02 March 2012 Written by  Alem Abraha and Tafesse Habte

Scope of Application Civil Vs Criminal Procedures

Depending on the purposes and the ultimate objectives underlying their very establishment the types of relationships they chiefly govern; the nature of the legal interests that would be affected at their violations and, hence, the parties who would have sufficient stake therein so as to invoke a justifiable controversy, laws may also be classified into ‘civil’ and ‘criminal’. Here, a point has to be made of the fact that the very phraseology of the two terms is a purposive employment. That is, the adjective ‘civil’ is used, in this context, in contradistinction to the word ‘criminal’ so as to signify the distinction between their respective areas of applications since the former deals with ‘civil’ matters whereas, the latter is concerned with ‘ criminal’ cases. Thus, as a natural corollary to this, there comes a need to identify the essential attributes of the two areas of laws; the nature of the legal interests each intend to preserve and the basis of their classification. A brief introductory remark is thus in order.

Legal rules, in the general parlance, have, to reiterate what has already been said herein above, the purpose of adjusting human relations at various levels so as to preserve and ensure   the wellbeing of the public at large. In spite of this, however, the ever-growing complexities and interdependability of human relations have made it clear that there are a good number of situations whereby the legal interests of others may adversely be affected and an eventual evil maybe inflicted there upon.

The inevitability of such unfortunate instances, in turn, calls for corresponding remedial measures if the societal harmony is to be meaningfully preserved. Accordingly, the infringements or violations of legal interests which are so recognized and protected by law -are considered to be legal wrongs thereby entailing liabilities and incurring legal sanctions upon the wrongdoer. These wrongs and the attending liabilities are, in turn, considered to have either private or public nature. The former are breaches of private rights, affecting individual interests; and are called civil injuries; whereas, the latter are violations of public interests, affecting the society as a whole; and, are called crimes.  Even though both of the wrongs do, in a way, affect the private individual, the nature of certain wrongs are conceived to be so grave enough to affect; and, hence, involve the public at large in the controversy as an eligible interested party-represented through the state.

From the preceding discussions, it can be understood that the major distinction between the two lies in the degree of gravity of evils involved in their eventual consequences-wherein the severe ones are placed in the category of crimes. Thus, crimes are more serious and sufficiently injurious to the public as compared to civil wrongs which affect only the private victim.

In sum, a crime is an offence against the community as a whole for which the offender is held criminally liable and faces penal sanctions. A civil wrong, on the other hand, is an infringement of the legal interests of private individuals and is redressable, principally, through reparation of damages. Moreover, consequential to the nature of the legal interests affected in a civil dispute, the cases are to be initiated and instituted in a court of law by the aggrieved party himself (or his legal pleader); wherein law enforcement organs are but to avail remedies for those who have valid claims. In other words, in a civil litigation, the judge is there, in the whole, to decide whether any legal right of the plaintiff is affected; and, if so, whether one is entitled to any relief. It thus follows that the main purpose of administration of civil justice is primarily to enforce rights; and, hence, a civil case may end up in an award of compensation to the individual victim or dismissal of the case.

On the other hand, penal prosecutions, being the concern of the public at large, have the final aim of ensuring the overall peace and security of the nation as a whole and, may result into an acquittal or conviction of the accused- carrying with it, primarily, an element of penal liability, namely, punishment.

At this juncture, it would be of help, or, at least, not out of place, to say few words about the jurisprudential grounds for the establishment of civil or criminal liability. The basis of remedial liability is to be found in the legal maxim ubi jus ibi remedium”, which means, where there is a right, there must be a remedy –taking into consideration the bare act irrespective of the intention of the wrongdoer. On the other hand, the fundamental rule underlying penal liability is contained in the jural dictum actus non facit reum, nisimens sirea”; which means that a mere act does not amount to crime unless it is accompanied by guilty mind. That is, one is held criminally liable only for those wrongful commissions or omissions for which he does either willfully or negligently. In other words, criminal liability invariably requires moral guilt (intention or negligence), plus, personal act or forbearance.

Generally speaking, all legal disputes before a court of law are thus either one of remedial or penal in nature; and, civil procedure is, needless to mention, a set of rules employed in the disposition of civil cases while criminal procedure is, by the same token, meant to govern the steps to be followed in penal prosecutions. These specific areas of implementation of the two procedural laws, on the one hand ,obviates the scope of application of civil procedure; and, on the other, brings into picture the need to draw distinctions between civil and criminal cases.

In this regard, with a view to differentiating civil cases from criminal ones, three parameters, inherently based on the jurisprudential background of the two areas of laws discussed above, are commonly employed.

The first factor relates to the nature of the parties instituting the legal action. A civil case is naturally initiated by a private person claiming redress for some wrong alleged to have been committed against him by another.

Accordingly, parties involved in a civil case can appear in either of the following ways:

  • “A physical person against another physical person”; or,
  • “A physical person against a legal person “, or,
  • “A legal person against another legal person”.

Talking of legal persons, it has to be mentioned that a state is not usually interested and, hence, involved in civil proceedings. Sometimes, however, the government may initiate a legal action and be a party to a civil case. This occurs when it acts in and exercises its private capacity.  A government is said to have acted in its private capacity when it engages in matters typically undertaken by individuals. Such is the case when, for instance, it runs business transactions, essentially for the purposes of deriving profit from such commercial activities.  In its public aspect, the functions of a government are, predominantly, dispensing justice; defending the state and its population from foreign aggression; maintaining domestic peace and order; regulating social, economic and political activities; and levying and collecting taxes to finance these activities.

But, if the government is engaged in commercial transactions and a dispute arises from such activities, the matter is considered to be a civil case and disposed of as such by the legal tribunals.  In criminal cases, nonetheless, the parties are commonly the state (represented by the public prosecutor, usually, in place of the plaintiff) and an individual suspect (defendant) – who has allegedly committed a penal offence. There are, however, some limited possibilities for a penal prosecution to arise between an individual victim and the alleged offender. These are limited to cases for ‘offences upon complaints’ -as the law calls them. That is why, a criminal case is generally considered to be one not between the individual victim (and / or his relatives) and the alleged offender as such, but, a matter between the state and the offender.

The purpose of initiating a law suit and the nature of the relief sought thereby is the other yardstick used to make a distinction between civil and criminal cases. The relief demanded in a civil case is mostly the payment of money or is usually to be assessed in monetary values. This may include, for instance, the payment of damages for an alleged injury sustained by the victim (plaintiff).

In some exceptional civil cases, however, a specific relief (personal performance) or forced performance of legal obligations, such as, restitution or delivery of goods or an injunction could also be demanded. Whatever the case may be, nonetheless, the relief sought in either of such civil litigations has nothing to do with the loss of personal liberty, or deprivation of life of the parties involved therein. Consequently, a court entertaining a civil litigation cannot, in principle, impose a sanction depriving a party of his personal liberty; such as, an order of detention; or, of his life as in the case of death penalty. Nonetheless, one, who either refuses to furnish security for appearance-while the case is pending- (Arts 147-150);or, fails, without good cause, to satisfy a decree(Art 389),  may exceptionally be detained in a civil prison for a period not exceeding six months.

On the other hand, the overall purposes and aims for initiating a criminal case is the  maintenance of peace and order of the general public by, primarily, punishing the law breaker. That is, the state initiates a criminal case for the purpose of securing obedience to its laws by inflicting punishment and/ or other measures on the criminal offender. A penal case, thus, aims at punishing an offender- which appears in the form of loss of liberty (as in imprisonment) or deprivation of life (as in capital punishment) and fine.

The third test is concerned with the availability of alternative dispute settling mechanism in either of the cases. Seen from this perspective, civil cases are subject to negotiations; and, hence, a compromise could be reached upon independently between the parties themselves. This, by implication, means that the parties are not under legal obligations to bring their civil disputes before a court of law and have them disposed of. They, rather, bring them to the attention of a legal tribunal if and when they fail to settle their disputes peacefully as between themselves.   At this juncture, however, one must take note of the fact that a certain single act may give rise to both a civil and a criminal case whereby the parties are at liberty to negotiate over the civil aspect of the matter.

To sum up, a civil case is one instituted primarily by an individual for the purpose of securing redress in monetary terms. Understandably, civil procedure is, thus, a method employed in the initiation and disposition of such civil disputes. Moreover, the parties are at liberty to negotiate over their disputes even while the case is still pending; and have it withdrawn from the court any time, but before a final judgment is rendered. In contrast to this, criminal cases are not subject to such alternative dispute settlement mechanisms. This means, the matter lies exclusively within and is done under the power of the prosecution officers irrespective of the negotiations and the agreement that may be made between the victim and the offender; unless, of course, the case falls within the category of ‘offences upon complaint’.

The Purpose of Civil Procedure Vis-à-vis Fundamental Procedural Rules

The desire for the betterment and furtherance of legal rules regarding the administration of civil justice, as described in its preambular statement, was, indeed, the prime factor that necessitated the enactment of the 1965 Civil Procedure Code of the Empire of Ethiopia; Otherwise, formally speaking in no other place, does the Code expressly sets forth the purpose it aspires to achieve and/ or the functions it intends to undertake towards the attainment of the goal designed to be served.

However, there are certain fundamental values and legitimate interests that procedural rules, in any legal system, aim to preserve and specific purposes that underlie their establishment. In other words, there are, more often than not, well-articulated ultimate objectives which they indispensably envisage to attain. Thus, in the general parlance, rules of civil procedure aim to ensure that disputes are handled by an impartial legal tribunal in a fair and orderly manner and as expeditiously and economically as possible. They are, in brief, meant to secure the just, speedy and inexpensive disposition of cases. More specifically; they aim at treating the parties to a law suit equally in enforcing their rights and the corresponding duties and laying down the ground for a smooth and orderly flow of litigation so as to make the decision within a reasonably fair and quick time.

Nevertheless, viewed from the mechanical aspect of civil litigations, procedure may be considered as a means to an end not an end in itself. As stated, earlier procedure essentially exists to ensure the proper enforcement of rights and duties arising from substantive laws .This, however, cannot be an irrefutable security of the proposition that: procedures are devoid of inbuilt, significant process-values of their own independent of the ultimate outcome they are designed to preserve.

Yet, in spite of the implications of such a contention, where a dispute is brought before a court of law, it is the function of the court to adjudicate the controversy in accordance with precisely ascertainable legal prescriptions. In order for a court to properly perform those tasks, it must operate under a well-defined and effective procedure.  Specifically stated, the claims of both parties must be heard in an orderly manner; the issues for decision must be distinctively presented to the court; and, the court’s judgment must timely be enforced.  Accordingly, the efficacy of the law of civil procedure is measured against and is considered valuable in so far as it is employed in such a way as to enable the court to make a fairly prompt dispensation of civil justice

If, in contrast to this, the application of the rules of civil procedure leads to costly  litigations and excessive delays in the disposition of the case, the overall objectives of the law for which it has been designed is said to have failed.

Yet, make note of the fact that, though ‘justice delayed…’, as the oft-mentioned maxim goes, is said ‘justice denied’, it is also equally true that ‘justice rushed is justice crushed!’, meaning, sketchy judgments rendered at the expense of justice in a manner that obstructs or destroys justice itself would amount to a miscarriage of justice potentially jeopardizing the administration of justice. Hence, a reasonable balance has to be struck between the two extremes.

To state the obvious, therefore, they must not become the problem themselves, curtailing the legitimate interests of the parties by being erroneously employed in a manner that destroys justice. Actually, speedy and inexpensive determination of a law suit depends on a number of other factors; such as, the number and nature (complexity) of filed cases Vis-à-vis the number of the courts (benches) engaged in the business; and, the number of the judges (justice officials) operating therein; as well as the degree of compliance with the governing rules and case flow management techniques.

Be that as it may, the purpose of procedural rules and spirit of the law must in all cases be borne in mind when dealing with procedural issues and their application must always be geared towards the attainment of this end. In case, the application of a given procedural rule gives rise to legal arguments, it should be interpreted and given effect in such a way that it ensures the purposes and intents contemplated by the law and thereby serve the public interest.

Talking of the practical implementation of the rules of Civil Procedure Code, there have always been irrefutable criticisms and a considerably wide ranging strain of dissatisfaction both in the spheres of the legal profession and the litigating public. In view of this, the generally held belief has been that the indeterminable number and complexities of the procedural steps followed in the litigation process; lack of procedural transparency; the great uncertainty of the governing rules and the irreconcilably divergent inconsistencies in the application of the law, are some of the distinguishing features of our judicial processes. In fact, it is not uncommon to see people voicing of their dissatisfaction with the overall judicial proceedings.

In this regard one can say that, nothing expresses their distress than the usually mentioned statement: “It is better to be sued and stand as a defendant in our courts than claiming one’s right through them as a plaintiff”. Victims may, at times, go even to the extent of relinquishing their claims than demanding them through the existing intricate procedures due mostly to the intolerably sluggish, inefficient, unpredictable and costly litigation processes.

One the other side of the story, however, there is a parallel argument that the crucial problem of the system does not as such lie with the law itself. This, of course, is without denying the fact that there are certain defects and/or lacuna in the laws which are, relatively speaking, tolerable to some extent. Rather, it is actually meant to emphasize and implicate the fact that the chief problem in this regard lies with the self-imposed, deep -rooted and rampant customary practices which are repugnant to and observably inconsistent with the dictates of the existing law. In line with this, to raise but few irregularities, the expressive phrase  “ both a torture to write and a torture to read” , which is usually told of  ‘ prolix judgments’ would exactly fit, mutatis – mutandis, to the tiresome pleading practices, by and large, employed in our judicial proceedings. Neither the litigants worry themselves of complying with the prescription of the law in preparing their pleadings; nor, sadly enough, the court officials are seriously engaged in and bother themselves of ensuring the formal sufficiency of the pleadings as they seem comfortable with (and, hence, evidently complicit in) the bad practices.

Moreover, there is no tradition of managing law suits separately Vis-à-vis their specific natures. Cases, which need summary or accelerated procedures, for instance, are, more often than not, treated in accordance with the cases requiring ordinary procedures involving going through all the stages of stringent regular proceedings. Most importantly, there does not seem to be sufficiently defined adjournment policy or a strictly consistent implementation of adjournment procedures. Had these not been the case, the cumulative effect of them would have immensely saved, among other things, the time and money of both the litigants and the courts; thereby, serving the very purpose the law is meant to achieve.

In connection, to this for instance, it has been reported that in one old case a suit regarding succession was instituted in the High Court of the place while it ought to have been filed in a court of first instance jurisdiction. The High Court, however, proceeded to adjudicate the merits of the case; and after having dealt with it for an extensively long period, gave its judgment, against which an appeal was lodged to the Supreme Court. However, the Supreme Court, on its part, having dwelt on the appeal for another lengthy period, quashed the proceedings of the rendition court and to the dismay of the parties, the reinstitution and retrial of the case-back to square one- after it had stayed for eight years of its stay in both courts, down in the court of the lowest grade where it should have been originally filed.

The reporter of the case, a noted lawyer in the area, however, strongly criticized the decision of the Supreme Court as absurd. That is, even though the order of the Supreme Court was, apparently observed, procedurally correct, it was applied in such a way that defeated the very purpose and spirit of the law; and, disregarded the public interest. Justifying his argument, he further stated that the error that arose from the procedural irregularity of non- compliance with regard to material jurisdiction was neither to affect the merits of the case (and was unlikely to prejudice the parties) nor the Supreme Court was expressly barred from handling cases of lower courts’ material jurisdiction. Thus, he further suggested that the Supreme Court having stated the procedural irregularity that had occurred therein should have gone on to hear the appeal and finally disposed of the case so that justice would properly be served.

However, this view was attacked by another commentator who upheld the order of the Supreme Court and, in his dissenting opinion, argued that, in so far as original jurisdiction is expressly vested in the courts of first instances, there was no need to deviate from and interpret the clear rules of the law so as to legitimatize the otherwise void judgment of the High Court under the guise of dispensation of justice.

Generally speaking, however, in the modern judicial litigations, there are some procedural principles of fundamental importance that form the foundation of and apply to all sorts of procedural laws ; be it civil, criminal or administrative, so as to ensure the proper dispensation of justice. The rules are well settled; they have received a wide range of application and embraced the whole notion of fair play (procedure) or due process and failures to comply with them, in principle, vitiates a decision and discredit the judgment as lopsided so as to constitute a miscarriage of justice. For instance, Proc. No.2/1942 (Proclamation for the Administration of Justice), declared that “… no court shall give effect to any existing law that is repugnant to the natural justice or humanity or which makes harsh or inequitable differentiation between our subjects and foreigners”. Of these cardinal procedural principles the most significant requirements considered to be the essential ingredients of justice are briefly discussed below.


Fair Hearing of a Suit/Impartiality of the Courts

There are certain factors against which impartiality of courts is evaluated or through which “fair hearing of a suit” is ensured. The following are the major ones.

A. Neutrality of the Presiding Judge

Any person who sits in judgment over the interests of others must be able to bear an impartial and objective mind to the question in the controversy; i.e. he/ she should impart justice without fear or favor. That is, the authority empowered to decide dispute between opposing parties must be one free from bias-by which is meant an operative prejudice ; i.e., predisposition towards one party or against the other without proper  regard to the true merits of the case. Bias or prejudice has been defined as a leaning, inclination, bent or predisposition towards one side or another or a particular result.

In its application to judicial proceedings, it represents a predisposition to decide an issue or cause in a particular way which does not leave the judicial mind open to conviction.  Bias is a condition or state of mind, an attitude or point of view, which sways or colors judgment and renders a judge unable to exercise his or her functions impartially in a particular way.

There are two attributive features of impartiality. The first feature is subjective impartiality, which refers to the impartiality of the judge himself and second is objective impartiality of the tribunal; i.e., the tribunal/ court or bench should provide the public with the guarantee that it operates impartially; i.e., conditions that avoids suspicions of impartiality.  In other words, the impartiality of the judge (the subjective one) alone is not sufficient- there must be conditions that warrant the impartiality of the court (the objective one). Of course impartiality is not only about just ends, it also is concerned about just means. Consequently, where a person who is entrusted with discharging such judicial function has, by his conduct, shown that he is interested, or appears to be interested in the case, that should disentitle him from acting in that capacity.

In this regard, there are some common sources of bias that should disqualify a person from acting as a judge.

I. Personal Bias

Although with the ever-growing interdependability of human relations, this factor has always been a matter of judicial interpretations; there are, in fact, a number of scenarios that may create a personal bias in the judges’ mind. It usually arises from friendship, relationship (either personal or professional) or hostility or animosity against either of the parties; or, negativity from personal prejudices; or even political rivalry.

II. Pecuniary Bias/ Bias as to the Subject- Matter.

[No one should be a judge in his own case!]

The rule against pecuniary bias originates from the legal maxim: “nemo judex in cause sua”, implying that no one should be a judge in his own case; and, it arises from monetary interests in the subject matter of the dispute, no matter how small or insignificant it might be. Where the judge himself is a party or has some connection with the litigation so as to constitute a legal interest that should disentitle him from being a ‘judge in his case’. Generally, even if in some cases there may be no real likelihood of bias of any sort, one may still be disqualified from assuming the judicial position for justice should not only be done, but must appear to be done to the litigating public . Thus, the requirement of the rule against bias (whose observance is recommended in the name of impartiality) goes to the extent of imposing the duty upon the presiding judges to withdraw themselves from the proceedings where it causes ( or, appears to cause )  the violation of the rule (see, for instance, Art 27 of Proc No 25/1996).

B. Right to be Heard: Nobody should be condemned unheard!

Any one against whom an action is taken or whose right or interest is, thereby  being affected should be aware of the information against him and should also be granted a reasonable opportunity to defend him self. The governing maxim in this case runs: ‘audi alter am par tem’; meaning ‘Hear the other side’– no body should be condemned unheard. Two of the facets of the maxim are:

  1. I. Notice has to be given to the party before the proceedings start and,
  2. II. A party has to be given an adequate and reasonable (effective) opportunity to explain (hearing).

Moreover, a party should have the opportunity to adduce all relevant evidence on which he relies and opportunity for rebuttal of evidence submitted against him.

C. Equality of Treatment Every one is prima-facie equal before the law

This principle implies equal subjection of all persons to the ordinary laws of the land as administered by the regular courts of law; and, law extends protection to everyone. Hence, each party to a law suit should be treated equally without discrimination of any sort (i.e., sexual, religious, status, ethnic origin, political affiliation, etc). This rule is so grand that it is considered an approximate synonym for and equated with the entire notion of justice.

Moreover, the degree to which procedural rules facilitate equal opportunities of participation for the litigants to influence the judgment may be taken as the most important criterion by which procedural fairness is evaluated. In sum, there are three fundamental pillars used as ultimate test of procedural fairness (equality) i.e., sine qua non for even, handed dispensation of justice:

I. Equipage Equality

This implies equality between the litigants in preparing their respective pleadings in getting legal aids (services) in searching for evidence etc, irrespective of their differences in income levels. If a party, for example, is allowed to amend or alter his pleading same opportunity should be granted, when the circumstance so requires, to the other party (as per Art 91 of the Cv. Pr. Cd.).

II. Rule Equality

Under similar circumstances, each party should be subjected to and protected by, similar rules. Same issues should be resolved through similar legal rules. If, for instance, by virtue   of Art 58 (a) of the Cv. Pr. Cd, representation is allowed for a ‘brother’, the same rule should apply for a ‘sister’s’ representation-though not expressly articulated therein.

III. Outcome Equality

Similar issues, under same grounds /circumstances, should have similar outcomes for example instance, in such instances wherein ‘class action’ is allowed-pursuant to Art 38 of the Cv. Pr. Cd. Generally, speaking like cases should be treated alike. Public Hearing of a Suit

Justice must not only be done but must also be seen being done

‘Hearing’, here, refers to the consideration by the court of the allegations and defenses of either side before rendering the final decision. In principle when the court undertakes such a hearing, the public at large, must have access to the litigation process (court-room) without, of course, negating exceptional situations  of inherently confidential nature-wherein courts may consider cases in a closed chamber (“in Camera”). Accessibility to the media-which serves as a bridge between the two-is another important aspect of transparency. In this regard, Art 12 Sub-Art 1 of the FDRE Constitution, for instance, expressly stipulates that “the conduct of the government shall be transparent”.   Such an open court proceedings ensures transparency of judicial activities and secures the acceptability and reliability (credibility) of the judiciary. It is in this sense that it is often said that justice must not only be done, but must also be seen being done! Independence of the Judiciary and Accountability of the Judges

Under this sub-section, there is an interplay of two distinctive but correlative principles usually employed in juxtaposition with one another: independence and accountability.

I. Judicial Independence

Judicial independence, as one of the cardinal elements of the rule of law, is commonly elevated to the status of and provided with constitutional protection. Moreover, it is ensured through and possesses dual facets: institutional and personal/functional.

A. Institutional Independence

Institutional or administrative independence which is usually related to the concept of separation of powers-is a mechanism through which, on the one hand, a balanced coordination and cooperation among the three branches of the government is ensured; and, at the same time-signifies the freeing of the judiciary from an unwarranted encroachment or influence of any sort, particularly, from the executive wing or official of the government. For practical purposes, however, institutional independence of the judiciary is essentially ensured through the following means.

a. Legal Basis

So as to firmly establish institutional independence of the judiciary, there has to be a legal stipulation to that effect-it has to be legally declared. Such a declaration would not only provide a legal guarantee to the institutional independence, it would also confirm the fact that it is not something to be granted or, at times, withheld, of personal will-but one with a legal foundation.(See, for instance, Arts 78&79 of the FDRE Constitution.)

b. Independence to Administer Internal Affairs

On this regard, it has been commented that the attributive feature of the history of administration of justice in Ethiopia had rampantly been a fusion of judicial power with executive functions. A single person had been both a governor (administrative official) and a judge entrusted with judicial power and, hence, there was not a sharp distinction between the executive branch and the judicial organ. Consequently, such blend of judicial and executive functions had not been without implications and far-reaching repercussions.

First and for most, the judiciary has never had a separate existence of its own. Thus, external pressure on and intrusion in the internal affairs of the judiciary has deep-roots; it seemed natural and is not even without some hangover to our very day. Secondly, inherent to such conception and the objective realities, the judiciary never survived the regime it established.

It was thus not surprising or uncommon to see every new regime coming up with its own version of the judiciary- reconstituting and resetting it up in tune with its missions and visions. For all practical purposes and intents, therefore, the judiciary was never designed to be an independent institution as the third branch of the government. Such unfortunate instances had left on the people the impression that the reputation and reliability of the judiciary was associated with all evils of nepotism and corrupt practices, was at its lowest ebb-up until the coming in effect of the federal form of government. Formally speaking, however, it was only Proc.No.323/1975 which marked the ever first move for the institutional independence of the judiciary; at least, in theory.

Such a conception would, not only irreparably erode the credibility of the judicial process, but also may even go to the extent of  seriously shaking the entire system of administration of justice and hampering the  irreplaceable role the judiciary plays in the economic activities of the country . To substantiate this proposition, for instance, one of the most important conditions that investors require is the existence of a credible and predictable administration of justice in the country. That is they would confidentially be encouraged to engage themselves in the business transactions if only they believe that they would be provided with reliable legal protection and that commercial disputes would efficiently be resolved through an independent judiciary. Ideally, and most importantly, therefore, the judiciary should be able to win the trust of the general public: as an impartial justice rendering forum. The judiciary can only be considered as a forum wherein litigants would confidentially resort to-with their justiciable matters-and seek justice from-if it constitutes essential qualities that a genuinely independent and efficient judicial organ possesses. The basic distinctive features of such an institution are: independency, accountability, efficiency and accessibility.

Generally speaking, however, institutional independence of the judiciary is, most importantly, ensured when:

ð  Such independence is spelt out in black and white by the law ( see, for instance, Art. 79 of the FDRE Constitution);

ð  Courts have full authority over their internal  and, financial affairs; such as, the power of drawing up and implementating the administrative budge and management of its personnel  ( See, Art 79 (6) of the FDRE Constitution and Art 16. of Proc .No.25/96) : and,

ð  Judges are appointed in such a way that guarantees their independence including, enjoyment of a secured tenure of office; i.e., up until the retirement age); and, their removal from their judicial duty is made in due process as sanctioned by law and in restrictive grounds so prescribed.                       Moreover, there have to be sufficiently clear and unambiguously defined rules on training and promotional opportunities of the judges; their transfers; decisions on disciplinary measures; suspension or removal from their duty etc before reaching the legally mandated term of office, Hence, such crucial issues as merit, experience, integrity and remuneration schemes determine the extent to which judges are independent from all sorts of internal and external influence including  of course, of the litigants themselves.

B. Functional/Personal Independence

Complete and meaningful independence of the judiciary, can be guaranteed if only it is supplemented by a functional or individual independence-which could either be internal or external. It is axiomatic that, apart from any system of appeal, a judge deciding a case does not act on any order or instruction of a third party- inside or outside the judiciary. Any hierarchical organization of the judiciary and any difference in grade or rank shall, in no way, interfere with the right of a judge to pronounce the judgment freely, uninfluenced by extrinsic considerations or influences. This means that, in the process of discharging their judicial tasks, judges should be free, internally, from their own colleagues and/or from the influence of superior courts; or, externally, from any kind of outside intrusion, fear or influence; and they should solely be bound and guided by the law. Moreover, they should not be subject to and held liable to any administrative measures for the sole fact of their judicial decisions which may be inconsistent with the needs and interests of officials.

II. Accountability of the Judges

However, it is a well established fact that if left unregulated and unguided power corrupts and is liable to be abused. This means that it may improperly be employed in a manner and/ or for the purpose not contemplated by the law-eroding the overriding values of human right and freedoms. This would undoubtedly breed an unfortunate consequence of undermining the cornerstone of the judiciary: acceptability and reliability. Thus, independence should not be left without restraint, there has to be credible means of safeguarding those cherished human values.

Independence of the judiciary should not be taken as a special privilege of the judge himself. In addition to availing workable normative and institutional protective measures, litigants should be offered reasonably adequate appellate opportunities; judicial proceedings have to be transparent and open to the general public; and, judges should be ready and bold enough to receive criticisms on their decisions or analysis of the issues. Independence does not mean and should not lead to irresponsibility and arbitrariness. It should not be manipulated as an incentive for laziness, corrupt motives, or for a tremendous degree of discretion so as to end up in the ‘rule of the judges’. The judge is thereto interpret and implement the law and the fundamental assumptions that underpin it to the best of his abilities and in accord once with the dictates of the spirits of the law.

Hence, the judiciary has to be amenable to the law. Judges are to be held responsible for their decisions. In other words, they are not allowed to act as free riders. There should be no ambiguity in the fact that the principle of independence indispensably presupposes the existence of the burden of accountability; one should not be exercised at the expense of the other i.e. a reasonable compromise has to be struck between the two. Establishment of Courts by Law

In the spectrum of the fundamental principles of administration of justice, an item which may, at first glance, seem to be more of technical and not so much important; but, in reality, no less weighty than others, is the requisite for courts to be established by law. In a sense, the structures of the courts; their hierarchical relations and their comparable jurisdictions have to be explicitly constituted by law; and, only courts so established can assume judicial function.

On the other hand, inherent in this premise is that special or temporary bodies that take away judicial powers from regular courts; and by and large, do not follow procedures prescribed by law ought not to be set up. Judicial power should principally and solely be vested in the regular courts. This, of course, is without negating the existence of the so-called ‘administrative tribunals’-which are constituted by law and entrusted with some quasi-judicial (delegated) power-as the present day compelling necessity of the proper dispensation of justice so demands. . The causal impetus being the vast proliferation of governmental activities and infinitely varied complexities of an intensive industrialization which gave rise to   multifarious social problems–requiring, in turn, technical and expert knowledge; which, the ordinary courts are less equipped with, if not seriously lack. These bodies are, thus, as a matter of fact, off-springs of compromise between the executive and the judiciary and are set up to share the burden of the case loads of the courts which had almost been unbearably heavy- there by warranting their establishment.

The other reason d’etre that led to the creation of these bodies include:

  • Cheaper justice : In a sense, it is less expensive to get justice through this process; i.e., the total cost that a litigant or an applicant has to incur in getting the disposal of his case than the one available through the mechanism of the ordinary courts
  • Speedy justice: It abandons the intricate (and stringent) procedures attending the regular court proceedings–thereby immensely saves the time in the determination of the controversy; and,
  • It can be manned by sharp and well-trained who individuals possessing special experience and sharp, and expertise in a particular field.

In the same vein, the FDRE Constitution, having established, as may normally be expected of a federative  constitutional order, dual sets of courts-with their respective jurisdictions-also provides for a three- layered court- structure, at the pinnacle of which sits the Federal and States  Supreme Courts.  Moreover, the Constitution makes two additional determinations: one is that ‘ad hoc’ or ‘special’ courts outside the regular court system are prohibited; and, that other religious or customary courts-whose power is limited to personal or family matters-may be established or given official recognition. Accordingly, the phrase “… institutions legally empowered to exercise judicial functions…” under Art 78(4) of the FDRE Constitution, is said to have been included to denote and encompass administrative tribunals such as the ‘Labor Relations Board’, ‘Tax Appeal Commission’, ‘Civil Service Tribunals’ and the ‘Board of Privatization Agency’.

However, legally speaking, there seem to be ambiguity and imprecision, with regard to ‘Kebele Social Courts’ operating in Addis Ababa, Dire Dawa and in the Regional States.  Though these organs are considered as judicial branch of the administrations- within the meaning of ‘tribunals’ in the just foregoing discussion- they are actually empowered with judicial function; i.e., they have taken the jurisdiction of regular courts to that extent and they do not necessarily follow a legally ascertained procedure in their processes . On that count, therefore, unless a broad interpretation of the provision is made so as to embrace them within the domain of Art 78 (4), they seem to be falling, in the strict sense of the law, within the category of courts whose establishment is categorically outlawed by the Constitution.

Furthermore, there is a stringent requisite expected of judicial bodies to explicitly forward justifiable legal grounds for their decisions. The purpose that such a formal requirement furnishes is twofold. In the first place, it serves as a practical guarantee against the possible arbitrariness of the judiciary; and, most importantly, the party against whom the decision is passed; and, hence, affected, would get an opportunity to know the legal basis of the court and be able to effectively exercise his right of appeal. What is more, certain legal actions may embrace varied and diverse subject-matter giving rise to intricate issues of law and fact.  In such instances, it may be practically insurmountable for a lay party to meaningfully defend himself for the sole fact of lacking the required legal expertise.

Hence, availing one with reasonably adequate legal assistance- as a right to legal representation- is becoming a pressing necessity for an even- handed dispensation of justice- as it ensures one of the requisites of procedural fairness: equipage equality. In the final analysis, no law can ever be meaningfully effective if it fails to reach and win the heart of those whom it intends to serve and does not respond to their essential needs, values and to natural justice. Particularly, if the judiciary is to secure the acceptance of the litigant public and ensure its reliability, it should satisfy the following ingredients considered as sine qua non for even handed dispensation of justice.

Among other things, justice should not only be done, but should manifestly and undoubtedly be seen being done; no one should be condemned unheard; no-one should be a judge in his own case; everybody should be considered prima facie equal before the law; like cases should be treated alike and should produce similar out comes.

Moreover, the judiciary should be both free from an unwarranted encroachment fear or influence of any sort from any source what so ever; and, should equally and correlatively be amenable to the law.  A proper and effective restraint has to be put there upon so as to safeguard the rule of law and the overriding values of human rights and freedoms.                                                       

Specifically stated, the following can be considered as minimum requirements of a fair trial. The parties should be afforded:

  • Adequate notice of the nature and purpose of the proceedings;
  • Adequate opportunity (time and space) to prepare their case; the right to present arguments and evidence; and meet opposing arguments and evidence, either in writing, orally or by both means;
  • Counsel or other qualified persons of his or her choice during all stages of the proceedings;
  • An interpreter; if s/he cannot understand or speak the language used in the courts;
  • The right to be tried in his presence; to defend himself in person or through legal assistance of his own choice and to be informed, if he does not have legal assistance, of this right;
  • The guarantee that his or her rights or obligations affected only by a decision based solely on evidence known to the parties to the proceedings;
  • The opportunity to have a decision rendered without undue delay and to which the parties are provided adequate notice and the reason thereof;
  • The right, except in the case of the final appellate court, to appeal or seek leave to appeal, decisions to a higher judicial tribunal;
  • The right to have legal assistance assigned to him, in any case where the interests of justice so requires; and, without payment by him in any such case if he does not have sufficient means to pay for it;
  • The right to examine, or have examined, the witnesses against him;
  • The right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
Last modified on Wednesday, 02 May 2012 13:05