By Girmachew Alemu Aneme
Girmachew Alemu Aneme ( Ph.D.) is an Assitant Professor and Head of the Research and Publications Unit, School of Law, Addis Ababa University. He is also the Editor-in-Chief of the Journal of Ethiopian Law (established in 1964).
Published August/September 2010
Table of Contents
2.1 Law-Making Institutions
(A) Federal Institutions
(B) State Institutions
2.2 The Judiciary
2.2.1 Federal Courts
2.2.2 State Courts
2.2.3 Municipal Courts
2.2.4 Social Courts
2.2.5 Religious Courts
2.2.6 Customary Courts
Ethiopia is located in East Africa in the sub-region known as the Horn of Africa. It covers an area of about 1.2 millions square kilometers. It is bordered by Sudan on the west, Kenya on the south, Somalia and Djibouti on the east, and Eritrea on the north. It has a population of some 80 million inhabitants, about 85 per cent of whom earn their living from agriculture. [] Agriculture is the backbone of the national economy. The country has a GDP per capita of about USD 318. [] Life expectancy at birth is 53 years for males and 56 years for females. [] Ethiopia’s capital city, Addis Ababa, is the sit of numerous international and regional organizations including the African Union and the United Nations Economic Commission for Africa.
Ethiopia is one of the ancient countries in the world. Present day Ethiopia was created by highland rulers through twin processes of political and economic conquest in the late nineteenth and early twentieth centuries. Emperor Menelik II (r. 1889-1913) embarked on a campaign of expanding his rule from the central highland regions to the South, West and East of the country and established the current map of Ethiopia, a country housing more than eighty different ethnic groups. [] Emperor Menlik II also led the Ethiopian forces that defeated the Italian colonial army at the battle of Adwa in March 1896, in Tigray, North Ethiopia. After the demise of the power of Emperor Menlik II and his eventual death, Ras Tafari Mekonnen won the power struggle and was crowned Emperor Haile Selassie in November 1930. Although Emperor Haile Selassie is credited for the modernisation of the bureaucracy and for establishing a relatively longer period of political stability, his reign was controversial, inter alia, because of his exile during the second Italian invasion of Ethiopia in 1936-1941 and the oppressive control of the political and economic life of the citizenry. [] In 1961 the royal bodyguard attempted a coup d’état which was taken as a sign of the popular dissatisfaction with the pace of development and liberalization at the time. The lack of proper and adequate reform led to a growing movement against Haile Selassie’s regime mostly led by the radical and left wing intelligentsia. The popular movement caused the break down of Haile Selassie’s regime in 1974. The lack of organized political groups to lead the country enabled a group of low ranking military officers called the Derg [] to assume power in September 1974. The Derg era was characterized by massive human rights violations and internal conflicts. In 1991 the Ethiopian Peoples’ Revolutionary Democratic Front (EPRDF) launched a successful military assault through central and western provinces, while in the east, Eritrean forces closed in on the cities of Assab and Asmara. [] In May 1991, the Head of State, Colonel Mengistu Hailemariam, fled to Zimbabwe. EPRDF forces took control of Addis Ababa at the end of May 1991. In July 1991 a national conference established the Transitional Government of Ethiopia. The conference also endorsed a Transitional Charter that worked as an interim constitution. In December 1994 the newly elected federal parliament ratified the Constitution of the Federal Democratic Republic of Ethiopia.
(1) The Federal Legislature
The Constitution of the Federal Democratic Republic of Ethiopia (FDRE Constitution) establishes a two-house parliament for the federal government: the House of Peoples’ Representatives and the House of Federation. [] Although the FDRE Constitution establishes a two-house parliament, the Ethiopian Parliament is not bicameral in the strict sense of the term. The highest legislative authority is vested in the House of Peoples’ Representatives (HPR), which is comparable to the first or lower chamber of a legislature, normally serving the interests of the people in the federation as a whole. The members of the HPR are elected by a plurality of the votes cast in general elections every five years. [] The HPR has 550 members, and at least 20 seats are reserved for minority nationalities and peoples in order to ensure their representation. However, the FDRE Constitution does not define these groups, save that it declares that particulars shall be determined by law. []
The Ethiopian system is essentially parliamentarian, where the political party or parties with the greatest number of seats in the HPR shall form and lead the executive and approve the appointment of members for the executive Council of Ministers and the Prime Minister. [] The HPR shall also nominate the candidate for the president, who will be accepted by a two-thirds majority of both chambers of the legislature. [] The President has no real powers, but should, similar to other constitutional presidents and monarchs, formally sign all new laws coming from the HPR. [] The Prime Minister has extensive powers, akin to those of presidents in presidential systems. []
Members of the HPR are popularly elected for a five-year term in a “first-past-the-post” electoral system. The most important function of the HPR is to enact laws on matters assigned to federal jurisdiction and ratify national policy standards. [] The HPR also exercises other important functions including the appointment of federal judges, the ratification of international agreements and the investigation of the conduct of members of the executive.
The House of the Federation (HOF) is the second or upper chamber in the federal government of Ethiopia. In conventional federal systems, the second chamber serves as the representative institution for the regional units. In the Ethiopian system, the HOF has essentially the same function, but in the FDRE Constitution, this is formulated in a slightly different way: it is not composed of representatives from the federal units, but “of representatives of Nations, Nationalities and Peoples”. []
Each officially recognized ethno-national group should have in principle one representative in the HOF. Additionally, the population number of each nation or nationality is taken into consideration by giving one representative extra for each million of its population. [] Members of the HOF are elected by the State Councils in each regional state. [] The HOF is given the most important power of the interpretation of the FDRE Constitution.[] The HOF is also empowered to decide upon issues related to the rights of states to self-determination including secession, find solutions to disputes between states, and determine the division of joint federal and state revenues and the federal subsidies to the states. []
(2) The Federal Executive
The power of government is granted to the majority party in the House of Peoples’ Representatives (HPR), and the highest executive powers of the federal government are vested in the Prime Minister and Council of Ministers, who are accountable to the HPR. [] The Prime Minister is elected from among members of the HPR and is not subject to a term limit. The Prime Minister has the following powers and functions: []
· The Prime Minister is the Chief Executive, the Chairman of the Council of Ministers, and the Commander-in-Chief of the national armed forces.
· The Prime Minister shall submit for approval to the House of Peoples’ Representatives nominees for ministerial posts from among members of the two Houses or from among persons who are not members of either House and possess the required qualifications.
· He shall follow up and ensure the implementation of laws, policies, directives and other decisions adopted by the House of Peoples' Representatives.
· He leads the Council of Ministers, coordinates its activities and acts as its representative.
· He exercises overall supervision over the implementation of policies, regulations, directives and decisions adopted by the Council of Ministers.
· He exercises overall supervision over the implementation of the country’s foreign policy.
· He selects and submits for approval to the House of Peoples’ Representatives nominations for posts of Commissioners, the President and Vice-President of the Federal Supreme Court and the Auditor General.
· He supervises the conduct and efficiency of the Federal administration and takes such corrective measures as are necessary.
· He appoints high civilian officials of the Federal Government other than those referred to in sub-Articles 2 and 3 of this Article.
· In accordance with law enacted or decision adopted by the House of Peoples’ Representatives, he recommends to the President nominees for the award of medals, prizes and gifts.
· He shall submit to the House of Peoples’ Representatives periodic reports on work accomplished by the Executive as well as on its plans and proposals.
· He shall discharge all responsibilities entrusted to him by this Constitution and other laws.
· He shall obey and enforce the Constitution.
The Council of Ministers along with the Prime Minister is vested with the highest executive authority. The Council of Ministers comprises the Prime Minister, the Deputy Prime Minister, Ministers and other members as may be determined by law. The Council of Ministers has the following powers and functions: []
· The Council of Ministers ensures the implementation of laws and decisions adopted by the House of Peoples’ Representatives.
· It shall decide on the organizational structure of ministries and other organs of government responsible to it; it shall coordinate their activities and provide leadership.
· It shall draw up the annual Federal budget and, when approved by the House of Peoples’ Representatives, it shall implement it.
· It shall ensure the proper execution of financial and monetary policies of the country; it shall administer the National Bank, decide on the printing of money and minting of coins, borrow money from domestic and external sources, and regulate foreign exchange matters.
· It shall protect patents and copyrights.
· It shall formulate and implement economic, social and development policies and strategies.
· It shall provide uniform standards of measurement and calendar.
· It shall formulate the country’s foreign policy and exercise overall supervision over its implementation.
· It shall ensure the observance of law and order.
· It has the power to declare a state of emergency; in doing so, it shall submit, within the time limit prescribed by the Constitution, the proclamation declaring a state of emergency for approval by the House of Peoples’ Representatives.
· It shall submit draft laws to the House of Peoples’ Representatives on any matter falling within its competence, including draft laws on a declaration of war.
· It shall carry out other responsibilities that may be entrusted to it by the House of Peoples’ Representatives and the Prime Minister.
· It shall enact regulations pursuant to powers vested in it by the House of Peoples’ Representatives.
The Federal Democratic Republic of Ethiopia consists of the Federal Government and nine member States (also referred to as regions or regional States) and two federal cities, Addis Ababa and Dire Dawa. The nine member States of the federation are the State of Tigray, the State of Afar, the State of Amhara, the State of Oromia, the State of Somalia, the State of Benshangul/Gumuz, the State of the Southern Nations, Nationalities and Peoples, the State of Gambela, and the State of Harari People. [] The FDRE Constitution provides that the nine member States of the federation shall have legislative, executive and judicial powers over matters falling under State jurisdiction. [] Within their legislative mandate, the member States of the federation have the power to enact and execute state constitutions. [] All member States of the federation have enacted their respective constitutions. The State constitutions provide the details of the legislative, executive and judicial branch of State administration.
The FDRE Constitution empowers member states of the federation to establish a legislative organ called the State Council. [] The State Council is composed of representatives accountable to the people of the State. The State Council represents the highest level of state authority, and has the power of legislation on all matters falling under state jurisdiction. [] The State Council is also given the power to draft, adopt and amend the state constitution. [] State Constitutions provide the number of the members of the State Councils in each state and the modalities of their election. Most States have only a single parliamentary Council that both enacts laws and decides State constitutional issues. In at least two States, however, second legislative houses have been established to decide State constitutional issues, similar to the role of the Federal House of Federation. [] Where they exist at State level, these separate constitutional decision-making parliamentary bodies are known as the House of Nationalities.
(2) The State Executive
The State administration constitutes the highest organ of executive power. [] The State administration has a Chief Administrator, or Regional Administrator as its chief executive officer. The Chief Administrator is elected among members of the State Council by a political party or coalition of political parties that constitutes a majority in the State Council. The Chief Administrator establishes the State executive council and nominates its members. The members of the State executive council (the Chief Administrator, Deputy Administrator and the heads of the various regional bureaus) need to be confirmed by the State Council. State executive councils have the power to implement laws and policies enacted by the State Council and the federal legislature. The State executive structure is replicated in lower State administration levels such as Zones and Weredas (districts).
(A) Structure and Jurisdiction
Ethiopia has a dual judicial system with two parallel court structures []: the federal courts and the state courts with their own independent structures and administrations. Judicial powers, both at Federal and State levels, are vested in the courts. The FDRE Constitution states that supreme federal judicial authority is vested in the Federal Supreme Court and empowers the HPR to decide by a two-third-majority vote to establish subordinate federal courts, as it deems necessary, nationwide or in some parts of the country. [] There is a Federal Supreme Court that sits in Addis Ababa with national jurisdiction and until recently, the Federal High Court and First Instance Courts were confined to the federal cities of Addis Ababa and Dire Dawa. In recent years, Federal High Courts have been established in five States. [] Federal courts at any level may hold circuit hearings at any place within the State or “area designated for its jurisdiction” if deemed “necessary for the efficient rendering of justice.” [] Each court has a civil, criminal, and labor division with a presiding judge and two other judges in each division.
The Federal Supreme Court includes a cassation division with the power to review and overturn decisions issued by lower federal courts and State Supreme Courts containing fundamental errors of law. Besides, judicial decisions of the Cassation Division of the Federal Supreme Court on the interpretation of laws are binding on Federal as well as State courts. []
The Federal Courts Proclamation allocates subject-matter jurisdiction to federal courts on the basis of three principles: laws, parties and places. It stipulates that federal courts shall have jurisdiction over, first, “cases arising under the Constitution, federal laws and international treaties,’ second, over parties specified in federal laws.” [] Article 3(3) of the Federal Courts Proclamation states that federal courts shall have judicial power in places specified in the FDRE Constitution or in federal laws. Article 5 of the same Proclamation stipulates that federal courts shall have civil jurisdiction over “cases to which a federal government organ is a party; suits between persons permanently residing in different regions; cases regarding the liability of officials or employees of the federal government in connection with their official responsibilities or duties; cases to which a foreign national is a party; suits involving matters of nationality; suits relating to business organizations registered or formed under the jurisdiction of federal government organs; suits regarding negotiable instruments; suits relating to patent, literary and artistic-ownership rights; and suits regarding insurance policy and application for habeas corpus’.
Article 4 of the Federal Courts Proclamation bestows upon federal courts criminal jurisdiction over: offences against the national state; offences against foreign states; offences against the law of nations; offences against the fiscal and economic interests of the federal government; offences regarding counterfeit currency; offences regarding forgery of instruments of the federal government; offences regarding the security and freedom of communication services operating within more than one region or at international level; offences against the safety of aviation; offences of which foreigners are victims or defendants; offences regarding illicit trafficking of dangerous drugs; offences falling under the jurisdiction of courts of different regions or under the jurisdiction of both the federal and regional courts as well as concurrent offences and offences committed by officials and employees of the federal government in connection with their official responsibilities or duties. []
NOTE: Important cases are selected and compiled by the Federal Supreme Court. These compilations are in Amharic ( the national working language) and are sold by the Federal Supreme Court. Otherwise copies of cases can be acquired from the registrar of the court where they are finally settled.
(B) Accountability and Administration
The Federal Judicial Administration Commission is a nine-member body comprising of six Federal judges and three members of the House of Representatives. [] The Commission is composed of the following members: []
The Federal Judicial Administration Commission has the following powers and duties: []
Article 81 (4) of the Constitution;
The day-to-day operations of the Federal Courts in Ethiopia are supervised and managed by court presidents, who therefore act both as judges and administrators with responsibilities and obligations towards the President of the Supreme Court.
(A) Structure and Jurisdiction
The FDRE Constitution provides for the establishment of three levels of State courts: the State Supreme Court (which also incorporates a cassation bench to review fundamental errors of state law), High Courts, and First-Instance Courts. [] State Supreme Courts sit in the capital cities of the respective States and have final judicial authority over matters of State law and jurisdiction. State High Courts sit in the zonal regions of States while State First Instance Courts sit at the lowest administrative levels of States.
The FDRE Constitution delegates to State Supreme Courts and State High Courts the jurisdictions of the Federal High Court and Federal First Instance Courts respectively.[] In order to guarantee the right of appeal of the parties to a case, decisions rendered by a State High Court exercising the jurisdiction of the Federal First Instance Court are appealable to the State Supreme Court while decisions rendered by a State Supreme Court on federal matters are appealable to the Federal Supreme Court. []
(B) Accountability and Administration
The Addis Ababa City Charter creates two levels of City Courts exercising municipal jurisdiction: First Instance and Appellate Courts. [] There is no Supreme Court in the municipal system, although a cassation bench is included within the Appellate Court. Cassation review of the Appellate Court decisions can be brought before the Federal Supreme Court, which also decides jurisdictional conflicts between the city and federal courts. [] The Addis Ababa City Courts have civil, criminal and petty offence jurisdiction. [] The State of Oromia has also established similar Municipal Courts in cities with more than 10, 000 people.
The Addis Ababa City Charter established Kebele [ ] Social Courts (more than 200 Kebeles exist in Addis Ababa) to hear property and monetary claims up to 5,000 birr. [] Social Court decisions can be appealed to the First-Instance City Courts.[] If there is a fundamental error of law in the decisions of the First-Instance City Courts on appeal from Social Courts, it can be a ground to lodge cassation before the Appellate Court of the City. [] Some States have also established Social Courts that handle small claims and minor disputes. []
The FDRE Constitution provides the framework for the independent validity of non-state or unofficial laws such as customary and religious laws in some fields of social activity. Article 34 (5) of the FDRE provides that: “This Constitution shall not preclude the adjudication of disputes relating to personal and family laws in accordance with religious and customary laws, with the consent of the parties to the dispute. Particulars shall be determined by law.” Article 78(5) of the FDRE Constitution also stipulates that: “Pursuant to sub-Article (5) of Article 34 the House of Peoples’ Representatives and State Councils can establish or give official recognition to religious and customary courts that had state recognition and functioned prior to the adoption of the Constitution shall be organized on the basis of recognition accorded to them by this Constitution.” As can be gleaned from the above-cited constitutional provisions, formal legal pluralism under Ethiopia’s new constitutional order is confined to certain matters: only personal status and family law.
To date, Sharia Courts that apply Islamic law are the only religious courts that have been officially established both at the federal and state levels. Sharia Courts apply only Islamic law and have their own appellate system. They are required, however to follow the procedural rules of ordinary courts and receive their budgets from the state. Parties must voluntarily submit to the jurisdiction of these courts, or the dispute should be redirected to the regular courts. Proclamation 188/1999 [] spells out the circumstances under which Islamic law can be applied by Sharia courts at the federal level. The Sharia Courts at the federal level have been reconstituted in to a three-level judicial structure, distinct from the regular federal judicial structure. These are: (1) Federal First-Instance Court of Sharia, (2) Federal High Court of Sharia, and (3) Federal Supreme Court of Sharia. Like the federal state judicial organs, all the federal Sharia courts have been made accountable to the Federal Judicial Administration Commission. All of the State Councils have also given official recognition to Sharia Courts within their respective jurisdictions.
Article 4(1) of Proclamation No. 188/1999 stipulates that Federal Courts of Sharia have common jurisdiction over the following matters:
· any question regarding Wakf, gift/Hiba/, succession of wills, provided that the endower or donor is a Muslim or the deceased was a Muslim at the time of his death;
Sub-Article (2) of the same reiterates the principle of parties’ consent as the basis for the adjudicatory jurisdiction of Sharia courts. Sharia courts can assume jurisdiction “only where... the parties have expressly consented to be adjudicated under Islamic law.” Tacit consent has also been provided for in addition to express consent. Pursuant to Article 5(2) of Proclamation No. 188/1999, failure to appear before the Sharia court amounts to consent to the court’s jurisdiction on condition that the defaulting party has been duly served with summons. Thus, the suit will be heard ex parte. Article 5(3) of the same provides that in the absence of clear consent of the parties for the case to be adjudicated by the court of Sharia before which the case is brought, such court shall transfer the case to the regular federal court having jurisdiction. Moreover, once a choice of forum has been made by the plaintiff and the defendant has consented to the jurisdiction of such a forum, under no circumstance can either party have their case transferred to a regular court. []
Customary courts are not established by law, despite their constitutional recognition. They are only recognized, not created, by law. The authority of these courts stems from tradition and local customs. These courts have evolved from traditional elder councils, which do not have legal authority, but carry moral force and still operate widely as primary decision-makers in rural areas throughout Ethiopia. To name but a few of the customary courts: the Shemagelle in Amhara, the Bayito and Abo Gereb in Tigray, and the Luba Basa in Oromia. In addition, the choice whether to take a dispute to regular courts or to one of those non-official forums is entirely left to the parties.
Alternative Dispute Resolution Mechanisms as they are applied here refer to the mechanisms of resolving differences through processes other than formal litigation in courts. This section outlines the mechanisms found in formal laws and institutions rather than customary/ traditional methods.
The Civil Code Title XX, Chapter 1, Section 2, Article 3318 (1) defines conciliation as a process ‘where parties may entrust a third party with the mission of bringing them together and, if possible, negotiating a settlement between them’. The definition shows that conciliation is a voluntary process of mediation based on negotiation between two or more parties for the amicable settlement of their dispute. Moreover, Articles 3319 and 3320 of the Civil Code provide the duties of the parties to the negotiation and the conciliator. Article 3319 of the Civil Code states that: (1) The parties shall provide the conciliator with all the information necessary for the performance of his duties; (2) They shall refrain from any act that would make the conciliator’s task more difficult or impossible.
In a similar parlance, Article 3320 of the Civil Code provides the duties of the conciliator as follows: (1) Before expressing his findings, the conciliator shall give the parties an opportunity of fully stating their views; (2) He shall draw up the terms of a compromise or, if none can be reached, a memorandum of non-conciliation; and (3) He shall communicate these documents to the parties.
The Civil Code further provides that the conciliator shall carry out his/her duties within the period of time fixed by the parties. Where the parties did not fix any time limit, the law provides that the conciliator shall finish his work within six months from the date of her/his appointment. The law further declares that the parties are not allowed to bring their case to the court before the expiry of the fixed period of time unless the conciliator draws up a memorandum of non-conciliation. This means in effect the parties can not take their case to a court before a negative or positive outcome of the process of conciliation to which they have submitted themselves voluntarily (see Article 3321 (1) and (3) of the Civil Code). As indicated in Article 3320 (2), the conciliation process can end up in drawing a non-conciliation memorandum (a negative outcome) or it may end up in drawing a compromise (a positive outcome). Where the outcome is a compromise, the meaning and legal consequences of a compromise are provided under Title XX, Chapter 1, and Section 1 of the Civil Code. The following section (B) analyses the relevant provisions on compromise.
As indicated above, conciliation may result in compromise. The Civil Code defines ‘compromise’ as a mechanism where parties to a dispute ‘terminate an existing dispute’ or prevent future dispute ‘through mutual concessions’ (Article 3307). In terms of format, the Civil Code provides that a compromise should be made in a form of contracts. That means a compromise document drawn up as a result of the conciliation process described in the section above should be made in writing and the parties to such compromise will be bound by the terms only when they declare their acceptance in writing. Article 276 of the Ethiopian Civil Procedure Code provides the content of a compromise agreement. Once a compromise is properly drawn and accepted by the parties, the Civil Code declares that ‘ [a]s between the parties, the compromise shall have the force of res judicata without appeal’(see Article 3312(1)). This means the agreement of the parties that resulted from the conciliation process is taken as final and binding. The strong position of the Civil Code can also be inferred from its declaration that a compromise can be invalidated only when there is a fundamental mistake (where for instance the agreement of one of the parties was based on a false document) or when there was a court judgment on the same issue that was subject of the compromise and when such judgment was unknown to at least one of the parties. The compromise is considered void ab initio, where it relates to a contractual agreement the object of which is contrary to the law or public morality (see Article 3316).
The Civil Code recognizes the procedure of arbitration to resolve cases out of the formal courts of law. The provisions of the Civil Code (Articles 3325—3345) provide the details on arbitration.
(A) The Labour Proclamation No.377/2003
The Labour Proclamation No.377/2003 is a law enacted by the federal government that recognizes and protects the rights of employees and employers and governs their relationship. [] The Labour Proclamation provides for the possibility of conciliation between parties in a labour dispute. Article 136(3) of the Labour Proclamation defines labour dispute as ‘any controversy arising between a worker and an employer or trade union and employers in respect of the application of law, collective agreement, work rules, employment contract or customary rules and also any disagreement arising during collective bargaining or in connection with collective agreement’.
Article 136(1) of the Labour Proclamation defines conciliation as ‘the activity conducted by a private person or persons appointed by the Ministry [] at the joint request of the parties for the purpose of bringing the parties together and seeking to arrange between them voluntary settlement of a labour dispute which their own efforts alone do not produce.’
The above definition shows that conciliation is a mediation process between parties with the objective of finding amicable settlement of their labour dispute. The Labour Proclamation does not provide any mandatory procedure that should be followed by a conciliator in finding amicable settlement to labour disputes. In this regard, Article 142(2) of the Labour Proclamation generally provides that the ‘conciliator shall endeavor to bring about a settlement by all reasonable means as may seem appropriate to that end.’ The conciliator is expected to find amicable settlement to a labour dispute within 30 days. If it is not possible to find amicable settlement, the conciliator shall write a report on the dispute and provide the reasons why amicable settlement of the dispute was not possible. Once a report of non-conciliation is drawn by the conciliator, any of the parties can take the case to the Labour Relations Board or the Labour court for judicial settlement.
(B) The Labour Conciliation Office
As indicated above, the Labour Conciliation Office is established pursuant to the Labour Proclamation No.377/2003 and attempts to find amicable settlement of labour disputes based on the voluntary submission of the parties to its mediation efforts. It is also pointed out that the Labour Proclamation No.377/2003 does not provide a procedure to be followed during the mediation process. Nonetheless, a visit to the Labour Conciliation Office at the Ministry of Labour and Social Affairs reveals that the Office follows the following written internal procedure in the mediation process: []
According to the information gathered from the Labour Conciliation Office at the Ministry of Labour and Social Affairs a little, more than half of the labour disputes that went through the mediation process are settled amicably.
Article 22(1) of the Ombudsman Proclamation provides that ‘[a] complaint may be lodged by a person claiming to have suffered from maladministration or, by his spouse, family member, and his representative or by a third party.’ After a complaint is filed, the institution of the Ombudsman may launch its investigation and examine evidence presented in support of the complaint. Once investigation is done, the Ombudsman Proclamation provides amicable settlement as the first line of remedy. Thus, Article 26(1) of the Ombudsman Proclamation declares that the institution shall make all the effort it can summon to settle a complaint brought before it amicably.
Nonetheless, the Ombudsman Proclamation does not provide a procedure on the amicable settlement of administrative disputes. In practice, investigators of the Ombudsman office have informally conducted mediation processes to resolve some of the cases that came to their attention.
3.4 The Ethiopian Human Rights Establishment Proclamation 210/2000
In similar parlance with the Ombudsman proclamation, Article 26(1) of the Ethiopian Human Rights Establishment Proclamation provides that the Human Rights Commission shall make all the effort it can summon to settle a complaint brought before it amicably. Again, there is no procedure provided for the amicable settlement of disputes. In practice, investigators of the Commission have informally conducted mediation processes to resolve some of the cases that came to their attention.
(A) The Ethiopian Arbitration and Conciliation Center
The Ethiopian Arbitration and Conciliation Center (the Center) is an independent (non-governmental), non-profit organization established by a group of lawyers in March 2004. The objectives of the Center include the provision of Alternative Dispute Resolution services for the settlement of disputes in; inter alia, business, labor and family relations. The Center has also the objective of working on research and training as well as the introduction of new laws on Alternative Dispute Resolution mechanisms in Ethiopia.
In line with the above objectives, the Ethiopian Arbitration and Conciliation Center has undertaken numerous mediation efforts in cases involving family and labour rights. The Center carries out the most organized mediation process compared to the other organizations mentioned in this report. As explained in the section below, the Center has developed a draft mediation law. The Center uses the provisions of the draft mediation law as the main instrument for its mediation efforts. In addition to the draft mediation law, the Center follows the following steps in the mediation process:
· The Center undertakes mediation as a result of requests from two major sources. One source is when a court of law refers a case to the Center. This is called court-annexed mediation. According to the Executive Directress of the Center, about 10 court-annexed mediation efforts are being undertaken by the Center currently.
· The other request for mediation service comes directly from individuals. In such cases, the Center calls on the other party and explains the applicant’s request for mediation. Where both parties agree to the mediation effort, they sign a form expressing their agreement in some detail before they begin the mediation process.
· In all kinds of mediation by the Center, the participants are at the end given a form that asks them to evaluate the process.
· The Center conducts mediation processes at both its headquarters in Addis and its branch offices in six states (Hawassa, Dire Dawa, Mekelle, Bahir Dar, Adama and Arba Minch) across the country.
(B) The Draft Mediation Law
The draft mediation law entitled ‘Draft Provisions on Mediation’ was initially prepared by the Ethiopian Arbitration and Conciliation Center. It is believed that the draft law is under consideration by the relevant committees in the House of Peoples’ Representatives.
The draft mediation law contains 29 articles. The draft mediation law can roughly be divided in to four parts. The first part contains Articles 1-10 that define mediation, and explain the source of authority to mediate as well as the respective roles and duties of the mediator and the parties to the mediation process. Article 1(1) of the draft mediation law defines mediation as ‘a process by which a third party neutral, whether one or more, acts as a facilitator to assist in resolving a dispute between two or more parties’. Interestingly, Article 1(2) differentiates between a mediator and a conciliator. According to the provision, a conciliator is more than a mediator as she/he can draw up and propose terms of agreement. Nonetheless, Article 1(4) provides that ‘unless the context provides otherwise the term ‘mediator’ shall be deemed to include the term ‘conciliator’ in the draft mediation law. Article 2(1) explains that the source of authority in mediation is either agreement between parties to the mediation process or a court of law. In relation to the capacity to act as a mediator, Article 4 (1) provides that ‘any physical person having the capacity to contract may act as a mediator’. Article 6 (1) and (2) explain the role of the mediator in the following terms:
Article 8 of the draft mediation law declares that the mediator shall be impartial and independence and provides that a ‘mediator shall have to disclose any current, past, or possible future relationship with any one of the parties to the mediation before the process commences.’ Similarly, Article 10 establishes the confidentiality of the mediation process while Article 19(2) declares that:
In relation to the duties of the parties to the mediation process, Article 7 provides that the parties ‘shall cooperate with the mediator’ and ‘owe the duty to attend the proceedings, respond to questions , submit evidences and clarifications whenever required to do so.’
The second part of the draft mediation law contains Articles 11-20 that focus on defining and explaining the actual process of mediation. Thus, Article 11 explains what the parties need to provide before the mediation process begins. Article 12 provides that attendance is mandatory while Article 13 declares the private nature of the mediation process. Article 17 provides that the mediator shall conclude his/her duties within the period fixed by the parties or in the absence of such agreement within 90 days of accepting her/his appointment.
The third part of the draft mediation law contains Articles 20-25 that provide the options at the end of the mediation process. Thus, Article 22 (1) declares that a ‘mediation process, where possible, shall end in a settlement agreement between the parties’ while Article 24 (1) provides that when ‘a mediation process does not end in a settlement agreement, the mediator shall draw up a memorandum of non-settlement’. The fourth part of the draft mediation law contains miscellaneous provisions (Articles 26-29). It is worth noting that Article 28 provides a very important standard when it declares that a ‘mediator may not act as an arbitrator or a legal counsel or an advocate in any subsequent adversarial process between the same parties and the same issues in the mediated dispute.
(A) The Ministry of Justice
The Federal Ministry of Justice is part of the executive branch of the Federal Government. The Federal Ministry of Justice has the primary authority of prosecution of cases falling under the jurisdiction of federal courts. Article 23 of Proclamation 471/2005 enumerates the powers and duties of the Ministry of Justice. The Federal Ministry of Justice:
· Is chief advisor to the Federal Government on matters of law;
· Represents the Federal Government in criminal cases falling under the jurisdiction of the Federal Courts;
· Orders the conduct of investigation where it believes that a crime the adjudication of which falls under the jurisdiction of the federal courts has been committed; orders the discontinuance of an investigation or instructs further investigation on good cause; withdraw criminal charges in accordance with the law;
· Studies the causes of and the methods of crime prevention; devise ways and means of crime prevention; coordinate the relevant government organs in crime prevention;
· Ensure that witnesses to a criminal case are accorded protection, as necessary;
· Assists victims of crimes or violations of human rights in civil proceedings to claim damages where such victims are unable to institute such claims in federal courts and to follow up the proceeding on their own;
Article 10 of the Council of Ministers Regulation 44/98 deals with the accountability of the Federal Prosecutors and stipulate that prosecutors shall be accountable to the Minister of Justice and also to their immediate or any superior. As the ultimate superior of all prosecutors, the Minister of Justice may thus initiate a specific criminal investigation or stop another. The Minister also has the authority to reverse a decision of a prosecutor or to dismiss a pending case.
(B) The Federal Police Commission
The Federal Police Commission is established by the Federal Police Commission Proclamation No.313/213. The Commission is accountable to the Ministry of Federal Affairs. [] Article 6 of Proclamation No.313/213 provides that the Federal Police have, inter alia, the following powers and functions:
· Prevent and investigate crimes that fall under the jurisdiction of Federal Courts;
· Prevent any activities in violation of the Constitution that may endanger the Constitutional order;
· Prevent violence against public peace, hooliganism, terrorism, trafficking in and transferring of drugs;
· Prevent crimes against the interests and institutions of the Federal Government;
· Without prejudice to Sub-Article (2) of this Article, maintain law and order in any region in accordance with the order of the Federal Government when there is a deteriorating security situation beyond the control of the concerned region and a request for intervention is made by the region: or when disputes arise between two or more regions and the situation becomes dangerous for the Federal security;
· Safeguard the security of borders, airports, railway lines and terminals, mining areas, and other vital institutions of the Federal Government;
· Give security protection to higher officials of the Federal Government and dignitaries of foreign countries;
· Execute orders and decisions of courts;
· Execute orders issued by the Federal Public Prosecutor in regard to investigation of crimes;
· Issue a certificate of no criminal record.
(C) The Federal Prisons Commission
The Federal Prisons Commission is established by Proclamation No.365/2003 as an institution accountable to the Ministry of Federal Affairs. The objectives of the Commission is to admit and ward prisoners, and provide them with reformative and rehabilitative service in order to enable them make attitudinal and behavioral changes, and become law abiding, peaceful and productive citizens. The Federal Prisons Commission has powers and functions akin to most prison facilities.
(A) The State Justice Bureaus
The State Justice Bureaus mirror the Federal Ministry of Justice in their structure and mandate. The State Justice Bureaus are part of the executive branch of the State government. They have similar powers and functions with that of the Federal Ministry of Justice. The Head of a State Justice Bureau has similar powers with the Federal Minister of Justice.
(B) The State Police and Prison Commissions
States are allowed to establish their own Police and Prison Commissions. [] The Police and Prison Commissions of the States are accountable to the State Justice Bureaus. Even though the State Police and Prison Commissions are functionally independent, they are obliged to cooperate with their federal counterparts in order to maintain improved conditions of prisons across the nation.[]
(A) The FDRE Constitution
The Constitution of the Federal Democratic Republic of Ethiopia (FDRE Constitution) was adopted in Addis Ababa by the Constitutional Assembly on the 8th of December 1994, and came into force on the 21st of August 1995. The FDRE Constitution is the supreme law of the land and, as such, all laws of the country derive their legal validity from the Constitution. The FDRE Constitution contains 106 provisions 29 of which are dedicated to the recognition of the fundamental political, economic, social, and cultural rights of citizens.
NOTE: All laws in Ethiopia (including the codes) are published by the state owned Berhanena Selam printing press. The laws are sold at stores owned by the press in Addis Ababa and in other parts of the country.
(B) International Treaties
Article 9(4) of the FDRE Constitution provides that “all international agreements ratified by Ethiopia are an integral part of the law of the land.” Moreover, Article 13(2) of the FDRE Constitution provides that the fundamental rights and freedoms recognized under Chapter 3 of Constitution shall be interpreted in a manner conforming to International Covenants on Human Rights and international instruments adopted by Ethiopia. Ethiopia has ratified numerous international and regional treaties. For instance, Ethiopia has ratified the [Banjul] African Charter on Human and Peoples Rights ,[] the International Covenant on Civil and Political Rights, [] the International Covenant on Economic, Social and Cultural Rights, [] the 1979 Convention on the Elimination of All Forms of Discrimination against Women, [] the Convention on the Rights of the Child,[] the 1965 Convention on the Elimination of Racial Discrimination, [] the 1982 Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment ,[] and the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.[]
(C) Codified Laws and Statutes
During the period between 1957 and 1965, six comprehensive legal codes were enacted in Ethiopia. A new Penal Code was introduced in 1957, which largely drew upon its counterpart in Switzerland. In the 1960's, in rapid succession, a large body of law was introduced into Ethiopia, in the form of five codes. . First, the Civil, Commercial and Maritime Codes in 1960, followed by the Criminal Procedure Code in 1961, and finally, the Civil Procedure Code in 1965. All of the six codes were promulgated in the form of proclamations as extraordinary issues in the Negarit Gazetta, the official legal gazette in place for the publication of Ethiopian laws since 1942. In addition, a Revised Family Code, which has been in force only within the federal jurisdiction and a Criminal Code, which has been in force throughout the federation, have been promulgated in the form of proclamations in 2000 and 2005 respectively.
(D) Decrees, Regulations and Directives
The Council of Ministers of the Federal Government can issue regulations. In practice a federal ministries issue directives. The mandate to issue regulations and directives of the Council of Ministers and Ministries respectively emanates from the House of Peoples’ Representatives as expressed in primary legislations. Moreover, the Council of Ministers of the Federal Government is also empowered ‘to decree a state of emergency should an external invasion, a break down of law and order which endangers the constitutional order and which cannot be controlled by the regular law enforcement agencies and personnel, a natural disaster, or an epidemic occur.’[]
A precedent is a judicial decision, normally recorded in a law report, used as an authority for reaching the same decision in subsequent cases by virtue of the doctrine of stare decisis. The doctrine of stare decisis had been absent from the Ethiopian legal system until it was introduced very recently by virtue Proclamation 454/2005. Pursuant to Article 2(1) of this Proclamation, judicial decision by the Cassation Division of the Federal Supreme Court on interpretation of a law is binding on Federal and State Courts at all levels.
(A) State Constitutions
Article 52 (2) (b) of the FDRE Constitution provides that States can promulgate their own constitution. In practice, all States of the federation have promulgated State Constitutions. The State Constitutions declare their supremacy with in each State.
(B) State Proclamations
The above provision of the FDRE Constitution also allows States to issue proclamations on matters falling under their jurisdiction. For instance, the States of Tigray, Amhara, Oromia and the Southern Nations, Nationalities and People have enacted their own Family Codes.
(C) State Decrees, Regulations and Directives
State Executive Councils are empowered to decree a Statewide state of emergency should a natural disaster or an epidemic occur.[] State regulations and directives are issued by State Executive Councils and State Bureaus by virtue of the power delegated to them by State Councils, the State legislature.
The FDRE Constitution is the supreme law of the land. It has primacy over all Federal as well as State laws. Article 9(1) of the FDRE Constitution proclaims that any law, customary practice or a decision of an organ of state or public official, which contravenes the Constitution, shall be no effect. At the federal level, international agreements and proclamations have the same status as they are issued by the Federal legislature. These are followed by Decrees, Regulations and Directives respectively. When Decrees are adopted by the House of Representatives, it becomes a proclamation. The same order applies to State laws.
The Federal and State laws described above are issued through the official publications indicated below. The first row indicates the source of the laws while the second row indicates the name of the official publication.
Federal Laws……….Federal Negarit Gazeta
Addis Ababa City…………..Addis Negarit Gazeta
Dire Dawa City…………..Dire Negarit Gazeta
The State of Oromia………….…Megeleta Oromia
The State of Tigray………………Negarit Gazeta Beherawe Mengiste Tigray
The State of Amhara …………..Zikre Hig
The State of Benshangul/Gumuz………….Lisane Hig
The State of Harari People ………………….Harari Negarit Gazeta’
The State of Afar………………………….Dinkara
The State of the Southern Nations, Nationalities and People……Debub Negarit Gazeta
Article 55 of the FDRE Constitution requires the Federal government to establish a Human Rights Commission and an Office of the Ombudsman. Proclamation 210/2000 was enacted to provide for the establishment of the Ethiopian Human Rights Commission. Article 5 of Proclamation 210/2000 provides that the objective of the Commission is “to educate the public be aware of human rights, see to it that human rights are protected, respected and fully enforced as well as to have the necessary measure taken where they are found to have been violated.” According to Article 6 of Proclamation No.210/200, the Ethiopian Human Rights Commission has the following powers and duties:
· ensure that the human rights and freedoms provided for under the Constitution of the Federal Democratic Republic of Ethiopia are respected by all citizens, organs of state, political organizations and other associations as well as by their respective officials;
· ensure that laws, regulations and directives as well as government decisions and orders do not contravene the human rights of citizens guaranteed by the Constitution;
· educate the public, using the mass media and other means, with a view to enhancing its tradition of respect for, and demand for enforcement of, rights upon acquiring sufficient awareness regarding human rights;
· undertake investigation, jupon complaint or its own initiation, in respect of human rights violations;
· make recommendations for the revision of existing laws, enactment of new laws and formulation of policies.
· provide consultancy services on matters of human rights;
· forward its opinion on human rights reports to be submitted to international organs;
· translate into local vernaculars, international human rights instruments adopted by Ethiopia and disperse same;
· participate in international human rights meeting, conferences or symposia;
· own property, enter into contracts, sue and be sued in its own name;
· perform such other activities as may be necessary to attain its objective.
The establishment of the Ethiopian Institution of the Ombudsman is set out in Article 55(15) of the FDRE Constitution. In line with this provision of the Constitution, the House of Peoples’ Representatives enacted Proclamation 211/2000 that established the Ethiopian Institution of the Ombudsman (EIO). The EIO is designed to prevent and remedy arbitrary or unjust administrative actions of the executive vis-à-vis its citizens, and to provide an easily accessible means to the public to assure that basic rights are not violated by the executive without an avenue for complaint investigation and redress. According to Article 5 of Proclamation 211/2000, the objective of the EIO is “to see to bringing about good governance that is of high quality, efficient and transparent, and are based on the rule of law, by way of ensuring that citizens' rights and benefits provided for by law are respected by organs of the executive.”
Article 6 of Proclamation 211/2000 stipulates that the EIO shall have the powers and duties to:
· supervise that administrative directives issued, and decisions given, by executive organs and the practices thereof do not contravene the constitutional rights of citizens and the law as well;
· receive and investigate complaints in respect of maladministration;
· conduct supervision, with a view to ensuring that the executive carries out its functions in accordance with the law and to preventing maladministration;
· seek remedies in case where it believes that maladministration has occurred;
· undertake studies and research on ways and means of curbing maladministration;
· make recommendations for the revision of existing laws, practices or directives and for the enactment of new laws and formulation of policies, with a view to bringing about better governance;
· perform such other functions as are related to its objective.
Currently the following state and private universities offer legal education at the indicated levels:
· School of Law, Addis Ababa University (LL.B. and LL.M. programs);
· Law Faculty, Mekele University (LL.B. program);
· Law Faculty, Bahir Dar University (LL.B. program);
· Law Faculty, Jimma University (LL.B. program);
· Law Department, Debub University (LL.B. and Diploma programs);
· Law Faculty, Saint Mary’s University College (LL.B. and Diploma programs);
· School of Law and International Studies, Unity University College (LL.B. program).
Currently the following legal periodicals are published by universities and other institutions:
· The School of Law of Addis Ababa University publishes the following journals: 1) Journal of Ethiopian Law; 2) Ethiopian Human Rights Law Series; 3) Ethiopian Business Law Series; 4) Ethiopian Constitutional Law Series; and 5) Addis Ababa University Student Law Review.
· The Law Faculty of Jimma University publishes Jimma University Journal of Law.
· The Justice and Legal System Research Institute publishes the Ethiopian Journal of Legal Education.
· The Law Faculty, Saint Mary’s University College publishes Mizan Law Review.
· The Ethiopian Bar Association publishes the Ethiopian Bar Review.
NOTE: All journals of the School of Law at Addis Ababa University are sold at the Book Center, Sidist Kilo Campus, Addis Ababa University. Journals published by the other universities are also available at their premises.
[] This is a 2008 estimate by the United Nations (visit here). The 2007 Population and Housing Census Results of Ethiopia published by the Federal Democratic Republic of Ethiopia Population Census Commission in November 2008 provide the total population as 73,918,505.
[] This is a 2008 estimate by the United Nations (visit here).
[] This is a 2008 estimate by the United Nations (visit here ).
[] See the 2007 Population and Housing Census Results of Ethiopia published by the Federal Democratic Republic of Ethiopia Population Census Commission in November 2008, Addis Ababa for the list of ethnic groups of the country.
[] FDRE Constitution, Article 52 enumerates the powers and functions of the member states of the federation. All powers not expressly given to the federal government alone, or concurrently to the federal and state governments, are reserved to the States.
[] Federal Courts Proclamation 25/1996, as amended by Federal Courts (Amendment) Proclamation 138/1998, Federal Courts (Amendment) Proclamation 254/2001, Federal Courts (Amendment) Proclamation 321/2003, and Federal Courts Proclamation (Reamendment) Proclamation 454/2005 (Federal Courts Proclamation), Article 24(3).