—Kenaw Tesfaye Akililu, Candidate for Master of Advanced Studies in Transitional Justice, Human Rights and Rule of Law, Geneva Academy of International Humanitarian Law and Human Rights; former law lecturer at Bahir Dar University
Introduction
In April 2024, the Council of Ministers of Ethiopia adopted a national transitional justice policy to deal with past gross and massive human rights violations based on the recommendation of the Transitional Justice Working Group of Experts (TJWGE), established in November 2022 under the Ministry of Justice to conduct public consultations across the country on transitional justice options for Ethiopia. The recommendations were drawn from public 80 consultations and 216 Focus Group Discussions (FGDs), involving 4,260 participants, at least half of whom were victims and featuring a good proportion of diverse groups, including CSO representatives, traditional leaders, and vulnerable groups. The outcome regarding adjudication avenues for gross international human rights and humanitarian law violations was as follows: 150 groups (69.44%) chose the option of creating a new “special court”, 45 groups (20.83%) opted for the establishment of “special benches” within the existing courts, while the remaining 21 groups (9.68%) preferred hybrid or international justice mechanisms.
Based on this outcome, one of the recommendations of the TJWGE was establishing a “special court” outside the regular courts to adjudicate gross human rights violations by the worst perpetrators since 1995. The Transitional Justice policy, however, rejected the idea of the establishment of a “special court” and instead proposed the establishment of a “special bench” within the existing Federal High Court (FHC) and Federal Supreme Court (FSC), which constitute second and third tiers of the federal judiciary, respectively, with first-instance jurisdiction vested in the Federal First Instance Court (FFIC). Concerns may arise as the idea of establishing special benches was supported by only 20.83% in the official public consultation. One of the main justifications for deviation from the overwhelming public opinion, as insisted by the FSC leadership and judges, is that creating a new special court would be unconstitutional, as a special or ad hoc court may be prohibited by Article 78 (4) of the federal constitution of Ethiopia.
This post interrogates this line of reasoning based on legal analysis and the nature of transitional justice. It is argued that the constitutional objection is legally unfounded and ill-suited to the exceptional context of transitional justice.
Does the Constitution prohibit a Duly Established “Special Court”?
Article 78 (4) of the constitution of Ethiopia, which purportedly prohibits the establishment of special courts provides:
Special or ad hoc courts which take judicial powers away from the regular courts or institutions legally empowered to exercise judicial functions and which do not follow legally prescribed procedures shall not be established.
Some may argue, as the FSC does, that a “special court” for transitional criminal justice would be clearly unconstitutional as apparently prohibited in this provision. Well-accepted methods of interpretation of legal provisions in the Ethiopian legal system, however, do not lead to a conclusion that a blanket ban on any special courts under this provision. First, from the “textual” means of interpretation, the phrases in the article “legally empowered” and “do not follow legally prescribed procedures” signify that there is room for the creation of new courts if necessary. The term “legally” seems intentionally chosen instead of “constitutionally” to give discretion to the lawmaker to establish new courts other than the constitutionally known courts. What matters the most, according to this provision, is whether the special and ad hoc courts are established under the law and operated under the legally established procedures. Therefore, according to the textual interpretation of Article 78 (4), the establishment of a new special court would not be unconstitutional provided it is established under law and operates using legally acknowledged procedures. This line of argument is strengthened by the next provision, Article 78(5), which permits the establishment of customary and religious courts outside the constitutionally acknowledged regular courts. This paragraph appears to illustrate exceptions to the apparent ban on courts other than the constitutionally acknowledged courts. Tadesse Metekia, a scholar in international criminal law, has indicated the tenability of this argument, insisting “Article 78(4) of the Constitution is not a blanket ban on special courts.”
Even the “special benches” envisaged under the policy and draft establishment law could be unconstitutional based on the same logic that is assumed to preclude special courts. As the special benches will be autonomous and will have their own administration, human resource management, when the regular courts will have no control other than serving as a host. Unlike the regular benches, the proposed benches would not come under the authority or administration of either the FSC or the Federal Judicial Administration Council, which is responsible for the administration of the regular benches. Those benches are intended to be de facto special courts, though logistically and physically dependent on the existing court structure. This inconsistency could thus cast doubt on the sincerity of the constitutional objection.
Secondly, a contextual understanding of Article 78(4) would also lead to a consistent conclusion. The travaux préparatoires of the Ethiopian constitution reveal that the antecedent of Article 78 (4) is related to the widespread use of “special courts” by the Derg regime before 1991. Those special courts were sometimes named as “revolutionary” and “military” and were established outside the regular courts in a widespread manner without a clear law, did not respect due process rights and legally established procedures, and in some instances, judges were anonymous. They were instrumentalized for summary trials, secret proceedings, and severe punishments in the name of fighting counterrevolutionaries. Article 78(4) was thus a reaction to the continuation of such practices, rather than intended to preclude publicly supported, legally established, and duly operating special benches assigned to execute an exceptional national project (TJ) and able to follow fair trial standards. Tadesse appears to agree, arguing “Article 78(4) of the Constitution is a ban on the likes of those [special courts] established during the Dergue regime, that usurp the jurisdiction of regular courts and settled disputes.” Additionally, eight well-known human rights CSOs countered the argument against establishment of a special courts for Transitional Justice purposes, reasoning that “The rationale for prohibiting special courts under the Constitution stems from the experience during the Derg military regime, when citizens’ lives were taken and many were subjected to years of imprisonment and torture by so-called “special courts” that were not established by law, did not follow lawful judicial procedures, and whose judges’ identities were unknown.”
Thirdly, purposive explanations also drive us to the conclusion that the perceived ban on special courts is not absolute. The purpose of any constitution and policy, in a democratic order, as is also reflected in the preamble and some provisions of the Constitution of Ethiopia, is to serve the will of the people. A stance contradicting the will of the people in the name of the constitutional text would be paradoxical, bureaucratic and may lack sincerity. According to the spirit of the Ethiopian Constitution evident in the preamble and article 8 and 39, the people are its anchor, and their will and interests should drive decision-making and policy. Additionally, establishing several benches at the FHC, at FSC (for appeal and cassation), and additional benches in regions depending on the situation, while the host courts remain poor, could be an uneconomical and unwise decision. Establishing a single special court which has both first instance and appeal chambers would be more economical. Both teleological means of interpretation of Article 78 (4) are also acceptable to Tadesse, who insisted “the constitution supports policies based on public opinion and that a special court would be more economical and practical than establishing multiple special benches.”
Can’t Transitional Justice Legitimately Operate Beyond Ordinary Constitutional Constraints?
Those who oppose institutions other than regular courts on the ground of constitutionality also do not seem to appreciate that Transitional Justice, including the criminal justice aspect, can be conceived beyond the orbit of the constitution. Such Transitional Justice is an extraordinary project that aims to transform society from a situation of violence and division to a stable order that the preexisting order, including the constitutions, failed to achieve or was responsible for. In fact, a constitution that either facilitates or is unable to prevent deadly conflicts like that which took place in northern Ethiopia and keeps the society harmonious may not be a justification for diversion from the avenue of justice the public and victims prefer.
Those who argue against the establishment of a “special court” instead of “special benches” for constitutional reasons also seem to miss both the comprehensiveness of Transitional Justice and the integrated nature of Transitional Justice and other vital national projects, such as the ongoing national dialogue. As far as it is unable to prevent violence or enable it, the constitution could also be a subject of legal reform as part of Guarantees of Non-Recurrence (GNR), one of the pillars of TJ. In this regard, Pablo de Greiff has insisted that “the removal from constitutions and other laws or by-laws of any provisions that may fuel discrimination, a well-known source of social strife, is likely to contribute to the prevention of violations.” Many countries in transitional justice contexts, such as South Africa, Colombia, and Burundi, introduced constitutional reforms during their transitions either to address the structural causes of past conflicts, strengthen guarantees of non-recurrence, or avoid constitutional barriers for special Transitional Justice mechanisms, such as creating a special court.
The current Ethiopian constitution, which introduces ethnic federalism, has been criticized for promoting inter-ethnic mistrust, conflict and violence, undermining minority rights and national unity, although it is also praised partially for the inclusion of self-determination rights for ethnic groups known as Nations, Nationalities, and Peoples. This has been reflected on several occasions. Participants (representatives of victims and affected communities) from some regions in the 2023 regional consultations conducted jointly by the UN Office of the High Commissioner for Human Rights and the Ethiopian Human Rights Commission demanded constitutional reform as part of GNR, while the TJWGE’s green paper does not include legal reform as part of GNR, so that participants may comment. Many participants from the Amhara region proposed the review of provisions of the Ethiopian Constitution that perpetuate ethnic federalism. Participants from Dire Dawa city also perceived the Constitution as having produced “an ethnic-based quota system of assuming political power and obtaining employment opportunities,” which they think caused ethnic polarization and violence. Participants from Harari were also of the view that reconsideration of the Constitution could strengthen “unity, diversity, and equality.”
Government and state institutions, furthermore, are leading national projects parallel to the Transitional Justice project that may culminate in constitutional reform. For example, a comprehensive study by a government-appointed think-tank, the Policy Study Institute (PSI), revealed that virtually all participants representing all regions agree on the need for constitutional change, though for different reasons. The aim of resolving “the most fundamental national issues” in the national dialogue initiated by the government through the Ethiopian National Dialogue Commission (ENDC) necessarily requires constitutional reform.
Therefore, while there is a need and practical initiatives to change the Ethiopian Constitution under the ongoing national Transitional Justice and dialogue frameworks, refusing to accept the avenue of adjudication preferred by victims and the public—the very centers of the process—in the name of the FDRE constitution, is seriously flawed. If concerns exist about the permissibility of a public-supported “special court” under the Constitution, the right response could be seizing these constitutional reform projects to change Article 78(4), not deviating from the public opinion, which is everything for the legitimacy and success of a Transitional Justice process. Lessons could be drawn from Colombia, where the Constitution was temporarily amended to avoid constitutional limits on special Transitional Justice measures, such as amnesty and reduced punishment for human rights violations.
Conclusion
Ethiopia has adopted a Transitional Justice policy on April 17, 2024, that proposes the establishment of new institutions assigned with the implementation of Transitional Justice and promised to prosecute and punish gross violations since 1995. However, it remains difficult to justify why the government chooses not to allow the establishment of a “special court”, preferred by the public and victims, and experts, including the government-established TJWGE, and instead proposes special benches under the existing courts’ structure. The FSC’s constitutional objection apparently influenced the decision. This post has argued that institutions outside the regular courts are not totally precluded by the constitution if they serve the legitimate interests of the people. Even if the constitution prohibits such courts, amending or reinterpreting, other than opting to sideline the public will in the name of it, would be an imperative.
Suggested citation: Kenaw Tesfaye Akililu, A Special Court or Special Benches? Constitutional Limits in Ethiopia’s Transitional Justice Process, Int’l J. Const. L. Blog, Mar. 25, 2026, at: http://www.iconnectblog.com/a-special-court-or-special-benches-constitutional-limits-in-ethiopias-transitional-justice-process/