The practice of removal and withdrawal of judges from the case

under Ethiopian federal system.

Law of procedure assignment

Group members
1 Dawit Gadisa…………………………………………………. UGR/2582/13

2 Abdisa Aliyi……………………………………………………UGR/4056/13

3 Dagne Shimalis……………………………………………….UGR/8787/13

4 Getacho Shebashe………………………………………………. UGR/9975/13

5 Chala Lamesa……………………………………………………. UGR/3999/13

6 Habtu Jote ………………………………………………………. UGR/3434/13

Submitted to Dr Aschalew Ashegire

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Table content Page No

INTRODUCTION………………………………………………………………………. 1

Review literature…………………………………………………………………………1

CHAPTER ONE………………………………………………………………….…3

Withdrawal of judges……………………………………………………………………3

1.1 Relation with Parties or their Advocates………………………………… ………..3

1.2. Relation with the Matter…………………………………………………………….4

1.3. Other Grounds of withdrawal ………………………………………………………4

2.0 Removal of judges ……………………………………………………………………6

CHAPTER THREE…………………………………………………………………7

3.1 General analysis with relevance’s of the case……………………………………….7

3.1.1 The provision of withdrawal of a judge from the Case ……………………………7

3.1.2 The provisions of Removal of the judge from a case……………………………….8

Field work……………………………………………………………………………………11

Conclusion………………………………………………………………………………….12

Recommendations…………………………………………………………………………13

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 INTRODUCTION

The judiciary shall decide matters present before them impartially, on the basis of facts and in
accordance with the law without any restrictions, improper influences, inducements, pressures,
threats or inferences direct or indirect from any quarter for any reason. Particularly, the judges
should perform their duties impartially, without any bias or favoring anybody. When a judge is
assigned to a case, he reviews the general facts of the case and determines whether he has any
conflict of interest concerning the case and if there are circumstances which require rescue he
shall be withdraw from a case.

If a conflict of interest exists in the proceeding case, the initial presiding judge usually
determines whether or not the apparent of such conflict requires his recusal, and the judge's
decision is given considerable deference. If the conflicts of interest occurred in the case a judge
should withdraw himself, unless he recused himself from the case, a party can try to remove him
from such a case by appeal. if he believes, such a judge has a conflict of interest with this case as
a results of different reasons. This is due to the judge had personal knowledge of the facts
regarding with a case, such as professional or familial relationship with a party or an attorney, or
a financial interest in the outcome of the matter.

Some jurisdictions, however, requires another judge to decide whether or not the presiding judge
should be disqualified. If a judge fails to recuse himself when a direct conflict of interest exists
or/and a motion of recuse is approved by court, the judge shall later be removed from his/her
bench. To be “disqualified” means a judge is removed from a particular case, and an alternate
judge will get assigned to the proceedings.

 Review literature

After Ethiopia underwent a political transformation from military state to a federal democratic
republic state in 1995 the FDRE Constitution emerged as a cardinal document which is serving

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as destiny or frame work for millions of Ethiopians. It provides various guarantees for
fundamental rights and freedoms of the citizens. One-third portion of the Constitution is devoted
to these fundamental rights and freedoms, which are in line with international human rights and
freedoms. Among these fundamental rights and freedoms incorporated in to FDRE constitution
an issue of access to justice is decisive one, it embodied that everyone has the right “access to
justice" from "a court of law" or "from an appropriate entity vested with judicial power." To
enforce these fundamental rights and freedoms and so make the right to access to justice a
practical, the courts are expected to discharge their duty in a fair and impartial manner. Or they
should play their constitutional role in due care by abandoning any practice of partisanship and
stereotypes. In effect an institutional independence and impartiality of courts of any level must
be preserved to access justice to the citizens. Furthermore, concurring to that of courts, judges
individually shall also have obligated to discharge their duty indiscriminately and fair-minded
ways. So that, the litigants can access to fair, predictable, and certain decision which ultimately
leads to accessible justice. To materialize this if there is any issue which may leads to conflicts of
interest and also an issues of removal and withdrawal of judges becomes mandatory they should
do so unless the constitutionally guaranteed fundamental rights and freedoms of an access to
justice cannot be materialized .Beside, The Process of removal and withdrawal of judges from
the cases where they have an interest or possible conflicts of interest in accordance with (Art.33,
Pro. 1234/, 2021) exist to reinforce the impartiality and neutrality of judges and thereby
strengthen their personal independence as well as the institutional loyalty of the courts as
general. To sum up, institutionally powerful and individually competent and impartial judges are
crucial elements to bring up justices among individuals and societies at large.

CHAPTER ONE
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 Withdrawal of judges

The issue of withdrawal judge arises when the impartiality of judge is in question. Impartiality is
one of the basic ethical duties of judges in performing judicial activities. It is the fundamental
quality of a judge and the care attribute to judiciary. A judge shall insure that his or her conduct
both in and out of court maintains and enhance the confidence of the public the legal profession
and litigants in the impartiality of judge and of the judiciary. He has to act in a fair manner
toward all parties in a case appearing before them. He should declare any real or perceived
conflict of interest and withdraw himself from the decision-making process without delay. The
appearance of impartiality is necessary in order to maintain confidence in the decision-making
process. A fair process of delivering justice should be followed in making a decision that has an
impact on someone. Such a process helps to bring up a fair and impartial decision. To ensure
this, a judge has to withdraw himself from the case for the proper and fair giving of justice.
According to the Federal Judges Code of Judicial Conduct, judges must withdrawal themselves
by their own motion as soon as they learned about the grounds on which the law prohibits them
from sitting on the case. These grounds are provided under Article 33(1) of Federal Courts
Proclamation No. 1234/2021. These grounds are:

I. Connection of a judge with parties or their advocate [Article 33(1)(a), (b)&(d)]

II. Connection of the judge with a case [Article 33(1)(c)] and
III. Other grounds [Article 33(1)(e)] 1
 let us discuss each grounds of withdrawal

1.1 Relation with Parties or their Advocates

Judges must recuse themselves when one of the parties or their advocates is their relatives by
consanguinity or affinity. Thus, judges should not preside over the cases between their brother or
their brother in law and other persons. Judges should not also preside over a case in which they
are related by consanguinity or affinity to advocates of the parties. For example, a judge is
required to recuse himself/herself if the advocate of the defendant is his/her cousin. Article 33(1)
1
Legal ethics and professionalism teaching material
2 Federal Courts Proclamation No. 1234/2021.

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(b) provides for relationship other than relationship by consanguinity or affinity. Thus, judges
who have no consanguinity or affinity relationship are required to recuse themselves, if they
previously acted as a legal representative, tutor or advocate of one of the parties. Article 33(1)(d)
provides an evidence for adverse relationship between the judges and the parties or their
advocate. Judges like any other persons have economic, social or other relationship with others.
Thus, if Mr. X a first instance court judge sues Mr. W, a trader, in high court for non-
performance of a contract, Mr. X must recuse himself in a case in which W sues Z before the
first instance court so far as the case before high court is not finally decided.

1.2. Relation with the Matter

Judges should recuse themselves when they had a connection with the matters before them. They
may have acted in certain capacities before. For example, a judge was a material witness on the
matter or a judge previously decided the matter as an arbitrator, civil servant or participated in a
matter as a conciliator or mediator. Thus, a judge who previously decided the case as an
arbitrator must recuse himself/herself from the case.

1.3. Other Grounds of withdrawal

Article 33(1)(e) provides a catch for all grounds of recusal. This provision makes the grounds
provided under Article 33(1) (a) to 33(1)(d) illustrative examples of ground of withdrawal. Thus,
other grounds which are sufficient reasons to conclude that injustice may be done and fall under
this category. Such ground may include social or business relationship of a judge, personal
knowledge of evidence, personal relationship not covered under Article 33(1)(a) to 33(1) (d).2

Upon assuming judicial, office persons do not withdraw from the society. They have life off the
bench (Abramson 95). Judges have social and business relations with others. For example,
judges may participate in social associations like “idir’’ or ‘’iqub’’. They may also carry out
certain religious activities. They may attend church or mosque. Judges may also participate in
business. They may hold share in certain business organization or they may have a commercial
2
Legal ethics and professionalism teaching material
Federal Courts Proclamation No. 1234/2021

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minibus or run a hotel. Every social or business relationship should not be a ground of recusal or
withdrawal of a judge from the case. even though there are certain factors should be taken into
consideration, judge and one of the parties or their advocate attend the same church or pray in the
same mosque could not be an enough ground of withdrawal. Similarly, if a judge and one of the
parties or their advocates belong to one idir the judge‘s impartiality should not come into
question for merely they belong to the same iddir. Personal knowledge of disputed facts could be
a ground of withdrawal for the judge. Judges may acquire certain knowledge about the case or
the parties before a case is assigned to them. Such knowledge may also be gained from an extra
judicial source or personal inspection by the judges while the case is ongoing (United Nations
Office on Drugs and Crime 74). Personal knowledge of the disputed facts (s), he may depend on
his knowledge to determine the dispute rather than the testimonies of the witnesses or other
evidences produced by the parties. All knowledge of disputed facts cannot be a ground of
recusal. For example, personal knowledge of disputed facts cannot be a ground of recusal when
it is acquired from prior ruling in the same case or through adjudication of a case of related
parties to the same transaction because the party had appeared before a judge in a previous case.
The relationship between a judge and parties to the suit or their advocates provided under article
33(1) of Proclamation No. 1234/2021 is not exhaustive. For example, it does not cover relations
like romantic relationship, or friendship. These relationships have equal power with a
relationship by consanguinity or affinity. A person who favors his relatives by consanguinity or
affinity also favors his/her lover or friend. Thus, it could safely be concluded that injustice may
be done to the parties when one of the parties or their advocates are judge‘s lover or friend.3

CHAPTER TWO

Removal of Judges
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1Legal ethics and professionalism teaching material
2 United Nations Office on Drugs and Crime
3 Federal Courts Proclamation No. 1234/2021

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Removal of Judges is an action taken by a decision of Judge him/herself to refrain from seeing a
particular case and by an application which a parties brought to court for the withdrawal of Judge
from proceedings. In the process by which either the judge him/herself or one of the party can
apply to the removal from the bench wherein, the judge involved. This is essentially to achieve
impartiality of the court. The basic principles of removal of judges, thus, to bring up impartiality
between the parties therein and also to increase the loyalty of the judiciary system in general.

The rationale may lead to the removal or withdrawal of judges from a bench (proceedings) are
listed down by Proclamation No 1234/2021. Pursuant to Art 33 of the Proclamation, if the judge:
has some relations to a party or an advocate; means where the judge related to one of the parties
or the advocate thereof by consanguinity or by affinity:

 Where he was a tutor or legal representative of a party; means if the dispute relates to a
case for whom he/she acts or acted as tutor, legal representative or advocate to one of the
disputing parties;
 Where he has some prior connection with the case; if h/she has connection with the
proceedings thereof as judge or mediator or an arbitrator. This may, however, not
applicable where a judge has previously acted as a judge of lower courts or appellate
court in the process of remand.
 Where he has a pending case somewhere else with a party or advocate thereof; if h/she
has a pending in court with one of the parties or the advocate thereof; The Judge shall be
removed as soon as h/she aware of those issues. Moreover, the reasons mentioned there
are not exhaustive by themselves. any other sufficient reasons, thus, may be added to the
list.

CHAPTER THREE

3.1 General analysis with relevance’s of the case

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 3.1.1 The provision of withdrawal of a judge from the Case

The judge withdraws himself from particular case, generally because of a conflict of interest.
This concept of judicial recusal helps and may require a judge who has been assigned a case, to
step down and withdraw from that case and leave it for another colleague to hear the proceedings
A judge may also recognize that due to circumstances of the case and their interest in the
outcome or relationship to the parties, it will be difficult for them to be an impartial decision
maker. They can decide that another judge should hear the case and remove themselves. This is
known as a recusal. The concept of recusal is of significant use since it helps the pillars of
independence and fairness to stand upright. For example, if there comes up a matter that
questions the actions of a company in which the Judge himself holds shares, then it may be
reasonably apprehended by the other party for a possible conflict of interest and thus in such a
case, the call for recusal may seem correct. The principle of law further states that a recusal
happens when there appears an interest of bias, not the existence of bias. One can recuse oneself
based on perception. This is whereby a judge analyses his/her previous relationship with parties
named in a case. A relationship can cut across, from business to blood. Other reasons are a
previous action ruled by a judge. If the judge handled a case involving that party and made a
decision on that previous case. If there is suspicion of poor conduct that would make it
appropriate to involve in the matter. Also if a judge doesn't want to deal with the case, he can
withdraw. Judges should withdraw from the case when the grounds provided under the following
provision 1/ A judge of a Federal Court shall be removed from his bench where: a) he is related
to one of the parties or the advocate thereof by consanguinity or by affinity: b) the dispute relates
to a case for whom he acts or acted as tutor, legal representative or advocate to one of the
disputing parties; c) he has previously acted as judge or mediator or an arbitrator in connection
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with the case or the subject matter of the dispute. This may, however, not applicable where a
judge has previously acted as a judge of lower courts or appellate court in the process of remand.

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Source: Art 33 and 34 of federal court proclamation no 1234/2013

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Article 79 of Ethiopian constitution
Look at Legal ethics and professionalism teaching material

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 3.1.2 The provisions of Removal of the judge from a case.

It is not unusual for a party to either a criminal or a civil case to want to change judges or to
request that a different judge be assigned to their case. Typically, a party will request a new
judge because there are facts that indicate the assigned judge may not be impartial or the parties
do not like how a judge is handling their criminal civil case, then the parties can file an
application with the court detailing the reasons why the judge should be removed. They are
Circumstances that might affect impartiality include: The assigned judge has some financial
interest in the outcome of the case, the assigned judge is related in some way to one of the
parties, the assigned judge has history with one of the parties. For example, when the judge was a
lawyer they represented one of the parties in another matter. A transfer of a case from one judge
to another is possible, and the process for requesting a transfer will depend on the laws of the
state or federal court where the case is being tried. The main element for removal of the judge
are as follow

 A conflict of interest, Conflicts of interest arise in a lot of different ways. There are times
when prosecutors face conflicts of interests related to their involvement in old cases or when
judges have had prior dealings with one of the parties in a case, creating a conflict of
interest. It's not really possible to determine from the situation you've laid out whether or not
the judge in your relative's case (who was formerly the prosecutor on cases involving the
relative) has an actual conflict of interest. I suggest your relative explain all of the prior
dealings with the prosecutor-turned-judge to his attorney, and the attorney should either
request that the judge recuse himself on the case (allowing a new judge to be assigned) or to
request a change of judge or even venue for the purposes of a fair trial. The attorney will
know how to approach that issue. Even if there is no actual conflict of interest, sometimes it
makes sense to request a new judge to eliminate even the appearance of a conflict of interest.

 Bias, a fundamental principle of our legal system is that a judge or magistrate must not sit on
a case in which he or she is biased. This is important both so that justice is done and so that
justice is seen to be done. There are well established tests for actual and apprehended
judicial bias but how these are applied can vary depending on the factual situation. Judges

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 should disclose any matters that may create an appearance of bias so that parties can assess
whether to apply for the judge to remove themselves. Such an application should be made as
early in the proceeding as possible.
 Financial interest, Financial Interest in the Result of the Case, imagine a scenario where a
judge has stock in a company that stands to profit from winning a lawsuit. In that scenario
the judge holds a personal financial interest in the result of the case, and, thus, should
remove from the matter by applying the third parity one who knows the fact.
 Relationship to one of the parties or their attorney, or

 A personal knowledge of the facts

It is important to request a transfer an early on in the proceedings. A transfer becomes more

difficult and less likely the longer the proceedings have been underway. At that point the party
requesting the change will likely have to prove that the assigned judge has conducted the trial
unfairly.

According to Federal Court Proclamation no 1234/ 2013, Article 34 the parties may institute
their application as follow, 1, Where a party to a case find out that a judge should not sit for one
of the reasons specified in Article 33 of this Proclamation, he shall submit a written application
to the court requesting the removal of the judge. 2/ The application shall be made before the trial
opens or soon after the party becomes aware of the reason for making such an application. 3/
Where a judge is sitting alone he shall, after considering the application, either withdraw or refer
the matter for decision to another division of the same court. Where there is no other division the
application shall be referred to the court in which appeal lies from the decision of the court. 4/
Where the judge is sitting with other judges, the matter shall be decided by the other judges who
sit in the same division. 5/ A decision shall be rendered within 15(fifteen) days from the date
such application reached the new division. and the decision shall be final with no appeal.6/ A
judge shall forthwith comply with a decision given under this Article. But the parties institute the
application without sufficient reason they ensure that listed under Article 35 of Federal Court
proclamation it says, Cost and Penalty of Application for Removal of a Judge 1/ Where the
application submitted in accordance with Article 34 of this Proclamation is dismissed, the costs
shall be borne by the applicant irrespective of the outcome of the case. 2/ Where a party makes
an application without good cause, the court may, in addition to dismissing the application,

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impose a fine not less than 1000 Birr and not exceeding 3000 Birr. Provided however, where the
applicant makes a malicious application with the intention of defaming or damaging his honor or
delaying the proceedings, the court may impose a fine not less than 3000 Birr and not exceeding
7000 Birr. So the parties make sure that reason is sufficient to affect their interest as well as their
justice, then the parties institute the application with sufficient or enough reason to relief their
confusion with the assigned judge. The Procedures of removal and withdrawal of judges from
the cases where they have an interest in accordance with (Art.33, Pro. 1234/, 2021) exist to
reinforce the impartiality and neutrality of judges and thereby strengthen their personal
independence. The most important aspect of the independence of judges is that in the discharge
of their functions they should not be subject to any bias or stereotypes. This dimension of
judicial independence makes sure that the judges remain neutral, impartial and be released from
unnecessary influence from any direction. Judges are entrusted with the duty of carrying out their
judicial duties with integrity and impartiality. Acceding too quickly to suggestions of bias
encourages parties, and the public, to believe that a different judge would be more likely to
decide in their favour. Judges are expected to, and do, take their oaths when they become judicial
officers very seriously. This is why the threshold for proof of bias is high. To quote Justice Cory
in R. v. S. (R.D.), at para. 116:

The most important aspect of the withdrawal and removal of judges is that in the discharge of
their functions they should not be subject to any bias and prejudice toward the litigants and they
should follow the principles of due process the law. this principle is incorporated into the FDRE
Constitution as fundamental rights and freedoms provision. These constitutional provisions are
designed to ensure the actual as well as the perceived neutrality and impartiality of judges so that
an individual and the society at large could access justice. With regard to judicial independence
and judicial impartiality and efficiency are the cardinal elements should be dealt upon. the
judicial efficiency and access to justice are highly interrelated. A problem that causes delay can
lead to a barrier of access to justice. In general, the problems which will be raised and discussed
in connection with withdrawal and removal of judges led to the prevention of judicial
inefficiency, inconsistency decision, unpredictable and uncertain judicial conducts and
accountability. So, in order to solve such issues, we need to make sure that, the judiciary as
general and the judges as particular loyal to the constitution and also more accessible to the

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society. The Judiciary’s personal as well as institutional independence shall be ensured through
internal and external controlling mechanisms.

Conclusion

Conclusively, the problems which will be raised and discussed in connection with withdrawal
and removal of judges led to the prevention of judicial inefficiency, inconsistence decision,
unpredictable and uncertain judicial conducts and accountability. So, in order to solve such
issues, we need to make sure that, the judiciary as general and the judges as particular loyal to
the constitution and also more accessible to the society. The Judiciary’s personal as well as
institutional independences shall be ensured through internal and external controlling
mechanisms.

The judge is removed or withdrew from the case when there is a legal ground, such as bias or
conflict of interest .to materialize the principles of access to justice which is constitutionally
guaranteed to the individuals and the community at large, the proper observance of the principles
of the removal and withdrawal of judges shall be strictly followed. To sum up, institutionally
powerful and individually competent and impartial judges are crucial elements to bring up
procedural justices and it has crucial role to maintain peace and stability among individuals and
societies at large.

Recommendations

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 Where one of the requirements stipulated under article 33 of fore mentioned proclamation has
been fulfilled, as soon as possible, before the trial opens the parties shall submit a written
application to the court requesting to the removal of judge. However, an application thereof
might follow costs and penalty on the applicants. As per Article 35, if a party makes an
application without good cause, the court may, in addition to dismissing the application, impose
a fine on the applicant. however, where the applicant makes a malicious application with the
intention of defaming or damaging his honor or delaying the proceedings, degree of imposed
punishment is higher than that of a mere fine. This is, therefore, to protect the personal right of
the judges and other parties, who is the opponent of the applicant's.

Field work

We have interviewed a judge of Oromia supreme court with regards to the issues of withdrawal
and removal of judges. Accordingly, he has given the following information:

1. Regarding with Withdrawal of judges

✓he told us the judges of any level needs to withdraw themselves from a case if they feel it raise
to any forms of conflicts of interest. They should withdrawal from a case that is proceeding
between litigants that have either close relatives such as consanguinity and affinity relationship.

2. Regarding with Removal

✓This is conducted by external body or a body who controls a judges of any level.

Then if an issues of conflicts of interest might occurred in the trial then such body shall remove a
judges thereof.

Generally according to the notion of the judge the above discussed issues are duly enacted
measures by law to achieve impartiality and accessible justice to all citizens indiscriminately.

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