The constitutional non-clarity issue surrounding the case of Melaku Fenta, the former director general of the Ethiopian Revenues & Customs Authority (ERCA), was resolved when the House of Federation (HoF) voted in favour of the recommendation made to it by the Council of Constitutional Inquiry (CIC). It repealed provisions that required federal ministers to be tried at the Supreme Court, instead of the Federal High Court. This returned the case to the Federal High Court. Tadesse Kiros, who served as vice president of the Supreme Court, is passionate in talking about the constitutional issues involved in the right of appeal and powers of the House of Federation. Tadesse, who graduated in 1985 from the Addis Abeba University (AAU) and received a second degree from the Harvard Kennedy School, served for 10 years as a judge,including as vice president of the Supreme Court. He received his second degree in public administration from the Harvard University.The heavy burden of changing the court system from unitary to federal system fell on his shoulders during the time that the Ethiopian People’s Revolutionary Democratic Front (EPRDF) seized power, ousting the Derg regime. Tadesse was instrumental in the drafting of the law that provided for the new court system. Tadesse has been working as a lawyer. He argues that the mandate to make laws under the Constitution is that of Parliament. No law that entrusts the Federal High Court with the power to hear a case, such as this one, has been enacted by Parliament, he says. In this interview with BINYAM ALEMAYEHU, EDITOR-IN-CHIEF, Tadesse discusses the right of appeal as enshrined in the Ethiopian Constitution, the powers and duties of the House of Federation, the Council of Constitutional Inquiry, the Federal High Court and the Federal Supreme Court.
FORTUNE: During its session on January 2, 2014, the House of Federation (HoF) ruled that government ministers should be tried by the Federal High Court instead of the Federal Supreme Court. This comes after a recommendation made to it by the Council of Constitutional Inquiry. Was there a need for a constitutional interpretation?
Tadesse Kiros: In my opinion there was no need for a constitutional investigation by the Council of Constitutional Inquiry into Melaku Fanta’s case. We need to look at when a constitutional inquiry is necessary. Thus, interpretation would be necessary if there is a possibility that the interpretation of a certain provision of law would entail the disposition of an issue differently than would be the case otherwise when seen in light of the constitution.
This being the general rule, let us look at the case at hand. In this case, the Federal High Court, which was hearing Melaku’s case, brought the issue of whether it had the power to hear the case. It is clear as clear can be that the first instance jurisdiction to hear a criminal case brought against a person with a ministerial portfolio in connection with conduct related to his official duties was given to the Federal Supreme court, under the Federal Courts Proclamation No. 25/1996, as well as the Revised Federal Ethics & Anti-Corruption Commission Establishment Proclamation No. 434/2005. Matters that come under the first instance jurisdiction of the Federal High Court have been enumerated under article 12 of Proclamation No 25/1996. But these do not include cases like the one under discussion.
We are, therefore, safe in concluding that the Federal High Court does not have the power to hear the case brought against Melaku. This means the case warrants no further consideration by the Federal High court. What remains incomprehensible to me is the move by the Federal High Court to have a legislation that denies it from hearing a case declared unconstitutional. I find that incomprehensible, because the constitutionality, or otherwise, of the law that conferred first instance jurisdiction upon the Federal Supreme Court is quite irrelevant for the determination of whether the Federal High Court has jurisdiction over the case or not.
Q: Article 83 of the Constitution guarantees the House of Federation (HoF) the mandate to hear and adjudicate all constitutional disputes. The House does this first through the Council of Constitutional Inquiry. Do you see any problem?
Both the Council of Constitutional Inquiry and the House of Federation should not have entertained the issue in the first place, assuming that it was necessary for the House to deliberate upon the issue of constitutionality submitted to it, the House should have limited itself to the mandate given to it under the constitution, which is constitutional interpretation.
Whether or not the Federal High Court should exercise first instance jurisdiction over cases brought against ministers or other government officials, as defined in Proclamation no.25/1996, is an issue that had to be and has yet to be decided by Parliament.
Q: As it now stands, both the Council of the Constitutional Inquiry and the House of Federation have looked at the case of Melaku Fenta. Do you say that was in accordance with the Constitution?
The House of Federation indeed has the mandate to hear and adjudicate all constitutional disputes.
The submission to theHoFwas in line with the constitution. A request for constitutional interpretation could be submitted to the House, either directly by a concerned party or indirectly by the Council of Constitutional Inquiry. The power of the Council is limited to making recommendations when and if it finds it necessary to interpret the constitution. But the ultimate decision lies in the hands of the HoF.
The exercise by the HoF of its power, or in other words, the submission of this dispute to the Federation is quite in line with its mandate.
Q: What conditions warrant a case for constitutional interpretation?
There are two conditions to be fulfilled. First, the law must have been contested. When the dispute arises in connection with a proceeding in a court of law, it must come from a party to the proceeding. and a dispute – the resolution of which would necessitate constitutional interpretation – must exist. But, in the case of Melaku, this seems to be lacking. The Federal High Court itself brought up the issue with none of the parties contesting the jurisdiction of the Court.
In the second place, the Council is not obliged to review every matter referred to it. It does so only upon finding it necessary to interpret the Constitution. In that case, it deals with the issue and submits its recommendations to the House of Federation.
Q: The decision by the House of Federation means that the Federal Supreme Court has been denied jurisdiction through a constitutional interpretation. What is the implication of this on the judicial system as a whole?
The Federal Supreme Court was denied jurisdiction through a constitutional interpretation, in the absence of a clear legislative act addressing the issue. Thus, the denial does not automatically confer jurisdiction upon any other court. Courts exercise their jurisdictional power over cases in accordance with the law. The mandate to make laws under the Constitution is that of Parliament. As far as I am aware, no law that entrusts the Federal High Court with the power to hear a case, such as this one, has been enacted by Parliament.
The House of Federation, thus, has no authority to empower the Federal High Court to continue to see the case. The move on the part of both the House of Federation and the Federal High court is erroneous. What is more, there is a possibility that, absent from further action from the parliament, decisions of the High Court on this matter could be challenged on appeal on the grounds of jurisdiction, if the High Court continues to hear the case.
Q: A glance at how the right of appeal is entertained in both criminal law and the constitution helps to provide a better grasp of the case. Could we look at this right and what it means?
A right of appeal entitles a convicted person to have his or her conviction and sentence reviewed by a higher court or an appellate court.
The case of an appellate review is almost universally understood to include a process that allows for a substantive review by a higher court of the conviction and sentence passed by a lower court. That court makes the review to determine whether the fact finding and the law were sufficient. When a higher court reviews a case brought to it by appeal, it conducts a full consideration of the case, particularly paying attention to the decision of the lower court and its basis, as well as the interpretation or conclusions of law reached by the lower court.
An appeal allows for more reflection on all issues involved and is, therefore, considered to be a natural continuation of the trial process.
This particular process is also a process that puts these appellate judges in a unique position, allowing them to make use of the reflections of the trial court judges. The judges have the benefits of knowledge of the lower court judges. Appellate judges, however, learnt they will not have the same advantage if they were to deliberate on the case at first instance.
The right to appeal has been accorded constitutional status under the Ethiopian Constitution. It has been enshrined as a fundamental right in the criminal justice system of the country. The Federal Supreme Court does not have appellate power over final decisions given by one of its divisions. If the Supreme Court were to hear criminal cases on first instance, the only avenue for review will be by way of cassation. As opposed to review by appeal, review by way of cassation, as it exists in Ethiopia today, is limited to the review and rectification of fundamental errors of law.
Q: According to some legal experts, it is in the best interest of Melaku to be tried at the Supreme Court, because that would allow the case to be fought at the highest judicial body of the country. Others say the move also helps to shorten the length of trial. Thus, would it have been better if Melaku’s case was seen by the Federal Supreme Court?
I would say it is in the best interest of Melaku to not have his case seen by the Federal High Court. That is because having his case seen on a first instance basis by the Federal Supreme Court would mean he is not going to exercise his appeal right. The only review that would be available to him if his case is seen by the Federal Supreme Court will be review by way of cassation. And the cassation is only limited to rectifying fundamental errors of law.
There is not going to be any factual investigation or review of the fact finding of the lower court. Thus, having his case seen by the Federal Supreme Court would only create serious limitations on his right of appeal. It is to his advantage to have his case seen by a lower court, whichever that court might be.
Q: The House of Federation has scrapped two proclamations that required federal ministers to be tried at the Supreme Court, instead of the Federal Court. The now repealed provisions in both proclamations state that Federal Government officials who have allegedly committed any offence related to their responsibilities shall be taken to the Federal Supreme Court. Judges at the Federal High Court ruled that these two sub-articles possibly contradicted with sub-Article 6 of Article 20 of the Constitution. But were the invalidated provisions unconstitutional right from the beginning?
The provision that conferred first instance jurisdiction on matters involving high level government officials to the Supreme Court was first introduced during the Transition Period under Central Government Courts Proclamation No. 40/1993, which came in to force in January 1993.The right of appeal became a constitutional right with the adoption of the Constitution in 1995. Ethiopia became party to the International Covenant on Civil and Political Rights (ICCPR) in June 1993. The African Charter on Human and Peoples Rights was ratified in June 1998. So, I do not think one can speak in terms of the constitutionality of this provision back during the transition period. However, when it was incorporated into Proclamation no. 25/1996 it was already unconstitutional.
There were important policy considerations that prompted the legislator to give first instance jurisdiction over cases involving federal government officials to the Supreme Court. These concerns were mainly connected with constraints faced in connection with organising a parallel system of courts. In my opinion, although the decision by the House to deny the Supreme Court first instance jurisdiction over these cases is in line with the Constitution and is a big step forward in ensuring the rights of the accused, these concerns are still in existence today and need to be addressed in deciding which court, other than the Supreme Court, should exercise first instance jurisdiction over these cases.
Q: The decision by the House of Federation is contrary to a decision made a few years ago. Assefa Abraha, brother of Seye Abraha, the former TPLF strongman, had a ministerial portfolio while he was serving as chairperson of the then Ethiopian Privatisation Agency prior to his arrest. Assefa’s lawyers requested that the case be seen by the Federal High Court. It was not decided in their favour. Wouldn’t this be a situation of contrary decisions being given in one case?
It is difficult for me to talk in terms of there being two contrary decisions given on one case. In the first place, there are two cases. On the other hand, in the case of Assefa, no request for constitutional inquiry was submitted to the Council of Constitutional Inquiry or the House of Federation. It was raised in the Supreme Court only to be ignored by the judges.
Thus, there was only one case that was brought to the attention of the House of Federation challenging the constitutionality of these provisions of law. In my opinion, it is inappropriate to speak in terms of contradictory decisions being given when there was only one case that was brought before the House of Federation.
Q: Would a different approach by the judges of the Federal Supreme Court have been right in the case of Assefa?
Yes, I would say so. The Federal Supreme Court should have seriously considered the issue at the time and submitted it to the Council of Constitutional Inquiry for constitutional interpretation. This is because, if we agree on the definition of the appeal process as being a review by a superior court of a conviction by a lower court on both questions of fact and law, then the Federal Supreme Court should have known that having this case seen on a first instance basis by a supreme court would deny that right to the convict.
Q: Constitutional interpretation is a matter of paramount importance. But this very matter is being entertained by the House of Federation, which is a political organ with its members being party affiliated. Could we, therefore, say it is the right organ to exercise this power?
The world knows three different ways of resolving constitutional disputes. The United States and some others belong to one type, where the power of judicial review is given to regular courts. In the US constitutional system, it is the Supreme Court that exercises this power. Some have levelled criticisms against this system, saying it is too undemocratic. In a second and different scenario, power is given to a democratically elected and accountable body. But there is a third approach, which I personally support. It involves taking a middle path, where the power of judicial review is entrusted to a constitutional court. The members of this court shall only have a limited tenure, as opposed to the life tenure enjoyed by judges of regular courts. This helps to ensure flexibility.
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