Ethiopian Legal System Research Articles

Child wives and the veneer of protection in Ethiopia

ABSTRACT Child marriage is prohibited in international human rights law, a stance adopted and enshrined in the Ethiopian legal system. Despite this, the practice of child marriage continues in many parts of the country, including in the Amhara region. Unharmonised laws, local norms, and religion are often cited as justifications for the slow rate of progress in eradicating child marriage. Such arguments presume the practice of child marriage and the formal law stand at opposite ends in their approach to addressing violence against girls. However, an examination of the experiences of child wives with the law in the Amhara region reveals that despite the formal prohibition of child marriage, the existing legal framework lacks comprehensive legal and policy measures to address violence against girls. I argue that this deficiency reinforces local norms linked with child marriage, perpetuating the victimisation of girls.

The Legal Protection for Young Domestic Workers in Ethiopia

As the saying goes, the child is the father of the man. We must properly bring up and protect our children today not least because in the future they will shoulder huge responsibility in taking charge of this country after replacing us. In many countries, especially developing ones like Ethiopia, children engage in different types of works for various reasons. Domestic work is one of such sector. Child (domestic) work is not prohibited if it is done by those above the minimum working age (14 years) under a condition that is not exploitative. The problem in Ethiopia, though, is that (child) domestic work is altogether excluded from legal protection (under the labour proclamation). Without formal regulation, child domestics are prone to exploitation by their employers. This kind of exploitation is a human rights violation in addition to being a serious development concern and gender equality challenge.
 This research aims at examining the adequacy of legal protection for young domestic workers under the Ethiopian legal system. To this end, the research employs a cross-sectional qualitative research design. Within this design, the research adopts a phenomenological methodology. The research concludes that there is inadequate legal protection for young domestic workers in Ethiopia beginning from formation of contract to terms of employment and working conditions.

Arbitrability of Administrative Contracts Under Ethiopian Legal System: Critical Appraisal

Disputes or differences between or claims of the parties which may arise from certain legal relationship could be settled outside of ordinary courts through the mechanism called alternative or amicable dispute resolution mechanisms, alternative to the litigation. These extra-judicial mechanisms of resolving disputes or differences or claims of the parties, inter alia, are negotiation, mediation and arbitration. The first two are essentially negotiation mechanisms and the third one is decisional mechanism where parties’ appointed judges or experts give decision on the point on which parties are at issue based on the principles of the law. The point of worth consideration is to wonder if all matters are capable of settlement by arbitration. Based on county’s public policy consideration, some matters are arbitrable whereas other matters are in arbitrable. The objective of this paper is to analyze whether disputes emanating from administrative contracts are capable of settlement by arbitration or otherwise in Ethiopia under the relevant laws and to survey what the practice looks like in relation to the same. Thus, doctrinal legal research methodology is employed to attain the objective. The findings of the study reveal that there is no uniform practice as to arbitrability of administrative contracts in Ethiopia and there is also no administrative procedure legislation that addresses the problem at hand. Keywords: arbitrability Administrative contracts Alternative Dispute Resolution DOI: 10.7176/JLPG/105-02 Publication date: January 31 st 2021

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

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.

Public Interest Environmental Litigation in Ethiopia: Factors for its Dormant and Stunted Features

Public interest environmental litigation (PIEL) has been introduced into the Ethiopian legal system since 2002 with the prime purpose of facilitating and complementing the environmental protection efforts of the country. However, little progress has been recorded in utilizing this innovative litigation tool. The purpose of this article is to examine the legal and policy frameworks for PIEL and investigate some of the main factors impeding its effective use for the promotion and protection of the environment rights in Ethiopia. Laws related to PIEL are examined and interviews and discussions with the relevant stakeholders are conducted with regard to environmental management in Ethiopia. I argue that even though the legal and policy framework for PIEL, with all its limitations, is in place, gaps in judicial activism, legal culture, political will, public perception towards law, judicial process and justice, the type of legal system, the perception and behavior of the government towards civil society, and inadequate environmental information have adversely affected the development of PIEL.Key termsPublic interest litigation · Environment · Standing · Justice · Ethiopia

Justiciability of Socio-Economic Rights in Ethiopia: Exploring Conceptual Foundations and Assessing the FDRE Constitution and Judicial Perspective

Inclusion of bill of rights in domestic legal framework and rendering socio-economic rights justiciable is one of the main mechanisms through which such rights get effective enforcement. The Ethiopian (FDRE) Constitution has recognized socio-economic rights. It empowered ratified international human rights treaties to serve as standards of interpretation for the bill of rights recognized in the Constitution, many of which treat socio-economic rights as justiciable. However, the Ethiopian judiciary is reluctant to apply human rights provisions recognized in the Constitution, including socio-economic rights. It is argued that this is mainly attributed to the confusion existing as to the power of interpreting constitutional norms and their application, and the status of international treaties in domestic arena. The continued but waning debate over justiciability of socio-economic rights across the globe has also contributed its share, though insignificantly. This article, in an attempt to ascertain justiciability of socio-economic rights in the Ethiopian legal system, explores the conceptual foundations, and analyzes the normative provision of the FDRE Constitution and judicial perspective regarding justiciability of socio-economic rights.

Child Rights Protection in Ethiopia: Critical Analysis of the Statutory Rape Provisions of the Criminal Code and Their Application

Children, due to their mental and physical immaturity, are among the vulnerable section of the society. States are thus required to provide special protection and care for children by making necessary legal and institutional arrangements. To this effect, Ethiopia has ratified international and regional human rights instruments meant to provide protection for children. It also included provisions protecting child rights in its constitution. These constitutional provisions have also found expression in the subsequent legislative reform that, among others, resulted in the adoption of a New Criminal Code in 2004. This Criminal Code replaces the provisions of the earlier 1957 Penal Code on statutory rape providing better protection for children against sexual abuse. Yet, gaps still persist both in the law and practice in terms of fully realizing the rights of children in Ethiopia. This article aims to examine the legal and practical protection of children by the statutory rape provisions of the Criminal Code in the Ethiopian legal system. In doing so, it attempts to evaluate the current statutory rape provisions of the Criminal Code against child rights standards as well as evaluating the practical application of the laws by courts and prosecutors.

How Does the Case Law System Fit into the Ethiopian Legal System?

Ethiopia's legal system largely belongs in the civil law system. Conversely, the case law system is a distinguishing feature of the common law system.Recently, the Ethiopian Federal legislature has enacted a legislation which introduces a rule whereby a judgment rendered by the Cassation Bench of the Federal Supreme Court would be binding upon all subordinate courts at federal and regional levels.This paper investigates how the case law system would fit into the Ethiopian legal system.

The Standard of Proof in Criminal Proceedings: the Threshold to Prove Guilt under Ethiopian Law

The standard of proof plays a vital role in the process of administration of justice. In criminal proceedings, the standard stipulates the degree to which the party who has the burden of proof needs to establish the facts constituting the elements of the crime. This article gives an overview of the meaning and scope of the ‘beyond a reasonable doubt’ standard and subsequently argues that this standard is adopted in the Ethiopian legal system although it is nowhere clearly stated. It discusses the normative legal framework from which this standard can be inferred. It then explores the practice of the Federal Supreme Court Cassation Division by summarizing and analyzing cases most pertinent to the issue of standard of proof. Key words : Standard of proof, beyond reasonable doubt, criminal proceedings, Ethiopia

Uniform Application of Law in Ethiopia: Effects of Cassation Decisions of the Federal Supreme Court

The Ethiopian legal system has transplanted substantial elements from both Continental Law and Common Law legal systems. While the legal system is characterized by its reception of substantial rules from the Continental Law Legal System, there are some concepts transplanted from the Common Law legal system particularly incorporated in the procedural laws. Moreover, under Proclamation No. 454/2005, the interpretation of laws by the Cassation Division of the Federal Supreme Court (hereinafter Cassation Division) is made to have binding authority on all lower courts at all levels in the entire country. Although the Proclamation seems to introduce the doctrine of precedent, there is a debate as to whether what is introduced under the Proclamation amounts to a precedent system or not. Moreover, it is not expressly given whether judicial organs other than regular courts such as administrative agencies or tribunals, religious and customary courts are bound by the decision of the Cassation Division. The Proclamation also does not provide for the effects of overruling and preconditions to overrule previous decisions of the Cassation Division. The purpose of this article is to critically analyze the legal effects of the binding interpretation of law given at cassation by the Federal Supreme Court in the Ethiopian legal system.

Exit Rights of Minority Shareholders in Closely Held Corporations: A Comparative Study of English, Germany and Ethiopian Laws

Closely held company form is prone to the problem of minority oppression. This is due to the nature of the firm that adopts the features of partnerships and corporate forms. When the majority becomes opportunistic, due to majority rule, there is no mechanism to tackle their action or easy exit. The shares are illiquid non-tradable. Advance planning is, practically, either prohibitively too costly or is not easy to be foreseen due to trust, confidence and optimism members inert se who either have familial, friendship or other relationships. This oppression is unfair and economically inefficient and it will affect financial markets negatively. So corporate strategy towards minority oppression and exit right for the minority is unquestionably necessary.Some advanced jurisdiction like England and Germany have devised different rules to this effect. Winding-up, unfair prejudice (oppression remedy), appraisal rights etc. are the most important exit rights adopted in the two systems. They adopt similar, if not the same, strategies towards the problem of minority oppression.Ethiopian private limited company is similar to the English and Germany private limited companies. The two are two have a laws that shaped company laws of many jurisdictions and their experience is worth to be sought. If minority oppression is a problem in those jurisdictions then it is must be a big problem in Ethiopia too. This is because firstly investors using the same types of firms are seen to face similar problems. Secondly in Ethiopia where business is least developed, court system is weak and contract enforcement is weakest, investors are less sophisticated and market continuously fails government intervention in such regulatory measure is a necessity. It is my thesis that the Ethiopian legal system should adopt those strategies and make amendment to the already existing exit rights so that the minorities will be better protected, investment promoted and economic efficiency build. Taking principles, rules and doctrines from the two systems based on the merit of, and not total alignment to one of them, is wise choice.

Ethnicity, Federalism and Development: Constitutional Solutions for Ethiopia?

In 1994, Ethiopia adopted a new Constitution, thus establishing the 'Federal Democratic Republic of Ethiopia'. This latest branch to the large world-wide family of federal states has received much attention and criticism since, criticism both on the underlying political system and on specific features of the new Constitution. These features will be focused on in this paper. The authors of the present paper specialize in constitutional law. They will therefore focus their attention on constitutional anomalies in the present Ethiopian federal system. This paper is therefore written from a mere constitutional point of view, disregarding daily politics. Point of departure of the discussion is the unofficial English translation of the text of the Constitution of 1994 as provided by the Ethiopian Consulate in The Hague. Hardly any other legal text or general information on the Ethiopian legal system was available. It also has to be notes that the authors are of Dutch (and therefore Western European) origin. They are aware of the existence of clear differences between the structures of Western European and African society. Still, they want to make some critical remarks to the Ethiopian constitution from a point of view from the outside.

Legal History: Part II a Teaching Material for the Undergraduate Course in Legal History in Ethiopian Law Schools

This course is a critical survey of the major past and present legal traditions of the world. It identifies and explains the central problems those legal traditions faced; the type of solutions they gave to such problems and the reasons why they chose those solutions. Identifying the key issues encountered by past legal systems and the solutions offered thereto is hoped to throw light on the foundations of the Ethiopian legal system since some major legal traditions have a tremendous influence over the same. In so doing, the course conveys the message that the Ethiopian legal system may not be properly appreciated without some knowledge about major legal traditions of the world. The course discusses the story of how non-western legal traditions such as the African customary law tradition and religious law traditions (e.g. the Islamic law tradition) were affected by the western legal thinking especially in the 19th and 20th centuries. Moreover, this course analyses such core concepts as legal history, legal tradition, legal system and legal transplantation in addition to examining the concepts of legal convergence and legal divergence, meaning the various forces which bring together and drift apart the principal legal traditions of the world.The course emphasizes the significance of understanding past legal systems for an enhanced appreciation of present legal orders. It seeks to direct the attention of students to the co-existence of multiple legal orders in multiethnic countries such as Ethiopia. The course seeks to stimulate students to be appreciative of and sensitive to diverse legal traditions.

Legal Pluralism in Light of the Federal and State Constitutions of Ethiopia: A Critical Appraisal

This thesis aims at analyzing the functioning and implementation of legal pluralism within the multinational federal setting of Ethiopia. Through the study of the institutional (constitutional) devolution or decentralization of legislative and adjudicatory authority that is taking place in the country, elements of legal pluralism will be identified and explained. Furthermore, through the study of empirical findings in addition to others’, coupled with established theory and generalizations, it shall attempt to explore the structure of the Ethiopian legal system. The relationship among the multiple layers of the country’s legal structure is also examined, including the chief challenges posed by the fact of legal pluralism.The first objective was to see if the new constitutional order furnishes public space necessary for the play of nonstate actors, particularly ethnic and religious groups. In so doing, it has unraveled the constitutive layers of the country’s legal structure ,and hence, its pluralist framework. The second objective was to examine the prevalent condition of legal pluralism under the present constitutional order. On the one hand, it has presented the ways in which the state actors have brought about pluralism in the law. On the other hand, it has discussed how and to what extent state constitutionalism can serve as an institutional modality for implementing legal pluralism. The third objective was to explore the current frontiers of formal legal pluralism. Fourthly, it has put forth arguments, based on an empirical case - the abbo-gerreb of Wejerat and Raya-Azebo in Tigray, for extending full public recognition to the dominant customary law systems, at least the abbo-gerreb. Stated differently, arguments have been marshaled in favor of the need to redraw the present frontiers of formal legal pluralism to accommodate at least some of the well-established customary criminal processes. Finally, it has called particular attention to two major threats that the fact of legal pluralism presented to both the rule of law and the smooth operation of law in the Ethiopian multinational federal set-up.

Homicide in Ethiopia: Human Rights, Federalism, and Legal Pluralism

This article discusses how the Ethiopian state can maintain the level of protection of human rights necessary to protect its standing in the international community while at the same time respecting and incorporating within its formal legal system the multiple customary law systems existing within its borders. The article describes the modern Ethiopian State and the ethnic composition of the Ethiopian people, with particular reference to the Amhara, Gumuz and Somali peoples, and it examines the treatment of homicide within the customary law systems of these three peoples (with focusing on the right to life, the protection of female children against exploitation, and the right of women not to be discriminated against on the basis of their gender). The article examines in detail the interplay between customary law systems, modern notions of human rights, federalism and legal pluralism, and it considers procedural mechanisms useful for reconciling the formal Ethiopian legal system and the informal Ethiopian customary law systems. Finally, the article proposes a plan of action for the Ethiopian government that will respect and preserve the customary law, concluding that the key to success is adoption of a maximally flexible system of legislative federalism.The article argues that in order to fulfill its commitment to establish the rule of law while protecting its customary law systems, the Ethiopian government should 1) create a flexible federal framework of statutory law that will allow the Ethiopian state governments to accommodate the customary law systems within their borders; 2) inventory the more than sixty Ethiopian customary law systems to evaluate their procedures and practices and determine which are and which are not in conformance with the international human rights guarantees contained in the Ethiopian constitution; and 3) devise techniques to monitor the performance of the customary law regimes for compliance with minimal standards of human rights protection, and to upgrade their performance in that regard. Completion of these tasks will require reconciling competing pairs of values: rule of law and preservation of customary law, protection of human rights and protection of custom, certainty in the law and flexibility, uniformity in the law and local autonomy.

Law and Rural Development in Ethiopia

The attention of the world was focused on Ethiopia, briefly, when Emperor Haile Selassie I, once considered the inviolate descendant of Solomon and Sheba and the Elect of God, was deposed on September 12, 1974, and when, on November 23, 1974, sixty public and military officials were executed without trial. The Provisional Military Administrative Council, or Dirg , formally assumed power under Proclamation No. 1 of 1974 ( Neg. Gaz. 34/1) which deposed the Emperor and “suspended” the 1955 Revised Constitution, while providing that all other laws and regulations remain in force. De facto, of course, the entire legal system remains in suspense and the emerging Grundnorm or basic postulate of Ethiopian public law has become the as yet vague philosophy of Ethiopia Tikdem , defined as encompassing the tenets of Ethiopian socialism. Although the “revolutionary” movement was undertaken in the name of the peasants, events and legal changes have, to date, affected only the urban areas, and the Dirg's promise to pursue rural development and land reform ( Ethiopian Herald , 1974: 4) has remained a mere promise. Will the interests of rural Ethiopians be pursued by the new regime in the future? What role will law play in this process? These problems will be resolved as a result of future political choices, and Ethiopia is at a stage in her history when difficult choices must be made in many areas. It is therefore an appropriate time to assess where the Ethiopian legal system has been and where it could go from the standpoint of improving the quality of the life of Ethiopia's subsistence peasants, who constitute eighty percent of the population.