Critical Policy Attentions
Recently, the Ethiopian Government under the leadership of Prime Minister Abiy Ahmed terminated high-profile corruption charges brought against Melaku Fenta and Gebrewahid Gebregziabher, former Director General and former Deputy Director General of the Law Enforcement Division at the Ethiopian Revenues and Customs Authority (ERCA) respectively. Prominent businessmen, such as Nega Gebreegziabher, owner of Netsa Trading PLC; Ketema Kebede, owner of KK PLC; and Fikru Maru (MD), founder and CEO of Addis Cardiac Hospital; and Simachew Kebede, major shareholder of DH Simex Plc which owns Intercontinental Addis Hotel were also charged with corruption-related offenses.The court found some of the business owners and former high level government officials guilty; while others were still undergoing the lengthy trial process. A few of the business owners were tried in absentia, while most have been detained since their arrests on May 10, 2013. Their arrests were attributed to the release of imported products without undergoing the proper customs procedures, tax evasion, import of goods through Franco Valuta, a prohibited method of importing goods in Ethiopia, in which no foreign exchange is payable from the importing country; and selling goods imported with duty-free privileges to third parties, among other charges.
Although the decision to terminate the charges and release these high profile personalities was meant to positively contribute to the reconciliatory efforts of the government, politicians and lawyers have mixed views. No matter what merited the government’s decision to release them, there are still reform issues to consider, to enhance the fight against corruption and reduce its impacts on the country and those who may have been unfairly prosecuted and tried without the right to bail.
Globally political commitment has always been mentioned as an important element in the fight against corruption. Accordingly, Ethiopia established the Federal Ethics and Anti-Corruption Commission in 2001. It promulgated and further revised the Anti-Corruption Special Procedure and Rules of Evidence Proclamation in 2004 and 2015. Though its impact on the corruption fight has never been tested, Ethiopia also enacted the Disclosure and Registration of Assets Proclamation in 2010.
Despite these measures, the content of the corruption law is still full of ambiguities as far as practical application is concerned. What’s worse, there are almost no policy research and case analyses that have been done to understand the problems of court decisions and the existing laws. In-depth studies of the contribution of the worsening lack of good governance to creating a breeding ground for corruption throughout the country haven’t been done. As a result, if the government wants to meaningfully intervene in the fight against corruption, it needs to reinvigorate public service delivery and institutional arrangements all the way from top federal level institutions down to the lowest state apparatus in the woreda.
If the government wants to fight corruption, then it really needs to invest in institutions and policy. There is a crucial need for making all the rules and regulations of service delivery clear to all stakeholders, government, citizens, business, civil society groups, and media. There is also a substantial need to invest in technologies to help ensure efficiency and transparency in the bureaucracy. That should be accompanied by a meritocratic system of human resource placement in the bureaucracy; along with improved salary and benefit packages to attract and retain competent people in the bureaucracy.
Now, because of the absence of clear rules and regulations, as well as vague and in most cases outdated job descriptions for authorities and even technical posts, professionals in the bureaucracy are being prosecuted for corruption for having done their jobs as per legitimate hierarchical instructions and the standard practices of their profession.
The lack of clarity of purpose and content in many directives including those aimed at improving public service delivery, the presence of contradictory directives in some cases, and vague and unregulated procedures in many government offices expose business owners and citizens to corruption related crimes without the business owners and citizens actually being involved in the crimes in a clear way. For these legal and institutional problems, officials and authorities are required, in practice, to deal with multifaceted roles that the law doesn’t cover and properly address. This increases the risks of engaging in practices that are later interpreted as corruption-related crimes.
The other problem is the policy statement that officials make. Before actual investigation starts on corruption suspects, especially on high profile personalities like the ones released recently, it’s common to see government officials, including the Prime Minister, make policy statements in public about the government’s focus on fighting corruption. This serves as a ‘confirmation’ and affects the entire due process of law, starting from the detention of the suspects to the final decision after trial. While suspects are considered innocent until proven guilty as a constitutional right, government officials in several cases refer to them corrupt. What’s more, the media reports the issue without even waiting for the suspects’ first appearance in the court, in the public view, the case is concluded.
Categorically labeling suspects as corrupt and subsequent media reporting without understanding the complexity of the issue has made the trial of such charges complicated. The policy statements by government officials especially affects the psychology of judges and prosecutors and influences the way they actually engage in scrutinizing the cases without bias and prejudice. In Ethiopia, once suspects are labeled as corrupt by the higher officials, judges may fear to look into the matter fully. That’s why it’s difficult to find verdicts that contradict the policy statements of government officials on corruption cases and the conviction rate for corruption charges is higher by far than other crime categories.
The absence of evidence law is the other critical problem in the prosecution and trial of corruption and tax crime cases. Expert evidence such as audit report is one of the key pieces of evidence submitted by the prosecutor against business owners. A lack of an evidence law regulating the standards of the audit report, its content and format, the professional level of auditors who should prepare the report to be submitted as evidence, the right of the business owners to defend the audit findings before submission against them, the admissibility of the audit finding and other related issues expose business owners to criminal liabilities.
Another key problem is the lack of statutory limits for trial period in the criminal justice system. Even though taking time on cases has some merits, being under detention and trial for several years is what best characterizes the decay of Ethiopia’s criminal justice system. Being in prison and litigating for years surely devastates the detainees’ businesses. After years of imprisonment, even if the court finally finds some corruption suspects not guilty or they are released because their charges are terminated, the damage to their businesses could be huge; they may lose key employees, suppliers, customers, business partners and, more than anything, their goodwill and reputation built over years. That’s why the right to bail issue and standardized damage and benefit assessment methodology should be a concern during policy revision.
Presenting exaggerated amounts of money as being what the government has lost or the suspect has reaped from ‘faulty activities’ is one of the critical problems in the prosecution of corruption and tax crime charges. The exaggerated figures have a direct impact for judges to grant suspects bail.
Fighting corruption requires a lot more than prosecuting suspects. It requires investing in institutions, technologies and policy reforms to properly address the gaps and the problems in the laws and their application.
6th Year . June 16 2018 . No.62