INTRODUCTION TO ERITREAN LEGAL SYSTEM AND RESEARCH
By Luwam Dirar and Kibrom Tesfagabir
Luwam Dirar received her law degree from Asmara University in 2006, LL.M. from Cornell Law School in 2009, and is currently a J.S.D. Candidate at Cornell Law School.
Kibrom Tesfagabir received his law degree from Asmara University in 2006, LL.M from Wuhan University in 2010 and is currently an Assistant Lecturer at the University of Asmara, Eritrea.
Published March 2011
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Table of Contents
2.1. National Assembly
3.1. Regular Courts
3.2. Special Courts
3.2.1. Special Court
3.2.2. Community Courts
3.2.3. Sharia Courts
3.2.4. Military Courts
4.1. Legal Education
4.2. Bar Association
4.3. Drafting of New Laws
The classical and oriental understanding of Eritrean legal history starts with western colonization. [  ] Yet the truth remains, even though events of the past pertaining to customary laws, traditional dispute settlement mechanisms and the effect of customary law on the Eritrean Society has not been studied well; Eritrean legal history can be traced to a time before western colonization. For instance, historical facts show that the laws of Adkeme Melgae [  ] and Logo Chewa [  ] date back to the fifteenth century. [  ]
Western influence in Eritrean legal history starts with the Italian colonization. Lidia Favali and Roy Pateman categorized this history into five periods. [  ] These are; the civil law tradition based Italian period, [  ] the British Administration Era that resulted into the incorporation of certain common law concepts to the legal system, [  ] the Federation years, [  ] the Annexation era when Ethiopia colonized Eritrea [  ] and lastly the post-independence era. [  ] What all those phases of legal history had in common is that all of them accepted customary laws as long as it is not in contradiction to the state law. [  ] Moreover, with the exception of codification of major codes during the 1960s all the five periods have seen minor or no changes in the legal system of the country.
The focus of this article is on the current legal system of the Country. The article gives a normative description of the post-independence legal system for legal scholars and researchers. It gives a general overview of the organizational structure of the current Government. In addition, it tries to describe the current judicial system. Lastly, the article concludes by discussing crosscutting issues in law and development in today’s Eritrea.
In March 1994, the Transitional Government of Eritrea established a Constitutional Commission under proclamation 55/1994. The Constitutional Commission was composed of fifty experts appointed by the National Assembly. [  ] Bereket Habte Selassie [  ] argues that the Constitutional Commission earned public legitimacy because it represents the religious and ethnic diversity of the society. [  ] Furthermore, the constitutionalism process ensured public participation through public debates. [  ] After the end of the public debate and drafting, the National Assembly ratified the Constitution in 1997. [  ] However, the Constitution has not yet come to force.
The Constitution envisages a state based on national unity and democratic principles. [  ] It creates a government with separation of powers between the different organs. [  ] When it comes to personal liberties, the Constitution guarantees the fundamental rights as guaranteed by the Universal Declaration of Human Rights. [  ] It requires the state to guarantee socio-economic rights to the best of its capacity. [  ] It imposes duties on the individual to respect rights of others and to look after older members of the society. [  ]
As the supreme law of the land, the Constitution mandates all laws and proclamations to be inconsistency with it. [  ] Without a constitution, the Courts today are interpreting statutes by using teleological interpretation.
A year after the end of the independence struggle, the Eritrean People Liberation Front (EPLF), a revolutionary movement behind Eritrean de-colonization, established a transitional government. [  ] It stated that it has historic responsibility to forge a transitional political structure until the establishment of a constitutional government. [  ] Hence, it established a Transitional Government similar to the EPLF in terms of its organizational structure.
First and probably, the most important similarity was EPLF’s Central Committee came to assume legislative status during the transitional period. [  ] As such, it took the authority, inter alia, to issue proclamations. [  ] A Council of Government, headed by the General Secretary of the EPLF was established to serve as executive wing of the Government. [  ] The Council was composed of Secretaries of twelve Departments –Tzehafti Keflitat- representing different sectors, administrators of provinces, commanders of four Territorial Army divisions and navy. [  ] Moreover, it established a judiciary under article 6 of the proclamation. [  ]
In 1993, when the Country obtained its formal independence, a slightly different political and administrative system was established. [  ] For the first time in the political structure of the Transitional Government, proclamation 23/1992 as amended by proclamation 37/1993 provided a mechanism for public participation in the National Assembly. Another peculiar reiteration of the new proclamation was that the transitional period was limited for four years. [  ] Despite the lapse of eighteen years, the Eritrean legal landscape retains, in larger context, the government structure established by Proclamation 37/1993. The Constitutional Government that has to replace the Transitional Government is yet to come because the ratified constitution of the Country is not in forced. [  ] Due to this, the following section reflects the existing reality.
The National Assembly is a unicameral legislative body. [  ] Fifty percent of the 150 seats have been reserved to members of the Central Committee of People’s Front for Democracy and Justice (PFDJ) [  ] while the remaining half goes to popularly elected representatives. [  ] This limited representation of the public gives the EPLF and later on the PFDJ power to control votes if it is against the party’s interest. Without neglecting, the role of the EPLF/PFDJ in the independence struggle and acknowledging its historical responsibility the reserved seats in the National Assembly is against the Constitutional Government the state eventually envisages.
The National Assembly has the authority to elect the president of the state. [  ] The President serves as a chairperson of the National Assembly and the Cabinet of Ministers. [  ] The Assembly, within the transitional period, has the supreme legislative powers including preparing domestic and international policy, ratifying international agreements, issue proclamations and approve establishment of ministries and other government agencies. [  ] One of the ambiguities of the National Assembly’s legislative power is the fact that proclamation 37/1993 does not specify the voting requirements for a law to pass. [  ] Even though the proclamation clearly authorizes the National Assembly to issue proclamations its failure to specify modality makes one wonder the actuality of law making process in the Country. [  ]
In today’s Eritrea, the Executive organ of the Transitional Government is composed of a Council of Ministers headed by the President of the state. [  ] Currently the council of Ministers is composed of seventeen ministries. [  ] In addition, five authorities, five commissions, and one office support and are part of the Executive organ of the Government. [  ]
Judicial and quasi-judicial institutions, in terms of local jurisdiction, largely follow the structure of the local government. [  ] In terms of hierarchy of courts, the Community Courts lie at the bottom of the jurisdictional structure. [  ] Regional courts that are at local government unit – Zonal – level follow the hierarchy of the Court structure. [  ] At the top lies, the High Court that entertains appeals from Zonal courts and has first instance jurisdiction in certain instances. [  ] Without a Supreme Court in the Country, the Highest Appellate Court takes the role of court of last resort. [  ] The Highest Appellate Court is a bench of the High Court that entertains appeals from High Court decisions. [  ] Moreover, there are judicial and quasi-judicial organs in the Country that do not fall in to this hierarchy.
In terms of separation of powers between the different organs and independence of the judiciary article 7 of proclamation, 37/93 guarantees an independent judiciary. [  ] However, the budget and human resource supply of the judiciary is the mandate of the Ministry of Justice. [  ] Furthermore, the parallel construction of the Special Court coupled with the tendency of the public to take their grievances to executive branches of the government instead of courts threatens the independence of the judiciary in the country. [  ] We will discuss the judicial system of the country in detail in Part II of this article.
The judicial system in Eritrea is peculiar in a sense that it is composed of two different court systems. The first court system, Regular Courts, entertains legal disputes based on the laws of the State. The second court system, Special Courts, is composed of specialized courts that do not necessarily apply laws of the state to resolve disputes.
The reason why there are two different court systems in Eritrea is due to the existent socio-economic and political situation of the country. Daniel R. Mekonnen explains the post-independence political situation in Eritrea as the source of irregularity in the current judicial system of the country. [  ] For instance, Mekonnen explains the formation of the Special Court as a lack of democratic governance in the country. [  ] Furthermore, Elobaid and Senai contend the formation of Community Courts as a positive effort by the government to introduce customary practices to the judicial system. [  ] In conclusion, in today’s Eritrea both the Special and Regular Court Systems are operational. Hence, this section of the article attempts to elaborate the intertwined judicial system of the country.
The Zonal and High Courts make the Regular Courts in the Country. These are courts of first instance as well as appellate courts. In civil cases the Zonal Court has material jurisdiction over issues that are of the value of 50,000 to 250, 000 Nakfa [  ] in movables 100,000 to 500,000 Nakfa in immovable’s. [  ] Furthermore, civil cases dealing with movable property of more than 250,000 Nakfa and immovable property of more than 500,000 Nakfa fall into the jurisdiction of the High Court. [  ]
However, not all disputes have monetary value and some require a certain level of expertise and sophistication. Hence, the High Court has exclusive jurisdiction over cases dealing with bankruptcy, negotiable instruments, insurance, intellectual property rights, habeas corpus, nationality, filiation, expropriation, and communal exploitation of property. [  ] Moreover, with regard to other civil matters that cannot be valued in monetary measures, for instance, dissolution of marriage fall into the jurisdiction of the Zonal Court. [  ]
With regard to criminal cases, the gravity of the offence determines the jurisdiction of the court. Grave offenses fall to the jurisdiction of the high court. [  ] For instance, article 538 of the Transitional Penal Code that deals with grave willful injury is under the jurisdiction of the High Court while article 539 with common willful injury falls to the jurisdiction of lower courts. [  ]
The relationship between the Regular Court system and the Special Court system comes through appeal and review of court decisions. As an appellate court, the Zonal Court has power to hear appeals from Community Court. [  ] Moreover, the Special Court has jurisdiction to retry cases that have been decided by the Regular Courts. [  ] The next section will explain the Special Court System in detail.
One of the official justifications for the establishment of Special Court is to deter the spread of corruption by bringing perpetrators to justice. [  ] Hence, the Court has jurisdiction over theft, embezzlement and corruption. [  ] The Court does not have to follow the basic legal principles that ensure fair and just trial for the accused. [  ] For instance, article 4(2) of the Special Court Proclamation, gives the Court power to reopen cases that the regular courts settled. [  ] In terms of substantive law, the Court has a power to decide whether to apply and follow the Transitional Penal Code. [  ] Furthermore, the Courts decisions are final. [  ] Even though the proclamation does not necessarily bar the right to representation, Mekonnen explains that through executive orders it has abrogated the right to an attorney of the accused. [  ]
This broad endowment of jurisdiction to try cases dealing with theft, embezzlement and corruption without actually defining the specifics of the jurisdiction gives the court jurisdiction over cases that are beyond the purpose of its establishment. The manning and budget source of the Court is another distinguishing factor. Unlike the regular courts, the judges of Special Court are senior military officers with no legal training. [  ] In addition, the President’s Office has power to allocate budget for the Court making it a judiciary organ under an executive branch. Moreover, article 7 of the Special Court proclamation specifically states that the primary relationship of the court is with the Ministry of Defense instead of the Ministry of Justice, which is much better equipped to provide legal and technical assistance to the Court.
Community Courts is the most recent and accessible establishment in the Country’s judicial system. [  ] One of the main distinguishing factors of Community Courts from the Regular Court system is that Community Courts use customs and norms of the society to resolve disputes. Moreover, the lack of formality and procedure in the court proceedings puts disputants at ease and allows them to present their case in a language and manner customary to their vicinity. [  ] However, appeals from Community Courts go to the Zonal Court for review. Community Courts unlike the Regular Courts apply customary laws to decide cases. The application of customary law in regular courts is grim or non-existents since article 3347 of the Civil Code repealed all customary law unless specifically specified. [  ] Hence, Zonal Courts apply State law to review Community Court decisions. Scrutinizing Community Court judgments through the application of a law that repealed all customary practices is in contradiction to the rasion d’être of Community Courts. Furthermore, it puts the higher court judge in a dilemma.
Knowledge of law, legal career, or educational qualifications is not a requirement for judicial positions of Community Courts. [  ] However, the Ministry of Justice has been engaged in capacity development programs of community court judges since the establishment of the Court system. [  ] The training in addition to giving basic literacy and file keeping also involved basic legal training. [  ] Irrespective of the positive impact of legal training in the activities of the Court in particular and its impact on civic education in general one can argue that it is against the purpose of Court system. Substantive legal training to Community Court judges can affect the development of customary laws by limiting its use in the very courts established for its incorporation.
Unlike the Regular Courts, the community elects the judges through public elections. [  ] Subject to reelection, the tenure of the judges is limited to a period of two years. [  ] This gives the community the possibility of presenting their case in their native language in addition to giving them the power not to reelect judges who did not serve the community. Furthermore, even though there is no empirical data to show the impact of the Court on gender equality the election of women judges is a positive impact in changing the traditional role of women in Eritrea. [  ]
Historically the integration of Sharia Courts in the judicial system of the country was a political decision during the Italian period. [  ] Sharia Courts were impliedly established under proclamation 2/1991. [  ] Currently Sharia Courts entertain cases dealing with marriage, inheritance and family of Muslims.
Military Courts have personal jurisdiction over members of the Eritrean Defense Forces, member of National service during the execution of their national service, members of the Eritrean Police, members of militia, members of national reserve army, prison wardens and former combatants discharging governmental functions. [  ] The Courts have jurisdiction over offences listed in articles 296-353 of the Transitional Penal Code of Eritrea.
In this section, we will try to discuss some of the issues that do not directly relate to the judicial system but have a tremendous impact on the development of the judicial system of the country. For this main reason, we have limited our discussion to legal education, bar association, and codification and drafting of laws in the Country.
The importance of legal education in the development of a countries legal system is as crucial as the enactment of laws and proclamations. Based on this understanding, the University of Asmara, being the only autonomous higher education institution in the country took upon the responsibility of legal training. The need for qualified personnel trained in the Eritrean legal system level of the training and relying on foreign institutions to build a functional judicial system resulted into the formation of the LL.B program in 1996. [  ]
In 2003, to increase the LL.B. program’s autonomy, thereby increase its research, and budget the University Asmara decided to upgrade the Law department to Faculty of Law. [  ] However, in 2007 the restructuring of higher education in the Country resulted to the lowering of the Faculty of law to a department under the College of Arts and Social Science.
In 2003, the Law School had about 166 LL.B. candidates in addition to the 155 alumni. [  ] Most of these graduates work as judges and prosecutors while some of them work as legal advisors in government offices. [  ] Assuming that all the candidates graduated the ratio of LL.B. holder to the total population size of Eritrea is one LL.B. graduate to 1745 members of the public. [  ] This shows that the demand for legal personnel from both the private and public sector is huge.
Lack of textbooks on the Eritrean legal system is one of the major problems of legal scholars and students. [  ] This is true partly because of the lack of research facilities that provides the academia with adequate libraries and databases. [  ] To add to this lack of research facilities the Law program of Asmara University also has shortage of permanent faculty members. [  ]
The existent laws and regulations of the Country do not per sè prohibit the formation of an independent bar association. However, the Advocates proclamation delegated the power to regulate admission and regulation of legal profession to the Legal Committee of the Ministry of Justice. [  ] In theory, the requirements to practice as an advocate are lax. [  ] That is to say, the Legal Committee can exempt the qualitative requirements to practice law.
The drafting of major codes started in 1997 under the auspices of the Ministry of Justice. [  ] The drafting committee was composed of local and expatriate experts. To date major codes have been prepared but never promulgated . [  ] One of the causes for the delay of promulgation of these laws is the lack of resources to translate the codes into native languages. [  ]
In addition to the major codes, [  ] there are more than 150 proclamations and legal notices in the Country. The Government has published all those laws and regulations in the official Gazette of Laws. These proclamations are available at the Ministry of Justice library in print. Most government ministries do not have websites and there is no Official legal database. However, select proclamations can be found at NATLEX , and Refworld . Moreover, the major codes are available electronically at LEXADIN: Ethiopia . [  ]
In addition to the lack of court reporting system there are no academic journals in the Country. For those who do research on legal history the archives of the High Court of Eritrea have records dating back to the colonial era.
The current government of Eritrea is a transitional government established for a limited period. It is composed of the National Assembly, Executive and Judiciary. The National Assembly has supreme legislative powers. The Executive headed by the president is composed of a seventeen ministries, which make up the cabinet.
This article, divides the current judicial system of the Country to two broad categories. The Regular Court system includes the Zonal and High courts. These courts have a duty to follow State law. The Special Court system that includes the community courts, shaira courts, military courts and the special court are peculiar in terms of their composition and legal principles. Community courts and Sharia courts apply customary laws and Islamic laws. Special Court may or may not apply the transitional penal code while military courts have limited personal jurisdiction.
The status of legal literature on the Eritrean legal system is very low. The ratio of trained lawyers to the public is concerning. The lack of legal text books dealing with the Eritrean legal system and core faculty members are some of the few problems affecting the overall development of legal education in the country. In conclusion, doing research on the post independence legal system can be challenging due to lack of legal databases and resources.
[  ] Western colonization in the Country starts with the coming of Italians in 1890. When the Italians were defeated in the Second World War the British took over the Country. In 1949, the Country was put formally under the protectorship of the British Administration. Moreover, three years later the UN decided to put the country as a federal component of its neighboring country, Ethiopia. Hence, for the purposes of this article when we talk about Western Colonization in Eritrea it is the period from 1890 to 1949. For a complete time line of the colonial history of the Country See Timeline: Eritrea, http://news.bbc.co.uk/2/hi/africa/1070861.stm .
[  ] Adkeme Melgae is one of the customary laws of Eritrea. Adkeme Melgae Laws were codified in 1937. See Muluberhan Hagos, Harmonisation of Laws on Children in Eritrea 115 (2006), (unpublished ACPF Report).
[  ] Logo Chewa is one of the customary laws of Eritrea. The Logo Chewa Laws were codified in 1910 and later on revised in 1935. See Muluberhan Hagos, Harmonisation of Laws on Children in Eritrea 116 (2006), (unpublished ACPF Report).
[  ] Italian Period extends from 1890 – 1941. See Winta Woldeyesus, Italian Administration in Eritrea, Nov. 13, 2009, http://www.shabait.com/about-eritrea/history-a-culture/450-italian-administration-in-eritrea .
[  ] The Federation period extended from 1952 – 1962. The Federation period ended when Ethiopia annexed Eritrea in 1962 and made it a province. For further explanation of the UN decision to federate Eritrea with Ethiopia, see G.A. Res. 390(V), U.N. GAOR, 5th Sess., Supp. No. 20, U.N. Doc. A/1775 (1950).
[  ] Id. The preamble of the mentioned proclamation states that “until the Eritrean people decides it’s right to self-determination through a plebiscites and until a constitutional government is established […] the EPLF, in this transitional period, has the responsibility to proclaim and establish a transitional government so as to take its fight for Eritrean independence to its final destination”.
[  ] The preamble of Proclamation No. 37/1993 incorporates similar language as Proclamation No. 23/1992. It states that the life span of the Government would be until the establishment of a constitutional government. Similarly, it reaffirms EPLF’s role in the new political set up while emphasizing the need to provide space for broader participation.
[  ] Under proclamation 55/1994 the Transitional Government of Eritrea established the Constitutional Commission. The Commission was entrusted with drafting the constitution of the Country that was ratified in 1997. However, it has not yet been implemented. See Eritrea 1997, http://www.princeton.edu/~pcwcr/reports/eritrea1997.html .
[  ] In its third congress, held in February 1994, EPLF changed its name to Peoples’ Front for Democracy and Justice. Currently, the PFDJ is the sole and governing party in Eritrea. Dan Connel, Inside the EPLF: The Origins of the ‘People’s Party’ & its Role in the Liberation of Eritrea, 28 ROAPE 345, (2001).
[  ] These are the ministries of Local Government, Foreign Affairs, Defense, Justice, Finance, Information, Development, Agriculture, Public Works, Marine Resources, Energy and Mines, Transport and Communications, Labor and Human Welfare, Tourism, Education, Health and Trade and Industry.
[  ] The government of Eritrea established community courts in 2003. There are 683 community courts in the country today. See Interview by Meron Abraha with Alem Gebru former Head of the Community Courts Monitoring Office of the Ministry of Justice,in Asmara, Eritrea (Nov. 23, 2005).