Dilemma of Reinstating Office of Attorney General

The possible reestablishment of the Office of Attorney General has currently become a topic of gossip, in an effort by the administration of Prime Minister Hailemariam Desalegn to “restore the old glory of the institution”. That is according to ‘The Fineline’, in the last issue of this newspaper. The paper recalled the reformed, Ethiopianised and glorious past of this office, as a separate entity, during the imperial times and mentioned Bereket H. Sellassie (PhD), who had served for many years Ethiopia’s first native Attorney General.

The column further revealed that the service of the Public Prosecutor’s Office “has been little known and appreciated across the entire state structure” of the incumbent regime. It then lists the factors that made it necessary to raise the issue of establishing the Office of Attorney General: “staff working under appalling conditions inside a building, prosecutors crammed in a small room that is dim and old with new files scattered all over the place, under-resourced and underpaid staff, fragmentation of prosecutorial powers given away to other federal and regional bodies that are not accountable to it.”

It is indeed true, and I also have information that work is already in the pipeline so this is not merely corridor talk. In all fairness, however, except for the last alleged factor, all other reasons cited in the gossip are trivial. I would argue that they do not warrant high level official discussion, let alone to be a ground for government instruction for the re-establishment of the Office of Attorney General.

This is because by all standards, federal or regional prosecutors of various institutions are relatively well-paid and receive reasonable benefits, including housing and transportation allowances. Currently, they are working in spacious, clean and well-lit offices equipped with computers, printers and copy machines. In those respects, they are much better off than their colleagues from the Imperial or Dergue times, or even the early periods of the current regime.

The “restoration of the old glory” of the Office as a “separate entity,” however, is not only laughable but, for several years and even decades to come, unachievable. This is because no regime can easily destroy legal institutions faster and expect their re-establishment let alone “restore their past glory.”

I am a lawyer who has spent most of my energetic and youthful career years serving in four different public offices with prosecutorial powers. I recall what used to be done in the old Office of Attorney General, both from my readings and from my own practical experience. The talk about re-establishment of the Office is therefore both a good promise and to some extent, flattery.

The Office of Attorney General was the oldest, albeit vital, legal institution in Ethiopia. Ironically, it remained very well-recognised, operational and accepted in almost all democratic regimes for its pivotal role to protect the state and the public. The Office has been a rightful means of restraining the capricious power of coercive state bodies, and thereby safeguarding individual citizens’ right.

Originally, it was set up as the Department of Public Prosecutions in 1942 and underwent further reform in its organisation and structure in 1951 and the following years. Since 1951, the Office was renamed Office of Advocate General and later became known as the Office of Attorney General.

This Office has been an autonomous body within the Ministry of Justice (MoJ) that was responsible for supervising and controlling criminal investigations, following up in the prosecution of crimes, receiving and addressing petitions on violations by public institutions, their officials or any person and providing redress to the legal rights of victims and suspects. It was also responsible for providing general legal advice to the government, when requested. Those powers remained largely untouched after the Dergue came to power, but that changed when its power was vastly expanded into what became the “Office of Procurator General”, along the model of the Soviet Union and its satellites. It became one of the six powerful constitutional organs of the People’s Democratic Republic of Ethiopia in 1980.

In 1993, a new proclamation purported to establish the Office of Central Attorney General, with powers and duties similar to the defunct Procurator General. But most of the Office’s territorial and jurisdictional power over crimes that it used to prosecute was transferred to new regions.

A few years later, a new proclamation was hurriedly issued that stripped most of the essential powers of the Public Prosecution Office and heralded the final demise of the four-decade-old Office of Attorney General. That was at a time when the then MoJ officially characterised the period as the beginning of Ethiopia’s “Golden Era of Justice” – a statement still recalled by many lawyers.

Since its total institutional demise, a lot has happened that has gradually weakened undermined and ultimately obliterated, traces of a several decades’ long store of legal knowledge on the criminal justice, prosecutorial best practices, work ethics and culture. Lessons and influences of model and independent Attorneys General and their staff that were reputed for their firm allegiance to laws and legal institutions, rather than to extra legal pressures, got lost. Strong vigilance on, and immediate corrective actions against the misconduct of law enforcement authorities, such as the police and the prisons, became a distant memory. So did the essence of a functioning and reliable system that guaranteed, issued and enforced its orders to safeguard citizens rights and that of its own staff.

Even various working formats, including preparing criminal charges in full compliance with statutory formats; decisions of prosecutors to close investigation reports or refusal to institute proceedings, issue directives on further investigations; opening statements and final addresses; and oral arguments, appeals and various other orders have all degenerated. Currently, we are witnessing powerful and recalcitrant police and prison forces influencing the work of prosecutors rather than receiving the orders, guidance, control and follow-up of public prosecutors, as provided under the Criminal Procedure Code.

With periodic mass purging of the last surviving and long serving prosecutors, even the institutional and established professional memories that far-sighted founding fathers and elders of the institution toiled to instill, have quickly deteriorated and have been abandoned without succession by the new breed of lawyers.

The incessant attacks and actions to undermine the establishment, the profession and highly important duties and responsibilities of the Office of Attorney General started toward the end of the imperial period, on the eve of the 1974 revolution, and finally culminated in 1996 by virtually erasing the independent existence of the Office. Now, we have the a highly debilitated and porous Ministry, supposedly assuming some of the activities of the deceased Office of Attorney General, whose duties and responsibilities have already been usurped by or relinquished to several ad hoc establishments. Some of these establishments were even instituted as stage plays by subtle politicians, to calm down revolutionary or public uproar and others in response to real demands of complicated past crimes or specialization.

Today, all federal or regional public institutions mandated with any sort of prosecutorial powers are entirely unaccountable to the MoJ, the heir of the Office of Attorney General, which was supposed to ensure uniformity and streamline the duties, responsibilities and the development of the service and the profession. As a result, the Ministry and its officials have suffered serious setbacks even to safeguard its own employees or agents discharging their lawful activities, from illegal or arbitrary actions of other state organs and officials. I am a living witness to this.

It is a pity that after 20 years of persistent and unprecedented institutional and professional self-destruction, the same government has awoken from its deep slumber and has stood upright to announce its resolve to re-establish the Office of Attorney General. It is good to learn from past mistakes and start afresh. While the effort to recognise failures and take corrective action is commendable and appropriate, it does not appear to be an easy exercise to build an institution that once commanded so much respect, confidence and credibility of the public, but which was later, letdown and even supplanted by rival and less credible institutions.

The legislative measures progressively weakened and finally deprived the Office of Attorney General of its previous independence and most of its duties. These, plus numerous instances of disgraceful ridicule and humiliation wittingly and unwittingly thrown against the profession by previous and current top officials, have already done irreparable damage. Much worse, the appointment of political functionaries that do not have the faintest idea of the activities of the public prosecution profession and even applicable laws, as “attorneys general” has also contributed to the ruin.

As Nathan Marein, noted in his book, The Judicial System and the Laws of Ethiopia, published in 1951, it is true that despite its establishment in 1942, the post that was known as the Solicitor-General and later became Attorney General in 1946, “the position has been held by a non-Ethiopian.” (Reference to himself).

Contrary to the talks in the gossip corridor however, he was in reality no less Ethiopian than the eminent and iron willed first law graduate, Deputy Attorney General, Nirayo Essayas, and subsequent attorneys general, Teshome Hailemariam, Teshome Gebremariam, and Amanuel Amdemichael, to mention some of them.

Although a Dutch born Israeli lawyer, Marein served Ethiopia passionately and successfully. He fought against the occupying fascist Italian regime’s legal claims to Ethiopia’s government buildings in Jerusalem and protected exiled Ethiopians that fled the regime. Following the restoration of independence, he contributed immensely in the newly established modern court system, reorganisng the Public Prosecution Office as Advocate General and General Adviser to the Imperial Ethiopian Government. Like any Ethiopian official, he was not only fluent in speaking but also in writing Amharic, the working legal language.

I am very reluctant to describe him as a “non-Ethiopian” as he described himself, for even during the time when Ethiopian nationals had abandoned their Ethiopian identity to serve their Italian overlords, he fought hard to maintain the dignity of self-respecting Ethiopians. His effort to ensure the independence and proper functioning of the Office of Attorney General earned him, his staff and the Office immense credibility that persisted even after his departure.

On the other hand, in his book The Crown and the Pen, Bereket Habtesellassie, who fittingly described himself as a “rebel” against the regime, paradoxically accepting its official appointment, has been wrongly described in the paper as “the first native attorney general”, a post he never assumed, although undeniably he served for a few years as Deputy. Despite his overall negative assessment of the imperial regime that generously supported his training and gave him the opportunity to work in important government positions, nonetheless, he frankly admitted that, “During (his) tenure, the Emperor himself rarely intervened directly in the work of the Attorney General’s Office. But if he wanted to intervene, he had indirect ways to do so an obvious one being through his Prime Minister. But then the Prime Minister, a trained lawyer, did not intervene directly either.”

He further noted that, “unlike the system in the United States, the attorney general in Ethiopia was not a member of the cabinet ministers and…such non-membership operated as an asset shielding the office from undue political pressures.”  While these statements are true, no legacy in his appointment as Deputy Attorney General and work was left by him as much as his predecessors or successors.

Given past experiences of the revolutionary democrats, it is, however, hard to believe that with the upcoming re-establishment of the Attorney General Office, what kind of strong willed professional official that would abide, and cause the regime and its officials to abide, by the rule of law with the least possible intervention as has been testified on the activities of the imperial times.


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