JUSTICE IN PRACTICE
Justice in Practice contrasts with Justice in Law to show what is actually happening on the ground by triangulating surveys of the general population, court users, practitioners and court observations
The statutory justice system services a fraction of the Ethiopian population in the settlement of their disputes and prosecution of offences. This is the main finding of the Hague Institute for Innovative Law (HiiL) and the Federal Office of the Attorney-General in their Justice Needs and Satisfaction Survey 2020 (available in the library).
The extracts here show that most people prefer to deal with their matters locally according to customary law. The data are not mutually exclusive so a percentage of those who choose which path is not available, suffice to say there is little here to disagree with the generally held view across the continent that 80% of cases are dealt with by non-statutory fora.
Crime and land disputes are cited as the ‘most impactful legal problem’ people face. While almost half of victims of crime do nothing about it, over 90% of people with land disputes take action.
What Practitioners Say …
Practitioners were surveyed in Amhara and Oromia. The teams asked questions of 494 police and prison police, judges (Zonal and Woreda courts) and their registrars, as well as lawyers and prosecutors (including 142 women respondents – 29%). The breakdown is as follows:
The approach adopted was a purposive sampling method. Criteria were agreed (eg gender proportions and mix of junior and senior office holders) with the teams, but the teams decided whom to interview. The answers do not claim to be representative. Those practitioners viewing the responses will judge whether the responses agree with their own experience.
About safety …
Most practitioners felt safe in their place of work: registrars felt the most secure (77% said they always or mostly felt safe) and prosecutors came in lowest (55% said they always of mostly felt safe). Both police and prison police recorded the same results with 67% saying they always or mostly felt safe.
The threat level practitioners work under appears to run at around 1 in 3 judges, police, prison police and prosecutors being threatened or assaulted. For lawyers the threat level for some reason appears to be higher with 48% registering a threat or attack in the past two years. Registrars sitting behind the scenes register low levels of threat (17%).
The majority of prosecutors said in making professional decisions they were not free from external influence compared with 35% of judges who said they were not. While the question was confined to judges and prosecutors, the complaint is not (see ‘Challenges they face at work’ below).
About their environment …
Most practitioners are content with their work environment with 64% judges finding it very good or good, 60% of police and 62% prison police. The prosecutors were the least content (45%).
Training showed a more varied picture. Practitioners were asked when they were last trained:
Equipment
‘IT’ registered as the ‘Big Ask’ by all. Transport was first for prison police (institutional data for all regions indicated this to be an issue, not only in terms of staff, but ambulances / mobile vans to ferry prisoners to hospital / court as well as trucks to bring in food and equipment) and ran a close second with prosecutors.
About the main challenge they face at work
There were a number of responses which were then organized and refined into a set of composite answers. For example:
The other word bubbles concerning transport, insecurity, work space and workload were less nuanced. Practitioners here complained of the shortage of vehicles, general insecurity in the country, insufficient infrastructure, and staff shortages to cover the workload.
Note: the Practitioner Survey questionnaire and answers by region are in the Baseline data.
What Court Users say…
Court users were also surveyed in Amhara and Oromia regions. As with Practitioners, a purposive sampling method was adopted. The courts were on vacation at the time and therefore not functioning as normal. Student teams (under supervision as above) surveyed 643 Court Users in the precincts of the court (37% women, for full breakdown by gender see Methodology).
The Court Users included:
The difference by 1 of family members and victims of crime appearing in the visual is because an answer was either left blank or ‘N/A’ – and so were not included.
About Getting Justice …
Most people think they will ‘definitely’ or ‘likely’ get justice. There was no discernible difference in response by either men or women. This answer may not be surprising given that these people are interviewed in the court precincts. However many were summonsed to attend and may have felt compelled to attend and could have voiced a different opinion.
Just over half of men and women (again no appreciable difference in response) understood what was happening in the case. Whether the minority did not understand due to language problems or failure to grasp the process is not clear. The court observations conducted by the same teams suggest that courts are challenged to assist litigants who do not speak the language of the court.
Most witnesses were formally summonsed to attend court (though the other means used of contacting witnesses suggests a degree of practicable flexibility). Most had to pay their own expenses. It appears as yet there is no system in place to reimburse witness their travel costs to attend court.
Most of the 150 criminal accused surveyed were kept in policy custody on arrest and for periods in excess of the 48 hour rule (by which time they shall be produced before a court). Over 75% said their families knew they were in policy custody. Around 80% stated they had no access to either a lawyer or a paralegal while in police custody. Of those interviewed at court, most said they were not represented at court on that day. Of significance is the gender difference here, even though the numbers are small: a fraction of the 25 women accused said they had a lawyer versus some 30% of men who said they had. Whether this is an outlier, or women are less represented than men in the criminal justice system requires further study.
The experience of victims of crime with the criminal justice system appears to be overwhelmingly positive. 75% victims of crime had some contact with the police and all but a handful said they would return to the police were something similar to happen again. Similarly with the courts.
About the pathways chosen to seek justice …
Just over 40% court users said they first went to customary dispute resolution mechanisms. Most of the others chose to go to the police or woreda courts. This does not conflict with the HiiL survey as the survey here is of court users (rather than the general population) and by the fact they are at court indicate some confidence in, or inherent bias towards, the statutory justice system.
Where people go according to type of dispute / case (while numbers are small) are unsurprising perhaps with around 50% in civil matters (slightly more in family matters) preferring customary resolution and 75% going to police / court in criminal matters.
Generally there are attempts to settle the matter amicably, more so in civil matters than in criminal, suggesting restorative approaches to justice are preferred. Although a significant minority indicated they felt under pressure to settle.
About the costs of accessing justice
Court Users were asked a number of questions about payments (see original survey data in the Baseline). The answers were unclear so are not represented here. It is recommended further court user surveys be conducted when the courts are functioning normally.
What the responses are clear on is that accessing justice costs money – whether in the form of court fees, photocopying, or fees to elders; or in other form. And that these costs are met either from savings or from loans, friends/family or selling something.
Anecdotally, there is said to be a great deal of corruption in the justice system. Further study is needed to see if this is so and the typical transaction costs a victim of crime, say, would face to bring his/her case before the courts.
Interestingly, practitioners surveyed place financial ‘corruption’ far down the list of challenges facing the justice system (see What Practitioners say about … Challenges they face in their work), even if ‘external interference’ is a corruption of due process. The court observations revealed that most courts do not post up a list of the fees they charge for all to see (see below).
It was reported prior to the research that adjournments were frequent and onerous to the parties. This is not supported by the surveys. Incidents of more than 10 adjournments were few. Just under 75% were there for the first time or between 2-5 times. The Annual reports seen show there is a significant push by the courts to improve efficiencies in their case disposal rates.
While the costs associated with adjournments do not appear onerous – for most people the courts are within an hour’s travel – slightly more than 25% pay over ETB 150 (USD $3) to get to and from court, nevertheless they are costs and, at present, they do not appear to be reimbursed.
Note: the Court User Survey questionnaire and answers by region are in the Baseline data.
Court Observations
Student teams under the supervision of a team leader and law professor visited 31 courts (19 woreda courts and 12 zonal courts) in Amhara and Oromia regions during the month of September 2021. The court observation forms and data collected are located in the Baseline data.
The courts were on vacation at the time and only hearing urgent civil (mainly family) matters and criminal proceedings. The observations were not carried out under normal circumstances therefore and so have not been visualized here. It is not clear, for instance, whether the extraordinarily high number of courts that were closed to the public (33% zonal courts were ‘not open’ to the general public and 37% woreda courts) was due to the vacation period, or nature of the (family) proceedings.
What could be objectively verified was that most courts are stuffy and lack adequate ventilation but otherwise had adequate lighting, seating and security. Furthermore, most courts have toilets for the public but not for women and very few for persons with disabilities (and they were not very clean).
While staff were mostly helpful, few courts had noticeboards for the public detailing times of opening of the court(s), names of cases to be heard (‘causelist’) or costs of court fees, photocopying etc.
Observations of the criminal benches in these courts, showed 30 out of 87 criminal accused had a lawyer to represent them in in Woreda courts, while in the Zonal court, 20 out of 70 accused had a lawyer. These observations support the data elsewhere concerning representation in court. The observations further show that of those tried without representation the maximum prison sentence passed by the court was: