The right to free legal assistance during pretrial stages in Ethiopia: a comparative study

Abstract

The right to free legal assistance is considered as a cornerstone to ascertain a fair trial, thus, in its absence it is hard to enforce other rights including rights conferred during pretrial stages. Albeit free legal assistance in pretrial stages is not explicitly recognized in binding international and regional human right instruments, norms and jurisprudences developed at the international floor enjoins state parties including Ethiopia to confer the right. Bearing this in mind, the paper aims to assess the status of the right to free legal assistance in pretrial stages, the institutional setup and approaches employed to render free legal assistance in Ethiopia through a comparative perspective and mainly a doctrinal one. Legal assistance serves as an instrument to create equality of arms among contentious parties. Inequality of arms is apparent in all stages of the criminal proceedings including pretrial stages and justice cannot be assured without ascertaining a legal assistance by states for all eligible persons. Notwithstanding, in this paper, the author finds that the prominent approaches employed to create equality of arms through rendering free legal assistance in Ethiopia have rare experience of providing the right in pretrial stages. The main reasons for this are owing to lack of recognition of the right to free legal assistance for detained/arrested persons inside the FDRE constitution and subsequent legislations as well as lack of institutional setup to fulfill the obligation of Ethiopia which emanate from; the cumulative reading of Article 14/3/b and 14/3/d of ICCPR, the jurisprudence of UNHRC, Article 9/4 and 13 of the FDRE constitution. The right to free legal assistance in pretrial stages is not recognized in Ethiopia and the approaches employed are not comprehensive enough. Therefore, the author through considering; international and regional standards regarding free legal assistance during pretrial stages, the value of the right and experience of comparative jurisdictions, argues for; (i) the incorporation of the right under the FDRE constitution and the enactment of a comprehensive legal framework thereof, (ii) the establishment of autonomous institution to manage the delivery of the service through diversifying providers, and (iii) the employment of a special procedure to render free legal assistance during pretrial stages of the criminal proceedings.