The Proper Role of National Human Rights Institutions in Transitional Justice Processes: the case of the Ethiopian Human Rights Commission 

–Temelso Gashaw, Inter-Party Dialogue Coordination Expert at the National Election Board of Ethiopia 

Recently, Dr. Abadir M. Ibrahim published a thought-provoking article titled “The Ethiopian Human Rights Commission: A Champion of Transitional Justice?” on Harvard Human Rights Reflections.  This blog post aims to defend fairly broad objections to Dr. Abadir’s article.  It attempts to take arguments opened up in the principal article and sketch out an alternative picture of the Ethiopian Human Rights Commission (“EHRC”, “the Commission”), one that will lead readers to question if, in making such sweeping criticisms, Dr. Abadir has evaluated the commission’s performance against what is feasible in the current context of Ethiopia. While recognizing the importance of critical discourses on the limitations of National Human Rights Institutions (NHRIs), this post will also try to remind us of the problems inextricably linked to hyper-criticisms towards an institution that operates in an environment riven by ethnic tension with inadequate consideration of the dangers that this could pose to domestic human rights workers. In so doing, the author’s ultimate hope is not, perfectly possible though that might be, to respond to each and every allegation made against the EHRC. Rather, it is to add depth and context on some of the issues raised in the principal article and ascertain the fact that, if we are to chart a positive course for the future of the EHRC, what we need is neither a supportive platitude not a decontextualized criticism. 

Why a response?

Whether to respond to someone’s article is a mixed bag, especially for a human rights practitioner like myself. All too often, human rights practitioners tend to be quiescent about criticism on their work—be it founded or unfounded—and attach little value to any attempts to defend the institutions they work for. This is partly because of the belief that the practice of human rights institutions and their employees should not be above criticism or scrutiny and they need to be held to the standards they themselves promote. And getting more defensive may run counter to the idea of cultivating a healthy, self-critical and constructive trend. Their reluctance to speak up against critiques could also derive from the concerns that such an endeavour would draw them away from something else more important related to their work. While these apprehensions are compelling enough for practitioners’ infrequent engagement, sometimes it is essential for them to defend their works and institutions against decontextualized hypercriticisms that would pose risks of being played into the hands of anti-right actors including the government and could thereby swing the pendulum too far in the wrong direction.  

The main thesis of Dr. Abadir’s article 

Dr. Abadir’s central argument is that “rather than being committed to a genuine process of addressing gross human rights violations, the Ethiopian government will employ transitional justice (TJ) as a veneer to quell international pressure and domestic demands for accountability.” He claims that “EHRC has aligned itself with the government’s campaign of quasi-compliance. And while some are hoping that EHRC would prove to be the local champion of justice, this hope is unrealistic because of the commission’s lack of credibility and neutrality.”

At its best, his article asks us to ponder the proper role of NHRIs in the designing and implementation process of TJ policies and programs. It clearly forces us to ask important questions about the EHRC and this questioning can be part of the effort to build a more independent, credible and efficient human rights institution that strives, among others, to hold the line by continuously monitoring actions of the government. At worst, some of his criticisms are unfounded and grounded in an outdated understanding of legal concepts. Some others are misleading not only because they fail to reflect the country’s complex social-political and security contexts in which the EHRC is bound to operate, but also because they overlook many significant positive advances achieved by the commission which ultimately earned it an “A” status accreditation from Global Alliance of NHRIs. But broadly speaking, Dr. Abadir’s article can be viewed as yet another crudest reflection of the polarized intellectual discourse we have nurtured which is mostly coincided with political impotence and despair.

Arguments Built upon a Defective Foundation

Dr. Abadir’s main criticisms against the EHRC appear to rely on an assumption that “the Commission would prove to be the local champion of justice that will hold the government accountable”. The problem with that premise is that the commission has never claimed, publicly or otherwise, to be the local champion of justice as it is not legally vested with any judicial or quasi-judicial power. Hence, the conclusions drawn by Dr. Abadir are established upon an inherently flawed foundation. It is conventionally understood that the EHRC may be well positioned only to provide support, monitor and follow up the country’s transitional justice program and ensure that both the designing and implementation processes of such policy are genuine, victim-centred, participatory, contextualized, and human rights compliant. This does not, however, mean that it will lead the entire TJ program including holding perpetrators of grave human rights violations to account. There has not been a time where the commission postulated to have a role that is beyond what an NHRI would commonly play in a TJ process. 

The Notion of Timing for Transitional Justice Policy Development

With the commencement of regional consultations on transitional justice policy options for Ethiopia (the green paper), TJ has continued to be one of the major policy agendas in the country. And yet, as the ongoing discourses clearly demonstrate, this initiative is being met with mixed reactions of either deep skepticism or profound hope from various stakeholders. Whereas the need for designing and implementing a comprehensive TJ policy for Ethiopia appears not to be in question, there are considerable concerns over, among others, the timing and presence of favourable circumstances that are essential for meaningfully embarking on such a momentous undertaking. Pointing to the absence of any political transition and prevailing security conditions, scholars such as Dr. Abadir question if now is the right time for Ethiopia to pursue TJ. A resolution of this question requires an understanding of the fact that TJ is an evolving concept. In the late 1980s and early 1990s, it was mostly implemented in countries transitioning from authoritarian to a more democratic government. Later, it began to be prescribed to countries emerging from violent conflicts. Contemporarily, TJ has emancipated from the bonds of the paradigmatic transition and increasing consensus has arisen at the level of practice, policy, and theory that it is an effective peace-building tool. In view of that, Dr. Abadr’s temporal conception of TJ tends to hail from the 1980s and 1990s. Because in its current understanding, neither the presence of political transition nor the absence of violent conflicts is a prerequisite, anymore, to commence the process of formulating an effective TJ Policy. Regardless of whether conflicts have ended or political will for societal transformation still exists, a policy process opens opportunities to establish a foundation for transitional justice. There may not be a “right time” to start policy development. It is equally true, however, that there has never been a wrong time and if we failed to try, we would never know. 

Relatedly, Dr. Abadir is one of the main critics of the green paper which has been prepared solely to serve as a baseline for public deliberations and to solicit inputs from different stakeholders through a comprehensive national consultation. In addition to adopting a more descriptive rather than prescriptive approach, it is important to note that nowhere in the document has it been indicated that the list of various TJ policy options presented are non-exhaustive. Nevertheless, in Dr. Abadir’s word, the green paper is nothing more than “a sign of insincerity” or, worse yet, “a prescription for failure” to Ethiopia’s TJ initiative. Of course, there are criticisms to be made about the green paper since it is not free of limitations. However, such limitations do not, in my view, justify a notion like “fait accompli” for the entire process. Given the availability of sufficient space to shape the course of the policy and considering that this initial document has not even become a draft policy yet, the conclusion of its failure seems palpably premature. A less nihilistic approach would perhaps make the Green Paper more likely to succeed in advancing human rights in Ethiopia and may not subvert the TJ related political process.  

Surely, Dr. Abadir is to be thanked for pointing out the green paper’s blind spots, particularly, with regards to presenting available international judicial options that the victims of gross human rights violations are free to explore. On the other hand, his concern over the Green Paper’s hyper-nationalist pronouncements seems to be blown a bit out of proportion. A plausible case could be made against such concerns by referring to the principle of national ownership of TJ process which has been given such a curtail place both in the African Union Transitional Justice Policy (AUTJP) and the Guidance note of the United Nations. It is undoubtedly correct that we might indeed face difficulties while implementing the policy, especially because TJ mechanisms are deeply political processes whose successes or failures largely depend on the prevailing and evolving political dynamics. Yet, again, the question that arises is, why the challenges that we may face in the future should hold us back from crafting a sound policy framework at present?   

The broader implication of tarnishing EHRC’s credibility 

Needless to say, critical discourses on the limitations of National Human Rights Institutions can have substantial contributions to institutional enhancement. However, such discourses would become limited in their utility to bring meaningful changes when they are done by interpreting the works of the institution in a manner favourable to one’s political ideology or if they fail to be realistic about what it can be expected to achieve.   Generally, what is implicit in Dr. Abadir’s argument is a sentiment that, no matter how it is internally structured to ensure a democratic and transparent decision-making process or no matter how it is comprised of dedicated professionals with diverse cultural, religious, political and educational backgrounds, the commission stands merely on the shoulder of one individual whose private political agenda dictate the results human rights investigations. Taken too far in a contextual vacuum, portrayal of this kind can have far-reaching repercussions. It may pose a formidable threat to human rights defenders, raise frightening possibility of being used by the government to discredit EHRC’s work and throttle expression of legitimate human rights concerns. The problematization of the “political process” as one involving an institutional failure to ensure “accountability” is hugely shortsighted. And an institution hobbled by hyper-criticisms, will not only be tested to build and maintain its popular legitimacy which has foundational significance in promoting and protecting human rights, but it would also be inhibited from proactively engaging in conflict-related issues.

 Suggested citation:  Temelso Gashaw, The Proper Role of National Human Rights Institutions in Transitional Justice Processes: the case of the Ethiopian Human Rights Commission, Int’l J. Const. L. Blog, Nov. 25, 2023, at: https://www.iconnectblog.com/the-proper-role-of-national-human-rights-institutions-in-transitional-justice-processes-the-case-of-the-ethiopian-human-rights-commission/