Mizan Law Review

Binding Interpretation of Law in Ethiopia: Observations in Federal Supreme Court Cassation Decisions

Simeneh Kiros Assefa — 2024-03-30

The Federal Supreme Court Cassation Division reviews cases based on cassation petition against final court decisions when they contain a fundamental error of law. Such decisions of the Cassation Division rendered by five judges are binding on lower courts. This article reviews cassation decisions for content and form under six categories. It also reviews how the Cassation Court sees its role to better contextualise the effectiveness of those decisions. It finds that the Cassation Division sees itself as part of a court, not an independent judiciary based on separation of powers, and its decisions show significant deference to administrative decisions, and heavy-handed interpretation and application of the rules of criminal and administrative laws. In civil cases, it shows strict interpretation of statutes; it does not resort to principle-based interpretation of rules; it rather interprets statutes as any other ordinary court does. Even if continental legal systems do not envisage case laws through their judicial decisions, courts are not expected to merely rely on the literal readings of the law where such readings are silent, absurd, unreasonable, inconsistent, and contrary to legislative intent. With regard to the form the judgments are written, there are decisions that are not befitting a Cassation Division, the highest judicial organ in Ethiopia.

Current Trends in the use of International Instruments in Ethiopian Court Decisions: Potential Lessons for Comparative Constitutional Law

Mesenbet Assefa — 2024-03-30

Comparative law in general and comparative constitutional law in particular is a thriving field of legal scholarship in many states. The basic idea of investigating and studying the norms and institutions of other societies has been used to draw good practices and lessons that can assist in resolving contemporary political, social and legal problems in a particular society. While it is true that the use of comparative law in domestic jurisdictions should be socially and culturally grounded, it has been instrumental for developing optimal normative standards in many states. This includes an increasing academic interest to understand the normative and institutional challenges of different polities in order to entrench constitutional democracy and enhance the protection of fundamental rights. Nevertheless, there is also a significant misconception and overstated criticism on the use of comparative law by many scholars. This is all the more evident when it comes to the legal practice in Ethiopia. In this article, I analyze the different arguments presented for and against the use of the comparative method, and argue that there is a continued relevance of comparative constitutional law in Ethiopian legal practice. The fledgling jurisprudence and growing reliance of Ethiopian courts on international human rights law in some of their cases is testament to the continued relevance of international and comparative law in Ethiopia.

Intimate Partner Violence: Factors that Influence Court Decisions in Addis Ababa City Administration

Helen Abelle Melesse — 2024-03-30

The judiciary, due to its pivotal position, has the potential to play a crucial role in safeguarding women from intimate partner violence (IPV). Despite this, there exists a lack of research on the adjudication of intimate partner violence against women (IPVAW) cases in Ethiopia. This article aims to identify the factors that influence the decision-making process and the final judgments delivered by the judiciary in IPVAW cases within the Addis Ababa City Administration. A qualitative research method was employed as a general research approach to gather data from purposively selected victims/survivors and duty-bearers within the purposively selected sub-cities of Addis Ababa. Primary data were gathered through semi-structured in-depth interviews, focus group discussions, courtroom observations, and court case analysis. The research revealed that various legal, institutional, social, and cultural frameworks present in the study area significantly impact the adjudication of IPVAW cases. These can be categorized into factors directly related to the legal framework of the country and those that go beyond the black letters of the law. The findings suggest the need for a multi-faceted approach to address these factors, including strengthening the legal framework of the country, providing capacity-building training for actors, and raising public awareness about the gravity of the act.

Legislative Power over Mineral Resources in the Ethiopian Federation: Legal and Practical Challenges

Yared Hailemariam — 2024-03-30

The assignment of legislative power over mineral resources is a highly contentious issue in federal constitutional design. This article aims to shed light on this issue by examining the assignment and exercise of legislative powers over mineral resources in the Ethiopian Federation. A qualitative research approach was used which included analysis of laws, examining documents and in-depth interviews. The legal framework, policy documents, and decisions of government officials relating to legislative authority over mineral resources were scrutinized. Furthermore, interviews were conducted with key stakeholders involved in the matter to gain an understanding of the actual challenges and difficulties associated with the exercise of this power. An integrated data analysis approach is used. According to the analysis, the Constitution of the Federal Democratic Republic of Ethiopia lacks clarity regarding legislative power over mineral resources. The study also reveals significant gaps in the institutional and legal frameworks governing the exercise of legislative power over mineral resources. These gaps have also resulted in the development of a legal framework that contradicts the principles laid out in the Constitution. The findings highlight the need to address the legal and practical challenges within the Ethiopian Federation.

Sustainable Finance in Africa: A Comparative Overview

Gebreysus Abegaz Yimer — 2024-03-30

The international community has introduced many policies and strategies to transform the economy into a green and sustainable economy. As finance is the economy's lifeblood, reform in the financial sector is vital to achieving sustainable development. The financial industry has two main aims in promoting sustainable finance. To protect itself from risks that emanate from the climate crisis and to positively contribute to transforming the economy into a green and sustainable economy. Some African countries have introduced legal and policy frameworks to reorient the financial industry into a more sustainable path. This article examines the experience of five African countries: South Africa, Nigeria, Ghana, Kenya and Ethiopia. African banks and financial institutions voluntarily join international initiatives and adapt to international standards. This shows that the industry is open to embracing the inevitable change that determines the future of finance in domestic and international markets. African countries are also taking essential steps with a growing interest in doing more. African countries can benefit from the new trends in the financial market. However, lack of resources, proper policy and legal frameworks, and lack of qualified experts are still challenging the transformation to sustainable finance in Africa. The African Union is thus expected to coordinate the efforts of individual countries to transform the continent's financial sector into a more sustainable path. So far, only a few AU initiatives concerning sustainable finance exist.

Trial in Absentia in Ethiopia: Legal and Practical Appraisal

Leake Mekonen Tesfay — 2024-03-30

The trial of a criminal charge may be held in absentia if the accused, duly summoned, fails to appear totally or after s/he was initially present when the trial begins. Ethiopia’s Criminal Procedure restricts trial in absentia to grave crimes and specific fiscal crimes. It also has procedures for summons and retrial. However, it lacks sufficient clarity about issues relating to the partial absence of the accused, the requirement of personal summons, setting aside sentences imposed in absentia, the possibility of rehearing if a defendant fails to appear in appeals by the prosecution and whether an accused may choose representation by defense counsel than standing trial in person. The Cassation Division of the Federal Supreme Court has continued giving binding interpretations that expand the scope of trial in absentia even for minor crimes precluding retrial. Having examined relevant literature and comparative experience, it is suggested that express provisions that address these gaps need to be embodied in the Draft Criminal Procedure and Evidence Law. The Cassation Division should also reconsider its binding interpretations in light of restricting the scope of trial in absentia and towards allowing retrial in cases the accused’s absence for good cause.

COMMENT: The Retroactive Application of Criminal Law in Favor of the Accused: A Comment on the FDRE Council of Constitutional Inquiry’s (CCI) Decision

Bebizuh Mulugeta Menkir — 2024-03-30

Article 182 of the Customs Proclamation (Proclamation No 859/ 2014) provides that cases pending before the coming into force of the Proclamation shall be treated in accordance with the previous law. In Melaku Fenta et al, the constitutionality of this provision was challenged because it denied the retroactive application of criminal law in favor of the accused. In its decision, the CCI declared the provision as constitutional and this comment aims to examine this decision. By examining the decision in light of Art 22(2) of FDRE Constitution, domestic laws, international legal frameworks and the literature concerning the retroactive application of criminal law in favor of the accused, this comment argues that the CCI should have declared Art 182 as unconstitutional to the extent it denied the retroactive application of criminal law in favor of the accused. Determining whether the accused could benefit from the decriminalization should have been left to the court to decide.

NOTE: The Development of Modern Criminal Justice Processes and Institutions in Ethiopia (1907-1974): An Overview

Simeneh Kiros Assefa — 2024-03-30

This note briefly discusses the institutional and process developments in Ethiopia’s modern criminal justice. There is a close relationship between political administration and justice administration considering the issue of judicial independence in a historical context. The year 1907 is taken as a starting point in the development of criminal norms and institutions because the Ministry of Justice was established and Afe Negus Nesibu was appointed Minster of Justice. The institutional and normative developments in this period were merely reactive to problems. Twelve judges were appointed to help the Minster of Justice who was entrusted to see all the cases by himself. Procedural rules were introduced as schedules in order to manage the inflow of cases. The enactment of the 1930 Penal Code helped judges determine sentences rather than sending convicts to the governor for sentencing. Regulation of appeal and preliminary processes such as providing a copy of judgement were introduced. The second phase in Ethiopia’s modern criminal justice system started from 1941 onward because this year is a landmark for the establishment of modern legislation and modern criminal justice institutions. The police were established as an investigation institution that executes orders given by the court. Prison was established signaling imprisonment as a mode of punishment. The prosecution institution was established under the Ministry of Justice. Thereafter, several substantive and procedural rules have been adopted governing the initiation of cases, summons, evidence, judgement and appeal. The last institution established during this period was the judicial organ.