ADR Case Study: Ethiopia
Ethiopia is an example of how vulnerabilities in the design and execution of EDR mechanisms can lead to ad hoc and inconsistent dispute resolution in practice, as well as a blurring of the line between formal EDR and informal ADR. This can cause confusion for stakeholders and also lead to forum shopping. On the positive side, at the central level, the political parties' joint forum, coordinated by the EMB, had some success as an ADR mechanism for dialogue and the prevention and resolution of disputes, including inter-party disputes.
The Ethiopian Electoral Law provides for EDR mechanisms to be established by the EMB (the National Election Board of Ethiopia, or NEBE), in the form of grievance hearing committees (GHCs) at all levels, with an appeal to the courts.154 The NEBE Management Board also has a role in resolving certain categories of disputes, notably counting and results disputes, with an appeal to the court. The GHCs are EMB-led complaint bodies, each staffed by an election official and members of the public serving in an unpaid capacity. Their composition and operations make them potentially akin to an ADR mechanism in that voters select the members of the public who serve on them from the local area, the proceedings are intended to be informal and accessible to all without needing a lawyer, complaints can be presented verbally rather than in writing, and their decisions must be rendered within a few days. But, under the law, they are a formal part of the EDR appeals process. Although the GHCs were intended to be established at all levels, this did not happen in most constituencies or polling stations during the 2021 elections, due partly to the difficulty of finding thousands of volunteers willing to serve on them.155
Furthermore, the NEBE did not adopt procedures for the handling of disputes, and Parliament did not approve the draft regulation for the courts’ handling of electoral disputes (including those that came to the courts on appeal from GHCs). In the absence of a fully functioning EDR system, some parties raised their disputes and complaints directly with diverse departments at NEBE headquarters, creating even more confusion and expectations that their disputes would be addressed. There must be clarity as to the available mechanisms and their procedures—whether formal or informal modes of resolution. And ADR should not eclipse formal EDR mechanisms, especially for legitimate grievances that may require a legal remedy rather than a practical resolution (or both). An Inquiry Council (a panel of experts appointed by NEBE and envisaged in the Electoral Law) was established to investigate voter registration complaints from the Somali region.156 However, without clear procedures, it was unclear how this body operated in practice.
The disadvantages of informal or ad hoc dispute resolution are that it may provide inconsistent outcomes for different parties (leading to claims of bias), and it can lack transparency unless the EMB rigorously and promptly publishes information about decisions taken. Throughout the electoral process, the NEBE published information on its social media platforms about its mediation efforts with parties and changes to procedures and the electoral timetable. However, no systematic information was available about the number of disputes addressed by the ADR mechanism, or the number of formal complaints received and how each one was resolved. Another potential disadvantage is that some parties may not have had the knowledge or established relationships to raise their disputes informally with the Political Party department of NEBE and, therefore, may have felt they had no option but to use the potentially slower and more costly route of a court challenge. While the informal resolution of complaints can be an effective and speedy way to deal with operational problems, it is less suited to addressing violations of the law that should receive criminal sanction (as alleged during voter registration in the Somali region). It may also have been unclear to those parties whose complaints were dealt with informally by ad hoc means that they have a right to appeal the resolution to court and that they need a written decision against which to appeal.
On the positive side, during the 2021 elections, the ADR mechanisms established by the Electoral Law to resolve inter-party disputes had some success in providing a space for dialogue and the prevention of pre-election disputes. These mechanisms are the political parties’ joint forum, set up to enable the resolution of disputes through dialogue and agreement, based only on the consent of interested parties, and the joint council of political parties, to amicably resolve implementation, democracy, and human rights issues arising during the electoral process.157 The law is clear that pursuing these ADR routes does not preclude a party from lodging a complaint with the formally established EDR bodies.158 However, there was some overlap between these ADR mechanisms, the informal ad hoc resolution of disputes described above, and the conventional EDR system during the 2021 elections. EDR mechanisms usually have fixed timelines, and their decisions are binding, whereas ADR mechanisms tend not to be. Therefore, it is important for stakeholders to understand the distinction and to make informed decisions on which route to follow and what to expect as an outcome. It is also important to be aware of the risk of forum-shopping if multiple routes of dispute resolution are available to a party.
154 Ethiopian Electoral, Political Parties Registration and Election’s Code of Conduct (Proclamation No 1162/2019), articles 13(7), 15(10), and 151(5) provide for GHCs.
155 The NDI/IRI Limited Election Observation Mission for the Ethiopia June 21, 2021, National Elections reported on page 27 the failure to establish grievance hearing committees except in a handful of places. The EU Election Observation Mission reported on page 26 on a similar problem in the 2010 elections.
156 The 2019 Ethiopian Electoral, Political Parties Registration and Election’s Code of Conduct (Proclamation No. 1162/2019), Article 151(10) provides for an inquiry council.
157 The 2019 Ethiopian Electoral, Political Parties Registration and Election’s Code of Conduct (Proclamation No. 1162/2019) provides for the NEBE to establish the Political Parties Joint Forum at every level (Article 151) and for political parties to establish a joint council (Article 141).
158 The Ethiopian Electoral, Political Parties Registration and Election’s Code of Conduct, 2019, Article 151(4) (Proclamation No. 1162/2019).