Ethiopia: ‘Loyalty to the Constitution’ as a Justification to Terminate the Tenure of a Judge

by Semahagn Abebe ( PhD)

The Ethiopian parliament lately approved the recommendation submitted to it by the Judicial Administrative Council on the termination of the tenure of  Judge Gezachew Mitiku of the Federal High Court. The justification rendered to terminate the tenure of judge Gezachew is that he expressed his views on the need for constitutional amendment and his criticism towards the failure of the Ethiopia regime to sign the Rome Statute which established the International Criminal Court (ICC). According to the reasoning of the Judicial Administration Council, the views of  judge Gezachew on constitutional amendment and ICC indicate his disloyalty to the constitution. Though the phrase ‘loyalty to the constitution’ has been a longstanding standard used to recruit federal judges, this is the first time the phrase being applied to terminate the tenure of a judge.

The proclamation that deals with the recruitment, nomination and termination of judges provides that the selection of judges is made based on principles of ‘loyalty to the constitution and having good conduct’. This standard is far from clear and is injected to entertain political considerations during the recruitment of judges. Does it mean that people who are critical of the merits of the constitution are not loyal to the constitution? What is the objective standard applied to identify the existence of loyalty? Who determines the standard? The proclamation further provides that the appointee needs to be the one ‘who is loyal to the constitution; confirms in writing that he is loyal to the constitution and has never participated directly or indirectly in activities that violate the constitution.’ The rule clearly indicates that the government is suspicious of its citizens. In principle, any law-abiding citizen living in the jurisdiction of the state is presumed to be loyal to the constitution. It is inappropriate to demand citizens to confirm that they are loyal to the constitution. They are presumed to be loyal to the constitution unless it is proved otherwise. This is clearly a rule that seriously undermines the rights of citizens recognized under the constitution. The regime applies such dubious standards to exclude candidates that may have independent outlooks and those who may not be twisted easily when there is a need to use the judiciary to attack political opponents and crackdown dissent. The  clause is also aimed at filtering out judges such as Ato Gizachew, who manifest  integrity and commitment to the rule of law.

In the last two decades, hundreds of applicants for judicial vacancies were turned down largely alleging that most of the applicants were not ‘loyal to the constitution.’ Particularly, most of the applicants from Amhara and Oromo communities were routinely rejected to be judges since the regime considers individuals from these communities  as threats to its survival. In the last few years, significant number of judges are rather recruited from Tigray and Southern Nations, Nationalities and Peoples Region (SNNPR). As an evidence, on the same day the parliament terminated the tenure of judge  Gizachew, it appointed Belachew Anshiso ( from SNNPR) and Berihu Tewoldebirhan ( from Tigray) as president and vice president of the Federal High Court respectively. Despite the fact that minority groups need to be represented in the judiciary, the regime is highly alienating individuals from Amhara and Oromo communities, which together constitute over 70 per cent of the population of the country. By recruiting judges who are members and supporters of TPLF, the judiciary has been extensively used to preserve the repressive minority rule of TPLF. This is time to honour the courage and integrity of judge Gizachew, relentlessly work to stop the illegal actions of the regime and ensure judicial independence and rule of law in the country.