Liku Woku is a founder and administrator of Abyssinia Law. He graduated From Mekelle University with LLB (2007) and the University of London with an LLM in Advanced Legislative Studies (2012). Currently, he is a consultant and attorney at law. Before joining the advocacy world, Mr. Liku worked as a Draft Person and Public Prosecutor at the Ministry of Justice and as a Part-time Lecturer at Addis Ababa University. As a founder of abyssinialaw, he is responsible for developing free access to Public legal information. 

Analyzing the 'Completeness' core feature of Ethiopian Civil Code

COMPLETENESS

A historical and comparative study of continental European codification reveals that codification aims at being complete. Although ‘completeness’ has several implications in different literature Weiss has identified three sub-elements of completeness in the sense of an (a) exclusive, gap-less and comprehensive as the second core feature of continental European codification. In this article each of these elements will be briefly discussed followed by the analysis of the Ethiopian civil code. 

 

1.      EXCLUSIVENESS

 

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Analyzing the 'Authority' core feature of Ethiopian Civil Code

How many countries have ‘Codes’ as a basic legal source in the world? In how many countries legal systems the term ‘Codification’ exist? Are there common features of codification used as a basis for comparison and analysis? Although the exact number of codes is uncertain today, the UNESCO-sponsored survey on the basic sources of various legal systems in 1957 reveals that from 110 countries 73 countries had legal sources called ‘codes’ and the work of ‘codification’. In other words, codification exists in 67 per cent of known legal systems and each system consists of an average of 6 codes. This figure seems to suggest that codification has become prevalent in most existing legal systems.

Despite its wide existence, the meaning and role of codification is different on what period and which country is considered. It may also take different forms since it may be required to fulfill different functions. It could be resorted to as a means of self-expression on nationhood or statehood as in the developing countries. Or it represents a means of assertion of a novel social and political system as in the countries of Eastern Europe. Academics in this field offer a large number of definitions which reflect a common agreement that a code is an enacted, organized statement of law in a particular field. But they offer no consensus as to the drafting style, level of comprehensiveness or exclusivity required to make an instrumental a code. In modern legal systems, legal reforms are introduced through legislation. When the legislative reform is comprehensive and professes to encompass an entire legal field, it is customarily defined as ‘codification’, and its ‘product’ as a ‘code.’

Originally, codification was part of the history of European Civil Law countries, following the tradition of Roman law and the model of the Codex Justinianus (6th century A.D.). Later, however, the idea of codification extended beyond European countries and spread over almost all over the world. The civil law of Rome has spread over Continental Europe, and has retained its authority for many centuries; the French Code has been largely adopted by other countries; and even at this early stage of its history the German Code has been made the basis of the codification of the private law of Japan. The first major wave of codification outside Europe was inextricably linked to colonialism. Others were enacted by sovereign, non European states though still largely under the influence of European models. The French, Swiss, German, and Austrian models are among the continental European models that have strongly influenced the rest of the world.

By making a historical and comparative reference to these four influential European countries, Gunther A. Weiss (hereinafter Weiss) has identified six core features of European codification. He has indentified the six core features of continental European codification as:

(1)   Authority

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Prioritizing Draft Proposals - A comparative analysis between Ethiopia and Northern Ireland

Modernization relies on law as the means of transformation. In these great processes of transformation, day after day, many more demands for new legislation have been proposed as a reaction to different social, political, economic and environmental situations which seemingly develop independently or deliberately. Governments need effective laws to govern these processes of transformation, by which they achieve their political objectives and public policies. Such need may originate from different sources such as different ministries, a commission of inquiry, politicians, pressure groups, or sometimes from donors. At any moment in time, the government may face with various such drafting proposals on which it has preferences, but cannot attend all of them for lack of enough resources for drafting, enacting and implementing them all. For this reason, the need to make the order in which to draft, i.e. Prioritize with explicit criteria, becomes more and more imperative. Even though the subject of prioritization of drafting proposals is among the subject that have received little attention in legislative drafting, Seidman, Seidman and Abeyesekere have come up with the importance of prioritization and prioritization criteria. Seidman et al have identified four criteria for prioritization of drafting proposals: (1) the gravity of the social problem being addressed; (2) the legislation's anticipated social impact; (3) its do-ability; and (4) the available drafting resources and claim that without these explicit criteria or procedures the resulting prioritization decisions frequently appear haphazard.

 

In this essay, however, as a center of my hypothesis I will argue that prioritizing drafting proposals is dependent on the full discretion of the highest executive organ and hence, the Seidman et al prioritization criteria do not fit for international application. In order to prove my hypothesis I am going to look at the four criteria of prioritization of drafting proposals put forward by Seidman et al and make a comparative analysis between Ethiopia and Northern Ireland. By exploring the institution for prioritization of drafting proposals, I will particularly examine whether the Seidman et al criteria of prioritization are applicable or not in both jurisdictions. In doing so, the essay is divided into three sections. Section I explores prioritization of drafting proposals and argues prioritization of drafting proposals is dependent on the final decision of the highest executive. Section II first analyzes the two countries institution for prioritization. It then continues in describing the four criteria of Seidman et al into two folds followed by comparison and analysis of the criteria in both jurisdictions. Section III concludes.

 

I.     Prioritizing draft proposals

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Legislative proposals and application of human right treaties in Ethiopia

Introduction

It has often been considered that every addition of a new law in a statute book is amending a prior existing law. As a result, analyzing legislative proposal both in its relation and in its effect with rights and privileges under existing and established law continues to be an important subset of Legislative Drafting. A person engaged in analyzing the legislative proposal should either be familiar with the existing relevant law or know where it can be found. Existing laws, among other things, constitute human right treaties that a country has ratified and form part of its domestic law – either by way of ‘legislative’ or ‘automatic’ incorporation. Legislative and Automatic incorporation of human right treaties into domestic law is traditionally known as ‘Dualistic’ and ‘Monistic’ methods respectively. Regardless of whether a domestic law society is monist or dualist, one way of complying with human right treaties is through analyzing legislative proposals as to whether domestic draft laws accord with the values and principles enshrined under human right treaties.
 
The main focus of this essay is to examine the Ethiopian method of implementation of international Human right treaties with an emphasis on its impact on drafters’ analysis of legislative proposals.Although the implementation of human rights entails a wide array of activities,[4] this essay briefly discusses incorporation of international standards into domestic laws as a main focus from the variety of activities that states are to take at national level.This essay argues that the method of implementation used by Ethiopia is ineffective and has deprived drafters from analyzing the consistency of legislative proposals with human right treaty provisions. In doing so, the essay proceeds as follows: section one offer the Ethiopian method of implementation of human right treaties. Section two explores Ethiopian drafters’ analysis of legislative proposals and the problem they face as a result of the method of implementation. The final section draws the threads together and concludes the essay.
 
I. Method of implementation of Human Right Treaties in Ethiopia

 

As there are no stipulations on how states should implement human rights standards at international level, the implementation of international human right treaties is dependent on domestic law and entirely left to the states to decide on how obligations will be implemented. Domestic legal system must provide favorable legislative and administrative frameworks if treaty based guarantees are to be translated into reality for domestic beneficiaries. In addition, human right treaties incorporate a set of values that have to be respected during interpretation, application and development of legislation and statutory laws. As a result, states must affirmatively incorporate international human right treaties into domestic laws as one method of implementation. Although there are a great variety of domestic methods for implementation of international human rights instruments, there are two common ways of constitutional method which determines the implementation of treaty provisions into domestic laws: legislative incorporation and automatic incorporation. In some countries with the ‘legislative incorporation’ method such as United Kingdom, there is a separate legislative Act enacting specific provisions of a treaty for the incorporation of treaty provision into domestic laws. This method is referred to as ‘dualist’ in that a strong distinction is maintained between domestic and international law, and the latter must be written into the former in order to carry substantial and enforceable weight. In other countries with the ‘automatic incorporation’ method like France, without the need to have separate legislative Act, ratification and publication in the official Gazette simply converts treaty provisions into domestic law. This method is referred to as ‘monist’, in that both domestic and international law are considered equal and as having the same effect.

The method of incorporation of international human right treaties in Ethiopia indicate that Ethiopia does not strictly adhere to one method of incorporation as the Ethiopian constitution provides for both methods.

One the one hand, article 9(4) of the Ethiopian Constitution declares that “All international agreements ratified by Ethiopia are integral parts of the law of the land.” From international law point of view, the wording of this provision tends to show international agreements need to be transformed as the word ‘…law of the land’ usually refers for international agreements to be transformed, rather than merely adopted, into municipal law. Transformation in dualistic state refers to a situation where relevant domestic laws are amended or repealed to comply with international agreements. International agreement in Ethiopia is concluded by the State’s Executive branch which must subsequently submit it for ratification to the House of Peoples Representatives (HPR hereafter). Under Article 55(12) of the Ethiopian constitution, the HPR ‘shall ratify international agreements concluded by the Executive.’ In addition, article 2(2) and (3) of the Proclamation of Federal Negarit Gazette requires that all Laws of the Federal Government shall be published and all Federal and Regional legislative, executive and judicial organs should take judicial notice of laws published under the Gazette. Once they are ratified, all international agreements, including human rights instruments, are integral parts of the law of the land (Art.9 (4) of the constitution). According to these provisions, Ethiopia could be classified as dualist as a national legislation needs to be promulgated in order for the provisions of international instruments to be implemented at the domestic level. However, all ratification proclamations contain only three and sometimes four provisions with short title, responsible organ (sometimes), ratification, and effective date. Although the dualist method is much known for its ‘transformative’ concept, the Ethiopian parliament only declares a mere pronouncement through ratification proclamation. There are neither laws which are amended as a result of ratification nor repeal with the ratification proclamation. In Ethiopian history of ratification proclamation, there is no single ratification proclamation with the actual ratified treaty and there are no translations of the actual treaty provisions.

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The Control of constitutionality of laws - (A comparative analysis between Ethiopia and Nigeria)

1.      Introduction

This essay examines the normative contemporary constitutional law question ‘how constitutionality of laws is controlled?’ under Ethiopian and Nigerian Federal Systems. In constitutional terms, both this question and federal systems require a written constitution that serve as a fundamental or basic law and placed hierarchically at the highest peak.

Federalism with written constitutions is one of the hallmarks of the Ethiopian and Nigerian political system. In both countries there are constitutionally entrenched distribution of powers between States and federal government to enact law, to execute and adjudicate as means of modern attempt to accommodate democratic complexity and pluralism. In exercising these constitutionally entrenched powers, the possibility of enacting inconsistent and ultra virus laws and hence, disputes regarding the constitutionality of laws is inevitable. The federal and state laws should be consistent not only with the terms and conditions of the federal constitution i.e. considered as a Basic Law but also should exist in harmony with each other. The settling of disputes concerning the constitutionality of laws is essential in federal systems and takes distinct form. Irrespective of its distinct form, the constitutionality of laws is one of the central problems of Constitutional Law that must be addressed in any federal states.

The objective of this essay is therefore; to compare how Ethiopia and Nigeria arrange the control of constitutionality of laws in their federal structure the aim of which is to guarantee and ensure the observance of hierarchy of legal norms and rule of law. In doing so, the essay is divided in to four sections. Section I explore the methods of controlling Unconstitutional Provisions and provide list of possible solutions for comparison. Section II demonstrates the general background and legal basis for application of control over unconstitutional provisions in Ethiopia and Nigeria. Section III compares the two countries method followed by conclusion under Section IV.  

 

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Express repeal of delegated Legislation under Ethiopia

 “No law, regulation, directive or practice shall, in so far as it is inconsistent with this Proclamation, have force or effect with respect to matters provided for by this Proclamation”.

1.      Introduction

Paradoxically, in most modern societies, the larger proportion of the law—delegated legislation—is not made by elected lawmakers or by the proper legislature.To an increasing extent, law in these countries is made through the Executive branch not by the parliament.The common practice for Acts of Parliament to bestow power (through empowering acts) to make regulations, particularly to Ministers of the government, is an obvious manifestation of this development. As a general proposition, the making of these delegated legislation are exercised as are specifically delegated by enabling Acts of Parliament and this provides for a basic democratic legitimation of executive rules. Parliament may modify, amend or repeal acts passed by itself or its predecessors. The change on enabling Acts of Parliament-either by way of amendment, revision or repeal-will likely have an impact on delegated legislation made by the Executive.

A close examination of the law making process and existing effective laws in Ethiopia depicts the above fact as well.  Since EPDRF took power in 1991 there are 325 regulations and 313 Proclamations at federal level. Hence, regulations made by different ministries are greater than proclamations passed by the House of Peoples Representatives, i.e. Parliament. These developments have placed Executive branch in a very powerful position. In other words, regulations matters, and matters increasingly.

Thus, this essay explores the relationship between empowering act of parliament and delegated legislation whenever Parliament repeals enabling Act passed by itself. Particularly, the essay examines the change in empowering Act (Proclamation passed by the House of Peoples’ representatives) and the status of delegated legislation (Regulation made by the council of Ministers) in Ethiopian context.

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Modernizing the Legislative and Regulatory Framework of Ethiopia

 

Prior to considering the subject matter of this article, a brief explanation of the history of Ethiopian Codes and constitutional development is helpful because it focus attention to the key issues that I would like to raise. The Ethiopian legal system constitutes Constitution, international treaties, codified laws and statues, as a primary source of law. This essay however, limits its self with codified laws and primary legislation.

During the regime of Emperor Haile Sellasie, particularly between 1957 and 1965, a group of highly complex codes – civil code, Civil Procedure code, Penal Code, Criminal Procedure Code, Commercial Code and Maritime Code – were introduced which gives Ethiopia one of the most modern legal systems in the World. Before the introduction of these codes, Ethiopia operated with an informal mixture of legislative/executive and customary laws. Penal, Civil, Commercial and Maritime Codes were modeled on Continental European Law and the remaining two Procedure Codes were based on British-Indian Common Law Models. The introduction of these codes and Ethiopia’s herculean effort towards modernization was described as unique for its ‘eclecticism’ and categorized the country as ‘mixed legal system’.

This is because of two apparent reasons. On the one hand, unlike most African countries which retained at least some post-colonial parental ties, Ethiopia (which has never been colonized) makes voluntary reception of foreign law on the basis of what seems best, and on the other hand, the choice results model from two different legal systems. As stated in the prefaces to most codes, the purpose and goal of these codes was, one the one hand, to establish a perfect knowledge of the law by providing a clear, systematic, compact, complete and authoritative statement of the law and on the other hand, to develop its legal system towards modern states. As a result, the introduction of these set of modern codes marks the end of unwritten or customary scattered rules and the beginning of the modern legislative and regulatory framework of Ethiopia. Although some customary law has been included in civil code all other pre-code law dealing with matters provided for in the code has been expressly repealed.

Furthermore, Legal institutions necessary for the modern legal system including system of court was established before the introduction of these codes in 1942 in order to transform the system to modern legal system. Apart from the Penal code which was entirely replaced by the 2004 criminal code and some scattered amendments of Civil and Commercial Code, all these six codes govern most fields of current legal activity and remain to be in force as primary source of law. 

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