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Does Ethiopia’s transitional justice amount to quasi-compliance?

As the implementation phase of the process approaches, unwavering political support is needed now more than ever.

Ethiopia’s post-2018 transitional justice process has been referred to as ‘quasi-compliance’ – aimed more at appeasing international demands for accountability than reflecting a genuine commitment to justice. Some even say Ethiopia is undertaking an ‘impunity process.’

These assessments are fuelled by the government’s push for the premature termination of the International Commission of Human Rights Experts on Ethiopia, the country’s ongoing shift from one conflict to another, and doubts over the Transitional Justice Working Group of Experts’ representativeness and independence.

These allegations warrant an in-depth analysis of the evolution, scope, challenges and prospects of the process.

Ethiopia’s attempt to deal with its past through transitional justice has evolved significantly (see chart). The country is approaching the end of its designing phase – the third of four phases. The working group is developing a structured approach to transitional justice based on 80 consultations with the public, local and international experts, political parties, civil society organisations and other stakeholders. From these consultations, a ‘zero draft’ policy was developed.

Evolution of Ethiopia’s transitional justice process since 2018

 Evolution of Ethiopia’s transitional justice process since 2018

Source: ISS
(click on the chart for the full size image)

Establishing the working group could be considered a sign of government commitment. The approach is unprecedented as it deviates from traditional top-down decision making, such as the post-1991 transitional justice process. Nonetheless, critics argue that the group lacks representation from opposition factions, and its members are hand-picked by the Justice Ministry.

‘This is an expert group, not a political organ, and therefore ethnic or political representation alone should not be a deal breaker,’ says a group member who requested anonymity. Yet the working group could have been both expert and politically representative. Also, had it been established by Parliament instead of the executive branch of government, these concerns might have been lessened.

The transitional justice working group calls for creating an independent special court and prosecutor

Despite criticism of its independence, the working group says the government hasn’t interfered in its agenda setting, participant selection or consultations. Furthermore, the alignment of its findings with external reports, such as from the Harvard Humanitarian Initiative and the joint report of the Office of the United Nations High Commissioner for Human Rights-Ethiopian Human Rights Commission (OHCHR-EHRC), shows the group’s autonomy and independence.

As in these reports, the working group highlighted the meagre level of public trust in local institutions, and that transitional justice shouldn’t be pursued without criminal accountability for those accused who are most responsible.

It also calls for creating an independent special court and prosecutor with ‘meaningful involvement’ from international experts that goes beyond an advisory role, according to a working group member. This proposal addresses the public’s significant distrust in the judiciary while ensuring national ownership of the process – one of the cardinal principles of the African Union’s Transitional Justice Policy.

The focus on national ownership led to initial recommendations that sparked debate over the credibility of the whole endeavour. The key point of contention is the Green Paper’s preliminary suggestion of pursuing criminal accountability through domestic courts, which are largely seen as biased and ill-equipped. Working group members say, ‘Unlike what has been insinuated by experts, the goal was never to create a mechanism for evading criminal accountability.’

This desire for national ownership of the process may also explain the government’s push for the premature closure of the International Commission of Human Rights Experts on Ethiopia. The government saw the commission’s establishment as politically biased and neglectful of the complementarity principle, as it ignored the OHCHR-EHRC inquiry and planned local investigations.

To insulate the process from executive interference, the working group suggests that Parliament adopt the policy

Sources say the international commission’s inclusion of Fatou Bensouda, former chief prosecutor at the International Criminal Court – to which Ethiopia isn’t a party – and its alleged unwillingness to investigate situations outside Tigray, further strained relations. Bensouda’s involvement might have been perceived as hinting at an international mechanism for Ethiopia, while the focus on Tigray was seen as too selective an approach.

Indeed, Ethiopia’s process is often explained in light of the Tigray War. It is, however, broader both in temporal and territorial scope. Timewise, the working group’s report suggests using 1995 as a benchmark for criminal accountability while other mechanisms, like truth-finding, shouldn’t be time-bound. Territorially, the foundational documents, Green Paper, consultations report, and even the Cessation of Hostilities Agreement, outline and call for comprehensive national transitional justice.

Beyond the working group’s activities, other noteworthy initiatives are facilitating transitional justice and accountability. These include drafting legal frameworks for international crimes, including a provision on command responsibility. Also, draft laws are being prepared on lustration and vetting, and the integration of traditional justice into the formal justice system.

Nevertheless, Ethiopia’s transitional justice process has reached a critical juncture where political resolve will be tested more than ever. Adopting the much-anticipated policy will be the first measure of whether the working group’s recommendations are being carried out. To insulate the process from executive interference, the group suggests that Parliament adopt the policy, not the Council of Ministers as usual.

Unless the guns are silenced, the final implementation phase cannot be achieved

The second test lies in resolving the country’s many ongoing conflicts. Unless the guns are silenced, the process cannot move to the final implementation phase. If forced into implementation amid conflicts, it risks a buy-in deficit.

In fact, there is an interdependence between transitional justice and broader peace processes. Adopting a policy genuinely informed by public opinion may be a welcome gesture to broker peace, and a peace deal will be decisive in setting the stage for transitional justice.

Implementing transitional justice hinges not only on political will, but also on capacity. For that reason, a commitment to the process in Ethiopia lies not only with the government but also with the international and local communities, and civil society.

Donors, including those dissuaded by the quasi-compliance allegations, must recognise the progress made and the importance of not letting the initiative fail. Robust involvement from civil society organisations is indispensable for enhancing implementation capacity and monitoring progress.

Coordinated international support could begin with advocacy for integrating public consultation findings into a policy document, while facilitating and strengthening peace negotiations. Successful transitional justice in Ethiopia depends on both good policy and peace.

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