Formal and Informal Decision-Making Procedures in Ethiopian Administrative Law

Introduction: The Foundational Role of Procedure

The exercise of administrative power, particularly in decision-making, is a cornerstone of governance in any modern state. In Ethiopia, the landscape of administrative adjudication is not solely defined by the recent administrative procedure proclamation. Indeed, long before its enactment, and continuously to the present day, various statutes have meticulously laid down mandatory adjudication procedures for administrative agencies. This historical lineage extends even to the earliest uncodified laws, which inherently contained rules governing decision-making processes, underscoring a consistent commitment to structured and predictable administrative action.

These statutory procedures, though varying significantly in their level of detail and the formality of hearing requirements, can be broadly categorized into two principal types: Formal Procedures and Informal Procedures. This chapter delves into these classifications, exploring their characteristics, underlying principles, practical implications, and illustrative examples within the Ethiopian legal framework.

Classification of Administrative Decision-Making Procedures

The diversity in administrative functions necessitates a flexible approach to procedural requirements. While some decisions demand rigorous scrutiny and extensive safeguards, others prioritize efficiency. This has led to the development of two primary categories of decision-making procedures:

• A) Formal Procedure: Characterized by its trial-like nature, offering extensive procedural safeguards to affected parties.
• B) Informal Procedure: Designed for efficiency, with less stringent procedural requirements, though still subject to fundamental principles of fairness.

Formal Decision-Making Procedures

The formal decision-making procedure is the most robust form of administrative adjudication, akin to a judicial trial. It is meticulously designed to uphold the Rule of Law and ensure Procedural Due Process for individuals whose rights or interests may be adversely affected by administrative action.

Characteristics and Principles of Formal Procedures

A defining feature of formal procedure is the provision of sufficient hearing rights to all parties. This typically includes:

1. Oral Hearing: A structured session where arguments are presented verbally.
2. Examination of Witnesses: The opportunity to call witnesses, present their testimony, and subject them to cross-examination.
3. Right to Counsel: The entitlement of parties to be represented by legal professionals throughout the proceedings.
4. Clear Demarcation of Roles (Separation of Functions): A critical aspect of natural justice, ensuring that investigatory and prosecutorial functions are distinct from the adjudicatory role. There will often be different officers responsible for investigating and prosecuting non-compliance, while the ultimate decision-maker is a separate, impartial official, often the head of the agency or a specially constituted panel. This separation helps prevent bias (nemo judex in causa sua – no one should be a judge in their own cause) and enhances the perceived and actual impartiality of the decision.

The rigorous nature of formal procedures, while offering the greatest protection to affected persons, comes at a cost. It is inherently time-consuming and resource-intensive, which can significantly hinder effective administration. Such strict procedural requirements may restrict agencies’ ability to efficiently regulate economic activities or enforce laws. Consequently, formal procedures are typically reserved for situations involving significant individual impact or complex factual determinations, and thus are found only in a limited number of statutes.

Examples of Formal Procedures in Ethiopia

Disciplinary Proceedings of Civil Servants

A prime example of a formal procedure in Ethiopia is found in the disciplinary proceedings involving civil servants. Before any disciplinary measure can be imposed against a civil servant, strict observance of procedural rules is mandated. The Federal Civil Servants Disciplinary and Grievance Procedure Council of Ministers Regulations No. 77/2002 outlines the necessary steps.

This regulation distinguishes between two types of procedures based on the severity of the offense: summary inquiry for minor offenses and formal procedure for major offenses. Even in the seemingly “informal” summary inquiry, a fundamental aspect of procedural fairness is maintained: the alleged offense must be formally communicated to the civil servant, who must then be afforded an opportunity to present their case (the principle of audi alteram partem – hear the other side). If the civil servant denies the charge, the inquiry officer is legally required to examine relevant evidence before submitting a recommendation to the concerned official for a final decision. If the accused admits the charge, the recommendation is based on this admission. (See Articles 6/1/ and 6/2-4/ of Regulations No. 77/2002).

The formal inquiry for major disciplinary offenses, governed by Articles 7 to 21 of the Regulation, closely mirrors an ordinary court proceeding. It commences with a formal charge, which must be adequately served to the civil servant. The hearing process is comprehensive, including preliminary objections, examination of witnesses, presentation of a statement of defense, the accused’s final opinion, and the production of evidence. This structured approach ensures a thorough and fair determination of the allegations.

Decision-Making Before the Accounting and Auditing Board of Ethiopia

Another compelling illustration of formal administrative adjudication is the procedure employed by the Accounting and Auditing Board of Ethiopia. This process bears a notable resemblance to formal adjudication procedures in other jurisdictions, particularly the United States’ Administrative Procedure Act of 1946, especially in proceedings before independent commissions like the Federal Communications Commission (FCC) or the National Labor Relations Board (NLRB). These US commissions often feature trial-like proceedings presided over by Hearing Examiners or Administrative Law Judges (ALJs) who, while agency employees, are designed to be functionally independent and impartial. Appeals from their decisions are reviewed by the agency heads (Commissioners).

Similarly, the initial decision-making and appeal procedure within the Accounting and Auditing Board of Ethiopia embodies many of these formal characteristics. When an alleged violation of the Financial Reporting Proclamation No. 847-2014 occurs, an investigating officer first conducts an inquiry. If this investigation suggests a violation, the officer recommends to the Chief Executive Officer (CEO) of the Board that a formal proceeding be instituted against the alleged violator (Art. 38/1/). The CEO has the discretion to initiate proceedings either on their own initiative or based on this recommendation (Art. 38/2/).

Crucially, upon deciding to institute proceedings, the CEO may appoint three Hearing Examiners from among the Board’s staff, ensuring that these individuals were not involved in the initial investigation. One of the appointed examiners must be a lawyer (Art. 38/3/). This stipulation enhances the impartiality and legal expertise of the adjudicatory body.

The Procedural Requirements outlined in Proclamation No. 847-2014, particularly Articles 38 to 41, underscore the formal nature of these hearings:

• Right to Counsel (Art. 38/4/): The entity or person against whom the proceeding is brought explicitly has the right to legal representation.
• Powers of Hearing Examiners (Art. 39/1/): For the purpose of the hearing, the Hearing Examiners, upon request of either party, may:
  • Summon any person to give material information or produce relevant documents/evidence (Art. 39/1/a).
  • Administer oaths or affirmations and compel answers or production of evidence (Art. 39/1/b).
• Respondent’s Rights (Art. 39/2/): The respondent must be informed of the nature of the complaint and is entitled to appear personally or by counsel, produce evidence, call and examine witnesses, and cross-examine opposing witnesses. This is a direct manifestation of audi alteram partem.
• Formal Summons (Art. 39/3/): Summons for attendance or production of evidence must be in a prescribed form, signed by a Hearing Examiner, and served similarly to a court subpoena.
• Criminal Liability for Perjury (Art. 39/4/): A witness who gives false testimony under oath or affirmation is criminally liable for perjury, emphasizing the gravity and quasi-judicial nature of the proceedings.
• Use of Document Copies (Art. 39/5/): Copies of documents are admissible as evidence, subject to challenge regarding their authenticity.
• Consequences of Failure to Appear (Art. 40): A duly summoned person who fails to attend or refuses to cooperate without sufficient cause can face criminal liability, highlighting the binding nature of the proceedings. The law on witness privilege also applies (Art. 40/2/).
• Imposition of Sanctions (Art. 41): After hearing arguments and evidence, the Hearing Examiners decide if a violation occurred (Art. 41/1/) and, if so, impose sanctions in accordance with the Proclamation (Art. 41/2/).
• Finality of Decision (Art. 41/3/): If no appeal is filed against the Hearing Examiners’ decision (as per Article 47), their decision is deemed the final decision of the Board. This reflects the principle of functus officio, where an official body, having rendered a final decision, generally cannot revisit or alter it.

Unlike many agencies where final decision-making power is reserved for the head, here, the Hearing Examiners render an initial decision, which then undergoes review by an administrative tribunal established within the Board. This multi-tiered adjudicatory structure further bolsters fairness and provides an internal appellate mechanism before judicial review.

Informal Decision-Making Procedures

In contrast to the rigid structure of formal procedures, informal decision-making procedures are characterized by their flexibility and a lesser degree of formality. These procedures are typically employed for decisions that are less impactful on individual rights or where the need for administrative efficiency outweighs the benefits of extensive procedural safeguards.

Indeed, formal procedure is often the exception rather than the norm in administrative decision-making processes, with a great deal of the process being predominantly informal. The informality is often unique to each agency, meaning that decision-making in this category is not governed by uniform rules. Instead, there are variations and differences in the scope of hearing requirements, reflecting the inherent need for flexibility in the administrative process.

While less formal, informal procedures are not devoid of legal principles. They must still adhere to fundamental tenets such as reasonableness and rationality in decision-making. Moreover, even in informal settings, a minimal level of procedural fairness is often required. This might involve a duty to give reasons for the decision, or, as seen in the “summary inquiry” aspect of civil servant disciplinary proceedings, the necessity to afford the affected individual an opportunity to present their case, albeit in a simplified manner.

The primary advantage of informal procedures lies in their efficiency and speed, enabling agencies to enforce laws and regulate activities without undue delays. This makes them suitable for high-volume decisions or situations where quick administrative action is imperative. However, the trade-off is often reduced individual protection, which necessitates a careful balance to prevent potential arbitrariness in the exercise of administrative discretion.

Examples of Informal Procedures in Ethiopia

Cancellation or Revocation of Refugee Status

An illustrative example of an informal decision-making procedure can be found in the process concerning the cancellation or revocation of refugee status by the Agency for Refugees and Returnees Affair. Before such a significant decision is made, the Agency is legally required to provide the person whose status is being reviewed with prior written notification and an opportunity to explain their side of the issue. This explanation may be provided either orally or in writing. However, it is crucial to note that this informal procedure does not extend to the right to present a formal defense or to adduce evidence in a trial-like setting.

The informal nature of this initial process is implicitly recognized by the Refugees Proclamation itself. This is evident because when the decision of the Agency is appealed to the Appeal Hearing Council established within the Agency, there is a specific requirement for a formal hearing. Article 8/3/ of the Refugees Proclamation No. 1110/2019 states that “The hearing before the agency is formal where the agency and the appellant are given the right to present their case.” This contrast highlights that while the initial decision-making phase is informal, the subsequent appeal mechanism provides the higher degree of procedural formality and protection.

Foreign Service Officers Administration

Another example showcasing informal decision-making can be observed within the Ministry of Foreign Affairs, as governed by the Foreign Service Officers Administration Council of Ministers Regulation No. 399/2017. This regulation pertains to decision-making processes concerning the rights and entitlements of foreign service officers.

The initial decision-making process by the Ministry regarding matters specified in Article 26 of the Regulation is notably not governed by any prescriptive procedure. This implies a significant degree of administrative discretion and informality at the first tier of decision-making.

When a matter progresses to the second level, which is a review by the Grievance Board, there is still no explicit hearing requirement. Instead, upon receipt of a complaint, the Board conducts an informal investigation and subsequently submits its recommendation to the Minister. This structure prioritizes a swift internal review without the burden of formal adjudicatory procedures.

Let’s look at the relevant provisions from Regulation No. 399/2017:

Art. 26. Matters Considered by Grievance Board The Grievance Board established in accordance with Article 50(1)(C) of the Proclamation shall investigate complaints made by foreign service officers and submit recommendations to the Minister regarding matters relating to:

1. the protection of rights and benefits;
2. placement, recall, career ladder promotion;
3. performance evaluation;
4. the implementation of the Proclamation and this Regulation.

Art. 27. Procedures for Submission of Grievance

1. A Foreign Service officer who is not satisfied with the response by his immediate supervisor or with the concerned official, on issues under Article 26 of this Regulation, on the implementation of the Proclamation and this Regulation, has the right to submit a petition to the Grievance Board within ten working days from the response.
2. An officer who is unable to submit his petition within the period specified under sub-article (1) of this Article due to reasons that are beyond his control, may submit his petition within ten working days after such reasons has passed.
3. The Board shall submit a report containing its findings and recommendations to the Minister not later than 15 working days from the date of receipt of the petition.
4. The Minister or the official delegated by him may, within ten working days from the date of receipt of the Board’s report, approve the recommendation of the Board or, give a decision different from the recommendation of the Board or instruct the Board to further review the case.
5. The decision passed in accordance with sub-article (4) of this Article shall be communicated to the petitioner in writing.

These articles demonstrate that while there is a right to petition and a defined timeline for the Board’s review and the Minister’s decision, the process itself does not mandate a formal hearing with the elements seen in a trial-like setting. The emphasis is on a timely internal review and recommendation, followed by a decision communicated in writing.

Conclusion

The statutory decision-making procedures in Ethiopia, whether formal or informal, collectively aim to strike a balance between administrative efficiency and the protection of individual rights. The existence of these diverse procedural requirements, even predating comprehensive administrative procedure legislation, underscores a deep-seated commitment to the Rule of Law and the principles of Natural Justice. Formal procedures, with their emphasis on due process, separation of functions, and extensive hearing rights, provide robust safeguards for citizens, particularly when significant interests are at stake. Informal procedures, while less stringent, ensure that administrative action remains reasonable and that basic fairness is observed, facilitating the smooth functioning of governance. Understanding these procedural nuances is crucial for comprehending the dynamics of administrative accountability and the mechanisms through which governmental power is legitimately exercised in Ethiopia.