Figueroa por Figueroa

This section aims to introduce the several reforms, which took place in the criminal justice. While evaluation of the reforms is beyond the scope of the work and requires a separate research, reflections are made where possible.

Following the launching of the National Capacity Building program initiative (NCBP)71 _{, the}

Ethiopian criminal justice system has gone through a series of reforms. Notable in this regard are the Justice System Reform Program (JSRP), the Public Sector Capacity Building Program (PSCAP) the Justice Sector included, and the recent Business Process Reengineering (BPR). By such reforms, the Ethiopian criminal justice system was reviewed with the purpose of identifying and addressing the factors that impinge on the ability of the criminal justice to function effectively and efficiently.

3.5.1 The Justice System Reform Program (JSRP)

As part of the National Capacity Building Program (NCB), the Justice System Reform Program (JSRP) sought to identify and address key problems the criminal justice system.

interpretation in Ethiopia`, 22(1) Journal of Ethiopian Law, 128, 2008. On the demerits of bestowing such

power to a political organ see for example Chi Mgbako, et al, `Silencing the Ethiopian Courts: Non Judicial

constitutional review and its impact on Human Rights` , 32 Fordham Int'l L.J. 259 2008-2009.

70 _{See Asefa Fiseha, `Some reflection on the role of the judiciary in Ethiopia`, 3(2) Ethiopian Bar Journal, 105,}

110-11 2009.

71 _{This program was launched in 2001 with a view to overhaul the entire levels of government administration.}

It identified fourteen inter-dependentProgrammes that led on to the creation of a Federal Ministry - the

Ministry ofCapacity Building, which no more exists now - to coordinate and provide strategic guidance to the

overall programme. The areas include Civil service reform, district level decentralisation, justice system reform, tax and customs reform, urban management reform, ICT for improved service delivery and modernising government, Civil society capacity building, construction sector capacity building, textile and garment capacity building, development of manufacturing sector, Technical Vocational Training (Agricultural), cooperative development, higher education reform, and Technical Vocational Training (non- agricultural).

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These include problems in the quality of judges and prosecutors, and the methods of delivery of justice, the incoherence of much of the existing legal framework, lack of access to information and lack of sufficient legal institutions capable of producing qualified professional justice-sector actors72_{. The reform recommended comprehensive measures to}

overhaul the entire criminal justice system. These recommendations cover the parliament, the judiciary, the public prosecution, the police, the prison system, and the legal education. Some of the recommendations include: the amendment of the law making process, the integration of international treaties to domestic law, the consolidation, codification and publishing of laws, the strengthening of the capacity and the independence of the judiciary, transparency in recruiting and selecting judges, training of judges, easing of case backlogs, enhancing the legal aid system, possibilities of using ADR in criminal cases, support to civil societies, the reorganisation of the public prosecution service(PPS) under directors of PPS, the separation of the political and judicial role of the Ministry of Justice, accountability of police be ensured ( police code of conduct must be adopted , and policy of using force must be established).

3.5.2 BPR Reforms

The Business Process Reengineering (BPR) is the fundamental reconsideration and radical redesign of organizational processes in order to achieve drastic improvement of current performance in cost, services and speed73_{. BPR usually involves a re-thinking and re-design}

of private sector business processes to enhance efficiency. Yet it has become so common in the public sector. Before briefly outlining BPR reform as applied in the criminal justice sector, it is important to note some of the anomalies surrounding the reform, one of them being its legal status- the reform as applied now has no legal basis under the law making process of the country. The BPR reform document, produced by committee members drawn from the respective justice sectors appears to suspend any law, perhaps save the constitution. Obviously, this is not the proper procedure to revise or repeal laws and hence

72 _{See Comprehensive Justice System Reform Program, supra note 35.}

73_{Michael Hammer, `Reengineering Work: Don’t automate, obliterate`, Harvard Business Review, Jul/Aug}

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usurps the parliament`s power. The problem is further aggravated by the fact that the reforms are currently implemented without any blessing from the parliament. For instance, absent any formal amendment by the lawmaker, many provisions of the criminal procedure code are repealed by the reform74_.

In any case, as part of reforming the whole government administration, the criminal justice system was studied with a view to enhancing the quality and efficiency of justice delivery. The study examines the criminal process from investigation all the way to the final disposition of a case and enforcement of punishments. Several reforms were recommended both at state and Federal level. Notable in this regard is the consolidation and reorganisation of the investigation, prosecution and adjudication processes in one structure which is subdivided into units along functional lines so that efficient, quality, accessible and fair justice is delivered75_.

Caseload has been a pressing problem in the Ethiopian courts for a long time. Pushed by unwarranted successive adjournments, criminal cases took several years before final disposition. Nowadays, however there are reports of noticeable developments in handling

74 _{Provisions regarding prosecutions and investigations are among the most affected ones. Further, in the}

state of Tigray the criminal jurisdiction of courts has been reshuffled, making high courts and the Supreme Court only appellate courts, which normally under the law have first instance jurisdictions.

75 _{For instnace , at the Federal level main actors in the adminstration of criminal justice : the judiciary , the}

prosecution office, the police and the prison adminstration jointly established a body called : wonjelin

yememermer ,mekeraker ena wusane mestet wana yesira hidet( literally translated to mean Main Business

Process on criminal investigation,prosecution and adjudication). To increase effciency and ensure

institutional as well as operational independence of the justice actors, this Business process is divided into

two: yememermer and mekeraker yesira hidet( investigation and prosecution),and wusane mestet yesira

hidet(adjudication). Nonethless,the extent to which such an arrangment ensures the autonomy and

independence of the respective justice actors remains to be seen. See Manual on wonjelin yememermer

,mekeraker ena wusane mestet wana yesira hidet, 2003 EC. at 1.

Likewise, in the state of Tigray the functions of investigation , prosecution , adjudication and prison administration are organised in one `business process` , which is further dissected into three units : compliant hearing and prosecution, adjudication and `ginbata` units. Under this arrangement, the investigation, prosecution and adjudication services are organised in one premise and work in close collaboration. Here it is interesting to note that reports on the success of this arrangement are uneven and inconsistent. One study shows that the reform ( the new arrangement) is successful, raising conviction rate to 95% and cutting time and costs significantly ( lowers costs incurred for one case from more than Birr 3000 to Birr 89 ). See Befederal Mengist yewonjel fith astedader wonjelin Yememermer, mekeraker ena wosene mestete wuana yesira hidet addis aserar, 2003 EC. (Here in after BPR to be document) at 4. Conversely, another report by UNODC indicates that the arrangement is abandoned for being inefficient. See UNODC Assessment, supra note 33 at 50.

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caseloads76_{. The factors that have contributed to such a reduced caseload include: the}

practice of dismissing cases adjourned repeatedly, the increase in the number and quality of judges and prosecutors, the introduction of joint and prosecution led investigation, the sentencing guidelines, court annexed alternative dispute resolution programs, case management using IT (video conferencing, transcribing, developing a court database, online services etc), document authentication and registration offices at the federal and regional levels77_.

3.5.3 Other piecemeal reforms

a) RTD

Modelled after its French analogue, Real Time Dispatch (RTD) or Next day justice courts in Ethiopia are established to dispose of flagrant cases instantly. The procedure, which usually involves guilty pleas, is so simple and brief that it takes just less than a day. The procedure initially disposes of flagrant crimes. Later, it covers non flagrant crimes where sufficient evidence is available and not guilty plea cases where the defendant is ready to defend his case immediately. Though this procedure is acknowledged for its efficiency, it also attracts severe criticisms. Prominent among them is its fairness to defendants - that they are neither represented (except capital crimes) nor provided with adequate time to prepare their defence78_{, hence the adage `justice rushed is justice crushed`.}

That said however, RTD could be generally seen as a success in terms of enhancing efficiency. According to the Ethiopian Justice Sector Strategic plan for 2010/11 to 2014/15, in real time dispatch courts about 80 percent of cases are disposed of by guilty pleas while conviction rate is staggeringly high – 98 percent79_{. This procedure, which was applicable in}

76 _{See World Bank, Uses and users of justice in Africa: the case of Ethiopia's Federal Courts (Washington, DC:}

World Bank, 2010) http://documents.worldbank.org/curated/en/2010/07/13145799/uses-users-justice- africa-case-ethiopias-federal-courts(7/10/14); UNODC Assessment, supra note 33.

77 _{seeTheJustice Sector Strategic plan for 2010/11 cited in UNODC Assessment, supra note 33 at 18}

78 _{See for example Linn A. Hammergren, `Justice Sector corruption in Ethiopia` in Janelle Plummer(ed),}

Diagnosing corruption in Ethiopia: Perception, realities and the way forward for key sectors (Washington DC, The World Bank, 2012) at 206( Observing that `…fast-tracking [ RTD] does pose serious risks to the innocent suspect caught in the system`).

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some Federal courts long before the BPR reform was initiated, has served as a benchmark for the latter.

b) Reconfiguring of the Judging panel

With a view to enhance the efficiency of the overburdened courts and thereby the efficiency of the Ethiopian Criminal Justice system, the Federal court`s re-amendment proclamation - Proclamation No 454/ 2005 reconfigures the traditional panel of three judges80 _{that sit in}

Federal High courts and Federal First instance courts to a single judge in crimes that carry less than 15 years of rigorous imprisonment81_{. This reform allows courts to entertain as}

many cases as possible to ultimately reduce case backlog. Though I do not have empirical works to show the impact of the reform on the quality of justice, it is likely to affect quality negatively as three minds are generally better than one. That seems why the law at Federal level does not exclude the possibility of varying adjudication by a single judge and hence gives the Federal Judicial Administration council the mandate to issue directives that vary adjudication by a single judge and demand a panel of three judges instead82_{. In this regard,}

though the law fails to provide some guidance to the Judicial administration council , it seems that such factors as complexity of cases, the public interest involved in a particular case, the quality of decisions, etc are relevant .

c) Pre-trial conferences

Pre-trial conferences sometimes called pre-trial hearings are meetings held between the parties and the judge to consider any matter that promotes a fair and expeditious trial. A pre-trial conference can be held for several reasons. The following include some of them:to expedite disposition of the case, help the court establish managerial control over the case, discourage wasteful pre-trial activities, improve the quality of the trial with thorough

80 _{In fact, this is not new to Ethiopia. The administration of justice proclamation, proclamation No.}

52/1975(during the dergue regime) recognized adjudication by a single judge in lower courts (Woreda and Awraja courts).

81 _{See Proclamation No. 454/2005, Article 3.}

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preparation, and facilitate a settlement of the case. As such, pre-trial conferences may take two forms: dispositional conferences and managerial conferences. The former can be designed in such a way to produce earlier guilty pleas and facilitate plea bargaining. In Ethiopia, pre-trial conferences are often associated with the introduction of the BPR reforms. However, they are known in the anti-corruption law, though in a different form- preparatory hearings. Thus, where corruption crimes are so complex to drag the trial, and where the procedure serves such purposes: as to identify material issues and assist the parties understand them, to facilitate the proceedings, and help the management of trials; the court may order the holding of a preparatory hearing83_{. The subject matters of the}

hearing include disclosures of evidence, preliminary ruling on the admissibility of evidence and issues of law that should be settled before the trial. The court gives a ruling that is subject to appeal. Such rulings may sometimes result in closure of the file. Interestingly, closure of a file owing the inadmissibility of evidence is no bar to subsequent prosecution of the same crime84_{.There are nonetheless complaints that the system instead of facilitating}

trial, drags it, with for example corruption cases taking years to finally get disposed of 85_.

That said, however, pre-trial conference in its full-fledged form is introduced for the first time by the BPR reforms. The reform provides that pre-trial conference should be held before the registrar of the court on such matters that do not determine the guilt or innocence of the defendant. In particular, subject matters include issues of disclosure, requests for interpreter and legal counsel, and guilty pleas86_{. Whereas either the prosecutor}

or the suspect may initiate the conference, the court`s role is not clear. However, the procedure confers on the registrar a new role. Beyond facilitating the conference, the registrar seems to be granted with the power to decide on the above subject matters of the conference.

83 _{See Article 35 and 36 of Proclamation No. 434/2005.}

84 _{See 40 and 41 Proclamation No. 434/2005.}

85 _{Interview with judge 11, held on 17/04/ 2012.}

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The BPR reform sees pre-trial conference as a forum for disclosure of evidence between the parties ultimately to facilitate a fair and expeditious disposition of the case. Disclosure puts the prosecution in a position to evaluate the strength of its case against the defendant and decide whether to press on with the charge. Similarly, the defendant gets the opportunity to see the strength of the case and decide his course of actions from the available options- to enter a guilty plea, to plea bargain, or to insist on the trial. In this sense, pre-trial conferences have both managerial and dispositive roles. However, in practice none of these applies except that the managerial version is tried unsuccessfully. Lack of legal framework is responsible for this.

3.5.4 The Draft Criminal Procedure Code

A component of reforming the Ethiopian Criminal Justice System lies in revising the existing laws as well as enacting new laws that can address the existing legal gaps. To this end, among others, a new Criminal Code, Anti- terrorism, Anti-corruption, and witness and whistleblower protection laws have been promulgated. Nonetheless, the promulgation of a new criminal procedure code is long overdue. Over the last decade, various attempts have been made to issue a new procedure code. But none of them did bear fruit so far.

The 2010 Draft Criminal Procedure code is far behind schedule. Before taking its current shape, the draft has passed through intense discussions and debates87_{. In particular, the}

issue of legislative jurisdiction was so controversial that it might have contributed to the delay. The contention was on the issue whether the federal government can enact one criminal procedure law that applies across the board, States included88_{. Initially, the}

drafting Committee went in favour of a uniform criminal procedure code to produce the first version of the draft law. Nonetheless, the Justice System Reform Board on whose blessing the proposed law passes to the next stage rejected the draft law and prompted

87_{So far, a couple of workshops (5) were convened to have stakeholders deliberate on the draft. Participants}

include universities (law schools), representatives of civil societies, and representatives from the justice sector. Interview with X, a member of the drafting committee, interview held on 06/05/2011

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States to prepare their own. Three reasons were proposed to support this89_{: 1) As per}

Article 52(1) of the Constitution residual power vests in the States; 2) As opposed to the substantive criminal law (Article 55(5)) nowhere the Constitution mentions that criminal procedure is under the Federal jurisdiction; and 3) Since such matters connected with procedure as the structure and operation of legal institutions are within the jurisdiction of the States, so does the power to issue procedural laws. Accordingly, the draft was reduced to cover the Federal government only and one State moved to prepare its own law90_{. Here,}

the first argument which is derived from Article 52(1) of the constitution- which entrusts States with a residual power seems strong. Applying this principle on any subject matter but the inherent powers of the federal government91 _{justifies the States` constitutional}

power to enact their own procedural laws.

However, this direction has now been abandoned and the jurisdiction to issue the law seems to settle in favour of the Federal government92_{. This oscillating of decisions has}

impaired the progress of the code, albeit it is not among the major causes of the delay.

89 _{See the letter by the Ministry of Capacity of Building addressed to the States, Nehase 17, 2002 EC}

(Translation mine).

90 _{From the discussions I had with X (a member of the drafting committee), I have learnt that only the state of}

Oromia took moves to exercise its legislative powers in this regard. 91

The strict adhrence to the principle of residual power suggests that criminal procedure is under the

exclusive juriddiction of the states. This is unwarranted and inconsistent with the Federal structure.

92_{I was not able to fully investigate the reasons behind such a move for the fieldwork was over by then.}

However, one of the reasons advanced among members of the Drafting committee (while preparing the first draft) could be valid here too. Article 55(5) the FDRE Constitution confers the power to enact penal code to the Federal government, reserving to the states the power to issue penal laws on those matters not covered by Federal penal legislations. It follows from this that the Federal governement is the appropraite body to legislate the law which enforces its substantive criminal law-the criminal procedure code. Interveiw with X, supra note 87.

More arguements are advanced along this line. The justification for entrusting the Federal governemnt with the power to legislate a penal code, which is mainly maintaining uniform application of crminal laws equally works to the procedure law. Since this purpose can not be achieved through a hetrogenoues procedure and application, the Federal Goverment should also take care of the procedure. Another arguement could come