If the doctrine of precedent did not exist, it would have to be invented

A law that has been in force since 2005 (Federal Courts Proclamation 454/2005) declares that interpretations of law rendered by the Cassation Division of the Federal Supreme Court (hereinafter referred to as CDFSC), are binding on all federal and state courts. However, according to the same law, this does not prevent the CDFSC from providing a different interpretation in the future.

The binding nature of precedents is a fascinating topic. After learning that this was raised in one of the electoral debates 2010, I have decided to put my thoughts in writing. Several questions should be addressed if one is to have a clear position on the matter.

Should interpretations of law provided by higher courts be binding on lower courts? If so, should lower courts be obliged to follow only interpretations of the CDFSC or should they also follow the interpretation of law given by the ordinary appellate divisions of the federal supreme and high courts? If at all courts should follow interpretations of law provided by higher courts, how do you make sure that that is so--is it by passing a proclamation which declares precedents to be legally binding? Is it desirable that the CDFSC is not bound by its previous interpretation?

There is one characterization of law which has already become a cliché: that in law two plus two is not necessarily four. To a large extent it is a characteristic which is unfortunate, particularly in the area of commerce. To a limited extent, however, the ambiguity, uncertainty which this characterization is meant to portray is desirable and unavoidable. To the extent that it is undesirable, therefore, attempts should be made to ensure that legal consequences of alternate courses of actions are predictable; that the sum of two and two is predictable whether it is 4 or 999.9. How do you ensure that the sum of two and two is the same whether it is Mekelle or Hawassa. Obviously having the same text of law is not the solution.

That is where the appellate review system and the courts' hierarchical structure play important roles. One self-evident purpose of appeal is to correct errors made by lower courts. If that was the sole objective of the system we would have many federal supreme courts.

The structure of courts, mainly the fact that it looks like a pyramid (the narrow end of the pyramid representing CDFSC) suggests another purpose of appeal--ensuring federal law is uniformly applied across the country. The inherent uncertainty of legal consequences emanating from the very nature of law and language is alleviated through an appellate system that is designed to ensure uniform application; that the sum of two and two is the same in Hawassa and Mekelle.

Making sure that laws are uniformly applied is not only about ensuring certainty and encouraging private investment in the economy, it is also about basic constitutional right--equality before the law.

If the a particular provision of the law is interpreted in one way in the courts of Tigray in the matter between Ato Ayetu and Ato Lemotu, then it should be interpreted in the same manner in the courts of Gambella in the matter between Ato Woselataw and W/ro Biletua insofar as the concerned set of facts and legal issues are similar.

Therefore, it is a matter of basic constitutional right and in the public interest that laws should be uniformly applied.

It is also in the collective interest of the judiciary that laws are uniformly applied; that way it can easily secure public confidence and thereby strengthen its naturally weak position relative to the executive and legislative branches of government. The problem in my view is that the appellate system will not ensure uniform application of laws when lower courts do not routinely accept the interpretation of law rendered by the highest court. If the doctrine of precedent is unknown in a given legal system, it might result in laws being differently applied in different places and at different times. It will expose citizens to unnecessary costs because they are now forced to go to the highest court to reverse decisions of lower courts.

Assume that the first instance court located in Arada Kifle Ketema decided that Article 1705 of the Civil Code should be interpreted in such a manner that false information and failure to disclose information during formation of contracts have the same legal effect: that of not resulting in the invalidation of contracts as a matter of rule. This decision was made in the case of Alemu v Yaregal. Alemu was not happy with the interpretation of the law and took his case all the way to the CDFSC which gave the following final judgement:

false information and failure to disclose information are two different problems in law of contracts. False information should always result in invalidation of contracts provided that the person making it knew or should have known the falsity and the other party did not know and should not have known it; however, failure to disclose information should result in invalidation of contracts only when there is a special relationship between the contracting parties requiring complete confidence and transparency.

Assume that the same issue was raised in the same court in Arada in the case of Dawit v Fikru. The question now is: should the court follow the interpretation of Article 1705 provided by the CDFSC in the previous case of Alemu vYaregal. Assume that the judges in the Arada first instance court are aware of the interpretation of Article 1705 given by the CDFSC. Should they nevertheless adopt their own interpretation or should they follow the reasoning of the CDFSC?

What will happen if they stick to their original position and decide that false information and non-disclosure of information have the same legal consequences in law of contracts?

In such a case any one of the parties who would benefit from the interpretation given to the same provision by the CDFSC would appeal provided that he is aware of the decision of the CDFSC in Alemu v Yaregal and willing to cover costs involved in terms of time and legal expenses. Provided that it is taken to the CDFSC, it will be expected that the decision of the first instance court will again be reversed (note however that this is not a matter of certainty).

So the position of the CDFSC prevails, albeit after additional expenses to the litigants. If this issue occurs repeatedly in lower courts which refuse to give into the reasoning of the CDFSC, the result is those people who are well represented and financially capable will eventually get favourable decision by going to the CDFSC; however those who are not well represented or of limited-means will not be able to appeal and will be stuck with a law applied differently to them.

This would contradict the constitutional principle of equality before the law. It will also increase the work load of the CDFSC. It will bring a great deal of uncertainty which would result in several cases being brought to courts on the same issue mainly because litigants would like to try their chances. Eventually, if the laws are widely applied in different manners according to the personal philosophy and belief system of the courts, then it will eventually alienate the judiciary; it will make it in fact the least dangerous branch of government.

From the above discussion it is in fact desirable that courts should follow previous cases set by the highest court. Therefore: If the doctrine of precedent did not exist, it would have to be invented.

In Ethiopia there has been uncertainty regarding the legal position of precedents. There was a proclamation in the 1960 which declared that lower courts should follow decisions of the highest court. But when this proclamation was amended in order to modify the court structure, that provision was omitted. And since then there is no uniformity of opinion on the position of the doctrine of precedent in the legal system of Ethiopia.

There were instances where courts, particularly the Supreme Court, mentioned on its own motion previous cases in justifying its decisions. In other cases courts refuse to be bound by previous cases when their attention is brought to them by the litigants; the reason in one case was because the two cases are different in their facts (the difference cited is so trivial indicating a judicial deceit). In another case, the courts refused to be bound by previous cases stating that there is no law that vests cases with binding force.

What kind of law are they looking for? Statutory law? Can you ensure precedents are followed by declaring in a statute that they are laws? Others argue that cases are not sources of laws in Ethiopia and invoke the proclamation that has established the Negarit Gazetta and that states that the term 'law' means proclamation passed by the House of Peoples’ Representatives and regulations passed by the Council of Ministers.

This specific way of restricting the meaning of laws to proclamations and regualtions is surprising. The basic message of the proclamation is that laws are to be published in the Negarit Gazetta and laws means proclamations and regulations. The implication being proclamations and regulations should be published in the Negarit Gazetta. It is not meant to imply that no other rules can be considered laws. It only means that Negarit Gazetta is a place where certain forms of laws are to be published. Therefore, directives are not supposed to be published in the Negarit Gazetta. Yet they are laws. Yet they may and, I think, should be published in some other manner.

The other reason provided against the use of precedents in Ethiopian legal system has to do with the characterization of Ethiopia as a continental (civil law) legal system and precedent is a characteristic of the common law legal system.

The implication: Ethiopia as a civil law country should not provide for binding precedents. Writing on the law which states that interpretation of the constitution provided by the House of Federation are binding upon all federal and state organs, one member of the Constitutional Inquiry Counsel wrote:

"The Proclamation had now made it clear that the decisions of the [House of Federation] on Constitutional adjudication shall...remain applicable to similar issues that may arise in the future. This, in a way, is a new development in the field as it has introduced a precedent system: a practice peculiar to the common law system has thus been introduced in a predominantly civilian legal tradition. As a country of civil law tradition there is no possibility for the introduction of judge-made laws in Ethiopia. Lawmaking is the sole responsibility of the legislative arm of the state. A sudden departure is exhibited with the adoption of this precedence system for the constitutional adjudication. It is provided in an explicit way that decisions of the House shall apply to future cases".

What is wrong with the above paragraph? Well what is not wrong with it? Lawmaking is the sole responsibility of the legislative arm of the state---WRONG.

As a country of civil law tradition there is no possibility for the introduction of judge-made laws in Ethiopia--WRONG IN SEVERAL WAYS.

First of all, it is surprising that people characterise Ethiopia as a civil law tradition. Anyone who has made a quick comparative survey of Ethiopian contract, partnership, company, tort and other laws will quickly be convinced that Ethiopian law is in fact a cocktail of laws in continental bottles.

It is wrong to characterise a country which constitutionally recognises the application of sharia law and customary laws as a civil law tradition. Most importantly what has this got to do with the legal status of precedents? The legal status of precedents may (emphasis on 'may') be used to determine if the country belongs to one legal tradition as opposed to another--even then it will just be a positive statement. It is not proper to make prescriptive statement on the legal status of precedents based on the category of legal tradition to which a given legal system belongs; particularly when the legal system is wrongly categorized.

In this relation it should be noted that the doctrine of precedent can also be found in the civil law tradition. French legal system, a textbook example of continental legal tradition, relies also on case law--a whole branch of law (administrative law) is uncodified and based on cases. Why has the French civil code 'remained in force' for more than 206 years?

You do not think that the French society is static? It is because of case law. Several provisions of the civil code are rendered deadletter as they have been modified by case law beyond a point of recognition. You do not think that French have managed for 206 years to govern extracontractual relations with only five articles of the civil code? My point is:

·         Ethiopia is a mixed legal system;

·         Continental legal systems also use case law (have some form of doctrine of precedent)

·         Whether decisions of the highest court should bind lower courts has nothing to do with the category of legal tradition to which a given legal system belongs

·         Therefore even if Ethiopia is a civil law country (which it is not) this does not mean that the doctrine of precedent cannot be applied.

Quite the contrary I believe that there are a number of constitutional and policy grounds to argue for the acceptance of precedents in Ethiopia. It is also in the collective interest of the judiciary that there should be some level of uniform application of laws. I am not calling for uniform laws--that would be contrary to the federal form of state structure.

I am rather calling for a uniform application of uniform laws. Can this be done by legislating for the binding force of precedents like what is done in proclamation cited at the beginning? I do not think so. It should be noted that judges in the common law systems where precedents are accorded the highest regard are not statutorily bound to follow precedents; they do so out of accepting the virtues of the system, tradition and other factors which I will mention below.

It should be noted that there is a fundamental incentive problem as far as precedents are concerned (this is what economists would characterise as a tragedy of the commons). In a given case, for example that of S v W where Article 1705 of the civil code is being considered, collective interest of the judiciary as well as the general public interest requires that the lower court should follow the interpretation of Article 1705 laid down in the case of Alemu v Yaregalby the CDFSC; on the contrary the private interest of a particular judge involved as well as one of the litigants might require this interpretation not to be followed--the incentive to go against the collective interest of the judiciary and the public is stronger in cases which involve a large amount of money or property and/or cases where the judge has a strong personal opinion on the matter.

In such cases the per capita benefit which flows from following Alemu v Yaregal may tend to be lower than the per capita benefit of not following it. Therefore, the incentive structure should be examined and restructured in such a way that it is tempting for the lower judges to follow interpretations of law provided by the highest judicial organ in the country. In several countries when judges in the lower courts are being considered for appointment to higher courts, their record (rate of reversal) is examined--higher rate of reversal indicating that that there is something wrong with the competence of the judge. In addition, the rate of reversal will be closely scrutinised if the reversals are on the same issues--to determine if the judge is following what the general public interest and the collective interest of the judiciary requires; that is to follow precedents. Higher rate of reversal on similar issues indicates that that particular judge is going against not only the public interest but also the collective interests of the judiciary. This provides a strong message to judges who would like to go up the judicial hierarchy.

Most importantly, decisions of higher courts must be widely accessible. In the past few years since the enactment of the Proclamation No. 454/2005, the Federal Supreme Court has started publishing cassation decisions. This is indeed an important step. However, it should be considered that it is only a first step. I have read a number of this published decisions and still found them wanting in many respects. They are not detailed and persuasive. With the enactment of the above proclamation, it should be noted that decisions of the cassation division are meant to achieve additional purpose: persuading lower courts and the legal profession to follow its interpretation. Obviously this requires a more detailed discussion of arguments and reasons than a two page decision--one and half of which is a mere summary of the facts. A two page decision can be a command but not a piece intended to persuade. [This is even without mentioning the instrumental value of detailed decisions in ensuring accountability].

In addition, it is high time that the supreme court should consider if it can benefit from the assistance of the chief prosecutor or any other person participating in its deliberation even if it is to only submit alternative well researched opinion on the issues involved. It should be noted that now that cassation decisions have become law, they affect not only the particular litigants in that case but also the whole legal system and country and hence there should be a mechanism that ensures that a range of interests are examined. One specific reform in this regard could be to make legal representation in cassation proceedings compulsory and to provide for the chief prosecutor and, may be, law schools in the country to provide their own research and opinion on how a particular law should be interpreted. Lesson could be drawn from the practice of Advocates General giving opinions in the European Court of Justice.

Now let me take you to one aspect of this new law which states that the CDFSC is not bound by its own past decisions. This looks like the 1966 Practice Statement by the House of Lords (UK) in which the Lord Chancellor stated that from then onwards the House of Lords is not bound by its own past decisions. This is deemed necessary to ensure that law is not static; to ensure that the highest court in the country does not become a slave to its past mistakes. On the other hand, it should be noted that this provision might potentially destroy the very system of precedent which it is introducing.

In the above example, the message is that when confronted with the same issue regarding the interpretation of Article 1705, lower courts should follow the reasoning of the cassation division in Alemu v Yaregalbut at the same time the message is that the cassation division may at a later point provide a different interpretation of the same law than what it gave in Alemu v Yaregal. So in such cases one may wonder: what is the purpose of the lower court adhering to Alemu v Yaregal if the cassation court might reverse it at a later point in time? This is the reason why the House of Lords has not frequently used the power which is declared in 1966. Since then it has been only on few occasions that it reversed previous precedents. In a number of cases where the parties brought to the attention of the House of Lords its own past mistakes, the House decided however to repeat the same mistakes for the sake of certainty and predictability.

It should be noted that in criminal cases overruling precedents might amount to retroactive application of laws. To conclude my arguments: it is up to the current judges of the cassation court to ensure that the system of precedent is entrenched in the legal system by improving the substantive quality of their judgement and by showing a kind of respect to their own past decisions for the sake of certainty and general principles of criminal law. Balebetu yakelelewen amole baleda ayekebelewem.It is also high time to consider if an institution known as friends of the cassation court could be established to allow consideration of the wider interest in a case being considered by the court and if representation by a qualified and licensed advocate in cassation proceedings can be made compulsory.