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190 Diagnosing Corruption in Ethiopia
what charges to file (evaluated against the chances of getting a
conviction), and whether, given their other pending cases, it is better to
drop one of lesser importance. Often termed the “principle of opportunity,”
the legal recognition of prosecutorial discretion is an important
component of modern criminal justice systems because it allows
prosecutors to emphasize cases with more impact.
• Judges in the end must weigh the evidence and the facts presented to
them according to their own appreciation of the legal truth of the matter,
and in this there is ample room for disagreement among equally
competent and honest experts.
Corruption can influence all these decisions, but there is also a large
element of subjective appreciation that another observer might calculate
differently. Short of a video recording of a police officer, prosecutor, or
judge receiving money to sway his or her decision, it becomes nearly
impossible to determine conclusively whether an “odd” ruling or other
decision was the result of corruption, ineptitude, or just a different assessment
of the situation.
Accountability. Given the considerations cited above, augmenting
accountability might appear to be the solution, but again the sector faces
some peculiar constraints:
• Judicial independence protects judges (if not their appealable decisions)
from having to provide additional explanations of their actions. The
concept of absolute independence is gradually being eroded and
generally no longer applies to nonjurisdictional activities (for example,
how courts manage their budgets, their personnel policies, or even productivity
figures). However, in most countries, judges still enjoy greater
immunity than other public servants from personal responsibility for
their decisions and related actions (see NJI 2008, however, for a recommendation
to loosen traditional immunity in Ethiopia).
• Transparency, one aspect of accountability, is also constrained throughout
the sector because of privacy rights and the need to protect the
parties or ongoing investigations.
• Because the sector’s services depend on a multitude of individual
decisions, there are practical limits on reviewing every one or even
requiring written explanations. Where such explanations have been
required (for example, that a prosecutor or other government attorney