Looking for a file in my computer, I stumbled upon this that I wrote a year or so ago, in relation to a debate/conversation that I was having with friends on facebook. Now I said why not and posted it here.

The thesis

The thesis is: regulation can be used to amend provisions of a proclamation provided that there is clear substantive basis in the proclamation which the regulation is meant to amend. To illustrate this we can take the following hypothetical proclamation and regulation. 

Hypothetical Proclamation

Whereas the government has responsibility to protect and promote the safety of its citizens;

የጉዳዩ መነሻ

ለዚህ አጭር ጽሁፍ መነሻ የሆነኝ የፌዴራሉ ጠቅላይ ፍርድ ቤት ሰበር ችሎት በሰበር መዝገብ ቁጥር 74950 የሰጠዉ ዉሳኔ ነዉ፡፡ ጉዳዩ የገንዘብ ብድርን ይመለከታል፡፡ ተበዳሪ ከአበዳሪ በታሕሳስ 26 ቀን 1995 የተወሰደዉን ብር 237000.00 በጥር 30 ቀን 1995 ለመመለስ ቃል ገብቷል፡፡ ነገር ግን ገንዘቡን ሳይመልስ በመቅረቱ የአበዳሪ ወራሾች በተበዳሪ ላይ ሐምሌ 21 ቀን 2002 ባስገቡት ክስ ተበዳሪ ዋናዉን ገንዘብ እንዲመልስና ከየካቲት 01 ቀን 1995 መሰረት የሚታሰብ ወለድም እንዲከፍል ዳኝነት ይጠይቃሉ፡፡ ተበዳሪ በበኩሉ በዉላቸዉ ዉስጥ ወለድ ይከፍላል የሚል ቃል እንደሌለና ማስታወቂያ/ማስጠንቀቂያ ስላልተሰጠዉ ወለዱን መክፈል እንደማይገደድ ይከራከራል፡፡ በዚህ ሙግት የተነሳዉና ይህ ጽሁፍ የሚዳስሰዉ ጥያቄም ይኸዉ ነዉ፤ ያልተመለሰ የገንዘብ ብድር ያለስምምነትና ያለማስታወቂያ/ያለማስጠንቀቂያ ወለድ ይቆጥራል?

ከፍተኛዉ ፍርድ ቤት

ጉዳዩን ለመጀመሪያ ጊዜ የተመለከተዉ የፌዴራሉ ከፍተኛ ፍርድ ቤት፤ የብድር መመለሻ ጊዜዉ ቁርጥ (ጥር 30) ባለመልኩ ስለተቀመጠ በፍ/ብ/ሕ/ቁጥር 1775(ለ) መሰረት ይህ ጊዜ ካለፈ በኋላ ገንዘብ ጠያቂዉ ማስጠንቀቂያ መስጠት አያስፈልገዉም፡፡ ስለሆነም ማስጠንቀቂያ ስላልተሰጠኝ ወለድ ልከፍል አይገባም የሚለዉ ክርክር ተቀባይነት ስለሌለዉ ተበዳሪ ከየካቲት 01 ቀን ጀምሮ ገንዘቡ ተከፍሎ እስከሚያልቅ ድረስ ከሚታሰብ ሕጋዊ ወለድ ጋር ዋናዉን የብድር ገንዘብ ይክፈሉ ሲል ወስኗል፡፡

ጠቅላይ ፍርድ ቤት

What would you answer if you are confronted with a question: is appeal a fundamental right? Would you say yes, no or neither? I think the argument leans towards yes, does not it? Art 20(6) of the constitution affirms the right of any person to “appeal to the competent court against an order”; yet, I do not aim to discuss appeal in courts, but its general perception in arbitration.

Before any arbitration proceeding is underway, it presupposes a valid dispute settlement clause. In the book prepared by FreshFields Law Firm, called The FreshFields Guide to Arbitration and ADR, a valid arbitration clause should include inter alia applicable law, arbitrating institution, whether or not the tribunal will grant provisional measures, exclusion of appeals, and language of arbitration.

The civil code and the civil procedure code aspire to govern arbitration proceeding from its beginning until an award is executed. Among the main issues that I find unanswered and perplexing is the question of appeal in arbitration. Art 350 et seq of Ethiopian Civil Procedure Code (CPC) is devoted about appeal, set aside of an award. The CPC looks more liberal than expected: it allows for parties to contractually waive their right to appeal, commonly referred as finality of arbitration clause. Appeal against arbitral awards is made in the same way as appeal from judgments is conducted. Art 352 specifies the court that has appellate jurisdiction: it is the “appellate court which would have had appellate jurisdiction” had the case been filed to a court.

Black’s Law Dictionary defines appeal as a proceeding undertaken to have a decision reconsidered by a higher authority; especially the submission of a lower court’s or agency’s decision to a higher court for review and possible reversal. Taking this definition into account, any civil procedure law lays down grounds of appeal. When it comes to arbitration, the conditions for making an appeal are stipulated under art 351. It remains debatable whether the conditions indicated under art 351 should be considered as a standard or ground of appeal. Art 350(1) of the code uses the term “condition”. I think the terminology chosen by the drafter makes the concept of appeal against arbitral awards vaguer.

It would have been better if the legislature differentiated between standard and ground as they did on art 356 of CPC. Leaving this discussion aside, which I hope to return to it in another post, I would like to frame a question for the reader: would Ethiopian law allow arbitrating parties to contractually limit or expand the “conditions” of appeal stated under art 351? To restate it, if parties are allowed to fully waive their right to appeal, would it be logical to assume that they can contractually limit the “conditions” of appeal?

The following is an extract from a monograph that I am developing on Ethiopian criminal law. I posted it here with a view to soliciting views from readers.

Ethiopia is a federal state. Hence, the first question that should be raised is as to how  trial jurisdiction is allocated between federal courts on the one hand and courts of regional states on the other.

Related to the jurisdiction to try criminal cases is the respective roles of federal and regional governments in the development of criminal laws. Article 51 of the Constitution enumerates the powers of the federal government. Since the federal government consists of legislative, executive and judicial arms, it can be assumed that, on these enumerated matters, the federal government will generally have legislative, executive and judicial powers. For example, the federal government is mandated to ‘determine matters relating to nationality’. On this basis, it may be submitted that, the federal government possesses legislative, judicial and executive powers over matters relating to nationality.

An exception is only with respect to certain matters. For example, the constitution authorizes the federal government to enact laws for the utilization and conservation of land and other natural resources. And regional states are entitled to administer land and other natural resources in accordance with federal laws. From these it follows that the federal government has only legislative power regarding utilization and conservation of natural resources. The power to administer such resources is left to regional states, except in relation to international rivers and waters or those crossing or linking two or more regional states. It can, therefore, be concluded that except in those cases where its power is specifically restricted, like in the case of natural resources, the federal government exercises legislative, judicial and executive powers over those matters enumerated in Article 51.

The Constitution goes further and explicitly deals with the powers of the House of Peoples’ Representatives, the legislative arm of the federal government. The House of Peoples’ Representatives is said have the power of legislation in all matters assigned by the constitution to federal jurisdiction. This is a reference to the twenty-one items enumerated in Article 51. Therefore, on these twenty-one items the House of Peoples’ Representatives exercises legislative power.

I say 1958 was a year the international arbitration world took a remarkable move. The UN and other parties interested in international arbitration embarked an international convention to recognize and enforce foreign arbitral awards. The convention was signed in New York, The New York Convention to Recognize and Enforce Foreign Arbitral Awards (NYC), and it became the most popular convention in the whole wide world. The major trading nations, those that appear to be antagonistic have signed it without any kind of reservation. Thus far, round about 150 countries have signed and ratified it. Even, it is hailed as the “successful convention drafted by the UN.”

NYC aims to create a favorable environment for the recognition and enforcement of foreign arbitral awards, seeks to put a uniform system for the enforcement of international arbitral awards, plan to craft a standardized and homogenous procedure for recognizing and enforcing foreign arbitral awards. NYC is applicable to both international and domestic arbitral awards: art I(1) says, “… it shall also apply to arbitral awards not considered as domestic awards where their recognition and enforcement are sought.”

Inevitably, the introduction of NYC has helped the international arbitration community to move one step higher. Prior to its enactment (the 1923 Geneva Protocol was the governing rule), nation states have had their own grounds and criterion for enforcing foreign arbitral awards.

Under NYC, states are under the obligation to recognize an agreement to arbitrate, though some questions like granting judicial provisional measure before the constitution of the tribunal. When the court of a nation state is seized of an action in matter in respect of which the parties have made an agreement, it has to refer decline jurisdiction and refer the parties to arbitration (art II(3)).

The specificity and main achievement of NYC is that it has adopted only 4 grounds enforcement of an arbitral award (art V of NYC): if the arbitration agreement is void, signed under incapacity; the award debtor was not given prior notice and was not heard; the issue was inarbitrable or the award contains decisions beyond the scope of the submission to arbitration; the composition of the arbitral tribunal was not in accordance with the parties’ agreement; the award is not yet binding on the parties or has been set aside by a compete authority; the subject matter of the dispute is incapable of being submitted to arbitration; and, the recognition and enforcement of the award is contrary to public policy.

Speaking of the current Russia-Ukraine crisis, here is an interesting but less visible international legal dimension to the story.

Ukraine used to be part of the Soviet Union, during which time it had possessed huge stockpile of nuclear weapons arsenal – actually the third largest stockpile in the world at the time. Russia would not have ventured into Crimea today had Ukraine maintained possession of those nuclear weapons. What happened in 1994 was dramatic, and a bit embarrassing for Ukraine. At the end of the Cold War Ukraine agreed to an international deal that would deprive it of the entire nuclear weapon stockpile in its territory, mostly being transferred to Russia. In exchange, Russia, the US, and UK signed a binding pledge, the so-called Budapest Memorandum, guaranteeing the security of Ukraine. Now, what is interesting about this Memorandum is that it actually contained zero added-value as it offered Ukraine nothing other than what general international law already provided. Let me walk you through all the five articles of this Memorandum (yes it contained only five articles).

Article one states that Russia, USA and UK reaffirm their commitment to ‘to respect the independence and sovereignty and the existing borders of Ukraine’. Why is this promise useless? Because article 2(4) of the UN Charter, which has since become customary international law and even arguably a peremptory norm, already prohibits states from using ‘the threat or use of force against the territorial integrity or political independence of any state.’ Respecting the territory, independence and sovereignty of Ukraine is a customary international rule, and no additional treaty is needed for that.

Article two of the Memorandum basically repeats the above point, stating that the three powerful states will ‘refrain from the threat or use of force against the territorial integrity or political independence of Ukraine’, and adds that ‘none of their weapons will ever be used against Ukraine except in self-defence or otherwise in accordance with the Charter of the United Nations.’ This article seems to waste two clauses to say one and the same thing: what is the difference between ‘refraining from threatening or attacking’ another country and promising one’s ‘weapons won’t be used against’ such other country?  Or the difference between saying ‘I will not attack you’ and ‘none of my equipment will be used to attack you’?  One may say the first formulation concerns the actions of the attacker only while the later formulation creates responsibility on such party for the consequences of its weapons, by whomever the weapons may be used. That is to say, the first clause guarantees Russia, USA, and UK wont attack Ukraine, while the subsequent clause guarantees that the nuclear weapons of these states won’t be used by themselves or any other state against Ukraine. In either case, in as long as the Memorandum only envisages scenarios where the three states would have some control over the use of their nuclear weapons, either by themselves or through proxies, the general international law prohibition on the treat or use of force adequately covers it. A state would be held through the rules of state responsibility even if it uses other states (or non-state actors for that matter) as its proxy to attack another state. In sum, in article two of the Memorandum, Russia, USA, and UK promised not to attack Ukraine – but international law would not have allowed them to even if they had not made that promise.

Article three of the Memorandum guarantees that Russia, USA, and UK would ‘refrain from economic coercion designed to subordinate to their own interest the exercise by Ukraine of the rights inherent in its sovereignty.’ This seems to offer something distinct. Although unacceptable, there is no concrete rule under international law that prohibits the use of economic coercion against states (during the preparation of the UN Charter economic coercion was proposed to be prohibited together with the threat or use of force, but the proposal was rejected). However, the 1975 Final Act of the Conference on Security and Cooperation in Europe (Helsinki Accords) to which Ukraine and the three powerful states are members already prohibits the use of economic coercion against states. Article three of the Budapest Memorandum, therefore, is simply redundant.

ዛሬ በጠዋቱ ዜናው በሙሉ ከአዲስ አበባ ወደ ሮም ሲጓዝ የነበረን 202 ሰዎችን ያሳፈረ የኢትዮጵያ አውሮፕላን 'መጠለፍ' ጉዳይ ነበር፡፡ የኢትዮጵያ ኮሙንኬሽን ጉዳዮች ሚኒስትር ‹ጠላፊው ካርቱም ላይ የተሳፈረ ሰው ይመስላል› ቢሉም በመጨረሻ አውሮፕላኑ ካርቱም ላይ ከነጭራሹ እንዳላረፈና ጠላፊውም ረዳት ፓይለቱ እንደሆነ ተረጋግጧል፡፡ ረዳት ፓይለቱ ለምን ይሄን ተግባር እንደፈፀመ ሲጠየቅም ኢትዮጵያ ውስጥ መኖር ስጋት ላይ እንደጣለው በመግለፅ፤ ሲዊዘርላንድ ጥገኝነት እንድትሰጠው ጠይቋል፡፡

 ይህ ከሆነ ከጥቂት ሰዓታት በኋላ የስዊዘርላንድ አቃቢ ሕግ መስሪያ ቤት እንደገለፀው ግን ጉዳዩ ጠለፋ (Hijacking) ሳይሁን እገታ ( Hostage Taking) ነው ብሏል፡፡ በሌላ በኩል ረዳት ፓይለቱ ወደ ኢትዮጵያ ተላልፎ እንዳይሰጥ ስዊዝን ተማፅኗል፡፡ ሁለት የህግ ጥያቄዎች አሉ፡

1. ጠለፋ ወይስ እገታ?

2. በረዳት ፓይለቱ ላይ የዳኝነት ስልጣን (Legal Jurisdiction) ያለው አካል ማነው? ኢትዮጵያ ወይስ ስዊዘርላንድ?

እነዚህን ጉዳዮች የሚፈቱልን ሁለት አለማቀፍ ሕጎች አሉ (ኢትዮጵያም ስዊዘርላንድም የሁለትም የሕጎቹ ፈራሚ ሀገራት ናቸው)፡፡

1. Convention for the Suppression of Unlawful Seizure of Aircraft – Hijacking Convention on Hijacking – 1970 &,

2. International Convention Against the Taking of Hostages – Convention on Hostage taking - 1983.

በነዚህ ሁለት ሕጎች መሰረትም የረዳት ፓይለቱን ሁኔታ (Situation ) እንይ፡፡

1ኛ. ጠለፋ ወይስ እገታ?

ከላይ በመጀመሪያ የጠቀስነው የHijacking Convention 'ጠለፋ'ን በአንቀፅ አንድ ላይ እንዲህ ይፈታዋል:

Any person who on board an aircraft in flight:

unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or is an accomplice of a person who performs or attempts to perform any such act commits an offence [of Hijacking].

በሌላ በኩል ከላይ በሁለተኝነት የጠቀስነው የHostage taking convention 'እገታ'ን በአንቀፅ አንድ ላይ እንዲህ ይተረጉመዋል፡

Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of hostage-taking.

የኢትዮጵያዊው ረዳት ፓይለት ተግባርም ጥገኝነት ለማግኝት ያደረገው ማስገደጃ መሳሪያ በመሆኑ የስዊዘርላንድ አቃቢ ሕግ መስሪያ ቤት እንዳለው ተግባሩ ለእገታ የቀረበ ሲሆን፤ ተጠያቂነቱም ከእገታ ጋር በተያያዘ ይሆናል ማለት ነው፡፡

2ኛ. ኢትዮጵያ ወይስ ስዊዘርላንድ?

ጉዳዩ 'እገታ' ነው ካልን በጉዳዩ ላይ ተገቢ የሆነው ሕግ አለማቀፉ የፀረ እገታ ሰምምነት (Hostage taking convention) ነው ማለት ነው፡፡ በዚህም መሰረት በረዳት ፓይለቱ ላይ የዳኝነት ስልጣን ያለው የየትኛው ሀገር መንግስት ነው? የሚለው ቀጣዩ ጥያቄ ነው፡፡

ሕጉን ጠቅሰን ብናልፍ ይሻላል፡፡ ዓለማቀፉ የHostage taking convention በአንቀፅ አራት ላይ እንዲህ ይደነግጋል፡

State shall take such measures as may be necessary to establish its jurisdiction over the offence and any other act of violence against passengers or crew committed by the alleged offender in connection with the offence, in the following cases:

A. when the offence is committed on board an aircraft registered in that State (በዚህ መሰረት ኢትዮጵያ ስልጣን ይኖራታል);

B. when the aircraft on board which the offence is committed lands in its territory with the alleged offender still on board (በዚህ መሰረት ደግሞ ስዊዘርላንድ ስልጣን ይኖራታል ማለት ነው).

ስለዚህም በጉዳዩ ላይ የሁለት ሀገሮች የዳኝነት ስልጣን ያለ ሲሆን፤ ኢትዮጵያ የአውሮፕላኑ ባለቤት በመሆኗ፣ ስዊዘርላንድ ደግሞ አውሮፕላኑ በግዛቷ በማረፉ ስልጣን አላት ማለት ነው፡፡ በዚህ ጊዜ ማን ቀዳሚ ስልጣን ይኖረዋል? የሚለው የሚወሰነው ተጠርጣሪውን (በአሁኑ ጉዳይ ረዳት ፓይለቱ) በቁጥጥር ስር ቀድሞ በማዋል የሚወሰን ሲሆን በአሁኑ ጉዳይ ላይ የዳኝነት ስልጣኑ የስዊዘርላንድ ነው ማለት ነው፡፡

መውጫ፡

ኢትዮጵያ ተጠርጣሪው ተላልፎ እንዲሰጣት (Extradition) በፀረ እገታ ሰምምነቱ አንቀፅ 7ና 8 መሰረት መብት ቢኖራትም ኢትዮጵያና ስዊዘርላንድ የአሳልፎ የመስጠት ስምምነት (Extradition agreement) ስለሌላቸው (እኔ እስከማውቀው ድረስ) ተላልፎ የመሰጠት ጉዳዩ ብዙም አድል የለውም፡፡ የስዊዘርላንድ አቃቢ ሕግ መስሪያ ቤትም ከአሁኑ ክስ ለመመስረት ጉዳዩን እያጣራ እንደሆነ መልለጫ ሰጥቷል፡፡ 

በመጨረሻም:

ረዳት ፓይለቱ ጥፋተኛ ሆኖ ከተገኝ በስዊዘርላንድ የወንጀል ሕግ SR 311.0 አንቀፅ 185 መሰረት ከ3 ዓመት እስከ 20 ዓመት (እንደ ነገሩ ሁኔታ) የሚደርስ ቅጣት ይጠብቀዋል፡፡ በሌላ በኩል 'ድንገት' ተላልፎ ለኢትዮጵያ ቢሰጥ ደግሞ በኢትዮጵያ የወንጀል ሕግ አንቀፅ 507/1 መሰረት ከ15 አስከ 20 ዓመታት እስር ይጠብቀዋል ማለት ነው፡፡ 

እንግዲህ ምን ይደረጋል፤ ፈጣሪ ከእሱ ጋር ይሁን? :) 

In 2002, when I was doing my undergraduate degree, our contract law teacher started talking about period of limitation and its effect. I neither had a concept nor an argument about period of limitation under art 1845 of the civil code. I attended the whole class, tried to understand arguments, justifications and ration d’être of the period of limitation. Mulugeta Mengist, in his monograph says that period of limitation is used to ensure certainty and predictability in transactions.

Now, with some years of working experience and exposure, I feel like I have understood what period of limitation in a private contractual relationship. To restate what Mulugeta wrote unless there is a time limit after the lapse of which the right cannot be enforced, people do not feel secure to do whatever they like with respect to their property.

A limitation period is the period of time within which a party to a contract must bring a claim. Limitation period starts counting when the contract is breached, or when the damage is suffered. Period of limitation is a period of time, the expiry of which extinguishes parties’ legal remedies and also parties’ legal right. This is an absolute defense beneficial to the debtor but the burden of proof of the statute of limitation is with the debtor.

However, one court decision still perplexes me: Development Bank of Ethiopia v. Mr. Tigabu Teferra, Cassation No 78444/2005, found in vol 14. In order to give a glimpse of the case, the respondent, Mr Tigabu, borrowed money from the bank against collateral, in which the immovable property was registered in Megabit 23, 1989 E.C. After 14 years, it renewed the registration of the immovable property in the local registrar office, Merab Wolega Registration Office. The respondent argued that the renewal of the registration is against article 3058(2) of the civil code. On the other hand, the bank said that it had already given notice based on article 3 of proclamation 97/90.

At last, the cassation decided that art 3058(1) & (2) are not concerned with period of limitation but lapse of mortgage. Citing a precedent, Cassation Decision 44800/2002, Vol 10, it concluded that

ፕሬዝደንቱ የስልጣን ጊዜአቸውን ጨርሰው ከሥልጣን ሊወርዱ የወራት ወይም የቀናት ዕድሜ ነው የቀራቸው። ከሥልጣን ከመውረዳቸው በፊት ግን ለወደፊት ሕይወታቸው ገንዘብ ለመሰብሰብ የሚያስችላቸው አንድ አጋጣሚ ከፊታቸው ተደቅኗል። ይህ በሚሊዮን የሚቆጠር ዶላር የሚያስገኝ አጋጣሚ አሁን ባላቸው የፕሬዝዳንትነት ስልጣን ሊያደርጉት የሚችሉት ነገር ነው። ይህ አጋጣሚ “ፕሬዝደንታዊ ይቅርታ” (Presidential pardon) ነው። እስረኛው ይህንን ይቅርታ አግኝቶ ከእስር ከተፈታ የሚከፍለው ገንዘብ እጅግ ብዙ በመሆኑ በሥልጣን ደላላዎች (Power brokers) አማካኝነት ገንዘቡን ተቀብሎ የይቅርታ ሰነዶቹ ላይ ፈረመ።

ከላይ ያነበባችሁት ታሪክ ሕግ ነክ ልብወለዶችን በመፃፍ የሚታወቀው John Grisham የተባለው ደራሲ “The Broker” በተሰኘው መፅሃፉ ውስጥ ከፃፈው ታሪክ በአጭሩ የተቀነጨበውን ነው። ደራሲው ይህንን ሲፅፍ ለመነሻነት ይሆኑት ዘንድ የተለያዩ ሁኔታዎችን ግምት ውስጥ አስገብቶ ነው። ከነዚህ ሁኔታዎች አንዱ የአሜሪካ ፕሬዝደንቶች ይቅርታ ይሸጣሉ ተብሎ በተለያየ ጊዜ የተነገረው ነገር ነው። በተለያዩ ትልልቅ የወንጀል ጉዳዮች ተከሰው የተፈረደባቸው እና እስር ላይ ያሉ የግዙፍ ኩባንያዎች ባለቤቶች እና ስራ አስኪያጆች እንዲሁም ሌሎች ጠቃሚ ሰዎች እና ባለሀብቶች ደግሞ የዚህ የይቅርታ ንግድ ተጠቃሚዎች ናቸው። ከዚህ በፊት የነበረውን አሰራር ስንመለከት ደግሞ ፕሬዝዳንቶቹ የይቅርታ ውሳኔ የሚሰጡት የስልጣን ዘመናቸው ማምሻ ላይ ነው።

ይህንንም ለማስረዳት የተለያዩ ስታቲስቲክሶች የሚጠቀሱ ሲሆን ከነዚህም ውስጥ ፕሬዝዳንት ቢል ክሊንተን ሌላ ማናቸውም ዲሞክራት ፕሬዝደንት ካደረገው ይቅርታ ሁሉ የሚልቅ ይቅርታዎች አድረዋል፤ በቁጥር ሲቀመጥም ለ450 ሰዎች ይቅርታ አድርገዋል (ከነዚህ ውስጥ 140ዎቹ ሙሉ ይቅርታ ያገኙ ሲሆኑ የተቀሩት ከተለያዩ ቅድመ ሁኔታዎች ጋር የተደረጉ ናቸው)። ይሀንን ያደረጉት ደግሞ በመጨረሻዋ የስልጣን ቀናቸው እ.ኤ.አ. መስከረም 20 ቀን 2001 ላይ ነው። የነዚህን የይቅርታ ውሳኔዎች እንዲያጣሩ ሁለት የተለያዩ የፌዴራል ዓቃብያነ ሕግ ተሹመው ፕሬዝደንት ክሊንተንን ነፃ ናቸው የሚል ውሳኔ አቅርበዋል። ይሁን እንጂ ኋላ ላይ እ.ኤ.አ. 2006 ላይ የፖለቲካ እና የፍትህ አካላት ባለሥልጣናትን የሞራል ደረጃ ማሳደግ ላይ የሚሰራ Judicial Watch የተባለ ቡድን የፕሬዝደንት ቢል ክሊንተን ባለቤት የሂላሪ ክሊንተን ወንድም የሆነው ቶኒ ሮድሃም በነዚያ የመጨረሻ ቀናት ከተደረጉት ይቅርታዎች ከአንዱ 107,000 (አንድ መቶ ሰባት ሺህ) የአሜሪካን ዶላር ተቀብሏል በማለት እንዲከሰስለት ለአሜሪካ የፍትህ ቢሮ አመልክቶ ነበር።

ለዚህ ጽሁፍ መነሻ የሆነኝ በቅርቡ በማህበራዊ ሚዲያዎች ላይ የኦሮሞ ፌዴራላዊ ዴሞክራሲያዊ ንቅናቄ (ኦፌዴን) ም/ሊቀመንበርና የኢትዮጵያ ፌዴራላዊ ዴሞክራሲያዊ መድረክ ስራ አስፈፃሚ የነበሩት አቶ በቀለ ገርባ የእስር ጊዜያቸውን ጨርሰው አልተፈቱም በሚል የተሰራጨው ዜና ነው። አቶ በቀለ ገርባ “ሕጋዊ የፖለቲካ ፓርቲን ሽፋን በማድረግ የአሸባሪ ቡድን የሆነው ኦነግ አባል ሆነዋል” የሚል ክስ ቀርቦባቸው በክሱም ጥፋተኛ ተብለው የተወሰነባቸውን የ8 ዓመት እስራት በይግባኝ ወደ 5 ዓመት እስራት አስቀይረው ነበር። ከዚህ የእስር ጊዜ ውስጥም ሶስቱን አመት ጨርሰው በአመክሮ ይፈቱ ዘንድ ያቀረቡት ጥያቄ «ተገቢውን» መልስ ባለማግኘቱ በማህበራዊ ሚዲያዎች የተለያዩ ጥያቄዎች ሲቀርቡ ተስተውሏል። አቶ በቀለ ገርባ ለምን ከእስር አልተፈቱም? መፈታትስ ነበረባቸው? ለነዚህ ጥያቄዎች ምላሹን ከሃገራችን ህግጋት እንመልከት።

በአመክሮ የመለቀቅ ሥነሥርዓት

World Trade Organization (WTO) was established with the main objective of liberalizing multilateral trade, based on the belief that the liberalization of trade brings multiple of benefits to the world population. To this end, the preamble to the Agreement Establishing the WTO (Marrakesh Agreement), provides that “[t]he Parties to this Agreement, recognizing that their relations in the field of trade and economic [endeavor] should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand.” Countries   also join it on the belief that a liberal trade regime will confer these benefits upon those who become members. Moreover, it is noted that the establishment of the WTO in 1995 represented a shift from a multilateral trading system based on diplomacy under the General Agreement on Tariffs and Trade (GATT) regime to one that operates under the rule of law. On the other hand, it is argued that the guidelines of accession process under Article XII of the Marrakesh Agreement are vague and making the accession process demanding and time consuming. It is also contended that the absence of clear guidelines of accession to the WTO has been allowing current Member states to impose “WTO+” obligations on acceding countries, which is more burdensome especially on least developing countries.

 Nepal and Cambodia are among the poorest countries in the world and they were   the first least developed countries (LDCs) to be acceded to the WTO since it was founded in 1995. Their application for membership was motivated by a desire to ensure predictable market access and become eligible for the special concessions available to LDCs under WTO rules. Moreover, the countries hoped to use accession to the WTO as an incentive for accelerating domestic economic, legal and institutional reforms to create a stable business environment and attract foreign direct investment. However, an analysis of their terms of accession confirms the general trend of exacting significant “WTO+” concessions by the developed members from acceding countries although they were agreed to facilitate and accelerate negotiations with acceding LDCs at the 2001 Launch of the Doha Round of trade negotiation.

 Currently, Ethiopia is also in the process of accession to the WTO. Needless to state, WTO accession is not an end in itself but a means to achieve greater national economic development objectives. On the other hand, the process of accession and terms of commitments have been found so demanding and the potential prospects of being a member of the WTO are mixed with potential challenges. As what is accepted during the bilateral negotiation phase finally  binds an acceding country, it would be wise to carefully and strategically negotiate favorable terms rather than rushing to agree to all onerous terms which compromises the national development objectives instead of bringing the anticipated benefits of membership. To this end, learning from the experiences of other countries, notably LDCs, which have passed through the same process while acceding to the WTO, would be significant.

 This article examines the experiences of Cambodia and Nepal during the accession process, accession commitments, and accession implementation with a view to identifying some lessons that can be helpful to other acceding LDCs, particularly Ethiopia, devise successful strategies and avoid some of the mistakes in an effort to gain maximum benefit from their WTO membership. The article contains three parts. Part one deals with the WTO Accession process so briefly. The second part assesses the experiences of Nepal and Cambodia during their accession process, accession negotiations and accession implementation. The last part produces some lessons that can be relevant to Ethiopia and other LDCs from the experiences of Nepal and Cambodia as well as possible recommendations. The study mainly employs secondary data.