Zelalem Moges earned his Bachelor's Degree in Law (LLB) from Jimma University in 2007 and his Advanced Masters Degree in International Humanitarian Law (LLM) with honour from Geneva University in 2011. Currently, he is a Ph.D. student in International law at the Graduate Institute, Geneva University. Zelalem taught various courses at Wollega and Jimma Universities for three years.

Examining the Current Demands of Ethiopian Muslims in light of the Constitutional Provisions

Over the past year we have witnessed a lot of political turmoil in the Arab world and the rest of Africa. Particularly, in Maghreb Region including Tunisia, Egypt and Libya, there are unprecedented changes that swept the North Africa States in a very short time. Now in these countries, there is a shift from, at least, one man rule to rule by some people. Although situations seem to be better than ever, nobody still certainly knows where the revolution ends up and how far the positive changes could sustain. This uncertainty is created by, among other things, the coming of allegedly extremist religious political parties, specifically in Egypt, into power. Radical religious groups have also gone into clash with secularists in Tunisia for enormous times. In these countries, it is however legally permissible to establish a political party which seeks to even stake out an administration guided by religious rules. There is no thus any legal prohibition that bars people whatever they may be radicalists from forming a religious political party. 

In recent days, we all know that there is somehow different crisis hobbling in our country between Ethiopian Muslims who have been protesting for the last couple of months and the Ethiopian government. The Ethiopian Muslims accuse the government of meddling in their religious affairs by extending its control on Muslim Council (Mejlis) which they claim does not represent them. The government on the other hand has been retorting their claim and accusing the leaders of the protest for spreading radicalism in the Muslim community with a political agenda behind their protest. Both sides claim to have evidences for their allegations. I do not intend to investigate on whose side there is more credible evidence. But I want to just focus on the legal aspect of the protest based on the assumptions that both sides are right and what both allege is true.

To begin with the protestors’ side, they argued that they have constitutional right to choose their leaders without the interference of the government in a place and manner that they want. And also the government is stepping out of the legality border, which proclaims the separation of state and religion, by encouraging the spread of a new sect dubbed “Ahbash”. Their accusation taken independently should be seen in light of article 11 of the Ethiopian Constitution. Article 11 ensures the separation of State and religion and proscribes that neither the state nor religion interferes in their respective affairs. Obviously, the representation and administration of Muslims in the Mejlis is clearly a religious affair. It should be solely left to the believers to choose who they want and be represented by whosoever they think promotes their religious values.

This right is also fostered by article 27 of the Constitution which declares that “Everyone has the right to freedom of thought, conscience and religion. This right shall include the freedom to hold or to adopt a religion or belief of his choice, and the freedom, either individually or in community with others, and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” In the second paragraph of the same article, believers have also the right to establish institutions of religious education and administration in order to propagate and organize their religion. However, this right, specifically, the freedom to manifest one’s own religion is not absolute right and may be limited by law when it is necessary to protect public safety, peace, health, education, public morality or the fundamental rights and freedoms of others, and to ensure the independence of the state from religion(article 27 (6)).

Having this, when we examine the allegation of the protesters, it would blatantly become illegal for the government to intervene in the election process of the Council or encourage Ahbash sect. Its interference on the freedom to manifest religion which arguably includes the organization and administration of the Council could only be legally justified if it can show that there is a threat against the national security, public safety, peace, health, education, public morality and the rights and freedoms of others. The interference in the election process for the listed grounds could be legitimized when there is also no other alternative to do away with the threats. Therefore, the government contention that the leaders of the protest are teaching radicalism and propagating violence could only serve as a ground for its interference if it does not have any other option to trammel those actors. It should also be noted that, the act of encouraging the teaching of Ahbash cannot even be justified on the listed grounds of national security or public safety and security since it does not comport to the letter and spirit of the constitution. In addition, the way the right is understood in the jurisprudence of international human rights bodies is that any limitation on freedom of religion should be limited to the freedom to "manifest" one`s own religion. The government`s support of the so called Ahbash teaching thus cannot in any case be interpreted as a restriction against such freedom to "manifest"

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Some Reflections on the Classification of Goods under the Ethiopian Civil code

In different legal systems of the world, properties are classified into different categories such as personal and real, private and public, movable and immovable, absolute and qualified, corporeal and incorporeal, etc. The distinction between these types of property is significant for a variety of reasons. Firstly, classification ensures the proper application of the law. This is because the legal regime that governs goods depends on their nature and accordingly their legal treatment substantially varies. For instance, one's rights on movables are more attenuated than one's rights on immovable (or real property). The statutes of limitations or prescriptive periods are usually shorter for movable than immovable property. Besides, real property rights are usually enforceable for a much longer period of time and, in most jurisdictions, real estate and immovable are registered in government-sanctioned land registers. More essentially, the manner for transfer of the possession or ownership of things depends on their nature. For example, the possession of ordinary corporeal chattels (movable things) may be transferred upon delivery. On the contrary, possession of immovable things requires more additional formalities like registration. In short, classification of property has a paramount importance in facilitating legal regulation of property rights and economic transactions.

When we come to the Ethiopian legal system, the classification of things is not that much clear. The law simply employs the term “good” which is primarily meant to refer the subject matter of property rights in most civil law countries as a bench mark to classify properties. Accordingly, under 1126 of the civil code it is provided that all goods are either movable or immovable. As Ethiopia is largely a civil law country, the use of the terms movable and immovable like other continental systems seems appropriate. Hence, the law recognizes goods as movable or immovable. The term “all” in this provision seems to signify that any thing to be regarded as good or any thing which is regarded as good must have either movable or immovable nature. In other words, a thing to be considered as subject matter of property right, i.e. good, in our legal system, it must fall in either of the class of immovable or movable things as defined by the law itself. However, as it is clearly provided in the Amharic version of the same provision, those goods which may be immovable or movable shall have material existence. The otherwise understanding suggests that at least in principle things to be considered as subject matter of property they must be tangible (corporeal); that can be perceived in our senses particularly that can be touched. Therefore, in the first glance the law seems to exclude incorporeal (intangible) things from the realm of property. Nevertheless, it puts exceptional instances in the subsequent articles where incorporeal things become goods after being assimilated with corporeal chattels (movable goods). In short, even if the law by definition excludes incorporeal things from the scope of property, it has also devised a mechanism where they may be regarded as goods, that is, by assimilating them with movable chattels.

Once the law classified goods as movable or immovable it also suggested what the terms should connote. Thus, under art.1127 it stipulates that corporeal chattels are things which have a material existence and can move themselves or be moved by man with out losing their individual character. Therefore, goods to be corporeal (tangible) movable thing, they must, first, be able to move by themselves or by the force of human beings. Second, when they are moving by themselves or are moved by human power they must not loss their natural (individual) feature, that is, their displacement or movement shall not result in the destruction of the whole or part of them or change of their physical feature. For instance, a marble which is already used for building may be movable, i.e. may be detachable from the building by using force. However, since in most cases, this result in some sort of destruction up on it, the marble may not be included in corporeal chattels. One top of this the law doesn’t seem clear when it says   “…with out losing their individual character”. What is the extent of losing individual character? Is any insignificant change capable of changing the nature of the thing? In our example above, what if the marble in the process of technical detachment slight crack occurred, will it be movable or remains an immovable? In the opinion of the writer, the intention of the legislator doesn’t seem to include slight changes but only those changes that outwardly affected the individual character, meaning, in our instance, any crack shall change the nature of normal marble may be that turns it to particles. In other words, as long as the change is not substantial, the nature of the thing shall not be changed.

On the other hand, article 1130 tries to describe immovables saying that ‘lands and buildings shall be deemed to be immovables’. Thus, unlike other legal systems, our civil code instead of defining immovables in general terms, it gives which things shall be regarded as immovables and it provided land and building as things that are deemed immovable. However, what about other things such as bridges and dams which are by nature immovable in the ordinary meaning of the term? Is the listing exhaustive or illustrative? In this regard two arguments may be raised; firstly, since the law doesn’t clearly say that ‘only’ land and buildings shall be deemed immovables, other things which are immovable by nature [in the literal meaning of the term] shall also be regarded as immovable in law. By contrast, it may be argued that the listing is exhaustive and no other thing shall be deemed immovable except land and buildings. To supplement the second argument, it may be said that in as long as the law doesn’t put the extent of ‘building’ (what things are referred as building?), we shall interpret it broadly  so as to include dams, bridges, fences  and the like in addition to houses. The general jurisprudence is just making land and any permanent establishment on land which can’t be moved from one location to another with out causing destruction upon it as immovable. In line with this, in whatever way the law is interpreted, it must include things such as fences, dams, bridges and the like as immovable goods so far as they are physically attached with the land and in a manner where it is impossible to displace them with out affecting their individual character.

Another point that the reader must also note is that when the law is referring to immovables it is only corporeals which have material existence by virtue of Art. 1126. As to incorporeal immovables like servitude, and others which are inseparable from the corporeal immovable such as land from which they develop as a right, though the law recognizes them under various provisions like art.1359 ff, it excluded them under article 1130 while describing what things are deemed immovable. Therefore, it doesn’t mean that these incorporeal immovables aren’t immovables because art 1130 is simply the follow up of art 1126 which sticks in classifying goods which have material existence (corporeals) only by excluding those which don’t have physical existence.

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