Ethiopia's Justice System Reform at Crossroads: Impediments relating to Institutional Continuity, Ethnic Politics and the Land Regime

Author:Elias N. Stebek
Position:Elias N. Stebek (LL.B, LL.M, PhD), Associate Professor, St. Mary?s University, School of Graduate Studies. Email: <elstebek@gmail.com> Some sections of the initial version of this article were part of an unpublished first draft of a research paper (titled: ?Ethiopia's Justice System Reform Pledges, Gaps and the Way Forward?) submitted to ...
Pages:259-302
SUMMARY

Ethiopia‘s Justice System Reform Program has not achieved the pledges that were promised since 2002. One of the sources for the impediments was ‗revolutionary democracy‘ because its ‗democratic‘ limb represented the pursuits of justice system reform while its ‗revolutionary‘ limb caused impediments to the reform. This involves various manifestations of ‗revolutionary democracy‘ which include... (see full summary)

 
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259
Ethiopia’s Justice System Reform at
Crossroads:
Impediments relating to Institutional Continuity,
Ethnic Politics and the Land Regime
Elias N. Stebek
Abstract
Ethiopia‟s Justice System Reform Program has not achieved the pledges that were
promised since 2002. One of the sources for the impediments was „revolutionary
democracy‟ because its „democratic‟ limb represented the pursuits of justice system
reform while its „revolutionary‟ limb caused impediments to the reform. This
involves various manifestations of „revolutionary democracy‟ which include
institutional discontinuity, ethnic politics and reluctance to land reform. Disruptions
owing to periodic changes in institutional structures (and mandates) adversely affect
institutional memory and continuity in Ethiopia‟s justice system reform. The second
impediment relates to problems in law and order owing to the risky experiment in
ethnic politics that has nurtured ethnic radicalism and hostilities along linguistic
lines thereby creating pressures on the justice sector. It has also impeded attainments
in the first two dimensions of good governance, (i.e. voice and accountability)
because genuine voice of citizens envisages rational choice as opposed to ethnicity.
The third trap which is among the manifestations of „revolutionary democracy‟
involves rigidity against reforming Ethiopia‟s land law which has handcuffed broad-
based economic performance thereby impairing the resource base of all reform
pursuits (including justice system reform). The way forward thus envisages not only
addressing the external manifestations of the problems in the justice system, but also
requires directly addressing the root causes of the impediments.
Key terms
Justice system reform · Good governance · Nation building · Land tenure security;
Ethnic politics · Ethiopia
DOI http://dx.doi.org/10.4314/mlr.v12i2.2
This article is licensed under a Creative Commons Attribution-NonCommercial-
NoDerivs (CC BY-NC-
Elias N. Stebek (LL.B, LL.M, PhD), Associate Professor, St. Mary‟s University, School of
Graduate Studies. Email: <elstebek@gmail.com>
Some sections of the initial version of this article were part of an unpublished first draft
of a research paper (titled: “Ethiopia’s Justice System Reform Pledges, Gaps and the Way
Forwar d”) submitted to Ethiopian Lawyers Association, on September 16 , 2018.
Frequently used Acronyms:
JLSRI: Justice and Legal System Research Institute
JLRTI: Justice and Legal Research and Training Institute
260 MIZAN LAW REVIEW, Vol. 12, No.2 December 2018
Introduction
The concept of „Revolutionary Democracy‟ is affiliated to Vladimir I. Lenin‟s
„New Democratic Revolution‟ (NDR). For Lenin, NDR meant an interim phase
toward socialism and communism. According to Lenin, the victory of a
revolutionary-democratic dictatorship of the proletariat and the peasantry” will
enable the communist party “to rouse Europe, and the socialist proletariat of
Europe”.1 On the contrary, „Revolutionary Democracy‟ in post-1991 Ethiopia
embodied contradictory meanings, because it claimed to represent „economic
and political liberalization‟ in official discourse, while it was clearly within the
ambit of Marxist-Leninist thinking in political party operations and party-state
relations.
It was in the midst of such inherent contradiction in the concept of
„revolutionary democracy‟ that achievements were attained in the formulation of
the 2002 Justice System Reform Program (JSRP) and the 2005 Comprehensive
Justice System Reform Program (CJSRP).2 The „democratic‟ limb of
revolutionary democracy facilitated the formulation of the 2002 JSRP and the
2005 Comprehensive Justice System Reform Program, and on the contrary, its
„revolutionary‟ limb (caused by the Marxist heritage of the political leadership)
was incongruent with most parts of JSRP‟s and CJSRP‟s recommendations. The
cutbacks in the pace of justice system reform were apparent in 2005/2006
(immediately after the 2005 elections) and from 2007 onward under pledges of
„democratic developmental statehood‟.
There was indeed optimism that the attention given to justice sector reform
during the formulation of the program would be sustained in its implementation
phases as well. However, sixteen years after the take-off towards Justice System
Reform Programme in 20023, Ethiopia‟s justice sector has regressed4, and this
can be verified by the facts that were officially admitted (after the 2018 political
1 Vladimir Ilyich Lenin (1905), Two Tactics of Social-Democracy in the Democra tic
Revolution, Collected Works, 1962, Vol. 9, (Translation: Abraham Fineburg and Julius
Katzer), pp. 15-140, Section 10: “Revolutionary Communes” and the Revolutionary-
Democratic Dictatorship of the Proletariat and the Peasantry.
2 The Comprehensive Justice System Reform Progr am Baseline Study Report, Ministry of
Capacity Building, Justice System Reform Program Office, Februar y 2005.
3 Ministry of Capacity Building, Justice System Reform in Ethiopia: Proceedin gs of the
Workshop on Ethiopia’s Justice System Reform, Africa Hall, 7-8 May 2002.
4 For details on the regression in the pace of justice sector reform programmes see two
articles by this author published in Mizan Law Review, Volume 9, No. 2, titled “Judicial
Reform Pursuits in Ethiopia, 2002-2015: Steady Concrete Achievements - versus -
Promise Fatigue” (pp. 215-257), http://dx.doi.org/10.4314/mlr.v9i2.1 and “Legal
Sector Reform Pursuits in Ethiopia: Gaps in Grassroots Empowerment” (pp. 258-
300), http://dx.doi.org/10.4314/mlr.v9i2.2
Ethiopia‟s Justice System Reform at Crossroads: Impediments 261
reforms) regarding the unconstitutional acts of various law enforcement
institutions. Steadily declining public trust in the justice sector (i.e., the legal
and judicial sectors) renders the discourse on justice sector reform as relevant
and expedient today as it was in 2002. This article focuses on certain themes
that are relevant in the way forward towards the reinvigoration of the 2002 and
2005 aspirations which, inter alia , require dealing with impediments of reform.
Section 1 presents an overview of institutional discontinuity in Ethiopia‟s
justice sector during the last decades, and Section 2 discusses the current
pursuits in law reform and the resumption of justice system reform projects. The
third and fourth sections deal with the problems of institutional discontinuity in
the coordination of the justice system reform program and in relation to trends
of scrapping codes of law in the name of revision. Sections 5 and 6 respectively
highlight the nexus between good governance and justice sector reform, and the
tension between good governance and ethnic politics. Based on these themes,
Sections 7 to 10 highlight four challenges in justice sector effectiveness in the
context of ethnic politics. The themes are: law compliant citizenship, peace and
order in the context of diversity, the tension between multi-ethnic civic identity
and Article 39 of the FDRE Constitution, and the constitutionality debate
regarding the emblem on the Ethiopian flag. Sections 11 and 12 respectively
deal with the need for land reform and normative gate keeping against predatory
statehood.
1. Overview of Institutional Discontinuity in Ethiopia’s Post-
1931 Laws and Justice Sector
Ethiopia‟s 1931 Constitution was a significant achievement in lawmaking. The
reformers of the period (who were regarded as Japanizers) sought modernization
and progr ess.5 Another significant landmark in legal development was the
Negarit Gazeta which began to be promulgated in March 1942. In spite of its
slow pace, justice sector institution building (including the legal regime)
continued, and the attainments included the 1955 Revised Constitution. A major
achievement in this regard relates to the codification of six codes of law from
1957 to 1965 and the establishment of Faculty of Law at Haile Selassie I
University (currently Addis Ababa University) in 1963. These achievements
resulted from the modernization thinking of the period and the belief in a legal
system‟s instrumental function in development.
The 1960 Civil Code and Commercial Code had envisaged facilitating the
modernization of Ethiopia through the path undergone by the Global North
5 See, for example, Bahru Zewde (2002). Pioneer s of Change in Ethiopia : The Reformist
Intellectuals of the Early Twentieth Century (J. Currey Publisher).

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