2.2. Towards a Comprehensive Prosecution: The Need for We have seen above that there were government departments with special prosecution power on specific matters but, now the Federal Attorney General has been established with comprehensive prosecutorial power. What justifies doing away with the special prosecution institutions and establishing the Federal Attorney General? One can collect some of the justifications from the preamble of Proc. No. 943/2016, and three basic points can be mentioned. First, the establishment of the Federal Attorney General was necessary for the purpose of uniformity, effectiveness and efficiency in the prosecution service to protect public interest. It is understood that the goals of uniformity, effectiveness and efficiency are to be achieved if a comprehensive and strong prosecution institution is established. Second, it is understood that the establishment of the Federal Attorney General contributes for the prevalence of the rule of law. The Federal Attorney General is believed to contribute for the rule of law to be sustained by enforcing laws properly and making sure that laws are organized and enforced properly and government works are conducted properly according to the laws. And third, the establishment of the Federal Attorney General is necessitated in order to organize a prosecution institution with professional and institutional independence and public accountability. To this end the Federal Attorney General is expected to work in a transparent and participatory manner.
III. The Federal Attorney General: Its Organization, Roles and Functioning
3.1. Organization and Administration of the Prosecution and Prosecutors
The Federal Attorney General is established as an autonomous federal government ministerial office accountable to the Prime Minister and the Council of Ministers, its head office in Addis Ababa – in the federal capital city – and with possibility to establish branch offices throughout the country as it may think fit. It is organized having an Attorney General appointed by the House of Peoples Representatives up on recommendation by the Prime Minister, and Deputy Attorney Generals appointed by the Prime Minister, line divisions necessary for its work, Management Committee, Federal Public Prosecutors Administration Council, public prosecutors appointed by the Attorney General upon the recommendation by the Public Prosecutors Administration Council and necessary staff. The Attorney General is the head of the prosecution and s/he leads professionally and in accordance with law. Specifically, s/he is empowered, enter alia, to exercise the powers and duties of the Federal Attorney General; appoint, administer and dismiss public prosecutors in accordance with the regulation issued by the Council of Ministers; revoke, change, modify, suspend or approve the decision of Deputy Attorney Generals or refer the case for re-examination or revision by the one that has given the decision; and represent the Federal Attorney General in its dealings with third parties. Moreover, the Attorney General can delegate part of his/her powers to relevant organs as is found necessary for effectiveness and efficiency in performance. The Federal Attorney General has also Deputy Attorney Generals to assist the Attorney General in his functions and lead the line divisions to which they are assigned. The Attorney General and Deputy Attorney Generals can be removed from their positions by the Prime Minister. The Federal Attorney General is financed by a budget allocated to it by the Government and it is required to keep complete books of account which are to be audited annually by the Auditor General. The administration of public prosecutors is to be determined by regulations to be issued by the Council of Ministers. And, the proclamation has stipulated for basic principles on which the administration of public prosecutors is to base. These guiding principles are related to recruitment and appointment and internal administration of prosecutors. Appointment of public prosecutors is required to be based, enter alia, on obedience to and belief in the Constitution, Constitutional order and rule of law; sense of public service; balanced representation of Nations, Nationalities and Peoples of Ethiopia; Ethiopian nationality; having law education and skill necessary for prosecution work; successful completion of pre-service training given for the sector; and impartiality from conditions that may influence decision making of public prosecutors. In the internal administration of public prosecutors, the superior and subordinate relationship between public prosecutors are required to be based on systems laid down by considering cooperation and support, work legality, ensuring efficiency, knowledge and skill sharing. Promotion, demotion, salary and benefits of public prosecutors are required to be determined based on performance, effectiveness and ethical condition. The internal transfer of public prosecutors are to be decided based on the work, personal conditions, impartiality and choice of the public prosecutors. Moreover, the provision of privileges for education, training and conference participation of public prosecutors are required to be decided based on the closeness to the public prosecutor’s position and work, performance, composition of nationality, sex and disability, contribution for the enforcement of the powers and duties of the Federal Attorney General, contribution for effective and efficient service provision, and knowledge and skill value addition to the trainee. And, termination of service of public prosecutors is to be decided based on a system that is put in place by considering low performance, ethical violation, medical condition, wish and retirement. The details of the regulations for the administration of public prosecutors are to be issued by the Council of Ministers yet. The duty to prepare a draft regulation that includes public prosecutors appointment, transfer, leave, service period, position, ethics, organization, structure, salary, benefits and similar matters is vested to a body called Federal Public Prosecutors Administration Council, which is established according to the proclamation, accountable to the Attorney General and its members working procedure are to be determined by a regulation to be issued by the Council of Ministers. Before the establishment of the Federal Attorney General, there was a regulation issued by the Council of Ministers for the administration of federal public prosecutors according to prior laws. Although the new proclamation has not made a specific reference to this regulation, it is provided that regulations, directives and manuals issued before the coming in to force of the new proclamation establishing the Federal Attorney General and relevant for the enforcement of the powers and duties of the public prosecution are applicable until replaced with new ones. Therefore, the existing regulation will continue to be in force being its substitution with a new enactment.
3.2. The Role, Powers and Functions of the Prosecution: Prosecution and Beyond The Federal Attorney General has general objectives of respecting and enforcing the constitution and the constitutional order; ensuring rule of law; enforcing criminal law; and enforcing civil interest of the Federal Government and the public. To achieve its objectives, it has been entrusted with extensive powers. The Federal Attorney General has the powers and duties to prepare criminal justice policy by coordinating relevant bodies and coordinate, follow up and ensure its implementation when adopted. It works as principal representative and legal advisor of the federal government. Its powers and duties range from issues related to prosecution in criminal matters and beyond. It has powers with respect to criminal matters, civil matters, legal research and drafting, and respect for human rights. With respect to criminal matters, it has, save the powers of the police regarding criminal investigation, the power to cause the investigation of crimes falling in the criminal jurisdiction of federal courts, to order the discontinuation and restart of discontinued criminal investigation. It also has the powers, enter alia, to review complete investigation files and decide “no case” according to the provisions of the criminal procedure code; to determine guilty plea, to conducts plea bargaining and alternative actions to be taken; and to institute criminal charges. With respect to civil matters, it represents the federal government and federal government agencies in civil litigations and gives decision for the settlement of disputes between federal government agencies in court or out of court in alternative dispute settlement mechanisms and follows the enforcement of such decision, and it represents the Ethiopian Government in international judicial and quasi-judicial bodies. An important power and duty of the Federal Attorney General in civil cases is that it has the power and duty to represent citizens who do not have financial capacity to institute civil actions in litigations especially women, children and the disabled, and victims of crimes who do not have financial means in litigations for compensation for damages emanating from such crimes. With respect to legal drafting the Federal Attorney General prepares drafts of laws to be promulgated by the federal government, undertake legal reform studies and ensures that international agreements to be signed or adopted by Ethiopia are consistent with the Constitution and other laws and are acceptable in view of Ethiopia’s national interest. And with respect to legal research and training, it undertakes legal researches for the implementation of its tasks; it establishes a system for the collection, organization, analysis and dissemination of information regarding the criminal justice system; and it provides continuous training and education for its public prosecutors. For human rights to be respected, the Federal Attorney General is required to design strategy for the provision of free legal aid, prepare national human rights action plan together with the concerned bodies and pay a visit to persons in custody and take measures against those found to have transgressed the law in violation of human rights. 3.3. Independence, Impartiality, Protection and Accountability of the Prosecution and Prosecutors The Federal Attorney General, as already said above, institutionally is accountable to the Prime Minister and Council of Ministers, and the Attorney General and Deputy Attorney General can be removed from their position by the Prime Minister. From this, one cannot safely say that the Federal Attorney General is institutionally sufficiently independent; it rather is within and under the control of the executive. Individual prosecutors, however, are professionally independent. It is provided that public prosecutors are free to decide based on law without interference. The independence of public prosecutors extends to their protection from any direct or indirect harm related to their prosecutorial works. And, the Federal Attorney General institutionally and public prosecutors individually are not liable for damages resulting from their acts in due performance of their duty. However, while these protections and rights given to public prosecutors are promising, there are no provisions for public prosecutors’ right to association and expression, and the silence of the law in this respect can be viewed as a limitation on public prosecutors’ rights. As to accountability, there is a system provided for by which the Federal Attorney General institutionally and the public prosecutors individually are to be held accountable. The Federal Attorney General institutionally is required to ensure that its works ensure public accountability and public participation. To this end it is required to prepare a public forum quarterly in which selected representatives of community organizations, business and charity organizations and associations, law schools of higher education institutions, individuals and other stakeholders participate. Though the criteria for the selection of forum participants are in the fogs, such public forums are expected to discuss plans, strategies and gaps in the performance of the Federal Attorney General to help it rectify its problems. Similarly, the professional independence of public prosecutors does not mean that public prosecutors are not accountable in their prosecutorial works. Public prosecutors are accountable to their superior and division heads and are also legally accountable for defects in their work performance and ethics. We have said above that internal administration of public prosecutors (issues including recruitment, promotion, education and training and termination of service) is to be determined based on a system set in advance. We understand from this that the law has provided the basics of how are public prosecutors to be held accountable for their work based on a pre-established system of law. This is expected to effectively rectify certain previous problems in the administration of public prosecutors by establishing a systemic balance between independence and accountability of public prosecutors. A big blow against professional independence and job security of public prosecutors previously was a directive issued by the Ethiopian Revenues and Customs Authority which entitles the Director General to summarily dismiss a public prosecutor whom he suspected of corruption and against whom he losses confidence without following any legal or disciplinary procedures. It was provided in the directive also that any public prosecutor dismissed in summary losses her/his job security and cannot be returned to his/her work by the order of any court. What can a counter argument be at this juncture is that so long as the regulations, directives and manuals issued prior to the establishment of the Federal Attorney General are applicable pending their substitution with new ones, as we have seen above, the problem of summary dismissal of public prosecutors is not rectified by the establishment of the Federal Attorney General with professional independence of public prosecutors. However, the proclamation has provided for the professional independence of public prosecutors and for disciplinary measures to be taken based on pre-established system, not on summary. It is also provided that any law which contravenes the proclamation is not applicable on matters covered by the new proclamation. Hence the problem of summary dismissal of public prosecutors cannot continue to be a threat against their professional autonomy. A concern still however against decisional independence of public prosecutors is the prosecution of military offences by prosecutors assigned from within the military personnel. As said above, the prosecution of military offences is given to persons to be assigned from within the military. This may be considered as a compromise against objectivity and independence of public prosecutors, and need reconsideration in the future.
3.4. Specialization Within the Prosecution
Service For the reason that technological developments and sophistication of life have created complex types of crimes, states are advised to create specialized units in the prosecution to concentrate on the investigation and prosecution of certain crimes. “Specialization of prosecution services may also involve concentrating particular types of cases in one prosecution office in order to ensure that prosecutors have physical protection and are free from external pressures.” The Federal Attorney General, having accepted the advantages of specialized public prosecution service, similarly has established specialized prosecution units. We have seen above that there are two Deputy Attorney Generals: the Litigation Affairs Deputy Attorney General and the Administrative and Legal Affairs Deputy Attorney General. Beneath the Litigation Affairs Deputy Attorney General, there are five directorates led by a director: the Civil Justice Administration Directorate which follows issues related to civil litigation; the Anti-Corruption Directorate which follows issues related to corruption crimes; the Economic Offences Directorate which follows issues related to economic offences such as tax evasion, contraband, customs fraud and the like; the Organized, Cross Boarder and Nationally Harmful Crimes Directorate which follows issues related to terrorism and money laundering; and the Miscellaneous Crimes Directorate assigned to follow other crimes not specially categorized such as homicide, bodily injury, traffic offences and the like. From this it is humanly to expect that the creation of special prosecution units within the prosecution will go parallel with the complexities of how corruption crimes, economic crimes, and cross boarder crimes are committed and will be a base for effectiveness in the combat against these crimes.
3.5. Future Implications With Respect to Prosecution
For the reason that it is only about a year after the establishment of the Federal Attorney General, it will be too early to judge its achievements and failures. However, the establishment of a comprehensive prosecution service can be viewed as a step forward to having a uniform, independent, strong, effective and efficient prosecution service. Having the Federal Attorney General as a unified prosecution department is expected to create uniformity not only in the enforcement of laws but also uniformity in the administration and treatment of public prosecutors which was not the case before its establishment. A prior discriminatory entitlement of benefits to public prosecutors explains the case more. While public prosecutors in the Ministry of Justice and the Federal Ethics and Anti-Corruption Commission were entitled to residential house and transport allowances pay role tax free for long, similar benefits were allowed for the public prosecutors in the Ethiopian Revenues and Customs Authority only since March 2015. After the Federal Attorney General was established and the public prosecutors were transferred from the Ethiopian Revenues and Customs Authority to Federal Attorney General, the Ethiopian Revenues and Customs Authority was audited by the Auditor General for the year 2014/2015 the result of which worsens the case more. As a result of such an audit the Auditor General was said to have recommended that the residential house and transport allowances to which the public prosecutors in the Ethiopian Revenues and Customs Authority were entitled were unduly made pay role tax free and so that the public prosecutors shall pay the amount of tax back. To this end, the finance department of the Ethiopian Revenues and Customs Authority wrote for each of former public prosecutors to pay the amount of tax which was claimed not paid since March 2015 – June 2016. Such an anomaly occurs due to the separation of the prosecution service in to various institutions, and the establishment of the Federal Attorney General rectifies such a discriminatory treatment between public prosecutors. The commitment to have a strong prosecution department is revealed by provisions in the law regarding duty to cooperate and criminal liability. Any person except in cases of beyond his/her capacity is required to cooperate with the works of the Federal Attorney General and public prosecutors. Similarly, members of the police are required to respect and enforce final and legal decisions given by public prosecutors. To enforce these provisions it is provided that any interference against the independent decision making of the Federal Attorney General and its public prosecutors, disobedience to decisions thereof and failure to cooperate are criminally punishable offences. These are meant to respect the independence, powers and functions of the public prosecution. And, these imply that a base has been built for the development of a comprehensive, independent, impartial and strong public prosecution office in the future. Concluding Remarks Prosecution in Ethiopia was the private task crime victims for long time. And, since the first public prosecution department was established during the reign of Emperor Haileslassie I in 1942, continuous changes have been made with respect to its organization and administration. After times of wavering between a centralized prosecution department at times and between separately specialized prosecution departments in another time, a comprehensive prosecution department – the Federal Attorney General has been established in the federal government in view of having uniform, effective and efficient prosecution service contributing for the sustainment of the rule of law, respect for human rights and public interest. While it is established accountable to the Prime Minister and Council of Ministers and so not safe to say it institutionally is immune of executive control, it is provided that public prosecutors individually are professionally independent to freely decide based on law without interference. The formal powers and duties given to the Federal Attorney General are so extensive. It has powers, enter alia, to decide regarding prosecution in criminal matters, to represent the Government and other needy citizens in civil litigations, to prepare draft laws to be promulgated by the federal government and make sure international agreements entered in to by Ethiopia protect the National Interest, and to train and educate its public prosecutors. With respect to accountability, the Federal Attorney General is required to work in a manner ensuring public accountability, and to this end it prepares quarterly public forums. And, while the Federal Attorney General institutionally and public prosecutors individually are immune of liability to damages caused due to their acts in due performance of their responsibility, it is provided that public prosecutors are legally accountable for defects in their work and ethics. Internal administration of public prosecutors – including issues related to recruitment, promotion, assignment, and disciplinary measures – is to be determined based on predetermined regulations in away balancing independence and accountability. To enforce the independence, powers and functions of the Federal Attorney General and public prosecutors, it is provided that everyone except in cases of beyond capacity is required to cooperate, and interferences against the independence of the prosecution, disobedience to legal decisions thereof and failure to cooperate are punishable offences. While the practicality of these all is to be seen in the future, the establishment of the Federal Attorney General with all its powers can be viewed as a foundation for having a comprehensive, strong and independent prosecution department.