The Eritrean judiciary is largely based on the structure of the local government, with Community Courts at the bottom of the judicial hierarchy. Above the Community Courts are the Regional/Zonal Courts, with the High Court representing the last appellate court in Eritrea. Much of the 1997 Constitution that could have applied to the Judiciary, has not been implemented. This includes Article 49 of the Constitution which called for the establishment of a Supreme Court and a Judicial Service Commission (JSC), neither of which has happened. The President is also suppose to consult the JSC before removing a judge; where as today, the Executive is currently appointing and dismissing judges at his own discretion (Globalex; Eritrean Constitution; Freedom House).
The failure of the Eritrean Government to successfully implement the Constitution of 1997 has had a devastating impact on the entire judicial system. Not only has the government failed to create a Supreme Court and Judicial Service Commission (JSC), as specified by the Constitution, but they have instead created a separate and autonomous court known as the Eritrean Special Court (Eritrean Constitution; NYU Globalex).
The Eritrean Special Court was established in 1996 in order to allow the President to target and try officials from the Red Sea Trading Company with corruption, extortion and embezzlement. The government believed that such offenses were drastically increasing and that the regular courts were being far too lenient in dealing with them. The Special Courts specifically targeted individuals charged with these crimes, providing the Executive with complete authority and zero accountability. Special Court officials do not operate according to any particular rule of law, but rather according to their own conscience beliefs or as a result of an executive order (Ethiopian Journal).
Despite the fact that the Special Courts were established to deal specifically with issues of government corruption, they have been drastically expanded to deal with a variety of governmental and political cases; not to mention the fact that the Special Courts may review any cases heard by the Regular and Customary Courts. The ability of the Supreme Court to re-try cases previously heard in either Regular or Customary courts is a prime example of government sanctioned double-jeopardy. The President has the authority to unilaterally decide which cases are tried by the Special Courts. In 1999 the Eritrean Attorney General guaranteed that the Special Courts were a temporary measure. This was clearly a false statement, see that the courts have only grown in size and influence over the past 12 years (Ethiopian Journal; NYU Globalex; Amnesty International).
Defendants under the rules of the Special Courts are almost always denied legal representation, prevented from having any visitors, and are often detained in a secret location. While being secretly detained, defendants are often beaten and tortured, only to be expected to then represent themselves in court. Defendants are frequently held for years in pre-trial detention before their cases are ever officially heard. The trials are also held in a secret location, with no member of the public, media or even the family allowed to be present. When a family member goes missing in Eritrea, it is common for the family to assume that they have either been killed or are being charged in Special Court. The Special Courts have also frequently failed to notify a suspect’s family when a suspect dies in custody (Ethiopian Journal; Amnesty International).
The Eritrean Special Courts are widely regarded as one of the most corrupt and inhumane court systems in the world. In a Special Court “the plaintiff is the government (the judge), the interrogator or prosecutor is the government (the judge), and the verdict is given by the government (the judge)” (Ethiopian Journal). The composition of these courts, where a single person is literally playing both judge and jury, demonstrates a complete lack of checks and balances, with the influence of the President carrying most of the weight (Ethiopian Journal).
It is impossible to successfully distribute justice when the judge is acting on behalf of the President. A majority of these Special Court judges are former members of the Eritrean military with no formal legal training. When handing down sentence verdicts, the judges are not required to adhere to any particular standards in regards to sentence length, often acting in whichever way the executive prefers. Many prisoners reported being sentenced indefinitely with no specific release date (2010 Human Rights Report).
The continued existence of these Special Courts will continue to derail the nation’s justice system and the people’s faith in it. The Special Courts are used to prosecute a variety of individuals ranging from draft dodgers, political dissidents and refugees. The government demonstrated its willingness to try high profile targets in 2000 when they tried Ermias Debessai, Eritrea’s former Ambassador for China, for embezzlement. Debessai was arrested in 1997 and held in pre-trail detention for three years before his trial. He was then convicted of embezzlement and sentenced to seven years by the Special Court. Amnesty international reported that throughout the trial, Debessai was not allowed to properly present his own case and that he was ultimately sentenced for political reasons. It appears that over the course of the past several years, the President has been more willing than ever to use these Special Courts as a means to try and convict all those who stand against his party, the People’s Front for Democracy and Justice, and those who would be calling for the rightful implementation of the adopted Constitution of 1997 (Amnesty International).
The current make up of the Eritrean Judiciary is a major road block in terms of the country’s future development. In order for real change and development to occur within Eritrea, the Special Courts need to be abandoned and the government needs to make a concentrated effort to install both the Supreme Court and the Judicial Service Commission (JSC). These are simply the first steps in establishing a well functioning justice system. Essentially, the government needs to officially implement the 1997 Constitution, which was adopted by the National Assembly and a Constitutional Convention. Such actions would not only allow for a more sound and internationally recognized Judicial System, but it would also establish the Constitution as the Supreme Law of the land, giving the judges of all courts the ability to draw judicial decisions from a sound and recognized form of law (Eritrean Constitution of 1997).
In order to effectively address the persistent development crisis on the African continent; caused by weak institutions; a lack of accountability, transparency, democratic rule; bad governance, corruption, and the persistence of military juntas, the IIJD recommends;
The system of governance and the political institutions of Eritrea need to be reformed so as to include a real separation of powers between the executive, legislative and judicial branches.
Independent, impartial and autonomous electoral bodies need to be established in every African country, with the power and resources to organize and to supervise free and fair elections.
As for the corruption, Eritrea needs independent, impartial and independent anti-corruption agency vested with the power and having the resources to freely investigate allegations of corruption. Such agency will definitely enhance the ability of independent investigatory and prosecutorial bodies to try cases involving corruption and misappropriations of the nation’s resources at a government level.