Ethiopian Business Review

JUDICIAL INDEPENDENCE IS IMPOSSIBLE WITHOUT ABANDONING REVOLUTIONARY DEMOCRACY

A consultant and attorney at law, Tadesse Kiros has had decades of experience in a wide range of legal expertise such as taxes, mergers and acquisitions, and energy as well as infrastructure finance, among others. Tadesse served as deputy chief justice of the Supreme Court of Ethiopia under the Transitional Government of Ethiopia. Prior to that he served as a member of the Legal Committee formed under the Office of the President of the Transitional Government between 1991 and 1992. He later established the Tadesse Kiros Law Office, one of the most successful de-facto law firms in the country, and a leading service provider, both in coverage and organizational capability. 

Tadesse believes that his office would have been even more effective had the government allowed lawyers to be organized into law firms. His efforts, as well as the efforts of other lawyers, to persuade the government to provide the necessary legal framework for the establishment of law firms has borne no fruit so far, but he is optimistic that Prime Minister Abiy Ahmed’s administration will address the issue as a matter of urgency. EBR’s Samson Berhane sat down with him to discuss the challenges facing the legal sector and recent reforms made by the government. 

Recently, your office signed an agreement with Andersen Global, a multinational law firm. What is in the agreement?

It is normal for lawyers to collaborate with different international law firms and to be members of different networks. Andersen is a global organization that has member firms in different countries. Our agreement with Andersen is a collaboration. It is neither a joint venture nor a partnership.  Global firms like Andersen need to serve their clients worldwide.  Collaborating with offices such as ours would enable them to ensure that their clients have reliable legal support wherever and whenever the need arises. This would also be a good business opportunity for us, as referrals would flow to our office from all corners of the world where Andersen has a commercial presence in one form or another.  We have similar arrangements with a number of global networks and law firms. We are, for example, members of Meritas and Nextlaw. We also work closely with leading global law firms. Baker McKenzie, Dentons and Clifford Chance are among them.  Our relationship with any one of them is on a non-exclusive basis. 

How was your company chosen from amongst the legal service providers in the country?

We are one of the few law offices that have developed a great deal of expertise in serving the growing needs of the legal market.  In fact, we believe our office is the first law office in Ethiopia that adopted a firm type structure by organizing itself as a de-facto law firm. It has a number of sections that focus on, and specialize in, different areas of the law, thereby positioning itself well in the ever-growing legal market following the country’s remarkable economic growth in recent years and growing foreign direct investment. 

Neither local nor foreign professionals are allowed to open law firms in Ethiopia. What impact, from your perspective, has this had on the legal sector, perhaps in terms of opening the sector to foreign companies?

As already mentioned, there is a growing need for quality legal services. This cannot be wholly achieved without providing for law firms. The existence of law firms would enhance the capability of our lawyers substantially, due to the division of labor that would result in terms of the specialization that a firm would naturally make possible. This, in turn, would play an important role in terms of ensuring the existence of local capability that would serve the interest of the ever-growing economy in general and that of foreign investors in particular.  

Hence, the issue needs to also be looked at from a broader perspective. Law firms will create the opportunity for specialization and enhance the capability of local lawyers, who can play a vital role in ensuring that our laws and indigenous legal institutions continue to play an important role in the development of our society.  With respect to your question of allowing foreign law firms to operate in Ethiopia, they will sooner or later, and I believe the government will carefully address the issue when the time arrives. The government would need see to it that enough room has been created first in order for local firms to grow and position themselves well in the market before it can open the market to foreign firms. Unfortunately, it has been almost two decades since the government pledged to provide laws and regulations that would allow for and govern the establishment of law firms, but as far as I know it seems to have borne no fruit so far, despite the many consultations that have taken place for many years now. 

 But what do you think the government’s greatest fear is in allowing law firms to operate?

It is hard to tell. I know that there have been various efforts that also involved the legal community in the drafting of a new law and that some seven or eight years ago the then president of the republic (Girma Woldegiorgis) in his opening speech  to the joint session of the both houses even included it in the list of the laws that were planned to be adopted by Parliament in that year but nothing came out of that. 

Of course, there is a great deal of expertise required in drafting the law and this, coupled with the constant change of personnel at the highest levels of the Ministry entrusted with the drafting of the law might have contributed to the delay. 

Even if it was open to competition, are there any entities that can form capable legal firms?

That is not going to be an issue at all. Of course, there are highly capable law offices in the county that can readily convert themselves into law firms. We don’t have s shortage of capable lawyers in the country. What is missing is the necessary legal framework. 

What has Ethiopia lost so far because of the absence of law firms?

Foreign direct investment is rapidly growing. The economic outlook of the country also shows that it will continue to grow in the years ahead. Ethiopia is a member of a number of regional and international bodies and signatory to many bilateral and multilateral agreements.

This requires the existence of competent professionals that can provide quality and efficient legal services. To do so, it is important to permit law firms to flourish. The government has to look at it as one way of attracting foreign investment. Investors will want to see the existence of local capability that can support their business in making a decision whether or not to invest in a country.   

Be that as it may, the commercial code, which has not been amended for the past half a century, is another challenge faced by legal consultants and businesses. Can you reflect on that?

Ethiopia is one of the countries that have a very well-structured legal system. It adopted its modern codes more than sixty years ago. But for a long time not much happened in terms of revising these codes to adapt them to the ever growing economic and social changes. It is therefore true that our codes need to be urgently adapted to fit into the current business environment. Although I know that government has been trying for a very long time to revise the commercial code, I am not aware of where things are now since I am not part of the process. It should be noted that having well adapted laws and legal institutions in place has a very big role to play in a country’s competitiveness.  

Beyond that, the political unrest has affected the existence of businesses in Ethiopia and it is also eroding the confidence of investors. 

Any form of unrest would definitely impact the flow of foreign investment to the country. It affects the bankability of projects. However, as far as we are concerned, as of recently, we are getting a lot of requests from foreign investors trying to do business in Ethiopia. Things look very promising, particularly following the recent decision by Prime Minister Abiy’s administration to open up for more privatization. 

How did the political unrest influence your business?

Unrest does have a negative impact on businesses and the legal market is not any different. But as I just mentioned, we are seeing an upward movement probably because of the recent announcement by the government about liberalizing the economy. The number of investors who seek our support is increasing from time to time. 

The other issue raised around the legal sector is the lack of an independent judiciary. Although the government claims that it is reforming the judiciary to ensure its independence, that doesn’t seem to be practical. 

The EPRDF has been promising to provide for an independent and well-functioning judiciary for more than two decades, but has terribly failed to do so. In my opinion, an independent judiciary cannot coexist with revolutionary democracy.  It is therefore impossible for EPRDF to make the judiciary independent without first abandoning its ideology of revolutionary democracy. The fundamental premise of an independent judiciary is impartiality. For revolutionary democrats, all state organs are meant to serve whatever the vanguard party believes is in the best interest of the public and since they consider themselves to be the embodiment of the public will they do not entertain the idea of an external entity playing an impartial role with the view to controlling their actions. 

 It is also important to note that it is difficult, if not impossible, to ensure a full-fledged system of independent courts before there is a full-fledged multi-party system in the country. They go hand in hand. One is necessary for the existence of the other. Generally speaking, only when elections become meaningful will government institutions, judicial or otherwise, start exercising independence. It is difficult, if not impossible, to imagine a situation where the courts are assertive in exercising their judicial function in a system that is dominated by a single party that was openly determined to remain so for decades. 

Recently, people without affiliation to the party have been appointed to high positions in the judiciary, including Meaza Ashenafi, who became the president of Federal Supreme Court. Although what matters is the overall reform in the legal sector, don’t you think such changes are a step in the right direction to create an independent judiciary?

There is no a single answer to this, particularly when you look at it in the context of what has been happening in Ethiopia. There are some who think this is a positive step towards ensuring the independence of the courts. It is true that appointing people who are from outside the judiciary to the highest offices of the judicial establishment, although may not ideal in terms of experience, can be a good opportunity to introduce a new energy and leadership.

But you can only make new appointments when there is a vacant position either because the former presidents has reached his or her retirement age, or has become incapable of rendering his or her duty, or is dismissed for disciplinary reasons.  We have not been clearly and publicly told what went wrong with the previous presidents. This is unfortunately the practice put in place by the EPRDF government since it came to power. 

The new government of Prime Minister Abiy Ahmed seems to have followed in the footsteps of its predecessors in this regard-not adhering to the basic tenets of the constitution pertaining to the lifetime tenure of judges. I was hoping to see a different approach in the way the new government handled the judiciary.  I agree that staffing is very important, but I do also think the process by which this is done is no less important, particularly when dealing with the judiciary

Do you think the fact that the Prime Minister selects and presents the candidates for the Supreme Court presidency and other top judicial positions to be approved by Parliament compromises judicial independence?                                                

I don’t think that is a problem. The main task of selecting the judges is entrusted to an institution that is run by the chief justice-the Judicial Administration Council. It is when the Judicial Administration Council has approved of the candidates and submits them to the Prime Minister that the Prime Minister gets them appointed by the House, of course provided he agrees with the selection made by the Council. As far as I am aware, unlike in the past, the process was designed to ensure that the judiciary itself remains an important player in the appointment of federal judges. 

Do you think it is possible to ensure judicial independence while there is a shortage of skilled manpower in the legal sector?

Well, obviously, you cannot have a good court system without having a body of good and capable judges. Shortage of manpower remains a problem, as is the case with every other government institution in the country. But I think the situation in terms of manpower is better now than when the EPRDF took power twenty seven years ago. We have a number of law schools that are producing a great number of lawyers every year. All we need to do is do some more work to enhance their capacity and I think this is being done already.


7th Year • Dec.16 - Jan.15 2019 • No. 69


 

 

Samson Berhane

Editor-in-Chief

samson.b@ethiopianbusinessreview.net

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