ARTICLES

Towards more liberal standing rules to enforce constitutional rights in Ethiopia

Adem K Abebe

Doctoral candidate and tutor, Centre for Human Rights, University of Pretoria, South Africa

SUMMARY

This article analyses the legal regime governing standing to enforce constitutional rights in Ethiopia. It reiterates the direct link between standing rules and the right of access to justice. It observes that, although the laws of several states still require a personal interest in the action one wants to litigate, there is a developing trend towards the liberalisation of standing rules, particularly regarding human rights issues. It considers the activism of the Indian judiciary and the innovative changes introduced by the South African Constitution, recognising public interest litigation. With regard to Ethiopia, the article considers the rules governing standing in ordinary courts, the House of Federation and the Council of Constitutional Inquiry, the Human Rights Commission and the institution of the Ombudsman. It concludes that the current standing law regime is too restrictive as it requires the actual violation of personal rights and interests in a particular claim. The issue of standing is still governed by archaic rules which do not take into account the interest at stake and the individual circumstances of the victims. It recommends the liberalisation of standing rules to ensure that the constitutional guarantees can be enforced via, amongst others, public interest litigants.

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* LLB (Hons) (Jimma University, Ethiopia); LLM (Human Rights and Democratisation in Africa) (Pretoria); adem_kassie@yahoo.com
1 See C Heyns & W Kagoungo 'Constitutional human rights law in Africa' (2006) 22 South African journal on Human Rights 673 678; art 39(5) Federal Democratic Republic of Ethiopia Constitution (FDRE): Note that the Constitution conflates the definition for 'nations', 'nationalities' and 'peoples'. As such no clear-cut distinction may be drawn.
2 See VRK Iyer justice at the crossroads (1992) 59.
3 NJ Udombana 'Interpreting rights globally: Courts and constitutional rights in emerging democracies' (2005) 5 African Human Rights Law Journal 47 55.         [ Links ]
4 M Cappelletti The judicial process in comparative perspective (1989) 36.         [ Links ]
5 Iyer (n 2 above) 59.
6 RS Kay 'Standing to raise constitutional issues: Comparative perspectives' in SR Kay (ed) Standing to raise constitutional issues: Comparative perspectives (2005) 1.         [ Links ]
7 Liberal standing rules, eg, have ensured an active role of the Constitutional Court of Benin. See A Rotman 'Benin's Constitutional Court: An institutional model for guaranteeing human rights' (2004) 17 Harvard Human Rights Journal 81.
8 Kay (n 6 above) 29.
9 See C Obiagwu & CA Odinkalu 'Combating legacies of colonialism and militarism' in AA An-Na'im 'Human rights in African constitutions: Realising the promise for ourselves' (2003) 233.         [ Links ]
10 For a summary of the advantages and disadvantages of pursuing a more restrictive or liberal approach and the difficulty to distinguish between private and public interest in certain cases, see Sir K Schiemann 'Locus standi' (1990) Public Law 342; and for the reasons why states adopt different standing rules, see Kay (n 6 above).
11 CE Welch Protecting human rights in Africa: Roles and strategies of non-governmental organisations (1995) 202-204.         [ Links ]
12 HK Prempeh 'Marbury in Africa: Judicial review and the challenges of constitutionalism in contemporary Africa' (2005-2006) 80 Tulane Law Review 1239 1297.         [ Links ]
13 It is, eg, puzzling as to why NGOs involved in human rights and democracy issues have not challenged the constitutionality of the new civil society law (2009) which has effectively crippled their functions. One possible reason for their reluctance could be the very low prospect of success given the political (hence not independent) nature of the House and the Council.
14 C Okpaluba 'Justiciability and standing to challenge legislation in the commonwealth: A tale of the traditionalist and judicial activist approaches' (2003) 36 The Comparative and International Law journal of Southern Africa 25 26. For a summary of the international trends on traditional and liberal standing rules, see Kay (n 6 above).
15 Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493.
16 Schiemann (n 10 above) 342.
17 Kay (n 6 above) 5.
18 GE Devinesh 'Locus standi revisited: Its historical evolution and present status in terms of section 38 of the South African Constitution' (2006) 38 De jure 28 31; see also C Loots 'Locus standi to claim relief in the public interest in matters involving the enforcement of legislation' (1987) 104 South African Law journal 131 132. Loots notes that there were some exceptions to the general sufficient interest requirement in certain cases.
19 RA Lorz 'Standing to raise constitutional issues in Germany' in Kay (n 6 above) 174 175.
20 See, generally, HP Monaghan 'Constitutional adjudication: The who and the when' (1973) 82 Yale Law journal 1363; see also JC Reitz 'Standing to raise constitutional issues as a reflection of political economy' in Kay (n 6 above) 261; LL Jaffe 'Standing to secure judicial review: Public actions' (1961) 74 Harvard Law Review 1265. The only notable exception to the personal injury requirement has been freedom of expression as it is believed that laws affecting freedom of expression may have a 'chilling effect' on everyone; see Kay (n 6 above) 29.
21 PN Bhagwati 'Judicial activism and public interest litigation' (1984-1985) 23 Colombia Journal of Transnational Law 561 570.
22 Kehsvananda Bharati v State of Kerala, 1973 A IR 1461, 1485 (SC) cited in Bhagwati (n 21 above) 567.
23 U Baxi 'Taking suffering seriously: Social action litigation in the Supreme Court of India' (1982) 29 Review of the International Commission of jurists 37.
24 Kay (n 6 above) 28.
25 M Minow 'Politics and procedure' in D Kairys (ed) The politics of law: A progressive critique (1998) 86.         [ Links ]
26 C Theophilopoulos Fundamental principles of civil procedure (2006) 181.         [ Links ]
27 See AH Desai & S Muralidhar 'Public interest litigation: Potentials and problems' in BN Kirpal et al (eds) Supreme but not infallible - Essays in honour of the Supreme Court of India (2000).
28 SP Gupta v Union of India (1981) SCC 87 210.
29 Okpaluba (n 14 above).
30 Justice KG Balakrishnan (2008) 'Growth of public interest litigation in India' address at the Singapore Academy of Law, 15th Annual Lecture, http://www.supremecourtofindia.nic.in/speeches/speeches_ 2008/8%5B1%5D.10.08_SINGA-PORE_-_Growth_of_Public_Interest_Litigation.pdf (accessed 7 June 2010). This is achieved through the procedure of preliminary screening of public interest cases and a strict analysis of bona fide public interest as well as conflicting interests. Justice Balakrishnan has also identified several public interest cases rejected by the Supreme Court that involved policy choices (disguised political litigation).
31 See sec 38 of the Constitution of the Republic of South Africa.
32 C Loots 'Standing, ripeness and mootness' in S Woolman et al Constitutional law of South Africa (student ed) (2007) 7-11.         [ Links ]
33 Ferreira v Levin NO & Others 1996 1 SA 984 (CC) para 233.
34 Ferreira v Levin (n 33 above) para 234.
35 Adesanya v President of the Federal Republic of Nigeria & Another [1981] 1 All NLR 1. This case is considered as the locus classicus on standing to sue in Nigeria. See T Ogowewo 'The problem with standing to sue in Nigeria' (1995) 39 Journal of African Law 1
36 Adesanya (n 35 above) para 39.
37 Eg, Ogowewo recommends the abdication of 'one test' for standing that 'applies in all contexts regardless of the cause of action or the remedy sought'; see Ogowewo (n 35 above) 1.
38 See, eg, EA Taiwo 'Enforcement of fundamental rights and the standing rules under the Nigerian Constitution: A need for a more liberal provision' (2009) 9 African Human Rights Law journal 546; JA Yakubu Constitutional law in Nigeria (2003) 445-474; Ogowewo (n 35 above).
39 Preamble sec 3(e) Nigerian Fundamental Rights (Enforcement Procedure) Rules, 2009 http://www.accesstojustice-ng.org/articles/New%20FREP%20Rules%20.pdf (accessed 7 June 2010).
40 The Supreme Court of Ghana has endorsed this view in Tuffuor v Attorney-General (1980) GLR 637.
41 United Democratic Party (UDP) & Others v Attorney-General of The Gambia (unreported Suit SCCS 3/2000).
42 Art 33(2) Ethiopian Civil Procedure Code (1965).
43 The Constitution does not, however, define, or provide criteria for defining, what a 'justiciable matter' is. Some scholars have concluded that all human rights, including socio-economic rights and the right to development, are justiciable in courts. SA Yeshanew 'The justiciability of human rights in the Federal Democratic Republic of Ethiopia' (2008) 8 African Human Rights Law Journal 273.
44 YM Badwaza 'Public interest litigation as practised by South African NGOs: Any lessons for Ethiopia?' unpublished LLM thesis, University of Pretoria, 2005 40; G Kassa 'Mechanisms of constitutional control: A preliminary observation of the Ethiopian system' (2007) 20 Africa Focus 75 86.
45 Badwaza (n 44 above) 41.
46 Arts 62 & 83 FDRE Constitution. For a discussion of the power of interpretation of the Ethiopian Constitution, see YT Fisseha 'Judicial review and democracy: A normative discourse on the (novel) Ethiopian approach to constitutional review' (2006) 14 African journal of International and Comparative Law 53; A Fiseha 'Federalism and the adjudication of constitutional issues: The Ethiopian experience' (2005) 52 Netherlands International Law Review 1.
47 The Council has 11 members. It is composed of three representatives from the House, the President and Vice-Presidents of the Federal Supreme Court of Ethiopia (who serve as Chairperson and Vice-Chairperson, respectively, of the Council), and six legal experts appointed by the President of the Republic on recommendation from the House of Peoples' Representatives (the law-making body composed of elected representatives).
48 I Idris 'Constitutional adjudication under the 1994 FDRE (Federal Democratic Republic of Ethiopia) Constitution' (2002) 1 Ethiopian Law Review 63 84.
49 Council of Constitutional Inquiry Proclamation 250/2001; Consolidation of the House of Federation and Definition of Powers and Responsibilities Proclamation 251/2001.
50 Arts 21-23 Council Proclamation.
51 Arts 21 & 22 Council Proclamation.
52 Art 21(2) Council Proclamation. This is in line with the approach of the German Constitutional Court, which requires the courts to be 'convinced' that there is doubt as to the constitutionality of laws, compared to the Italian Constitutional Court, which only requires referral if the courts have the 'slightest doubt' about the constitutionality of the impugned legislation. See F Ferejohn & P Pasquino 'Constitutional adjudication: Lessons from Europe' (2003-2004) Texas Law Review 1671 1688.
53 The South African Constitutional Court has similarly held, in relation to direct access, that '[i]t is ordinarily not in the interest of justice for it to sit as court of first and last instance and that direct access should only be grated in exceptional circumstances'. Van Vuren v Minster of justice and Constitutional Development and Minster of Correctional Services (CCT 15/07); S v Zuma 1995 2 SA 642 (CC) para 11. One of the reasons for such reluctance to grant direct access is to benefit from the legal analysis of lower courts.
54 Art 24 Council Proclamation.
55 See art 22 Council Proclamation.
56 See A Mulatu 'Who is "the interested party" to initiate a challenge to the constitutionality of laws in Ethiopia (under the 1994 FDRE Constitution)' (1999) The Law Student Bulletin 2 3 4.
57 Art 23(1) Council Proclamation (my emphasis).
58 Art 6 Ethiopian Anti-terrorism Proclamation No 652/2009, which provides that the crime of terrorism is committed by anyone who 'publishes or causes the publication of a statement that is likely to be understood by those addressed as a direct or indirect encouragement or other inducement for the commission or preparation or instigation of an act of terrorism'.
59 Para 12 Centre for Child Law v Minister for Constitutional Development & Others Case CCT 98/08 [2009] ZACC 18.
60 The case was submitted to the Council in October 1999 and the Council delivered its decision on 17 January 2001. See Fiseha (n 46 above) 26-27.
61 Note, however, that there is a procedure to the Cassation Division of the Federal Supreme Court where one can complain against a final decision of courts on questions of law, once appeal on the issue has been perfected. This still raises questions as the constitutionality of the interpretation of the Cassation Division may itself be challenged. Since the Cassation Division decides on a particular interpretation of laws, and not the constitutionality of that interpretation, the decision of the Cassation Division cannot be a substitute for decisions of constitutionality by the House or the Council. There is therefore no clear mechanism of challenging decisions of judicial bodies unless the constitutionality issue has been raised during the proceedings.
62 Art 23 Council Proclamation.
63 Art 2(5) Council Proclamation.
64 See, eg, Fiseha (n 46 above) 1.
65 Art 2(2) House Proclamation.
66 Mulatu (n 56 above) 12.
67 Art 18 Council Proclamation.
68 Art 5(2) House Proclamation.
69 Art 19 House Proclamation.
70 Decision of the House of Federation regarding Claims of Identity (April 2001). It is not clear whether the decision is only referring to anyone claiming to be a member of the concerned ethnic group.
71 Art 4(2) House Proclamation.
72 Eg, the House gave its opinion on whether the federal government may enact a federal family code (as this is expressly granted to the regional states) upon request of the office of the Prime Minister (see constitutional inquiry raised regarding the promulgation of a federal family code (House of Federation, April 2000)).
73 In the case of South Africa, eg, only the President of the Republic (against federal bills) and the premiers of the provinces (against provincial bills) have the standing in prior control (to challenge a bill for constitutionality).
74 There is, however, no indication as to what kind of cases may not be handled by courts. This provision might as well be creating its own version of the political question doctrine as developed by the US Supreme Court. Cases concerning, eg, policies or foreign relations may fall in this category.
75 The House has, eg, developed guidelines on who may raise a claim regarding identity and who may decide on the questions for the right to self-determination. See Decision of the House of Federation regarding Claims of Identity (April 2001).
76 Mulatu (n 56 above) 8.
77 Art 27 Council Proclamation; art 10 House Proclamation. The House has collected views of experts on some occasions.
78 Art 26 Council Proclamation; arts 9(2) & (3) House Proclamation.
79 Art 55 of the Constitution requires the House of Peoples' Representatives to enact enabling laws for the establishment of the Ethiopian Human Rights Commission and the institution of the Ombudsman.
80 Human Rights Commission Establishment Proclamation 210/2000 and the Institution of the Ombudsman Establishment Proclamation 211/2000.
81 Art 5 Commission Establishment Proclamation.
82 Art 5 Ombudsman Establishment Proclamation.
83 Art 22(1) Commission Establishment Proclamation.
84 Art 2(9) Commission Establishment Proclamation.
85 Art 22(2) Commission Establishment Proclamation.
86 Art 22(1) Ombudsman Establishment Proclamation.
87 Art 22(2) Ombudsman Establishment Proclamation.
88 Para 1; art 6 Preamble.
89 Art 4.
90 Art 11(1).
91 Art 11(2). The appeal may, however, be brought only within 60 days from the date a decision was given or the deadline for a decision has elapsed.
92 Action Professionals' Association for the People (APAP) instituted the first public interest litigation based on this provision against the Environmental Protection Authority. The issue was whether the EPA could be sued based on art 11. The court held that art 11 of the Environmental Pollution Control Proclamation does not grant standing for suits against the EPA (the law only allows action against polluters and potential polluters which the EPA was established to control). See Action Professionals' Association (APAP) v Ethiopian Environmental Authority Case 64902, Federal First Instance Court, 31 October 2006.
93 Thorson v Attorney-General of Canada [1975] 1 SCR 138 162 163.