09 February 2012 Written by  Tefera Eshetu and Mulugeta Getu

Constitutionality of ADR

Constitutionality of ADR

This days adhering to constitutional values is becoming a standard to determine the stage of development of a certain nation. Constitutional values can be seen in to angles. One from the eyes of the subjects – as a means to check whether the elected and ruling parts are working with in the limitation given to it by the people; second in the eyes of the elected officials – as a means of showing their obedience by proofing themselves that they are loyal, committed and work only for the best interests of the subjects with in their limitations. It is for mutual benefit that each and every activity in a constitutionally established state functions with the limitation put by the supreme law of the land.

Constitution regulates most important activities of the state. For example, it recognizes inherent rights of citizens with its respective duties, and also establishes government agencies together with its responsibilities. One of the pillar rights of citizens which are recognized by Ethiopian constitution, as it happens in all the constitutions of other nations of the world, is access to justice. Article 37 of the same reads as follow

“Everyone has the right to bring a justifiable matter to and to obtain a decision or  judgment by, a court of law or any other competent body with judicial power”.

This part of the constitution which is subject to broader interpretation has incorporated different elements. At least the following can be said about the included rights in this provision. The first clause speaks about the rights of individuals to bring any of his grievances to the appropriate body. The second phrase qualifies the nature of the matter that can be safely taken to the body, i.e. justifiable matter only. This seems to talk about the real interests of the claimant and the existent of cause of action. Thirdly, we should not think of a mere right of bringing the matter to the authorized body but also to get remedy for his or her grievances. This puts a positive duty to the state to make sure, that after the claim has been accepted by the appropriate organ, justice has been done to the satisfaction of the general public.  The provision further determines and limits the bodies that have the authority and competency to settle disputes. In doing so, its only courts which are constitutionally established institutions of the state and other bodies with judicial power which can validly look at the matter and give binding decision which is enforceable before law.

When we talk about the right to bring grievances before the competent authority, it is not a mere right granted for the citizens with negative obligation on behalf of the state. But as most scholars agree it is the duty of the state to make sure that judicial bodies are really accessible to the public. Here accessibility needs to be interpreted broadly. It may mean material accessibility, i.e. the average distance between the one who is with his grievance and judicial offices; the expenses disputants supposed to cover to get justice; the duration of time the matter takes to be settled; getting qualified experts to give reasoned decision which satisfies the general public. These all parameters and its fulfillment are a relative test which differs according to the level of development of the nation. What is denial of justice in a certain developed nation might not be the same for Ethiopian instance. And what we have to see is the economic and human resource of the nation and its development in the passage of time.

At this moment it might be extra ambitious to require the state to establish a court in each and every locality; degree holder and experienced lawyers in each court room; dispose of  each cases with in days; make court services free of payment or much less than what we have today etc. Lack of resources might be the primary obstacle to accomplish all those activities prior to all other obligation of the state. This by itself might not be denial of justice if the state tries its level best to get rid of these obstacles by other means.

Alternative dispute settlement can be thought as one remedy to rectify those in cumbersome we have discussed. As we have discussed in the first chapter it is believed to be speedy, less costly, easily accessible for all, affects future relations of the parties positively and possibly a place where persons with experience in the specific subject matter we sought justice might be obtained. Since it is beyond the capacity of the state to satisfy the needs and interests of all the needy citizens, encouraging the establishment of ADR institutions and letting disputants settle their dispute amicably is the extended obligation of the state to best secure access to justice.

In the other case as per this constitutional provision courts are the primary institution empowered to settle disputes, but by no means are the only institution with such power. Though the article fails to specify them, it tells us that there might be other organs with judicial powers other than courts of law as long as it did not take away from court of law. As long as we have not absolutely prohibit citizens from taking their cases to the court of law, as long as we have not prohibit appeal from going to ordinary courts, the government has the right to establish specific courts. This can be witnessed from Article 78(5) of the same. This very article empowered the House of Peoples Representative or as the case may be State Councils might establish or obliged to give recognition to the established customary and religious courts. The existing Shari’ a court is an example of religious courts established in the nation under state recognition.

By the same taken the House of Peoples Representative can establish other institutions with judicial power or give recognition if they have been established by private individuals. Giving due cognizance for arbitration and conciliation proceeding specifically and compromise in general is start but not an end by itself. Moreover, by recognizing instructions which serves as a forum for arbitration and conciliation, like the Addis Chamber and Ethiopian Arbitration and Conciliation Center (EACC), the state is promoting the ideal constitutional access to justice principle.

Last modified on Wednesday, 02 May 2012 13:05