Indigent’s Right to State Funded Legal Aid in Ethiopia

International Human Rights Law Review 2 (2013) 120–150 brill.com/hrlr

© Koninklijke Brill NV, Leiden, 2013 DOI 10.1163/22131035-00201004

Indigent’s Right to State Funded Legal Aid in Ethiopia

Hussein Ahmed TuraLecturer in Law, Wolaita Sodo University, School of Law, Ethiopia

[email protected]

AbstractThis article examines the extent to which state-funded legal aid in criminal cases is recognized and implemented in Ethiopia. The Federal Democratic Republic of Ethiopia (FDRE) Constitution and human rights treaties to which Ethiopia is a party recognize an indigent’s right to defense counsel at state expense where the interests of justice so require. However, on the basis of available data collected from the courts, the police stations and prisons, this article finds that the implementing institutions, such as the Office of Public Defenders, are not operat-ing effectively and moreover the public generally lacks legal awareness. These impediments have in turn contributed to a number of indigent accused being tried and convicted without the benefit of legal advice and representation at different stages of proceedings. It has also been found that almost all unrepresented accused have committed serious errors in said proceed-ings. In addition, lack of legal aid affects the overall justice system since the indigent cannot defend themselves against trained prosecutors armed with state power. In this article it is argued that in order for Ethiopia to implement an indigent’s right to state-funded legal aid, an independent legal aid agency must be established, which should be responsible for the administration of legal aid.

Keywordslegal aid; right to defense counsel; state obligation; Ethiopia

1. Introduction

In Ethiopia, the majority of those who live below the poverty line cannot usually afford legal fees in respect of court representation. This makes justice a luxurious commodity which is available to the rich minority, to the exclusion of the poor majority. This creates a situation where, in practice, laws and rights do not exist for the poor and other vulnerable groups. Fair justice is the major concern of any democratic system and cannot be taken for granted. The FDRE Constitution and international human rights treaties, to which Ethiopia is a

* The author wishes to thank the anonymous reviewers and the IHRLR editors for very helpful comments on an earlier draft. Any errors are the author’s own. Many thanks to Wolaita Sodo University for funding the cost of field data collection used in this article.

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party, guarantee fundamental rights and protection for all citizens irrespective of social, political, religious, economic and other backgrounds. The law also provides for access to justice and the right to state-funded legal aid for all indigent accused, where the interest of justice so requires, with a view to mitigating miscarriages of justice.1

This article assesses the scope of state-funded legal aid in Ethiopia by reviewing relevant laws and examining the extent to which the law has been implemented in one of administrative zones in southern Ethiopia. By employ-ing qualitative methods (in-depth interviews, focus group discussions and analysis of legal documents) as well as quantitative methods (survey question-naire), the study assesses the legal awareness of the public and explores particular challenges facing unrepresented accused persons in courts and the justice system overall.2

The article is organised into eight sections. The first section presents brief introduction. The second section reviews the relevant literature on the mean-ing, evolution and methods regarding the delivery of state-funded legal aid. The third section highlights literature on the administration of legal aid delivery. The fourth section reviews and analyses the legal instruments on state-funded legal aid, including international treaties ratified by Ethiopia and domestic laws, particularly the FDRE Constitution. It also assesses the judicial recognition of state-funded legal aid in Ethiopia. The fifth section critically examines the impediments that contribute to the unmet needs for legal aid and focuses on the breadth of legal awareness and the institutionalization of the Office of Public Defenders. The sixth section assesses the extent of unmet needs in respect of legal aid otherwise affordable to accused persons from the point of arrest to court proceedings. The seventh section deals with the impact of inadequate legal aid upon indigent accused persons. This part documents errors frequently committed by unrepresented accused in criminal courts. It also explores the burden of unrepresented accused on the courts. The last section concludes.

1) See FDRE Constitution, 1995, Article 37 and Article 20(5); ICCPR, Article 14(3) (d).2) The quantitative study concerns challenges faced by indigent defendants at courts, police stations and prisons in Southern Ethiopia, Woliata. Data were collected from May 10 to August 30, 2012. The major tools employed for collecting qualitative data from indigents and pertinent governmental bodies were in-depth interviews, focus group discussions and partici-pant observations, all of which were guided by unstructured questions. Interviews were taped with the permission of informants. In the first place the study reviews the relevant literature and analyses the legal documents pertinent to state-funded legal aid. Furthermore, in order to quantify the extent of unmet need for legal aid, the questionnaire, guided by close-ended questions, was distributed to 318 randomly selected detained persons in police stations and the Sodo Correctional Center.

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2. Legal Aid: Definition, Evolution and Methods of its Delivery

2.1. Legal Aid: Definition

The term legal aid has no single definition. Different writers ascribe to it a variety of elements. While some conceive it broadly from the perspective of access to justice, others define it from the purview of the state’s obligation to provide legal aid in criminal cases to defendants who are unable to hire private lawyers on account of indigence and when the interests of justice so require.3 On the other hand, it is often referred to as ‘any sort of legal assistance that is provided to the poor not only in criminal cases but also in civil and administra-tive matters by governmental and non-governmental organizations commit-ted to the realization of access to justice for all irrespective of the depth of their pockets.’4 For instance, in the USA, the UK, Canada and other jurisdic-tions, state-funded legal aid is available not only in criminal cases, but also in administrative and other types of proceedings.5 Thus, legal aid may broadly be perceived as encompassing ‘legal advice, assistance, representation, educa-tion, and mechanisms for alternative dispute resolution; and to include a wide range of stakeholders such as non-governmental organizations, community-based organizations, religious and non-religious charitable organizations, professional bodies and associations, and academic institutions.’6 It is regarded as central to the provision of access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.

In most jurisdictions, indigent defendants facing criminal prosecution are not only guaranteed legal aid in respect of the charges against them, they are moreover guaranteed legal representation in the form of public defenders.7 The term public defender is primarily employed to designate a lawyer appointed to represent those who cannot afford private legal representation in the USA and Brazil.8 It is also a literal translation of the Spanish-language term defensor

3) E Skinnider, The Responsibility of States to Provide Legal Aid, (The International Centre for Criminal Law Reform and Criminal Justice Policy, Paper prepared for the Legal Aid Conference, Beijing, China, March 1999) 4.4) B Beyene, Legal Aid Best Practices: A Lesson from the Experiences of Countries, (a paper pre-sented at Workshop on ‘The Role of Legal Aid Centers in Ethiopian Legal System’ which was organized by Jimma University Legal Aid Center , 2 December 2011, on file with author) 2.5) E Burmitskaya, World’s Models of Legal Aid For Criminal Cases: What Can Russia Borrow? (Lambert Academic Publishing, 2009) 37.6) See The Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa, Adopted at the ‘Conference on Legal Aid in Criminal Justice: the Role of Lawyers, Non-Lawyers and other Service Providers in Africa’, Lilongwe, Malawi, (November 22-24, 2004).7) Burmitskaya, supra n. 5, at 28.8) Ibid.

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del pueblo, which usually refers to an ombudsman; ombudsman is also the title reserved for the same institution in Jamaica.9 Brazil is the only country whose Constitution establishes a body of government-paid lawyers with the specific purpose of providing legal assistance and representation to the destitute, free of charge.

2.2. Evolution of Varying Conceptions of Legal Aid

2.2.1. Traditional and Narrow Conception of Legal AidThe trend of providing free legal aid to the poor is not a new phenomenon. States have been providing some form of legal aid to the poor in most jurisdic-tions even in earlier periods. In this regard, an ancient right of access to justice dates back to England in the 1400s where a 1495 statute of Henry VII waived all fees for indigent civil litigants before common law courts and empowered the courts to appoint lawyers without payment.10 During the nineteenth century most continental statutes codified the principle of ‘poor man’s law’, providing fee waivers and legal representation to the very poor who were due to appear in court.11 Lawyers were expected to act on a pro bono basis.12 Nevertheless, this early concept of legal aid was primarily viewed as a form of court assis-tance in court, whereas legal aid outside the court, covering broader social issues, was left to voluntary organizations, such as trade unions and religious institutions.13

Formal, comprehensive, statutorily-funded legal aid schemes were estab-lished in the 1940s and 1950s.14 Despite their positive contribution towards the development of legal aid, these earlier legal aid schemes, such as England’s single national legal aid system established in 1949 and Ontario’s provincial legal aid scheme established in 1951 were limited in respect of their coverage and scope of services offered.15 The services provided were generally limited to legal advice and legal representation in court to those who could not afford to pay market fees, patterned on the legal services then offered to paying clients.16 Thus, only the goal of formal equality was met.

9) Ibid.10) E Johnson, ‘Toward Equal Justice’ (1993) 5(1) Maryland Journal of Contemporary Legal Issues 204.11) E Blankenburg, Lawyers’ Lobby and the Welfare State: The Political Economy of Legal Aid, con-tained in Volume II of the Conference Papers presented at the International Legal Aid Conference, (Edinburgh, June 1997) 2.12) Ibid.13) See E Blankenburg, Lawyers’ Lobby and the Welfare State: The Political Economy of Legal Aid, (Aldershot: Dartmouth Publishing Company, 1997) 4.14) Skinnider, supra n. 3 at 4.15) Ibid.16) Ibid.

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Moreover, these early schemes tended to prioritize criminal cases because there, as opposed to civil claims, demand is determined by the state and the individual’s liberty is at risk.17 ‘Defendants in criminal cases have no choice but to defend themselves against the power of the state, which can be considera-ble as states generally spend far more on police and prosecuting services than on legal aid.’18 Legal representation in criminal matters cannot be questioned since it is crucial to ensure that the liberty of an individual is not jeopardized by the state due to the individual’s inability to pay for legal services. At the inception of such ancient legal aid systems, the principal providers of legal aid were lawyers and in particular, private bar members.19 Legal aid was still mainly delivered on a voluntary basis by the private bar and was viewed as a sort of charity rather than a right in spite of the development of statutorily-funded schemes.20

2.2.2. Broader Conception of Legal AidThe traditional approach developed with respect to the role of legal aid was gradually replaced by a broader perspective in the 1960s, particularly in the USA.21 With the US President Johnson’s War on Poverty it became evident that the poor faced a host of adverse laws and power abuse which fee paying clients did not.22 After the realization of the challenges encountered by the indigent in their efforts to access justice, the traditional scope of legal aid schemes was expanded to cover the unmet needs of the poor, which included housing, social security, family and debt issues.23 This paradigm shift gave rise to salaried community offices as the main model for delivering services, which subsequently spread to Canada, Australia and Europe, which in turn gave birth to the clinic or law centre movement.24 These earlier clinics focused not on individualized services but on strategies for improving the conditions of the poor.

This renewed concept of social justice gave rise to the access to justice move-ment by the end of the 1960s and early 1970s. At this time, access to justice was understood not only ‘as an effective access to the law requiring legal advice

17) Legal aid-Targeting Need. Lord Chancellor’s Department, HMSO, CMND 2854, 1995 paras. 4.38-40.18) Skinnider, supra n. 3 at 4.19) In fact, the legal aid schemes in England and Ontario (Canada) are mainly provided by a judicare or private bar model, whereby the legal aid plan pays private lawyers a fee for provid-ing individual case representation to those who are eligible. See ibid.20) Ibid.21) Ibid. at 5.22) Ibid.23) Ibid. at 6.24) Ibid.

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and representation in court only, but also information and education on the law, law reform and a willingness to be able to identify the unmet needs of the poor.’25 Accordingly, access to justice requires ‘policies which deploy every possible means toward attaining their goal, including reform of substantive law, procedure, education, information and legal services.’26 On top of recog-nizing the structural discrimination against the poor, the key objective was the attainment of substantive equality.

Furthermore, the scope of legal aid spread to civil claims, including family, housing, debt, social security and others.27 In addition to criminal suits, it has been recognized that the massive power of the state influences particular civil matters, such as child welfare laws, pensions and social security rights.28 Equally, the concept of liberty has been re-construed to encompass situations such as domestic violence which may include non-criminal law sanctions in order to protect the victim from risk of harm.29

Moreover, the assertion of rights has become a strategy common to several movements within the 1960s, which have transformed legal aid to a positive state duty, as opposed to a negative obligation.30 As a result, states began to acknowledge legal aid as a statutory obligation. For instance, the European Conference of Ministers issued a declaration on legal aid in the late 1970s which considered access to justice as an essential feature of any democratic society, emphasizing that legal aid could no longer be considered charity but an obligation incumbent on the community as a whole.31 The resolution dealt with both criminal and civil legal aid and called on states to finance these legal aid systems.32

Nowadays, a number of legal aid schemes reflect broader conceptions of legal aid, all of which are mirrored in the nature, scope and methods of legal aid delivery.33 This broad conception is applied to both civil and criminal suits.34 This has not prevented certain quarters from arguing that criminal

25) Ibid.26) R Smith, P van den Biggelaar, and D McQuoid-Mason, ‘Models of Organization of a Legal Aid Delivery System’ in Access to Justice in Central and Eastern Europe: Source Book (Public Interest Law Initiative, 2003) 64. See also R Smith, Justice: Redressing the Balance, (Legal Action Group, 1997) 9.27) Ibid.28) Skinnider, supra n. 3 at 6.29) Ibid.30) Ibid.31) European Conference of Ministers, Legal Aid and Advice: Resolution 78(8) adopted by the Committee of Ministers of the Council of Europe on 2 March 1978.32) Ibid.33) Skinnider, supra n. 3 at 7.34) Ibid.

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legal aid as a proportion of all cases is increasing in these times of fiscal con-straint and capped budgets.35

2.4. The Methods of Legal Aid Delivery

The system for delivery of state-funded legal aid has been developing for decades. The key incentives for the introduction of more sophisticated sys-tems and their increased funding were matters of public concern, particularly as regards the compatibility of existing criminal justice systems with social values and the influence of international law. As a result, several advanced models of legal aid have emerged on the world scene.36

Three principal types of actors are typically acknowledged by commenta-tors on the basis of their direct participation in the provision of free legal aid in criminal cases. These are: private lawyers appointed on a case by case basis, a system that is known as ‘ex officio’ in Europe (‘judicare’ in US terminology); salaried practitioners directly employed for public legal services by the body administering legal aid and; so-called ‘public defenders’, staff attorneys employed by an independent organization (Public defender’s office) and undertaking a full representation of defendants.37 All of these may be employed within a ‘contracted services’ scheme, which envisages that legal aid provi-ders compete for a contract granting state funds for delivering public legal services. The advantages and disadvantages of each model can be summarized as follows:

The ex-officio model makes it possible to more thoroughly decide whether to grant legal aid in each case.38 This model also ensures that private practition-ers are not financially dependent on legal aid fees for their livelihood so that they are able to immerse themselves cases involving acute human rights issues.39 This system is sometimes combined with the right of the defendant to enjoy the assistance of a lawyer of his or her own choice.

35) Ibid.36) Of course, there is no model of legal aid provision that can be defined as ‘perfect’ or ‘the best in the world’. A system which proved to be a success in one country may turn out a com-plete failure in another, on account of the prevailing legal and political environment, resource availability, etc. However, parameters such as availability of legal aid (the range of cases and the amount of legal aid delivered), the quality of services, cost-effectiveness and others can objec-tively characterize the model as successful.37) Smith et al., supra n. 26 at 6. See also ‘Making Legal Aid a Reality: A Resource Book for Policy Makers and Civil Society’ 87.38) This, however, makes sense only when there is a discretion in deciding whether to grant legal aid or not.39) Smith et al., supra n. 26, at 6.

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Among the disadvantages of this system, as admitted by several commen-tators, one encounters: poor quality control, especially in cases where the quality of services is evaluated by private practitioners themselves, and higher costs.40 It is worth noting that the number of research projects carried out in the field prove that the ex-officio model does not always entail higher costs.41Salaried Practitioners’ Scheme: The employment of lawyers (groups of lawyers) by the agency administering legal aid is advantageous from the point of view of costs. The problem with salaried practitioners is that they are often under-paid and overloaded, experiencing problems with work motivation and pro-fessional self-esteem, which again raises quality concerns.42Public Defenders’ Scheme: This affords similar advantages (possibility of main-taining low costs) and, to some extent, raises similar concerns to those encoun-tered in the salaried practitioners’ scheme (low professional esteem due to the routine caseload and traditionally low salaries).43 In comparison to the other models, public defenders typically work as a team, which facilitates morale and regular exchange of professional experience. At the same time, the advan-tages may well turn into disadvantages, particularly since low cost is often achieved at the expense of quality; professional control within a team may turn out to deter lawyers’ independence and the possibility to act freely when defending one’s client.44 There are broadly five types of legal aid models in operation in Africa: public defenders, judicare, contracting, mixed delivery and community legal services.45In practice, most of the existing public legal services systems combine two or three of the enumerated models. Employing a variety of aid delivery mecha-nisms affords ample opportunity to compare their effectiveness and adopt cost-effective choices in terms of delivery. In mixed systems off legal aid, such as the Netherlands, Spain, certain Canadian provinces, Finland, Iceland and Hungary indigent defendants have a choice between appointing a private law-yer through a legal aid scheme or using public defender assistance, whereas in Poland, Switzerland and Sweden they do not.46 In Ethiopia, the law requires

40) Ibid. at 7.41) R Bowles and A Perry, ‘International Comparison of Publicly Funded Legal Services & Justice Systems’, (2009), on file with author.42) Ibid.43) A Hudson, Towards a Just Society: Law, Labour and Legal Aid (Continuum International Publishing Group Ltd., 1999) 29.44) Ibid. at 55.45) Penal Reform International and Bluhm Legal Clinic of the Northwestern University School of Law, Access to Justice in Africa and Beyond: Making the Rule of Law a Reality (National Institute for Trial Advocacy, 2007).46) P Soar, (ed.), The New International Directory of Legal Aid, vol. 51 (Kluwer Law International, 2002) at 54, 126, 201, 220, 223, and 226.

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the courts to establish and run the office of public defenders. The law also obliges private advocates to provide free legal aid for 50 hours per annum.

3. Administration of Legal Aid Delivery

There are several types of arrangements regarding administration of legal aid.47 Based on the analysis of the existing legal aid models, the functions of administration may be divided between several agencies or concentrated in a single entity. These typically consist of a governmental body (as a rule, the Ministry of Justice or alike), a legal professionals association, or a specialised legal aid agency that is independent both from government and the legal profession.

Some of the enumerated functions (reviewing applications for legal aid, quality control and distribution of funds) may be assigned to the Office of the Public Defender and the courts. Nevertheless, these are used as subsidiary mechanisms.48 For instance, in the Netherlands, Austria and Germany, all issues related to the administration of legal aid are the responsibility of the Ministry of Justice, whereas the decision to grant legal aid in criminal cases is taken by the court hearing the case in question (or that situated in the district of the applicant’s domicile).49

The advantage of this system is its cost-effectiveness as there is no need to establish a specialised agency. The decision-making process is not diffused among different agencies since the courts ultimately decide whether the inter-ests of justice require the granting of legal aid as well as the appointment of lawyers. However, limitations do exist. For instance, the courts are often over-loaded and these additional responsibilities create an extra load; the way an independent agency can deal with the relevant issues is much more flexible and sophisticated in terms of assessing one’s needs and finding suitable finan-cial solutions. In some cases, defence lawyers may be perceived by judges as an obstacle to a speedy hearing, especially when considering factors such as pro-fessional burnout and bureaucracy, both characteristics of several representa-tives of the judiciary.50

47) The term ‘administration of legal aid’ for the purposes of this study is to be understood as a complex activity generally embracing such issues as distributing public funds allocated for legal aid, deciding on eligibility of the applicants, selection and contracting of legal aid deliver-ers, exercising quality control and formulating relevant policies.48) Burmitskaya, supra n. 5 at 34.49) Soar, supra n. 46, at 52, 60, and 124. For a description of existing mechanisms concerning administration of legal aid see also Smith et al., supra n. 26 at 4-6.50) M Hacohen, ‘Israel’s Office of Public Defender: Lessons from the Past, Plans for the Future’, in Access to Justice in Central and Eastern Europe: A Source Book (PILI, 2003) 134.

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Countries with advanced legal aid models have opted for independent bodies. A body specialised in administering legal aid is organisationally inde-pendent from government (although its board may include state officials) with power to decide the following issues:

making a choice of prospective services providers and contracting; distribution of funds between service providers; distribution, planning and optimization of expenditures; exer-cising quality control; reviewing individual applications for free legal aid and deciding on eligibility; running professional learning and training programs etc.51

This body may be called ‘commission’, ‘board’ or ‘corporation’ depending on the jurisdiction concerned. Examples of such bodies include the Legal Services Commission (UK), Legal Services Corporation (USA)52 and Legal Aid Ontario (Canada).53

The administration of legal aid through an entity that is independent both from state authorities and those who are delivering legal aid, has many bene-fits. The administration of legal aid through the legal profession, typically through a board composed of bar association representatives, was abandoned by most countries. It may, however, be useful in those countries where legal aid systems are relatively new and the wider involvement of the legal profession could be beneficial.54 An independent body administering legal aid is an opti-mal solution also in terms of capacity for statistical analysis, transparency and ability to provide professional training.55 Finally, an independent body is most suitable for the efficient management of complex legal aid systems integrating different types of service providers and ensures the choice of the most cost effective forms of delivery and ability to meet the varying needs of the appli-cants for legal aid.56 The way in which an independent body may be formed differs. In some models, it is composed of the representatives of various stake-holders: responsible governmental bodies, such as the courts, public prosecu-tors as well as legal profession representatives, academics and civil society organisations. Smith describes this type of arrangement as one of the most efficient models for organising legal aid. The type of arrangement which Smith calls a ‘commission model’ consists of an independent governmental body that is responsible for the selection and which provides remuneration to

51) Hudson, supra n. 43, at 18.52) Dealing with civil cases only.53) N Lefstein, ‘A Broken Indigent Defense System: Observations and Recommendations of a New National Report’, (2009) 36(2) Human Rights: Criminal Justice on Trial, (2009), available at: <http://www.abanet.org/irr/hr/spring09/HR_spring_2009.pdf> (accessed 30 March 2013) 14.54) R Smith, Making Legal Aid a Reality: A Resource Book for Policy Makers and Civil Society (Public Interest Law Initiative, 2003) at 64.55) Burmitskaya, supra n. 5 at 32.56) Ibid. at 61.

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lawyers. Members of such commissions may be appointed depending on the laws of each particular jurisdiction.57

As regards the state agency responsible for developing policies and budgets, it may significantly differ in those various jurisdictions where the relevant functions are vested in executive, judicial or legislative bodies. For instance, in England and Wales the role of such an agency belongs to the Lord Chancellor’s Department. In federal states such as the USA or Canada the picture is not only different from state to state, but is additionally complicated because of the necessity of splitting responsibilities following the federal state (funding) dichotomy.58 As far as the financing of legal aid is concerned, it is considered best practice for public funds to be directly allocated by a legislative body to an independent organ administering legal aid as a separate item in the budget.59 Legal aid budgets may be composed of national and regional public funds (in federal states also funds of federal subunits). In Canada, legal aid is generally financed by provincial government funds. In some circumstances, in particu-lar as regards criminal cases, expenses are divided between provincial and local governments.60

4. Statutory and Judicial Recognition of State Funded Legal Aid in Ethiopia

4.1. Statutory Recognition of Indigents’ Right to State Funded Legal Aid

The scope of an indigent’s right to legal aid in Ethiopia should be examined not only from the point of view of domestic laws but also from the relevant provisions in international human rights instruments which constitute an integral part of domestic law pursuant to Article 9(4) of the FDRE Constitution. Most international instruments require some form of legal aid to be available to ensure that persons charged with a criminal offence and who cannot afford counsel have the ability to retain and instruct counsel. These specific provi-sions on legal aid support the traditional concept of legal aid, focusing on matters of criminal law in terms of representation and advice in court pro-ceedings. The International Covenant on Civil and Political Rights (ICCPR)61 is

57) Smith, supra n. 54 at 4.58) Ibid.59) L Bojarski, ‘Promoting Access to Justice in Central and Eastern Europe: Poland’, in Edwin Rekosh, Access to Justice in Central and Eastern Europe: A Source Book (Budapest: Public Interest Law Initiative, 2003) at 375.60) Soar, supra n. 46, at 48.61) 999 UNTS 171.

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the principal human rights instrument which obliges states to provide state-funded counsel for indigent persons. Article 14(3) (d) of the ICCPR requires that an accused offender is entitled ‘to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any case if he does not have sufficient means to pay for it’. Nevertheless, it should be noted that the right to free legal counsel is only specified in the con-text of the criminal justice system although it is rooted in the idea of equality.

Likewise, the Convention on the Rights of the Child (CRC)62 requires states to ensure that every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance.63 It further provides for the right to have legal or other appropriate assistance in the preparation and presentation of his or her defence.64 Nevertheless, although the CRC cre-ates a responsibility on the part of the state to provide a child with legal assis-tance in the preparation and presentation of his or her case when assistance is not otherwise available, it does not create an automatic right to publicly-funded legal counsel and does not also specify the exact nature of the legal assistance to be provided for children, despite the existence of the right to free interpretation if the child cannot understand or speak the language used.

In addition to the international human rights conventions cited above, access to justice for Ethiopians is one of the rights incorporated in the 1995 FDRE Constitution. The Constitution stipulates that ‘everyone has the right to bring a justiciable matter to, and to obtain a decision or judgment by, a court of law or any other competent body with judicial power.’65 Equality and equal protection under the law is also guaranteed, and discrimination is prohibited ‘on grounds of race, nation, nationality, or other social origin, color, sex, lan-guage, religion, political or other opinion, property, birth or other status.’66 The country has specifically recognized the right to defense counsel to those facing criminal charges lacking the means and ability to present themselves.67

Article 20 (5) of the Constitution states that: ‘accused persons have the right to be represented by legal counsel of their choice, and, if they do not have suf-ficient means to pay for it and miscarriage of justice would result, to be pro-vided with legal representation at state expense.’ The state constitutions incorporate a verbatim copy of this provision.68 Nonetheless, this provision of the Constitution lacks clarity in some aspects. In the first place, it does not

62) UN Doc. A/44/49 (1989).63) Ibid. Article 37.64) Ibid. Article 40(1).65) FDRE Constitution, 1995, Article 37.66) Ibid. Article 25.67) Ibid. Article 20(5).68) See for instance, SNNP Regional State Constitution, 2001, Article 20(5); Revised Oromia Regional State Constitution, 2001, Article 20(5).

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clearly articulate that an indigent accused shall enjoy the right to counsel in respect of all criminal cases and at all stages of criminal proceedings at the expense of the state. In the second place, the meaning of miscarriage of justice is not provided. Yet, such articulation in the law is said to be pragmatic:

[I]t seems to be a realistic construction in the light of the acute shortage of resources in the country. An ambitious construction of the clause would be unreasonable. If construed liberally, in the Ethiopian context, the term miscarriage of justice would probably require the state to hire a counsel for an indigent person charged with almost every type of offense and at all stages of criminal proceedings. In some sense, the elasticity of the term miscar-riage of justice in the constitution is commendable since it leaves room for Ethiopian judges to see the circumstances of each case and allows them to broaden the scope of the right progressively. The concept of miscarriage of justice in the constitution does not com-mit itself to any concrete situation. It seems that the words miscarriage of justice may apply, depending on the situation, even to a person who is accused of an offense entailing a loss of liberty for any length of period.69

However, there are two laws in which the legislature has already expressed its interpretation of the constitutional phrase miscarriage of justice. The first is Article 34/2 of the Defense Forces Proclamation, which states that: ‘the state shall provide a defense counsel to a person (who renders military service in the national defense forces on a permanent basis) charged with an offence pun-ishable with imprisonment of not less than five years and is unable to retain a counsel.’70 The other was recently issued by the Oromia National Regional State, Article 17 (2) of which stipulates that: ‘the court shall assign a defense counsel to an individual who is accused of a crime punishable with rigorous imprisonment not less than five years.’71

To determine the meaning of miscarriage of justice in Ethiopia lessons may be drawn from the CCPR’s jurisprudence. In explaining circumstances requir-ing legal assistance, the CCPR has indicated the importance of the gravity of charges and the need for objective assessment of the chances for success of an appeal determining the assignment of free legal counsel.72 In general, the meaning and scope of the constitutional right to free legal aid as well as its implementation in Ethiopia must be assessed in light of the relevant provi-sions of the FDRE Constitution. Article 9 (4) of the FDRE Constitution stipu-lates that the international treaties to which Ethiopia is a party constitute part

69) See M Abdo, ‘The Indigent’s Right to Defense Counsel in Ethiopia’, in W Demissie’s (eds)., ‘Human Rights in Criminal Proceedings: Normative and practical Aspects’, (2010) III Human Rights Law Series 140-157.70) See Defense Forces proclamation No. 27/1996, (as amended, Proc No. 343/2003), Fed Neg. Gaz.Year 2nd No. 15, Article 2/3.71) Proclamation to Provide for the Re-establishment of Oromia National Regional State Courts, Proc No. 141/2008, Megeleta Oromia, 16th Year No. 10.72) Human Rights Committee, General Comment No. 32, CCPR/C/GC/32 (23 August 2007), para. 38.

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of Ethiopia’s legal system and hence any interpretation of part three of the Constitution shall conform to international human rights treaties.73 The cited constitutional provisions suggest that the scope of the right to state-funded legal aid as defined in Ethiopian domestic law may not be narrower than the minimum standards established in international human rights law, given that the latter is directly applicable to domestic legal disputes.74

4.2. Judicial Recognition of State-Funded Legal Aid

In a case involving the death penalty, the Federal Supreme Court of Ethiopia (FSCE) had the chance to assess the application of the right to free legal coun-sel.75 A certain corporal was accused of homicide in the first degree. He requested a court-appointed attorney, which he was granted. However, he was not represented when first charged. The court-appointed attorney was equally absent when the witnesses were heard owing to other court appointments, which the accused was aware of. The accused had informed the trial court and requested that the witness hearings be postponed. Nevertheless, the trial court rejected the request, proceeded with the hearing of witnesses, convicted the accused of first degree murder and imposed the death penalty. Documents from the lower court also indicated that the accused waived his right to pre-sent his own evidence. The accused appealed but to no avail.

In its review of judgments by lower courts, the FSCE emphasized on the merits that the accused was not represented at the time of plea and on the date when the prosecutor’s witnesses were heard. In its analysis of the law, the Court closely looked at the nature and content of the rights of the accused in the Constitution, which it said required immediate implementation. The FSCE also indicated that Article 13(1) of the Constitution required all courts, includ-ing individual judges, to respect and enforce the rights of those arrested and accused. The FSCE also emphasized the positive relationship between respect

73) FDRE Constitution, 1995, Article 13(2).74) Ethiopia is a party to the ICCPR, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of a Child, and the African Convention for the Protection of Human Rights and Fundamental Freedoms and, therefore, the relevant instruments may in theory be invoked in legal disputes in any court of Ethiopia based on the incompatibility between domestic and international law. This is true also in respect of the relevant jurisprudence which is recognized in Ethiopia as legally binding.75) Corporal Hussein Ali v Somali Regional State Prosecutor, Federal Supreme Court Cassation Division, Cassation/File/No. 37050, see Federal Supreme Court Research and Legal Assistance Department, Federal Supreme Court Cassation Decisions, Vol. 9, (December 2011) 160-162. As per Proclamation No. 454/2005 Article 2(1), the decisions of the Federal Supreme Court Cassation Bench are binding on all courts at federal and state levels in Ethiopia. Thus, this case consti-tutes a precedent regarding the obligation of the Ethiopian government on the mandatory provision of legal aid to the poor.

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for the constitutional rights of the accused on one hand and society’s sense of justice and the legitimacy of judicial proceedings in the eyes of the community on the other.

Subsequently, the FSCE identified the right to be represented by counsel among the constitutionally guaranteed human rights of the accused. After locating this right in Article 20(5) of the Constitution, the FSCE argued that the right to government-appointed attorney exists where the accused can-not afford his own attorney and hence a miscarriage of justice is likely to result. The FSCE expressed concern that the punishment arose from a proceeding that ignored the constitutional right of the accused. Upon finding a miscar-riage of justice the FSCE quashed the decision of the lower courts and returned the case for a retrial in light of the constitutional rights of the accused. In addi-tion to the right to government-appointed counsel, the FSCE intimated the right of the accused to exercise his right to counsel by taking sufficient time, which also encompasses the right to be informed of the right to counsel before the proceedings and the right to be represented by a competent counsel.

Importantly, the FSCE has introduced the right to be informed of the right to counsel, which is not expressly stated in the Constitution. This inter-pretation by the FSCE is supported by the ICCPR, which is one of the interpre-tative instruments of the Constitution’s human rights provisions. Article 14 (d) of the ICCPR provides for the right of the accused ‘to be informed, if he does not have legal assistance, of this right [i.e., the right to be tried in his pres-ence and to defend himself in person or through legal assistance of his own choosing’].’

5. Practical Impediments to Accessing Justice in Rural Ethiopia

The difficulties for people in reaching the judicial system cannot be underesti-mated in countries like Ethiopia which is composed of a primarily rural popu-lation. Physical distance and costs are prohibitive to accessing justice. Although courts are now established in most districts, they are still far from where much of the rural population lives and a person may have to walk several hours from his or her field to reach the closest court. In addition, the courts cannot effec-tively move closer to the population they serve as most have insufficient resources. When determined people make the long journey on foot to the court, they often simply show up at the courthouse on their own with no idea about how to present or defend their claims. Attitudes in the courts towards assistance to the public can be poor and even handicapped access is minimal. Although petitions can be filed for fee waivers, filing fees may be prohibitively high for most people. For instance, the claimant may be asked to provide his or her own paper and pen to file a complaint in some cases. Once the complaint

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is filed, delays and adjournments often follow because of backlogs, inefficiency, lack of personnel and materials, space limitations and other inadequate judi-cial infrastructure impediments.

In the following sections, the article assesses the main impediments for accessing justice (legal aid) in one of Southern Ethiopia’s administrative zones, Wolaita (hereinafter the zone).76 It focuses on the lack of legal awareness in the public at large and the unavailability of access to legal aid particularly for criminal defendants due to absence of an Office of Public Defenders in the courts at all levels.

5.1. Lack of Legal Awareness

Access to justice is seriously undermined by the lack of awareness of, or knowl-edge about, the law or the formal legal system. Even member of the legal profession have difficulties in accessing relevant laws, regulations and infor-mation. There is little evidence of dissemination of information to the general community in respect of rights and responsibilities under the formal legal sys-tem. Large segments of the population are completely unaware of the exist-ence or the nature of laws, rights, the official legal system, the function of courts and there are few effective methods to create and build awareness, or provide legal services and advice. Low literacy rates further hinder educational and information campaigns.

Most respondents indicated that they possess insufficient awareness about the Ethiopian justice system in general and the availability of legal assistance in particular. Since they are unaware of the right to representation at the state’s expense in cases of indigence, they hardly ever apply for legal aid. For instance, despite the possibility of assigning private lawyers to qualifying indigents for a total of fifty free hours per year of legal consultation77 the Zonal Justice Bureau argues that this entitlement is sparsely made use of by indigent litigants. This is clearly attributable to lack of awareness, according to the officials.78

76) It is located in Southern Ethiopia, 385 km from Addis Ababa. The zone is divided into four-teen administrative districts. The selection of study sites from these administrative districts was based on purposive sampling. The number of inmates was the chief criterion for our selection.77) See Proclamation No. 199/2000, Article 19.78) Interview with Mr Kassa Hirboro, the Zone High Court judge, 20 July, 2012; Interview with Mr Asale Mega, Legal Study, Drafting And Awareness Creation Officer at the Zone’s Justice Bureau, 20 July 2012; Interview with Mr Kuma Lambebo Bakkalo, the Zone High Court Development and plan preparation, supervising and monitoring Officer, 21 July, 2012; Interview with Mr Wondimu Ayza, the Zone Attorney’s Licensing, Contracting, Registration and Monitoring Prosecutor, 12 July 2012.

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This notwithstanding, it is the duty of the Justice Bureau of the Zone to raise the public’s legal awareness, including on the operation of the legal aid system.

A much greater number of the respondents interviewed at the courts, police stations and prison centers (85%) admitted their ignorance as to their legal aid entitlement. Almost all (96%) also indicated their failure to secure legal aid because they did not know where to go for legal aid. Only 15% were aware of their rights, even so they failed to secure such aid because of the unavailability of a legal aid scheme in the zone. Around 97% of those interviewed regretted their failure to be represented by attorneys on account of insufficient means or money considerations.

The following figure summarizes the perceptions and attitudes of respond-ents towards the Ethiopian justice system and access to justice in the zone.

As is evident from the figure above, most respondents strongly agree that the legal system is too complicated to understand properly; while only 10% are aware of their rights. Furthermore, whereas 82% are of the view that only the very wealthy can afford to protect their rights, 78% strongly agree that the courts are not places for the poor. Moreover, 85 % indicated their inability to afford a good lawyer if faced with a serious legal problem, whereas 89 % are unaware of how to seek legal assistance in the zone.

The respondents convicted and sentenced to jail strongly believe that litigation costs are too costly and unaffordable to the vast majority among the poor. For instance, one of the prisoners at Sodo Principal Prison was asked for

120%

85%

96%97%100%

80%

60%

40%

20%

0%Reasons for

not obtaininglegal aid

I did not know that I have rightto legal aid

I did not know where to go forlegal aid

considerations about money

I know my rights but there is noavialability of legal aid

Figure 1. Reasons For Not Obtaining Legal Aid.

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25,000 Birr (Ethiopian dollars) by his advocate. Although he offered to pay 9,000 Birr,79 the advocate refused to provide him with any advice or represen-tation as a result of which he was forced to defend himself, ultimately culmi-nating in his conviction under capital punishment sentence. The prisoner states that this caused him mental problems.

5.2. Poor Access to Legal Aid and Legal Services

The typical legal aid services stipulated by the Courts Advocates Licensing and Registration Proclamation and the Court Advocates’ Code of Conduct Regulations involve pro bono obligations imposed on licensed advocates.

Any advocate shall have the responsibility to assist the organs of the administration of justice in their effort to promote respect for the law and the attainment of justice. Any advocate shall, in particular, discharge his professional duty to his client, other lawyers and opposing party, the court, his profession and the society in general honestly, faithfully and truthfully.80

Presumably, these obligations are fulfilled through mechanisms set up by the Ministry of Justice and regional bureaus of justice in their capacity as licensing

79) The current average monthly income of most Ethiopians is less than 1200 Birr (about USD 2 per day).80) See Federal Advocates’ Code of Conduct, Council of Ministers Regulations No. 57/1999, Article 3.

100%90%80%

82% 78%85% 89%

80%

18%12% 10%

8%12%

10% 10%5% 7%4%

70%60%50%40%30%20%10%

0%The legal

system is toocomplicated

to understandproperly.

Only the verywealthy can

afford toprotect theirlegal rights.

The courts arenot places for

the poor

I could afforda good lawyer

if I had aserious legal

issue.

If I had a legalproblem I

would knowhow to get

help.

strongly agreeslightly agreedon’t agree

Figure 2. Perceptions of respondents on the legal system.

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bodies. These mechanisms, unfortunately, have not been established in insti-tutionalized form. Instead, the only visible manifestation of a mandatory pro bono service appears with the appointment of advocates by the court in spe-cific cases involving serious offences. Thus, despite the strong legal basis, there is no meaningful mandatory legal aid system in practice.

The Zonal Justice Bureau is failing to discharge its duty of supervising the implementation of the fifty hours pro bono obligation incumbent on lawyers. For example, although there were twenty-four registered private lawyers oper-ating in the Zone during 2011/12, only four had applied to the Bureau to provide free legal aid and thereby discharge their responsibilities. It may have made a significant difference had the advocates carried out their duties as required by law. For instance, the zone’s twenty-four lawyers could have provided an annual combined total of 1200 hours of legal aid. This could have generated significant impact if properly executed. No doubt, it can minimize those mis-carriages of justice in criminal cases that are solely the result of indigence. The Justice Bureau’s officers argue that people do not usually apply for free legal aid.81 In the absence of application by indigents, according to them, ‘it could be difficult to identify persons who have financial problems.’

Setting aside issues of implementation, the legal aid arrangements already in place can potentially go a long way in improving access to justice for the most disadvantaged, especially if replicated at the zonal level. The mandatory pro bono service arrangement is particularly important since it lays the basis for access to legal services in the form of a right as opposed to the voluntary model whereby it is rendered privilege granted at the discretion of the pro-vider. It also recognizes that practicing law, even in a private capacity, involves a dimension of public service – the dispensation of justice.

In addition, the lack of sufficient numbers of private attorneys and a com-mitment on their part are yet additional hurdles. District and high court judges in the Zone are of the opinion that private advocates operating therein are not committed to serve justice.82 Court users interviewed at court sites also made it clear that some advocates are bereft of professional ethics and rarely observe their contractual obligations. One user noted that: ‘They are usually absent from the trial after receiving the agreed advocacy fee and often send clients to court by writing pleadings and memoranda, thereafter orienting clients to defend themselves. This is obviously detrimental to citizens who lose both

81) Interview with Mr Asale Mega, Legal Study, Drafting and Awareness Creation Officer at the Zone Justice Bureau, 20 July 2012; Interview with Mr Wondimu Ayza, Zone Attorney’s Licensing, Contracting, Registration and Monitoring Prosecutor, 12 July, 2012.82) Interview with Mr Takele Nadew Mashika, Dugna Fango District Court President, 21 August 2012; Interview with Mr Kassa Hirboro, the Zone High Court judge, 20 July 2012.

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their time and money in vein.’83 It is easy to imagine how this problem might be intensified where such lawyers are requested to indigent clients for free. There is great concern as to how far advocates could be loyal and subject to ethical standards in the absence of strong commitment to serve justice. Some interviewees who requested the withholding of their name stated that they never trust advocates, particularly because of the high likelihood of colluding with, or being corrupted, by their opponent. These dangers typically arise from a lack of professionalism and commitment to justice. In such situations, because it is more harmful to indigents to disclose any secrets to untrust worthy individuals they are better off representing themselves, with all the problems this choice ultimately entails.

There is an insufficient number of skilled advocates in the zone. As already mentioned, only twenty-four advocates have been registered with the Justice Department and legally operating there. When compared to the number of the population of the zone (1.7 million people according to the census of 2007) this number of advocates is insignificant. In addition, most are concentrated in Sodo Town and its surrounding districts and do not as a rule provide their ser-vices in remote districts. For instance, not a single advocate operates in the Dugna Fango district.84 Thus, in remote areas, the problem is not only limited to the quality of legal aid but also to the absence of access to advocacy overall. Therefore, in the zone there is little access to, in addition to poor quality of, legal services. Accordingly, the principal concern is not only the indigents’ inability to meet legal fees, since even fee-paying litigants are often unable to hire committed, ethical and professionally-skilled advocates. This in turn opens the door for a number of miscarriages of justice.

5.3. Lack of a Public Defender’s Office

Indigent accused possess the constitutional right to legal representation at the expense of the state in criminal cases, where the interests of justice so require.85 The Revised Southern Nations, Nationalities and Peoples Regional Courts Proclamation No. 43/2002 provides that the president of the Supreme Court shall organize a defense attorney’s office and administer the same.86

83) Interview with Mr Awel Ahmed, at the Zone High Court, 20 July 2012.84) Interview with Mr Takele Nadew Mashika, Dugna Fango District Court President, 21 August 2012; Interview with W/ro Messelech Abebe, Court Officer at Damot Gale Woreda Court, 21 August 2012; Interview with W/rt Mekdes Sisay, Court officer at SNNP Regional State Supreme Court, 14 July 2012.85) FDRE Constitution, 1995, Article 20(5) cum the Revised Constitution, 2001, of the Southern Nations, Nationalities and Peoples Regional State Proclamation No. 35/2001, Article 20(5).86) The Revised Southern Nations, Nationalities And Peoples Regional Courts Proclamation, Proc No. 43/2002, Article 8(11) and 8(3) Debub Neg. Gaz.7th year, No. 10, Awassa.

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Moreover, Article 13 of the Proclamation states that the defense attorney shall have the following powers and duties:

1. Provide legal counseling to, and plead for, indigent defendants; 2. Plead or appeal against court orders or decisions according to law; 3. Submit periodical reports to his chief; and 4. Perform other duties as assigned to him by his chief.

In addition, Article 21 of the Proclamation provides for the right to defense counsel, as follows:

1. Every person has the right to be represented by legal counsel. 2. The court shall provide a defense attorney at state expense for indigent

defendants where a miscarriage of justice87 may occur in the absence of a defense attorney.

Nonetheless, in practice, this guarantee has not been implemented due to resource constraints.88 There is no single office of public defender or any per-sonnel employed by the courts in the zone for this purpose, nor any budget allocated for the implementation of indigents’ right to defense counsel in the 2011/2012 Ethiopian fiscal year. Judges indicate that the main reason for the absence of defense counsel in the zone is the lack of a public defender’s office, particularly following the introduction of a Business Process Re-engineering (BPR) document which revised the internal structure of courts.89 Although the Defense Attorney’s Office was in operation before the introduction of the BPR document in 2009, the Office is not yet operating nor is anyone working as a public defender in any of the courts in the zone.90 For this reason, almost all indigent criminal defendants appear before the courts, are criminally con-victed and sentenced to penalties including life imprisonment and capital punishment without any legal assistance.91 Thus, there is a clear discrepancy between the law and its practice. The absence of an office of public defenders is a clear violation of the FDRE Constitution, the supreme law of the land.

87) Although the law obliges the courts to provide a defense counsel to indigents, it does not define what constitutes ‘miscarriage of justice’ nor does not list the type of cases that qualify for legal aid.88) Interview with Mr Kassa Hirboro, Wolaita Zone High Court judge, 20 July, 2012; Interview with Mr Kuma Lambebo Bakkalo, Wolaita Zone High Court Development and Plan Preparation, Supervising and Monitoring Officer, 21 July 2012.89) Ibid.90) Ibid.91) For instance, 6 prisoners were convicted and sentenced to death and another 85 to life imprisonment in Sodo Principal Prison on 2 August 2012.

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6. The Extent of Unmet Need for Legal Aid in Criminal Cases

Responses to interviews were consistent in that there is an unmet need for legal services in the Wolaita zone. However, when discussing this topic it became evident that some interviewees defined unmet need as lack of repre-sentation (i.e., no counsel or public defender available), while others consid-ered unmet need to encompass “lack of quality representation.” It also became clear that the nature and extent of unmet need is almost similar in all districts in the zone. It was found that almost all indigent accused were unrepresented in all court proceedings because neither a court officer nor a duty counsel was available to represent them. In what follows, two major factors which usually contribute to unmet needs for legal aid in the zone will be discussed.

6.1. Unmet Needs that Flow from Arrest and Detention

All the responses to the survey suggest that legal assistance is rarely provided at police stations. This is not because the law curtails such assistance at police stations; rather, it appears that it is not established practice. Legal aid is a mat-ter for the courts to consider (after applications have been lodged and means tests conducted) further along the procedural chain. The Lilongwe Declaration, to which Ethiopia has subscribed, highlights the importance of providing legal aid at all stages of the criminal justice. This includes investigation, arrest, pre-trial detention and bail hearings, in addition to the trial and appeal phases.

The Lilongwe Declaration specifically states that:

Suspects, accused persons, and detainees should have access to legal assistance immedi-ately upon arrest and/or detention wherever such arrest and/or detention occurs. A per-son subject to criminal proceedings should never be prevented from securing legal aid and should always be granted the right to see and consult with a lawyer, accredited para-legal or legal assistant.92

Moreover, Article 19 of the FDRE Constitution provides for the right of arrested persons as follows:

(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 them.

(2) Persons arrested have the right to remain silent. Upon arrest, they have the right to be informed promptly, in a language they understand, that

92) See The Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa, supra n. 6, at 3.

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any statement they make may be used as evidence against them in court….

(5) Persons arrested shall not be compelled to make a confession or admis-sions which could be used in evidence against them. Any evidence obtained under coercion shall not be admissible.

(6) Persons arrested have the right to be released on bail. On exceptional circumstances prescribed by law, the court may deny bail or demand adequate guarantee for the conditional release of the arrested person.

Nevertheless, the FDRE Constitution does not impose a constitutional obliga-tion on the government to provide defense counsel upon arrest.93 The survey found no legal aid inroad being made into areas of policing. There is no trend of providing legal advice to persons who are under arrest and who may be interrogated by the police. The essence of the right to defense counsel is that a detainee must be advised of his/her right to retain and instruct counsel without delay because it is upon arrest and detention that an accused is in immediate need of legal advice. One of the main functions of counsel at this stage is to advise the individual of his or her right to remain silent and of how to exercise that right. This is an important mechanism for the exercise of the right against self-incrimination. Nonetheless, almost all respondents unani-mously indicated that there is no form of legal assistance available at police stations. Rather than assisting, the respondents argued, the police deceives or coerces arrestees to confess their guilt to the charges against them. For instance, one of the interviewees sentenced to death and interviewed at Sodo Prison Administration regrets incriminating himself as a result of the police’s coercion:

The police coerced me to incriminate myself. They tortured me until I fainted. They also threatened me with a pistol and told me that they will kill me if I refuse to confess. Thus, I incriminated myself under the pressure of the police. Besides, I did not know the effect of my words as evidence. The police and public prosecutor present every statement that I made under the pain of torture and pressure as admissible evidence. And I regret that I have been criminally convicted for the offence in which I have been suspected of and sentenced to capital punishment in the absence of legal aid at all stages of criminal proceedings.

Another prisoner sentenced to life imprisonment, a resident of the Kindo Koysha district, narrated the following to the researcher:

I was under arrest for forty-nine days before my appearance before the court. The police coerced me to incriminate myself and took my words against me as evidence during my

93) As is evident from a reading of the FDRE Constitution, Article 20(5), the right to state-funded defense counsel appears subsumed in the set of rights afforded to accused persons.

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trial in court at all levels. I never knew what to do at the time. And I could not contract an advocate because I lacked sufficient means to pay. I did not get publicly-funded legal aid because I did not get an opportunity to apply for it. In addition, I was not given a chance to be released on bail so that I could have discussed my problem with others. The police and public prosecutor did not give me enough time and opportunity to present evidence. Rather, they rushed to convict and send me to jail. They forgot the probability of my inno-cence. I believed that I was entitled to legal aid from the police, the prosecutor and even the judges. But there is no willingness to provide it or at least facilitate it. I have been convicted and sentenced to life imprisonment without the benefit of any form of legal aid. This has cost me psychologically, socially and economically. Now I am addicted to ciga-rettes. I feel helplessness and hopeless. I consider this prison a hell and I do not have something to regret about as I have been jailed although I am innocent.

The in-custody interviewees at police stations and prison centers disclosed that most criminal suspects are convicted and sentenced to jail without the benefit of legal representation and advice. “Usually, there is insufficient time for any defence and the police investigation is too loose. Justice becomes a commodity affordable only to the rich while it is too expensive to the poor to be afforded,” according to many of those interviewed.

This research found that the legal aid system is not functioning overall at police stations in the zone. The principal obstacle is accessibility. Among the in-custody interviewees, 99% indicated that the police failed to advise them of their right to counsel. Furthermore, all of accused interviewed emphasized that the police did not inform them specifically about the right to remain silent.

5.2. Unmet Needs that Flow from the Adversarial Court Process

The court site study examined the numbers of unrepresented accused in ten courts across the zone and explored the consequences stemming from the lack of representation. Although the focus of criminal defence work is often at trial proceedings and typically court decisions regarding the right to counsel refer to the right to representation at trial, the study focused on representation at all stages of the criminal justice process. In respect of those cases that do proceed to trial, the earlier stages of the criminal justice process are important. Research shows that critical decisions are made at these early stages that have a pro-found impact upon subsequent stages and the outcome of the case overall.94 While criminal trials may be more demanding than the pre-trial stages with respect to legal technicalities, the earlier stages are, nevertheless, adversarial, formal and complex. Table 1 below shows the percentage of accused persons

94) See for instance, A Currie, The Unmet Need for Criminal Legal Aid: a Summary of Research Results, (Access to Justice and Legal Aid Department of Justice Canada, 2003) at 7.

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95) This is based on reports of courts, available at archive of Wolaita Zone High Court, 2 August 2012.96) This is based on reports of courts [Archive of Wolaita Zone High Court] and combined with the responses of prisoners at Sodo Correctional Center, 2 June 2012.

appearing unrepresented at various stages of the criminal justice process in ten courts combined.

The results of the research demonstrate that a large proportion of accused persons in criminal courts are not represented. Many of these people are with-out representation at all critical stages in the criminal justice process.

The results of the court site study show that large percentages of accused were convicted without the benefit of defense counsel. More troubling is the fact that up to 98 per cent of unrepresented accused receive jail sentences.

In six of the ten courts more than 96 percent of unrepresented accused at final appearance were convicted without the benefit of representation. At least 97 percent of unrepresented accused at final appearance received jail sentences without legal representation.

Table 1. Percentage of Unrepresented Accused by stage of proceeding.95Appearance Percentage

Not representedMinimum Per Cent in six of Ten Courts

First Appearance 96 % to 100 % above 96 % in six courtsSecond Appearance 95 % to 100 % above 96 % in six courtsThird Appearance 96 % to 100 % above 97 % in six courtsBail Hearing 98 % to 100 % 98 % in six courtsPlea Entering 96 % to 100 % above 98 % in six courtsFinal Appearance 97 % to 100 % above 97 % in six courts

Table 2. Unrepresented Accused Convicted and Sentenced to Jail at Last Appearance.96Outcome at Last Appearance Range of Percentages for

Ten Courts CombinedMinimum Percentage in six of Ten Courts

Per Cent Convicted 95% to 98 % above 95% in six courtsPer Cent Sentenced to Jail 96% to 98% above 96% in six courts

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7. Impact of Unmet Needs for Legal Aid

The unmet needs for criminal legal aid affect indigent defendants, the justice system and the community at large. In the following few sections we shall pre-sent the results of the study on the impacts stemming from the lack of legal aid. In the first place, this part summarizes the types of errors made by the unrepresented accused and convicts. According to qualitative data collected from courts in the zone, there are a number of miscarriages of justice as a result of innocent convictions. Finally, we shall dwell on the analysis of the burden of the unrepresented accused on the courts.

7.1. Errors Made by Unrepresented Accused in the Court Process

The qualitative data reported in this section focus on the errors made by unrepresented accused in court and how these place them at a disadvantage. It is assumed that unrepresented accused making these errors jeopardize fair-ness, but this connection is not empirical but rather intuitive.

The court site study gathered qualitative data from interviews with judges about the ability of unrepresented accused to represent themselves in court. The figure below summarizes the observations made by key informants con-cerning the errors made by unrepresented accused.

Table 3. Errors Committed by Unrepresented Accused.97

Stage Errors committed by unrepresented accused personsFirst Appearance to bail;

Pre-Trial Release

argue for their release; and-

able; e.g. clauses relating to contact with spouses with whom they have legitimate contact or with whom they have joint responsibilities for children.

97) This was derived from the data collected by employing tools like face-to-face interviews with judges working at district, high and supreme courts as well as focused group discussions made with selected detainees and court users in the zone.

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The informants noted that, apart from the inability of unrepresented accused to formulate and execute legal strategies, they most often do not understand the social and economic consequences that may follow from a conviction and a criminal record. They normally plead without properly weighing the conse-quences of their plea.

Stage Errors committed by unrepresented accused personsPlea

-quent charges or with respect to impact on employment and eligibility for bond;

Trial going to trial when there are no justiciable issues;

me too.”);

case; e.g. a hearing on the confession;

witnesses fail to appear;

against them;

case;

Sentencingand requesting, certain types of sentence; e.g. a conditional sentence;

job, undertaking counseling or treatment; and

thus effectively stripping them of the advantage of a reduced sentence.

Table 3. (Cont.)

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The interviewees participating in the court site study provided anecdotal evidence of unrepresented accused that failed to raise arguments in their defence or otherwise accepted outcomes without raising pertinent claims because they had not considered the social or economic consequences. The most frequent examples involved unrepresented accused accepting bail or sentencing conditions that ultimately impacted their ability to fulfill family obligations. It was noted that accused persons might plead guilty even when a defense is available out of shame or embarrassment or fear of public humilia-tion. This is amplified by the study of legal aid accessibility in respect of crimi-nal convicts at Sodo Prison Center. The focus group participants in this study emphasized the manner in which local cultural values attach community stigma and personal shame to the perpetrators of criminal offences. Some members of the rural community may, therefore, be especially vulnerable to inappropriate decisions reported by the key informants in the court site study.

With these disadvantages in mind, they face an unfamiliar and very stressful environment. According to a judge interviewed for the study:

Most of them do not have a clue. They do not understand how a trial is conducted. They do not understand what things are relevant in relation to the charges they are facing. They do not have the advocacy skills, and who’s to blame them for that? A lot of them are poorly educated people and people who are on the margins. But even people who have been generally more fortunate and better-educated do not have the advocacy skills. They don’t know how to ask questions and don’t know which questions to ask.98

The qualitative data do lead to the conclusion that virtually no accused person who appears unrepresented in criminal court could represent him/herself without making errors of omission and of commission that place him or her at a disadvantage. Most matters in the criminal courts are disposed of without a full trial. However, even though most of the appearances are at stages of the criminal justice process before the trial stage, the proceedings are adversarial. The unrepresented accused is opposed by a trained prosecutor and the appear-ance involves legal procedures and technicalities unfamiliar to lay persons. In view of the consequences of a conviction, the litany of disadvantages of unrep-resented accused is a basis for concern.

In general, almost all unrepresented accused make mistakes in court that jeopardize their legal position. The overwhelming point of view of the inter-viewees was that unrepresented accused lack the ability to defend themselves properly in the adversarial and technical environment of the criminal courts. Thus, it may be argued that nearly all unrepresented accused require legal rep-resentation in order to assure for themselves a fair hearing.

98) Interview with Mr. Kassa Hirboro, Zone High Court, 15 July, 2012.

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7.2. The Burden of Unrepresented Accused on the Courts

Judges claim that the presence of unrepresented accused places a considera-ble strain on them because they must step outside of their normal roles to assist these people. The perception of interviewees was that this culminates in a greater burden on, and increased workloads, for the court. It is possible that the efforts of the judges and the prosecutors diminish the consequences of any disadvantages experienced by unrepresented accused, but there is no direct evidence one way or the other.

The qualitative evidence suggests that the level of expertise required to avoid disadvantages is well beyond the capacities of virtually all unrepresented accused, and this applies to all stages of the criminal justice process. In view of the qualitative evidence about the lack of advocacy skills of accused and the inability to assess appropriate courses of action and consequences, it is very difficult to conclude that fairness in any basic and intuitive sense could char-acterize the appearance of any unrepresented person in criminal court. It is arguable that all accused should receive some level of legal representation.

The judges describe the difference between representation and non- representation as the difference between the strength of the right hand as opposed to the left. “When the accused are represented, the balance will be maintained as the judges will not face difficulty in balancing between a trained prosecutor and the illiterate accused.” Thus, it was critically recommended that the government should allocate a sufficient budget for the operation of the office of public defenders.

8. Conclusion

The FDRE Constitution and international human rights instruments, to which Ethiopia is a party, provide for state-funded legal aid for accused persons where the interests of justice so require. Some subsidiary laws also articulate Ethiopia’s obligation to provide free legal aid to indigent accused in criminal cases. For instance, courts at all levels in the country are duty bound to provide defense counsel to indigents free of charge by establishing the office of public defenders.99 Moreover, advocates, both at federal and regional levels, are obliged to provide free legal service for fifty hours per annum.

However, the preceding sections demonstrate that a number of minimum standards with respect to the right to free legal assistance set forth in treaties

99) See, for instance, Federal Courts Establishment Proclamation No. 25/96.

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and domestic laws are not respected on account of practical reasons. The pub-lic largely lacks legal awareness. Furthermore, the necessary implementing institutions are absent and the state-funded legal aid system is patchy at best. Access to legal aid at all stages of the criminal justice system is generally una-vailable in police stations, the courts and prisons. Budgetary allocation for legal aid is not meaningful. Persons accused of criminal conduct cannot expect legal advice in mounting a defence or forming a plea to a serious charge, or in representing oneself in cases involving a prison sentence. Besides, indigent defendants are unable to prepare and argue their defence, seek assistance, or solicit advice on filing a claim. Lawyers are few in number and generally una-vailable in remote areas; unfortunately, law students are under-utilized. Community legal services are not available in every district or accessible by every person in need of such services.

As was demonstrated earlier, the creation of an independent body special-ized in legal aid administration has proven an excellent practice in most advanced jurisdictions.100 In Ethiopia, a specialized independent body, the National Legal Aid Agency (NLAA), with the key responsibilities of elaborating and implementing legal aid policies; developing and managing the legal aid budget; selecting and contracting of legal aid providers, and ordering remu-neration for their work; providing education and training for legal aid provid-ers; ensuring the quality control of legal services should be established. To ensure the independence of the NLAA, its relations with other government authorities should be construed as follows. The managerial board of the NLAA101 should be appointed by and accountable to the legislature, i.e., the House of Peoples Representatives; and the audit of its financial activities should be undertaken by the Federal Auditor General (central audit body accountable to the Federal Assembly). The responsible governmental body, the Ministry of Justice, should cooperate with the NLAA in order to develop relevant state policies, provide recommendations on amending pertinent leg-islation, developing methodologies, setting out quality standards and so on.

Because of the huge territory which Ethiopia occupies, its federal structure and diversity of local conditions, the NLAA must set up regional offices (Legal Aid Agencies (LAA)). While the NLAA develops relevant strategies and poli-cies, prepares the legal aid budget and distributes legal aid funds among the

100) For instance, the introduction of an independent specialized body administering legal aid was successful in many countries, including Canada, UK, Ireland, New Zealand and Australia.101) The managerial board of the NLAA should be composed of representatives from the legal profession, experts in the field of criminal justice, human rights and public administration, as well as civil society organizations. The mechanism of shaping the managerial board has to envisage the right of the relevant bodies to nominate their members and of setting time limits for their service (for instance, 5 years).

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regions, designs quality control standards and mechanisms, as well as educa-tion and training programs on the federal level, its offices in the federal sub-units must select and contract service providers, exercise quality control, manage relevant information databases and conduct professional trainings. This solution in substance envisages the creation of a centralized public ser-vice system in a federal state. In the Ethiopian context such a solution allows avoiding competence disputes between central and federal subunits. Another important rationale justifying the adoption of the centralized model of admin-istration of legal aid is ensuring equal access to legal aid in various regions that have extremely diverse economic conditions. The proposed model is able of considering local specifics and providing equal financial support for legal aid in the regional states.

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Indigent’s Right to State Funded Legal Aid in Ethiopia

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