Introduction

All human beings, poor or otherwise, have human rights by virtue of being human. These rights include: liberty, freedom, equality, fraternity, enfranchisement as well as the right of access to justice, in case of violation of these fundamental rights.

The idea that the justice system is available to vindicate legal rights, settle disputes and safeguard citizens is supported in theory, but seldom realized in practice. Reality has it that poverty, illiteracy and prohibiting cost of legal service make it hard for the majority of people to have access to courts or even police protection. When they do have contact with the justice system, it is most frequently as victims of crime, or as targets of harassment, eviction, violence or corruption. Recent studies of poverty, including the World Bank's 'Voices of the Poor', have emphasizes that poverty is not just a lack of income. It is the experience of multiple forms of vulnerability, including exposure to violence and unlawful activities. Accessing justice to the poor hugely helps alleviate poverty in developing countries such as ours. Thus one can safely say, for the Ethiopian poor, access to justice is as important as access to healthcare or education.

Though the right of access to justice is recently being considered as a hallmark of free and democratic society, the legal system of accessing justice to the needy in Ethiopia, however, falls short of the ideal, and the countries legal trend is making the current outlook on access to justice quite bleak.

APAP believes the time has come to open a debate on the availability of access to justice for all members of Ethiopian society in future. As such it has prepared this Article from the legal perspective to serve as a spring board for further discussions and, hopefully, actions.

International Standards on the Rights of Access to Justice

Access to Justice and equality before the law are human right principles recognized under the international human rights instruments Ethiopia has ratified. Specific instruments that guarantee these right include: The Charter of the United Nations, Universal Declaration of Human Rights (UDHR), The International Covenant on Economic, Social and Cultural Rights (CESCR) and The International Covenant on Civil and Political Rights (ICCPR). Under Article 55(c), it is stated that the UN will promote universal respect for, and observance of the UN charter human rights and fundamental freedoms for all without any discrimination. It is also stated in Articles 7 and 8 of the Universal Declaration of Human Rights that everyone is equal before the law and has the right to effective remedy against violations of fundamental rights. The International Covenant on Economic, Social and Cultural Rights and The International Covenant on Civil and Political Rights also recognize this basic right. Especially, the International Covenant on Civil and Political Rights recognizes the right under Article 14, including the right to a legal counsel. On regional level, the Charter of the Organization of the African Unity under Article 2 states that the organization would further the UN Charter and the UDHR.

Domestic Standards

These international and regional resolves have been demonstrated in national jurisdiction of countries that subscribe to the instruments through initiatives that are designed to promote access to justice for citizens. This indicates that the organization and administration of justice in these countries is inspired by these principles.

The constitution of the Federal Democratic Republic of Ethiopia under Article 9 (2) provides that international instruments ratified by Ethiopia are integral part of the law of the land. As Ethiopia has ratified all the major international human rights instruments we can say that the provisions on these instruments on the right of access to justice form part of the laws of Ethiopia. The constitution under Articles 37 and 25 expressly guarantee's the right of access to justice and equality before the law to all citizens. Specifically Article 20 impose an obligation on the state to provide legal aid to accused persons who do not have sufficient means to pay for an advocate and otherwise "substantial" injustice would ensue. The constitution further guarantees under Article 13(2) that these and other human rights provisions of same shall be interpreted in the light of international human rights instruments.

Beneath the FDRE constitution, there are laws and regulations that are designed to support the implementation of these constitutional mandates. These are the Criminal Procedure Code, the Federal Court's Advocates Licensing and Registration Proclamation (Proclamation No.199/2000) and the Federal Court's Advocates Code of Conduct (Regulation No. 59/99). While the Criminal Procedure Code reinforce the right to legal aid of accused persons in cases where the accused is a minor, or when the accused couldn't defend his/her case because of his/her mental or physical disability. The Federal Court's Advocates Licensing and Registration Proclamation (Proclamation No.199/2000) and the Federal Court's Advocates Code of Conduct (Regulation No. 59/99) require advocates to provide 50 hours of free legal aid service to the needy per year.

Legislative and regulatory initiatives have been to some extent complemented by the services rendered by a very small number of civil society organizations. These include, Action-Professional's Association for the People, Ethiopian Bar Association, Ethiopian Women Lawyers Association, Tesfa Legal Support Association for the People (Awassa), Biruh Yehig Degaf Lemishu Mahber (Dire Dawa) and Selam Legal Support Association for the People (Harar). The latter three associations provide legal aid service to the needy in urban areas they dwell.

Legal Constraints

Despite the above initiatives, the right of access to justice and the equality before the law are far from being materialized in Ethiopia. The gaps are revealed by a review of the law and an analysis of the law and the practice on pro bono service. These include: focus on criminal defense of capital/serious offences, banning of public interest litigation, absence of legal aid legislation on the management of pro bono services rendered by advocates and stringent requirement on who should provide legal aid.