CONFLICTING LEGAL REGIMES VYING FOR APPLICATION: THE OLD ADMINISTRATIVE CONTRACTS LAW OR THE MODERN PUBLIC PROCUREMENT LAW FOR ETHIOPIA

Abstract

The Ethiopian Civil Code of 1960 contained provisions on administrative contracts. Such contracts were little known in Ethiopia during those days. However, in the absence of any legal system to govern contracts entered into by administrative authorities, the redactor of the Civil Code felt it necessary for Ethiopia to adopt the French administrative contract principles. Hence the incorporation of those principles into the Civil Code although the redactor himself admitted that it was peculiar for any Civil Code to contain administrative law principles. Since the promulgation of the Civil Code in 1960, the provisions on administrative contracts remained by and large unknown and virtually ineffective in terms of their application in governing contractual relationships between administrative authorities and private contracting parties. In early 1990s, as part of its modernization efforts, Ethiopia enacted new laws consisting of modern public procurement law principles in order to overhaul the then existing weak and corrupt public financial management and administration, and the public procurement systems. These new laws were followed and supplanted by two successive proclamations in 2005 and 2009 both on financial administration and public procurement. However, despite what it seems to be a clear and deliberate move by the legislature, as discussed in this work, to abrogate the old administrative contracts provisions in the Civil Code, the courts in Ethiopia take cognizance thereof and apply them whenever these provisions are invoked by disputing parties. Thus, the two conflicting legal regimes are made to co-exist in the Ethiopian legal system thereby causing confusions in the rights and obligations of contracting parties, particularly private companies and individuals entering into public procurement contracts with administrative authorities. In this work, the nature and peculiarities of administrative contracts, how the principles enshrined in such contracts evolved in Ethiopia, and the existing problems emanating from the dilemma of trying to preserve the old administrative contracts provisions are examined and analyzed. Furthermore, the provisions of the successive proclamations by which these administrative contracts law provisions have been repealed have been critically assessed. Finally, it is shown that Ethiopia has enacted a full-fledged modern public procurement laws that are modelled on the UNCITRAL Model Law on Procurement of Goods, Construction and Services (1994) which should prevail over the old administrative contract rules in the Civil Code.