The Emergence of Precedent over Precedent and Its Potential Conflict with the Principle of Self-rule in Ethiopian Judicial Federalism: The Case of Oromia Courts

  • Fedesa Mengesha

Abstract

This article is constructed based on a theoretical-deductive attempt to define theunconstitutionality of FDRE Supreme Court Cassation practices on the principle ofseparation of power, particularly its challenge to the autonomous power of statecourts on their own exclusive matters. Especially, as it is well known, the
interpretations of law by the Federal Supreme Court Cassation Division have binding effects on decisions of lower courts, including state courts. This was, for a
long time, theoretically debated and contested for its unconstitutionality without fruitful change. However, whatever its constitutionality debates, the Federal Courts Establishment Proclamation Nos.25/1995 and 454/2013 are in action by making the Cassation Division decisions to have binding effect on state courts, whether theissues are state matters or not. Now, the most climax debatable issue is that the Oromia Regional State Courts Proclamation No.216/2019 has come up with a new version that makes decisions of the State Supreme Court Cassation Division to have legal binding effect on lower courts of the region solely on state matters

Accordingly, when we see the two proclamations (Proc.No.454/2013 and Proc. No. 2016/2019), the concept of precedent over precedent is ow emerged in
addition to the most widely used term of cassation over cassation. Unless one can conclude that there is a federal law supremacy clause in our legal system, the two versions of the proclamations overlap each other and one makes the other nonsense. But, apart from the Federal Constitutional Supremacy clause, the FDRE
Constitution has established the two tiers of government with their respective autonomous government institutions to decide on their own matters, which are
constitutionally guaranteed so far. However, save aside international treaties, as far as another ordinary federal law is concerned, the Federal Courts Establishment Proclamation No.25/1996 Art.6 (2) has clearly established federal supremacy clause.

Concerning this area, there are different articles written in favor of or against the existence of cassation over cassation. The former approach claims that it is
important to keep the uniformity of legal application all over the country and maintain constitutionality of decisions of courts of any level by checking its
conformity with the FDRE Constitution. Accordingly, they argue for the existence of federal supremacy clause2. But, others argued that there is only constitutional supremacy, not federal law supremacy. They confirmed that so far as there is constitutionally empowered another body, House of Federation, to save constitutional order and settle constitutionality issues, the Ethiopian courts are not entrusted to solve constitutionality issues at all. Concerning uniform application of laws, our current legal system is operating under the guise of the typology of dual court structure in which by its very nature hardly possible to think of uniformity of laws and their applications.

There are also other writers, like Mehari Redea who argued against the existence of cassation over cassation in Ethiopia.3 Accordingly, this article is constructed
based on those arguments against the existence of cassation over cassation and constitutionality of the precedent effect of decisions of State Supreme Court Cassation Divisions, particularly the binding effect of Oromia State Cassation Division decisions. In addition, this article has seen not only the unconstitutionality
of precedent over precedent, but also its challenging effect on the principle of federalism, and independence of state courts. Therefore, hopefully, this article will
convince the reader(s) by forwarding sound arguments with critical analysis against theoretical and practical existence of precedent over precedent based on
constitutions of the country

Published
2021-01-18