New Attorney General Establishment Law Furthers Manipulation

Recently a Bill to establish the Office of the Attorney General (OAG) has been introduced to Parliament. After preliminary deliberation, Members of Parliament (MPs) have referred it to the Legal & Administration Standing Committee for further scrutiny. This committee, it has been learnt, has planned a public hearing for next Monday to receive comments and suggestions on the Bill.

Undoubtedly, the introduction of the Bill is a step forward in ensuring the resurgence of a specialised and responsible chief legal officer within the executive branch of the government that would safeguard public interest and maintain the rule of law. This Office will also confirm that it will be the sole legal representative of the government to institute criminal proceedings and to intervene, where public interest requires, in civil cases.

Since the unwise and ill-advised action to eliminate the independent existence of the OAG, a heavily influenced political manipulation done twenty years ago during the formative years of the Revolutionary Democrats, the public prosecution profession endured unprecedented degeneration. Not only has it lost public confidence, but its credibility as protector of public interest and guardian of rule of law has vanished.

The government took several legislative and administrative measures that greatly undermined the Office and the profession, whose functions were put under the Ministry of Justice (MoJ). These moves included fragmenting and transferring prosecutorial powers to newly established offices and recruiting and appointing public prosecutors that had either the least or no prior experience. They also included setting up a “task force of lawyers” with no professional mandate to represent the public, and prosecuting politically charged offences in violation of existing laws and institutional practices. Today, we have the highly tarnished image of public prosecution, not as guardian and defender of laws and rights of the public independent from any political manipulation, but as government’s or even ruling party’s hatchet man.

Modern public prosecution in Ethiopia dates back to 1942. In 1946, a highly educated practicing non-Ethiopian lawyer that had been serving in the newly established courts was appointed to head the Office. Natan Marein, an Israeli of Dutch descent, brought with him and introduced the best practices inherited from United Kingdom’s common law tradition to the OAG. He provided meritorious services to his host country, Ethiopia, as Attorney General for 18 years.

Marein and his long serving Deputy Attorney General, Nirayo Essays, a law graduate of Illinois University, toiled to establish an Ethiopian Public Prosecution Office worthy of its name. Nirayo, who is also credited as the drafter the Civil Procedure Code of Ethiopia that is still in force, was one of the most brilliant prosecutors who had immensely contributed in strengthening the proper functioning of the Office. Following the departure of Marein, the Office was headed by eminent practicing and highly educated lawyers.

The Bill for the reinstitution and resurrection of the deceased OAG has come at a critical time when the issue of good governance is high on the agenda and must be welcomed, however late it may be. The government of Prime Minister Hailemariam Desalegn should be congratulated for taking such a bold measure.

The preamble of the Bill provides that “a strong law enforcement public prosecution institution which can comprehensively protect public and government interest and deliver uniform, effective and efficient service, enforces rule of law and ensures that laws are properly organized and government works are conducted in accordance with the law and that works with accountability, transparency…institutional and professional independence and win public trust”, as major reasons for the establishment of the Office.

There is no other evidence than the list of reasons set out in the preamble that mercilessly revealed the raison d’ être for the government’s desire to reestablish the Office. The grounds stated under the preamble are indirect acknowledgement and confirmation of the prevailing situation. It also shows the determination of the administration to reverse it by establishing the Office.

The preparation of the Bill and adoption of the law is a good start. But ensuring the proper functioning of the Office is the most difficult task that requires much more commitment and resolve than mere lip service.

It is interesting to note that countries with common law traditions, from which we borrowed the institution during its establishment, such as the UK, Israel and several Far East countries, are not included among those whose experiences have been examined as indicated in the explanatory statement attached to the Bill.

To me, the OAG of Israel is the strongest, perhaps the best and exemplary example for the regime to follow in re-establish Ethiopia’s OAG. Israel’s OAG is at the centre stage of the “Israeli democracy.” Its major responsibility is to protect “public interest” the “rule of law” from possible harm “by government authorities” as head of the public prosecution system, representative of the state in all legal proceedings, chief legal council to the government and representative of the public interest in any legal matter.

The nomination for the appointment of the Attorney General (AG) is based on the recommendation of several Israeli legal institutions. The process involves “a retired judge of the supreme court, a former justice minister or attorney general, a parliamentary (Knesset) member who will be chosen by the Constitutional Affairs committee of the parliament, an attorney who will be chosen by the national council of the Israel Bar Association.” Also involved are a legal expert in the subjects of civil and criminal law who will be chosen by the heads of the university law schools in Israel. All are familiar with the profession and are also responsible for protecting the rule of law.

The recommendation of the committee for “appropriate person who possesses the fitting qualifications for the job” culminates in his (her) appointment by the Cabinet as the AG, through the Ministry of Justice. The extraordinary care exercised in the selection and recommendation of the person to be appointed as AG, appears to be based on the premise that “the manner in which the Attorney General carries out the duties assigned to his or her position is derived to a large extent from the personality of the person holding the position.”

The AG in Israel is independent, neutral and impartial. He (she) is a civil servant, not a member of the Cabinet and effectively shielded from any political influences, partisanship and policy matters. The AG has a fixed tenure, during which the Prime Minister cannot remove him, and is not subservient to the head of government.

As a result, the Israeli OAG, has rejected the policy idea of the Benjamin Netanyahu’s government “of deporting the families of Palestinian terrorists to the Gaza Strip as a deterrent to quell lone-wolf terror attacks against Israelis”. Such a policy would be contrary to Israeli and international law. The responsibility of the OAG involves safeguarding public interest and ensuring the Israeli government and its officials’ activities comply with applicable human rights laws. In its responsibility to safeguard public money from being squandered, the AG has recently ordered a criminal investigation into the excessive spending of Prime Minister Netanyahu and his wife at his residences, on the basis of the revelations made in the report of the state comptroller.

Previously, the AG initiated criminal investigation into bribery and corruption allegations on Prime Minister Ariel Sharon. On the other hand, the OAG dropped the prosecution of allegations levelled against Prime Minister Benjamin Netanyahu and later on, Ariel Sharon and decided to close the file for lack of evidence.

A comparison of the selection of Israel’s AG and the Office’s duties responsibilities and organisation with the Bill that purports to establish a similar office in Ethiopia reveals striking differences.

The Bill presupposes the appointment of the AG by Parliament, but paradoxically empowers the Prime Minister to fire the holder of that office and his/her deputies at his discretion. While the Bill repeatedly underlines on several provisions the necessity of the Office and the AG to be independent and neutral, there is no provision that prohibits his affiliation in the ruling or other political parties.

Nor does the Bill set up a credentials committee to help the nomination process or provide any legal guidance for the appointing authority on the requirements for the nomination of the AG. There is also no provision stipulated on the academic credentials, experience, health condition, age and so on.

The Bill envisages an OAG that “institutes criminal case charges by representing the federal government, litigates, by consulting the Prime Minister, withdraws charges when found necessary in the interest of the public, resumes withdrawn charges”. Therefore, we will have a subservient AG that relies on the advice of the Prime Minister to carry out his routine activities, let alone to to initiate and order criminal probes as an independent body or official on the Prime Minister’s misconduct.

Instead of overseeing, providing guidance and controlling the most powerful organ that threatens human rights of citizens, the Bill has provided a provision for the AG to “seek support from the police in the process, giving decisions on an investigation file”. It introduces a new law that respects the rights of the police and obliges the AG and his office to “receive and give decision on appeals presented by the police against decisions given at different level of public prosecutions”.

Again, despite the declared independence in discharging its powers and duties “free from any person or body’s interference” the OAG is subjected to a populist “evaluation and assessment” of “sections of the societies”. Among areas to be assessed are “problems and gaps … ethical defects” whereby it shall “conduct investigations based on the opinion and inputs, take corrective actions or rectify and inform the public forum about the status.”

Finally, the basic principles that have been enumerated to guide the appointment of public prosecutors to maintain “obedience and belief” in the Constitution, constitutional order and the rule of law as ritual and legal requirements is slippery.

Last but not least, the Bill aims to create the fusion of the Ministry of Justice’s (MoJ) powers and duties with those of the OAG, another step envisioned to deprive the Office of its former independent existence. This overburdens the Office with the combined responsibilities of shouldering legal, non-legal and administrative tasks.

The possible burden should be viewed against the Attorney General’s expected task of formulating and enforcing criminal justice policies, compiling and consolidating laws, carrying out licensing and regulatory tasks on advocates, providing training, and attending and deciding on various policy issues in cabinet meetings. These all should have been easily, reasonably and conveniently executed by the Ministry. As it is, however, it subjects the Office to political manipulation.

While admittedly there are countries that have the organisational structure the Bill envisages, it is not clear why it is proposed to depart from the long tradition in the powers and responsibilities of the OAG in Ethiopia. It is just a repeat of the blunder previously committed and wipes out, rather than rescues the Ministry of Justice. In as much as the unwarranted elimination of the OAG previously was an uncalled measure, so is now in the dismantling of the Ministry of Justice that appears to be not very well substantiated and convincing.

Lack of good governance will continue to be a scourge against the people of Ethiopia, despite any attempt to tackle it, such as by establishing a new yet volatile OAG, as proposed in the Bill. The people of Ethiopia have always been punished by rulers that do not heed the rule of law.

Although ironically, as former Attorney General, Natan Marein, aptly concluded in his book, The Judicial system and the Laws of Ethiopia, both as an official and close but independent observer, “I don’t believe that there are many other peoples in the world who respect the law as much as the Ethiopian people do.”

I applaud the statement of the honourable former AG and reiterate that the Ethiopian people deserve the OAG and officials that befit its belief in “the angels of law”, and do not undervalue its deeply entrenched ethos of the rule of law.


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