Introduction

As there are no stipulations on how states should implement human rights standards at international level, the implementation of international human right treaties is dependent on domestic law and entirely left to the states to decide on how obligations will be implemented. Domestic legal system must provide favorable legislative and administrative frameworks if treaty based guarantees are to be translated into reality for domestic beneficiaries. In addition, human right treaties incorporate a set of values that have to be respected during interpretation, application and development of legislation and statutory laws. As a result, states must affirmatively incorporate international human right treaties into domestic laws as one method of implementation. Although there are a great variety of domestic methods for implementation of international human rights instruments, there are two common ways of constitutional method which determines the implementation of treaty provisions into domestic laws: legislative incorporation and automatic incorporation. In some countries with the ‘legislative incorporation’ method such as United Kingdom, there is a separate legislative Act enacting specific provisions of a treaty for the incorporation of treaty provision into domestic laws. This method is referred to as ‘dualist’ in that a strong distinction is maintained between domestic and international law, and the latter must be written into the former in order to carry substantial and enforceable weight. In other countries with the ‘automatic incorporation’ method like France, without the need to have separate legislative Act, ratification and publication in the official Gazette simply converts treaty provisions into domestic law. This method is referred to as ‘monist’, in that both domestic and international law are considered equal and as having the same effect.

The method of incorporation of international human right treaties in Ethiopia indicate that Ethiopia does not strictly adhere to one method of incorporation as the Ethiopian constitution provides for both methods.

One the one hand, article 9(4) of the Ethiopian Constitution declares that “All international agreements ratified by Ethiopia are integral parts of the law of the land.” From international law point of view, the wording of this provision tends to show international agreements need to be transformed as the word ‘…law of the land’ usually refers for international agreements to be transformed, rather than merely adopted, into municipal law. Transformation in dualistic state refers to a situation where relevant domestic laws are amended or repealed to comply with international agreements. International agreement in Ethiopia is concluded by the State’s Executive branch which must subsequently submit it for ratification to the House of Peoples Representatives (HPR hereafter). Under Article 55(12) of the Ethiopian constitution, the HPR ‘shall ratify international agreements concluded by the Executive.’ In addition, article 2(2) and (3) of the Proclamation of Federal Negarit Gazette requires that all Laws of the Federal Government shall be published and all Federal and Regional legislative, executive and judicial organs should take judicial notice of laws published under the Gazette. Once they are ratified, all international agreements, including human rights instruments, are integral parts of the law of the land (Art.9 (4) of the constitution). According to these provisions, Ethiopia could be classified as dualist as a national legislation needs to be promulgated in order for the provisions of international instruments to be implemented at the domestic level. However, all ratification proclamations contain only three and sometimes four provisions with short title, responsible organ (sometimes), ratification, and effective date. Although the dualist method is much known for its ‘transformative’ concept, the Ethiopian parliament only declares a mere pronouncement through ratification proclamation. There are neither laws which are amended as a result of ratification nor repeal with the ratification proclamation. In Ethiopian history of ratification proclamation, there is no single ratification proclamation with the actual ratified treaty and there are no translations of the actual treaty provisions.

In Ethiopia, the use of mediation process as a traditional method of dispute resolution has been practiced for centuries. Even today in rural areas, particularly criminal dispute resolution processes dealing with victims and criminal offenders are widely practiced and deep rooted with varying degrees among the different ethnic groups in the country. For instance, the use of mediation process through Jaarsaa Biyya or Jaarsaa Araara among the Oromo and the other ethnic groups has been used. However, despite the potential applicability of these institutions as an Alternative criminal Dispute Resolution process in the local community, it has not yet attained any significant position of usage and acceptance in the formal criminal justice system. In other words, despite its wide practice and importance in resolving criminal disputes, Ethiopian formal criminal justice system failed to integrate mediation process as an alternative criminal dispute resolution process. 

This paper is to deal with interrelated issues of integrating mediation process as a criminal dispute resolution program into the formal criminal justice system, and its importance in consolidation of the ideas of restorative justice in the administration of Ethiopian Criminal justice system. The paper also aims to provoke legislatures, policy makers and social workers to work towards promoting, adapting and applying compatible traditional criminal dispute resolution process in a criminal justice context as part of an overall package of Ethiopian Criminal Justice Reform.

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Over the past year we have witnessed a lot of political turmoil in the Arab world and the rest of Africa. Particularly, in Maghreb Region including Tunisia, Egypt and Libya, there are unprecedented changes that swept the North Africa States in a very short time. Now in these countries, there is a shift from, at least, one man rule to rule by some people. Although situations seem to be better than ever, nobody still certainly knows where the revolution ends up and how far the positive changes could sustain. This uncertainty is created by, among other things, the coming of allegedly extremist religious political parties, specifically in Egypt, into power. Radical religious groups have also gone into clash with secularists in Tunisia for enormous times. In these countries, it is however legally permissible to establish a political party which seeks to even stake out an administration guided by religious rules. There is no thus any legal prohibition that bars people whatever they may be radicalists from forming a religious political party. 

In recent days, we all know that there is somehow different crisis hobbling in our country between Ethiopian Muslims who have been protesting for the last couple of months and the Ethiopian government. The Ethiopian Muslims accuse the government of meddling in their religious affairs by extending its control on Muslim Council (Mejlis) which they claim does not represent them. The government on the other hand has been retorting their claim and accusing the leaders of the protest for spreading radicalism in the Muslim community with a political agenda behind their protest. Both sides claim to have evidences for their allegations. I do not intend to investigate on whose side there is more credible evidence. But I want to just focus on the legal aspect of the protest based on the assumptions that both sides are right and what both allege is true.

To begin with the protestors’ side, they argued that they have constitutional right to choose their leaders without the interference of the government in a place and manner that they want. And also the government is stepping out of the legality border, which proclaims the separation of state and religion, by encouraging the spread of a new sect dubbed “Ahbash”. Their accusation taken independently should be seen in light of article 11 of the Ethiopian Constitution. Article 11 ensures the separation of State and religion and proscribes that neither the state nor religion interferes in their respective affairs. Obviously, the representation and administration of Muslims in the Mejlis is clearly a religious affair. It should be solely left to the believers to choose who they want and be represented by whosoever they think promotes their religious values.

This right is also fostered by article 27 of the Constitution which declares that “Everyone has the right to freedom of thought, conscience and religion. This right shall include the freedom to hold or to adopt a religion or belief of his choice, and the freedom, either individually or in community with others, and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” In the second paragraph of the same article, believers have also the right to establish institutions of religious education and administration in order to propagate and organize their religion. However, this right, specifically, the freedom to manifest one’s own religion is not absolute right and may be limited by law when it is necessary to protect public safety, peace, health, education, public morality or the fundamental rights and freedoms of others, and to ensure the independence of the state from religion(article 27 (6)).

Having this, when we examine the allegation of the protesters, it would blatantly become illegal for the government to intervene in the election process of the Council or encourage Ahbash sect. Its interference on the freedom to manifest religion which arguably includes the organization and administration of the Council could only be legally justified if it can show that there is a threat against the national security, public safety, peace, health, education, public morality and the rights and freedoms of others. The interference in the election process for the listed grounds could be legitimized when there is also no other alternative to do away with the threats. Therefore, the government contention that the leaders of the protest are teaching radicalism and propagating violence could only serve as a ground for its interference if it does not have any other option to trammel those actors. It should also be noted that, the act of encouraging the teaching of Ahbash cannot even be justified on the listed grounds of national security or public safety and security since it does not comport to the letter and spirit of the constitution. In addition, the way the right is understood in the jurisprudence of international human rights bodies is that any limitation on freedom of religion should be limited to the freedom to "manifest" one`s own religion. The government`s support of the so called Ahbash teaching thus cannot in any case be interpreted as a restriction against such freedom to "manifest"

Hegemonic Stability theorists such as Robert Gilpin (cited in Friedberg, P.1) note that rapid changes are dangerous. Periods of accelerated economic and technological development typically result in dramatic shifts in the international distribution of military power, and these can raise the risks of misperception, mutual fears, miscalculation and confrontation.

International systems in which one state in particular is rising very rapidly are especially prone to upheaval. Friedberg reasoned out that swiftly ascending powers like China invariably challenge the legitimacy of treaties, territorial settlements and hierarchies of prestige and deference put in place when they were relatively weak. Neighboring countries see the situation as disruptive and threatening.

For K.N Waltz (pp. 881-909) and J. Mearsheimer (pp.13-18) along with many Realists, China’s rise is a threat as it is joining the multipolar system in which there are many strong states that make the region prone to instability. The end of the Cold War accelerates the emergence of a truly multipolar system, with a cluster of ‘big powers (including Japan, China, India, Russia and, to the extent that it remains engaged, the US) and an assortment of others with substantial wealth, technological competence and potential military power. If the realists are right, commented Friedberg (p.2), it may be difficult to achieve a stable, lasting peace in a multipolar Asia.

Some American activities in the East Asia region and their misperception (hence constructivism) against China shows American’s see China’s rise as a threat. As per D. Shambaugh (pp.52-79) and A.S. Whiting (pp. 596-615), the US is taking steps that many Chinese perceive to be aimed at containing their country’s rising power. These include intervening in the 1996 Taiwan Straight crisis, strengthening the alliance with Japan and discussing the possibility of developing a wide-ranging-theatre-missile-defence system. American decision makers regard these measures as defensive, and as response to increasing Chinese power and assertiveness. Chinese strategists see American actions as aggressive, and may well respond in ways that serve only to heighten American anxieties. The reason behind America’s actions and misperceptions is they see China’s rise as a threat.

Even from Democratic Peace theory perspective, the undemocratic China’s rise is considered a threat. Liberal, Constructivist and Realist explanations all lead us to this conclusion. The culture, perceptions, and practices that permit compromise and the peaceful resolution of conflicts without the threat of violence within countries come to apply across national boundaries toward other democratic countries. (Russet, p.31) China does not fulfill this criterion. Democratic states, each with perfect information about the other’s constraints, will always settle their conflicts short of war. (B de Mesqita and Lalman, in Russet p….) But, China cannot. Therefore, from both sides explanations perspective, undemocraticChina’s rise with no democratic behavior, with no information about itself is a menace.

Are Chinese aid, trade and investment considering regional and local political, economical and social situations? Or they are simply doing business in all areas in a similar fashion without considering varying local differences? Are they easily adaptive to existing environments? How about their life with he community they live? How about their aid to Africa – Ethiopia? Any conditions attached to their loans and aid?

Many argued that China was concerned not with disseminating ideologies rather it was determined to support Africa for the reason that they both belonged to the same group, colonized and of the third world entity.

China is not propagating the developing African countries to follow its ideology. This is one of the evidences not to say it is pursuing imperialism as imperialists want to see their values spread where ever they go. Rather, China is making business and establishing political, and cultural relationships taking respective nations values as it is and with out trying to impose its own but respecting its and others wide spread values, even it is not trying to sell developmental methods but leaving to respective countries to do so if they like and found it important to do so.

What is more, these developing countries believe they are benefiting. They are right as investment is more than aid and the former by far is advantaging than the latter. The imperialists were advancing their interest only.

As democracy and human rights require a reasonable degree of economic development, these African developing countries are as their infant stage of development. Naturally, one cannot expect human rights and democracies to spread easily. The decades long attempts are almost doomed to failure. So, may be China is right to ignore it and to follow its own route.

Yes it is conventional wisdom of corruption that the latter may be reduced with the expansion of rule based and more market oriented institutions. It is also widely accepted that the role of corruption, in part, has been contributive to economic growth in East Asia. Are these compatible? By way of explaining the role of corruption for distinctive economic accomplishment for a short period in East Asia; I will develop the essay showing that it is due to other factors/reasons and not because the East Asian states lacked the aforementioned institutions and rules to tackle corruption that it was widespread but, fortunately and unexpectedly (unintentionally – D. Kang, said it!), was to their economic growth.

Caution! By definition, corruption is inherently evil!

As we will discuss below, the fact that corruption in the history of some selected East Asian countries, at macro level, has facilitated their growth does not imply: a) it harms no one in the country b) some individuals have not gained undue advantage c) it can be officially adopted by a country as a viable economic growth model d) at micro level honest and law abiding businesspersons are not disadvantaged as their competitors enjoyed special treatment by the corrupt government officials.

There are several explanations why corruption has not affected their growth rather facilitated their economic performance.

According to Wedeman (P.3), although it is widely assumed that corruption has negative consequences, the fact remains that the Chinese economy, despite the existence of corruption, has performed remarkably well. Between 1979 and 2002 the Chinese economy outperformed the rest of the world by a factor of ten, with GDP growing 500.8 per cent in real per capita terms versus a global average of 44.6 per cent. According to Shliefer and Vishny, the negative consequences of hierarchically organized high-level corruption ought to be less than anarchic low-level corruption because high-level corruption is generally more predictable and hence reduces risk and transaction costs. If so, then the apparent contradiction between "worsening" corruption and China's extraordinarily high rate of growth might be, in part, a function of reductions in low-level corruption and the forging of a collusive relationship between high-ranking cadres and the emerging business community, wherein those with political power have material incentives to facilitate profit-making by their "business partners." (Wedeman, P.28)

This essay attempts to address the undue focus on the lessened role of institutions on security issues while ignoring their (institutions) achievements in many other issue-areas so as to let them be conceived as weak instruments of international relations.Thomson and Snidal (1999), in their article International Organization have cited a lot of authorities witnessing that the application of institution has been expanded to a wide variety of issue-areas, including international security, trade, finance, telecommunications, and the environment. International legal scholars have also increasingly used institutions to better understand issues such as international trade laws, arms control agreements, and the law of treaties.

Problem of defining ‘institution’

One of the problems in this area is that scholars do not agree on the definition of the term institution. A widely adhered ‘standard’ definition by S. Krasner (1983) presents regimes/institutions as sets of implicit principles, norms, rules and decision making procedures around which actors’ expectations converge in a given area of international relations. However, scholars like Mearsheimer, in his article entitled false promise of international institutions do not agree on this definition. Even he mocks that Krasner’s definition lacks analytical bite. Strange (1982) has also criticized it as vague. They have, instead, provided their own definitions. Nevertheless, the way Krasner defines institutions enables us to assess the role of institutions in almost all walks of life. The definition makes up Regime Theory that premises: international politics is highly interdependent (Keohane and Nye, 1977) implying mutual interests in cooperation and (b) international behavior is institutionalized in a variety of ways (Ruggie, 1975).

Main scholars and theories said on the score

Mearsheimer (p.8) derisively wrote that institutionalists consider institutions to be a powerful force for stability. R. Keohane, for example, declares that, avoiding military conflict in Europe after the Cold War depends greatly on whether period is characterized by a continuous pattern of institutionalized cooperation. Commenting on the aftermath of the Soviet collapse and the end of the Cold War, John Ruggie maintains that there seems little doubt that multilateral norms and institutions have helped stabilize their international consequences. Indeed, such norms and institutions appear to be playing a significant role in the management of a broad array of regional and global changes in the world system today.

Abstract

The aim of this paper is to examine the key issues with regard rule of law in a narrower sense with the view and in comparable of rule of compromise in non-western societies where the latter focuses in African nation. The issues of Awramba’s is peculiar to this paper. Asserting that this phenomenon is replicable, the paper underpins the various arguments highlighting the incorporation extent of the rule of law on indigenous traditions under the broader umbrella of rule of compromise. Further, the paper addresses the necessity of reconciliation and restoration of harmony even in African continent when its children breach the laws than adjudicate by outsider’s law. In doing so, a little show on the Awramba’s experience of rule of compromise and its footages in promoting development and  stability will be reflected.

Introduction

Recently, due to the new politico-legal order in Ethiopia, the federative arrangement emphasizes cultural and legal pluralism and accommodates diversity in a plural democratic federal setting. Relegating the history of Ethiopian legal system before 1930’s, along with the enactment of the criminal code of 1930 and the proclamation of Administrative Justice of 1942, the state courts were established (shack et al 1966:163). The law adopted a foreign system of justice and borrowed many elements from western legal system (Abera 1998). This prevents the new law from conducting a serious investigation of local customary laws and safeguards the traditional values and thereby attaches the profound sentiments of the peoples with the code (Allott et al 1969:32). As Rene (1963:193) noted in his article that Ethiopia tends to modify its structures completely to the way of life of the people and consequently the citizens didn’t expect the new code to be a work of consolidation, the methodological and clear statement of actual customary rules, they wish it to be a program envisaging a total transformation of a society and they demand that for the most part of it set out new rules appropriate for the society they wish to create.

This is a follow up on the post ‘Conceptions of Access to Justice’. It seeks to outline the international human rights framework on ‘the right to access to justice’ and briefly set out a monitoring framework capable of measuring the extent to which the right has been realized in a given national jurisdiction. Hopefully, this would lay the basis for consideration of the state of access to justice in the Ethiopian context in upcoming posts.

1 Introduction

Access to justice is a right recognized under the major international and regional human rights instruments including: the Charter of the United Nations, the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (CESCR), the International Covenant on Civil and Political Rights (ICCPR), the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). The core instruments on the issue, the UDHR and the ICCPR, state that everyone has ‘the right to effective remedy against violations of fundamental rights’.

2 Recognition of the Right

The UDHR states that:

This ‘Briefing Notes’ have been prepared to serve as an introductory orientation and awareness raising material targeting members of the Ethiopian Human Rights Commission as well as sections of the general public. It is intended to introduce the conception and recognition of human rights education in the international and national human rights systems and the activities of the Commission in this important area forming part of its core mandate. Alas, it was never used (the fault being totally and wholly mine). Hopefully, someone could make some use of it.

Human Rights Education under the International Human Rights System

Human rights education has been recognized as an essential component of the international human rights system. The first such recognition in what has come to be called the modern international human rights system in the post WWII era is to be found in the Charter of the United Nations [1945] which called for cooperation "in promoting and encouraging respect for human rights and fundamental freedoms." This provision of the Charter is widely recognized as creating state responsibilities for educating and teaching human rights. The Universal Declaration of Human Rights adopted by the General Assembly in 1948, which proclaimed human rights as "a common standard of achievement for all peoples and all nations," also directed states as well as "every individual and every organ of society...."to "strive by teaching and education to promote respect for these rights and freedoms....". The UDHR further stressed "strengthening of respect for human rights and fundamental freedoms...." as one of the goals of education (Article 26, Section 2).

The dual aspects of human rights education were formalized into the international human rights framework through the provisions of the international covenants developed by the U.N. and coming into effect in 1976 to formalize the basis in international law of the rights declared in 1948. The Covenant on Economic, Social and Cultural Rights placed the educational objective of strengthening respect for human rights in a cluster of related learning objectives. For example, Article 13 of the Covenant says that "education shall be directed to the "full development of the human personality" and to the person's own "sense of dignity...."(Section 1). The Covenant also says the State Parties:

further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace." (Article 13, Section 1)