The Challenges of Access to Justice in the Arsi Zone

The Challenges of Access to Justice in the Arsi Zone of Oromia Region in Ethiopia A Grass Root Level Study

Samuel Maireg Biresaw


The Challenges of Access to Justice in the Arsi Zone of Oromia Region in Ethiopia A Grass Root Level Study

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The Challenges of Access to Justice in the Arsi Zone of The Oromia Region

Copyright © 2018 Samuel Maireg All rights reserved.

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THE CHALLENGES OF ACCESS TO JUSTICE IN THE ARSI ZONE OF OROMIA REGION IN ETHIOPIA A GRASS ROOT LEVEL STUDY

Samuel Maireg Biresaw (LL.B., LL.M. in Business Laws, Senior Lecturer in Laws)

VERLAG PUBLISHERS

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For Fentanesh Alebachew

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Contents Abstract

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Introduction

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Chapter One: General Issues

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1.1 The Historical Background of Access to justice

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1.2 Statement of the Problem

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1.3 Objective of the Study

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1.4 Significance of the Study

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1.5 Scope or Delimitation of the Study

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1.6 Research Methodology and Methods of Analysis

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Chapter Two

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2. Review of Related Literature

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2.1 Definition and Conceptual Analysis of Access to Justice

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2.2 The Principles of Access to Justice as Envisaged under the FDRE Constitution

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2.3 Access to Justice as envisaged under Major International Conventions

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Chapter Three

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Access to Justice and Law Enforcement Institutions in Ethiopia

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3.1 The Judiciary

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3.2 Federal Institutions

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3.3 State Institutions

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Chapter Four

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4. The Challenges of Access to Justice in the Arsi Zone of the Oromia Regional State 68 4.1 The Challenges of Access to Justice related to the Element of Legal Knowledge 69 4.2 The Challenges of Access to Justice related to the Element of Legal Framework 81 4.3 The Challenges of Access to Justice related to the Element of Advice and Representation 94 4.4 The Challenges of Access to Justice related to Justice Institutions 105 1. The Justice Institutions in Munesa Wereda

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2. The Justice Institutions in Shirka Wereda

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3. The Justice Institutions in Arsi Robe Wereda

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4. The Justice Institutions in Tena Wereda

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5. The Justice Institutions in Sude Wereda

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Chapter Five

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Conclusion and Recommendations

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5.1 Conclusion

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5.2 Recommendations

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Bibliography

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Books

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ACKNOWLEDGMENTS

I am greatly indebted to the Research and Publication Directorate Director of the Arsi University and the Law School of Arsi University for the Provision of the necessary budget to the proper accomplishment of the study.

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ACRONYMS ACHPR…………the African Charter on Human and Peoples Rights ADR……………………………….Alternative Dispute Resolutions CFR…….……Charter of the Fundamental Rights of the European Union CJEU……………………………Court of Justice of the European Union CSOs……………………………..……………Civil Society Organizations ECHR……………….……………..the European Court of Human Rights FDRE…………………….The Federal Democratic Republic of Ethiopia FJAC……………………Federal Judicial Administration Commission HPR……………………………the House of Peoples Representatives ICCPR……………International Convention on Civil and Political Rights ICESCR…International Covenant on Economic, Social and Cultural Rights JLRIO………Justice and Legal System Research Institute of Oromia NGOs………………………………Non-Governmental Organizations UDHR…………………………Universal Declaration of Human Rights UN…………………………………United Nations UNDP……………………………United Nations Development Program USIP…………………………………United States Institute for Peace

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Abstract Different people face different legal problems. The legal needs in a poor rural community will be quite dissimilar to the legal needs of an affluent suburban community in Addis Ababa or Adama. Both sets of needs for just resolution of the existing conflicts, however, could be equally important and pressing since they both have a deep impact on everyday life. In a more abstract way, access to justice is defined as „commonly applied process that people address in order to cope with their legal problems‟. A court procedure is an obvious example of access to justice. However, the definition includes both formal and informal procedures. This means that a mediation procedure, or a procedure before an informal Commission or other neutral third party, also qualifies as access to justice. An example of access to justice is a criminal procedure for a victim of robbery. The beginning of the path may be calling the police and the end of the path may be a court verdict or a dropped case due to insufficient evidence. This research aims to measure the adequacy of the legal system to respond to the needs of individuals, communities, and societies in the Arsi zone of Oromia region. The path to justice can be measured from the perspective of the user or the service provider. Holistic measurement of justice from the perspective of the users provides plenty of information on the performance and impact of the procedure. How many resources have the users spent attempting to obtain a resolution? Did they receive a resolution and is it seen as just? Are they satisfied with the quality of the procedure? These and other questions could be addressed using the data provided by the users. On the other hand, access to justice can be measured from the perspective of the service providers i.e. the courts, police and the prosecutor‟s office. In this regard, the cost of justice, the quality of the procedures in the institutions, and quality of the outcome that users expect from the justice system are the typical tools to measure access to justice. In Ethiopia access to justice is usually blocked by a number of factors i.e. lack of qualified man power, budget, law moral, corruption and the public‟s attitude and understanding of the justice system. This problem is exacerbated in remote areas of the country like the study area of this research. However, the solutions seem to be elusive because there are no actual studies conducted on the extent of the problem. Thus, this study would begin the first step in understanding problems of access to justice in weredas of the Arsi zone of Oromia Region, with the objective of coming up with tangible recommendations.

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Introduction At the present time striving for justice has become as taxing as for a blind man to describe color. Nonetheless, if the hindrances and obstructions are figured and tackled in due time it is an achievable undertaking. The motive behind this study is to discuss various issues which are obstructions or barriers in the way to justice and to provide working solutions. This study is divided in to five chapters. The First Chapter deals with the Research Proposal. Then the Second Chapter is destined to deal with the Review of Related Literatures on the subject matter of access to Justice. Chapter Three precisely outlines the justice institutions in the country both at the Federal and State levels of government. Then the main issue of this study, which is the challenges of Access to Justice in the Arsi Zone of the Oromia Regional State, will be analyzed on the Fourth Chapter. Finally, Chapter Five would outline and suggest the necessary Conclusion and Recommendations.

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Chapter One General Issue on Access to Justice 1.1 The Historical Background of Access to justice 1.1.1 by Country Experience on Access to Justice In Europe, the right to access to justice, specifically to a court or a tribunal, was developed by the ECHR in the context of Article 6 of the ECHR and has since been extensively dealt with in scholarly doctrine. Article 6 ECHR applies only to “civil rights and criminal charges”. Although ECHR (the European Court of Human Rights) jurisprudence has, over the years, continuously enlarged the scope of the notion of „civil rights‟, so that nowadays also considerable parts of administrative law are now covered by the safeguards of this provision. It is nonetheless a notable step forward that Article 47 of the CFR (Charter of Fundamental Rights of the European Union) has abandoned this restriction, deliberately granting access to justice to all sorts of rights and freedoms guaranteed by the law of the Union.1 According to long established case law of the CJEU (Court of Justice of the European Union (formerly the Court of Justice of the European Communities), unless specified, access to justice is one of the constitutive elements of a Union based on the rule of law. This is guaranteed in the treaties through establishing a complete system of legal remedies and procedures designed to permit the CJEU to review the legality of measures adopted by the institutions. The right to effective judicial protection has been accepted by the CJEU as a general principle of Union law, as influenced by the case law of the ECHR.. The CJEU has traditionally used the constitutional traditions common to the Member States and Articles 6 and 13 of the ECHR (Convention for the Protection of Human Rights and Fundamental Freedoms or European Convention on Human Rights as a basis for the right to obtain an effective remedy before a competent court).2 Advocate General Ruiz-Jarabo Colomer has stated in his Opinion in Roda Golf & Beach Resort SL that: Access to justice is a fundamental pillar of western legal culture. Therefore, the right 1

Access to justice in Europe: an overview of challenges and opportunities, a Report Prepared by the European Union Agency for Fundamental Rights in 2010, Page 17, http://europa.eu. 2 Ibid 3


to effective legal protection is one of the general principles of EU Community law, in accordance with which access to justice is organized. Access to justice entails not only the commencement of legal proceedings but also the requirement that the competent court must be seized of those proceedings.3 In other words, one may logically deduce from the above quote that, access to justice must be much more than a mere formal possibility, it must also be feasible in practical terms. Within the EU legal order, the right to effective legal protection equally covers access to the EU courts (here, the Court of Justice and the General Court), as well as access to national courts and tribunals for the enforcement of rights derived from EU law.4 When we look in to the case of Kenya, the Constitution of Kenya has widely envisaged access to justice as one of the core principles in entrenching fair practice both in criminal and civil proceedings. An appraisal of the situation in Kenya however shows that whereas state bodies are directly involved in provision of legal aid, their limited scope or mandate and capacity make Non-governmental Organizations and other experts crucial in providing this essential service. In this regard, the constitution of Kenya has played a pivotal role in guaranteeing the right to access to justice. Accordingly, Article 48 of the Kenyan Constitution ensures the provision of Access to justice for all. Article 49 of the same constitution expresses the Rights of an arrested person. The same constitution on its article 50 envisages the provision of Fair Hearing and Rights of persons detained, held in custody or imprisoned is guaranteed under Article 51 of the same constitution.5 In Australia the issue of guaranteeing the right to access to justice has passed through intensive and periodical reforms over long period of time. Since the 1990s, the country has engaged its legal system in several important reviews about access to justice. The following are the major reforms undertaken by the Australian government: 1. Access to Justice: An action plan – The Access to Justice Advisory Committee Report (1994): In 1993, the then Attorney-General Michael Lavarch and Minister for Justice Duncan Kerr commissioned an advisory committee led by Ronald Sackville QC, later a judge of the Federal Court of Australia, to consider ways in which the legal system could be reformed in order to enhance access to justice and make the legal system fairer, more efficient 3

Ibid Ibid 5 Karol Limondin, „Access to Justice and Legal Aid in East Africa,‟ Danish Institute for Human Rights (DIHR), (2011), Page 1 4

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and more effective. The Committee took a broad view of access to justice and looked at a range of court based and non-court based issues, including regulation of the legal services market, legal aid, ADR, court fees, case management, legislation and provision of information.6 2. Access to Justice: Final Report (United Kingdom) (1996): A major review of the rules and procedures of civil justice courts in Australia, England and Wales undertaken by then Master of the Rolls, the Right Honourable the Lord Woolf (later Lord Chief Justice of England and Wales). The Woolf Report (as it came to be known) was focused on access to justice issues in litigation and the court system. It made detailed recommendations on all aspects of case management and court rules and procedures. 3. Managing Justice: A review of the federal civil justice system – Australian Law Reform Commission Report No 89 (1999): The Managing Justice Report was the end product of a comprehensive inquiry by the Australian Law Reform Commission (ALRC) into access to justice. Specifically, the ALRC was to make recommendations with a view to developing a „simpler, cheaper and more accessible legal system‟. The ALRC was charged under its terms of reference with focusing largely on court practices and procedures and case management in Commonwealth courts and tribunals, but the report also looked at legal assistance - including pro bono work and legal aid commissions.7 4. Federal Civil Justice System Strategy Paper (2003): The Federal Civil Justice System Strategy Paper was prepared by the Attorney-General‟s Department as a response to the ALRC‟s Managing Justice Report. The Strategy Paper‟s stated purpose was to make recommendations for short-term improvements to the federal civil justice system and to raise some longer term issues for further consideration.8 The Strategy Paper looked at a broad range of access to justice issues, primarily looking at keeping disputes out of court and ensuring that disputes that do reach court are resolved as efficiently and cheaply as possible.9 5. Civil Justice Review- The Victorian Law Reform Commission Report (2008): In May 2004, the Victorian Government released a Justice Statement, which 6

A Report on A Strategic Framework for Access to Justice in the Federal Civil Justice System, (2009), ISBN97192124191, PP. 13-15 http://www.ag.gov.au/cca 7 Australian Law Reform Commission, Managing Justice: A review of the federal civil justice system, Terms of Reference, Report no 89, 1999. 8 Attorney-General‟s Department, Federal Civil Justice System Strategy Paper, Executive Summary, http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_FederalCivilJusticeSystemStr ategyPaper December2003 . 9 Ibid 5


outlined directions for reform of Victoria‟s justice system. The Justice Statement set out broad directions for both the civil and criminal justice systems in Australia, including for the civil justice system that: courts be made more accessible, especially for those in regional areas and those from multicultural or Indigenous backgrounds; technology be used more to improve the efficiency of service delivery and information provision; civil disputes be able to be resolved earlier by increasing access to out-of-court dispute resolution and more low level intervention, and; The legal profession be reformed to make it more efficient, accountable and responsive to consumer needs.10 When we deal with the historical background of Access to Justice in India, Access to Justice Dates back to Ramayana era where it was duty of the emperor to give justice to its citizens and the citizens always had access to the king. Similarly, this principle has found reference to the era of Upanishad where there is a law governing king of kings and the same was also enshrined in the Kautilya Arthashastra.11 Refer to the following periods in the history of India regarding the evolution of access to justice in particular and the legal system in general: during the Vedic Period12, the Maurya period13 and the Mughal Period.14 During the British Rule, however, India adopted a common law system. When the country became independent on 15th August, 1947 it adopted a written constitution where the principles of natural justice like liberty and equality were enshrined in its principle. For instance, Part 3 of the constitution guarantees fundamental rights to all. Besides, Article 13.2 states that the state shall not make law which infringes the rights of the citizens while Article 19 gives fundamental rights with regards to privacy, liberty and so on. Moreover, Article 21 states for Right to Life and Education. However, it is Article 32 of the Indian Constitution, which is called by Austin as conscience of the constitution as it allows the citizens to move to Supreme Court and High Courts under Article 226 in case of violation of the fundamental rights. When we come to the evolution of access to justice in Ethiopia, there has never been much development of the concept before the promulgation of the FDRE constitution, which extensively rules on the right to access to 10

Ibid Harshvardhan, Naina Jindal, Access to Justice for All- the case of the Indian Justice System: An Overview, PP. 2-6. 12 D.D. Agarwal, Jurisprudence in India: Through the Ages, P. 37 13 Angela Tang, Comparative Analysis of Certain Criminal Procedure Topics in Islamic, Asian, and Common Law Systems. https://law.wm.edu/academics/.../Analysis of Certain Criminal 14 D.D. Agarwal, Jurisprudence in India through Ages, Islamic Jurisprudence, P. 157. 11

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justice directly by defining „justiceable matter‟ on it Article 37 and by enumerating all the necessary provisions that will realize access to justice to various groups of persons such as women, Children, the Elderly, Accused persons, Arrested persons and so on. In addition to the constitution, the FDRE government has also promulgated adequate number of other proclamations that cherish the right to access justice institutions such as the Criminal code, the Civil and Criminal Procedure laws and all the government since 1991 has ratified international instruments (article 13 of the FDRE constitution dictates that all ratified conventions are assimilated to be the law of the land) that incorporated golden principles on the rights to access justice institutions. Finally, it should be mentioned that the challenges of access to justice in Ethiopia are not related to lack of adequate legal framework to that effect but other problems related to various factors we will deal with in chapter four of this study. When we come to access to justice research in Ethiopia, the lion share of the roles is played by the Center for Human Rights of the Addis Ababa University which has conducted around nine research paper in relation to access to justice. However the studies are mainly conducted on national level and in relation to the FDRE constitution.15 1.1.2 Historical Debates on Access to Justice After having discussed the background of Access to Justice in the legal systems mentioned above, now let‟s try to review the historical debate on Access to Justice as follows: The notion of access to justice is recognized in the constitutional laws of many countries in the forms of legal aid, the right of access to a judicial process, and the right to have appropriate legal remedies. However, if one investigates deeper into the history of its theoretical development, access to justice is a broader and more complicated concept than those specified in these constitutional laws. Let us start by reviewing the Main Points from the Nineteenth Century. In the past it is clearly evident that, whether or not they were officially sanctioned by the state, caste systems have been prevalent in one form or another in virtually all societies throughout human history. In traditional societies, each individual understands and accepts their rights and duties which are determined by society based on their birth. In pre-Meiji Japan for 15

Refer to the material developed by Pietro S. Toggia (Prof.), Thomas F. Geraghty (Prof.), and Kokebe W. Jemaneh, Access to Justice in Ethiopia: Toward an Inventory of Issues, Center for Human Rights, Addis Ababa University (2014). 7


example the caste system was comprised of samurai, the ruling class, the farmer, the artisan and the merchant. Another example of these systems which is still deeply rooted in society and which has survived to the present day is the caste system of India. Under that system, members of society are divided into four distinct classes, namely the Brahmin, Kshatriyas, Vaishyas and Shudras in order of their place in society, modes of materials, natures and their professions. When a society industrializes and law in its modern sense becomes widely accepted, the traditional concept of society assigning different rights and duties to members of society on the basis of their birth is viewed as inherently unjust. There emerges the Rule of Law or Rechtsstaat under which it is though that the law should be born of rationale thought and can be universally and equally applied to every member of society. From this standpoint, a thought on modern law which gives substantial focus and importance to various kinds of rights, has been developed.16 Every person irrespective of their birth, gender, age, race, nationality, occupation, income, sexual orientation, social status or station in life, must be afforded the same rights and protection under the law. These are commonly known as equal rights which were the driving force behind the birth of the access to justice concept in the early nineteenth century. As a result, there were a large number of legal reforms in many countries aimed at improving laws to make them easier to understand and apply and at providing a universally applicable judicial process that could be accessed by all citizens. However, the outcomes of these early legal reforms have not been so satisfactory. At that time, it seemed only the middle class of the society benefitted from the improved access to equal justice while the lower classes of society received little benefit from these new legal modifications. For instance, it is commonly reflected by statistics that those who exercised their legal rights through judicial processes in both civil and criminal cases mostly came from the members of the middle class such as tradesmen or technicians. This is because these were the only groups whose members could afford the cost of the judicial process. Thus, the initial attempts to establish a rational structure of law and equal justice still contained the remnants of traditional social stratifications, maintaining an invisible barrier between certain groups of the population (the poor and working class) and the judicial process.17 The initial focus of various endeavors on access to justice throughout 16

Cappelletti, Mauro and Bryant Garth, Access to Justice: The Worldwide Movement to Make Rights Effective - a General Report, Access to Justice: A World Survey (vol. 1, book 1), (1978). 17

Ibid 8


legal systems was on legal representation. The notion of access to justice became a strong influence on legal reform in the early 1960s. It began with the idea of providing assistance to the poor to enable them to participate in the judicial process. Such assistance took the form of state funded legal aid agencies providing free legal representation and advice to the poor. The view of the time was that the poor had no financial means of litigating and lacked adequate legal knowledge to protect their legal rights. Due to this, they were often at a disadvantage when they were involved in the judicial process. To comply with the modern idea of law where every individual is treated as having the same legal rights and protections, states came to be viewed as having an obligation to provide necessary assistance to those members of the population who could not afford due legal representation in the judicial process. Such a state duty was largely influenced by the concept of the welfare state where the government should provide social services for its citizens.18 Throughout the 1960s, many other public activities and state measures were duplicated around the world to implement the notion of access to justice. For instance, Germany and England were the first countries that provided free legal representation to the poor in 1919 and 1949 respectively. In the United States in 1965 the Legal Aid Service Program was introduced. Sweden follows by issuing its “public legal aid law” in 1972. In addition, Germany, Austria and the Netherlands also responded to the access to justice trend by amending their laws to make it the state‟s responsibility to give appropriate compensation to public defenders to encourage voluntarism from the legal community to provide legal services to the poor in the spirit of the legal aid program.19

1.2 Statement of the Problem The challenges of access to justice have always been there since time immemorial. Especially at the present time, in due course of a globalized life, it is inevitable that different people mingle or associate themselves one another for different reasons and thereby face different legal problems. Though there might be different varieties and magnitudes of legal problems faced by citizens of a nation, basically, the legal needs and the challenges that have to be overcome to remedy them, in rural communities like those in the Arsi zone of the Oromia Regional State will be quite dissimilar to its counterpart in urban or suburban communities. However, regardless of their geographical placement, in both types of legal problems or disputes 18 19

Ibid Ibid 9


encountered (urban or rural) there are equally important and pressing needs of society to alleviate them (either formally or informally) or otherwise if let unsettled they will have deep impact on everyday life. In line with this, if one defines, access to justice as a commonly applied process (mostly formal) that people address in order to cope up with their legal problems; the challenges associated with the course of accessing justice (formal or informal) are sorted as the challenges of access to justice. In this regard, the challenges encountered by a disputant in due course of accessing a court procedure in the Arsi Zone of the Oromia Region can be taken as an obvious example of the subject matters of this research work. These challenges mentioned above, that have to be overcome by a person who faced legal problems, are numerous, of many types, and are related with various other, background factors. Otherwise stipulated, we are not simply talking about those faced once a claimant has reached the court. Rather, the challenges may begin from the home of that particular person or the various personal factors related with him or her to properly access justice institutions. For instance, the beginning of the path to access justice, in the first place, may be to know where to go when one faces legal problems. This in turn may depend on different factors such as literacy of that individual, his culture, distance, and ways of life and so on. To finally be able to pass all this problems, reach to the court, present his claim and get a proper court verdict (still being the other integral segments of the challenges of access to justice) being another thing. It is only prudent to mention that the idea that led the author to this research came from the recommendations of judges and legal practitioners during an informal visit in local courts in the study area. Access to justice in these areas is blocked by a number of factors. Firstly, the fact that all researches on this subject never cross the comfort of urban reality makes it difficult for policy makers to come up with any tangible solutions. In addition, preliminary studies suggest factors like lack of qualified man power, budget, law moral, corruption, and the public‟s attitude and understanding of the justice system as major contributors of the problem. For many university graduates, the prospect of leaving the comfort of city life and working in rural areas with the available financial incentive seems to be undesirable. Furthermore, for many legal professionals the justice system and mainly the Judiciary are used as a spring-board of young alumni to acquire experience before joining the private sector. In addition, if there is one problem that epitomizes of all legal sectors is the lack of budget. Moreover, the there is a huge congestion and backlogs of cases. According to official reports, the average time to decide a case at the first instance court is around 6 months, which appeals taking an additional 1-2 years. This time can expand significantly, however, for more 10


complicated cases. A visit to a prison tells the whole story. Prisons are overcrowded. Roughly speaking half of the prisoners have not been sentenced. Some are waiting a long time already for a court decision. By law this should happen within fourteen days. In practice, this may take months and sometimes years due to the backlog at prosecutors‟ offices. Some are held in prisons pending further investigation requested by the prosecution. Here again the case may take weeks or months before an answer is sent to the prosecutor and the investigation can thus be completed. Finally, the gap between the law and practice has hindered access to justice. The law is often uncertain because of delays in consolidation, lack of codification and imperfect knowledge of proclamations and courts decisions by the practitioners. But even when the law is known, it is not often strictly implemented. Rules of procedure are ignored. In criminal cases, this leads for instance to suspects being kept in prison far beyond the legal maximum period of fourteen days, sometimes for a very long time. Faulty implementation of the law by judges, the Prosecution Service and the police amounts, in some cases, to a denial of justice, procedural confusion and opens the door to corruption.

1.3 Objective of the Study 

General Objective: the general objective of this research is identifying the real barriers or challenges which people in the selected areas of Arsi zone face in due course of accessing the Justice Institutions.



Specific Objectives: the following are the specific objectives of the study: -

To assess the gaps in the laws affecting the right of access to justice.

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To identify the role of the different stakeholders (i.e., the government, judiciary, lawyers, and society) in the promotion of access to justice.

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To Pin point possible solutions which help to tackle the problems appearing as barriers of access to justice.

1.4 Significance of the Study The significance of this research should be seen in light of the beneficiaries i.e., the providers of justice, policy makers, and users of justice. Providers of justice should be interested since the research provides a detailed description of the methodology for measuring the costs and quality 11


of access to justice and the current statues of such in the study area. Different categories of providers of justice could be benefited - courts, justice offices, prison administrations, CSOs, police stations, victim support organizations, and so on. Policy makers might find it useful to learn how to measure access to justice and the reality on the ground. Public resources are scarce and, often times, the policies must strike a balance between what is desirable and what is possible. Measuring the cost and quality of access to justice could be used for the drafting and implementation of evidence-based policies directed towards resolution of the disputes in a society. Ministries of justice, judicial councils, and similar institutions formulate and implement the national policies in the fled of justice are good examples of beneficiaries. Finally, users of justice or the people of the study area could find practical advice on how to gauge and analyze their experiences of the justice system in a systemic manner. Ultimately, the objective of this research is to come up with recommendation on how to improve the problems of access to justice in the study area. Therefore, this research could be a stepping stone to further action by all interested parties including the public.

1.5 Scope or Delimitation of the Study This research is, in effect, delimited to study the challenges of access to justice in the Arsi zone of the Oromia Regional State. Hence, it will not be the concern of this study to deal with issues other than the challenges of access to justice and outside the mentioned zone. Geographically delimited, this research emphasizes only on the Arsi zone of the Oromia Regional State with particular emphasis to the weredas of Munesa, Shirka, Arsi Robe, Sude, and Tena. Accordingly, Arsi is one of the zones of the Oromia Region in Ethiopia. Arsi is also the name of a former province. Arsi is bordered on the south by Bale, on the southwest by the West Arsi Zone, on the northwest by East Shoa Zone, on the north by the Afar Regionand on the east by West Hararghe. The administrative center of this zone is in the town of Asella. Other towns in this zone include Abomsa, Assasa, Bokoji, Sagure, Kersa, Dhera, Etaya, Arsi Robe, Huruta etc. The following are the weredas found in the Arsi zone: Amigna, Aseko, Assela, Robe, Sire, Sherka, Bale Gasegar, Seru, Tena, Sude, Gololcha, Merti, Guna, Jeju, Chole, Munesa, Hitosa and so on. Arsi Zone is found in the central part of the Oromia National Regional State. The zone astronomically lies between 60 45‟ N to 80 58„N and 380 32 E to 400 50‟ E. It shares borderlines with the Regional State of Nations, Nationalities and People of Southern Ethiopia and also shares borderlines 12


with East Shewa, Bale and West Hararge Zones. The total length of the boundary line is about 1050km. The Zone has the longest borderline of 450km with East Shewa Zone accounting about 43 percent of its total boundary length. It has the second longest line (350km) with Bale Zone. It shares the least borderline (43km) with the Regional State of Nations, Nationalities and People of Southern Ethiopia. Assela is the capital town of the Zone. It is located at 175 km from Finfinne on Finfinne-Adama-Bale Robe main road. Also Assela is located at 75 km south of Adama town. Having the total area of 23881 Km2, it accounts for about 7 percent of the total area of the Regional State of Oromia.

1.6 Research Methodology and Methods of Analysis A. Targeted Institutions and persons To examine the extent of the problem of access to justice, the targeted institutions and persons should include firstly the Courts followed by other stockholders in the justice system including the public prosecutor, the justice offices lawyers, the police and the clients at large. To this end, the researcher intends to include the Wereda Courts in Munesa, Shirka, Arsi Robe, Sude and Tena. In addition, the public prosecutor‟s office or justice office and police of these areas will be the subject of the research. In terms of the targeted population the public at large who is the user of the justice service in the mentioned weredas is included in this study. B. Sources of Data In order to get reliable and valid information, the researcher will use 13


both primary and secondary data. The primary data will be collected through questionnaire, observation checklist, and key informant interview with selected individuals and officials. Secondary data will be collected from published, unpublished documents, annual reports, journal articles, books, newspapers, and other web related materials. In addition, the researchers will utilize proclamations, regulations, directives, foreign legislations and cases. C. Data Collection Instruments In order to accomplish the intended research work, the researchers will employ three instruments of data collection methods (questionnaire, interview and observation). Multiple instruments of data collection are used to overcome the short coming of each. D. Methods of Data Analysis The data which is collected from primary and secondary sources will be analyzed, summarized and presented both through quantitative and qualitative methods of data analysis. Data which is collected through questionnaire will be analyzed, summarized the data which is gathered through interview, observation and some of open ended questions from questionnaire parts will be analyzed qualitatively. These being the main elements to identify the challenges of access to justice, the researcher also tried to employ internationally set standards (by country best practice models) to measure the subject matter of this study in the study area. Basically, access to justice is an issue subjected to an international exposure which is not only the problem of countries like Ethiopia but also the developed ones. Hence, the researcher, by using various tools of gathering information, tried to measure the challenges of access to justice, by conducting Holistic measurement of access to justice in the study area, by taking in to consideration international requirements to measure access to justice.

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Chapter Two 2. Review of Related Literature 2.1 Definition and Conceptual Analysis of Access to Justice Access to justice as a notion seems an easy concept to define. However, as has been repeatedly observed from literature, though not illusive per se, it is very difficult to quantify or coin an objective or full-fledged definition for the notion access to justice. Simultaneously, this does not also imply that access to justice is a concept that has, absolutely, run out of a definition. Accordingly, it will be the main purpose of this chapter to deal with the various definitions of access to justice coined from various perspectives by different scholars, laws, dictionaries and so on. Access to justice, when defined in a literal parlance, is the outcome of the summation of two words, which are “access” and “justice”. According to the lexical definition of these words, the term “access” implies an opportunity or ability to enter, pass to and from, or communicates with something whereas, the term “justice” refers to the fair and proper administration of laws. Hence, the cumulative definition of both words convey the meaning that access to justice is the ability to communicate with the institutions that are destined to properly and fairly administer justiceCourts of law.20 In line with the above definition, the meaning of the term access to justice is intricately intertwined with the meaning of the term “justice”. On its turn, the definition of justice depends on the context it is being used. For every society the term has a different significance. For some it may be fairness whereas others might term it as advantage of the stronger. The notion of justice evokes the cognition of the rule of law, of the resolution of conflicts, of institutions that make law and of those who enforce it; it expresses fairness and the implicit recognition of the principle of equality.21 However, a concept common to all definitions of justice is its intrinsic nexus with the dispute resolution. The primary goal of a dispute resolution mechanism is to do justice, yet dispute resolution and justice cannot be used interchangeably. The dispute resolution mechanism chosen by a 20

Bryan A. Garner, Black‟s Law Dictionary seventh edition, ST. Paul MINN Publishers., 1999 21 Health and Access to Justice, PP. 2-3.

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society reflects the concept of justice in that society. In the common parlance, the term “access to justice” is used synonymously with the access to dispute resolution mechanisms provided by the State. Earlier, a right of access to judicial protection meant essentially the aggrieved individual„s formal right to litigate or defend a claim. The rationale given for such narrow approach to access to justice was that though access to justice was a natural right, natural rights did not require affirmative state action.22 However, in the recent theories, with the emergence of the welfare state, the right to access to justice has gained grounds. Thus from a passive right, the right to access to justice has become an effective right wherein not only the right to litigate or defend a claim, but also the right to access such forums and have parity of power with the other litigants. However one should not confuse access to justice with access to courts only. First, that it is the police and other public officials who are seen as the face of justice rather than the courts. For most people, access to justice is not the same as access to courts. For small disputes and disturbances people are likely to seek settlement from the police in the first instance. If we are to talk seriously about access to justice we must discuss access to an entire justice system - police, prisons, prosecution, and service of process, adjudication, ADR, and enforcement of judgments - that is fair and efficient. The concept of 'access to justice' has two significant components. First is a strong and effective legal system with rights, enumerated and supported by substantive legislations. Other is a useful and accessible judicial or remedial system easily available to the litigant public.23 The concept of access to justice, primarily, necessitates a potential system securing appropriate legal remedies within the Civil and Criminal justice fields. Judiciary, being an integral part and parcel of an effective judicial system, has a greater role in ensuring access to justice. As per V.R. Krishna Iyer, the former Judge of the Supreme Court of India, access to justice, which is fundamental in implementation of every human right, makes the judicial role pivotal to constitutional functionalism.24 According to a scholar named Ani Comfort Chinyere, Access to justice refers to the substantive and procedural mechanisms existing in any particular society designed to ensure that citizens have the opportunity of seeking redress for the violation of their legal rights within the legal system. The scholar further emphasized that, access to justice focuses on the existing rules and procedures to be used by citizens to approach the courts 22

Ibid Ibid 24 Ibid 23

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for the determination of their civil rights and obligations.25 In addition, the scholar further mentioned that, it may also be considered as the ability of people from disadvantaged groups to prevent and overcome human poverty by seeking and obtaining a remedy, through the justice system, for grievances in accordance with human rights principles and standards. The scholar finally added a point that one of the prerequisites of a system that assures access to justice is that the judiciary must be independent. An independent judiciary is the most effective guarantee that society has for ensuring constitutionalism, individual rights, law, order, and stability.26 From the perspective of social development access to justice can be defined as, the term used to denote the institutional and social conditions for the realization of rights. Besides, in international security and development policy, the term is used in various ways as a guiding principle for “good law” and “good justice,” and, for actors in these sectors, it has assumed central importance in their concepts and programs.27 Per the dictations of the sociological perspective, which has been expanded through a legal, cross-cultural perspective of access to justice, Access to justice has taken on a broader meaning. Accordingly, regarding access to the courts and improvement of judicial conflict resolution, the term refers to the institutional side of realizing justice, and thus to the rights of the individual and the necessary preconditions for assuring them. In practice, this also includes having a sufficient number of courts, appropriate duration of proceedings, education and training for judges, and education of the public about legal rights.28 Still, regarding access to justice and an appropriate law, the term „Access to Justice‟ refers not only to the internal legality of formal justice but also to the justice that is expressed in the normative order of each society and that shapes its practices and forms a normative ideal parallel to the law. In terms of this second meaning, the deficit injustice appears ever greater to the extent that the evaluations and decisions made with reference to the standards of the law deviate more and more from the ideas of justice shared 25

Ani Comfort Chinyere, Access to justice in the Nigerian Civil and Criminal Justice systems, Centre for Conflict and Dispute Resolution, Nigerian Institute of Advanced Legal Studies, PP. 1-2 [email protected] 26 Ibid 27 United Nations Development Program (UNDP), Access to Justice. Practice Note, 2004, Page 3. 28 Ebd. S.a. Access to Justice in sub-Saharan Africa: The role of traditional and informal justice systems, Penal Reform International, (2000), Page 21. 17


by the community.29 In its 2004 Practice Note “Access to Justice”, the United Nations Development Program referred to the following two definitions of this term as seen by the international donor community: The first definition narrates that: Access to Justice is a basic human right as well as an indispensable means to combat poverty, prevent and resolve conflicts.30 Per the above definition, to the extent that the notion of Access to Justice establishes a human right, its promotion is a goal of international engagement in its own right. To the extent that it is viewed as a structural precondition for development, it constitutes a milestone. In this sense, Access to Justice stands for a reform of the law and justice sector, which must consider, in addition to penal law, people‟s civil claims against one another and also the area of legal protection from the state. For this reason, it is in no case sufficient to merely consider the institutional side. The second definition, among other things emphasizes on the efficiency or quality of services provided by the courts in that: Access to justice is … much more than improving an individual’s access to courts, or guaranteeing legal representation. It must be defined in terms of ensuring that legal and judicial outcomes are just and equitable.31 On the other hand, the term access to justice does not only refer to an access to the formal system of dispute settlement but also the access to the informal or extra-judicial mechanisms of dispute settlement. In an endeavor to emphasize on the access to justice to the informal system, the Guiding Principles for Stabilization and Reconstruction disseminated by the United States Institute for Peace (USIP), Access to Justice as follows:

29

World Bank, World Development Report 2011: Conflict, Security, and Development, P. 147. http://go.worldbank.org/ SMIKY7M6O0 und http://go.worldbank.org/ BMAOUIM5K0 30 United Nations Development Program (UNDP), Access to Justice. Practice Note, 2004, P. 3. 31 Ibid 18


Access to Justice is a condition in which people are able to seek and obtain a remedy for grievances through formal or informal institutions of justice that conform with international human rights standards, and a system exists to ensure equal and effective application of the law, procedural fairness, and transparency.32 From the perspective of the importance of access to justice to the society and in a way providing an otherwise definition, Mr. Matthias Kötter, defined the concept as: There is no access to justice where citizens (especially marginalized groups) fear the system, see it as alien, and do not access it; where the justice system is financially inaccessible; where individuals have no lawyers; where they do not have information or knowledge of rights; or where there is a weak justice system. Access to justice involves normative legal protection, legal awareness, legal aid and counsel, adjudication, enforcement, and civil society oversight. Access to justice supports sustainable peace by affording the population a more attractive alternative to violence in resolving personal and political disputes.33 In another dimension of the concept, as the UN Special Rapporteur on extreme poverty and human rights observes „access to justice‟ does not simply correlate with the ability to invoke one‟s rights, it also encompasses the substance of those rights. In this regard the document states that: [M]any laws are inherently biased against persons living in poverty, do not recognize or prioritize the abuses they regularly suffer, or have a disproportionately harsh impact on them… For example, in many legal systems, economic, social and cultural rights are not sufficiently protected, and discrimination on the grounds of socioeconomic situation is not recognized. Similarly, issues such as abuses in the informal employment sector or the exploitation of tenants by landlords, all of which disproportionately affect persons living in poverty, are often not legislated against in an effective manner. Meanwhile, actions which are undertaken by persons living in poverty out of necessity, such as sleeping in public spaces or street vending, are criminalized. Hence, reforms aimed at improving access to justice by the poor must not neglect the 32

USIP, Guiding Principles for Stabilization and Reconstruction, (2009) P. 7-65. Matthias Kötter, Better Access To Justice By Public Recognition of Non-State Justice Systems?, Max Planck Institute for European Legal History, research paper series No. 2015-02, PP. 7-8 http://ssrn.com/abstract=2559077 33

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need to modify or repeal certain laws or strengthen others.34 As per the traditional (the narrow view) understanding of access to justice, courts are the central „suppliers‟ of justice. To some extent that remains true. Courts are ultimately the arbiters of legal issues, able to declare what the law is, what the rights and obligations of parties are and enforce those declarations. Accordingly, access to justice is seen, among other things, as: (1) Equal access to legal services (that is, lawyers and legal aid) and courts. It should be achieved by providing financial assistance and other legal aid services. (2) Correcting structural inequalities within the justice system; that is, changing the law, court procedures and legal practice to make access to justice more meaningful. This includes, for example, changing court procedure to make it less traumatic for victims. It also includes improving court processes for resolving disputes- streamlining the civil litigation system. Also ‘de-mystifying’ the law through, for example, plain language drafting and community legal education. and (3) An emphasis on informal justice and its importance in preventing disputes from occurring and escalating- including greater use of non-adversarial alternatives to legal justice, such as alternative dispute resolution (ADR).35 Mr. Omar Kalinge-Nnyago, on his part expressed access to justice from the dimension of international law as, the term Access to Justice is not defined in international law and has been used in different ways in different contexts. Traditionally, the term refers to opening up the formal systems and structures of the law to disadvantaged groups in society. This includes removing legal and financial barriers, but also social barriers such as language, lack of knowledge of legal rights and intimidation by the law and legal institutions. According to his view, Access to justice has, thus, two dimensions: procedural access (having a fair hearing before a tribunal) and 34

Report of the Special Rapporteur on extreme poverty and human rights, A/67/278 (2012), paragraphs 28 and 29. As quoted in Liam Thornton and Judy Walsh, The ECHR, Socio-Economic Disadvantage and Access to Justice, Page 1. http://www.bloomsburyprofessional.com/ie/ireland-and-theeuropeanconvention-on-human-rights-60-years-and-beyond-9781780434728 35 A Report on A Strategic Framework for Access to Justice in the Federal Civil Justice System, (2009), ISBN 978 1 921241 91, pp 5-12. 20


also substantive justice (to receive a fair and just remedy for a violation of one‟s rights). Further, protection of rights must continue through all stages of the legal process, from the time of reporting a crime to the police, to following the grant of a remedy by the court to make certain that it is enforced.36 In another scholarly definition, Mr. Nlerums Okogbule tried to express the concept from two perspectives- the narrow and the wider senses. According to him, in the narrow sense of the term, it can be said to be coextensive with access to the law courts while in the wider connotation it embraces access to the political order, and the benefits accruing from the social and economic developments in the state. Furthermore, he argued that, generally speaking, access to justice implies access to social and distributive justice. It is however important to underscore the point that, these perspectives are not necessarily disconnected since the extent to which one can have distributive justice in any system is largely determined by the level and effectiveness of social justice in the country. The consequence of this is that any discussion of one aspect of the concept will necessarily entail a reference to one or more components of the other. This is because without access to justice, it is impossible to enjoy and ensure the realization of any other right, whether civil, political or economic.37 From this idea of the scholar, one may therefore say that access to justice simply refers to the substantive and procedural mechanisms existing in any particular society designed to ensure that citizens have the opportunity of seeking redress for the violation of their legal rights within that legal system. It focuses on the existing rules and procedures to be used by citizens to approach the courts for the determination of their civil rights and obligations. Additionally, the scholar further illustrated that while one tries to understand the concept of access to justice, she or he should consider that access to justice is not limited to the procedural mechanism for the resolution of disputes but includes other variables like the physical conditions of the premises where justice is dispensed, the quality of the human and material resources available thereat, the quality of justice delivered, the time it takes for the delivery of justice, the moral quality of the dispenser of justice, the observance of the general principles of the rule of law, the affordability of the cost of seeking justice in terms of time and 36

Omar Kalinge-Nnyago, Access to Justice in Muslim Informal Justice Centers, Baseline Survey Report Kampala and Butambala Districts Uganda, Muslim Centre for Justice and Law, (2012), Page 30. www.mcjl.ug 37 Nlerum S. Okogbule, Access to Justice and Human Rights Protection in Nigeria: Problems and Prospects, page 2-3. 21


money, the quality of the legal advisers that assist the litigants, the incorruptibility and impartiality of operators of the system.38 Therefore, it is apparent from the above definition that access to justice is a charged concept that embraces the nature, mechanism and even the quality of justice obtainable in a society as well as the place of the individual within this judicial matrix. In line with this, it is also important to underscore the fact that access to justice is undeniably an important barometer for assessing not only the rule of law in any society but also the quality of governance in that society. This brings to focus the present refrain about transparency, accountability and good governance as an effective panacea for socio-economic development. While quantifying the relationship as between justice and an access to it, the scholar further argued that, while justice itself is an elusive concept, it can loosely be said that it implies equity and fairness; and for there to be meaningful access to justice, there must be some element of fairness and equity in a system to guarantee the realization of basic fundamental rights. Moreover, to enhance access to justice in any society it is necessary for certain basic infrastructures to be put in place and the requisite number and quality of the personnel involved in the scheme. For instance, where the courts are not sufficiently manned, or manned by men and women who are morally depraved, then such a State can hardly guarantee social justice to its citizens. Indeed, corrupt judicial officers may very well act as serious impediments to the attainment of justice even where the infrastructures and legal instruments are well-wrought and structured.39 According to another scholarly view, making justice more accessible means to improve, assist and develop individual and group access to law and justice which supports economic and social development. It must give the poor the opportunity to assert their rights without their economic status or lack of financial capability hindering them to be heard or even just approach any branch or instrumentality of the government under the justice system. Increasing accessibility to courts lessens and overcomes the economic, psychological, informational and physical barriers faced by women, indigenous populations, and other individuals who need its services.40

38

Ibid Ibid 40 Erika Mae U. Gumabol, Justice for all: is the Action Program for Judicial Reform Effective in Contributing to Better Access to Justice by the Poor? University of the Philippines Manila College of Arts and Sciences, PS 153: Judicial Law, PP. 4-7. 39

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In line with this, access to justice encompasses three major components: convenience, availability and affordability. Convenience is not limited to the “ease in physically reaching the starting point of service and in receiving the necessary service”. It‟s also when one‟s time and efforts are not wasted due to long lines, delays, cancelations of proceedings etc. and too much requirements plus facilities and instrumentalities that needed renovation and replacement long time ago. Availability means the presence of proper courts near the complainant‟s or plaintiff‟s place or the geographical proximity and accessibility of service and of lawyers. Affordability is another because justice system mustn‟t be cost prohibitive. Moreover, access to justice involves the right to be effectively heard, and there‟s also the aspect of trust whether the judge is known to be just or corrupt, or whether they believe that true justice will be served by any government instrumentality.41 Mr. Justice Brennan has explained the consequences of lack of access to justice in the following quotation as: Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But, injustice makes us want to pull things down. When, only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it, because, its expense puts it beyond their reach, the threat to the continued existence of free democracy is not imaginary but very real, because democracy's very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness.42 A study published by scholars, Julinda Beqiraj, Justine Stefanelli, and Naina Patel states that, Access to justice means, that, citizens are able to use justice institutions to obtain solutions to their common justice problems. For access to justice to exist, justice institutions must function effectively to provide fair solutions to citizens‟ justice problems.43 Every justice system should provide citizens with access to justice. Access to justice means, that, citizens are able to use justice institutions to obtain solutions to their common justice problems. Unless citizens can do this, the rights enshrined in laws and constitutions are meaningless. For access to justice to exist, justice institutions must function effectively to provide fair solutions to citizens‟ justice problems.44 The scholars further stated that, Access to 41

Ibid Mr. Justice Brennan, Access to Justice- Constitutional Dimensions, page 2. 43 Julinda Beqiraj, Justine Stefanelli, and Naina Patel, Measuring policy on access to justice and taxation in the United Kingdom, Bingham Centre Report 2015/01, March 2015, Page 9. www.binghamcentre.biicl.org 44 Ibid 42

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justice is an evolving concept that includes the following elements: The ability to gain access to forums in which matters of rights and law are adjudicated or otherwise processed. Judicial, administrative and other justice institutions are of no use to persons who cannot get through the doors of a courthouse or another forum. Laws are just words if not enforceable. Ensuring access to justice serves two complementary overarching purposes. First, access to justice is an indispensable means of addressing injustices where they occur. For this to hold true, the system should be equally accessible to all and should lead to results that are individually and socially just. Secondly, guaranteeing access to justice for all groups of society, can serve the purpose of preventing injustices from arising in the first place.45 Improving access to justice is generally among the core objectives of any legal system and a central one in the context of legal reforms. Nevertheless, a typical legislator does not normally provide a definition of access to justice and this can increase the challenge of identifying minimum threshold levels of access to justice in the context of particular policy objectives.46 The scholars further argued that a comprehensive concept of access to justice should cover different stages of the process of obtaining a solution to civil, criminal or administrative justice problems. The concept begins with free access to information about the existence of rights enshrined in laws, which are ideally simple and understandable to the public. It then continues on to reflect the availability of, and access to, legal advice and representation, and access to complaints and dispute resolution mechanisms. Finally, the notion of effective access to justice extends to include the ability of such mechanisms to provide fair, impartial and enforceable solutions to legal problems.47 Access to justice refers to the ability of people, in particular people from disadvantaged groups to seek legal remedy through formal and informal justice systems consistent with human rights principles. Although, the informal and traditional mechanisms of justice are often more accessible for the disadvantaged people, informal justice systems can be less effective and often violate international human rights standards, such as gender equality, non-discriminatory treatment, and respect for the right to justice on the part of the defendant. Traditional and informal mechanisms of justices are more prevalent in developing countries. While many people rely on the informal justice mechanisms, the formal justice system in some developing countries is also struggling with critical impediments which affect users‟ perception of the justice system and in turn, has an impact on people‟s 45

Ibid Ibid 47 Ibid 46

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reliance on the formal justices system.48 As per the understanding of a Nigerian Scholar, the notion Access to Justice refers to the substantive and procedural mechanisms existing in any particular society designed to ensure that citizens have the opportunity of seeking redress for the violation of their legal rights within the legal system.49 The definition conveys the message that the notion focuses on the existing rules and procedures to be used by citizens to approach the courts for the determination of their civil rights and obligations. Of course by the existing rules and procedures the scholar seems to refer to the major components of the formal justice systems such as the courts, the police and the state penitentiary system. The same scholar has tried to define the same concept from the view point of the peoples‟ ability to access the justice institutions as, Access to justice may also be considered as the ability of people from disadvantaged groups to prevent and overcome human poverty by seeking and obtaining a remedy, through the justice system, for grievances in accordance with human rights principles and standards.50 Here, one thing should be duly noted that, by the disadvantaged groups the scholar is trying to refer to those groups of persons who are generally considered by existing literature as vulnerable groups and in case of facing the challenges of access to justice their situation becomes worse. Accordingly women, children and the elderly are typical members of such group. Furthermore, the scholar concludes his remark by adding the point that, one of the prerequisites of a system that assures access to justice is that the judiciary must be independent. An independent judiciary is the most effective guarantee that society has for ensuring constitutionalism, 48

Women‟s access to justice, problems and challenges, Women and Children Legal, Research Foundation (WCLRF), 2008, P. 4-6. 49 Ani Comfort Chinyere, Access to justice in the Nigerian Civil and Criminal Justice systems, Centre for Conflict and Dispute Resolution, Nigerian Institute of Advanced Legal Studies, [email protected] , PP. 1-2 50

Ibid 25


individual rights, law, order, and stability.51 As per the view of the UNDP, Access to Justice is the term used to denote the institutional and social conditions for the realization of rights. In international security and development policy, the term is used in various ways as a guiding principle for “good law” and “good justice,” and, for actors in these sectors, it has assumed central importance in their concepts and programs. Newer approaches regarding access to justice within the organization particularly emphasize on support for informal, non-state justice systems and their integration into the super-ordinate legal system, mainly in state law.52 This definition of the concept seems an updated understanding of access to justice in that it emphasizes not only on the role of the formal system of adjudication (which was solely the case in the past) in assuring access to justice but also the pivotal role of the informal or extra-judicial system of dispute settlement, which are generally known as alternative mechanisms of dispute settlement. In addition to this the UNDP has tried to quantify the concept from the view point of the Legal-sociological perspective and portrayed a broader meaning to it as, The term access to the courts refers to the institutional side of realizing justice, and thus to the rights of the individual and the necessary preconditions for assuring them. In practice, this also includes having a sufficient number of courts, appropriate duration of proceedings, education and training for judges, and education of the public about legal rights.53 The UNDP document further elaborates that the term „Access to Justice‟ refers not only to the internal legality of formal justice but also to the justice that is expressed in the normative order of each society and that shapes its practices and forms a normative ideal parallel to the law.54 In terms of this second meaning, the deficit in justice appears ever greater to the extent that the evaluations and decisions made with reference to the standards of the law deviate more and more from the ideas of justice shared 51

Ibid United Nations Development Program (UNDP), Access to Justice. Practice Note, 2004, S. 3. 53 Ibid 54 Ibid 52

26


by the community. In the plans and programs of the World Bank, “justice” refers to the sum total of those legal institutions whose purpose is to enable order and conflict resolution and thereby promote economic development and the provision of public services, and also to enable the participation of the individual.55 For the “Justice for the Poor” program, which the World Bank has conducted since 2001, this is described as follows: “Justice for the Poor is a World Bank program that engages with justice reform as a cross-cutting issue in the practice of development, … is an approach to justice reform which sees justice from the perspective of the poor and marginalized, is grounded in social and cultural contexts, recognizes the importance of demand in building equitable justice systems, and understands justice as a cross-sectorial issue.56 In its 2011 World Development Report, the World Bank made “justice” one of three core priority areas - beside security and jobs - in which institutions should invest in order to prevent a relapse into violence and to form the basis for an effective and sustainable transformation beyond fragility and conflict.57 The report sees non-state legal and justice systems playing an important role so long as they can effectively manage conflicts at the local level and can be incorporated into a super-ordinate architecture of law and justice.58 In a way that encourages the harmonization of the combined efforts of both the formal and informal actors of the justice system, the 2009 “Guiding Principles for Stabilization and Reconstruction” disseminated by the United States Institute for Peace (USIP), defined Access to Justice as, 55

S. Deval Desai, Deborah Isser, Michael Woolcock, Rethinking Justice reform in Fragile and Conflict-Affected States: The Capacity of development Agencies and Lessons from Liberia and Afghanistan, in: The World Bank Legal Review, Vol. 3, International Financial Institutions and Global Legal Governance, edited by Hassane Cissé, Daniel D. Bradlow, Benedict Kingsbury, The World Bank 2012, S. 245. 56 World Bank, Justice for the Poor, Internet: http://go.worldbank.org/ SMIKY7M6O0 und http://go.worldbank.org/ BMAOUIM5K0 57 World Bank, World Development Report 2011: Conflict, Security, and Development, P. 147. 58 Ibid 27


access to Justice is a condition in which people are able to seek and obtain a remedy for grievances through formal or informal institutions of justice that conform with international human rights standards, and a system exists to ensure equal and effective application of the law, procedural fairness, and transparency.59 The Guidelines further elaborates access to justice and it more particularly states that: there is no access to justice where citizens (especially marginalized groups) fear the system, see it as alien, and do not access it; where the justice system is financially inaccessible; where individuals have no lawyers; where they do not have information or knowledge of rights; or where there is a weak justice system. Access to justice involves normative legal protection, legal awareness, legal aid and counsel, adjudication, enforcement, and civil society oversight. Access to justice supports sustainable peace by affording the population a more attractive alternative to violence in resolving personal and political disputes.60 In line with the above quotation, access to the justice system in the sense specified could only take place in a culture of lawfulness. A precondition for this is that the law is followed and that people actually make use of access to the courts. In turn, for this to occur, the legal system as a whole must be experienced as appropriate and its efficacy and accessibility must be trusted. An understanding should be developed that, increasing the opportunity to access to justice institutions is not always about an increase in quantity quality is very important when designing programs in the justice system because poor legal representation is not necessarily better than lack of legal representation. In deduction, the justice systems must be linguistically and culturally accessible.61 Mr. Lawrence M. Friedman, on his part stated that, today, when people talk about “access to justice,” it seems to me that they have a particular image in mind. They are thinking of a person, or an organization, with some sort of legitimate claim or complaint. However, the question is whether there is a 59

USIP, Guiding Principles for Stabilization and Reconstruction, 2009, PP. 7 65. 60 Ibid 61 United Nations, Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, Resolution adopted by the General Assembly, 30 November 2012, No. A/RES/67/1 (http://www.unrol.org/files/A-RES-67-1.pdf): “We acknowledge that informal justice mechanisms, when in accordance with international human rights law, play a positive role in dispute resolution, and that everyone, particularly women and those belonging to vulnerable groups, should enjoy full and equal access to these justice mechanisms. ” 28


realistic and practical way of turning this claim into reality, and of pursuing this complaint. For criminal defendants, the claim is to a fair and honest trial or some similar proceeding. Another aspect - and an important one - is access to information.62 The mentioned scholar further questioned the essence of justice in the notion access to justice as, does it mean the formal judicial system, so that siphoning off cases or shunting them into other arenas is arguably a denial of access to justice? Most people would not accept this position. There is no need to equate justice solely within the formal judicial system. There are many other methods of resolving disputes - arbitration, mediation, and so on - which may work better, and even more justly, than resorting to the formal court system. These alternatives are not necessarily a good thing. However, the concept of justice should not only be defined from the perspective of procedural terms. The phrase can also mean something quite different. The notion “Justice” may refer not only to an institution or a process, but to a concrete result - that is, “justice” in the sense of a fair outcome, or getting one‟s due. In line with this, for instance, it may be considered in a certain legal system that it is valid (constitutionally speaking) to execute an innocent man, as long as he has had a fair trial. I suspect most ordinary people, as long as legal training has not mangled their minds, would find this both bizarre and revolting. Justice to most of us is, above all, an outcome.63 On the other hand, from the view point of the people who work to improve access to justice, Mr. Lawrence M. Friedman suggested his view that, those people are usually concerned about the problems of specific people or groups. They are thinking about the poor, or the middle class, or both. They are thinking about a miscellaneous collection of downtrodden, unpopular, or marginal people regardless of their respective subjective grounds, such as, whether they are, convicted criminals, aliens, high school students, or members of unpopular religious sects. Thus, the ideal program of activists who want to increase access to justice would be to empower those individuals and groups who are somehow prevented from getting their just deserts.64 In his final remark on access to justice, the scholar suggested that, improving access to justice can be, in short, a procedural or an institutional issue; and, at the same time, a substantive issue. It is also very much a 62

Lawrence M. Friedman, Access to Justice: Some Historical Comments, Fordham Urban Law Journal, Volume 7 (Vol. XXXVII), and Issue 1, 2009. PP., 3 - 5 http://ir.lawnet.fordham.edu/ulj 63 Ibid 64 Ibid 29


matter of economics. Justice can be expensive. If justice is too expensive, it has to be subsidized. The ideal system of justice would be cheap and convenient, open to the claims of the underdogs, and would give participants, within reason, what they want - provided that what they want is what society agrees they ought to have. Cheapness and convenience, while obviously important, are hollow and meaningless without a working system of relevant rights. We can give people, for example, the right to a hearing, a free lawyer, and all the rest, but if the legal rules and practices are dead set against our man, due process is not much help.65 A scholar named Mr. C. Parker, has defined the notion access to justice from the perspective of the traditional approaches to access to justice. According him, in the traditional view, the concept of access to justice is defined from the point of view of the courts, which are the central „suppliers‟ of justice. He further suggested the reason for that as, Courts are ultimately the arbiters of legal issues, able to declare what the law is, what the rights and obligations of parties are and enforce those declarations. In line with this, in not few numbers of legal systems, almost all the previous endeavours of reform to access to justice have been based around the courts as the central supplier of justice. The scholar mentioned above, who is the proponent of the traditional view of access to justice tried to categorize the various objectives of legal systems, from the earlier to the modern times, to reform their justice system in to the following four „waves of reform‟:66

65 66



Wave 1: this wave reflects the earliest form of reforms in relation to access to justice systems. In such wave of reforms, access to justice is seen as equal access to legal services (that is, lawyers and legal aid) and courts. This could be achieved by providing financial assistance and other legal aid services.



Wave 2: Under this wave of reform access to justice is seen as correcting structural inequalities within the justice system; that is, changing the law, court procedures and legal practice to make access to justice more meaningful. This includes, for example, changing court procedure to make it less traumatic for victims. It also includes improving court processes for resolving disputes streamlining the civil litigation system. Also „de-mystifying‟ the law through, for example, plain language drafting and community legal education.



Wave 3: per this wave of reform access to justice is seen as an

Ibid C Parker, Just Lawyers: regulation and access to justice, 1999, p 31. 30


emphasis on informal justice and its importance in preventing disputes from occurring and escalating - including greater use of non-adversarial alternatives to legal justice, such as alternative dispute resolution (ADR). 

Wave 4: under this scheme of reform access to justice is considered as improving access to justice by focusing on competition policy: implementing competition policy in order to allocate access to justice resources, whether formal or informal, as efficiently as possible through market institutions, such as by reforming legal profession rules to lower the cost of legal services.

On the other hand, a scholar named Mr. Mark Galanter, has developed the contemporary approach in understanding access to justice, which is known as the “Justice in society” approach. The approach taken by the scholar may be seen as moving forward from the first four waves of reform towards a broader concept of justice reform. He asserts that courts are not the primary means by which people resolve their disputes. They never have been. Very few civil disputes reach formal justice mechanisms such as courts, and fewer reach final determination.67 He further substantiated that, most disputes are resolved without recourse to formal legal institutions or dispute resolution mechanisms. To improve the quality of dispute resolution, justice must be maintained in individuals‟ daily activities, and dispute resolution mechanisms situated within a community and economic context. According to this view, justice reforms should focus on everyday justice, not simply the mechanics of legal institutions which people may not understand or be able to afford. In line with this the scholar quotes that: Justice as health is not found primarily in hospitals or knowledge in schools, so justice is not primarily to be found in official justice-dispensing institutions. Ultimately, access to justice is not just a matter of bringing cases to a font of official justice, but of enhancing the justice quality of the relations and transactions in which people are engaged.68 What one should comprehend from the above quote is that, access to justice is not only about accessing institutions to enforce rights or resolve 67

Marc Galanter, „Justice in Many Rooms‟ in M Cappelletti (ed.), Access to Justice and the Welfare State, 1981, Sijthoff, Alphen aan den Rijn, 147–81 pp. 161–2. 68 Ibid 31


disputes but also about having the means to improve „everyday justice‟; the justice quality of people‟s social, civic and economic relations. This means giving people choice and providing the appropriate forum for each dispute, but also facilitating a culture in which fewer disputes need to be resolved. Claims of justice are dealt with as quickly and simply as possible - whether that is personally (everyday justice) informally (such as ADR, internal review) or formally (through courts, industry dispute resolution, or tribunals). After properly analyzing the approaches mentioned above, the researcher firmly believes that, what happens in each of these spheres of justice influences the quality of justice in the others. Improving access to justice requires improving access to formal and informal justice mechanisms and improving the justice quality of daily life. A strategic approach highlights the link between the demand for better information and the benefits of tailoring avenues that empower people to resolve disputes - or provide pathways that do not require a lawyer‟s assistance. In addition to enhancing people‟s capacity to understand their position and where possible, resolving matters themselves- providing a range of mechanisms to resolve disputes also increases access to justice. Accordingly, this approach recognizes that a focus on formal justice, while important, is by itself not enough. An example of how these lessons apply can be found in recent changes in the family law context. To address family disputes which cannot be resolved between the parties, government intervention is directed towards a number of avenues. These range from targeted and accessible information, through to informal services such as mediation and, for a small number of cases, the formal justice mechanism of court-based dispute resolution. Each institution has its advantages and disadvantages. Courts tend to be more expensive for parties and government, but are well placed to resolve complex and/or violent family disputes. Family relationship services are potentially useful in minimizing adversarial mind frames and helping parties that need to maintain ongoing family relationships. For minor disputes, useful and accessible information may be sufficient to guide them in their dispute. For example, Government intervention in a non-violent family dispute focuses initially on improved access to information, to filter some disputes and assist all, then mandate the use of informal mechanisms to reserve the most entrenched disputes (and those involving violence) for the courts. Access to justice has traditionally been seen as access to the courts or the availability of legal assistance, but the researcher of this study found it to be a narrow view. It is my understanding that in the contemporary time we are living in, courts should not be treated as the only and the primary 32


mechanism through which people seek to resolve disputes or potential disputes. Legal assistance programs are only one part of a complex system. In this regard, the researcher suggests that, improving access to justice requires a broad examination of how the system and its various institutions influence each other and work together to support or limit people‟s capacity to address legal problems and resolve disputes. Reforming one or more of the individual institutions or programs might assist current clients or users, but will not provide sustainable access to justice benefits or increase the number or profile of beneficiaries. Hence, an advisable move will be the development of a holistic approach of reform in access to justice. Finally the researcher wants culminate the definitional part of this chapter by the following seemingly conventional lexical definition of access to justice provided by the Black‟s law dictionary as: Access to justice is the ability within a society to use courts and other legal institutions effectively to protect one’s rights and pursue claims.” Thus, access to justice essentially means the access to courts.”69

2.2 The Principles of Access to Justice as Envisaged under the FDRE Constitution Law is the means and justice is the end. In order to reach the destination (justice), the means to reach the destination (law and legal system) must be established. It should be familiar and made available to all. Whatever is right is just and vice versa. Rule of Law recognize and protect the rights which forms the interest of the individuals. By the Roman maxim, Ubi jus ibi remedium, which is to mean, wherever there is a right there is a „remedy‟. Machinery of „Justice‟ embodied by Law offers the remedy whenever the right is exploited or breached even if it is against the State or any other powerful body. For the rights of the citizen to be recognized and enforced; and enable the legal disputes or conflicts, which certainly arise in every civilised society, to be resolved in an orderly way, “access to justice” becomes necessary. Access to justice is a human right which imparts life and meaning to law. The State is the supreme custodian of the right to access justice and it is the legitimate expectation of the citizen to believe that whenever the sanctity of this right is threatened, the State would intervene and protect their right. It is the duty of the State not just to bring culprits to the book, but it goes to 69

The Black‟s Law Dictionary, fifth Edition 33


the extent of imposing positive duty on the State to reinstate it all that was its due. It can be said that „access to justice‟ has varied aspects. The integral constituent of right to access justice is accessibility to courts. To access justice through the Courts of Law, the element of „legal service‟ becomes a pre- necessity. In this essay, these aspects of right to access justice is analysed in the light of the FDRE Constitution. Based on the above argument let us deal with the pertinent provisions of the FDRE Constitutions that deals with Access to Justice. Article 15: the Right to Life Every person has the right to life. No person may be deprived of his life except as a punishment for a serious criminal offence determined by law. The above article signifies the fact that the only exception for the deprivation of the life of an individual is the fulfilment of one segment of access to justice i.e., punishment for a serious criminal offence. Otherwise without the fulfilment of the above exception (indirectly the requirement of access to justice) the right to life of a person may not be deprived. Such a procedure which restricts the fundamental right should be fair and effectuate; and not arbitrary. The principle of reasonableness is an essential element of equality or non- arbitrariness. The „procedure‟ contemplated in Article 15 should answer the test of reasonableness for it to be coherent with 14. Therefore, a fair legal procedure is implicit in the provision of Article 21 of the Constitution. Article 17 : the Right to Liberty (1) Non one shall be deprived of his or her liberty except on such grounds and in accordance with such procedure as are established by law. (2) No person may be subjected to arbitrary arrest, and no person may be detained without a charge or conviction against him. It is plainly discernible from the above article that the liberty of any person shall not be violated without the operation of due process to that effect (procedure as are established by law). In order to secure due process and 34


thereby apply the procedures established by law, there should be full access to justice guaranteed to the individual whose liberty is about to be violated. Or otherwise one cannot talk about due process for it is an integral part having full access to justice. On the other hand the message of the second sub article is obvious in that it is directly related with having an access to justice in that it rules on the fact that before an individual is arrested s/he must be charged or convicted according to the law. Here, it should be taken in to account that one of the manifestations of the lack of access to justice is failure to apply pertinent legal procedures as are envisaged under the law. We cannot say there is access to justice to an arrested person if s/he has been, from the beginning, arrested without the fulfilment of due process such as the necessary charge, trial or conviction etc. Article 18: Prohibition against Inhuman Treatment (1) Everyone has the right to protection against cruel, inhuman or degrading treatment or punishment. However, it will be very difficult to assure this right unless the pertinent provisions of the law that guarantees an access to justice are applied. For instance, in due course of detention of a suspect by the police, collection of evidence, trial and detention and so on there is high chance of cruel, inhuman or degrading treatment or punishment by the police for instance, unless the proper procedure and laws are set up to guarantee access to justice. Article 19: Right of Persons Arrested This is one of the main provisions of the FDRE Constitution that directly enumerates the major elements that serve as a benchmark for the existence of an access to justice in a certain legal system. Accordingly, let us deal with the pertinent sub articles of this provision one by one. (1) Persons arrested have the right to be informed promptly, in a language they understand, of the reasons for their arrest and of any charge against him. It is plainly discernable from this sub article that we cannot practically say there is an access to justice to an individual, if s/he as a litigant cannot understand the language of the court or the police who caused the arrest. 35


Actually no one can deny the fact that this litigant has physically accessed the justice institution (the police or the court) for s/he is already physically present in the court of law. However, what is the merit of mere physically existence without the ability to hear and say ones claims. Hence, inability to understand the language of the court amounts to the lack of access to justice. On the other hand, it is the purpose of this sub article to avoid this problem. Accordingly, the mere inability of a person to understand the language of the court or the police system may not amount to lack of access unless the court or the pertinent officers such as the police, has failed to discharge their duty to inform such individual promptly, off course, in the language s/he understand, the reasons for their arrest and of any charge against him or her. (2) Persons arrested have the right to remain silent. Up on arrest, they have the right to be informed promptly, in a language they understand, that any statement they make may be used as evidence against them in court. This sub article also signifies ample elements that guarantee access to justice. Accordingly, the first sentence stipulates the fact that every person has the right to remain silent. However, how an arrestee would remain silent unless otherwise s/he is aware of his right. Hence, the plausible conclusion in such instances would be they are not accessing justice. However, it is the main purpose of this sub article to rectify the problem of failure of an arrestee to be aware of his rights and then cause use of it. Accordingly, it is the duty of the pertinent officers that caused the arrest to inform promptly to an arrestee, in the language they understand, that later has the right to remain silent or otherwise any statement they make may be used as evidence against them in court. If the pertinent individuals have discharged this duty of informing an arrestee one may conclude that the litigant has practically accessed the court. Persons arrested have the right to be brought before a court within 48 hours of their arrest. Such time shall not include the time reasonably required for the journey from the place of arrest to the court. On appearing before a court they have the right to be given prompt and specific explanation of the reasons for their arrest due to the alleged crime committed. The first requirement here in order to access the court should be whether the detainees and off course the arrestors are aware of their rights and duties respectively. This sub article signifies the fact that unless an arrested person is brought to court within 48 hours from the time of his arrest s/he would not be deemed to have accessed the court. However, the problem 36


could be fixed, among other things, by arranging awareness training schemes especially to the police who is operating the process of arrest. The other segment of access to justice mentioned under this sub article is once the arrestees have appeared in the court (which does not per se suffice to guarantee access to justice) they have the right to be given prompt and specific explanation of the reasons for their arrest due to the alleged crime committed. Otherwise stipulated, if this requirement is not met it amounts to say that they are denied of an access to justice for, among other things, it is when one knows the reasons behind his arrest that s/he will be ready as to how to proceed thereafter. The other implication of the 48 hour requirement is the fact that the courts shall be available in every locality, at least, within the range of two days journey. This directly influences accessibility for the more the courts are available, the more they tend to be accessible. (3) All persons have an inalienable right to petition the court to order their physical release where the arresting police officer or the law enforcer fails to bring them before a court within the prescribed time and to provide reasons for their arrest. Where the interest of justice requires, the court may order the arrested person to remain in custody or, when requested, remand him for a time strictly required to carry out the necessary investigation. In determining the additional time necessary for investigation, the court shall ensure that the responsible law enforcement authorities carry out the investigation respecting the arrested person’s right to a speedy trial. This sub article begins by mentioning the consequences of failure by the pertinent officers who caused the arrest to bring the arrestee within 48 hours from arrest and to provide the reasons for their arrest. Here also no one can deny the right of the arrested person to request his or her physical release if the above requirements set by law are not fulfilled. It should also be emphasized that if one is not aware of his right s/he may not cause use of them. As mentioned in the provision, the only exception not to cause the physical release of the detainee up on the non-fulfillment of the 48 hours requirement is the fact that the continuation of the arrest is justified by the interest of justice i.e., to buy more time to collect enough evidence against the arrestee. In addition to this the provision dictates that the court should be curious in due course of determining the additional time necessary for investigation in order not to infringe the right of the accused person to a speedy trial which is also another indicator of the presence of access to justice in a certain legal system.

37


(4) Persons arrested shall not be compelled to make confessions or admissions which could be used in evidence against them. Any evidence obtained under coercion shall not be admissible Though not directly, this provision also have an implication on access to justice. For instance, if litigants do have a previous experience of forced confessions may be due to inhuman treatment or torture; they will not try to use the service of courts in the future (deterrence effect). The nonobservance of this sub article also affects the presence of access to justice in that most of the time it is very difficult to identify whether a confession or admission is secured voluntarily or not which in turn determines whether such evidence is admissible or not. (5) Persons arrested have the right to be released on bail. In exceptional circumstances prescribed by law, the court may deny bail or demand adequate guarantee for the conditional release of the arrested person. Accordingly it is very difficult to say that an arrestee is accessing justice unless he is aware of his right to bail and cause use of it. For instance, he is attending his trial while detained where he could have enjoyed trial on bail. Article 20: Right of Persons Accused (1) Accused persons have the right to a public trial by an ordinary court of law within a reasonable time after having been charged. The court may hear cases in a closed session only with a view to protect the right to privacy of the parties concerned, public morals, and national security. Again this provision in a similar manner influences access to justice for it requires every court to adjudicate cases publicly which may give litigants relief in some circumstances. Besides, it will not discourage them to use courts in the future for they have after all received a trial in front of the public. The other is the requirement of a reasonable time set by this sub article also defends the best interest of the litigants for it shields them from extended litigations. Besides, sometimes, the very nature of the case itself or due to the type of litigants and other matters stipulated under the provision the courts may held litigations in closed sessions. This also has an 38


implication on future accessibility of a court by particular litigant for closed sessions protect the privacy of individuals and do not discourage them to access courts in the future. (2) Accused persons have the right to be informed with sufficient particulars of the charge brought against them and to be given the charge in writing. The messages conveyed by this provision have ample implications on access to justice. For instance, if a litigant is not aware of the issues of the charge that has been filed against them, it will be very difficult for them to respond to them accordingly. Not only should they have access to the courts in their entirety but also to the respective charges. Again mere delivery would not be enough unless the litigants are aware of the language of the charge, which inter alia, influence access to justice. (3) During proceedings accused persons have the right to be presumed innocent until proved guilty according to the law and not to be compelled to testify against themselves. One of the major factors that discourage service users to access courts is the counter-application of the principle, „the right to be presumed innocent until proven guilty‟. The problem is in most legal systems the principle seems to be applied vice versa. For instance, the principle favors the suspect throughout the entire criminal procedure from detention to end of trial of the accused. Accordingly, in every step, the pertinent officers should protect the best interest of the accused (for she or he is only suspects but not criminals yet) by letting the law to decide their fate. Otherwise, if the opposite is practiced in the long run it will absolutely discourage people to use (trust) courts for it will amount to say, ones you are caught you will never be released. In addition, you cannot say that your courts are accessible enough, if you are forcing suspects to incriminate against themselves and use that as an excuse to convict them. (4) Accused persons have the right to full access to any evidence presented against them, to examine witnesses testifying against them, to adduce or to have evidence produced in their own defense, and to obtain the attendance of, and examination of witnesses on their behalf before the court. As the name itself implies, accused persons have the right full access to any 39


evidence presented against them and to do all the things this provisions dictates them to do. This is by itself one element of access to justice for if they do not have the opportunity to review the evidence filed against them how would they defend themselves. The same holds true in arranging witnesses and prove their cases. Otherwise, it will not be plausible to say accused persons do have an access to justice. (5) Accused persons have the right to be represented by legal counsel of their choice, and, if they do not have sufficient means to pay for it and miscarriage of justice would result, to be provided with legal representation at state expense. This is one of the requirements set by law for the fulfillment of a complete access to justice to the service users. In a developing country where there is high rate of legal illiteracy it will be a complete miscarriage of justice if the litigants are not represented by legal counselors who are aware of the language of the law. If an individual is not aware of his rights and duties on the one hand and the language of the law on the other, how would one say s/he have accessed the courts merely because they are physically present within the court. Hence, it is basically the duty of the government to hire counselors on behalf litigants who are not capable enough to hire their own. Not only that, the government should also make sure that such counselors are properly trained and they are doing their jobs properly. (6) All persons have the right of appeal to the competent court against an order or a judgment of the court which first heard the case. (7) They have the right to request for the assistance of an interpreter at state expense where the court proceedings are contacted in a language they do not understand. The above two sub articles also have numerous implications on access to justice. For instance, the provision of an interpreter sponsored by the state is a good sign to secure access to justice. Lack of knowledge of the language of the court is a direct barrier to access justice institutions in that being only physically present in a court is meaningless if a litigant cannot appreciate or understand what is going on and perhaps properly defend their cause. Article 21: the Right of Persons held in Custody and Convicted 40


Prisoners (1) All persons held in custody and persons imprisoned after conviction and sentencing have the right to treatments respecting their human dignity. (2) All persons shall have the opportunity to communicate with and to be visited by their spouses or partners, close relatives, friends, religious councilors, medical doctors and their legal counsel. It is plainly understandable from the above article that detaining institutions are at duty to treat their detainees in a way that respect their human dignity in due course of their stay in such institutions. The presumption regarding access to justice here is that if they are treated with no respect to their human dignity their opportunity to access the justice institutions will be so limited for they will not be physically fit, among other things to attend the courts. It is also the message of sub article two that detainees shall not be denied the opportunity of visit by those groups of persons mentioned above especially a visit by their doctors and legal counselors shall be granted as of right for the absence of health and lack of legal representation are the two typical elements of the right to access to justice. Obviously, if a detainee is seek or physically unfit s/he may not properly access the courts and the same holds true for a detainee who has no prior knowledge of the law yet appear before the court without a legal representative for he does not have the tools to defend his cause before the court. Article 23: Prohibition of Double Jeopardy No person shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the criminal law and procedure. This provision also endeavors to guarantee the right to access to justice of citizens in that it discourages or prohibits re-trial or multiple-trial of a person or multiple punishment of a person for an offence which he has already been convicted or acquitted for already. The proper implementation of this provision explicitly guarantees the rights to access to justice in that it is not after all in the interest of justice to arbitrarily allow re-trial of the same case over and over again. It also influences the productivity of citizens in their everyday life if courts summon them unnecessarily. In conclusion, 41


allowing a trial to happen over and over again for the same cause of action would exacerbate the inaccessibility of justice institution added to the numerous barriers to access courts already. Article 24: Right to Honor and Reputation (1) Everyone has the right to respect for his human dignity, reputation and honor. (2) Everyone has the right recognition everywhere as a person. The effect of this provision on access to justice goes without saying in that if citizens are not even considered as persons they would not even be eligible to attend courts in the first place. At the time we are currently living, it does not take additional requirements to be considered as a person before the eyes of the law as far as s/he is physically born as a person. Article 25: Right to Equality All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall guarantee to all persons equal and effective protection to all persons equal and effective protection without discrimination on grounds of race, nation, nationality or other social origin, color, sex, language, religion, political or other opinion, property, birth or other status. So far this is the main provision that directly guarantee the equality of all persons before the eyes of the law regardless of the encumbrance imposed on them due to subjective grounds. The message here is courts shall be accessible to all possible service users without any discrimination based on race, age, sex, color, wealth, political orientation, religion, and ethnicity and so on. Hence, the principle shall be applied horizontally for everybody in order to enable every citizen of a country to access justice institution efficiently. As evident from existing literature the positive effect of this provision in augmenting access to justice is massive especially in relation to those groups that are generally considered as vulnerable when it comes to accessing justice institutions such as women, children and the elderly. Article 33: Rights of Nationality (1) Every Ethiopian national has the right to the enjoyment of all rights, protection and benefits derived from Ethiopian nationality as prescribed by law. 42


It is obvious that one of the manifestations of enjoyment of rights or protections set by law is the ability of nationals of a country to bring all their justiceable matters before the competent courts to settle their disputes. Article 35: Rights of Women (1) Women shall in the enjoyment of rights and protections provided for by this constitution, have equal right with men. As mentioned earlier due to various socio-economic factors or barriers associated with women it is evident throughout history that they are the most prominent groups of person with the least experience of accessing justice institutions. That is why they are sorted as the major members of vulnerable groups. Of course, by that we are referring to those groups, not only, whose rights shall be protected but also they shall be encouraged via affirmative action. That is why the provision plainly states that women shall be treated as equal as men before the eyes of the law or the justice institutions. Article 37: Rights of Access to Justice (1) Everyone has the right to bring a justiceable matter to, and to obtain a decision or judgment by, a court of law or any other competent body with judicial power This is a corner stone principle laid down by the FDRE Constitution to guarantee the right to access to justice explicitly. According to this provision, it is the inviolable right of every person to bring any matter before the pertinent court or to access to the justice system and the right does not only empower him or her to have access to the courts but also to obtain a decision from such court according to the law of the land. The only exception imposed against the use of this right is if the matter in dispute brought before the court is not a justiciable matter. Article 78; Independence of the Judiciary (1) An independent judiciary is established by the constitution

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It is of course impossible to talk about the issue of access to justice in a certain legal system if there is no judiciary which is independent from the influence of the rest of the segments of the government such as the Executive or the Legislative. In order to properly assure access to justice in a certain legal system the independence of the judiciary is non-negotiable. Hence, the judiciary shall remain as an independent and neutral justice provider institution. It is in line with this that the FDRE Constitution declares the independence of the Ethiopian judiciary under this provision. Among other things the quality of justice provided by the judiciary and the opportunity of access to justice institutions is directly dependent on the ability of justice institutions to serve justice solely based on the law of the land and with no interference what so ever from an outsider institution. Hence, in order to guarantee the right to access to justice the justice institutions shall be independent in terms of their Budget, Appointment of Judges, their ability to fully exercise their power of interpretation of the law vested in them by the constitution and no political interference in their internal affairs. Article 79: Judicial Powers (1) Judicial powers, both at federal and state levels are vested in the courts. (2) Courts of any level shall be free from any interference of influence of any governmental body, government official or from any other source. (3) Judges shall exercise their functions in full independence and shall be directed solely by the law. (6) The federal Supreme Court shall draw up and submit to the house of people’s representatives for approval the budget of the federal courts, and upon approval, administer the budget. This provision and its sub articles also have numerous influences on guaranteeing the right to access to justice in that, it explicitly empower courts as the basic and formal institutions to interpret the laws of the land and adjudicate disputes or dispense justice. In the absence of such constitutional declarations it will be very doubtful to identify and secure solutions to disputes in the day to day life of the society. This article guarantees that it is the principal duty of courts to interpret laws and settle disputes. Hence, as far as the necessary formalities have been fulfilled, it is the duty of courts to be accessible to those in need and provide a remedy thereby to the respective problems of the justice service users or litigants. However, it should be noted here that, the message of this 44


provision is the fact that courts are the recognized and formal institutions of dispute settlement and by no means has this provision excluded informal or extra judicial mechanisms of dispute settlement such as mediation, negotiation, and arbitration and so on. It is obvious from previous discussions that the quality of the right to access to justice is not only dependent on the formal system of dispute settlement but also on the informal systems of dispute settlement.

2.3 Access to Justice as envisaged under Major International Conventions This segment of the review of literature tries to simply enumerate the pertinent or relevant provisions of the three basic conventions under the auspices of the United Nation Organization on guaranteeing the right to access to justice and the BANJUL. These are: the Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights, The International Covenant on Economic Social and Cultural Rights, and the African (BANJUL) Charter on Human and Peoples‟ Rights. Accordingly let us deal with them turn by turn as follows: 2.3.1 The Universal Declaration of Human Rights As a major document of reference regarding human rights the UDHR has incorporated the following provisions which are directly or indirectly related to access to justice. The Preamble The preamble of the UDHR while trying to narrate the very reason behind the promulgation of the instrument stipulates that, „whereas the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world‟. This phrase directly conveys the message that, inter alia, the main way to assure justice is the recognition of the inherent dignity and of the inalienable rights of all the members of the human family. Otherwise stipulated, the message is no system can assure access to justice, for instance, without the recognition of the pertinent rights that are meant to pave the way for the creation of the access itself.

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Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it is independent, trust, non-self-governing or under any other limitation of sovereignty. Article 3: Everyone has the right to life, liberty and security of person. (Those rights shall not be violated without the application of the pertinent rules on due process) Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. (Here again, those treatments can be avoided if the pertinent rules on due process are strictly adhered to). Article 6: Everyone has the right to recognition everywhere as a person before the law. Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

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Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. This provision directly promotes the realization of access to justice. Article 9: No one shall be subjected to arbitrary arrest, detention or exile. (Among other things these vices of justice happen due to the lack of access to justice in a certain legal system). Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Article 11: 1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense. 2. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks. Article 21: 1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. 47


2. Everyone has the right of equal access to public service in his country. 3. The will of the people shall be the basis of the authority of government; this „will‟ shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Article 26 1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. 2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. 3. Parents have a prior right to choose the kind of education that shall be given to their 79 children. Again the proper use of the justice system by the society is among other things directly or indirectly related to the recognition and application of the right to access to education. Conclusion: all the above mentioned provisions of the UDHR have an influence on access to justice in that they rule on either the creation of the necessary platform to guarantee access to justice or they tend to preserve the right to access to justice. NB. Refer to the above provisions with particular emphasis on the bolded phrases. 2.3.2 The International Covenant on Civil and Political Rights In a similar fashion the following are the provisions of the ICCPR that are related to the ascertainment of access to justice: Article 2 (3): Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein 48


recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. Article 3: The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant. Article 7: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. Article 9: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that 49


court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. Article 10: (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvinced persons; (b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. (c) The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status. Article 11: No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation. (3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. Article 14: (1) All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of 50


juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. (2) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. (3) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. (4). In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. (5). When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

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(6). No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. Article 16: Everyone shall have the right to recognition everywhere as a person before the law. Article 25: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (c) To have access, on general terms of equality, to public service in his country Article 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2.3.3 The International Covenant on Economic Social and Cultural Rights Similarly the following are the pertinent provisions of the ICESCR that are relevant to access to justice: Article 3: The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant. Article 4: The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present 52


Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society. Article 13: 1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. (d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education; 2.3.4 African (BANJUL) Charter on Human and Peoples’ Rights Similarly the following are the pertinent provisions of the BANJUL that are relevant to access to justice: Article 1: The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them. Article 2: Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. Article 3:

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1. Every individual shall be equal before the law. 2. Every individual shall be entitled to equal protection of the law.

Article 4: Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. Article 5: Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. Article 6: Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained. Article 7 1. Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defense, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. 2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

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Article 9: 1. Every individual shall have the right to receive information. 2. Every individual shall have the right to express and disseminate his opinions within the law. Article 17: 1. Every individual shall have the right to education. Article 25: States parties to the present Charter shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood. Article 26: States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.

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Chapter Three Access to Justice and Law Enforcement Institutions in Ethiopia No narration of review of literature on access to justice becomes comprehensive without first thoroughly discussing the access to justice institutions and law enforcement agencies in a country that are meant to be accessed whether formally or informally. Precisely stipulated, these institutions refer to the judiciary and the law enforcement institutions in Ethiopia on both levels of government. Accordingly, let us begin by dealing with the current structure of the judiciary in the Ethiopian legal system both at the federal and state level and then the law enforcement institutions that can directly influence the accessibility of justice.

3.1 The Judiciary 3.1.1 Federal Courts a. Structure and Jurisdiction Ethiopia has a dual judicial system with two parallel court structures: the federal courts and the state courts with their own independent structures and administrations.70 Jjudicial powers, both at Federal and State levels, are vested in the courts.71 The FDRE Constitution states that supreme federal judicial authority is vested in the Federal Supreme Court and empowers the HPR to decide by a two-third-majority vote to establish subordinate federal courts, as it deems necessary, nationwide or in some parts of the country.72 There is a Federal Supreme Court that sits in Addis Ababa with national jurisdiction and until recently, the Federal High Court and First Instance Courts were confined to the federal cities of Addis Ababa and Dire Dawa. In recent years, Federal High Courts have been established in five States.73 Federal courts at any level may hold circuit hearings at any place within the State or “area designated for its jurisdiction” if deemed “necessary for the

70

Refer to Article 78 sub-article 1 to 5 of the FDRE Constitution. Id., Article 79 sub-article 1 72 Id., Article 78 sub article 2 73 According to the Federal High Court Establishment Proclamation No.322/2003, Federal High Courts have been established in the following states: Afar, Benshngul-Gumuz, Gambela, Somali, and SNNPR. 71

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efficient rendering of justice.”74 Each court has a civil, criminal, and labor division with a presiding judge and two other judges in each division. The Federal Supreme Court includes a cassation division with the power to review and overturn decisions issued by lower federal courts and State Supreme Courts containing fundamental errors of law. Besides, judicial decisions of the Cassation Division of the Federal Supreme Court on the interpretation of laws are binding on Federal as well as State courts.75 The Federal Courts Proclamation allocates subject-matter jurisdiction to federal courts on the basis of three principles: laws, parties and places. It stipulates that federal courts shall have jurisdiction over, first, “cases arising under the Constitution, federal laws and international treaties,‟ second, over parties specified in federal laws.”76 Article 3(3) of the Federal Courts Proclamation states that federal courts shall have judicial power in places specified in the FDRE Constitution or in federal laws. Article 5 of the same Proclamation stipulates that federal courts shall have civil jurisdiction over “cases to which a federal government organ is a party; suits between persons permanently residing in different regions; cases regarding the liability of officials or employees of the federal government in connection with their official responsibilities or duties; cases to which a foreign national is a party; suits involving matters of nationality; suits relating to business organizations registered or formed under the jurisdiction of federal government organs; suits regarding negotiable instruments; suits relating to patent, literary and artistic-ownership rights; and suits regarding insurance policy and application for habeas corpus’. Article 4 of the Federal Courts Proclamation bestows upon federal courts criminal jurisdiction over: offences against the national state; offences against foreign states; offences against the law of nations; offences against the fiscal and economic interests of the federal government; offences regarding counterfeit currency; offences regarding forgery of instruments of the federal government; offences regarding the security and 74

Refer to Article 24 (3) of the Federal Courts Proclamation No. 25/1996, as amended by Federal Courts (Amendment) Proclamation No.138/1998, Federal Courts (Amendment) Proclamation No. 254/2001, Federal Courts (Amendment) Proclamation No. 321/2003, and Federal Courts Proclamation (Amendment) Proclamation No. 454/2005 (Federal Courts Proclamation), 75 Article 80 sub-article 3 (a) of the FDRE Constitution and Article 2(1) of the Federal Courts Proclamation Re-amendment Proclamation 454/2005. 76 Refer to Article 3 of the Federal Courts Proclamation No. 25/1996. 57


freedom of communication services operating within more than one region or at international level; offences against the safety of aviation; offences of which foreigners are victims or defendants; offences regarding illicit trafficking of dangerous drugs; offences falling under the jurisdiction of courts of different regions or under the jurisdiction of both the federal and regional courts as well as concurrent offences and offences committed by officials and employees of the federal government in connection with their official responsibilities or duties.77 b. Accountability and Administration The FDRE Constitution provides that the President and Vice-President of the Federal Supreme Court shall be appointed by the House of Peoples‟ Representatives upon the recommendation of the Prime Minister; other federal judges are appointed by the HPR from a list of candidates selected by the Federal Judicial Administration Commission.78 The FDRE Constitution prohibits the removal of judges before retirement age except for violation of disciplinary rules, gross incompetence or inefficiency, or illness that prevents the judge from carrying out his responsibilities.79 Such determinations are made by the Federal Judicial Administration Commission, which likewise decide issues of appointment, promotions, disciplinary complaints, and other conditions of employment.80 The Federal Judicial Administration Commission is a nine-member body comprising of six Federal judges and three members of the House of Representatives.81 The Commission is composed of the following members:82 

The President of the Federal Supreme Court, Chairman;



The Vice-President of the Federal Supreme Court;



Three members of the House of Peoples' Representatives;



The most senior judge of the Federal Supreme Court;



The President of the Federal High Court;

77

Id., Article 4. Refer to Article 81 sub articles 1 and 2 of the FDRE Constitution. 79 Id., Article 79(4). 80 Article 81 (1-4) of the FDRE Constitution 81 Federal Judicial Administration Establishment Proclamation No. 24/96 (Proclamation no. 24/96). 82 Id., Article 4. 78

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

The most senior judge of the Federal High Court ;



The President of the Federal First Instance Court.

The Federal Judicial Administration Commission has the following powers and duties:83 

To select those who qualify for judgeship in accordance with Article 8 of this Proclamation from among candidates nominated by members of the Commission;



To forward its opinion on the list of Regional Supreme and High Court candidate- Judges, submitted to it by a Regional Judicial Administration Commission pursuant to

Article 81 (4) of the Constitution; 

To issue the Disciplinary and Code of Conduct Rules for federal judges; ,



To decide on the transfer, salary, allowance, promotion, medical benefits and placement of federal judges;



To examine and decide in accordance with Article79 (4) of the Constitution, matters presented to it pursuant to article 9 herein. It may suspend a judge until the decision is approved by the House of Peoples' Representatives, subject to details to be determined in the Disciplinary and Code of Conduct Rules.

The day-to-day operations of the Federal Courts in Ethiopia are supervised and managed by court presidents, who therefore act both as judges and administrators with responsibilities and obligations towards the President of the Supreme Court. 3.1.2 State Courts a. Structure and Jurisdiction The FDRE Constitution provides for the establishment of three levels of State courts: the State Supreme Court (which also incorporates a cassation bench to review fundamental errors of state law), High Courts, and First-Instance Courts.84 State Supreme Courts sit in the capital cities of the respective States and have final judicial authority over matters of State 83

Article 5 of Federal Courts Proclamation No. 24/96

84

Article 78 (3) of the FDRE Constitution 59


law and jurisdiction. State High Courts sit in the zonal regions of States while State First Instance Courts sit at the lowest administrative levels of States.85 The FDRE Constitution delegates to State Supreme Courts and State High Courts the jurisdictions of the Federal High Court and Federal First Instance Courts respectively.86 In order to guarantee the right of appeal of the parties to a case, decisions rendered by a State High Court exercising the jurisdiction of the Federal First Instance Court are appealable to the State Supreme Court while decisions rendered by a State Supreme Court on federal matters are appealable to the Federal Supreme Court. 87 b. Accountability and Administration The State systems of judicial administration and accountability mirror the federal process. The State governments have also established Judicial Administration Commissions with a view to safeguarding the independence and accountability of State Courts. With respect to appointment, the President and Vice-President of the State Supreme Court are recommended by the President (Chief Executive Office) of the States and appointed by the State Council; all other State judges are appointed by the State Council based upon recommendations made by the State Judicial Administration Commission. Similar gurantees of tenure of judges exist in State Judicial Administration Commissions.88 3.1.3 Municipal Courts The Addis Ababa City Charter creates two levels of City Courts exercising municipal jurisdiction: First Instance and Appellate Courts.89 85

States have their own courts. For instance, as per art 3 and art 27(b) of the Oromia National Regional State Courts Proclamation No. 6/1995, the Region has four tiers of courts, namely: the Social Courts, District Courts, Zonal Courts and Supreme Court. The Oromia National Regional State has also a cassation division within its Supreme Court. Petitions can be filed in the Cassation Division of the Federal Supreme Court from any level of the federal or state courts, both on federal and regional matters if the decision being challenged is final and contains a basic error of law. 86 Article 78 (2) of the FDRE Constitution 87 Article 80 (5) and (6) of the FDRE Constitution 88 Refer to Article 79 (7) of the FDRE Constitutions. 89 Articles 39 (1) and 43 of the Addis Ababa City Government Revised Charter Proclamation 311/2003. It is one of the judicial organs of the Addis Ababa city 60


There is no Supreme Court in the municipal system, although a cassation bench is included within the Appellate Court. Cassation review of the Appellate Court decisions can be brought before the Federal Supreme Court, which also decides jurisdictional conflicts between the city and federal courts.90 The Addis Ababa City Courts have civil, criminal and petty offence jurisdiction.91 The State of Oromia has also established similar Municipal Courts in cities with more than 10, 000 people. 3.1.4 Social Courts The Addis Ababa City Charter established Kebele92 Social Courts (more than 200 Kebeles exist in Addis Ababa) to hear property and monetary claims up to 5,000 birr.93 Social Court decisions can be appealed to the FirstInstance City Courts.94 If there is a fundamental error of law in the decisions of the First-Instance City Courts on appeal from Social Courts, it can be a ground to lodge cassation before the Appellate Court of the City.95 Some States have also established Social Courts that handle small claims and minor disputes.96 3.1.5 Religious Courts The FDRE Constitution provides the framework for the independent validity of non-state or unofficial laws such as customary and religious laws government such as Labor Relations Board, Civil Service Tribunal, Tax Appeal Commission and Kebele Social Courts. 90 Article 42 of the Addis Ababa City Government Revised Charter Proclamation 311/2003 91 See Article 41 of the Addis Ababa City Government Revised Charter Proclamation 311/2003 for the full list of matters under the jurisdiction of Addis Ababa City Courts. 92 Addis Ababa City Government Revised Charter Proclamation 311/2003 Article 2(6) defines Kebele as the third administrative stratum of the city. Kebeles are considered as The lowest administrative unit in the Government 93 Addis Ababa City Government Revised Charter Proclamation 311/2003 Article 50(1). 94 Addis Ababa City Government Revised Charter Proclamation 311/2003 Article 50(3). 95 Addis Ababa City Government Revised Charter Proclamation 311/2003 Article 50(4). 96 The Federal States that have established Social Courts are Tigray, Amhara, Oromia, Southern Nations, Nationalities and Peoples and Harari.

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in some fields of social activity. Article 34 (5) of the FDRE provides that: “This Constitution shall not preclude the adjudication of disputes relating to personal and family laws in accordance with religious and customary laws, with the consent of the parties to the dispute. Particulars shall be determined by law.” Article 78(5) of the FDRE Constitution also stipulates that: “Pursuant to sub-Article (5) of Article 34 the House of Peoples‟ Representatives and State Councils can establish or give official recognition to religious and customary courts that had state recognition and functioned prior to the adoption of the Constitution shall be organized on the basis of recognition accorded to them by this Constitution.” As can be gleaned from the above-cited constitutional provisions, formal legal pluralism under Ethiopia‟s new constitutional order is confined to certain matters: only personal status and family law. To date, Sharia Courts that apply Islamic law are the only religious courts that have been officially established both at the federal and state levels. Sharia Courts apply only Islamic law and have their own appellate system.97 They are required, however to follow the procedural rules of ordinary courts and receive their budgets from the state. Parties must voluntarily submit to the jurisdiction of these courts, or the dispute should be redirected to the regular courts. Proclamation 188/199998 spells out the circumstances under which Islamic law can be applied by Sharia courts at the federal level. The Sharia Courts at the federal level have been reconstituted in to a three-level judicial structure, distinct from the regular federal judicial structure. These are: (1) Federal First-Instance Court of Sharia, (2) Federal High Court of Sharia, and (3) Federal Supreme Court of Sharia. Like the federal state judicial organs, all the federal Sharia courts have been made accountable to the Federal Judicial Administration Commission. All of the State Councils have also given official recognition to Sharia Courts within their respective jurisdictions. Article 4(1) of Proclamation No. 188/1999 stipulates that Federal Courts of Sharia have common jurisdiction over the following matters: 

any question regarding marriage, divorce, maintenance, guardianship of minors and family relationships; provided that the marriage to which the question relates was concluded or the parties have consented to be adjudicated in accordance with Islamic law;



Any question regarding Wakf, gift/Hiba/, succession of wills, provided that the endower or donor is a Muslim or the deceased

97

There is no appeal from the decisions of the Sharia courts to the regular court structure as per art 5 of Proclamation 188/99. 98 Federal Courts of Sharia Consolidation Proclamation No 188/1999. 62


was a Muslim at the time of his death; 

Any question regarding payment of costs incurred in any suit relating to the aforementioned matters.

Sub-Article (2) of the same reiterates the principle of parties‟ consent as the basis for the adjudicatory jurisdiction of Sharia courts. Sharia courts can assume jurisdiction “only where... the parties have expressly consented to be adjudicated under Islamic law.” Tacit consent has also been provided for in addition to express consent. Pursuant to Article 5(2) of Proclamation No. 188/1999, failure to appear before the Sharia court amounts to consent to the court‟s jurisdiction on condition that the defaulting party has been duly served with summons. Thus, the suit will be heard ex parte. Article 5(3) of the same provides that in the absence of clear consent of the parties for the case to be adjudicated by the court of Sharia before which the case is brought, such court shall transfer the case to the regular federal court having jurisdiction. Moreover, once a choice of forum has been made by the plaintiff and the defendant has consented to the jurisdiction of such a forum, under no circumstance can either party have their case transferred to a regular court.99 3.1.6 Customary Courts Customary courts are not established by law, despite their constitutional recognition. They are only recognized, not created, by law. The authority of these courts stems from tradition and local customs. These courts have evolved from traditional elder councils, which do not have legal authority, but carry moral force and still operate widely as primary decision-makers in rural areas throughout Ethiopia. To name but a few of the customary courts: the Shemagelle in Amhara, the Bayito and Abo Gereb in Tigray, and the Luba Basa in Oromia. In addition, the choice whether to take a dispute to regular courts or to one of those non-official forums is entirely left to the parties. The other wings of the government that can have direct influence on the accessibility of justice are the law enforcement institutions. Perhaps a highlight discussion on them is relevant. The following are the major law enforcement institutions in Ethiopia:

99

Article 5(4) of Proclamation No. 188/1999 63


3.2 Federal Institutions a. The Ministry of Justice The Federal Ministry of Justice is part of the executive branch of the Federal Government. The Federal Ministry of Justice has the primary authority of prosecution of cases falling under the jurisdiction of federal courts.100 Article 23 of Proclamation No. 471/2005 enumerates the powers and duties of the Ministry of Justice. The Federal Ministry of Justice: 

Is chief advisor to the Federal Government on matters of law;



Represents the Federal Government in criminal cases falling under the jurisdiction of the Federal Courts;



Orders the conduct of investigation where it believes that a crime the adjudication of which falls under the jurisdiction of the federal courts has been committed; orders the discontinuance of an investigation or instructs further investigation on good cause; withdraw criminal charges in accordance with the law;



Studies the causes of and the methods of crime prevention; devise ways and means of crime prevention; coordinate the relevant government organs in crime prevention;



Ensure that witnesses to a criminal case are accorded protection, as necessary;



Assists victims of crimes or violations of human rights in civil proceedings to claim damages where such victims are unable to institute such claims in federal courts and to follow up the proceeding on their own;



Institutes or cause the institution of suits or intervene at any stage of the proceedings of such suits before federal and regional state courts, any judicial body or arbitration tribunal where the rights and interests of the public and of the Federal Government so require;



Registers religious organizations, nonprofit making foreign organizations and, unless specific power is given to other government organs, non-governmental organizations and associations operating in the cities of Addis Ababa and Dire Dawa or in more than one Regional State;



Follows up, as necessary, the handling of civil sots and claims to

100

See art 23 of Proclamation No. 471/2005 which itemizes the powers and duties of the Ministry of Justice. 64


which the federal government organs are parties; cause reports-to be submitted to it on same, and ensure that competent staff is assigned for the purpose; 

Assists in the preparation of draft laws when, so requested by federal and regional state organs;



Issues, supervises and revokes licenses advocates for practicing before federal courts;



Provides legal education through the use of various methods with a view to raising public legal consciousness in relation to the protection of human rights; cooperate with the appropriate bodies regarding legal education and training;



Undertakes legal reform studies and carry out the codification and consolidation of federal laws; collect regional State laws and consolidate.

Article 10 of the Council of Ministers Regulation 44/98 deals with the accountability of the Federal Prosecutors and stipulate that prosecutors shall be accountable to the Minister of Justice and also to their immediate or any superior. As the ultimate superior of all prosecutors, the Minister of Justice may thus initiate a specific criminal investigation or stop another. The Minister also has the authority to reverse a decision of a prosecutor or to dismiss a pending case. b. The Federal Police Commission The Federal Police Commission is established by the Federal Police Commission Proclamation No.313/213.101 The Commission is accountable to the Ministry of Federal Affairs.102 Article 6 of Proclamation No.313/213 provides that the Federal Police have, inter alia, the following powers and functions: 

Prevent and investigate crimes that fall under the jurisdiction of Federal Courts;



Prevent any activities in violation of the Constitution that may endanger the Constitutional order;

101

Proclamation No 313/213, art 6 provides that the powers and functions of the Federal Police. 102 Reorganization of the Executive Organs of the Federal Democratic Republic of Ethiopia Proclamation No. 256/2001 Article 6. 65




Prevent violence against public peace, hooliganism, terrorism, trafficking in and transferring of drugs;

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Prevent crimes against the interests and institutions of the Federal Government;



Without prejudice to Sub-Article (2) of this Article, maintain law and order in any region in accordance with the order of the Federal Government when there is a deteriorating security situation beyond the control of the concerned region and a request for intervention is made by the region: or when disputes arise between two or more regions and the situation becomes dangerous for the Federal security;



Safeguard the security of borders, airports, railway lines and terminals, mining areas, and other vital institutions of the Federal Government;

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Give security protection to higher officials of the Federal Government and dignitaries of foreign countries;

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Execute orders and decisions of courts;

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Execute orders issued by the Federal Public Prosecutor in regard to investigation of crimes;

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Issue a certificate of no criminal record.

c. The Federal Prisons Commission The Federal Prisons Commission is established by Proclamation No.365/2003 as an institution accountable to the Ministry of Federal Affairs.103 The objectives of the Commission is to admit and ward prisoners, and provide them with reformative and rehabilitative service in order to enable them make attitudinal and behavioral changes, and become law abiding, peaceful and productive citizens. The Federal Prisons Commission has powers and functions akin to most prison facilities.

103

Federal Prisons Commission Establishment Proclamation No 365/2003, art

34. 66


3.3 State Institutions a. The State Justice Bureaus The State Justice Bureaus mirror the Federal Ministry of Justice in their structure and mandate. The State Justice Bureaus are part of the executive branch of the State government. They have similar powers and functions with that of the Federal Ministry of Justice. The Head of a State Justice Bureau has similar powers with the Federal Minister of Justice. b. The State Police and Prison Commissions States are allowed to establish their own Police and Prison Commissions.104 The Police and Prison Commissions of the States are accountable to the State Justice Bureaus. Even though the State Police and Prison Commissions are functionally independent, they are obliged to cooperate with their federal counterparts in order to maintain improved conditions of prisons across the nation.105

104

See FDRE Constitution, Article 52. See Federal Prisons Commission Establishment Proclamation No.365/2003, Article 34. 105

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Chapter Four 4. The Challenges of Access to Justice in the Arsi Zone of the Oromia Regional State Before directly proceeding to the analysis part of this study the researcher is convinced that it is advisable to precisely outline the skeleton of this chapter to the readers. The main purpose of this chapter is to identify the challenges of access to justice in the Arsi zone of the Oromia Regional State in Ethiopia. This means, it is going to study the subject matter in the Arsi Zone with particular emphasis on five identified weredas incorporated in the mentioned zone and on the institutions that are charged with the duty or the power to render justice or the so called Justice Institutions namely the Courts, the Justice Bureau, the Police. Accordingly, the following are the available weredas in the Zone: Asako, Asella, Bekoji, Colle, Digalu Tijo, Dodota, Gololcha, Lode Hetosa, Merti, Munesa, Arsi Roobe, Seru, Shirka, Sude, Tana, Tiyo and Ziway Dugda. However, after seriously considering various similarities or attributes related to the weredas such as the location, available datum, distance, budget constraint, hierarchy of government structure, and so on the researcher has decided to study the subject matter in 5 of the weredas out of the existing weredas namely, Munesa, Arsi Robe, Shirka, Sude, and Tena. The next step taken by the researcher is identifying the methodologies that have to be applied in order to identify the challenges of access to justice in the weredas mentioned above. As clearly stipulated on the part of the research methodology, being guided by existing literature and international standards outlined by access to justice research institutions the researcher has identified 4 basic elements of access to justice that serve as a tool to measure or influence or guarantee access to justice in a certain legal system. These are: Legal Knowledge of Citizens, Legal Framework, Advice and Representation, and factors associated with Access to justice institutions. Hence, the next logical step undertaken by the researcher is to study the situation of the institutions vested with the power to render justice in each wereda from the perspective of the above elements. The main tools of research used in due course are Interview, Questionnaires, Existing data (statistics) and Focus Group Discussions. The 68


researcher has operated not few numbers of interviews with 5 respondents in each wereda who are the service users of justice institutions or litigants. Each of them are identified based on merit (such as gender, literacy rate). Then questionnaires were distributed to 1 judge, 1 Public prosecutor and one policeman in each wereda. The questionnaires are prepared regarding the elements of access to justice mentioned above and are different to different respondents. Hence, the questionnaires are coined in a way that they can generally encompass all the mentioned elements in all the justice institutions and are to be responded by Judges, Public Prosecutors, and Policemen. In addition, the researcher has reviewed the existing data (whenever necessary and per the nature of the element in question) in the institutions mentioned above and finally the researcher has conducted informal focus group discussions in mentioned weredas of the zone on the challenges of access to justice in the Arsi Zone of Oromia Region attended by personnel from the institutions mentioned above. The final step in this chapter is writing the analysis of the study and identifying the results thereby suggesting the necessary conclusion and recommendations.

4.1 The Challenges of Access to Justice related to the Element of Legal Knowledge This is one of the basic 3 elements of access to justice that would serve as a tool to identify the quality of access to justice in a certain legal system. The logical deduction from this element would be, the more there is legal knowledge from the side of the clients of justice institutions, the more the citizens will have an opportunity to access justice institutions and the less the legal knowledge is available the more it becomes a challenge or barrier to the customers to access justice institutions. In addition it also refers to the legal knowledge possessed by the personnel from the justice institutions and the adequacy of legal information or knowledge available in the study area. By legal knowledge we are referring to the knowledge of the customers or service users of the institutions mentioned above and even the personnel of justice institutions about the law, their rights and duties and the mechanisms available to solve their common justice problems.

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To further understand the element of legal knowledge of customers of justice service, the researcher has developed interview questions and conducted an interview and distributed questionnaires to be responded by respondents, which includes clients, judges, public prosecutors and policemen. The interviews are destined to measure the element (legal knowledge) from the parameter of the following two basic sub-elements and their sub-categories: 1. To what extent are citizens aware of their rights and duties?: To find solutions to their justice problems, citizens in the weredas of Arsi Zone need to understand, at least in very general terms, that they have been wronged in some way or are not receiving something to which they are entitled. They do not necessarily need to have specific knowledge of their rights and interests. Under this category the interview questions tried address the following factors: a. What factors affect whether citizens are aware of their rights and duties: the following are considered as dominant factors under this category: - Education: Citizens in the weredas need to be educated on their basic rights and duties about the legal framework being applicable in their country or the regional state they are living in and as to how to obtain a solution to their problems in the formal or informal justice systems. The fact of the matter is, populations with poor levels of education and literacy often do not make use of their rights and duties because they simply do not know about them. Illiteracy may also prevent citizens from obtaining information on the workings of the justice systems. For instance, as vividly evident from literature, education can be a particular challenge to women especially in third world countries and rural communities. - Available Information from Government and Non-State Institutions: Knowledge depends on good information, and virtually all the institutions within the formal and non-state justice systems have a responsibility to educate and inform the people who rely on their services. They should ensure that citizens can access information when it is requested. If government and non-state institutions are reluctant or lack the resources to provide information, citizens will not know

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they have any means of obtaining a solution to their justice problems or know about their rights and duties. 2. To what extent are citizens aware of mechanisms available to solve their common justice problems: To know how to solve their justice problems, citizens will do well if they understand the steps and strategies they need to take in order to address them. If they cannot address their justice problems on their own, they must at least know which institutions that they can go to for assistance. Citizens tend to seek assistance first from the closest institutions available. This may include local authorities, such as village chiefs and other communal authorities, as well as paralegals, such as NGO personnel and community-based volunteers. At the district or national level, there are more authorities available, including policemen, clerks and prosecutors. a. What factors affect whether citizens know about mechanisms to solve their common justice problems?: the following are considered as dominant factors under this category: - Trust of Relevant Institutions: Citizens have to trust the relevant institutions that can help them address their justice problems. Citizens are more likely to trust and be familiar with local institutions and authorities than they are with policemen, clerks, and prosecutors. This may be particularly true for marginalized populations. They may fear the police or prosecutors because of past incidents of abuse or mistreatment. - Existence of Social Networks in the Community: Social networks that are trusted and familiar may effectively provide information to citizens about the institutions that are available to help them with their justice problems. After having discussed, the essence of the first element and its subcategories; how it influences access to justice and what are the particular factors that further or in depth influence its proper existence in a certain legal system. Now let us proceed to analyze the first element of access to justice, i.e., Legal Knowledge in the study area (the weredas included above) based on the operated interviews and questionnaire as mentioned above.

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4.1.1 Analysis of Interview Questions and Questionnaires on Legal Knowledge on the five weredas of the Arsi Zone (Munesa, Robe, Seru, Shirka, and Sude) a. Analysis of Interview Questions operated with Clients or disputants or service users of justice institutions (courts and police stations) in the identified weredas: The researcher has conducted an interview with a total of 25 client respondents in five of the weredas of which 10 are women (two in each wereda), five are Elderly (one from each wereda) and the remaining 10 are selected randomly. In line with the various factors that could be used as a tool to measure the first element of access to justice which is legal knowledge, the researcher has carefully developed the following 16 interview questions (to client respondents) to be able to address the matter holistically: 1) Do you know that it is your constitutional right to get an education (formal or informal)? 2) How do you evaluate the extent of your knowledge about your basic rights and duties before the law? If detained or imprisoned your related rights as a prisoner or a detainee? 3) Have you ever accessed or read or get information from legal materials about your rights and duties or to alleviate your legal problems? 4) Have you ever accessed or read or get information from legal materials produced in your local language about your rights and duties or to alleviate your legal problems? 5) How do you evaluate your level of education to be able to know and understand the law? 6) Have you accessed legal information or acquired legal education that will help you solve your legal problems from the government or pertinent state actors? 7) Do you have the experience of participating or acquiring legal knowledge or information from popular education programs or media such as TV, Radio, and Newspapers and so on? 8) Do you have the experience of acquiring adequate legal information about your rights and duties from state or non-state justice actors?

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9) Do you believe that you have enough legal knowledge to present your claims or defend your interest, in the language of the law, before a court? 10) Imagine that you have already encountered a legal problem or dispute that has to be solved; do you know, as to where to go, to address your problem? 11) Do you know that legal problems can be solved by also seeking assistance from informal but close institutions available in your locality such as village elders or chiefs, paralegals NGOs and so on? 12) Do you trust relevant justice institutions (such as police, prosecutors) to help you acquire or know and address your legal problems? 13) Are there local social networks in your community that are trusted and familiar to effectively provide legal information and help you with your justice problems? 14) Are you even aware of the availability and benefits of obtaining assistance on your legal problems from pertinent institutions? 15) Have you ever abandoned or give up a legal problem you have already encountered due to lack of information as how to alleviate the problems? 16) Do you know the functions of lawyers (judges, attorneys or prosecutors, defense counselors, interpreters, legal aid officers)? 17) Do you know the function of courts, police, justice bureaus, or prison administrations? 4.1.2 Analysis of the responses given by client respondents on the element of legal knowledge -

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Regarding the first question i.e., do you know that it is your constitutional right to get an education (legal or otherwise), which may be either formal or informal, under article 90 (2) of the FDRE Constitution; of the five respondents interviewed in Munesa wereda only one responded positively. The remaining four stated that they do not even know it is their constitutional right to get proper education (general or legal). The situation in Seru wereda is almost the same in that of the five respondents only two responded positively. They even showed blurred understanding as to the whatness of the constitution. But they generally said now a day they see that every child is going to school.

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The scenario in not different in shirka wereda that only one respondent answered positively and with full awareness of the right to education and even the constitutional guarantee. In Sude wereda of the five respondents, one responded positively with a pending doubt as to the constitution and the rest responded they have no idea. However, the situation in Robe wereda is a little deviant in that 3 respondents know that they have the right to education but one does not know the concept of the constitution at all. Regarding the second question, which reads as, how do you evaluate the extent of your legal knowledge about your rights and duties before the law? The response given by all the respondents from all the weredas is horizontally the same in that they valued their legal knowledge as very poor and their concept of the law is entwine with the tradition or norms in their locality. However, one respondent in Robe valued his legal knowledge as fair. The purpose of question number 3, 4 and 5 is the same in that there target is measuring literacy rate of the respondents and the effect of illiteracy as a notable barrier to access justice institutions. For the question, how do you evaluate your level of education to be able to understand to be able to understand the law? Of the twenty five total respondents (from whom 14 are uneducated, 6 with elementary education, 3 who completed12th grade and 2 diploma holders), only 3 respondents valued themselves as possessing good level of reading and understanding the law. The rest equated their level of education as very poor. In line with this, the responses given to question numbers 3 and 4 are in direct correlation with question number 5, which depends on level of education. These questions are destined to measure on the one hand, rate of literacy and on the other issues like ability to read and understand the law in local languages and even the availability of legal materials produced in local languages. Accordingly, of the total number of respondents only 5 of the respondents replied positively in that they can read and understand legal materials produced both in local or national languages of the country. They affirmed however, they have come across no such a material on the law. Questions number 6, 7 and 8 respectively question as to whether the respondents have acquired, legal education or information that will help them to be aware of their rights and duties, from the government or 74


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government actors or from non-governmental actors or popular education programs such as via the instrumentality of mass media (such as TVA and Radio)? The purpose of these questions is measuring the accessibility of legal knowledge to citizens in the study area. Here, one should keep in mind that it is also the duty of the government to make such education or information available to its citizens (whether formally or informally). This is a major point of concern because most of the cases such services are only predominantly available in urban areas or cities and do not usually reach to weredas. Accordingly of the 25 respondents in all the weredas 20 of them responded negatively that they have not acquired legal education either from the government sources or their non-governmental counter parts directly via training programs or indirectly via mass media. Only 5 of the respondents replied positively to the questions regarding to the TV and radio programs on legal education broadcasted on national television and radio such as programs like “police and the community” and “chilot”. They added that even the duration of the TV programs is too short and they even attend to them irregularly. In addition however, they affirmed that they have never come across direct training programs from the government. The intention behind question numbers 9, 10 and 11 is assessing the level of legal knowledge of the respondents in depth regarding the language of the law in justice institutions and the rules of procedure in courts and police stations. Among others, the questions refer to issues like: do the respondents know where to go when they encounter legal problems? Are they aware as to how to present their claims? Are they aware that they can seek legal assistance not only from formal actors but also the informal ones beginning from their communities and so on? About this point the researcher wants to emphasize the fact that to be aware of the above issues it takes or requires possession of a deeper knowledge and understanding of the law and not to mention high level of literacy. The other point of significance worth mentioning here is that, not knowing of a client about its rights and duties being one thing, if s/he does not know where to go or the what about of justice institutions or where to seek an assistance in a case of a legal problem, it amounts to a double layered barrier to access the justice institutions. In this regard, of the total of 25 respondents 16 of them replied that they have no idea of legal knowledge about the points mentioned in the interview questions above. Plus, when the researcher questions them how are they in courts right at the time of the interview they replied that they are 75


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summoned by the court. These respondents, on the other hand stated that they are aware of the informal or local mechanism of dispute resolution such as Jarsuumaa and Guma and so on. The remaining nine respondents reveal the fact that they are aware of the justice institutions such as courts and police. However, they confessed that they do not know as to how to act in courts or the rules of procedure thereof. Of the nine 4 in addition mentioned that they are aware of the legal assistance providers whom they referred as “abbocatoo”. On the other hand, question number 12 addresses one basic factor in relation to access to justice, which is the trust and confidence of the public at large towards the justice institutions to use such institutions as a source of legal knowledge which helps the public as to how to alleviate their problems. It should be noted here that if the public does not put its trust in such institutions it will not dare to use them as a source of information. In line with this, the researcher has understood from the responses that there is high degree of mistrust and in confidence towards justice institutions which is the case against the very purpose of incorporation of such institutions i.e., serving the public at large expressed via rendition of justice. To the astonishment of the researcher almost all the respondents from all the weredas mentioned that they do not trust justice institutions due to the various factors seemingly associated with them such as corruption, delay of justice, denial of justice, high cost of service, distance and so on. On top of this about five of the respondents shared their previous experience in which they encountered a legal problem and abandoned their problems by declining to go to court due to their mistrust of justice institutions. Regarding the question whether they trust non-formal mechanisms of dispute settlement or the local adjudicators thereof and use them as source of informal legal information they responded positively. The final two interview questions are intended to basically address the knowledge of the respondents about each actors or personnel staffed in the justice institutions and their respective functions, such as judges, public prosecutors, defense counselors, court interpreters, legal aid officers and the police. Out of the 25 respondents 10 replied that they literally have traditional knowledge of the function of judges and the police. 6 replied they have no idea at all and the remaining 9 replied that they know the function of judges, prosecutors and the police but they fell short to know the functions of defense councilors and court-interpreters. 76


4.1.3 Analysis of Questionnaire Questions and Informal Interview Questions on the Element of Legal Knowledge operated with Judges, Public Prosecutors and policemen in the justice institutions (courts and police stations) in the identified weredas: The availability of legal knowledge does not only depend on the awareness of the service users but also on the efforts of those institutions charged and equipped basically with the duty and capacity to make it accessible to the public at large. Hence, an effort to identify the challenges related with the elements of access to justice regarding legal knowledge would not be holistic without inquiring in to the affairs of justice institutions and their staffs. Accordingly, the researcher has developed the following questionnaire questions (to be responded by a total of 5 judges (one from each wereda), 5 prosecutors (one from each wereda), and 5 Police Officers (one from each wereda)), on the element of legal knowledge: 1. How do you evaluate the amount and quality of legal information or education available to citizens in your wereda? 2. How do you evaluate the extent to which legal information is produced in local languages? 3. How do you evaluate the activities undertaken by your institution to enhance legal knowledge among citizens? 4. How do you evaluate the level of information dissemination by the state? 5. Does your institution use various types of mass-media to communicate legal awareness messages to the community at large? 6. Does your institution endeavor to educate citizens formally or informally on how to access your institution or address their legal problems? 7. Does your institution know that it has a duty to educate and inform citizens about the services rendered or the workings of the institution? 8. Does your institution employed popular education methods in community education programs? 9. Do you have the experience of receiving capacity building trainings from state or non-state actors to boost your ability to provide information to citizens? 77


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10. Do you know the constitutional and legislative provisions guaranteeing access to information, as well as freedom of information policies and rules to implement them? 11. Do you try to disseminate legal information produced in userfriendly formats, including those targeted to people with low level of literacy skills or disabilities? 12. How do you evaluate the level of awareness of citizens to solve their common justice problems? 13. Do you think your institution has won the trust of the surrounding community to educate them about their rights and duties? 14. Does your organization have social education program networks in the community? The first question on the questionnaire destined to be replied by the staff members of the justice institutions is targeted to evaluate the amount and quality of the legal information available both to citizens and staff members of such institutions in the identified weredas mentioned above. All the 5 judges from the five weredas evaluated the degree of availability of legal knowledge or information or education as poor. They further justified that let alone the availability of adequate legal knowledge as among the public at large, they have found it very difficult to acquire all the knowledge and information regarding the law. The responses convincingly affirmed that the major source of legal knowledge available to them is basically in the form of codes and proclamations which are by themselves in short supply. They further emphasized that the situation is worse when it comes to making available such codes and proclamations to the public at large considering the cost and volume of demography. One judge further mentioned that the fact that they are living in weredas or remote areas is also the other major factor that impact the proper dissemination of legal knowledge due to lack of basic infrastructure. In this regard, for example the internet could play a pivotal role however it is almost unavailable, he concluded. Regarding the same issue (the availability of adequate legal knowledge in their weredas) the evaluation of the 5 public prosecutors from the five weredas is not different from the assessment of the same by the judges. According to the summation of their individual responses, it is logical to evaluate the availability and quality of legal knowledge or information and education both in their institution and in the entire weredas as poor. Almost all of them 78


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also stressed on the fact that the office of the public prosecutor is not by itself properly staffed and well equipped or it is usually established as a department within the compound of courts. This made the situation in relation to the availability of legal knowledge worse even to the staff of the office. On the other hand, when comparatively analyzed, the responses given by the 5 police officers from the five weredas regarding the same question is harsh. The officers mentioned that the public is not aware of the workings of the police and the laws related to police work and as a result there is a general misconception of their institution. There response further signifies the fact that let alone the availability of adequate legal information to the ordinary citizens they do not even acquire enough legal information regarding police work except the provisions of the law they come to know from experience. In conclusion, they rated the availability of legal knowledge in their respective weredas both to the public at large and their own institution as very poor. The second question under this part of the questionnaire is very much the continuation of the first question except this question emphasizes on the availability of legal information which is produced in local languages. Here a point should be made that if legal knowledge is available in local languages it eradicates lots of other related barriers to access justice institutions. This question is responded uniformly as very poor by all the respondents (judges, public prosecutors and policemen) in that where it is even very difficult to understand the language of the law (even when produced in local languages) it is worse when one thinks about its negligible availability in non-local languages. Whereas the working language of the justice institutions is Oromifa most of the legal codes and proclamations are available in English and Amharic languages. Their responses point out that the non-availability of legal information produced in local languages is one of the major barriers to the proper dissemination of legal information to the public at large. The 3rd question is destined to analyze the magnitude of the various efforts of the justice institutions on the one hand and the professionals on the other (as a primary stakeholders regarding the law) to enhance and disseminate legal awareness or improve the legal knowledge of citizens living in the respective weredas to be able to understand the law and defend their claims. Accordingly, all the respondents from all the institutions and 79


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respective weredas responded to the question that their institutions (courts or justice office or the police) does not have the experience and the resources to provide (undertake) adequate, regular, and formal training or public awareness programs to enhance the legal knowledge of the surrounding community. On their part the judges justified that they tend to informally dictate their clients about the law in due course of a face to face encounter in courts or before the beginning of a trial while clients wait in reception. Their responses signify that such efforts are neither frequent nor satisfactory and made on individual level. In a similar fashion, the responses from the public prosecutors convey the message that there is no such effort under the ambits of their office on wereda level, among other things, due to the fact that the office itself is barely organized. The responses of the police officers are not different. They stated that there is no formal schemes put in place by their institution to educate the accused or detainees in their custody. However, they did not forget to mention that the officers personally and informally try to educate detainees during time of contact. The purposes of question numbers 4 up to 8 is also the continuation of question number 3. These questions emphasize on measuring the roles of either the wereda representatives of the government or the courts or the office of the public prosecutors and the police in discharging their respective duties of enhancing the availability of legal knowledge of the surrounding community either directly or formally via trainings and popular education programs or indirectly in collaboration with mass media such as TV and Radio in a user friendly environment targeting citizens with low level of literacy. In this regard all the participants of this interview assessed the efforts of the institutions mentioned above as poor. Among other things, they associated the problem with the lack of adequate budget and skilled man power destined exclusively to that effect. On the other hand, question number 9 strives to assess whether the respondents themselves (judges, prosecutors and police) receive formal and regular capacity building trainings to boost or update their own legal knowledge which among other things is a typical tool for them to further train their clients. In this regard, the judge and prosecutor respondents confirmed that they have had trainings to improve and update their knowledge of law but the trainings are not adequate (very few), irregular and mostly informal. The responses reveal that such trainings are given by the Justice and Legal System Research Institute of the Oromia Regional State 80


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(JLRIO). The responses of the police officers however is worse in that the trainings they acquire are mostly physical than trainings that focus on the law. And those trainings that focus on the law given to them are almost nil and inadequate. The final question is developed by the researcher to assess as to how the respondents of this part of the interview evaluate the tendency of the public at large to trust such institutions and use them as a source of legal information. In this regard all of the respondents admitted the fact that there is high degree of mistrust and in confidence from the side of the public at large towards their institutions and the services provided thereof. The respondents further suggested that this problem could be eradicated in the future with the eradication of the causes of the problem when their institutions are well organized and efficient to tackle the day to day problems of the public at large.

4.2 The Challenges of Access to Justice related to the Element of Legal Framework This is the second element of access to justice that serves as a tool to measure the challenges related with access to justice or impacts citizens‟ ability to use justice institutions to solve their common justice problems. We cannot talk about access to justice in a certain legal system if there are no provisions envisaged in the law that guarantee citizens right to be able to bring and solve their justice problems before the pertinent institutions. Otherwise speaking, if it is not legislated, it will never be enforced. From the above, the logical correlation would be, the stronger the legal framework is in establishing citizens‟ rights and duties or the more the legal framework provides citizens with mechanisms to solve their common problems, the more the right to access justice institutions is guaranteed. And to the contrary, the weaker the legal framework, the more it signifies the presence of a challenge to access justice institutions. To further understand the element of legal Framework in the study area of this research, the researcher has developed a questionnaire to be filled by respondents who are in a relatively better position to know and inform as about the existence of adequate legal framework in their respective weredas. These are judges, public prosecutors and policemen. The questionnaire is

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destined to measure the element (legal framework) from the parameter of the following basic sub-element and its sub-categories: 1. To what extent is there a legal framework that establishes citizens’ rights and duties and provides citizens mechanisms to solve their common justice problems: The existence of a set of written or unwritten laws lays the foundation on which citizens can rely to seek solutions to their justice problems. Among others, in order to fully preserve the right to access justice institutions the legal framework in a certain state should incorporate relevant laws related with access to justice, such as: - State laws: are laws that have been enacted by your country‟s government. State laws often appear in a constitution, the highest law of the land. A constitution enumerates the power, duties, structure, and procedures of a government. It is important that the constitution contains human rights and access to justice principles to provide a basic framework that the government and citizens are required to observe. Legislation such as the criminal and civil procedure codes of a country can help to provide a more detailed framework, including how to implement constitutional provisions. - Formal justice systems: refer to the courts, the judiciary, and prosecutors. A court consists of an official public justice institution authorized by state law to adjudicate disputes and apply laws. The judiciary is made up of judges and other officers. The prosecution is the legal party responsible for presenting a case against a citizen accused of a crime in a criminal proceeding. Prosecutors will also enforce the judgments of a court. - Non-state laws: are laws that are not enacted by governments, but through social interaction, and reflect customs, norms, and accepted behavior within a certain group or community. They can be written or unwritten. - Non-state justice systems: refer to institutions of justice that adjudicate disputes outside of formal court systems. This includes nonstate justice systems such as traditional and indigenous systems, and state-sanctioned alternative dispute resolution institutions. Both provide an alternative to formal court litigation. The term “non-state” can be used interchangeably with other adjectives commonly used to

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refer to these systems, such as “informal,” “customary,” “traditional,” and “indigenous.” In formal justice systems, the legal framework establishes the rights and duties of citizens. It also defines when a problem, conflict, or dispute is a justiciable event, an event that is capable of being decided by legal principles or by an institution of justice. In this regard you may refer to Article 37 of the FDRE constitution. The legal framework should also enable citizens to bring legal proceedings at justice institutions that deal with those justiciable events. Determining which justice institution is able to hear a citizen‟s case invokes principles like jurisdiction - the types of cases that a court is permitted to hear - and standing - which parties are permitted to bring a case. The adversarial nature of court decisions generally results in a “win-lose” outcome, whereby one party‟s gain is another party‟s loss. In non-state justice systems, customary laws and practices shape the legal framework that is used to resolve a problem. Oftentimes, the problem is viewed as relating to the whole community as a group. The solution to the problem strongly emphasizes reconciliation and restoring social harmony. The focus is on duties rather than individual rights, as in the formal justice system. Decisions made under this framework are intended to find solutions to problems that restore social harmony. Under the first factor the following shall be addressed: a. What factors affect whether the legal framework establishes citizens’ rights and duties and provides citizens mechanisms to solve their common justice problems: - Clear Rules and Standards: In formal justice systems, clear rules and standards are needed to define how constitutional provisions will be implemented. In non-state justice systems, where there may be a lack of substantive laws, formal procedures in decisionmaking and minimum standards for mediators and arbitrators to follow, the rights of victims and suspects are protected only by social and customary norms. As such, the outcome of decisions will depend on the knowledge and moral values of the individual mediator or arbitrator. The absence of clear rules and standards in either the formal or non-state system may lead to arbitrary or discriminatory practices by the official conducting the proceeding. 83


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Non-discriminatory Legal Framework: A law, rule, or regulation should confer the same rights on all categories of citizens, especially vulnerable populations. Laws or regulations that deny rights to one or more categories of citizens are discriminatory. For example, in some societies, some local customary laws, including inheritance laws, family laws, and laws on the right to own property, may discriminate against women and contradict protections provided by international law. These laws reflect social and customary norms that give women second-class status.

4.2.1 Analysis of Questionnaires Questions and Informal interview on the element of Legal Framework on the five weredas of the Arsi Zone (Munesa, Robe, Tena, Shirka, and Sude) distributed to personnel of justice institutions (judges, Prosecutors and policemen) in the identified weredas: The researcher has developed and distributed questionnaires on the element of legal framework incorporating a total of 17 questions to be responded by a total of 15 respondents, which are, 5 judges (1 from each wereda), 5 public prosecutors (one from each wereda), and 5 police officers (1 from each wereda). With respect to client-respondents the researcher has found them to be not convincingly relevant to be used as a worthy source of information and render a meaningful response regarding the element of Legal Framework, for they do not have both the opportunity and the ability to assess this element of access to justice. In line with the various factors (mentioned above) that could be used as a tool to measure the second element of access to justice which is legal Framework, the researcher has carefully developed and incorporated the following 17 questions in the questionnaire (to personnel respondents) to be able to address the matter holistically: 1. Does your organization put in place clear rules and guidelines or standards that are needed to define how constitutional provisions regarding your institution will be implemented? 2. Does your organization put in place substantive laws and formal procedures in decision making and minimum standards for both for formal adjudicators and ADR officials (mediators and arbitrators) to follow in due course of adjudicating the right of victims and suspects? 84


3. Do you believe that the lack of clear rules and standards influences the right of citizens to access justice institutions to solve their justice problems? 4. Do you believe that the existing rules and regulations in your institutions in your organization confer the same right (protection) to all categories of citizens, especially vulnerable groups? Or are they nondiscriminatory? 5. Are the rules or laws applied by your organization in due course of ADR adjudications non-discriminatory? 6. Does your institution promote comprehensive research and knowledge development of traditional and indigenous systems in order to record and research laws and traditions that may be useful in dispute settlement? 7. How do you evaluate the tendency of judges, public prosecutors or the police and those who work in the formal legal system to better understand and consider utilizing indigenous practices while adjudicating a dispute involving indigenous disputants? 8. Does your institution or the government give regular capacity building trainings to relevant authorities such as formal court judges, mediators and arbitrators in order to make them be aware of their mandate and duties, including the rules of procedure and standards they need to follow? 9. Does your organization have code of ethics and a handbook on how to apply code of ethics including training on minimum standards, human rights and international standards? 10. Does your organization work in partnership with the legislative branch of the government to ensure that laws and regulations are drafted using clear and plain language? 11. Does your organization give trainings to develop the capacity of customary leaders and improve the quality of decision making in nonstate adjudicatory actors? 12. Does your organization work in partnership with non-state actors and disadvantaged groups and so on in order to address the discriminatory effects of social and customary practices? 13. In the locality your institution operates, are there state laws that create clear legal rights for citizens with in the formal justice system?

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14. In the locality your institution operates, are there customary laws and practices that create clear legal rights for citizens with in the informal justice system? 15. Do you believe that these laws and practices are clear or simple to understand? 16. Does your organization consistently enforce and apply laws (federal or state)? 17. Are the informal systems of dispute settlement mechanisms, which are available in your wereda, given the power (recognized), by law, to solve justice problems or to provide an enforceable remedy to such problems? Are they independent by themselves or operated being annexed to the court? The first question on the questioner was posed to all the respondents from all the weredas being contextualized to be responded by personnel from each instititution. Hence, regarding the first question which reads as, does your organization put in place clear rules and guidelines that are needed to define or outline as to how constitutional (federal/state) provisions in relation to the workings of your institution, will be implemented; it was the uniform response of the 5 judges from the 5 weredas that there are some rules however they are informal, not clearly articulated and standardized. On the other hand, the responses collected from the five prosecutors are also the same in that the respondents are generally aware of the constitutional rules however when it comes to clear rules and standards of implementation, they said a lot should be done to that effect. Otherwise they replied that there are no clear rules and standards. Regarding the responses of the five police officers from the five weredas, their situation with the issue at hand seems acute in that they mentioned that they only have rules and standards which are clearly outlined regarding only physical police work such as how to dispatch in case a problem is reported and so on. In addition, their responses reveal that they are not even aware of constitutional provisions on police work except, very few of them. Hence it is deductible from their responses that their organization does not put in place clear rules and guidelines that are needed to define how to implement constitutional provisions regarding the affairs of their institution. When it comes to the second question, which read as, does your organization put in place substantive laws and formal procedures in 86


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decision making and minimum standards for both the formal and the informal mechanisms of dispute settlement; the responses written by the five judges is similar only regarding the placement or the availability of adequate substantive and formal procedures strictly on the formal mechanisms of dispute settlement. Accordingly, they replied that it is not primarily the duty of their organization to articulate and design such rules of substance and procedure but the same are defined by the law itself. They further stated that the procedure in courts is defined by the civil and criminal procedure codes of the country and it is the duty of every justice institution to duly apply it in due course of administration of justice. However, they did not hide the fact that, they do not have internal manuals and guidelines to uniformly apply such laws of procedure internally. On the other hand, regarding the rules of procedure in extra-judicial mechanism of dispute settlement the responses reveal that there are no procedural rules that they are aware of or guidelines to be followed in due course of ADR adjudication. However, as far as the substantive laws are concerned, both referring to formal or informal mechanisms of adjudication, they stated that there are substantive rules enacted by the legislative organ of the government that are applied in their institutions. In this regard too they have a concern on whether such laws are objectively applied from bench to bench. Regarding the view of the public prosecutors, all of their responses affirm that there are substantive and procedural laws enacted by the legislative organ of the government regarding their job or that help them in decision making in due course of undertaking the procedures from detention of a suspect to imprisonment. However, their responses reveal that their institution does not have internal rules of procedure to cause proper or an objective application of such laws. The responses given by the police officers reveals that the situation regarding the placement or availability of substantive and procedural laws in due course of decision making in police work is worse in that they are not even sure whether such rules are available and there is no internally placed minimum standards on how to apply such laws (substantive or procedural). However, it is clear from their responses that they use informal procedures and ways of handling police work. On the substantive laws, they said that they are traditionally aware of very few and important provisions of the

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constitution and the civil procedure code related to Arrest, Accusation, and Interrogation and so on. The third question is destined to tackle, whether the lack of clear internal rules and procedures or minimum standards on substantive and procedural laws in justice institutions influence citizens opportunity to access justice institutions and the view of the respondents on the issue. In this regard, all the respondents from all the institutions in all weredas admitted that if there are no such internal rules and procedures which are typical to implement substantive and procedural laws in justice institutions, it becomes a barrier to access justice institutions. Among other things, the researcher compiled the following problems collected from the respondents which are the results of the lack of those internal rules and standards: lack of objectivity in adjudication, partiality in decision making, delay in rendition of justice and arbitrariness and so on. From this it should be noted that, if the above mal practices are observed in a justice institution directly or indirectly the institutions are said to be not accessible or they are not serving the very reason behind their incorporation. The fourth question is destined to ascertain the views of the respondents on whether such substantive and procedural laws applied in their institutions are discriminatory or not? Accordingly, the judge respondents replied that all the substantive and procedural laws applied in their institutions are enacted by the government and as a result, there is no problem of discrimination on the wording of the laws themselves. Otherwise stipulated, what is applicable to the „Man‟ gender is also horizontally applicable to the „women‟ gender. Or the law dictates that everyone is equal before its eyes. Nevertheless, their responses also show that the problem is not on the laws themselves but in due course of application of the rules of substance or procedure by the required personnel in that the latter bend the rules or use legal gaps or highly rely on their discretion than the law and thereby render a discriminatory outcome. Among other things, the respondents mentioned, corruption, favoritism, and conflict of interest as typical factors for the presence of discrimination based on subjective grounds. The responses of the public prosecutors also reveal that it is not either the substantive or the procedural laws that are discriminatory. To the contrary, they mentioned that, the substantive laws even provide remedies or cures to discrimination such as affirmative action to vulnerable groups. However, 88


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the responses assure that it is the problem of individual prosecutors in due course of application of both substantive and procedural laws that made their decisions discriminatory. In addition to those mentioned above the researcher collected additional information from the police officers that there is high degree of discrimination in police work due to the fact that from the beginning the police are not aware of such rules and procedures to the extent they need to be aware of them in due course of handling police work. The fact of the matter is, when this fact is bonded with the lack of the necessary internal rules and guidelines, the consequence among other things would be discriminatory police work. In addition, the one thing that should be underlined here is that, those rules of substance and procedure on police work (constitutional, civil and criminal procedure laws) are not by themselves discriminatory. It is malpractice that resulted in arbitrariness and discrimination in police work. However when it comes to the responses of all the judges on the discriminatory nature of the procedure in due course of ADR adjudications, they affirmed that, first there are almost no court-annexed ADR adjudications (except to family issues) and secondly, there are no clear manuals regarding how to adjudicate disputes by ADR mechanisms and thirdly, there are no rules of procedure that are exclusively put in place to be applied in due course of ADR adjudications. As a result, the responses shows that, for the rules applied are traditional and informal there might be high chance of discriminatory practices. Question number six is very essential in that, it questions the role of traditional or indigenous mechanisms or systems of dispute resolution in helping to promote and supplement the formal system of dispute settlement both in substance and procedure. The question has many implications on access to justice in that laws that do not reflect or consider the contextual realities of the society they mean to govern are not to be observed from the beginning and there is a natural inclination by local communities to trust those rules that reflect their own values and norms. Hence, the promotion of a comprehensive research on such indigenous mechanisms by the justice institutions has ample implication on the accessibility of justice institutions. Accordingly, the questions intends to ascertain whether the institutions (from where the respondents come from) promote or undertake research and knowledge development on traditional 89


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and indigenous mechanisms in order to incorporate the good practices in such systems in to the formal system of adjudication. Accordingly, it is evident from the compiled responses of all the respondents regardless of the institutions they represent that, the institutions do not undertake or promote or engage in a collaborative or joint research or knowledge development programs with or on indigenous systems of adjudication. For instances the judges responded that, if there are such very few endeavors, they are operated under the auspices of Federal Justice Institutions. In addition, among others, they equated the failure to promote the necessary research or knowledge development to the lack of budget, scarcity of resources, lack of skilled man power and defective technical support in their institutions. Question number seven is the continuation of question number six. However, this particular question deals with the above issue not on institutional level but on the individual level of the efforts of the judges or prosecutors or policemen, to research, understand and consider the utilization of such good practices or procedures or laws used by indigenous communities in due course of formal adjudication of disputes. The compiled responses of all the respondents from all the institutions show that the respondents firmly believe in the proper use and incorporation or adoption of such practices in to the formal system due to the fact that they live in the weredas and are within reach to know the various values or mechanisms employed in indigenous ways of dispute settlement. However, they mentioned that, though they do not formally or strictly cause use of such methods for they have a duty to strictly follow the written laws of the land. However, they cause use of them informally in due course of adjudication. The respondents even suggested that for the country follows a written law legal system, the government should operate extensive research on such traditional or indigenous knowledge and practices of dispute settlement in indigenous communities and incorporate them in to the formal laws of the state so that they can be properly applied. On the same issue however, the police respondents give additional points that especially in relation to dispute prevention and settlement they generally cause use of such systems acquired from the community for they are more effective or efficient or fruitful than the formal ways especially when it comes to the settlement of disputes as among such communities or ethnic groups in relation to land grabbing or vendetta and so on. 90


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Question number eight questions whether the justice institution or the government give regular capacity building trainings to personnel of justice institutions judges, mediators, prosecutors, policemen and arbitrators in order to make them be aware of their mandate and duties, including the rules of procedure and standards they need to follow. The responses of the judges and prosecutors reflect that, they generally do have a problem of lack of adequate and regular or formal trainings. The responses reflect that there are of course informal and non-regular trainings from the Justice and Research Institute of the Oromia Regional State. They generally submitted their concern that they need more frequent or regular and formal trainings to be built their knowledge on legal framework (substantive or procedural). The responses of the police are not different regarding the availability training on legal aspects of police work. The respondents affirmed that they need not only trainings on substantive and procedural laws but also trainings on fundamental or basic laws of the country. In this regard, it is also the unflinching belief of the researcher that there would be no institution in a country which can become a giant barrier to access justice institutions than a police force which is not properly trained on the one hand about its own rights and duties and on the other the rights and duties of citizens which may be suspected or accused or detained. Question number nine tries to ascertain the availability of a code of ethics and a hand book on how to apply such ethical considerations on the workings of the personnel in the justice institutions. The responses from all the judge and prosecutor respondents made it clear that there is a nationally available proclamation that deals with the profession and ethics of judges and prosecutors, which expressly rules on minimum standard of knowledge of the law, required ethics, and level of education and so on. However, the responses affirm that there are no hand books or manuals provided by their institutions which show as to how to apply ethical requirements in the workings of judges and prosecutors. In line with this it is also the firm belief of the researcher that the availability of such hand books or manuals is in reminding the professionals about their on-job or off-job ethical duties that they need to maintain in due course of rendering justice to their clients. The presumption here is that a judge or prosecutor who is well aware of such hand books or ethical requirements of his work is deemed to act according to the requirements set thereto and thereby serve the best interest of the customers at large. In a similar fashion the responses of the police officers, 91


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summarized precisely, assures that they do not have such manuals or handbooks on ethical requirements. Rather they do their jobs based on assignments given to them on a daily basis especially on the morning and at the evening. Question number ten, is also the continuation of the preceding questions in that it endeavors to ascertain whether the rules of substance and procedure followed or used by the justice institutions are drafted using clear or plain language and what are the related efforts of the institutions to realize the same via collaboration with the legislative organ of the government. It is evident from jurisprudence that the issue at hand is pivotal in guaranteeing access to justice in that the mere presence of substantive and procedural laws by itself does not mean the laws are enacted vividly so that the required personnel could understand and duly apply them. Hence, in this regard, the researcher believes that justice institutions should play their respective roles in collaboration with the legislature to alleviate the problem. When we converge in to the responses of the respondents to the question, they affirm that such efforts based on collaboration are not available on wereda level but on higher levels of the institutions and the results usually descend to the wereda level. The responses also reveal the concern of the respondents that not only the laws should be written in a plain language but also related supportive materials or references should be made available in their custody. Question numbers 12 to 16 regarding the element of legal framework are destined to measure the adequate availability of the legal framework itself (both substantive and procedural rules or in formal or informal systems of adjudication) and whether the same are properly enforced by such institutions. In this regard the responses given by all the respondents (respondent: judges, prosecutors and police men) are consistent with their earlier responses. In particular the judges and prosecutors does not have a problem with the availability of the laws (substantive or procedural) for the laws are usually enacted by the government and are applicable or descended to the weredas. Hence, they guaranteed that they are available. The respondents rather associated the problem with the improper and subjective application of the laws differently from one judge to another due to factors like low level of education, corruption, lack of internal guidelines and so on. On the side of the police respondents however, in addition to the above problems they said they need to have access to the laws themselves 92


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regarding police work before proceeding to answer questions like; how clear are the laws or do the police need internal standards of procedure and so on. On the other hand, however, the accessibility of justice is not only dependent on the accessibility of the formal system of dispute settlement (which is blamed to be costly, procedural complication, delay in adjudication, high backlog, not a win-win outcome and distant to indigenous communities and so on) but also the related accessibility to the extra judicial mechanisms of dispute settlement, which if available and used properly, are typical tools in alleviating the pitfalls of the formal justice system (these methods are generally found to be relatively, chipper, ease of procedure, win-win outcome, accessible and accepted by indigenous communities, swift adjudication and so on). In addition to this, the mere or nominal presence of ADR mechanisms do not by themselves contribute a dime to the efficiency of the justice institutions, unless, at first, ADR systems are recognized as a means of adjudication and secondly, decisions given by such systems are enforced by courts or the enforcers of the state. It is based on the above logic that the researcher framed the last question under the element of legal framework as: Are the informal systems of dispute settlement mechanisms, which are available in your wereda, given the power (recognized) by law or have their own legal framework in terms of substance and procedure, to solve justice problems or to provide an enforceable remedy to such problems? Are they independent by themselves or operated being annexed to the court? Accordingly, the compiled responses of the judges give the image that such mechanisms or systems are not independently constituted in their wereda but they are generally recognized by the constitution. Their scope and ambit of jurisdiction is not strictly defined. They are simply serving as the supportive wing of the formal system of dispute settlement being limited to some issues such as family cases. In addition, there power of enforcement of decision is directly or indirectly dependent on the fact of approval and recognition by the courts. Unlike the formal system of dispute settlement, the informal or extra judicial system do not have the necessary legal framework (both rules of substance and procedure) which is exclusively developed to properly administer ADR adjudications. The respondents even suggested that the government should endeavor to empower these

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segments of the justice system in order to make justice more accessible to the public at large.

4.3 The Challenges of Access to Justice related to the Element of Advice and Representation This is the other integral element of access to justice which plays a central role in guaranteeing the right to access to justice by citizens. In a third world country like Ethiopia which is characterized by large volume of demography, very few number of lawyers, high level of illiteracy and a weak legal system, the presence of actors that provide the service of advice and representation is non-negotiable to preserve the best interest of the justice service users the majority of whom are layman and do not even know where to go when they face legal problems let alone appreciate the language of the law and defend their interest by themselves. This element serves as a direct check-point to measure access to justice in that the more advice and representation is available in a certain legal system the more the right of access to justice is guaranteed and the less it is available the more the challenges to access justice institutions. To further understand the element of „advice and representation‟ and degree of availability in the study area or the identified weredas, the researcher has on the one hand, framed interview questions that are destined to address clients and personnel from the justice institutions and also developed a questionnaire to be filled by respondents. The questionnaire is destined to measure the element (Advice and Representation) from the parameter of the following sub-elements and its sub-categories: 1. To what extent citizens access the legal advice and representation necessary to solve their common justice problems: Even if citizens know about their basic rights and duties, and the steps and strategies they need to take to solve their justice problems, it is unlikely that citizens will know how to navigate judicial and bureaucratic systems on their own. Citizens may also not know that they have rights or duties, but may still seek legal advice about a problem. Citizens should be able to obtain the professional legal advice and/or representation they need to make informed decisions and choices to assert 94


their rights and interests. This includes the right to free legal advice and representation when they are unable to afford paid services. The legal advice and representation needed to bring a claim will depend on the circumstances of each citizen and case. If citizens can afford to pay for legal advice and representation, then it is sufficient if legal services are available for a fee. However, where citizens are unable to afford legal advice and representation, mechanisms should exist to provide them with legal services free of charge or for whatever sum they can afford. The nature of the justice institution will also affect the level of training and expertise legal assistance providers need to provide effective legal advice and representation. If, for example, the case involves a complex claim before a national level court, it is likely to require the services of an accredited attorney who is well-versed in the laws and procedures applicable in national courts. If, however, the claim is straightforward and the citizen wishes it resolved by mediation, negotiation, or before a non-state, village justice system, a trained paralegal may be appropriate. While in most cases it is the government‟s responsibility to provide legal services to those unable to afford them, the reality in most countries is that government-sponsored programs only meet some of the demand. There are a range of other organizations that can provide legal advice and representation. When analyzing the range of legal advice and representation that is available to citizens, you will therefore have to consider both government initiatives and other sources. The following are the common legal service providers in a legal system: -

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Government Programs: Government-funded legal aid can take a variety of different forms. Legal aid can be provided through a government agency, such as a public defender office, through private lawyers, employed by the government on a case-by-case basis, or through cooperation agreements with civil society organizations (CSOs), whereby the government pays the costs of legal services delivery by a CSO. Pro-bono Assistance: To varying degrees, lawyers and law firms may provide free or reduced cost legal aid to persons who would not otherwise be able to afford legal representation. Civil Society Organizations: CSOs are organizations that frequently supply legal services, whether through lawyers or paralegals. CSO 95


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intervention can also take the form of self-help, whereby citizens are trained to represent themselves in simple legal proceedings. Law School Clinics: Law school clinics utilize law students to supply legal services, providing free legal advice and representation while also affording hands-on-legal experience to students.

a. What factors affect whether citizens can access the legal advice and representation necessary to solve their common justice problems: - Accessibility of legal advice and representation in remote areas: Legal advice and representation should reach even the most marginalized populations living in rural populations. However, many countries have few lawyers. Even where there are lawyers, they are often located in the most densely populated areas, such as major cities, and often fail to reach more remote areas. - Cost of Lawyers: Citizens may require professional help to reach solutions to their justice problems. Legal advice and representation from lawyers is often beyond the reach of the poor and disadvantaged groups because of cost. Free, state-provided legal aid is also often not available. - Citizens Trust of Lawyers: To build trust, lawyers should provide legal information and advice sought by citizens in ways that citizens can understand, avoiding technical and legal phrases when giving advice. Many citizens may have an instinctive fear or mistrust of lawyers, whom they may believe will not understand them or provide explanations in ways they can understand, or even blame them for their situation. Lawyers should therefore do everything they can to overcome citizens‟ fear and mistrust.

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4.3.1 Analysis of Questionnaires Questions and Informal interview on the element of Advice and Representation on the five weredas of the Arsi Zone (Munesa, Robe, Seru, Shirka, and Sude) distributed to clients and personnel of justice institutions (judges, Prosecutors and policemen) in the identified weredas: The researcher has developed and distributed questionnaires on the element of legal framework incorporating a total of 18 questions to be responded by a total of 15 respondents, which are, 5 judges (1 from each wereda), 5 public prosecutors (one from each wereda), and 5 police officers (1 from each wereda). With respect to client-respondents the researcher has framed 12 questions in order to gather a meaningful response regarding the element of Legal Advice and Representation. In line with the various factors (mentioned above) that could be used as a tool to measure the third element of access to justice which is Advice and representation, the researcher has carefully developed and incorporated the following questions in the questionnaire to be able to address the matter holistically: 4.3.2 Interview Questions on the Element of Legal Advice and Representation: Client Respondents in Courts 1. Do you know how to navigate throughout the judicial system by yourself? 2. Have you ever faced a legal problem about which you have no idea as to how to proceed and needed to seek legal advice about your problem? 3. Do you know that it is your constitutional right to seek legal advice and representation, by your own cost or provided by the state? 4. Imagine that you faced a legal problem and you cannot afford to hire a lawyer by yourself; are you aware that the government should put in place personnel to assist you with legal advice free of charge? 5. Do you think that there are adequate number of legal advice and representation service providers with the necessary level of training and expertise in legal assistance in the justice institution in your locality or wereda?

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6. Imagine that you wanted to settle your problem via the means of negotiation or mediation; are there adequate numbers of trained paralegals to that effect in your locality? 7. Do you know that or are there other non-governmental legal advice and representation service providers in your locality? 8. Are the following legal advice and representation service providers available in the justice institutions in your locality: Public defender office? Private lawyers? Pro bono assistance, CSOs and Law school clinics? 9. Do you believe that there are enough number of lawyers that provide advice and representation in your locality or should you travel to the zonal cities or long distance to acquire such services? 10. How do you evaluate the direct legal services cost of lawyers in your locality or is it affordable? How about the indirect but still related costs? 11. If you have previous experience of legal advice, are the legal information and advice given to you in the language you understand or with no over technicality? 12. If it is not understandable and vivid enough, how much does it affect your trust of the information and advice you received as representing your best interest? -

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The first question on this element of access to justice is targeted to measure whether the service users of the justice institutions know how to navigate in the justice institutions by themselves (without the help of advisors or representatives) in due course of trying to address their justice problems. Almost all the client respondents identified from their respective weredas responded to the question negatively. Almost all the respondents replied that they cannot navigate throughout the justice institutions by themselves or they need all the necessary advice and representation to efficiently address their problems in the justice institutions. The second question on its part refers to whether the clients have previously faced a legal problem about which they have no idea as to how to proceed and needed to seek legal advice about their problems. Regarding this question, the majority of the respondents stated that of course they have on many cases encountered legal problems however they did not know as to how to proceed or where to go to address such problems. It is 98


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even evident from their responses that though they needed to seek legal advices they did not have the opportunity to take advantage of those who provide those services. The third question is very objective in that it requires the respondents to answer whether they are aware of the fact that it is their constitutional right to seek legal advice and representation by their own if they can afford it or from the state if they cannot afford it. Almost all the respondents replied that they are not actually aware of the constitutional right to seek legal advice and representation in due course of addressing their justice problems. The responses generally affirmed however they traditionally know persons who provide such services up on the payment of a price to that effect. On the other hand, regarding the second segment of the question which deals with their right to get free advice and representation from the government; the responses of all the respondents is unanimous in that they have no idea about such persons or counselors that provide those services for persons that do not afford to pay for free. Question number four seeks to inquire whether the clients believe that there are adequate numbers of legal advice and representation service providers equipped with the necessary level of education and experience in their respective weredas or not. It is also unanimously inferable from the responses of the respondents that there are very few numbers of professional lawyers providing such services and they are accessible only up on the payment of professional fee. Even few of the responses reflect that these service providers are not equipped with the required level of educational training and lack experience. Regarding the availability of persons who provide pro bono legal advice almost all the respondents assured that there are no such free legal advice and representation service providers in their localities. Question number five is intended to ascertain the availability of adequate paralegal personnel (in the weredas the clients come from) in case there arise a need to settle disputes by means of negotiation or mediation. In this regard, the responses of the respondents are similar in that there are few numbers of paralegal assistance providers in the locality they are living in and whenever a dispute is to be settled by mediation or negotiation mostly it is controlled by community elders. Question number six inquires to assess the availability of non-governmental legal advice and representation services provided by various interest groups 99


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in the weredas the respondents come from. In this regard again the responses given by the majority of the respondents are similar in that there are no such non-governmental institutions that they are aware of which provide legal advice and representation services in their weredas. The majority of the respondents are not also aware of the fact that such institutions provide Question number seven is framed as a continuation to question number six in that it particularly questions the availability of either governmental or non-governmental or private institutions which operate within the justice institutions or in the weredas. Accordingly the respondents assured that there is very few number of private counselors that provide the services up on payment. Regarding the availability of the defense counselor by the government or defense counselors, almost all the respondents declare that they do not even know the purpose of the office and few of them mentioned that there are no such counselors that they are aware of. About the availability of CSOs that provide free legal aid services all the respondents stated that there are no such organizations that work on the provision of legal advice and representation in their weredas. The other important organs or persons that play a great role in the promotion of free advice and representation are pro bono service providers. They are usually lawyers that serve the public at large in their spare time or as a duty of their social responsibility towards the community at large. Similarly almost all the respondents stated that there are no such pro bono service providers they are aware of in their respective weredas. Question number nine requires the respondents to evaluate whether there are adequate number of lawyers in general that provide advice and representation in the respective weredas or do they need to travel to the zonal cities to acquire such services. The responses compiled from the questionnaire made it clear that there are very few lawyers that provide such legal services and the majority of them are not well trained and they do not even live in the weredas. Rather, they do their job in a HIT and Run Manner. The researcher understood that mostly the clients are forced to go to zonal towns to find and acquire such services from such lawyers. The issues raised under question number ten have direct implication on access to justice in that the more the cost of the service of advice and representation is higher the more the clients shay away from the justice institutions and the more cost becomes a barrier to access justice 100


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institutions. The other thing that should be duly considered is when we are referring to costs we are not only referring to the direct costs but also the indirect costs incurred in due course of seeking such an advice. Mostly such costs come in the form of an opportunity cost such as distance, transport cost, hotels cost and in productivity and so on. When we converge to the responses given by the respondents the majority of them stated that the direct costs are high and even the indirect costs are unbearably too many both in type and cost. The final question posed to the client respondents is whether they have previous experience of using the legal services of advice and representation and whether the advices were given in a language understandable by the clients and the likelihood of the trust of the clients on such advice and the advisor itself. Accordingly, the analysis of the summation of the responses given by the respondents reveal the fact that they simply do what they are told to do so and do not have the ability to comprehend legal issues or evaluate the quality of the advice given to them. The other thing they mentioned is that, the lawyers basically care as to how to deal with the case by themselves and simply inform clients generally regarding what particular things the clients should do or fulfill. As a result, not few of them replied that they do not trust either the advice or the lawyer because not all the issues are communicated to them in a plain language. 4.3.3 Analysis of the Questionnaire and Informal Interview responses given by Judges, Public Prosecutors respondents on the element of Advice and Representation

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The first question requires the judge and prosecutor respondents to evaluate the legal awareness level of their clients in due course of addressing their problems or navigating through the justice institutions. Accordingly all the respondents stated that the clients, to the majority of the cases are layman and with very low level of educational background that lack fundamental legal knowledge about their rights and duties let alone to know the substantive or procedural rules in courts. Hence the responses show that for obvious reasons clients need advice and representation to effectively address their problems or otherwise they cannot properly present their claims in courts.

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The second question tries to ascertain whether the respondents themselves or their institutions recognize that it is the constitutional right of their clients to acquire advice and representation either up on the payment of a fee or for free if the latter cannot afford it. In this regard, the respondents generally mentioned that as lawyers they are pretty aware of such constitutional guarantees and the same holds true at the level of their institution. However, their responses affirm that the problem is associated with the lack of budget and skillful professionals on wereda level to make the services of advice and representation adequately available. Question number three requires the respondents to assess whether adequate number of lawyers are available to provide legal advice and representation either for a fee or otherwise. In line with this the responses affirm that there is an acute shortage of lawyers on wereda level in general. They mentioned that there are only one or two qualified judges or prosecutors on wereda level let alone adequate number of private attorneys, defense counselors or pro bono service providers. It is also the understanding of the researcher that when it considered vis-à-vis the number of the population they serve per wereda one can conclude that there is a very high shortage of lawyers that provide the service of advice and representation. And the situation becomes worse for the responses even certify that even those available lawyers are with very low level of educational background (mostly diploma and below) that are working from experience. As a result, the responses of the respondents can be concluded there is no efficient provision of advice and representation on the wereda level. Question number five is framed in order to assess the availability of adequate number of paralegals that provide advice and representation services either in the formal or informal mechanisms of adjudication. Accordingly the respondents stated that there are very few or almost no paralegal service providers in their respective weredas. And their roles are limited to cases that are predominant on wereda level such as family cases or succession and so on which they acquired knowledge from repeated exposure or experience. Question number six has a direct implication on access to justice in that it questions whether the courts provide adequate number of defense counselors that are equipped with the necessary knowledge and experience to provide advice and representation to citizens that cannot afford it by 102


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themselves. Especially considering the fact that the majority of the clients of courts on wereda level are with low level of educational background the provision of a defense councilor by the government non-negotiable in guaranteeing the right of citizens to access justice institutions. In addition one should also consider the numerous or many fold problems that are associated with the clients such as illiteracy, low standard of living, lack of legal knowledge and shyness to justice institutions. It is in this regard that one need to understand the importance of such councilors to the hopeless client who have passed through all the problems and finally made it to the court and still she or he does not know how to present their problems and imagine the unbearable consequences if the government does not provide defense counselors that provide free advice and representation. When we converge to the responses of the respondents regarding the issue they affirmed that there are no defense counselors hired by the government in the wereda courts. Question number seven on its part requires the respondents to assess the availability of various governmental or non-governmental stakeholders or institutions destined with the provision of legal advice and representation to the needy in their respective weredas. In line with that they responded that there are no CSOs or pro bono legal advice providers that work on the issue at hand at the wereda level. Question number eight tries to question whether the number and distribution of lawyers that provide such services is well balanced in the towns or zonal cities and remote or rural areas. The responses of the respondents unequivocally show that lawyers generally prefer working in urban towns for various reasons and as a result it should not even be compared to the number of lawyers that provide the service at the zonal level. Question number nine requires the respondents to evaluate the costs related with the legal service of advice and representation. The respondents generally mentioned that the costs are relatively higher when one considers the living standards of the clients that live in the weredas. Question number twelve is very essential in that it questions whether the courts have put in place a scheme to bring lawyers that provide advice and representation from urban areas to rural areas through travelling lawyers programs or not. The respondents unanimously replied that there are no such schemes provided by their institutions to bring lawyers that provide 103


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advice and representation from zonal levels to wereda levels. However, they mentioned that there is a mobile court that assumes bench in the weredas once a year. The implication of question number thirteen on access to justice is numerous in that it is actually very cumbersome to provide advice and representation services to the public at large without the collaborative efforts of the justice institutions with both governmental and nongovernmental interested organizations to provide the service of advice and representation. Hence the question inquires whether the justice institutions have the experience to work with various interested groups (CSOs, pro bono service providers and other stakeholder institutions of the government) in order to be able to create a capacity to provide such services to all who are in need on the wereda level. In this regard the collected responses state that there are no such schemes they are aware of. However, in this regard the researcher believes that with the establishment of the law School of Arsi University the situation of collaboration with justice institutions will be fruitful in the near future. Question number fourteen is also the continuation of the preceding question in that it tries to measure the efforts of the justice institutions to enhance the capacity of both lawyers and paralegals in order to empower them to provide efficient legal advice and representation. It is also the firm understanding of the researcher that if justice institutions can provide regular and formal trainings to those groups of professionals engaged in advice and representation it will play a pivotal role to the accessibility of courts to all the clients in need. However, the responses of the respondents informs the researcher that there are no such programs undertaken by their institution at the wereda level and they tried to equate the problem with the lack of budget and skilled man power and so on.

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4.4 The Challenges of Access to Justice related to the Element of Factors Associated with the Justice Institutions (Courts, Justice Office and Police Stations) This element is by far the most important element that serves as a tool to measure the magnitude of access to justice in a certain legal system. It can be logically deduced that almost everything related to the justice institutions has a direct influence on their ability to be accessible by their clients. It is obviously inferable from the very name „justice institutions‟ that the service provided by them is „rendition of justice‟. Hence, the more positive the factors or practical realities related with such institutions are, the presumption is the more these institutions are accessible to the service users and the vice versa would manifest the existence of the challenges to access justice institutions. In this section we will deal with all the possible factors related to justice institutions (the courts, justice office, police stations and prison administration, if any) in the identified weredas that are believed to have an influence on the accessibility of the justice institutions. To further understand the element of „factors related to justice institutions‟ and their respective influence on the accessibility of justice institutions in the study area, the researcher has developed a questionnaire to be filled by respondents which deals with various factors associated with the institutions themselves that influence accessibility of justice institutions. The questionnaire is destined to measure the element (factors related to justice institutions) from the parameter of the following sub-elements and their sub-categories: 1. To what extent are the justice institutions affordable: Citizens must be able to afford the cost of using a justice institution in order for them to be able to rely on the justice institution to solve their justice problems? a. Direct and Opportunistic Costs: When analyzing the cost of using a justice institution, you should consider both “ direct” and “opportunity” costs. Direct costs are fees citizens must pay to use the justice institution, such as a payment to a legal representative, a charge to file a case, or a bribe. An opportunity cost is the income citizens lose when they spend time bringing a case before the justice institution rather than earning money.

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b. Up-front Costs: You should distinguish between costs that must be paid when citizens begin their claim and those that citizens need only pay after the justice institution finds a solution to their justice problem. Citizens may find it much easier to pay costs once they have a solution to their justice problem, particularly where the solution awards citizens money. 2. To what extent is the justice institutions accessible In order for citizens to use a justice institution to solve their justice problems, citizens must be able to travel to the justice institution. The more difficult it is for a citizen to travel to a justice institution, the less likely it is that the citizen will think it is worth using the justice institution to resolve their justice problems.

a. What factors affect whether a justice institution is Accessible: the following shall be considered in this regard: - Number and distribution of justice institutions: A region must have an adequate number of sufficient functioning justice institutions, so that citizens do not have to travel long distances to resolve their disputes. The justice institutions must also be sufficiently evenly distributed so that all citizens, no matter how remote a location they live in, can travel to them. - Transport Infrastructure: The better functioning a region‟s transport infrastructure, the easier it will be for citizens to travel to a justice institution. If citizens are not provided with a viable means of transport to travel to the justice institution, it will remain inaccessible. - Insecurity: Whether citizens are able to travel to a justice institution, and how willing they are to do so, is affected by the level of stability in a region. Citizens will rightly not want to travel to a justice institution if it exposes them or their family to risks. - Restriction on Travel: In some cases, citizens are prevented from traveling to the justice institution by official rules and restrictions. - Threatening Nature: In some cases, people, particularly vulnerable populations, may feel threatened by a justice institution and wary of negative consequences that may arise from interacting with a justice institution. They may also feel intimidated or harassed by the justice 106


institution itself or by other actors who don‟t agree with their decision to use the justice institution. This may in turn lead to stigmatization. 2. To what extent do the justice institutions process cases in a timely manner: To ensure that people obtain access to justice, justice institutions should process cases promptly. Delays worsen effect of other obstacles to access to justice, such of using the justice institution, and prevent citizens finding solutions to their justice problems. a. What factors affect whether the justice institutions process cases in a timely manner: in this regard the following factors are typical: - Case Load: A justice institution‟s caseload - the number of cases it is asked to deal with - will affect how quickly the justice institution is able to process cases. Keep in mind, however, that justice institutions are often keen to blame slow processing times on caseload, because this implies that delays are not the fault of the justice institution‟s own practices. To analyze the true effect of caseload, you should analyze it in the context of the justice institution‟s resources. Only if a justice institution does not have sufficient resources to process the number of cases it receives is caseload a cause of delay. - Case Management Procedures: Whether a justice institution has procedures to ensure cases are processed efficiently will affect how quickly it resolves cases. There are certain people in every justice institution who have an incentive to delay cases: parties might want to hold off decisions against them; lawyers might try to string out a case to increase fees; even justice institution staff can have little interest in progressing cases as “there will always be more work tomorrow.” Without sufficient oversight, people will act according to these incentives and will delay cases. Strong case management procedures should set out: the steps that a justice institution takes to process cases as well as the personnel responsible for each step, a timeline that shows when each step must be completed, and oversight procedures that explain the personnel responsible for checking that each step is carried out. - Number of Cases filed, pending, Adjourned and Decided: this also helps to measure the efficiency of courts in that it shows to what extent 107


are the courts capable to adjudicate all the cases filed by litigants in a year. The more cases are undecided or pending or adjourned to the next year the more it shows the presence of the challenges to access the justice institutions. 3. To what extent do citizens have an opportunity to effectively present their case: Unless citizens can effectively present their case, an adjudicator or mediator will not be in possession of all relevant facts and laws affecting a dispute, reducing the chance of a just outcome. Citizens should be able to make arguments in support of their case and, where factual issues are in dispute, call witnesses. a. What factors affect whether citizens are able to effectively present their case: the following are the major factors to consider in this regard: - Procedures during Hearing: Although it may seem obvious, the primary factor that affects whether citizens are able to present arguments and call witnesses is the procedure followed by the justice institution to resolve disputes. Remember that, if formal rules of procedure exist, it will be necessary to analyze both the rules themselves and how they are applied in practice. - Language difficulties: The justice institution must ensure that, no matter what language the parties speak, they are able to understand and participate in proceedings. Citizens‟ ability to effectively present their case is likely to be severely impeded if they are unable to understand the hearing and read the key documents in the case. - Power to ensure witness attendance: To analyze whether a citizen is able to call witnesses to support their case, consider whether the justice institution has a mechanism to compel witnesses to attend proceedings and to protect witnesses from reprisals, either verbal or physical. Witness intimidation can be a significant barrier to witness participation in a justice institution. 4. To what extent are disputes resolved impartially and without improper influence: An adjudicator or mediator should not be biased in relation to any of the issues or parties involved in a dispute, nor be influenced to resolve disputes in a particular way. When an adjudicator is biased or unduly influenced, there is a risk that he or she will deny a claim 108


that is well-founded in both fact and law. A mediator might pressure a party to accept an agreement contrary to his or her interests. Undue influence will have a particularly detrimental effect on access to justice for vulnerable groups, who are least able to mobilize political and financial resources in their favor. Undue influence comes in many different forms, and includes inducements, pressures, or threats, whether direct or indirect, and no matter source. a. What factors can affect whether disputes are resolved impartially and without improper influence: the following factors are worth considering in this regard: - Institutional Guarantees: The presence or absence of a number of guarantees, outlined below, will affect the prevalence of impartiality and undue influence in a justice institution. - Independence guaranteed by law: Laws, formal or informal, give the justice institution the sole power to resolve disputes over which it has jurisdiction. The law requires the executive, legislature, public authorities, and private interests to respect and abide by a justice institution‟s decisions, even if they do not agree with them. - Transparent appointment process: Adjudicators/ mediators are appointed (and re-appointed) on merit, according to publicized, objective and clear criteria, and through as non-politicized a process as possible. This ensures that adjudicators/mediators do not have a political bias and do not owe any debt of gratitude to the political actors responsible for their appointment. - Protection from dismissal: Once appointed, adjudicators or mediators are guaranteed tenure until retirement or until the expiration of a fixed term. They can be disciplined, and even dismissed, but only for official misconduct (for example, corruption or incompetence) and according to established, objective criteria. These protections ensure that adjudicators/mediators are protected from arbitrary removal by members of the executive or legislature, giving adjudicators the freedom to act independently without fear of putting their livelihood in jeopardy.

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- Salaries: Adjudicators/mediators are sufficiently well remunerated so that they are not tempted to rely on corruption to obtain a reasonable standard of living. - Safety and security: Adjudicators/mediators and those close to them are protected from threats to their security so that they can make decisions without fear of reprisal from government or private interests. - Oversight Mechanisms: The level of oversight that decisions and allegations of bias, corruption, or undue influence receive significantly affects the extent to which undue influence and impartiality exist among adjudicators or mediators. If adjudicators, and those who might influence them, believe that allegations will be investigated and exposed, they are far less likely to succumb to temptation. State institutions, such as a human rights commission or ombudsmen, as well as civil society initiatives, can provide this oversight. - Reasoned Decisions: When a justice institution resolves a case by adjudication, it should give reasons for its decision, whether orally or in writing. This ensures that citizens (and the oversight organizations described above) have a basis from which to examine whether the decision was based on pertinent facts and law or, if not, whether there is evidence of impartiality or undue influence. A citizen receives a reasoned decision when the justice institution informs him or her of the key elements of its decision, including the facts of the case, the rationale for the verdict, and the final settlement or order. 5. Enforceable Decisions or Solutions by courts In order for a justice institution‟s resolution to a dispute to be meaningful, citizens must be able to enforce decisions in the outside world, including through the use of sanctions against individuals who refuse to comply with the justice institution‟s decision.

a. What factors affect whether justice institutions are able to enforce their decisions: the following are typical in this regard: - Nature of sanction for not complying: To ensure that all parties comply with a justice institution‟s resolution of a dispute, the justice institution must be able to sanction parties that are non-compliant. There are two principal types of sanction: 110


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Coercive force: Many state justice institutions can employ coercive force, through a law enforcement agency, to force compliance with their solutions to problems. A justice institution‟s power to arrest and imprison a person who refuses to pay a fine is an example of a coercive enforcement power. Social sanction: Other justice institutions, often in a non-state setting, utilize a social or community sanction to enforce solutions, relying on an “unwritten rule” within the community that solutions be implemented - a rule enforced by the community‟s disapproval of - and non-cooperation with - citizens fl outing the justice institution‟s decisions. Different factors affect whether coercive force or social sanction are an effective way to enforce a justice institution‟s decision. - Factors affecting enforcement through coercive force: Costs: Citizens must be able to afford any costs that they must pay to enforce a justice institution‟s solution to their justice problem. Corruption: Law enforcement agencies can be paid not to enforce a justice institution‟s decision or told not to do so by influential political figures. Enforcement procedures should contain oversight mechanisms to ensure law enforcement officials enforce the justice institution‟s decisions. Strength of community norms: Enforcement through social sanction will not be affected by the shortcomings of judges and law enforcement agencies. However, effective enforcement relies on strong community norms and respect for the justice institution‟s decisions within the community.

4.4.1 Analysis of the responses given by the Judges, Public Prosecutors and police respondents on the Questionnaire distributed on the challenges of access to justice related to the element of factors associated with the justice institutions a. The Justice Institutions in the Identified weredas of the Study Area

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1. The Justice Institutions in Munesa Wereda a. The Munesa Wereda Court The questionnaires distributed in the Munesa court reveals the following issues or factors associated with the court: -

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Number and type of benches: There are only two benches which are Civil and Criminal benches. The existence of the two types of benches on the wereda level is, by itself, appreciable. However, it is not still adequate both in number and specialty of benches. For instance, civil benches by themselves have lots of sub-divisions that require their own special arrangements. For instance, Labor, Family, ADR (this is a typical alternative to the formal system of dispute settlement). Number of Cases Instituted, Decided and Backlog: in this regard, the civil bench of the Munesa court has received a total of 2466 cases that are instituted of which it has already decided or settled 2114 of them. The remaining 352 cases are still pending or adjourned or there is a back log of 0.07 percent. On the other hand, the criminal bench of the Munesa wereda court has received a total of 689 cases of which it has already decided 661 of them. The remaining 28 cases that have been filed are pending or adjourned or there is a backlog of 0.12 percent. Accordingly, the total number of cases instituted in the court (including both benches) is 3155 of which 2775 are already settled and the remaining 380 are pending. Generally there is a backlog of 0.11 percent. Though the courts or their benches are trying their best to settle as many cases as possible it is still not adequate for many of the cases are adjourned or pending. I think in this regard, the efforts of the judges should be appreciated for settling these much number of cases per year nevertheless there are only two benches and very few number of judges. The Number and Qualification of Judges: there are a total of seven judges in the court of which 6 are male and 1 is female. Regarding their level of education 2 are diploma or below and the remaining five are degree holders. The Number and Qualification of Legal Officers: there are a total of 4 legal officers all of which are diploma holders and below.

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The Number and Qualification of Defense Counselors: there is no a defense counselor at all. The Number and Qualification of Court Language Interpreters: there is no such an interpreter. Rate of Attrition of Judges: there is generally high rate of attrition of judges though not mostly in the form of resignation but transfer from one wereda to another. The rationales behind are the payment of low wedge or salary, the lack of various benefits such as, house and transport allowance and so on. Availability of Resources in the Court: accessibility of a court also depends on the due constitution of the in terms of not only man power but also the fulfillment of the required resources at the disposal of not only the judges but also the rest of the staff and even clients. The availability of all the necessary resources in a certain court in addition to guaranteeing access to justice, it also impacts speedy trial, quality of services, staff capacity building, convenient work environment and so on. In this regard: 1. there is no library, 2. the codes, proclamations and volumes of cassation decisions are available. However are in small quantity and less accessible, 3. Internet and ICT facilities are not available, 4. There is a trial waiting room but it is too small and not comfortable, 5. There is no transportation for staff, 6. There are no adequate and properly equipped offices to judges, 7. There is a trial hall but it is too small not charismatic and not properly furnished, 8. There is a nominally functioning reception. Budget of Courts: the responses on the questionnaire show that the budget assigned to the wereda courts is not adequate. This is also manifested by the various symptoms of weakness displayed in such courts. Allocation of enough budget, among other things, empowers a court and its staff to be more accessible, efficient, not influenced by corruption (impartial or in discriminatory) for instance well paid judges would not tend to resign and so on. Direct Factors Associated with Access to Justice: the respondents assured that: 1. There is no regular training to court staff, 2. There is no strategic partnership with relevant stakeholders, 3. There is no automation of cases and database system for cases, 4. There are no clear guideline on case distribution to each judge, 5. There still is adjournment of cases, 6. There is no awareness creation sessions for waiting clients in the court, 7. There are no adequate number of regular and formal trainings to judges in 113


courts and even social court judges, 8. The community is not aware of the jurisdiction and function of courts, 9. There is almost no circuit court, 10. There are no suitable infrastructures that suit the needs of disabled persons, 11. Legal costs are relatively unaffordable, 11. Relatively high rate of corruption or bribes, 12. There is a relative delay in adjudication, 12. There is no adequate structure of accountability for judges and other personnel, 13. There is no adequate number of courts in the wereda- there is only one court for the entire population of the wereda, 14. There are no either long term or a short term reform measures in the courts, 15. The procedures followed in the court are not fairly vivid, clearly outlined, accessible and not produced in a local language and so on. b. The Munesa Wereda Justice Office The questionnaires distributed in the Munesa wereda justice office reveals the following issues associated with the court: -

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Number and educational Qualification of Public Prosecutors: there are only four public prosecutors in the justice office of the wereda of which one is female and the remaining are men of which 2 are diploma holders and the remaining 2 are degree holders. This has a direct impact on access to justice for this are the only number of prosecutors providing service for the entire population living in the wereda. The Availability of Formal Trainings: there are no continuous and formal trainings available to the prosecutors on the working of the justice office in general or on particular issues such as for instance new developments in the administration of criminal justice. There are no mechanisms and practices put in place in the justice office for controlling the exercise of discretion by the prosecutors in due course of exercising their discretion while performing their activities in relation to, for instance, case withdrawal, or opposing of bail and so on. There is no automated data management system put in place to facilitate flow of information at different levels of the justice office. There is no enough number of human resource or other assisting staff that commensurate with the demands of the office. The availability of Resources: the compiled responses show the following regarding the availability of the necessary resources: 1. There is a library but it is not properly constituted and efficiently accessible, 2. There are very few numbers of codes, proclamations, and volumes of cassation 114


decisions and as a result not adequate, 3. There is no efficient internet and ICT facility in the office, 4. There is no cafeteria which is properly organized for the entertainment by staff or clients, 5. There are no enough offices that are properly furnished with the necessary equipment for the use of the public prosecutors, 6. There is no provision of transportation to the staff and prosecutors, 7. The salaries and other benefits available to the prosecutors are relatively in adequate, and 8. There is a relatively high rate of attrition of prosecutors. c. The Munesa Wereda Police Station The questionnaires distributed in the Munesa wereda Police Station reveals the following issues or facts associated with the workings of the station: -

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There is no acute shortage of police officers. The police officers are not provided with regular and formal trainings on police work in due course of administration of justice. The police officers are not adequately equipped with the skills of conducting criminal investigation in line with constitutionally protected human right standards. The police officers do not operate criminal investigation in collaboration with other professionals, such as, psychologists, sociologists, community elders and so on. There are no projects aimed at promoting the right perception and cooperation of the community to work with the police in crime prevention and investigation. There are no formal control and follow up mechanisms put in place to ensure that the police persons discharge their duties legally, ethically and diligently. The Availability of Resources: the responses compiled from the questioners show the following reality in relation to resources: 1. There is no an internet and ICT facility, 2. There is no cafeteria for staff, 3. There are no enough numbers of telephone, 4. There is no adequate coverage of transportation, 5. There are no enough numbers of offices to staff, 6. There are no adequate availability of laptops for the police investigators and so on.

2. The Justice Institutions in Shirka Wereda a. The Shirka Wereda Court 115


The questionnaires distributed in the Shirka Wereda court reveals the following issues associated with the court: -

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Number and type of benches: There are only two benches which are Civil and Criminal benches. The existence of the two types of benches on the wereda level is, by itself, appreciable. However, it is not still adequate both in number and specialty of benches. For instance, civil benches by themselves have lots of sub-divisions that require their own special arrangements. For instance, Labor, Family, ADR (this is a typical alternative to the formal system of dispute settlement). Number of Cases Instituted, Decided and Backlog: in this regard, the civil bench of the Shirka court has received a total of 2490 cases that are instituted of which it has already decided or settled 2300 of them. The remaining 190 cases are still pending or adjourned or there is a back log of 0.18 percent. On the other hand, the criminal bench of the Shirka wereda court has received a total of 366 cases of which it has already decided 310 of them. The remaining 56 cases that have been filed are pending or adjourned or there is a backlog of 0.01percent. Accordingly, the total number of cases instituted in the court (including both benches) is 2856 of which 2610 are already settled and the remaining 246 are pending. Generally there is a backlog of 0.09 percent. The Number and Qualification of Judges: there are a total of 5 judges in the court of which 4 are male and 1 is female. Regarding their level of education 2 are diploma or below and the remaining 3 are degree holders. The Number and Qualification of Legal Officers: there are a total of 4 legal officers of which to are certificate holders and the remaining 2 are diploma holders. The Number and Qualification of Defense Counselors: there is no a defense counselor at all. The Number and Qualification of Court Language Interpreters: there is no such an interpreter. Rate of Attrition of Judges: there is generally high rate of attrition of judges which comes in the form of transfer from one wereda to another. The rationales behind are the payment of low wedge or salary, the lack of various benefits, such as, house and transport allowance and so on. Availability of Resources in the Court: accessibility of a court also depends on the due constitution of the in terms of not only man power but also the fulfillment of the required resources at the disposal of not only the 116


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judges but also the rest of the staff and even clients. The availability of all the necessary resources in a certain court in addition to guaranteeing access to justice, it also impacts speedy trial, quality of services, staff capacity building, convenient work environment and so on. In this regard the following are typical: 1. there is a library but it is not adequately equipped and accessible, 2. the codes, proclamations and volumes of cassation decisions are available but not adequate, 3. Internet and ICT facilities are available but not efficiently accessible, 4. There is a trial waiting room but it is too small and not comfortable, 5. There is no transportation for staff, 6. There are no adequate and properly equipped offices to judges, 7. There is a trial hall but it is too small not charismatic and not properly furnished, 8. There is a nominally functioning reception, there is no cafeteria for staff and clients. Budget of Courts: the responses on the questionnaire show that the budget assigned to the wereda courts is not adequate. This is also manifested by the various symptoms of weakness displayed in such courts. Allocation of enough budget, among other things, empowers a court and its staff to be more accessible, efficient, not influenced by corruption (impartial or in discriminatory) for instance well paid judges would not tend to resign and so on. Direct Factors Associated with Access to Justice: the respondents assured that: 1. There is no regular training to court staff, 2. There is no strategic partnership with relevant stakeholders, 3. There is no automation of cases and database system for cases but they are working on it, 4. There are no clear guideline on case distribution to each judge but are in the middle of developing one 5. There still is adjournment of cases, 6. There are no awareness creation sessions for waiting clients in the court, 7. There are no adequate number of regular and formal trainings to judges in courts and even social court judges, 8. The community is not aware of the jurisdiction and function of courts, 9. There is almost no circuit court, 10. There are no suitable infrastructures that suit the needs of disabled persons, 11. Legal costs are relatively unaffordable, 11. There is a relatively high rate of corruption or bribes, 12. There is a relative delay in adjudication, 12. There is no adequate structure of accountability for judges and other personnel, 13. There is no adequate number of courts in the wereda- there is only one court for the entire population of the wereda, 14. There are no either long term or a short term reform measures in the courts, 15. The procedures 117


followed in the court are not fairly vivid, clearly outlined, accessible and not produced in a local language and so on.

b. The Shirka Wereda Justice Office The questionnaires distributed in the Shirka Wereda justice office reveals the following issues associated with the office: -

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Number and educational Qualification of Public Prosecutors: there is only one public prosecutor in the justice office of the wereda of which is male and with an educational level of a degree certificate. This has a direct impact on access to justice for there is only one prosecutor providing service for the entire population living in the wereda. The Availability of Formal Trainings: there are no continuous and formal trainings available to the prosecutors on the working of the justice office in general or on particular issues such as for instance new developments in the administration of criminal justice. The prosecutors are not regularly trained in a way that they develop the required capacity to enforce constitutional and international human rights. There are no mechanisms and practices put in place in the justice office for controlling the exercise of discretion by the prosecutors in due course of exercising their discretion while performing their activities in relation to, for instance, case withdrawal, or opposing of bail and so on. There is no automated data management system put in place to facilitate flow of information at different levels of the justice office. There is no enough number of human resource or other assisting staff that commensurate with the demands of the office. The availability of Resources: the compiled responses show the following regarding the availability of the necessary resources: 1. There is a library but it is not properly constituted and efficiently accessible, 2. There are very few numbers of codes, proclamations, and volumes of cassation decisions and as a result not adequate, 3. There is no efficient internet and ICT facility in the office, 4. There is no cafeteria which is properly organized for the entertainment by staff or clients, 5. There are no enough offices that are properly furnished with the necessary equipment for the use of the public prosecutors, 6. There is no provision of transportation to the staff and prosecutors, 7. The salaries and other benefits available to the 118


prosecutors are relatively in adequate, and 8. There is a relatively high rate of attrition of prosecutors.

C. the Shirka Wereda Police Station The questionnaires distributed in the Shirka wereda Police Station reveals the following issues or facts associated with the workings of the station: -

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There is no acute shortage of police officers. The police officers are not provided with regular and formal trainings on police work in due course of administration of justice. The police officers are not adequately equipped with the skills of conducting criminal investigation in line with constitutionally protected human right standards. The police officers do not operate criminal investigation in collaboration with other professionals, such as, psychologists, sociologists, community elders and so on. There are no projects aimed at promoting the right perception and cooperation of the community to work with the police in crime prevention and investigation. There are no formal control and follow up mechanisms put in place to ensure that the police persons discharge their duties legally, ethically and diligently. There is no adequate practice of using indigenous rules and institutions for crime prevention and investigation. The Availability of Resources: the responses compiled from the questioners show the following reality in relation to resources: 1. There is no an internet and ICT facility, 2. There is no cafeteria for staff, 3. There are no enough numbers of telephone, 4. There is no adequate coverage of transportation, 5. There are no enough numbers of offices to staff, 6. There are no adequate availability of laptops for the police investigators and so on.

3. The Justice Institutions in Arsi Robe Wereda a. The Arsi Robe Wereda Court

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The questionnaires distributed in the Robe Wereda court reveals the following issues associated with the court: -

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Number and type of benches: There are only two benches which are Civil and Criminal benches. The existence of the two types of benches on the wereda level is, by itself, appreciable. However, it is not still adequate both in number and specialty of benches. For instance, civil benches by themselves have lots of sub-divisions that require their own special arrangements. For instance, Labor, Family, ADR (this is a typical alternative to the formal system of dispute settlement). Number of Cases Instituted, Decided and Backlog: in this regard, the civil bench of the Robe court has received a total of 786 cases that are instituted of which it has already decided or settled 705 of them. The remaining 81 cases are still pending or adjourned. On the other hand, the criminal bench of the Robe wereda court has received a total of 127 cases of which it has already decided 117 of them. The remaining 10 cases that have been filed are pending or adjourned. Accordingly, the total number of cases instituted in the court (including both benches) is 913 of which 822 are already settled and the remaining 181 are pending. The Number and Qualification of Judges: there are a total of 7 judges in the court of which one is a diploma holder and the remaining 6 are degree holders. The Number and Qualification of Legal Officers: there are a total of 7 legal officers of which 5 are diploma holders and the remaining 2 are degree holders. The Number and Qualification of Defense Counselors: there is no a defense counselor at all. The Number and Qualification of Court Language Interpreters: there is no such an interpreter. Rate of Attrition of Judges: there is generally a medium rate of attrition of judges which comes in the form of transfer from one wereda to another. The rationales behind are the payment of low wedge or salary, the lack of various benefits, such as, house and transport allowance and so on. Availability of Resources in the Court: accessibility of a court also depends on the due constitution of the in terms of not only man power but also the fulfillment of the required resources at the disposal of not only the judges but also the rest of the staff and even clients. The availability of all the necessary resources in a certain court in addition to guaranteeing access 120


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to justice, it also impacts speedy trial, quality of services, staff capacity building, convenient work environment and so on. In this regard the following are typical: 1. there is a library but it is not adequately equipped and accessible, 2. the codes, proclamations and volumes of cassation decisions are available, 3. Internet and ICT facilities are available but not efficiently accessible, 4. There is a trial waiting room but it is too small and not comfortable, 5. There is no transportation for staff, 6. There are no adequate and properly equipped offices to judges, 7. There is a trial hall but it is too small not charismatic and not properly furnished, 8. There is a nominally functioning reception, there is no cafeteria for staff and clients. Budget of Courts: the responses on the questionnaire show that the budget assigned to the wereda courts is not adequate. This is also manifested by the various symptoms of weakness displayed in such courts. Allocation of enough budget, among other things, empowers a court and its staff to be more accessible, efficient, not influenced by corruption (impartial or in discriminatory) for instance well paid judges would not tend to resign and so on. Direct Factors Associated with Access to Justice: the respondents assured that: 1. There is almost regular training to court staff, 2. There is no strategic partnership with relevant stakeholders, 3. There is a semi automation of cases and database system for cases but they are working on it, 4. There are no clear guideline on case distribution to each judge but are in the middle of developing one 5. There still is adjournment of cases, 6. There are no awareness creation sessions for waiting clients in the court, 7. There are no adequate number of regular and formal trainings to judges in courts and even social court judges, 8. The community is not aware of the jurisdiction and function of courts, 9. There is almost no circuit court, 10. There are no suitable infrastructures that suit the needs of disabled persons, 11. Legal costs are relatively unaffordable, 11. There is a relatively high rate of corruption or bribes, 12. There is a relative delay in adjudication, 12. There is no adequate structure of accountability for judges and other personnel, 13. There is no adequate number of courts in the wereda- there is only one court for the entire population of the wereda, 14. There are no either long term or a short term reform measures in the courts, 15. The procedures followed in the court are not fairly vivid, clearly outlined, accessible and not produced in a local language and so on.

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b. The Arsi Robe Wereda Justice Office The questionnaires distributed in the Robe Wereda justice office reveals the following issues associated with the office: -

-

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Number and educational Qualification of Public Prosecutors: there are only two public prosecutors in the justice office of the wereda of which one is male and with an educational level of a degree certificate and the other is female with an educational background of a degree holder. This has a direct impact on access to justice for there is only one prosecutor providing service for the entire population living in the wereda. The Availability of Formal Trainings: there are no continuous and formal trainings available to the prosecutors on the working of the justice office in general or on particular issues such as for instance new developments in the administration of criminal justice. The prosecutors are not regularly trained in a way that they develop the required capacity to enforce constitutional and international human rights. There are informal mechanisms and practices put in place in the justice office for controlling the exercise of discretion by the prosecutors in due course of exercising their discretion while performing their activities in relation to, for instance, case withdrawal, or opposing of bail and so on. There is no automated data management system put in place to facilitate flow of information at different levels of the justice office. There is no enough number of human resource or other assisting staff that commensurate with the demands of the office. The availability of Resources: the compiled responses show the following regarding the availability of the necessary resources: 1. There is a library but it is not properly constituted and efficiently accessible, 2. There are very few numbers of codes, proclamations, and volumes of cassation decisions and as a result not adequate, 3. There is no efficient internet and ICT facility in the office, 4. There is no cafeteria which is properly organized for the entertainment by staff or clients, 5. There are no enough offices that are properly furnished with the necessary equipment for the use of the public prosecutors, 6. There is no provision of transportation to the staff and prosecutors, 7. The salaries and other benefits available to the prosecutors are relatively in adequate, and 8. There is a relatively medium rate of attrition of prosecutors.

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C. the Arsi Robe Wereda Police Station The questionnaires distributed in the Arsi Robe wereda Police Station reveals the following issues or facts associated with the workings of the station: -

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Number and Qualification of Police Officers: There are 9 police officers who have completed high or preparatory school. The police officers are not provided with regular and formal trainings on police work in due course of administration of justice. The police officers are not adequately equipped with the skills of conducting criminal investigation in line with constitutionally protected human right standards. The police officers do not adequately operate criminal investigation in collaboration with other professionals, such as, psychologists, sociologists, community elders and so on. There are no adequate projects aimed at promoting the right perception and cooperation of the community to work with the police in crime prevention and investigation. There are no formal control and follow up mechanisms put in place to ensure that the police persons discharge their duties legally, ethically and diligently. There is no adequate practice of using indigenous rules and institutions for crime prevention and investigation. The Availability of Resources: the responses compiled from the questioners show the following reality in relation to resources: 1. There is no an internet and ICT facility, 2. There is no cafeteria for staff, 3. There are no enough numbers of telephone, 4. There is no adequate coverage of transportation, 5. There are no enough numbers of offices to staff, 6. There are no adequate availability of laptops for the police investigators and so on.

4. The Justice Institutions in Tena Wereda a. The Tena Wereda Court The questionnaires distributed in the Tena Wereda court reveals the following issues associated with the court: -

Number and type of benches: There are only two benches which are Civil and Criminal benches.

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Number of Cases Instituted, Decided and Backlog: in this regard, the civil bench of the Tena court has received a total of 319 cases that are instituted of which it has already decided or settled 222 of them. The remaining 97 cases are still pending or adjourned or there is a back log of 0.048 percent. On the other hand, the criminal bench of the Tena wereda court has received a total of 65 cases of which it has already decided 62 of them. The remaining 3 cases that have been filed are pending or adjourned. Accordingly, the total number of cases instituted in the court (including both benches) is 384 of which 284 are already settled and the remaining 100 are pending. The Number and Qualification of Judges: there are a total of 4 judges in the court of which are all male and degree holders. The Number and Qualification of Legal Officers: there are a total of 4 legal officers of which two are certificate holders and the remaining 2 are diploma holders. The Number and Qualification of Defense Counselors: there is no a defense counselor at all. The Number and Qualification of Court Language Interpreters: there is no such an interpreter. Rate of Attrition of Judges: there is generally high rate of attrition of judges which comes in the form of transfer from one wereda to another. The rationales behind are the payment of low wedge or salary, the lack of various benefits, such as, house and transport allowance and so on. Availability of Resources in the Court: In this regard the following are typical: 1. there is a library but it is not adequately equipped and accessible, 2. the codes, proclamations and volumes of cassation decisions are available but not adequate, 3. Internet and ICT facilities are available but not efficiently accessible, 4. There is a trial waiting room but it is too small and not comfortable, 5. There is no transportation for staff, 6. There are no adequate and properly equipped offices to judges, 7. There is a trial hall but it is too small not charismatic and not properly furnished, 8. There is a nominally functioning reception, there is no cafeteria for staff and clients. Budget of Courts: the responses on the questionnaire show that the budget assigned to the wereda courts is not adequate. This is also manifested by the various symptoms of weakness displayed in such courts. Allocation of enough budget, among other things, empowers a court and its staff to be more accessible, efficient, not influenced by corruption (impartial or in 124


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discriminatory) for instance well paid judges would not tend to resign and so on. Direct Factors Associated with Access to Justice: the respondents assured that: 1. There is no regular training to court staff, 2. There is no strategic partnership with relevant stakeholders, 3. There is no automation of cases and database system for cases but they are working on it, 4. There are no clear guideline on case distribution to each judge but are in the middle of developing one 5. There still is adjournment of cases, 6. There are no awareness creation sessions for waiting clients in the court, 7. There are no adequate number of regular and formal trainings to judges in courts and even social court judges, 8. The community is not aware of the jurisdiction and function of courts, 9. There is almost no circuit court, 10. There are no suitable infrastructures that suit the needs of disabled persons, 11. Legal costs are relatively unaffordable, 11. There is a relatively high rate of corruption or bribes, 12. There is a relative delay in adjudication, 12. There is no adequate structure of accountability for judges and other personnel, 13. There is no adequate number of courts in the wereda there is only one court for the entire population of the wereda, 14. There are no either long term or a short term reform measures in the courts, 15. The procedures followed in the court are not fairly vivid, clearly outlined, accessible and not produced in a local language and so on. b. The Tena Wereda Justice Office The questionnaires distributed in the Tena Wereda justice office reveals the following issues associated with the office: - Number and educational Qualification of Public Prosecutors: there only two public prosecutors in the justice office of the wereda which are male and with an educational level of a degree certificate. - The Availability of Formal Trainings: there are no continuous and formal trainings available to the prosecutors on the working of the justice office in general or on particular issues such as for instance new developments in the administration of criminal justice. - The prosecutors are not regularly trained in a way that they develop the required capacity to enforce constitutional and international human rights. - There are no mechanisms and practices put in place in the justice office for controlling the exercise of discretion by the prosecutors in due course

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of exercising their discretion while performing their activities in relation to, for instance, case withdrawal, or opposing of bail and so on. - There is no automated data management system put in place to facilitate flow of information at different levels of the justice office. - There is no enough number of human resource or other assisting staff that commensurate with the demands of the office. - The availability of Resources: the compiled responses show the following regarding the availability of the necessary resources: 1. There is a library but it is not properly constituted and efficiently accessible, 2. There are very few numbers of codes, proclamations, and volumes of cassation decisions and as a result not adequate, 3. There is no efficient internet and ICT facility in the office, 4. There is no cafeteria which is properly organized for the entertainment by staff or clients, 5. There are no enough offices that are properly furnished with the necessary equipment for the use of the public prosecutors, 6. There is no provision of transportation to the staff and prosecutors, 7. The salaries and other benefits available to the prosecutors are relatively in adequate, and 8. There is a relatively high rate of attrition of prosecutors. C. the Tena Wereda Police Station The questionnaires distributed in the Tena wereda Police Station reveals the following issues or facts associated with the workings of the station: -

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There is no acute shortage of police officers. The police officers are not provided with regular and formal trainings on police work in due course of administration of justice. The police officers are not adequately equipped with the skills of conducting criminal investigation in line with constitutionally protected human right standards. The police officers do not operate criminal investigation in collaboration with other professionals, such as, psychologists, sociologists, community elders and so on. There are no projects aimed at promoting the right perception and cooperation of the community to work with the police in crime prevention and investigation.

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There are no formal control and follow up mechanisms put in place to ensure that the police persons discharge their duties legally, ethically and diligently. There is no adequate practice of using indigenous rules and institutions for crime prevention and investigation. The Availability of Resources: the responses compiled from the questioners show the following reality in relation to resources: 1. There is no an internet and ICT facility, 2. There is no cafeteria for staff, 3. There are no enough numbers of telephone, 4. There is no adequate coverage of transportation, 5. There are no enough numbers of offices to staff, 6. There are no adequate availability of laptops for the police investigators and so on.

5. The Justice Institutions in Sude Wereda a. The Sude Wereda Court The questionnaires distributed in the Sude Wereda court reveals the following issues associated with the court: -

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Number and type of benches: There are only two benches which are Civil and Criminal benches. Number of Cases Instituted, Decided and Backlog: in this regard, the civil bench of the Sude court has received a total of 319 cases that are instituted of which it has already decided or settled 222 of them. The remaining 97 cases are still pending or adjourned or there is a back log of 0.048 percent. On the other hand, the criminal bench of the Sude wereda court has received a total of 65 cases of which it has already decided 62 of them. The remaining 3 cases that have been filed are pending or adjourned. Accordingly, the total number of cases instituted in the court (including both benches) is 384 of which 284 are already settled and the remaining 100 are pending. The Number and Qualification of Judges: there are a total of 4 judges in the court of which are all male and degree holders. The Number and Qualification of Legal Officers: there are a total of 4 legal officers of which two are certificate holders and the remaining 2 are diploma holders. The Number and Qualification of Defense Counselors: there is no a defense counselor at all.

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The Number and Qualification of Court Language Interpreters: there is no such an interpreter. Rate of Attrition of Judges: there is generally high rate of attrition of judges which comes in the form of transfer from one wereda to another. Availability of Resources in the Court: In this regard the following are typical: 1. there is a library but it is not adequately equipped and accessible, 2. the codes, proclamations and volumes of cassation decisions are available but not adequate, 3. Internet and ICT facilities are available but not efficiently accessible, 4. There is a trial waiting room but it is too small and not comfortable, 5. There is no transportation for staff, 6. There are no adequate and properly equipped offices to judges, 7. There is a trial hall but it is too small not charismatic and not properly furnished, 8. There is a nominally functioning reception, there is no cafeteria for staff and clients. Budget of Courts: the responses on the questionnaire show that the budget assigned to the wereda courts is not adequate. This is also manifested by the various symptoms of weakness displayed in such courts. Allocation of enough budget, among other things, empowers a court and its staff to be more accessible, efficient, not influenced by corruption (impartial or in discriminatory) for instance well paid judges would not tend to resign and so on. Direct Factors Associated with Access to Justice: the respondents assured that: 1. There is no regular training to court staff, 2. There is no strategic partnership with relevant stakeholders, 3. There is no automation of cases and database system for cases but they are working on it, 4. There are no clear guideline on case distribution to each judge but are in the middle of developing one 5. There still is adjournment of cases, 6. There are no awareness creation sessions for waiting clients in the court, 7. There are no adequate number of regular and formal trainings to judges in courts and even social court judges, 8. The community is not aware of the jurisdiction and function of courts, 9. There is almost no circuit court, 10. There are no suitable infrastructures that suit the needs of disabled persons, 11. Legal costs are relatively unaffordable, 11. There is a relatively high rate of corruption or bribes, 12. There is a relative delay in adjudication, 12. There is no adequate structure of accountability for judges and other personnel, 13. There is no adequate number of courts in the wereda there is only one court for the entire population of the wereda, 14. There are no either long term or a short term reform measures in the courts, 15. The procedures 128


followed in the court are not fairly vivid, clearly outlined, accessible and not produced in a local language and so on. b. The Sude Wereda Justice Office The questionnaires distributed in the Sude Wereda justice office reveals the following issues associated with the office: -

-

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Number and educational Qualification of Public Prosecutors: there only two public prosecutors in the justice office of the wereda which are male and with an educational level of a degree certificate. The Availability of Formal Trainings: there are no continuous and formal trainings available to the prosecutors on the working of the justice office in general or on particular issues such as for instance new developments in the administration of criminal justice. The prosecutors are not regularly trained in a way that they develop the required capacity to enforce constitutional and international human rights. There are no mechanisms and practices put in place in the justice office for controlling the exercise of discretion by the prosecutors in due course of exercising their discretion while performing their activities in relation to, for instance, case withdrawal, or opposing of bail and so on. There is no automated data management system put in place to facilitate flow of information at different levels of the justice office. There is no enough number of human resource or other assisting staff that commensurate with the demands of the office. The availability of Resources: the compiled responses show the following regarding the availability of the necessary resources: 1. There is a library but it is not properly constituted and efficiently accessible, 2. There are very few numbers of codes, proclamations, and volumes of cassation decisions and as a result not adequate, 3. There is no efficient internet and ICT facility in the office, 4. There is no cafeteria which is properly organized for the entertainment by staff or clients, 5. There are no enough offices that are properly furnished with the necessary equipment for the use of the public prosecutors, 6. There is no provision of transportation to the staff and prosecutors, 7. The salaries and other benefits available to the prosecutors are relatively in adequate, and 8. There is a relatively high rate of attrition of prosecutors.

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C. the Sude Wereda Police Station The questionnaires distributed in the Sude wereda Police Station reveals the following issues or facts associated with the workings of the station: -

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There is no acute shortage of police officers. The police officers are not provided with regular and formal trainings on police work in due course of administration of justice. The police officers are not adequately equipped with the skills of conducting criminal investigation in line with constitutionally protected human right standards. The police officers do not operate criminal investigation in collaboration with other professionals, such as, psychologists, sociologists, community elders and so on. There are no projects aimed at promoting the right perception and cooperation of the community to work with the police in crime prevention and investigation. There are no formal control and follow up mechanisms put in place to ensure that the police persons discharge their duties legally, ethically and diligently. There is no adequate practice of using indigenous rules and institutions for crime prevention and investigation. The Availability of Resources: the responses compiled from the questioners show the following reality in relation to resources: 1. There is no an internet and ICT facility, 2. There is no cafeteria for staff, 3. There are no enough numbers of telephone, 4. There is no adequate coverage of transportation, 5. There are no enough numbers of offices to staff, 6. There are no adequate availability of laptops for the police investigators and so on.

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Chapter Five Conclusion and Recommendations 5.1 Conclusion In conclusion, the following are the Challenges of Access to Justice in the Arsi Zone of the Oromia Regional State: the case of Munesa, Shirka, Arsi Robe, Tena, and Sude Weredas As per the outcome of the analysis of the facts collected through the instrumentality of interviews, questionnaire and Focus Group Discussions, the following are found to be the major challenges or barriers to access justice institutions in the Arsi Zone of the Oromia Regional State: a. Challenges Related to the Element of Legal Knowledge 

The lack of adequate legal knowledge or information or education by the clients in the justice institutions. This lack of knowledge is evident from their inability: to know their own basic rights and duties before the eyes of the law, the fundamental laws of the country (such as the constitution), most importantly the rules of substance and procedures in the justice institutions, and even the type and functions of the justice institutions. In turn, among other things, the lack of legal knowledge is exacerbated due to low level of literacy (education) rate. Obviously, individuals with adequate level of education would have more opportunity to access justice institutions and vice versa. The simple logic here is, if a client is illiterate s/he would not be capable of reading and understanding the law or appreciating their rights and duties or where to enforce them which ultimately results in failure to access justice institutions.



The lack of legal knowledge is also reflected on the side of the personnel of the justice institutions such as judges, public prosecutors and policemen. Almost all the institutions are predominantly staffed by individuals whose level of education is a diploma certificate and below. Level of education directly reflects the depth of their training on the law and also their level of analyzing and interpreting the law. Though the majority of the judges are LL B., Degree holders, the data collected on the public prosecutors (1 from 2 is a Diploma holder), Legal officers and the Policemen affirms low level of education (which is a Diploma and below). Among other things, the basic sources of knowledge for such staff are the codes, proclamations and cassation volumes which 131


are only scarcely available in their institutions. The logical correlation here is, if the interpreters or adjudicators or enforcers of the law themselves are not adequately equipped with legal knowledge, one can so easily understand the huge barrier that will be created for citizens the majority of whom are with low level of both basic education and legal knowledge. 

The lack or non-availability of adequate legal knowledge or information produced in local language. The language of the law (legalese) is by itself intrinsically technical which requires good understanding of the English language. To the contrary, the service users or clients are with low level of education who cannot understand Basic English let alone the language of the law. Aggravated on that, the problem still persists on the side of the personnel of the justice institutions. Hence, among others, the best mechanisms to alleviate the problem would be the production of adequate legal materials or information on the law (codes, proclamations, regulations and cassation decisions) in local languages. In the case at hand, the working language of the justice institutions in the study area is Afan Oromo. The researcher believes that the production of laws in local languages eradicates not few number of barriers related to language and knowledge.

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Low level of availability of legal education or information in the weredas under the study areas. In this regard, the responses collected reveal that there are no public awareness programs or direct legal education programs available to the public at large, either by the initiative of the government or via the instrumentality of non-governmental interested actors. In this regard such actors could take advantage of various types of mass media to promote legal education in the weredas where the respondents come from. On the other hand, it is also the duty of the justice institutions to undertake either formal or informal legal awareness programs within the surrounding communities or to their clients.

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There is a long existing high degree of in confidence or mistrust on the side of the public to take advantage of or consider the justice institutions as a source of legal knowledge.

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The lack of adequate budget, skilled man power (law professionals) and resources in the justice institutions at the wereda level to undertake public awareness programs directly or indirectly to increase the legal awareness of their clients or the public at large.

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b. The Challenges of Access to Justice related to the Element of Legal Framework 

The lack of clear rules and guidelines (standards) put in place by the justice institutions that are essential in defining or outlining the proper (objective) application of the laws incorporated in the constitution and other laws strictly related to the workings of the justice institutions such as the laws of evidence, civil and criminal procedure laws. This becomes a barrier to access justice institutions because the presence or availability of substantive and procedural laws does not by itself guarantee that the institutions are efficiently rendering justice. It is when these substantive and procedural laws are objectively applied or practiced that one can say the institutions are discharging their duties efficiently. And the objective application of such laws strictly requires the availability of clear internal guidelines in the workings of the justice institutions. The non-availability of such guidelines, in addition to being a barrier to access justice institutions, will result in problems like subjective or arbitrary decisions or administration of justice, delayed justice, Partiality (discriminatory) decisions, improper use of discretionary powers by judges and prosecutors and so on. For instance, in the absence of such manuals the judges and prosecutors may become less reliant on the law and heavily depend on the margin of their discretion in due course accusation, adjudication or fixing of judgment and so on.

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The lack of promotion of comprehensive research and knowledge development programs on indigenous mechanisms of dispute resolutions and the rules and procedures applied in such systems, which intend to study and incorporate such good practices of rules and procedures in to the formal system of law and adjudication. This failure is on the one hand, associated with the justice institutions in that they do not generally undertake such activities on the indigenous communities surrounding them and on the other, it is also associated with the staff of such institutions to research, understand and use such good practices of indigenous origin. The grain of the truth here is, the more such values, tenets, norms or social realities of the surrounding community is reflected in the formal system of law or procedures of dispute settlement, the more trustworthy and accessible the system becomes to indigenous communities. Especially, in relation to police work, such as prevention of crimes and settlement of some disputes that cannot be sustainably alleviated by application of formal laws such as tribal disputes, the experience (rules and procedures) of indigenous knowledge becomes crucial.

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The lack of regular or adequate or formal capacity building trainings to the staff members of the justice institutions (judges, prosecutors and policemen) on legal framework that are destined to boost their knowledge on the relevant laws to their profession such as, the Constitution, law of evidence, criminal law, human rights law and civil and criminal procedure laws. For instance, the trainings given to the police should emphasize on the constitutional rights of suspected persons, accused persons, detained persons, the principle of human rights law in due course of enforcing police work and the principles envisaged under the criminal procedure law in due course of arrest, interrogation, accusation and imprisonment and so on. However, the study shows that the available trainings are basically physical trainings.

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The non-availability of adequate legal framework (substantive and procedural laws) produced and disseminated in local language.

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The non-availability of adequate legal framework which is exclusively destined to be applied in extra judicial mechanisms of dispute settlement. The role of alternative mechanisms of dispute settlement in guaranteeing the right to access justice institutions is undisputed and non-negotiable. ADR mechanisms, if constituted properly, or recognized as a mechanism of dispute settlement and administered by the necessary substantive and procedural laws and most importantly if they have power to enforce their decisions; the role they play in eradicating the numerous barriers related to the formal system of adjudication is undeniable. Such barriers of justice in the formal system are, high cost, procedural complication, delay in justice, partiality, high backlog, no win-win outcome, popular in confidence and so on.

c. The Challenges of Access to justice Related to the Element of Advice and Representation 

The lack of knowledge by the clients of the justice institutions as to: (1) where to go when they encounter disputes, (2) how to navigate through such institutes (3) where to seek advice and representation services either up on the payment of a professional fee or for free if they cannot afford it.

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The lack of adequate number of privately operating lawyers (professionals) that are equipped with the required level of education and experience to provide the service of legal advice and representation at the wereda level, up on the payment of professional fee.

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The lack of adequate number of lawyers (professionals) such as government hired defense counselors or pro bono advice providers that provide the service of advice and representation for free for persons 134


that do not afford to pay the cost at the wereda level. 

Lack of adequate number of paralegals (non-professionals) that can still provide help or advice to clients. Nevertheless they do not possess the required educational background and their advice is supposed to be untrustworthy, they can still play a role from experience and their role is bigger to advice on the most prevalent legal problems in their surroundings.

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The non-availability of non-governmental institutions such as Civil Society Organizations (CSOs) that are interested in the provision of free advice and representation services at the wereda level.

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The non-availability of governmental actors (stakeholders) such as the Human Rights Commission (Ombudsman) to provide advice and representation at the wereda level.

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The economic situation and the relatively poor standard of living at the wereda level does not suit lawyers (especially those with high level of education and experience) to sustainably live and work there and provide the service of advice and representation, except by way of HIT and RUN. As a result, clients are forced to access such lawyers wherever they are and in addition to the direct cost of service the clients pay in terms of opportunity cost such as transport cost, hotels cost, counter-productivity (abandonment of their daily chorus).

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The presence of problem of language barriers in due course of the provision and reception of legal advice as between the advisors and the client advisees.

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The fact that the justice institutions does not have adequate budget to hire adequate numbers of professionals such as defense counselors that provide advice and representation at the wereda level.

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Uneven distributions of lawyers that provide advice and representation in rural and urban areas for they naturally gravitate to cities.

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The non-availability of schemes that are put in place in the justice institutions or courts to bring lawyers that provide advice and representation, at least temporarily, from urban areas to rural areas through the instrumentality of travelling lawyers programs.

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The non-availability of collaborative efforts of the justice institutions or the pertinent governmental stakeholders to work hand in hand with other governmental and non-governmental actors such as CSOs to promote the availability of adequate and cheaper advice and representation service to all citizens in need at the wereda level. 135


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The non-availability of various capacity building trainings to lawyers and especially paralegals (non-lawyers but still practicing advice) undertaken by the government or justice institutions at the wereda level.

d. The Challenges of Access to Justice Related to the Element of factors Associated with Justice institutions 1. The Challenges of Access to Justice Related to the Element of factors Associated with Courts in the study Area 

In adequate number and type of available benches: the benches in the wereda courts are limited both very few number and types of benches. This fact has numerous implication on the accessibility of courts in that if more number and type of benches are present in courts, they can more efficiently entertain large number of cases and it also increases the quality and enforcement of their decisions or services for each case will be entertained in due time by a special benches which are presided by judges that are experts (who specialized) on such special subject matters. For example, in all of the wereda courts in the study area there are only two types of benches which are civil and criminal respectively. Hence, all the civil matters, regardless of specialty are merged and entertained in the civil bench and the same holds true to the criminal matters in the criminal bench. This among other things, create backlog, judges may not deal with cases based on merit or specialty and it encourages disinterest on judges and so on. In this regard, for instance under the civil bench there should have been various sub division of benches such as Family bench, Labor bench, Children Affairs, ADR benches and so on. This enables courts to maintain the attributes of efficiency, specialty and technicality in due course of entertaining cause of actions, the ultimate summation of which enable the courts to become more accessible to clients.

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There is a relatively high rate of backlog in the wereda courts in that the courts, for various reasons such as inadequate budget, limited resources, shortage of professionals and so on, are not capable of settling all the cases that are instituted in a given year.



Inadequate number and qualification of judges: almost all of the wereda courts in the study area are not staffed with adequate number of judges to entertain cases efficiently, swiftly and based on areas of academic training specialty of judges. The average number of judges per court is 2 to 3. Even the average number of courts per wereda is one. One could so easily understand the hugeness of this barrier to access the courts by considering the ratio of the number of citizens in a wereda to the 136


number of both courts and judges in that wereda, which is one judge to 30,000 to 35,000 persons in the wereda. The second segment of the challenge associated with this factor is, the lack of adequate number of judges per court that possess the required level of education and experience at the wereda level. Not few numbers of judges are with educational background of a Diploma level certificate. This in turn, negatively impacts the quality of their services for the ability of a judge to properly understand and interpret the law directly depends on his or her level of education. 

In adequate numbers and Qualification of Legal Officers: the officers are assisting staff in the working of judges. Again, they are not available in the courts adequately and do not possess the required qualification to that effect. For instance, the average number of the officers per court is 2 to 3 and almost 2/3 of them are certificate and Diploma holders and not few numbers of them are trained in a non-law field of study.



The office of the Defense Counselor does not exist in the wereda courts. This office should be staffed by lawyer professionals that are hired by the government to provide free advice and representation to those client defendants in the court who cannot afford to pay by themselves. The indispensability of this office in guaranteeing access to justice institutions becomes of manifold when one strictly considers the fact that the majority of the clients at the wereda level are with low standard of living that cannot afford to pay for legal services.



The non-availability of language interpreters in the wereda courts. This also has an unbearable consequence on access to justice in that the language of the law is by itself over-technical and the majority of clients do not have the required potential to understand such language by themselves. In addition to that there are not few numbers of clients that do not speak or understand Afan Oromo. Hence, in the absence of such interpreters, the mere presence of a client in the chamber of the court, without understanding the language of the law or the court, is meaningless (futile) and technically it does not amount to accessing the court.



The presence of relatively high attrition rate of judges. Attrition comes in to forms- transfer and resignation. The associated causes are low level of salary and other related benefits and low standard of living at the wereda level. This also affects access to justice for (1) the resigning of one judge increases the burden of case load on the remaining judges and (2) frequent transfer of judges from wereda to wereda makes them not to permanently live a life and do their jobs efficiently.

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

The courts at the wereda level are not duly constituted and equipped with all the necessary resources (at the disposal of staff or clients) to properly or efficiently undertake their purpose of incorporation. The non-availability of such resources does not only become a barrier to access the courts but also it impacts speedy trial, quality of service, convenience of work environment and so on. Almost all the resources enumerated under Chapter Four of this paper are either unavailable or not adequately available or they are not accessible at all.



The budget allocated to wereda courts is inadequate and this can be ascertained from the various consequences the reality of the courts show due to the same such as: they are not properly staffed, the office and location of courts is not comfortable, judges complain of low wedges, the courts lack resources, they do not undertake researches or community projects and so on. The conclusion from here is, courts that do not have enough budgets are generally not accessible.



The courts do not undertake regular training or capacity building programs to their staff members or their clients and they do not engage in popular education programs to promote legal awareness in the localities they are operating.



The courts at the wereda level do not have strategic partnership with relevant governmental or non-governmental stakeholders or with the remaining elements of the justice system such as the police stations, justice office and so on to harmoniously administer justice in the locality they operate.



Most of the courts in the study area do not held Open-trials. It is the constitutional rights of litigants to be tried openly in the presence of an audience except in scenarios that, by their very nature, require Closedtrials. In turn, this is due to factors such as lack of properly constituted and well-spaced trial halls.



There is a relative delay in the duration of decisions, appeal and enforcement of decisions.



There is a convincingly acceptable blame against courts from the public that they are generally corrupt and there is low level of popular trust towards courts.



The procedures followed in courts in particular and in their workings in general are cumbersome, not adequately transparent and over technical.

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2. The Challenges of Access to Justice Related to the Element of factors Associated with the Justice Offices in the study Area 

The office and the infrastructure of the justice office at the wereda level is not properly constituted as an independent justice actor in the justice system rather it is organized as one department in the compound of courts.



Inadequate number and qualification of public prosecutors: the average number of public prosecutors per wereda is 2 to 3 and almost half of these prosecutors are with an educational background of a Diploma certificate or below. NB., regarding the impact of this factor on access to justice, the readers are invited to refer to the logic given to the same issue on the number and qualification of Judges.



The Justice at the wereda level do not have strategic partnership with relevant governmental or non-governmental stakeholders or with the remaining elements of the justice system such as the police stations, courts office and so on to harmoniously administer justice in the locality they operate.



The justice offices do not undertake regular training or capacity building programs to their staff members or their clients, most importantly the police department and they do not engage in popular education programs to promote legal awareness in the localities they are operating.



The presence of relatively high attrition rate of Public Prosecutors which comes in the form of either transfer or resignation.



The Availability of Formal Trainings: there are no continuous and formal trainings available to the prosecutors on the working of the justice office in general or on particular issues such as for instance new developments in the administration of criminal justice.



The prosecutors are not regularly trained in a way that they develop the required capacity to enforce constitutional and international human rights.



There are no mechanisms and practices put in place in the justice office for controlling the exercise of discretion by the prosecutors in due course of exercising their discretion while performing their activities in relation to, for instance, case withdrawal, or opposing of bail and so on.



There is no automated data management system put in place to facilitate flow of information at different levels of the justice office.



There is no enough number of human resource or other assisting staff 139


that commensurate with the demands of the office. 

The justice office at the wereda level are not duly constituted and equipped with all the necessary resources (at the disposal of staff or clients) to properly or efficiently undertake their purpose of incorporation. NB. Refer to the details and the magnitude of availability of resources in the justice offices at the wereda level on Chapter Four. 3. The Challenges of Access to Justice Related to the Element of factors Associated with the Police Stations in the study Area



Though there is no acute shortage of police officers, the government should do better to improve the educational level of the members of the police.



The police officers are not provided with regular and formal trainings on police work in due course of administration of justice. Especially the police lack adequate and regular trainings regarding the law. To mention some, trainings on their own rights and duties, trainings on the fundamental principles of the constitution or the constitutional rights of suspected, accused or detained persons or trainings on human rights law and the laws that are applicable in the day to day activities of the police such as the criminal procedure law which outlines the procedures that has to be followed in due course of an Arrest, Accusation, collection of evidence, Imprisonment and so on.



The police officers are not adequately equipped with the skills of conducting criminal investigation in line with constitutionally protected human right standards.



The police officers do not operate criminal investigation in collaboration with other professionals, such as, psychologists, sociologists, community elders and so on.



The police administrations do not undertake projects aimed at promoting the right perception and cooperation of the community to work with the police in crime prevention and investigation.



There are no formal control and follow up mechanisms put in place to ensure that the police persons discharge their duties legally, ethically, in transparency and diligently.



There is no adequate practice of using indigenous rules and institutions for crime prevention and investigation.



The police stations at the wereda level are not duly constituted and 140


equipped with all the necessary resources (at the clients) to properly or efficiently undertake incorporation. NB. Refer to the details and availability of resources in the police stations at Chapter Four.

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disposal of staff or their purpose of the magnitude of the wereda level on

5.2 Recommendations 1. on the Element of Legal Knowledge 

The justice institutions should employ the necessary Popular Education Methods in the weredas where they are operating that are intended to boost the legal knowledge of the population or their clients in the weredas, and generally to increase the availability of legal information at the wereda level. In this regard the use of direct or indirect popular education programs such as public radio or television shows on the law of the country is advisable. In this regard, Involving on-lawyers, such as community organizers, teachers, and religious leaders, in the design and delivery of community education programs is extremely effective. They can make substantial contributions to increasing public knowledge of the law and of citizens‟ rights and duties.



The justice institutions should also undertake various training and capacity building programs that are destined to boost the legal knowledge or educational levels of their personnel such as judges, public prosecutors and the policemen. Especially, such trainings should emphasize on those staff members of the justice institutions with low level of educational background.



The responsible organ of the government in collaboration with the justice institutions should produce or make available adequate legal knowledge or information that is produced in local languages.



The government in collaboration with the justice institutions should encourage the availability of direct legal education programs in the Arsi zone. This may come in the form of a University or the establishment of law schools such as the Law School of the Arsi University which will play its pivotal role in the dissemination of legal knowledge within the Zone.



The budget allotted to the justice institutions at the wereda level should be increased so that they could develop more capacity to efficiently conduct legal awareness programs in favor of the public at large, their clients or their own staff members

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2. on the Element of Legal Framework 

The justice institutions should put in place the necessary internal guidelines and manuals which are essential to objectively define and outline the proper application of the legal framework (substantive and procedural) in the workings of their offices.



The justice institutions in collaboration with the responsible organ of the government should engage in the promotion of a comprehensive research and knowledge development program on indigenous mechanism of dispute settlement and the rules of substance and procedures applied therein; in order to study, identify and incorporate them in to the legal framework of the country or the formal system of dispute settlement.



The Judges, public prosecutors and the police officers should also, on individual level, undertake the necessary study on such rules and procedures in indigenous mechanism to use them directly or indirectly in their working, especially in due course of solving disputes among such communities.



The justice institutions in collaboration with the pertinent organs of the government should engage in providing regular or adequate capacity building trainings to the staff members of the justice institutions on the available legal framework in the region or the country that will enable the trainees to boost their knowledge on the relevant laws applicable in the workings of such institutions.



The justice institutions should collaborate with the legislative organ of the government to produce adequate rules of substance and procedure (legal framework) in local languages.



The justice institutions (especially the courts) and the legislative organ of the government should work together to legislate on the procedural rules or legal framework to be applied during alternative dispute resolutions. 3. on the Element of Advice and Representation



The responsible organ of the government and the justice institutions should engage in various capacity building or training programs to both lawyers and paralegal individuals who are engaged in the provision of advice and representation. In this regard, much emphasis should be given to the paralegals. 143




The justice institutions should collaborate with the responsible governmental and non-governmental (actors such as the Human Rights Commission (ombudsman) or anti-corruption commission or CSOs) to make the service of advice and representation adequately available to all in need in their weredas.



The justice institutions should work in line with the pertinent organs of the government to bring lawyers that provide advice and representation (at least temporarily) by developing schemes like Travelling Lawyers Programs.



The government or the Ministry of Justice should allocate the necessary budget to the justice offices to hire the Defense Counselor at the wereda level or to create the office of such counselors to provide free advice and representation to those defendants that do not afford to pay for legal services or hire their own lawyers.



The justice institutions should develop the necessary schemes to cause an even distribution of lawyers that provide the service of advice and representation via out the entire Arsi Zone.

4. on the Element of Factors Associated with the Justice Institutions 

The courts should establish and increase the number and types of their benches to be able to entertain more cases, efficiently and based on merit or expertise of judges.



The courts should put in place mechanisms to reduce or entirely eradicate case backlogs by putting in place various mechanisms such as hire more judges, establish more benches, automation of their systems or improving their case management procedures and so on.



The number of the judges and their educational level is not adequate. Hence, the ministry of justice or the justice institutions should hire the necessary number of judges per wereda and a way should also be found to upgrade the educational status of the majority of the judges who are with an educational level of a Diploma certificate.



Regarding the number and educational level of the Legal Officers in courts, the same recommendation given on the judges should apply. In addition, however the study showed that not few of such officers hold educational trainings on fields of study other than law. Hence, it is advisable to hire those with law training.



The office of the defense counselor and the court language interpreter does not exist at the wereda level hence it is recommended to hire such 144


professionals accordingly. 

The government should allocate the necessary budget to duly constitute courts by making all the necessary resources available to them to properly undertake the administration of justice.



The research shows that due to factors associated with the lack of budget, among other things, the courts are not properly staffed, their offices and location of the compound are not comfortable, judges complain of low pay, their resources are inadequate, they do not engage in training programs and so on. Hence, the responsible organ of the government should allocate the necessary budget to the courts at the wereda level.



The courts at the wereda level are recommended to engage in Strategic Partnerships with either the governmental actors or the nongovernmental actors to harmoniously administer justice in the localities they operate in.



The study revealed that due to factors such as the lack of adequate offices or halls, most of the wereda courts do not undertake Open Trials. This is however against the constitutional right of citizens to be tried openly unless the circumstances dictated a Closed Trial. It should be noted here that Closed Trials are more exposed to corruption. Hence the courts are advised to hold Open Trials.



The office of the public prosecutors shall be duly and independently constituted. Most of the justice offices are arbitrarily placed in the compound of courts as if the office is not an independent justice actor.



The ministry of Justice should hire more prosecutors at the wereda level and should engage in various schemes to upgrade the educational level of the existing prosecutors the majority of whom are Diploma certificate holders.



The justice office should engage in strategic partnerships with relevant governmental and non-governmental actors and the remaining segments of the justice sector to see to it that justice is administered properly in the weredas they operate.



The justice offices should cooperate with the responsible organ of the government to undertake regular training or capacity building programs to their staff members or their clients, most importantly with the police department working hand in hand with them and they should engage in popular education programs to promote legal awareness in the localities they are operating.

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

The justice offices are advised to take various measures to decrease or eradicate the problem of attrition Public Prosecutors.



The justice offices should render continuous and formal trainings to their staff prosecutors on the working of the justice office in general or on particular issues such as for instance new developments in the administration of criminal justice.



The justice offices should put in place the necessary mechanisms and practices in for controlling the exercise of discretion by the prosecutors in due course of exercising their discretion while performing their activities in relation to, for instance, case withdrawal, or opposing of bail and so on.



The justice offices should put in place automated data management system to facilitate flow of information at different levels of the justice office.



The justice offices should additionally hire enough number of human resources or other assisting staff that commensurate with the demands of the office.



The responsible organ of the government should allocate the necessary budget to the justice offices at the wereda level to duly constitute and equip the offices with all the necessary resources (at the disposal of staff or clients) to enable them properly or efficiently undertake their purpose of incorporation.



Though there is no acute shortage of police officers, the government should do better to improve the educational level of the members of the police.



The police stations in collaboration with various governmental or nongovernmental actors should undertake regular and formal trainings on police work in due course of administration of justice to their staff members. In this regard it is advisable to train the police on their own rights and duties, trainings on the fundamental principles of the constitution or the constitutional rights of suspected, accused or detained persons or trainings on human rights law and the laws that are applicable in the day to day activities of the police such as the criminal procedure law which outlines the procedures that has to be followed in due course of an Arrest, Accusation, collection of evidence, and Imprisonment.



The responsible organ of the government in collaboration with the police stations at the wereda level should provide technical trainings to police officers in order to adequately equip them with the skills of 146


conducting criminal investigation in line with constitutionally protected human right standards. 

The police officers are advised to study, identify and use indigenous rules and institutions or mechanisms of dispute settlement in due course of their police work especially in relation to the prevention and settlement of dispute among local people.



The police stations are recommended to work in partnership with other professionals in due course of undertaking criminal investigation. Such as, psychologists, sociologists, community elders and so on.



The police stations in collaboration with the responsible organ of the government should undertake projects aimed at promoting the right perception and cooperation of the community to work with the police in crime prevention and investigation. It is an open secret that without the meaningful participation of the community police work is a toothless lion.



The police stations are recommended to put in place formal control and follow up mechanisms police persons need to fulfill in due course of discharging their duties such as diligence, respecting the law, maintain ethical requirements, accountability and transparency in due course of police work.



The responsible organ of the government should allocate adequate budget to the police stations at the wereda level in order to duly constitute and equip them with all the necessary resources (at the disposal of staff or clients) to properly or efficiently undertake their police work.

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Bibliography Books -

Francesco Francioni, Access to justice as a Human Right, Vol. XVI/4, Oxford University Press, (2007)

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Francesco Francioni, the Right to Access to Justice under Customary International Law, Vol. XVI/4, Oxford University Press, (2007).

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Fionnuala Ni Aolain, the individual right of Access to Justice in Times of Crisis: Emergencies, Armed Conflicts and Terrorism, Vol. XVI/4, Oxford University Press, (2007)

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Natalino Ronzitti, Access to Justice and Compensation for the Violation of the Law of War, Vol. XVI/4, Oxford University Press, (2007)

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Martin Scheinin, Access to Justice Before the International Human Rights Bodies, Reflections on the Practices of the UN Human Rights Commission, Vol. XVI/4, Oxford University Press, (2007)

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Cartherine Regwell, Access to Environmental Justice, Vol. XVI/4, Oxford University Press, (2007)

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Eva Stroskrubb and Ja cques Ziller, Access to Justice in European Comparative Law, Vol. XVI/4, Oxford University Press, (2007)

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Rorg Stephen Brown, Access to Justice for Victims of Torture, Vol. XVI/4, Oxford University Press, (2007)

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Rebecca L. Sandefur, Access to Justice Classical Approaches and New Directions, Sociology of Crime, Law, and Deviance, Vol. 12, Stanford University Press, (2009)

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Stephen Daniels and Joanne Martin, Legal Services for the Poor: Access to self Interest and Pro bono, Vol. 12, Stanford University Press, (2009)

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Bryant G. Garth, Comment: A Revival of Access to Justice Research, Vol. 12, Stanford University Press, (2009)

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Sutatip Yuthayotin, Access to Justice in Transnation E-coommerce, A Multi dimentional Analysis of Consumer Protection Mechanisms, Springer International Publishing, (2015)

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Deborah L. Rhode, Access to Justice, Oxford University Press, (2004)

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Stefan Wrbka, European Consumers Access to Justice Revisited, Cambridge University Press, (2015). 148


Documents and Unpublished Materials -

Amha Wendirad, An Overview of the Ethiopian Legal System

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Pietro S. Toggia and Thomas F. Geraghty, Access to Justice: Towards an Inventory of Issues, Center for Human Rights, Addis Ababa University, (2014)

-

Access to Justice in Europe: An Overview of Challenges and Opportunities, European Union Agency for Fundamental Rights, (2010)

-

Ig. Aguns M. Wardana, Access to Justice for Indigenous Peoples in International Law

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Access to Justice: Human Rights Abuses Involving Corporations, A Project of the International Commission of Jurists, Federal Republic of Nigeria, (2012)

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Matthias Kotter, Better Access to Justice by Public Recognition of NonState Justice Systems? Max Planck Institute for European Legal History, Research Paper Serious, No. (2012)

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Access to Justice in Quadhi Courts, Baseline Survey Report, Kampala and Butambala Districts, Uganda, Muslim Center for Justice and the Law, (2012).

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Ani Comfort Chenerye, Access to Justice in Nigerian Criminal and Civil Justice Systems

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Thornton, Liam, and Walsh, the ECHR, Socio Economic Disadvantage and Access to Justice. Laws

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The FDRE Constitution

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The Criminal Code of the FDRE

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The Civil Procedure Code of Ethiopia

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The Criminal Procedure Code of Ethiopia

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The International Covenant on Civil and Political Rights

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The International Covenant on Economic, Social, and Cultural Rights

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The BANJUL/ the African Charter on Human and Peoples Rights

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The Universal Declaration of Human Rights 149


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Federal Prisons Commission Establishment Proclamation No.365/2003 Internet Sources

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http://europa.eu.

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http://www.ag.gov.au/cca

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http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_FederalCivilJ usticeSystemStrategyPaper-December2003>.

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http://go.worldbank.org/

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http://ssrn.com/abstract=2559077

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http://www.bloomsburyprofessional.com/ie/ireland-and-theeuropeanconvention-on-human-rights-60-years-and-beyond-9781780434728

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www.mcjl.ug

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www.binghamcentre.biicl.org

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http://ssrn.com/abstract=2559077

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(http://www.unrol.org/files/A-RES-67-1.pdf

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http://ir.lawnet.fordham.edu/ulj

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V. Appendix Interview and Questionnaire Questions on Legal Knowledge Clients of courts, Police and Justice Bureau 1) Do you know that it is your constitutional right to get an education (formal or informal)? 2) How do you evaluate the extent of your knowledge about your basic rights and duties before the law? If detained or imprisoned your related rights as a prisoner or a detainee? 3) Have you ever accessed or read or get information from legal materials about your rights and duties or to alleviate your legal problems? 4) Have you ever accessed or read or get information from legal materials produced in your local language about your rights and duties or to alleviate your legal problems? 5) How do you evaluate your level of education to be able to know and understand the law? 6) Have you accessed legal information or acquired legal education that will help you solve your legal problems from the government or pertinent state actors? 7) Do you have the experience of participating or acquiring legal knowledge or information from popular education programs or media such as TV, Radio, and Newspapers and so on? 8) Do you have the experience of acquiring adequate legal information about your rights and duties from state or non-state justice actors? 9) Do you believe that you have enough legal knowledge to present your claims or defend your interest, in the language of the law, before a court? 10) Imagine that you have already encountered a legal problem or dispute that has to be solved; do you know, as to where to go, to address your problem? 11) Do you know that legal problems can be solved by also seeking assistance from informal but close institutions available in your locality such as village elders or chiefs, paralegals NGOs and so on? 12) Do you trust relevant justice institutions (such as police, prosecutors) to help you acquire or know and address your legal problems? 13) Are there local social networks in your community that are trusted and familiar to effectively provide legal information and help you with your justice problems? 14) Are you even aware of the availability and benefits of obtaining assistance on your legal problems from pertinent institutions? 15) Have you ever abandoned or give up a legal problem you have already encountered due to lack of information as how to alleviate the problems? 16) Do you know the functions of lawyers (judges, attorneys or prosecutors, defense counselors, 151


interpreters, legal aid officers)? 17) Do you know the function of courts, police, justice bureaus, or prison administrations? Questionnaire and Informal Interview Questions on the Element of Legal Knowledge in Justice Institution Officials (Courts, Police, Prosecutors, Prison Administration) 1) How do you evaluate the amount and quality of legal information available to citizens in your zone? 2) How do you evaluate the extent to which legal information is produced in local languages? 3) How do you evaluate the activities undertaken by your institution to enhance legal knowledge among citizens? 4) How do you evaluate the level of information dissemination by the state? 5) Does your institution use various types of mass-media to communicate legal awareness messages to the community at large? 6) Does your institution endeavor to educate citizens formally or informally on how to access your institution or address their legal problems? 7) Does your institution know that it has a duty to educate and inform citizens about the services rendered or the workings of the institution? 8) Does your institution have employed popular education methods in community education programs? 9) Do you have the experience of receiving capacity building trainings from state or non state actors to boost your ability to provide information to citizens? 10) Do you know the constitutional and legislative provisions guaranteeing access to information, as well as freedom of information policies and rules to implement them? 11) Do you try to disseminate legal information produced in user-friendly formats, including those targeted to people with low level of literacy skills or disabilities? 12) How do you evaluate the level of awareness of citizens to solve their common justice problems? 13) Do you think your institution has won the trust of the surrounding community to educate them about their rights and duties? 14) Does your organization have social education program networks in the community?

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QUESTIONNAIRE QUESTIONS AND INFORMAL INTERVIEW QUESTIONS ON LEGAL FRAMEWORK (Judges, prosecutors ADR officials) 1) Does your organization put in place clear rules and guidelines or standards that are needed to define how constitutional provisions will be implemented? 2) Does your organization put in place substantive laws and formal procedures in decision making and minimum standards for ADR officials (mediators and arbitrators) to follow in due course of adjudicating the right of victims and suspects? 3) Do you believe that the lack of clear rules and standards influences the right of citizens to access justice institutions to solve their justice problems? 4) Do you believe that the existing rules and regulations in your institutions in your organization confer the same right (protection) to all categories of citizens, especially vulnerable groups? Or are they non-discriminatory? 5) Are the rules or laws applied by your organization in due course of ADR adjudications non-discriminatory/ 6) Does your institution promote comprehensive research and knowledge development of traditional and indigenous systems in order to record and research laws and traditions that may be useful in dispute settlement? 7) How do you evaluate the tendency of judges and those who work in the formal legal system to better understand and consider utilizing indigenous practices while adjudicating a dispute involving indigenous disputants? 8) Does your institution or the government give regular capacity building trainings to relevant authorities such as formal court judges, mediators and arbitrators in order to make them be aware of their mandate and duties, including the rules and standards they need to follow? 9) Does your organization have code of ethics and a handbook on how to apply code of ethics including training on minimum standards, human rights and international standards? 10) Does your organization work in partnership the legislative branch of the government to ensure that laws and regulations are drafted using clear and plain language? 11) Does your organization give trainings to develop the capacity of customary leaders and improve the quality of decision making in non-state adjudicatory actors? 12) Does your organization work in partnership with non-state actors and dis advantaged groups and so on in order to address the discriminatory effects of social and customary practices? 153


13) In the locality your institution operates, are there state laws that create clear legal rights for citizens with in the formal justice system? 14) In the locality your institution operates, are there customary laws and practices that create clear legal rights for citizens with in the informal justice system? 15) Do you believe that these laws and practices are clear or simple to understand? 16) Does your organization consistently enforce and apply laws (federal or state)? 17) Do you think the informal justice institutions are given the power, by law, to solve justice problems or to provide a remedy to such problems? 4.3 Questionnaire and Interview Questions on the Element of Legal Advice and Representation: Client Respondents in Courts 1. Do you know how to navigate throughout the judicial system by yourself? 2. Have you ever faced a legal problem about which you have no idea as to how to proceed and needed to seek legal advice about your problem? 3. Do you know that it is your constitutional right to seek legal advice and representation, by your own cost or provided by the state? 4. Imagine that you faced a legal problem and you cannot afford to hire a lawyer by yourself; are you aware that the government should put in place personnel to assist you with legal advice free of charge? 5. Do you think that there are adequate number of legal advice and representation service providers with the necessary level of training and expertise in legal assistance in the justice institution in your locality or wereda? 6. Imagine that you wanted to settle your problem via the means of negotiation or mediation; are there adequate numbers of trained paralegals to that effect in your locality? 7. Do you know that or are there other non-governmental legal advice and representation providers in your locality? 8. Are the following legal advice and representation service providers available in the justice institutions in your locality: Public defender office? Private lawyers? Pro bono assistance, CSOs and Law school clinics? 9. Do you believe that there are enough number of lawyers that provide advice and representation in your locality or should you travel to the zonal cities or long distance to acquire such services? 10. How do you evaluate the direct legal services cost of lawyers in your locality or is it affordable? How about the indirect but still related costs? 11. if you have previous experience of legal advice, are the legal information and advice 154


given to you in the language you understand or with no over technicality? 12. if it is not understandable and vivid enough, how much does it affect your trust of the information and advice you received as representing your best interest? Questionnaire Questions on the Element of Legal Advice and Representation: judges and officials Respondents in Courts 1. Do you think that the clients in your institution are well equipped with the procedures and the law to bring their problems before courts and defend their claims? 2. Does your institution re cognize that it is the constitutional right of clients to be provided with legal advice and representation with fee or free of charge if they cannot afford to pay? 3. Do you think that there are enough number of lawyers that provide legal advice and representation in or around your institution for a professional fee? 4. If there are, do you think that they are well equipped with the necessary training and experience to provide effective legal advice and representation? 5. If the clients wanted to settle their problem by extra judicial mechanisms do you believe that there are enough number of trained paralegals to provide such advice and representation? 6. For those clients that do not afford a lawyer does your institution provide enough number of defense lawyers or counselors with the necessary training and experience to assist citizens? 7. Do you believe that in your wereda there are enough numbers of legal advice and representation providers by the government or pro bono service providers or CSOs or law school clinics? 8. Do you think the ratio of lawyers distribution is even both in towns and remote areas or are the lawyers available in remote areas? 9. Even if very few service providers exist how do you evaluate the cost of lawyers vis-à-vis the clients ability to pay? 10. Do you think that the advice and representation rendered by the lawyers in your wereda is in a language understandable or non-technical to the clients? 11. How do you evaluate the trust of the population towards legal advice and representation service providers in your wereda? 12. Does your institution have a scheme to bring lawyers from urban areas to rural areas through travelling lawyers programs? 13. How do you evaluate the experience of your institution to work or collaborate with other governmental or non-governmental groups interested in providing such services, such as 155


CSOs, Pro bono providers, law school clinics in order to ascertain such services to all clients? 14. How do you evaluate the efforts of your institution to enhance the capacity of paralegals and other non-lawyer advocates in order to encourage the provision of such services in your wereda? 15. are there adequate numbers of lawyers offering legal advice and representation to citizens in your wereda? 16. Are there adequate numbers of lawyers offering legal advice and representation to citizens in your wereda, free of charge? 17. Are there adequate numbers of paralegals and non-lawyers offering legal advice and representation to citizens? 18. How do you assess the quality of services provided by all the above actors? 4.4. Interview Questions on the element of Justice InstitutionsClient Respondents 1. Do you think that the cost of using a justice institution is affordable to you in order to be able to rely on the justice institutions to solve your justice problems? 2. How do you evaluate the affordability of direct costs such as payments to courts for filing a suit, legal advisors, and bribes and so on? 3. how do you evaluate the affordability of the indirect costs of transportation, travel time, loss of income and son in due course of bringing a case before a justice institution? 4. do you believe that there is an adequate standards of accountability of corruption of officials with in the the institution? 5. Do you think that there are adequate numbers of functioning courts or justice institutions in the wereda you are living in when compared to the number or demography of the population of the wereda? 6. How do you evaluate the distribution of justice institutions both within and outside your wereda? 7. Do you think that there is an adequate transport infrastructure in your wereda which makes it easier for you to travel to justice institutions? 8. How do you evaluate the stability of your wereda or region which affects your ability and willingness to access justice institutions? 9. Has there been any form of travel restriction imposed in your locality that restricted you from accessing justice institutions? 10. Do you feel in secured or threatened by a justice institution and developed worry of the 156


negative consequences that may arise from interacting with a justice institution? 11. do you feel intimidated or harassed by the justice institution itself or actors who do not agree with their decision to use the justice institutions? 12. how do you evaluate the ability of the court in your wereda to process cases in a timely manner? 13. are you aware that delay in dispute settlement worsen the effect of other obstacles to access justice institutions such as cost and so on? Questionnaire questions and Informal Interview to justice institutions 1. Do you believe that the services of your institution are affordable to citizens in order to enable them to solve their justice problems? 2. How do you evaluate the affordability of the direct, indirect and upfront costs of your institution? 3. Does your institution understand that unnecessary or numerous costs are symptom of complex, systematic problems with in a justice system? 4. Does your institution understand that reduction in cost of service results in more accessibility? 5. Has there been a long term or short term reform measure by your institution to make justice service affordable to indigent citizens? 6. Do you think that there are adequate numbers of functioning justice institutions in your werda? 7. Do you think that the distribution of justice institutions in your wereda or the surrounding weredas is even? 8. How do you evaluate the efficiency of transport infrastructure in your wereda? 9. How do you evaluate the stability of the wereda or the region in which your court operates? 10. How do you evaluate the tendency of people to feel threatened by the justice institutions? 11. Does your institution put in place a scheme of diverting more appropriate cases to more accessible justice institutions in order to reduce caseloads? 12. Does your court deploy mobile courts to be able to create more chances to the public in remote areas to access its services? 13. Is there a scheme, in your institution or wereda, of using civic education programs to combat fear of public institutions and negative attitudes and create support mechanisms 157


for citizens using justice institutions? 14. Does your institution deploy mobile courts to access remote areas in your wereda? 15. Does your institution process cases in a timely manner? 16. How do you evaluate the case loads in your organization? 17. Does your institution put in place efficient case and court management procedures to ensure that cases are processed efficiently and timely? (Which may include steps to be covered, responsible personnel, a time line, end result and so on)? 4.5 Questionnaire and Informal Interview questions on Fair Procedure- Justice Institutions 1. do you believe that or are there outlined rules of procedures put in place in your court that provide citizens with an opportunity to effectively present their argument or call witnesses and defend their cause before court of law? 2. do you think that your institution has put in place rules of procedure to ensure that no matter what language the parties speak, the parties are able to understand and participate in proceedings? 4. does your institution put in place mechanisms to compel witnesses to attend proceedings and to protect witnesses from reprisals, either verbal or physical or to protect them from intimidation? 5. how do you evaluate the efforts of your institution to conduct a legislative reform to improve rules of procedure so that they can be used by litigants properly? 6. does your institution work in direct collaboration with adjudicators or mediators to improve such rules of procedure and practices in the court via trainings? 7. do you believe that there are rules of procedure that ensure adjudicators and mediators in your court resolve disputes impartially and without improper influence which may come in the form of inducements, pressures or threats? 8. do you think that there are rules of procedure placed to guarantee the independence of the judiciary in your court? 9. is there a transparent appointment of judges based on merit or according to a publicized objective and clear criteria? 10. do you believe that adjudicators in your court are protected by law from improper dismissal or are they guaranteed to serve their tenure of service until retirement? 11. do you believe that adjudicators or mediators in your court are adequately remunerated and have a reasonable standard of living? 12. Do you believe that the safety and security of adjudicators or mediators is adequately 158


protected both on job and off job? 13. how do you evaluate the effort of your institution to strictly adhere to oversight mechanisms regarding decisions and allegations of bias, corruption or undue influence and impartiality and thereby take the necessary corrective measures? 14. are there state institutions in your wereda, such as the human rights commission or ombudsmen to provide check and balance or oversight mechanisms on court decisions? 15. Do you think that the judges in your court give reasoned decisions in due course of adjudication whether orally or in writing? 16. Does your institution work with the public at large or conduct reforms destined to ensure or increase public oversight of adjudicators or mediators? 17. in due course of informal or extra judicial settlement of disputes, does your institution follow written rules of procedure in order to enable adjudicators to render impartial decisions or enable citizens to be well informed as to the nature and consequences of the proposed solution? 18. in order to promote impartiality in informal settlement of disputes does your institution provide training programs to mediators or arbitrators and so on? 4.2 Questionnaire and Informal Interview questions on Enforceable Decisions- justice Institutions 1. How do you evaluate the ability of your institution to properly enforce its decision and on timely manner? 2. How do you evaluate the ability of your institution to properly and duly enforce its decision through the coercive force of the state or to imprison or arrest a person who refuses to act according to the decision of the court? 3. How do you evaluate the ability of non-formal or extra judicial mechanisms of dispute settlement such as mediation or negotiation to enforce their decision, for instance via the instrumentality of the forces of the state or social sanction? 4. What role is your institution playing to guarantee enforcement of its decision via mechanisms such as: reduction of the cost of enforcement by litigants, or in curbing corruption paid to law enforcement agencies in order not to enforce such decisions and so on? 5. Does your institution work in collaboration with the public and other actors to create awareness of the importance of enforcement of court decisions in guaranteeing access to justice? 6. Does your organization strive to ensure proper enforcement of its decision by creating 159


a linkage as between state and non-state justice actors? 7. are you aware of the fact that enforcement of decision in your court is, among other things, influenced negatively by the presence of high cost of enforcement by litigants and the payment of corruption to enforcement agencies?

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ABOUT THE AUTHOR Mr. Samuel Maireg Biresaw is a young and seasoned law scholar in Ethiopia. He has secured his LL.B. Degree in Laws and an LL.M. Degree in Business Laws. He has Ten years of solid Lecturer in Laws, Research and Publication experience in three different law schools in Ethiopia including the Law Schools of Adama Science and Technology University and Arsi University in Ethiopia. Currently, Mr. Samuel Maireg is a Senior Lecturer in Business Laws in the Law School of Debre Tabor University Ethiopia. This book is one of the many research papers written by Mr. Samuel and he is already an author before this piece of writing. This is the continuation of the author’s effort to contribute his part to the academic community at large.

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