and administrations.

As for the power of the respective level of courts, the constitution states that the Federal Supreme Court shall have the highest and final judicial power over federal matters while the State Supreme Court shall have the highest and final judicial power over state matters. What constitutes a federal or state matter is often contested9 but this (p. 268) remains the key concept for the allocation of jurisdiction between federal and state courts. The Federal Supreme Court has also a very controversial power of Cassation over state matters when it establishes that state courts have committed a ‘basic error of law’. In a federal context, the jurisdiction of the Federal Supreme Court covers matters that fall within the mandates of the federal government. State Supreme Courts assume final and authoritative mandate with respect to matters allocated to the states. Yet in Ethiopia, the Federal Supreme Court also reviews decisions of State Supreme Courts even though issues such as divorce, which is an exclusively state power, have little to do with the mandates of the federal government.10 This appears to be rather at odds with the federal principle and division of powers between the two levels of governments.

3.  Separation of Powers in the Context of a Parliamentary System

Ethiopia has adopted a parliamentary system of government, so the relationship between the judiciary and the legislature is analysed in the context of a parliamentary system. Modern parliamentary systems first evolved in Europe,11 notably so in Great Britain where the cardinal principle is that of parliamentary sovereignty.12 This principle refers to parliament’s absolute right to make and unmake any law whatsoever,13 that a law enacted by parliament is sovereign, and that, conversely, no individual or institution is allowed to set aside such an act of parliament. However, the notion of parliamentary sovereignty is given a particular context when it is fused with a supreme constitution such as is the case in Germany. The Basic Law governs as supreme law and the parliamentary system operates within the context of the supreme constitution. Likewise, the parliamentary system in Ethiopia operates within a supreme constitution. Parliamentary supremacy is limited as by virtue of article 9 which declares the constitution as supreme. No law, custom, or decision of government body can contravene the supreme law of the land.

Examining the separation of powers in the context of a constitutionally defined parliament leads to a second core feature of parliamentary democracies. Inasmuch as there is a fusion of power between a legislature and executive, the executive derives (p. 269) from and is constitutionally accountable to the legislature.14 That is to say, the Cabinet, including its prime minister, is appointed, supported and, if needs be, removed from power by parliament.15 As far as the relationships between the legislature and the executive is concerned, there is then a fusion, not separation of power between the two organs in parliament.

Nevertheless, it is still possible to write about some level of separation of power between the legislature and the judiciary. The importance of the third arm of the government, the judiciary, has long been recognized although its organization, jurisdiction, and role vary from one political system to the other. It was Montesquieu who articulated the importance of the trinity of the political branches without necessarily defining the kind of relationship and the complex network that exists between the three branches in the different polities.16 Yet there is some agreement on the notion that separation of powers is not an end in itself. One amongst several of its ends is to prevent abuse of power and the risk of political despotism that comes with the concentration of power in the hands of one government institution, political party, or person.17

Separation of powers is not directed against the government’s power as such. It acknowledges the role of the government and this is critically so in many developing countries where a lot is expected of the government in terms of bringing about development. But this does not mean that power is left unregulated. Separation of powers is also about limiting power. It follows that a body external to the branch that has allegedly exceeded its power or deviated from its authority has the final say. In the Ethiopian context, this calls for specific interpretation given the fact that the House of Federation (HoF), that is, the second chamber has final authority on constitutional issues.

As already noted, the legislature and the executive share power in parliament but it is, nevertheless, possible to write about some level of separation of powers between the legislature and the judiciary. But before we do that it is vital to identify the core function of the judiciary in Ethiopia albeit the bare minimum as it is precluded from reviewing the constitutionality of laws enacted by parliament.18

The design and practice of constitutional interpretation in Ethiopia is distinct. Regular courts are prohibited from reviewing the constitutionality of laws enacted by the legislature. While this could have left a fair share of power for the judiciary, such as the investigation of regulations issued by the executive and decisions of government (p. 270) bodies for their consistency with laws and the constitution, the laws19 that define the powers and responsibilities of the HoF further limits the jurisdiction of the courts, an institution already weakened because it lacks the competence to review the constitutionality of laws. Thus, according to articles 62 and 83 of the constitution, the HoF is mandated to interpret the constitution and resolve constitutional disputes.20 In this process, the HoF is advised by the Council of Constitutional Inquiry (CCI), a body composed of eight legal experts (two of whom are the President of the Federal Supreme Court and his Deputy) that are appointed by the president of the country and three members from the HoF itself. Unlike second chambers in other federations, the HoF has no law-making functions. The HoF is a quasi-political body composed of, to use the words of the constitution, ‘nations, nationalities and people’. Each group has at least one representative but each ‘nation or nationality shall be represented by one additional representative for each one million of its population. As for the selection/election process article 61(3) of the constitution envisages two possibilities. Members of the HoF may be elected indirectly by the state legislature or the state legislature may decide the members to be elected directly by the people. So far experience indicates that all members are indirectly elected by the states. An overall assessment of the performance of the HoF in the adjudication of constitutional issues reveals that it has played an important role particularly over those cases that are of high political significance. One such example was the Silte internal secession21 from the Guraghe in March 200122 in order to establish local/zonal administration in the South and the settlement of border disputes between Oromia and Somali regional states in 2004.23 This is linked with the HoF’s quasi political nature. However, there are clear implications for the impartiality of the HoF in a multi-party system. The HoF is a political organ dominated by the same (p. 271) party in power. Yet it is mandated to enforce constitutionally entrenched human rights including the civil and political rights that often set limits on the majority in power. With the emerging multi-party politics, it remains to be seen how far the HoF will serve as an impartial adjudicator on important intergovernmental conflicts and in setting limits to power.

4.  Judicial Autonomy

There appears to be a paradox in the use of the term judicial independence. On one hand we speak about the notion of judicial autonomy, that is, a certain degree of freedom from the political institutions that judges as individuals and the judiciary as an institution enjoy in the process of discharging their functions. On the other hand, we expect the judiciary to have that freedom from the very institutions of which it constitutes a part and which have a say on the mandate of the judiciary. As will be seen later, the political institutions employ various mechanisms to influence the judiciary. This is particularly clear when we analyse the structural autonomy of the courts in relation to the legislature.

Broadly speaking, judicial independence refers to the independence of judges and the judiciary as an institution in the exercise of their judicial function, free from the influence of the other branches of the government or indeed other sources of pressure.24 In analysing the relationship between the legislature and the judiciary, the conventional approach has been to view judicial independence as constituting both decisional/functional/substantive and structural autonomy of the judiciary and the judges.25 While there is a consensus on the need to protect the decisional independence of the judiciary from the political branches including the legislature, the structural autonomy of the judiciary can only be a relative one.

4.1  Decisional independence

Decisional independence refers to the freedom of judges to decide a case as they see fit by analysing the facts and the law, without any constraint or pressures: external or internal, the limits of the bench being nothing but the law.26 It is about the judiciary being able to dispense justice according to law and without regard to any other considerations. The Ethiopian constitution declares the establishment of an independent judiciary and vests judicial power in the courts requiring that the judge be directed solely by law.27 Yet in reality, Ethiopian federal as well as state courts often face (p. 272) challenges of non-compliance.28 On occasion, the political institutions have tried to stop the execution of final court judgments.29

Another component of decisional independence is the respect shown by, and compliance of, other branches with the courts’ decisions.30 This is a particularly important manifestation of the other branches’ commitment to the rule of law. This also requires the legislature to refrain from retroactively reversing specific judicial decisions. While the legislature has the mandate to enact and amend laws, such enactment or amendments should not target specific court decisions. As illustrated in the next section, excessive legislative intervention that targets specific court judgments including cases pending, can affect the outcome of a case. This is against the core principle of judicial independence.31 Acting otherwise implies that the legislature has turned itself into a court and resolved the dispute by legislation.32 Yet as the following section briefly demonstrates, the legislature is at times engaged in reversing specific and final court decisions.

4.2  Legislative reversal of pending and final court judgments

According to article 1723 of the 1960 Civil Code of Ethiopia, rights related to immovable property must not only be written but should also be registered in the notary’s office. The courts at the federal level have interpreted this clause differently in a number of cases. Some courts have stated that the written formality requirement alone is enough for validity of the contract governing the rights related to immovable property. The registration requirement is not required for validity of the contract but in relation to creating rights in rem, that is, rights that can be enforced against a third party. Other judges have interpreted this clause to mean that a contract involving immovable property such as that governing the sale or mortgage of property must be both written and registered to be valid even as between the two parties to the contract themselves. Not surprisingly, both government and privately owned banks have (p. 273) provided extensive loans to borrowers based on written contracts but without complying with the registration requirement. When the court at the highest level ruled that the lack of registration nullifies the validity of mortgage contracts,33 the entire banking system was thrown into a panic. This interpretation by the highest court that, in order for a mortgage to be valid, it required both a written contract and registration, resulted in legislative intervention34 to save the banking sector. However, although the legislature could have enacted an amendment/repeal law with only prospective effect, the law enacted went beyond what was necessary.

The first part of the amendment states as follows:

Notwithstanding the provisions of sub-article (1) of this article (1723), a contract of mortgage concluded to provide security to a loan extended by a bank or a micro-financing institution may not require to be registered by a court or a notary.

The implication is that a mortgage contract between the bank or another financing institution remains valid so long as it is written. The failure to register the written contract does not nullify the contract. In effect, with this amendment, the legislature is stating that highest court’s decision requiring registration in order for the mortgage contract to be valid, was wrong and that courts should continue to enforce written mortgage contracts as valid even though they are not registered. This clearly serves the intention of the government to save the banking system from collapse.

Two new articles in the amendment law, however, call for careful investigation. The first one stipulates:

The validity of any contract of mortgage concluded, prior to the effective date of this Proclamation, to provide security to a loan extended by a bank or a micro-financing institution, may not be challenged for not being registered by a court or notary in accordance with Article 1723 of the Civil Code (emphasis added).

The question is, can a legislature enact a law retroactively in a manner that precludes courts from adjudicating cases which do not comply with a previously enacted law, without violating the separation of powers? The intention of the legislature is clear. It wanted to maintain the validity of contracts such as those governing sales and mortgages involving immovable property despite their lack of registration. This time, however, the intention works retrospectively and precludes the courts from nullifying such contracts.

Even worse is the second part of the amendment law. It states:

Any court decision, rendered prior to the effective date of this Proclamation, to invalidate a contract of mortgage concluded to provide security to a loan extended by a bank or a micro-financing institution, for not being registered by a court or notary in accordance with Article 1723 of the Civil Code shall have no effect. Any such case pending before any court as of the effective date of this Proclamation shall also be terminated (emphasis added).

(p. 274) While it is clear that the new law in its general nature does not target specific cases pending before a court of law, it is difficult to approve of this law based on the separation of powers principles. The legislature has the mandate to enact a new law or change an existing law. In doing so it is expected that the new law remains general and does not target a case pending before a court of law. This is what is called the changed law rule, as was explained earlier.35 However, if the legislature enacts a law that specifically targets a case pending before a court of law in a way that manipulates or directs the outcome of the case, it affects the decisional independence of the court and is not a proper exercise of legislative power. It violates the separation of powers principle. This is called the direction principle. This particular part of the amendment contains no more than four articles dealing exclusively with the issue of registration, and as such, it fits squarely into the direction principle. Thus, it is difficult to agree with the legislature’s position that effectively nullifies all court decisions rendered prior to the effective date of the Proclamation. To make matters worse, the amendment law does not even specify the exact date from which the retroactivity applies. Is it for the last year? Five years? Fifteen years? There is no argument about enacting or amending laws in a general manner and with prospective effect falling squarely within the legislature’s core functions. However, if the law is applied retroactively and targets specific cases or reverses by targeting final court judgments rendered before the new law, this constitutes a serious violation of the separation of powers. It amounts to the legislature turning itself into a court and resolving disputes by legislation.

Another interesting law relates to corruption. Following a split within the ruling party in 2001, Siye Abraha, a former defence minister, was accused of grand corruption and brought before a court. When the lower courts ruled that the accused should be released on bail, which is a constitutional right by virtue of article 19(6), security officers prevented the release of the accused. Within a few days after the order of the court to release the accused on bail, parliament hastily convened to enact a law that deprived all persons accused of corruption of the right to bail.36 Following this development, the press nicknamed the law ‘Siye Abraha’s law’. This was not the end of the story. Several years later and after the new law had served its function, parliament amended the law reinstating the right to bail to persons accused of corruption where the charge entailed a potential sentence not exceeding ten years’ imprisonment.37

This case demonstrates that the legislature operates with little constraint on its power, and can at any time decide to intervene and reverse court decisions.

(p. 275) 4.3  Structural autonomy

While decisional independence is a crucial component of judicial independence, it is however not the only one. Judicial independence should also include structural or institutional independence. This refers to the autonomy of the judiciary as an institution and the judges collectively, from other institutions. In theory, the judiciary is supposed to be free from external pressure coming from the other branches, the usual suspects being the legislature and the executive.38 The political institutions, particularly the legislature, play a crucial role in terms of defining at least certain aspects of the jurisdiction of the courts, in the process of appointing or removing of judges and budget allocation. Hence, the suggestion that the judiciary enjoys absolute independence from the other branches of government, of which it constitutes a part, is more of a myth than a reality.

Judicial independence cannot be considered in the abstract but in real politic. In many political systems including Ethiopia, it is a fact that the other branches exercise some degree of control over the budget of the judiciary, in the appointment, promotion and impeachment of judges, in defining the jurisdiction of federal courts and at times deciding on the establishment of lower federal courts.39 The other branches can, if they wish, involve what some call ‘jurisdiction stripping’.40 The political institutions, particularly the legislature, have the means to keep the judiciary humble and one cannot help but repeat the famous statement by Alexander Hamilton in the Federalist Papers No 78. It reminds us of the weak position of the judiciary, having little to do with the purse (mandate of the legislature) or the sword (mandate of the executive) compared to the other branches. This is even more visible in the Ethiopian case. The courts merely render judgment for the enforcement of which they have to count on the cooperation of the political institutions, hence the need for them to be independent from the pressure of the other branches. In this context, judicial independence must be understood in the limited sense of judicial autonomy, an autonomy that allows a relative degree of freedom to the judiciary from the influence of the two other branches. Indeed some have argued that a more accurate description would be ‘independent judges, dependent Judiciary’.41

Political institutions could have a significant impact on determining or influencing the jurisdiction, selection, promotion, tenure, compensation, and daily operation of the courts. In this sense it is a relational term referring to the institution’s relationship with other parts of the political system and individual judges’ relationships with each other.

Needless to say, most of the issues related to institutional independence are linked to the constitutional position of the judiciary. If issues related to jurisdiction, tenure, immunity, and terms of office of courts are constitutionally entrenched then such legal norms create constitutional judges and courts.42 The role of the political branches is (p. 276) then reduced because any changes in such provisions require constitutional amendment. In Ethiopia the legislatures at federal and state level are mandated to define the jurisdiction of courts and, as illustrated in Section 4.4, on a number of occasions have stripped courts of their jurisdiction.43 This trend is a violation of the separation of powers and the exclusive role of courts. This principle prohibits the diversion of cases from the ordinary courts to disposal by tribunals which do not enjoy the same safeguards hence putting justice at risk.

The structural aspects also imply that the courts, usually through their presidents, the registrar, or the judicial councils, must be able to decide issues related to case assignment, court schedules, and transfer of judges. Primarily, the political branches should not interfere with these matters but more importantly, the court itself needs to have clear and pre-planned internal regulations dealing with these issues. The issue of case assignment is particularly crucial. In continental Europe this is a matter of great doctrinal significance. The natural judge principle is that parties should not have a role in choosing a judge, rather the judge and the bench who are to sit on a specific case should be institutionally determined in advance and planned long before the cases reach the courts.44 It is a principle that enhances public confidence in courts as it removes suspicion that the outcome of a specific case may have been influenced by the deliberate selection of specific judges or benches by parties. In other words, it prevents judge/bench shopping. In principle this is the mandate of the respective heads of the courts and that of the judicial administrative council in Ethiopia but in practice the allocation of files to the respective benches is manipulated by the registrar who is often familiar with the position of judges on specific matters.45

Another crucial component of the structural autonomy is court administration.46 The constitution authorizes the Federal Supreme Court to draw up and submit to the House of Peoples’ Representatives (HoPR) for approval the budget of the federal courts, and upon approval, to administer the budget.47 The constitution makes the courts accountable to parliament, not to the executive. Yet despite this constitutional principle that limits the mandate of the executive, in practice, both at federal and state level, the court submits its budget to the executive (Ministry of Finance and Economic Development or equivalent regional bureau). The latter consolidates it to the national budget request and may in the process slash part of it and send it for approval to the legislature. In many cases the judiciary is kept in the dark when adjustments to the initial request are made.48

(p. 277) The management of courts and judges is clearly an area in which the principles of democratic accountability and judicial independence need to be carefully balanced. On one hand the judges and courts provide a public service and spend public funds. As a result, there is a need for public accountability as to how well the service is rendered and how public funds allocated to the judiciary are spent. These are often the reasons given by the legislature for its assumption of some responsibility for the administration of courts. On the other hand, there is the competing value of judicial autonomy, which calls for its relative freedom of action from the influence of the legislature in these matters. As a result, if the involvement of the legislature or the executive in matters of court administration is too great and at times too controlling of vital aspects of adjudication, judicial autonomy can be seriously impaired.49

Constitutionally, the Judicial Administrative Council (JAC) is empowered to decide on the salary and related benefits of judges but in reality such decisions have no effect unless approved by the executive. The judiciary does not administer its own staff or determine the qualifications, function, and recruitment of support staff. These functions are controlled by the Civil Service Commission. Thus, the judiciary has no autonomy to administer its budget and can only hire and fire civil servants, other than judges, with the cooperation of the Civil Service Commission.50

The Ethiopian situation largely confirms the view that whether and to what extent the judiciary in any country can be viewed as independent will not only depend on the law and the constitution but also on the nature and character of the people who hold the office of judge, the political structure and social climate, and more importantly, whether the practice conforms with constitutional principles.51

4.4  Ouster clauses

Another factor in the relations between the legislature and the judiciary that calls for careful study is the increasing tendency of the former to issue ouster clauses. This is where the legislative body takes away the mandate of the courts and confers it on quasi-judicial bodies within the executive. While such quasi-judicial bodies exist in other jurisdictions, regular courts often review their decisions on appeal. As will be seen, this is not the case in Ethiopia however. The highest court often declines to review decisions of quasi-judicial bodies.

In the last couple of years, the legislature has shown an increasing tendency to establish by law administrative agencies and tribunals outside the regular judiciary with some adjudicatory powers that diminish the powers of the courts. This is despite the constitutional clause under article 78(4) stating as follows:

[S]pecial or ad hoc courts which take judicial powers away from the regular courts or institutions legally empowered to exercise judicial functions and which does not follow legally prescribed procedures shall not be established (emphasis added).

(p. 278) Many laws have been enacted by the legislature that take powers away from courts and deal with issues such as urban land lease, government owned houses/buildings, foreclosure of defaulting debtor’s property, and taxation52 disputes arising from these matters are by virtue of the respective laws placed in quasi-judicial bodies within the executive. In other words, there is a growing tendency by the political branches to rely on the administrative complaint system and the quasi-judicial powers within the executive. But such administrative complaint systems or quasi-judicial organs often lack the security of tenure which one finds in judges. Quasi-judicial bodies do not necessarily follow legally binding procedures and ensure due process to parties. Further, the people making the decisions in quasi-judicial bodies often lack the expertise enjoyed by the judiciary as they are rarely trained lawyers and in some cases are senior political appointees. Lastly they are not expected to be impartial given that the quasi-judicial bodies fall within the executive.53

The net effect of this growing tendency is either partial or complete withdrawal of jurisdiction from courts. For example, the Agency for Government Houses has been empowered to give and execute expulsion orders to tenants of state-owned houses and use the police to this effect, if it thinks there is breach of contract or the tenant is an illegal occupant.54 Key questions that remain unresolved are what if the tenant thinks that he is being illegally evicted or has proof of a valid lease contract or the Agency abuses its power? It is to resolve precisely these sorts of issues that we need a third impartial body. The Appeals Commission established by the re-enactment of Urban Land Lease Holding law is empowered to make final decisions on land and buildings to be expropriated for public interest, except on the amount of compensation. Nowadays, it is not uncommon to find a lease contract concluded with two private investors over the same plot of land. This usually raises many questions. Who is the rightful owner?55 (p. 279) Which contract is valid and why did the administration conclude two lease contracts over the same plot of land? In other words, a party cannot enforce the lease contract in court even if the administration wrongly concludes a second contract with another person. The abuse of power by the administration (for example, by concluding two lease contracts over the same plot of land) that calls for strict scrutiny by the courts is now curbed. The courts’ mandate has now been taken away. This paves the way for arbitrary government that is against the legitimate expectation of the citizen. This also dampens the public’s confidence in public institutions.

By virtue of Proclamation No 97/1998, banks are empowered to foreclose the property of defaulting debtors. Previously, only the Civil Procedure Code allowed courts to decide whether a debtor is in default and if so to decide the amount based on the claims of the creditor and decide how the claim is to be settled. A secured creditor obviously had priority but the process often took a long time and that triggered the legislature to enact a new law that empowers the banks to foreclose a defaulting debtor’s property given to them as security. The new Proclamation requires that in the process of foreclosing a defaulting debtor’s property, the bank should comply with procedures laid out in the Civil Procedure Code that ensure due process to parties. This provokes a number of questions. What if the bank fails to comply with the procedures and sells the property for a price less than the market value? What if it abuses its power? Indeed these were the central issues in Gedera Hotels PLC v Commercial Bank56 that came before the Cassation Division of the Federal Supreme Court. The debtor raised an action alleging that the bank has not followed the required procedures and as a result the property sold at a price below its market value. The procedures that are required to be followed when auctioning the defaulting debtor’s property are stipulated in the Civil Procedure Code and are also referred to in Proclamation No 97/1998. The Cassation Court decided by a majority vote that it had no authority to review the decision foreclosing the debtor’s property as the bank has the mandate despite indications of anomalies related to either abuse of power or corrupt practice. It is important to note that the law did not expressly prohibit review by courts when banks fail to ensure due process by failing to comply with procedures set out in the Civil Procedure Code nor did it state that the decision of the bank is final.

In these cases, the same institution is thus a judge in its own cause in disregard of the principle that impartial adjudication of disputes by courts is a core component of due process and the rule of law. If the same agency decides on its own case then the notion of separation of powers is also violated. In a number of cases, the court has quashed lower courts’ decisions reviewing the legality of such decisions and declared the tribunal’s decision within the several federal agencies as final.57 In sharp contrast, the Federal First Instance Court seems to have adopted a correct interpretation of the concept of separation of powers. In the case of Getachew Yimenshiwa v The Office of (p. 280) General Auditor58 and in the case of Birtukan Mideksa v Federal Prison Administration,59 the court reviewed the decisions of the respective government offices. In the former, it ordered it to renew the licence of the plaintiff, ruling that the Auditor General had arbitrarily refused to do so. In the second, the Court ordered the Prison Administration to respect the rights of the prisoner as stipulated in the constitution and other laws. The impact of the decision of the Cassation Division on lower courts remains to be seen but there seems to be a role reversal underway. This is problematic because knowing that such tribunals are within the executive and in the absence of legally prescribed procedures that ensure due process to parties, the Federal Cassation Division should have guaranteed final review on the basis of error of law or on the basis of principles of good administration.60 By failing to ensure final review, the highest Court is misinterpreting the concept of separation of powers. The notion of separation of powers implies that the judiciary is autonomous in determining the scope of its authority. No other branch is allowed to interfere in the affairs of the courts as long as the judges have not exceeded their mandate. In the above cases the Cassation Division of the Supreme Court is abdicating what is inherently its own mandate. It has consistently stated that regular courts have no mandate to review the decisions of such tribunals.

Another interesting case is the Heirs of Wasihun v Agency for Government Houses (hereinafter the Agency). The Ethiopian Privatization Agency (EPA) is empowered by virtue of Proclamation No 110/95, Proclamation No 87/1994, and the amendment Proclamation No 193/2000 to return to their rightful owners houses and buildings illegally expropriated outside of the Proclamations during the military junta (Proclamation No 47/1974).61 The heirs submitted their claim on a building located in Addis Ababa to the EPA alleging that the building was expropriated outside the scope of Proclamation No 47/1974. The EPA sent the heirs’ claim to the Agency ordering it to submit its response on a specific date. After hearing evidence from both parties, the EPA decided on 3 January 2001 that the building had been expropriated outside the scope of the Proclamation and should be returned to its lawful heirs.

The Agency appealed to the Board established by law that hears appeals on decisions made by lower organs of government agencies including the decision of EPA. The Board, without summoning and hearing the heirs, reversed the EPA’s decision on 27 November 2009. The law that established the Board is silent as to what procedures the Board should follow in its decision-making process and what happens if the Board’s decision contains an error of law. The heirs then appealed to the Cassation Division of the Supreme Court alleging that the Board had committed a fundamental error of law as it did not allow them to respond to the appeal made by the Agency and, more (p. 281) importantly, reversed the EPA’s decision without following due process of law. However, the Cassation Division of the Federal Supreme Court held on 29 April 2010 that the Board is an administrative body and hence the Court has no mandate to review its decisions on whether they contain fundamental errors of law.

The decisions of the Cassation Division of the Supreme Court create precedents that bind all lower courts at federal and state level. These cases illustrate the position of the courts, particularly the higher courts, on the rule of law. The Supreme Court’s understanding of the rule of law is a very positivist/legalistic/formalistic one bereft of any content related to justice, the right to a fair trial, or human rights. Human rights in Ethiopia are constitutionally entrenched. Nearly one-third of the constitution is devoted to all generations of rights and this is further protected by a rigid procedure of constitutional amendment. The highest court has reduced the role of the law to serve merely as an instrument of power and having little to do with protection of rights and ensuring due process to parties. The classic understanding of the rule of law assumes that it regulates political power and public institutions, limits the power of political institutions, and that the law exists for the promotion of human dignity. Yet the highest court has failed to discharge this lofty task.

The above analysis does not imply that semi-judicial bodies are unnecessary or bad in the legal system. On the contrary comparative studies indicate that such semi-judicial bodies play a vital role alongside the regular judiciary. In the United States, such institutions are known as Article I or legislative courts as opposed to Article III courts. In India too there are similar institutions. In Germany and Switzerland such tribunals exist but constitute part of the regular judiciary.62 There is growing governmental activity and some cases may, because of their technical nature, be better addressed by a tribunal within the administration. This may also be the case because courts are already over-burdened with other cases and cannot take on these new matters. However, it is difficult to consider such quasi-judicial organs as courts in the proper sense of the term.

Against this background, comparative studies suggest that the decisions of quasi-judicial bodies must be subject to review by the regular judiciary.63 The trouble in Ethiopia is that the Supreme Court, contrary to this established trend, has failed to review or even set the grounds for review of such bodies, leaving the political institutions with a free hand.

In general, the government appears to be suspicious of, and have little faith in, the courts. There is an increasing trend by the legislature to take jurisdiction away from the courts by law and place it instead in the hands of the executive. This in effect aggravates the problem rather than solving it. Only by improving the institutional competence of the judiciary will issues related to delays in deciding cases, efficiency, and accountability be resolved, and this should be done without necessarily violating constitutional principles and judicial independence. Or is the current situation, as some allege, a (p. 282) reflection of a deeper ideological orientation that desires a weak judiciary structured more along the lines of former communist countries where the judiciary remained subservient to the political institutions?64 Or perhaps it is a reflection of the age old totalitarian conception of power in the country?

Overall, there seems to be a strange overlap in the interests of the political branches and the judiciary. There is a burgeoning interest by the political branches in having a weak and limited judiciary, a judiciary more accountable than autonomous. At the same time the judiciary remains complacent in this trend. It is not clear whether this arises from fear of the political branches or whether it is a reflection of a totalitarian conception of power rather than separation of powers, as it existed in recent political history. But certainly the judiciary has failed to interpret and apply the notion of separation of powers properly. As already noted, separation of powers is not about absolutism of each branch. It is clear that every branch enjoys autonomy with respect to its powers but that autonomy is not absolute. Certainly, it is not an advocacy for activism, whereby the judiciary attempts to appropriate the mandates of the political branches. Far from this, the Ethiopian judiciary is abdicating what is inherently its own jurisdiction to the political branches and manifesting judicial timidity. As a result, the political branches are given carte blanche to act as they wish.

5.  Conclusion

Constitutionally speaking, the post-1991 developments concerning the judiciary have been significant. Unlike under the previous regimes, the judiciary has been organized as a distinct institution, a third branch of government, separate from the political branches. The basic principles governing its power, autonomy, and organization have been stipulated in the constitution and other laws enacted by parliament. We have however seen that in reality, the legislature encroaches on the autonomy of the judiciary by ousting its jurisdiction and placing judicial responsibilities in the hands of quasi-judicial bodies. This trend has become so prevalent that the highest court has taken the position that whatever the legislature takes away remains valid and courts are mandated to interpret whatever is left.65 Taking these powers away from the courts violates the principle of separation of powers. The judiciary is established to interpret the law and settle disputes authoritatively. If important aspects of their judicial functions are taken away, as is the case in Ethiopia, there is little left for the courts. Particularly notable in this respect is the timidity exhibited by the courts themselves. The judiciary, particularly at the highest level, has not been able to assert its power to review decisions of quasi-judicial bodies based on errors of law or in circumstances (p. 283) when such bodies fail to ensure due process for parties. However, quasi-judicial bodies do not necessarily ensure due process for the parties. As is often the case, they are placed within the executive and hence are not necessarily impartial. These factors should serve as a ground for the courts to safeguard the rule of law.

The legislature is also at times engaged in reversing final court judgments. While the legislature has the mandate to amend an existing law or enact a new one, it should not target specific court decisions and should not be retroactive. If the legislature is not happy with the decision of the court it may enact a general law regulating future rights and duties.

What is noteworthy in the Ethiopian case is the position taken by the Federal Supreme Court. As the study of the decisions of the courts, particularly that of the Federal Supreme Court, indicate, the judiciary has not yet defined its role as a third branch of government within the constitutional framework. Whether the role of the judiciary is to settle ‘chicken and goat theft cases’ only or to engage itself beyond that, short of nullifying Proclamations enacted by parliament as unconstitutional, is yet to be defined by the courts. The judiciary has not properly interpreted the concept of separation of powers and as a result has abdicated its core function of reviewing acts and decisions of the executive and administrative agencies based on errors of law. It has not reacted to the list of ouster clauses enacted by the legislature that take away its powers and prohibit judicial review. Indeed the judiciary’s conception of law reduces the role of law to an instrument of power even when due process is violated by quasi-judicial bodies.

Bibliography

  • Abbink J, ‘The Ethiopian Second Republic and the Fragile “Social Contract”’ (2009) 44 Africa Spectrum 3
  • Barak A, The Judge in a Democracy (Princeton University Press 2006)
  • Belay M, ‘A Review of the Ethiopian Justice System Reform Program’ in Assefa T (ed), Digest of Ethiopia’s National Policies, Strategies and Programs (Eclipse Printers 2010) 419‒50
  • Berhe D, The Role and Competence of Ethiopian Federal Courts in Ensuring the Rule of Law: The Law and the Practice (LLM thesis, Ethiopian Civil Service College 2009 (unpublished))
  • Black H, Black’s Law Dictionary (6th edn, West Publishing Co 1990)
  • Brewer-Carias Allen, Judicial Review in Comparative Law (Cambridge University Press 1989)
  • Brudney J, ‘Recalibrating Federal Judicial Independence’ (2003) 64 Ohio St LJ 149
  • Burbank S, ‘What do we Mean by “Judicial Independence”?’ (2003) 64 Ohio St LJ 323
  • Cappelletti M, The Judicial Process in Comparative Perspective (Clarendon Press 1989)
  • Fekadu A, ‘Overlapping Nationalist Projects and Contested Spaces: The Oromo-Somali Borderlands in Southern Ethiopia’ (2011) 5 Journal of Eastern African Studies 773
  • Fiseha A, Federalism and the Accommodation of Diversity in Ethiopia (Eclipse Printers 2010)
  • Flinders M, ‘Shifting the Balance? Parliament, the Executive and the British Constitution’ (2002) 5 Political Studies 23
  • Galligan DJ (ed), Administrative Law (Dartmouth 1992)
  • Gerangeios P, The Separation of Powers and Legislative Interference in Judicial Process: Constitutional Principles and Limitations (Hart Publishing 2001)
  • Getachew A, ‘Is Publication of a Ratified Treaty a Requirement for its Enforcement in Ethiopia? A Comment Based on Federal Cassation File No 23632’ (2009) 23 Journal of Ethiopian Law 162
  • Jembere A, An Introduction to the Legal History of Ethiopia 1434‒1974 (LIT Verlag 2000)
  • (p. 284) John F and Kramer L, ‘Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint’ (2002) 77 NYUL 962
  • Jowell J, ‘The Legal Control of Administrative Discretion’ (1973) 18 Public Law 178
  • Kischel U, ‘Delegation of Legislative Power to Agencies: A Comparative Analysis of US and German Law’ (1994) 46 Admin Law Review 213
  • Kleinfeld, R Competing Definitions of the Rule of Law: Implications for Practitioners Carnegie Endowment for International Peace, Washington, January 2005. <http://www.carnegieendowment.org/files/cp55.belton.final.pdf> accessed 17 May 2010
  • Kommers D, ‘Autonomy versus Accountability: The German Judiciary’ in Russell P and O’Brien D (eds), Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World (University Press of Virginia 2001) 131‒54
  • Koopmans, T Courts and Political Institutions: A Comparative View (Cambridge University Press 2003)
  • Larkins C, ‘Judicial Independence and Democratization: A Theoretical and Conceptual Analysis’ (1996) 44 Am J Comp L 605
  • Learned H (An Introduction and Notes by Irving Dilliard), The Spirit of Liberty (Knopf 1960)
  • Lijphart A (ed), Parliamentary vs Presidential Government (Oxford University Press 1998)
  • Markakis J, Ethiopia: Anatomy of a Traditional Polity (Shama Books 2006) (First published in 1974)
  • Mgbako C, Braasch S, Degol A, Morgan M, Segura F, and Tezera T, ‘Silencing the Ethiopian Courts: Non-Judicial Constitutional Review and Its Impact on Human Rights’ (2008) 32 Fordham International Law Journal 259
  • Mohammed K, The Status, Powers and Functions of Local Government: The Case of AA Sub-Cities (LLM thesis, Ethiopian Civil Service College 2009 (unpublished))
  • Montesquieu Baron de, The Spirit of the Laws (Hafner Press 1949)
  • Muradu A, ‘Review of Decisions of State Courts over State Matters by the Federal Supreme Court’ (2007) 1 Mizan Law Review 61
  • Murphy WE, Fleming JE, Barber SA, and Macedo S, American Constitutional Interpretation (2nd edn, Foundation Press 1995)
  • Negera E, Tenure, Selection and Appointment, Salary, Disciplinary Measures, Evaluation and Promotion and Their Impact on Judicial Independence: The Case of Oromia Regional Sate (LLB thesis, Ethiopian Civil Service College 2003)
  • Obong OG, Problems Faced by the Judiciary in Gambela Region (LLB thesis, Ethiopian Civil Service College 2000)
  • Ottaway M, ‘The Ethiopian Transition: Democratization or New Authoritarianism?’ (1995) 2 Northeast African Studies 67
  • Pankhurst A and Getachew A (eds), Grass-roots Justice in Ethiopia: The Contribution of Customary Dispute Resolution (United Printers 2008)
  • Russell P, ‘Towards a General Theory of Judicial Independence’ in Russell P and O’Brien D (eds), Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World (University Press of Virginia 2001) 1‒24
  • Sartori G, Comparative Constitutional Engineering: An Inquiry into Structures, Incentives and Outcomes (2nd edn, New York University Press 1997)
  • Shetreet S, Justice in Israel: A Study of the Israeli Judiciary (Martinus Nijhoff Publishers 1994)
  • Smith L, Voting for Nationality: Ethnic Identity, Political Institutions and Citizenship in Ethiopia (University of California 2005)
  • Tegene A, Independence and Accountability of Oromia Regional State Judiciary in Light of the Judicial Reform Program (LLM Thesis, Addis Ababa University 2007 (unpublished))
  • Tesfaye Y, ‘Whose Power is it Anyway: The Courts and Constitutional Interpretation in Ethiopia’ (2008) 22 Journal of Ethiopian Law 128
  • Toggia P, ‘The State of Emergency: Police and Carceral Regimes in Modern Ethiopia’ (2008) 24 Journal of Developing Societies 107
  • (p. 285) Turton D (ed), Ethnic Federalism: The Ethiopian Experience in Comparative Perspective (James Currey 2006)
  • Van der Beken C, ‘Ethiopia: Constitutional Protection of Ethnic Minorities at the Regional Level’ in Brems E and Van der Beken C (eds), Federalism and the Protection of Human Rights in Ethiopia (Lit Verlag 2008) 126‒61.
  • Vile MJC, Constitutionalism and the Separation of Powers (2nd edn, Liberty Fund 1998)

Footnotes:

1  For more detail, see Section 4.4.

2  Aberra Jembere, An Introduction to the Legal History of Ethiopia 1434‒1974 (LIT Verlag Munster 2000) 219, 227, 240.

3  See Pietro Toggia, ‘The State of Emergency: Police and Carceral Regimes in Modern Ethiopia’ (2008) 24 Journal of Developing Societies 116; for a detailed account of the arguments behind the dismissal of judges in the transition period both from the side of the judges and the government see Frode Elgesem, The Derg Trials in Context: A Study of Some Aspects on the Ethiopian Judiciary (Human Rights Report No 1, Norwegian Institute of Human Rights, University of Oslo 1998).

4  For example, The Reporter newspaper (Amharic), in its 19 February 2012 issue citing a study made by the Federal Anti-Corruption Commission, stated ‘Courts and Municipalities continue to suffer a poor reputation in the eyes of the public’.

5  See art 79(1) of the constitution.

6  Art 50(2) of the constitution and see also Proclamation No 322/2003, Federal High Court Establishment Proclamation, A Proclamation to Provide for the Establishment of Federal High Court in Some Regions, Federal Negarit Gazeta, 9th Year No 42, Addis Ababa, 8 April 2003.

7  See arts 78(2), 80(2), (4), (5), and (6) of the constitution.

8  See arts 80 and 81 and 50(7) of the constitution. Also see arts 67‒9 of the constitution of Amhara state, arts 72‒7 of the constitution of Southern state, arts 62‒7 of the constitution of Tigray state, and arts 61‒6 of the constitution of Oromia State.

9  Arts 79(1) and 80(1) of the constitution. This is rather vaguely defined in art 3 of Proclamation No 25/1996, Federal Courts Proclamation, Federal Negarit Gazeta, 2nd Year No 13, Addis Ababa, 15 February 1996. The proclamation allocates subject matter jurisdiction to federal courts on the basis of three grounds: laws, parties, and places. Under the first paragraph federal courts assume judicial power over cases arising under the constitution, federal laws, and international treaties; cases to which the federal government is a party; suits between persons residing in different regions; cases involving employees of the federal government in relation to their official duties and cases to which a foreign national is party. The dividing line between federal and state matters is, however, far from clear in practice. See, for example, Assefa Fiseha, Federalism and the Accommodation of Diversity in Ethiopia: A Comparative Study (Eclipse Printers 2010) 357‒68.

10  For details see Muradu Abdo, ‘Review of Decisions of State Courts over State Matters by the Federal Supreme Court’ (2007) 1 Mizan Law Review 61; Regassa Chali v Werke Kimosa, Federal Supreme Court 1998 Civil Petition No 29/1998 (unpublished).

11  See P Hoogwoods and G Roberts, European Politics Today (Manchester University Press 2003) 155.

12  G Sartori, Comparative Constitutional Engineering: An Inquiry into Structures, Incentives and Outcomes (2nd edn, New York University Press 1997) 101.

13  The adage is that there is nothing the British parliament cannot do except make a woman a man, and a man a woman. De Lolme’s popular expression is quoted in AV Dicey, An Introduction to the Study of the Constitution (10th edn, Universal Law Publishing 2008) 43.

14  ‘Parliament makes and breaks the government’ expresses this in an extreme form. See D Giannetti and K Benoit (eds), Intra Party Politics and Coalition Governments (Routledge Taylor and Francis 2009) 10.

15  Sartori (n 12) 101; M Flinders, ‘Shifting the Balance? Parliament, the Executive and the British Constitution’ (2002) 50 Political Studies 23.

16  Separation of powers is understood and interpreted differently depending on whether the system is presidential or parliamentary one. For more detail see G Sartori (n 12), 101‒14; Baron de Montesquieu, The Spirit of the Laws (Hafner Press 1949).

17  For a clearer presentation of the concept see Aharon Barak, The Judge in a Democracy (Princeton University Press 2006) 35‒50, 231. Other ends of separation of powers include creating order and efficiency within the institutions of the state.

18  See arts 62, 83, and 84 of the constitution.

19  Proclamation No 251/2001, Consolidation of the House of the Federation of the Federal Democratic Republic of Ethiopia and to Define its Powers and Responsibilities, Federal Negarit Gazeta, 7th Year No 41, Addis Ababa, 6 July 2001; see also Proclamation No 250/2001, Council of Constitutional Inquiry Proclamation, Federal Negarit Gazeta, 7th Year, No 40, Addis Ababa, 6 July 2001; art 84 of the constitution.

20  See arts 62 and 84. Constitutional dispute has a very narrow meaning. It refers to cases in which a matter is referred to the Council of Constitutional Inquiry (CCI) or the HoF arising from a real case and controversy, which some refer to incidental/concrete judicial review. However, constitutional interpretation could also arise in many other cases apart from real cases and controversies. Issues regarding jurisdictional disputes between the legislature and the executive or clarifications on the mandates of the federal and state governments are often referred to the CCI or the HoF in the abstract without a specific dispute having arisen. The source of potential tension requiring clarification could be a draft law tabled before parliament where MPs raise doubts whether particular articles in the draft law affect mandates of the states or not before they decide to approve the draft law. Hence constitutional interpretation covers a much broader notion than might initially be thought.

21  Ethiopian constitution, arts 46 and 47 allow ethno-nationalist groups to demand the right to self-rule and establish a new state from a state within the federation or even a new local government from an existing state member of the federation. The Silte is a small ethnic group in the Southern state that demanded the right to self-rule at a local government level. For more details see Lahra Smith, Voting for Nationality: Ethnic Identity, Political Institutions and Citizenship in Ethiopia (University of California 2005).

22  Guraghe zone was the sub state entity in the Southern state from which the Silte internally seceded and established a new local government. See Smith (n 21).

23  Amongst the nine member states of the Ethiopian federation, Oromia and Somali states share a long unsettled border. As a result frequent conflicts have arisen between the two states. Most of these conflicts were resolved through a referendum facilitated by the HoF that has the mandate to resolve interstate disputes. See Fekadu Adugna, ‘Overlapping Nationalist Projects and Contested Spaces: The Oromo–Somali Borderlands in Southern Ethiopia’ (2011) 5 Journal of Eastern African Studies 773.

24  These include other private bodies that may exert equal pressure like the political branches, for instance, economic, social, and ethnic forces, the press, religious or regional pressure on judges. For more on the notion of judicial independence see John Ferejohn and Larry Kramer, ‘Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint’ (2002) 77 NYUL 962; Stephen Burbank, ‘What do we Mean by “Judicial Independence”?’ (2003) 64 Ohio St L J (2003) 323; James Brudney, ‘Recalibrating Federal Judicial Independence’ (2003) 64 Ohio St L J 149.

25  See Shimon Shetreet, Justice in Israel: A Study of the Israeli Judiciary (Martinus Nijhoff Publishers 1994) 179‒80.

26  Burbank (n 24) 326.

27  See arts 78 and 79.

28  Incidents of non-compliance with court decisions, particularly in criminal cases, are common. For details see Alemayehu Tegene, Independence and Accountability of Oromia Regional State Judiciary in Light of the Judicial Reform Program (LLM Thesis, AAU 2007 unpublished) 97. In Gambela regional state the executive or local legislative body has, at times, reversed court decisions. See Obong Ojulu Gilo, Problems Faced by the Judiciary in Gambela Region (LLB Thesis, ECSC 2000) 11.

29  In 2014 the Federal Minister of Justice issued a circular directing federal courts not to hear cases related to a bankrupt real estate investor which raised serious debates in the media during the spring of 2014.

30  Peter Russell, ‘Towards a General Theory of Judicial Independence’ in Russell P and O’Brien D (eds), Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World (University Press of Virginia 2001) 6.

31  A comparative study of this issue suggests that there is a fine line between what is called the direction principle where the legislature repeals or amends an existing law or enacts a new law aiming to influence the outcome of a case pending before a court of law which is a violation of separation of powers; and the changed law rule, where the legislature repeals, amends, or enacts a new general law that may have an impact on a pending case or even a final court judgment. The latter is a substantial change in the law and is considered part and parcel of the legislature’s mandate and not a violation of separation of powers. For more detail see Peter Gerangeios, The Separation of Powers and Legislative Interference in Judicial Process: Constitutional Principles and Limitations (Hart Publishing 2001).

32  Shimon Shetreet, Justice in Israel: A Study of the Israeli Judiciary (Martinus Nijhoff Publishers 1994) 158.

33  The leading case is Gorfe Workneh v Aberash Dubarge Federal Supreme Court Cassation Division File No 21448 v 4, 40.

34  See Proclamation No 639/2009, Civil Code Amendement Proclamation.

35  For comparative insights on the changed law rule and direction principle, see Gerangeios (n 31) 11‒186.

36  The law in question is Proclamation No 236/2001, Anti Corruption Special Procedure and Rules of Evidence and Art 2 of its Amendment Proclamation No 239/2001 Anti-Corruption Special Procedure and Rules of Evidence, Federal Negarit Gazeta 7th Year No 7, Addis Ababa, 12 June 2001.

37  See art 4(1) of Proclamation No 434/2005, Revised Anti-Corruption Special Procedure and Rules of Evidence Proclamation, Federal Negarit Gazeta, 11th Year No 19, Addis Ababa, 2 February 2005.

38  See art 79(3) of the constitution; Russell (n 30) 11.

39  See, for example, arts 79, 80, and 81 of the constitution.

40  Ferejohn and Kramer (n 24) 988.

41  The term chosen by Ferejohn and Kramer as the title of their excellent thesis on the judiciary (n 24) 962.

42  Shetreet (n 32)151.

43  See the section that explains the relations between the legislature and the judiciary particularly on ouster clauses.

44  Shetreet (n 32) 162.

45  Report on Ethiopian Opinion Poll Survey (April 2008) by Steadman Group and the InterAfrica Group. The study was conducted in 2007 and organized by the InterAfrica Group, a regional organization based in Addis Ababa. It covered all regions and the two federal cities and included a total sample size of 3000 participants both from rural and urban areas (on file with the author).

46  Russell (n 30) 20.

47  Art 79(6) of the constitution.

48  As a result of budget constraints, improvement of the infrastructure of the judiciary, for example providing new buildings to accommodate the ever increasing number of cases being heard by the courts, has been very limited until recently. The number of judges also does not correspond to the number of cases passing through the system. An estimate made by this author two years ago shows that one judge serves 14,000 people.

49  Russell (n 30) 20.

50  See interview with the Vice-President of the Federal Courts, ‘Ye Moya Nestanet Bynoregn Noro Ezih Alkoyim Nebere’ Amharic (EC 28 November 1996).

51  Russell (n 30) 11; Shetreet (n 32) 180.

52  See for instance arts 17, 18, and 19 of Proclamation No 272/2002, A Proclamation to Provide for the Re-Enactment of Lease Holdings of Urban Lands, Federal Negarit Gazeta 8th Year No 19, Addis Ababa, 14 May 2002; Proclamation No 455/2005, A Proclamation to Provide for the Expropriation of Land Holdings for Public Purposes and Payment of Compensation, Federal Negarit Gazeta 11th Year No 43; Proclamation No 555/2007 Agency for Government Houses Establishment Proclamation, Federal Negarit Gazeta 14th Year No 2, Addis Ababa, 13 December 2007, arts 6 and 12; Proclamation No 97/98 that entitles the banks to sell the property of a defaulting debtor without referral to the courts. Arts 77 and 78 of Proclamation No 286/2002 permits the Inland Revenue Authority to confiscate the property of defaulting tax payers without referral to the courts. Proclamation No 286/2002 Income Tax Proclamation, Federal Negarit Gazeta 8th Year No 34, Addis Ababa, 4 July 2002. Of the several semi-judicial tribunals, namely, the Tax Appeal Commission, the Administrative Tribunal for Civil Servants, and the labour courts, the Re-enactment of Urban Lands Lease holding Proclamation (arts 17 and 18) allows appeal to the regular judiciary only if there is a basic error of law. See Proclamation No 42/1993 Labour Proclamation Negarit Gazeta of the Transitional Government of Ethiopia 52nd Year No 27, Addis Ababa, 20 January 1993; The Federal Civil Servants Proclamation, Proclamation No 262/2002; Proclamation No 272/2002, Re-Enactment of Urban Lands Lease Holding Proclamation, Federal Negarit Gazeta 8th Year No 19, Addis Ababa, 14 May 2002. However, many of the government agencies that make decisions that seriously impact on the daily life of citizens, such as those dealing with renewal of licences and issuance of title deeds, are governed by Boards whose members are appointed by government. Most of the laws establishing these agencies state that the decisions made by these Boards are final and not subject to review by the courts.

53  For general reference on the institutional limitations of quasi-judicial bodies see Russell (n 30) 14.

54  The Proclamation does not expressly prohibit review of such measures by the regular courts. It remains to be seen how the practice will evolve.

55  Art 40 of the Ethiopian constitution declares that land is publicly owned. As a result investors can only lease land from government for periods of up to ninety-nine years.

56  Federal Supreme Court Cassation File No 33552 Hamle 24, 2000 EC.

57  There are many cases that illustrate this but the most outrageous decision is Mahberawi Watsina Belesiltan v Ato Birhanu Hiry and Ato Kebede G Mariam Federal Supreme Court Cassation Division File No 18342 Tahsas 17, 1998 in which the Court stated that the tribunal’s decision within the federal agency by virtue of Proclamation No 38/88 is final and the Court has no mandate to review it (vol 3, 104ff).

58  Federal First Instance, Arada Bench, File No 25016 decided in 1997 EC.

59  Federal First Instance, Lideta Bench, File No 140618 decided in 2001 EC.

60  For details on the principles of good administration see DJ Galligan (ed), Administrative Law (Dartmouth 1992).

61  Following the outbreak of the 1974 Revolution and the end of the imperial era, the military junta decreed a law that expropriated ‘extra houses and land’ as per the slogan ‘land to the tiller’. Owners of ‘extra houses and land’ were expropriated following the decree and the new government that came to power in 1991 attempted to rectify some of the abuses perpetrated in violation of the decree by returning some buildings to the owners.

62  Donald Kommers, ‘Autonomy versus Accountability: The German Judiciary’ in Peter Russell and David O’ Brien (eds), Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World (University Press of Virginia 2001) 135.

63  Indian constitution, arts 32, 226, 227, 136; Russell (n 30) 8.

64  Chi Mgbako et al, ‘Silencing the Ethiopian Courts: Non-Judicial Constitutional Review and Its Impact on Human Rights’ (2008) 32 Fordham International Law Journal 281.

65  See, for example, the Decision of the Federal Supreme Court in Ellile Hotel v Ayat Real Estate where the City Government of Addis Ababa nullifying a lease contract it signed with Ayat, alleged that it had failed to develop a plot of land. Ayat, on the other hand, alleged that the procedures agreed in the lease contract had not been complied with and as a result the City Government had not followed due process, and urged the Federal Supreme Court to rectify that. The Court however stated this it this was an administrative matter as defined in the lease proclamation issued by the legislature and that it could not review it, thereby legalizing the nullity of the lease contract (reported by Addis Admas (Amharic newspaper), 17 May 2015).