1. Ethiopia and Its Legal System: The Context

World Atlas, Countries of the World by Land Area: Available at: http://​www.​worldatlas.​com/​aatlas/​populations/​ctyareal.​htm, accessed on May 7, 2017.

Library of Congress-Federal Research Division, Country Profile: Ethiopia, available at: http://​lcweb2.​loc.​gov/​frd/​cs/​profiles/​Ethiopia.​pdf, accessed on May 7, 2017.

Central Statistics Agency [Ethiopia] and ICF International, Ethiopia Demographic and Health Survey 2011 3 (Addis Ababa and Calverton, 2012), available at: https://​www.​usaid.​gov/​sites/​default/​files/​documents/​1860/​Demographic%20​Health%20​Survey%20​2011%20​Ethiopia%20​Final%20​Report.​pdf, accessed on 25 September 2017.

www.​worldometers.​info/​world-population/​ethiopia-population, accessed on September 25, 2017.

Central Statics Agency, supra note 3.

https://​www.​thereporterethio​pia.​com/​article/​sidama-embarks-statehood, accessed on 24 Sep. 2020.

Constitution of the Federal Democratic Republic of Ethiopia, Proclamation 1/1995, Article 47(1), Federal Negarit Gazeta, 1st year, No. 1.

Eshetu (1995), p. 194.

Assefa and Eshetu (1967), p. 4.

Eshetu (2004), p. 80. Eshetu indicates the annual rate of growth of per capita production for the agricultural sector which formed the back bone of the economy was only 0.5% during 1961–65. In contrast, significant progress was registered in the transport, power and manufacturing sectors. The latter for example grew by 16.2% during the said period.

Dessalegn (2009), pp. 295–296.

Eshetu (2004), p. 100.

Id., pp. 117–123.

Mamo KS. Ethiopia: where and who are the World’s Illiterates? Available at: http://​unesdoc.​unesco.​org/​images/​0014/​001460/​146064e.​pdf, last visited on 20 September 2018.

Eshetu (2004), p. 265.

The World Bank, Ethiopia at a Glance 2011, http://​devdata.​worldbank.​org/​AAG/​ethaag.​pdf, accessed on May 12, 2016.

The World Bank Group, 5th Economic Update for Ethiopia, available at, www.​worldbank.​org/​en/​news/​press-release/​2016/​12/​06/​world-bank-group-launches-its-5th-economic-update-for-ethiopia, accessed on 25 September 2017.

The Economist, “Investing in Ethiopia: Frontier Mentality”, May 12th, 2012 edition, available at http://​www.​economist.​com/​node/​21554547, accessed on May 1, 2016.

The World Bank, Global Economic Prospects: A Fragile Recovery, available at http://​www.​products.​worldbank.​org/​en/​7102314936555064​52/​Global-Economic-Prospects-June-2017-Regional-Overview-SSA.​pdf, accessed on 25 September 2017.

UNDP, The 20013 Human Development Report, “The Rise of the South: Human Development in a Diverse World” available at: http://​www.​undp.​org/​content/​ethiopia/​en/​home/​presscenter/​articles/​2013/​03/​15/​human-development-report-2013-puts-ethiopia-as-third-top-movers/​ accessed on May 7, 2013.

UNDP, Human Development Report 2016, available at: http://​hdr.​undp.​org/​sites/​default/​files/​hdr_​2016_​statistical_​annex.​pdr, accessed on 24 October 2017.

Redden (1968), pp. 41–43.

Vanderlinden (1967), p. 251.

There is a general consensus that the immediate source of the Fetha Negast is a compilation made in Arabic from its original in Greek by a Christian Egyptian jurist known as Ibn Al’- Assal for the use of the Egyptian Coptic Church in the thirteenth century. See Paulos (2009), p. XXXiV.

Vanderlinden (1967), p. 251.

The law issued in 1908 by Emperor Minilik to establish Ministries and define their powers and duties indicates as one of the powers of the Minister of Justice “He shall control whether any decision has been given in accordance with the rules incorporated in the Fetha Negast”. See Paulos (2009), p. XXXiV.

Vanderlinden (1967), p. 252.

Singer (1970), p. 76. At the outset the reforms were little more than changes in form and names. The Ministries that were established had no functional difference from office holders that preceded them. Change was gradual. As regards how the functions of the Ministry of Justice evolved, for example, see pp. 76–77.

Paul and Clapham (1972), pp. 340–341. This Constitution was drafted by the foreign educated Minister of Finance, Bajerond Tekle-Hawariyat. According to Tekle-Hawariyat, when he urged the Emperor to grant a constitution to the country, the Emperor ordered him to draft one. The Minister who had no background in law relied heavily on a copy of the Imperial Japanese Constitution of 1889 that was supplied to him.

Redden (1968), pp. 44–45.

Vanderlinden (1967), p. 253.

Beckstrom (1973), p. 559.

Singer (1970), p. 79.

Vanderlinden (1967), p. 255.

Singer (1970), p. 78.

Paul and Clapham (1972), p. 387. The constitution of 1931 that was in force till 1955, contrasted unfavorably with the liberal constitution that was bestowed on Eritrea by the United Nations. Since Eritrea was federated to Ethiopia by the United Nations, having two constitutions, within one country, that are markedly different in rights they vest in citizens created anomaly. This was one of the driving causes for the adoption of the 1955 Constitution.

The decision to comprehensively reform the legal system and codify were taken in late 1953. A plan was drawn and continental experts were sought. The experts that were chosen were: for the drafting of Civil Code and Civil Procedure Code Professor Rene David, Professor of Comparative Law at the University of Paris; for Penal Code and Criminal Procedure Code, Professor Jean Graven of the University of Geneva; for Maritime and Commercial Codes, Professor Jean Escarra of the University of Paris. There were however changes in the process. Thus for example, Professor David did not draft the Civil Procedure Code. Similarly, the Criminal Procedure Code was not drafted by Professor Graven. Professor Escarra died before he could complete the drafting to the Commercial Code thus Professor Jauffret had to finalize the drafting of the Code.

Beckstrom (1973), p. 559.

Vanderlinden (1967), p. 259.

Beckstrom (1973), pp. 559–560. Lending credence to this observation, the drafter of the Civil Code says his draft was substantially modified to impose punishment of extreme severity on persons who sawed seeds, planted trees and erected buildings on the property of others. He further says Parliament introduced into the draft ‘modifications constantly favorable to owners’ in the part of the Code regulating the relationship between farmers and owners of land. See David (1963), p. 200.

Brietzke (1974), pp. 152–154.

David (1963), pp. 193–195. Professor David says only those customs that correspond to the profound sentiment of justice of Ethiopians and those that are too profoundly rooted were taken into account. He adds that these were not many given the society had been frozen for centuries and many spheres of social and economic life were at their rudimentary level. He says, the concept of contract, for example, was not known and ‘the entire matter of contract in the Code is a new thing’ because these things were not know to the Ethiopian society at that time and hence no custom occupied the field. Others vehemently challenge the foregoing assertions by Professor David. Paul Brietzke, for instance says, Professor David simply attributes his own assumptions to Ethiopians. In reality he alleges the drafters of the Civil Code and the Commercial Code were following the colonial legal thinking that ‘good law in one place is good law in any place else’. He says some basic assertions made by the two drafters are false or disingenuous. For instance he challenges the assertion by the two drafters that there were no custom in Ethiopia regarding commercial matters and particularly contracts. He maintains even substance trade is contractually regulated and hence such customs exist everywhere let alone in Ethiopia that practiced commerce for thousands of years. See on this Brietzke (1974), pp. 150–151.

Krzeczunowicz (1963), p. 175. Professor Krzeczunowicz published commentaries on contracts and torts besides publishing numerous articles on different areas of the Civil Code. To date, his books are used as texts in law schools in Ethiopia.

Brietzke (1974), p. 154.

Singer (1970), pp. 88–89.

Sand (1971), pp. 5–6.

David (1963), p. 204.

Vanderlinden (1967), p. 257.

French, that had been the more familiar language in pre-war period, was replaced by English after the return of the Emperor from exile in 1941 because of significant influence of the British and the Americans in the country in the post-war period. English was the language of instruction especially at collage level at the time of the codification though Amharic remained the official language in all other aspects of public life.

David (1963), pp. 188–189. The advanced legal systems that do not have codified laws have various things that compensate for the absence of a code ranging from many written laws that are not named codes, well-developed jurisprudence articulated by highly competent judiciary that is available in various digests etc… Ethiopia in late 1960s had nothing of this sort and the only way to mitigate arbitrariness was to codify laws according to him. The modernization of Ethiopia required the adoption of “ready-made” system as Ethiopia had no luxury of waiting for three to five hundred years to slowly develop its laws from practice relying on empirical experience. What was needed in Ethiopia was ensuring minimum security in legal relations as quickly as possible. Hence, codification was progress by itself in the Ethiopian context, according to Professor David.

Singer (1970), pp. 82–83.

Sand (1971), p. 18.

Vanderlinden (1967), p. 255.

Watson (1996), pp. 340–341.

Id., pp. 339–341.

Spamann (2009), pp. 46–47.

A Proclamation to Reamend the Federal Courts Proclamation No. 25/1996, Proclamation No. 454/2005, NEGARIT GAZETA, 11th Year, No.42, Article 2(1).

Berkowitz (2003), pp. 168–169.

Beckstrom (1973), p. 568.

Discussion with Mr. Tewodros Meheret, formerly head of Legal Services of Abyssinia Bank, Currently Head of Legal Services of Addis Ababa University and Lecturer. Also Mr. Yazachew Belew, formerly judge in the Supreme Court of the Oromia Regional State and currently lecturer at Addis Ababa University. Discussion was held with the two on November 26, 2013 at the main campus of Addis Ababa University.

Because banks, as a matter of practice do not accept presentment of postdated checks, business people obtain credit from fellow businessmen by drawing a postdated check, for the amount borrowed and often egregiously high interest in return. This happens despite the fact that issuing a check without cover is a criminal offence, and in spite of the existence of a lawful mechanism that could exactly serve the same purpose, the issuance of bills of exchange. Those giving credit prefer getting a post-dated check because they use the criminal sanction as an additional leverage to get back the money they lend besides the Civil Procedure Code provisions on summary procedure for recovery of debt supported by a check. See Brietzke (1974), p. 164, The Civil Procedure Code of Ethiopia (1965), Art 284.

Interview with Mr. Tewodros and Yazachew.

The Revised Family Code Proclamation, FEDERAL NEGARIT GAZETTA, 6TH Year, Extraordinary Issue No. 1, Article. Article 321(1) requires the Federal Government to issue laws for the implementation of the registration of civil status and establish the institutions necessary for this purpose within six months from the coming into force of the Code in 2000. Yet such institutions were not established till 2016.

Brietzke (1974), p. 157.

Civil Procedure Code (1965), Art 182(1).

This has been an official policy of the Cassation Division for over a decade now. The official reason being the Court need not waste time when it finds the decision sought to be reviewed for fundamental error of law suffers none and hence reasoning out would be only reproducing the decision that was sought to be reviewed.

For instance, Cassation Court Report, Volume 20, published in May 2017 reproduces 88 Cassation Court decisions in 444 pages. That makes the average length of the decisions 5 pages. Of the five pages a total of one page is dedicated to description of the court, name of judges and the orders issued by the Cassation Bench in the end. So, about four pages only are dedicated to the summary of the facts of the case, its procedural history, the reasoning of the lower courts and the Cassation Bench’s own holding and reasoning.

Blackaby et al. (2015), p. 8.

Lew et al. (2003), p. 58.

Blackaby (2015), p. 9.

Lew (2003), p. 60.

UNCITRAL Model Law on International Commercial Arbitration 1985 with amendments as adopted in 2006, General Assembly Resolution 40/72 of 1985 and General Assembly Resolution 61/33 of 2006, Article 1(3)a.

Lew et al. (2003), p. 61. Incidentally one notes that the UNCITRAL Arbitration Rules as Revised in 2010 do not define when arbitration is international though they are aimed at international commercial arbitration. See, UNCITRAL Arbitration Rules as Revised in 2010, General Assembly Resolution 65/22, Preamble and Article 1. Coming to Africa, the law in South Africa makes distinction between domestic and international arbitration. The International Arbitration Bill, Bill No.10/2017 published in Government Gazette No. 40687 applies to international arbitration while Act No. 42 of 1965 applies to domestic arbitration. The preamble of the International Arbitration Bill states its purpose is, among others, to ‘provide for the incorporation of the Model Law on International Commercial Arbitration’ as adopted by the UNCITRAL into South African law. Article 3 and 4 of the International Arbitration Bill indicate that the Arbitration Act of 1965 remains in force but does not apply to international arbitration except in relation to certain provisions that have been specifically indicated under the 2017 Bill itself. The South African Bill incorporates verbatim the criteria of the Model Law on what makes an arbitration international. It reproduces the Model Law as annex I to the Bill, in which Article 1(3) of the Model Law is simply reproduced.