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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:

  • Such independence is spelt out in black and white by the law ( see, for instance, Art. 79 of the FDRE Constitution);
  • Courts have full authority over their internal  and, financial affairs; such as, the power of drawing up and implementing 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,
  • 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.

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