How to Rescue the Legitimacy of Ethiopia’s Transitional Justice Program

[Temelso Gashaw is a human rights lawyer who has previously served as a senior human rights officer at the Ethiopian Human Rights Commission (EHRC)]

Ethiopia, an East African nation marked by tumultuous history of violent conflict, is currently at a critical juncture in its attempt to embark on a journey of confronting its violent past, ending ongoing injustices, and fostering reconciliation through a multi-prong transitional justice (TJ) process. Despite notable progress in the drafting of enabling legal frameworks and establishing of necessary institutional structures to set the wheels of a holistic justice package in motion, lack of legitimacy and credibility resulting from an acute deficit of public trust and confidence towards the process remains a pivotal concern. 

It goes without saying that procedural and substantive issues relating to inclusiveness, objectivity, independence and broad public ownership are among the main factors that determine the success of any transitional justice initiative. Such ambitious undertakings are more likely to be effective and impactful if they come out of the local impulse and if, besides relevant civic and political actors, the community at large buys into the process. In the case of the Ethiopian TJ process, however, a wide range of stakeholders including Opposition Political Parties, Organized Armed groups, Civil Society Organizations and the diaspora community are not playing their much-needed constructive roles due to a variety of reasons. This article highlights a non-exhaustive set of prevailing factors attributing to such severely limited involvement of relevant actors along with its repercussions on the legitimacy of the ongoing transitional justice process.

Major Milestones in the Development of the Current TJ Process of Ethiopia 

One of the 62 recommendations forwarded by the Joint Investigation Team (JIT) Report of the Ethiopian Human Rights Commission (EHRC) and the Office of the High Commissioner for Human Rights (OHCHR) was for the Ethiopian Government to “ensure that the country embarks on a human rights-compliant, holistic, and victim-centred transitional justice mechanism”. Furthermore, “providing a framework to ensure accountability for matters arising out of the Northern conflict was one of the main objectives of the African Union (AU) brokered peace agreement signed between the Federal Democratic Republic of Ethiopia and the Tigray People’s Liberation Front (TPLF) on 2 November 2022. More importantly, the deal calls for an inclusive and comprehensive national transitional justice policy to be developed with input from all stakeholders and civil society groups through public consultations and formal national policymaking processes.

Though the enthusiasm for ensuring lasting peace using TJ began to temper in the aftermath of the conflict in the northern part of the country, it would be a mistake to see the imperatives of this national initiative only through the prism of that conflict and the subsequent peace agreement. Many, particularly, in the international community tend to think that the primary subject of the current TJ process is or ought to be atrocities committed in the context of the Tigray conflict. However, while it is commendable to strongly advocate for violations that occurred in the northern conflict to be addressed properly, it is also important not to lose sight of the fact that the underlying problems that necessitated TJ to Ethiopia goes beyond the recent conflicts. Hence, narrowing the program’s focus runs the risk of obscuring broader concerns of embedded political impunity elsewhere in the country. It is thus only instructive for external interlocutors to understand that a sound intervention strategy cannot simply afford to gloss over such complex dynamics inherent in a heterogeneous country grappling with legacies of widespread violations and multiple political grievances for long periods of time.

As part of its implementation effort, the Ministry of Justice (MoJ) set up a Transitional Justice Technical Working Group of Experts in November 2022. The Working Group then developed “a green paper” comprising different Policy Options for Transitional Justice in Ethiopia.  After a series of consultations with diverse stakeholders, the working group released its 270-page report comprised of different policy recommendations. Following very limited and hurriedly conducted validation workshops, the MoJ tabled a draft TJ policy for the council of ministers to be adopted.   In April 2024, the Ethiopian government adopted its long-awaited National Transitional Justice policy which marks a significant breakthrough in the country’s journey towards justice, healing and reconciliation.  Following the adoption of the policy, the MoJ prepared an implementation roadmap to advance the process further. Currently, legal and institutional frameworks envisaged in the policy are being set up and debated.

Legitimacy and Credibility of the Process

It should be noted from the outset that for anyone with even a minimal understanding of Ethiopia’s socio-political history, as well as its current human rights and security challenges, the necessity of implementing a genuine and victim-centered TJ program is a complete no-brainer. While there may be some debate regarding the timing and the presence of necessary preconditions, there has never been any serious question about the need for Ethiopia to confront its violent past and address ongoing atrocities that continue to leave profound scars on its society. The question that arises is, if pursuing TJ is a logical and necessary step in the right direction for Ethiopia, why are all relevant stakeholders not meaningfully and proactively engaging in the process? Despite the notable progress outlined earlier, why does the ongoing transitional justice initiative suffer from a significant lack of public legitimacy and credibility?

Ongoing Armed Conflicts and Fragility of the State

While the government is attempting to implement peace-building initiatives such as national dialogue and transitional justice, armed conflicts continue to flare up in different parts of the country with no sign of abating. These ongoing conflicts can have two significant implications for the country’s ongoing TJ process.   First, from a procedural standpoint, people living in conflict-affected regions are under the control of armed groups and therefore are excluded from meaningful consultative processes.  These conflicts have made it practically impossible to ensure meaningful, dignified and effective participation from which to draw people-oriented, empirically grounded, and socially inclusive TJ measures.  As the renowned historian Michail Ignatieff underscored, “The truth, if it is to be believed, must be authored by those who suffered its consequences”. Unfortunately, that has not been the case for the majority of victims and survivors in Ethiopia as efforts to involve those living in conflict-affected areas don’t seem to go beyond ‘tokenized’ invitations to limited discussions.  Second, from a political standpoint, the ongoing conflicts and the government’s confounding reluctance to resolve them through a peaceful settlement makes patently clear that there is no genuine political commitment to what the TJ process has been set to achieve. One cannot help but ask; what chapter of atrocities and crimes does this transitional justice process close while violent conflicts that incubate similar atrocity crimes are ongoing?

Democratic Backsliding

The other major factor that contributed to the erosion of public legitimacy on the current TJ initiative is the country’s steady democratic backsliding. Observers need not look far to recognize that the progress achieved during the 2018 reform era has been undermined by sweeping government actions targeting critical institutions. Since November 14, 2024, the Ethiopian Authority for Civil Society Organization, a government body that oversees civil society groups has suspended four major independent human rights organizations. It is also to be remembered that the same Authority announced the closure of 1504 civil society organizations citing non-compliance with annual reporting requirements. On the media front, the government introduced a draft amendment to Media Proclamation No. 1238-2021, currently under review by the Standing Committee on Democracy Affairs. The proposed changes would place the Media Authority under the direct control of the Prime Minister’s Office, removing key safeguards such as parliamentary oversight in appointing the Director General of the Authority. It also eliminates transparency requirements for nominating board members and safeguards related to political independence. At the same time, it grants significant powers, including licensing and disciplinary actions, directly to the Authority. Those drastic measures are leading to the elimination of any credible oversight mechanisms to the ongoing TJ process. And an initiative that is not routinely monitored and scrutinized by independent institutions such as civil society organizations and the free press can hardly earn legitimacy and credibility. 

The Public Perception of Government’s ‘Lip Service’

“Peace”, as the Secretary-General of the United Nations wrote in 2004, “cannot be achieved unless the population is confident that redress for grievances can be obtained through legitimate structures for fair administration of justice”. Viewed in that light, it is clear that the Ethiopian government has not been able to build strong public trust in the ongoing TJ process. For many stakeholders including opposition political parties, rather than a genuine interest to help bring conflict or repression to an end, the very beginning of this initiative was occasioned by a political expediency of the governments in power.  They view proactive engagement in the ongoing TJ process therefore as nothing but a meaningless endeavour which may afford undeserved credibility to an initiative that will ultimately serve to advance the government’s wicked political agenda. As the incumbent retains a privileged position, they argue, its claims are more likely to be heard and subsequently acted upon in favourable terms. Hence, for them, to assume a concrete result out of such an ill-construed process would, as the Amharic proverb goes, be like expecting honey from a housefly. Not surprisingly, underpinning their profound sense of scepticism over the ongoing TJ process is mainly the fear of political patronage by the incumbent. Their deliberate detachment from the process, thus, strikes as a political statement against what they perceive to be the government’s attempt to entrench the status quo. Other human rights experts labelled the process as quasi-compliance, arguing that it is initiated to evade international scrutiny through the creation of domestic mechanisms ostensibly to “fight impunity”. 

What Can be Done 

Insofar as TJ seeks to examine the conduct of powerful actors and to construct visions of the future, it is an inescapably political project. And as a political undertaking aimed at catalyzing transitions in constrained circumstances, it is only natural and understandable if the authenticity of the government’s commitment towards justice is being questioned. But the danger is colossal when such doubts grow into something that can crumble public confidence over the whole process. Besides provoking strong resistance and disengagement, such rapidly increasing mistrust can deepen the legitimacy gap. The good news is that legitimacy is a dynamic concept. Assumptions and perceptions change over time. Hence, if concerns which had led to the deficiency of legitimacy are taken seriously and addressed properly, it can be repaired and reconstructed retroactively without necessarily nullifying previous positive progresses. However, a failure to sufficiently acknowledge and engage with these concerns will further complicate the prospects of successful transitional justice in Ethiopia and may hamper the exploration of other viable alternatives. 

• TJ cannot thrive when it is implemented in a context of ongoing armed conflict and rampant authoritarian practices. Nor can it prosper without a solid break with infrastructures of impunity that breads more human rights abuses.  If the Ethiopian TJ process has to win the public trust, the government must first renew/reassert its political commitment by not only ending ongoing armed conflicts but also by widening the country’s civic and political space. Being true manifestations of and assurances for the government’s genuine commitment, such measures are more likely to represent an incentive for broader engagement and thereby can garner more participation.
• Although managing inclusive processes is procedurally more complex and resource intensive, it is important to address underlying reasons of mistrust and involve as many stakeholders as possible in the discursive processes. Because it adds to the sense of ownership when relevant stakeholders feel that they have contributed to the deliberations and outcomes.
• The notion that sees the legality of a sovereign state power as the sole basis of legitimacy which seems to animate the Ethiopian Government’s current approach towards its TJ process needs to be reconsidered in a way that gives careful consideration to other socio-political sources of legitimacy.   
• The need to adopt a more introspective approach. Apart from casting a shadow over the whole process, the problem invariably associated with mistrust driven resistance towards the Ethiopian transitional justice process is that it will pave the way for those who rejected it not to be abide by the outcomes of the process. Such an eventuality may ultimately stifle any potential positive results for victims of atrocities that, however minimal, could emerge out of the process. Thus, actors who decided to boycott the process need to ask themselves some critical questions and calculate the net gains of their disengagement strategy.   Which course of actions can better serve the cause of justice, peace and reconciliation in Ethiopia?  To boycott the ongoing TJ process, and repudiate its outcomes? OR to make principled compromises, capitalize on the existing momentum and optimize the available window of opportunity for the most vulnerable even if the likelihood of complete success appears to be slim? Most importantly, rather than short-sighted raw politics, the choice from those options has to be dictated by the process’s potential, if it has any, to bring about enduring advantage for victims and survivors.