Legal Sector Reform Pursuits in Ethiopia: Gaps in Grassroots Empowerment

Author:Elias N. Stebek
Position:The initial phase of Ethiopia's Justice System Reform Program (which includes legal sector reform and judicial reform) was very ambitious with exemplary levels of zeal, budgetary allocation and commitment. This seems to have been followed by the fragmentation of reform efforts in the midst of inadequate grassroots empowerment (in decision...
Pages:258-300
SUMMARY

Elias N. Stebek (LL.B, LL.M, PhD), Associate Professor, St. Mary’s University, School of Graduate Studies.

 
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258
Legal Sector Reform Pursuits in Ethiopia:
Gaps in Grassroots Empowerment
Elias N. Stebek
Abstract
The initial phase of Ethiopia’s Justice System Reform Program (which includes
legal sector reform and judicial reform) was very ambitious with exemplary
levels of zeal, budgetary allocation and commitment. This seems to have been
followed by the fragmentation of reform efforts in the midst of inadequate
grassroots empowerment (in decision making and resource management) while
at the same time the legal sector espoused comparably similar aspirations.
There is thus the need for distinct institution-level reform tasks and
empowerment in legislative drafting, law enforcement, legal education
(including research and training) and access to justice. The reinvigoration of
legal sector reform in Ethiopia envisages merit-based recruitment and
promotion accompanied by grassroots empowerment in decision making and
resource management in the context of adequate harmonization among organs
and institutions of the sector. It also envisages broad-based participation
including enhanced involvement of civil society organizations. This article
briefly examines the level of attention given to and the gaps in reform pursuits
in lawmaking, law enforcement, legal education and access to justice.
Key terms
Lawmaking, law enforcement, legal education, access to justice, legal
information, the Bar, legal aid, civil societies, Ethiopia
DOI http://dx.doi.org/10.4314/mlr.v9i2.2
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Introduction
Positive development in each component of the justice system contributes to the
overall improvement in the realms of rule of law, good governance and
democratization; and meanwhile, the justice system benefits from the positive
causal reciprocity of each element or subsystem that determines the strengths or
Elias N. Stebek (LL.B, LL.M, PhD), Associate Professor, St. Mary’s University, School of
Graduate Studies. I thank the anonymous reviewers for their comments and feedback.
Most sections of the earlier version of this article were part of an unpublished research
paper titled “Assessment of Ethiopia’s Justice Sector Reform Components in GTP I and
Draft GTP II” (preliminary version: dated 30 November 2015) which was submitted to
Ethiopian Lawyers Association (ELA). I thank ELA for the opportunity, and I also thank
the Civil Society Fund II Programme of the European Union (EU CSF II) for financing the
research including the Panel Discussion conducted on December 11, 2015.
Legal Sector Reform Pursuits in Ethiopia: Gaps in Grassroots Empowerment 259
shortcomings of the aggregate. In other words, success or failure in each
component positively or negatively contributes to the progress or regression of
the justice system. The 2005 Comprehensive Justice System Reform Program1
(CJSRP) had thus duly adopted a holistic approach in addressing the gaps and
challenges in Ethiopia’s justice system.
Ethiopia’s Comprehensive Justice System Reform Program (CJSRP)
included institutions and processes that come under different organs of the state.
On the other hand, the holistic nature of the reform had created synergy and
harmony in spite of functional divergence attributable to the legislative, judicial
and executive nature of the specific mandates and responsibilities of the various
components of the justice system.
It is indeed commendable that the CJSRP opted to pursue a holistic approach
in justice system reform rather than fragmented and piecemeal reform pursuits.
It is equally important to note that such holistic approach can further include
other components of the justice system in addition to the categories stated in the
2005 CJSRP. However, such frontier expansion of justice system components
requires safeguards against the risk of diluting or weakening the efficiency and
effectiveness of reform at the grassroots.
The four core components and a fifth crosscutting component of
comprehensive Justice System Reform Program identified in the 2005 Baseline
study involved (a) lawmaking and revision; (b) the judiciary; (c) law
enforcement which includes prosecutors, the police and the penitentiary system;
(d) legal education and research; and (e) information flow within and outside the
justice system. These can be reformulated as five components and one enabler
as indicators Ethiopia’s justice sector reform: (a) institutions, processes and
procedures in lawmaking and revision, (b) the judiciary; (c) law enforcement
with particular reference to the police, public prosecutor services, and prisons;
(d) legal education, training and legal research; (e) access to justice which
include legal information, the Bar, legal aid, alternative dispute resolution,
traditional systems that are in conformity with the FDRE Constitution, and the
engagement of the legal profession and civil societies in enhancing access to
justice; and (f) good governance in the justice sector. The first five components
encompass the justice system loop that is interconnected, and they also require
the sixth component, i.e., good governance as a cross-cutting enabler.
The component of judicial reform is covered in a separate article published in
this issue (pp. 215-257), and this article deals with reform pursuits and
challenges in the remaining elements of justice system reform. The following
sections respectively highlight the pursuits of reform and challenges in
1 Ministry of Capacity Building, Justice System Reform Program Office (2005),
Comprehensive Justice System Reform Program Baseline Study Report, February 2005
260 MIZAN LAW REVIEW, Vol. 9, No.2 Dece mber 2015
lawmaking and revision, law enforcement, legal education, access to justice and
good governance. These components indeed deserve separate scholarly articles,
toward which this article can provide an introductory discussion so that further
research can separately address the components and sub-components in depth.
1. Lawmaking and Revision
1.1 Some Views on Drafting Effective Legislation
Robert Seidman and Ann Seidman suggest a problem solving methodology in
lawmaking. According to the normative methodology advocated by the
Seidmans, lawmakers are expected ‘to describe and explain the behaviours that
block good governance and development, i.e. the behaviours that are targeted in
development oriented legislation”.2 This methodology requires drafters to “be
engaged in the process of fact-finding and analysis” so that they “can design
proposals and norms likely to induce a positive change of behaviour. After a bill
made based on this has been enacted into law, the law’s progress should be
monitored and evaluated”.3
The Seidmans contrast their problem-solving lawmaking process with two
earlier models: the ends-means methodology that defines an end and looks
for the most efficient means to achieve such end, and incrementalism, which
tries to stay closest to the current situation at hand and recognises the
difficulty of large changes. Seidman and Seidman’s contribution also
explores the question of how law can induce the desired social change
necessary for development.4
Arnscheidt et al outline a set of seven interrelated causal factors which,
according to the Seidmans, facilitate the drafting process. These steps are
expressed with the acronym ROCCIPI which represent:
- Rules (prescribing how actors should behave),
- Opportunity (the environmental circumstances which facilitate or thwart the
specified problematic behaviour),
- Capacity (the actor’s ability to behave as prescribed in the law or contrary to
it),
- Communication (whether the actor knows the rules),
- Interest (factors which the actors view as incentives for behaving as they
do),
- Process (the procedures by which the actor decides whether or not to obey
the rule), and
2 J. Arnscheidt, B. van Rooij & J.M. Ot to (editors), 2008. Lawmaking for Development,
Leiden University Press, p. 15.
3 Ibid.
4 Ibid.

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