In this article, the writer will try to shed light on the status of the feasibility of the Ethiopian legislation in coping with day to day societal dynamics of Ethiopians.
The writer opines that there are macrocosm anomalies in transforming law in the Ethiopian legislative scheme, which in turn has made life expectancy status of Ethiopian laws low.
Table of contents
Abstract
1 Introductory Remarks
2 Transformation of Laws in Ethiopia
3 Propositions of Law in Ethiopia
4 Life Expectancy Status of Ethiopian Laws
4.1 Excessive/Over-elaboration of Legislations
4.2 Absence or Poor Color Papers Stage of Legislation
4.3 Constitutional Infidelity of Legislatures.
4.4 Absence of Free and Fair Election
4.5 Lack of Societal Ethos
5 Conclusion and Recommendations
5.1 Conclusion
5.2 Recommendations
Abstract
Hobbes famously asserted that the state of nature that is, the social condition, without law and government would be ‘a war of all against all’ in which life would be ‘solitary, poor and nasty, brutish and short whilst Dworkin maintained ‘we live in and by the law. It makes us what we are. [. . .] we are subjects of law’s empire, liegemen to its methods and ideals bound in spirit while we debate what we must therefore do’.
These scholars’ argument generally reveals that no world would be without laws’ governance while simultaneously no law will be out of pragmatic issue of the world; though some argue as Pragmatism works in theory but not in practice.
The fact that our world is dynamic, our laws also ought to be dynamically enough to vigorously fit to the dynamics of each and every days of the world. Hence, legislations should be adjusted in a modus operandi they accommodate these desires. To put up these desires, legislations must be bear some characteristics of quality law; viz. comprehensiveness, clarity, sturdiness, uniformity, compatibility, and the list may go on.
Nonetheless, legislations’ comprehensiveness, clarity, sturdiness, uniformity, compatibility, etc depends, if not limited to, on the all corner status of legislative organ’s independency status of a respective regime. To put it differently, it is the product of respecting the autonomy of legislative branch under the giant umbrella of principle of separation of power.
Taking the matter further, due to the fact that globalization is the source of dynamics, Ethiopian legal system couldn’t be an exception to these facts. In principle, the development of legal system ought to precede societal development; otherwise, as fallback, at minimum with equal pace with socio-economic, political and technological development of the society it governs. This principle shows that the development of legislative standard shall be at the stage of societal development formative. Thus, life expectancy of law always entangled with this principle.
Moreover, the status of life expectancy of law always intertwined with legislative branch’s independently and representatively analyzing and knowing time past, present and future to forecast and to legislate and/or transform the right legislations that suit for future societal dynamics without being influenced by else branches of the government.
In all jurisdictions, including Ethiopia, unreasonable transformation of laws, enacting new legislation and amendment and/or repealing process of existing laws, if not always, is an acceptable. Unreasonable transformation of laws have direct relation with so many factors; inter alia, quantity of legislation, constitutional fidelity of legislature, over-elaboration of legislation, free and fair election, independency status of legislature, observation of societal ethos and the status of legislative organ’s Legal affairs’ legal professionalism1 are some principal factors.
Thus, in this article, the writer will try to flash light on the status of Ethiopian legislations’ feasibility in coping with a day to day societal dynamics of Ethiopians.
Lastly, the writer opines that there are macrocosm anomalies in transforming law in Ethiopian legislative scheme which in turn has made life expectancy status of Ethiopian laws low.
Key Words: Amendment, Legislature, Legislation, Repeal, Transformation of law
1 Introductory Remarks
Hobbes famously asserted the state of nature that is, the social condition, without law and government would be a war of all against all in which life would be ‘solitary, poor and nasty, brutish and short2 while Dworkin opined that we live in and by the law. It makes us what we are. [. . .] we are subjects of law’s empire, liegemen to its methods and ideals bound in spirit while we debate what we must therefore do.
In flatly fitting this scholars’ view, Ethiopia has experienced modern legal system almost for more than seven decades3. In these seven decades, it has made tremendous transformation of legal system. Among others, unwritten to written constitution, customary to modern legal system, common law to mixed legal system. In these all transformations, it confronts tremendous legislations’ amendment and/or repeal which could be labeled as transformation of law(s). In these legislations transformation, there were and are poor drafting and transformations of legislation which in return circumvent the development of Ethiopian legal system.
The development of legal system determined not only by the quantity of legislations but also, if not limited to, by life expectancy of legislations to limit power of governor and preserve equal opportunity of the governed sustainably.
The writer, from these perspectives, argues that Ethiopian laws transformation system has gone far quantitatively whereas it’s at pre-age of consent qualitatively – in life expectancy.
Having this in mind, the writer tries to indicate the reasons and flaws revolving around sequential transformations of legislations and persistence of poor crafting and legislating system in Ethiopia4. Again, it is this writer’s credence that Ethiopian legal system’s development is laborious – needs leapfrog transformations.
This is because, a decade ago, the presence of law making and revision distortion was indentified and advised for reform by research. Research conducted by the Center for International Legal Cooperation, word by word, states as current legislative and regulatory procedure leads to fragmentation of the legal system, lack of coherence between existing codes and law, and as a result it creates an uncertainty to the legal norm5.
2 Transformation of Laws in Ethiopia
As it was indicated in the outset, the notion of transformation of law connotes the change of law either totally or partially through primary or secondary legislations by their respective legislator or higher legislative organ or judicial review (the House of Federation in the case of Ethiopia).
In principle, scholars opine that law grows and develops; the theory goes, not through the pronouncement of general principles [ laws], but case-by-case, deliberately, incrementally, one-step-at-times6. Simply put, through evolutionary method. However, Ethiopia, in transformation of law, has preferred revolutionary7 model than evolutionary model from the year of inception of Ethiopian modern law to present8.
Some justify, this Ethiopian’s option, as Ethiopia was with an option either to adopt alien’s law [revolutionary model] or to waits for 300 or 500 years9 [evolutionary model] to have modern laws. Moreover, some associate this behavior of Ethiopia with the state formation style of modern Ethiopia as independent state. This group asserts that modern Ethiopia has been created and maintained through the achievement of external legitimacy and survived to the present day without achieving internal legitimacy10.
Be that as it may, Ethiopian system of transformations of laws is certitudily full of narcissism and nihilism11. To take some, as an instance, dethrone of feudal system by Derg (committee) regime automatically followed by absolutely demolishing of existing ideology and constitution.
Before one forgets it, constitutionally, Ethiopia transformed from unwritten to written12 constitutions. Furthermore, to date it experienced with three different macro ideologies13 and four written constitutions14 of three regimes. In Ethiopia, may be unique to Ethiopian legal system, transformation of ideologies result in transformation of constitution15 or the vice verse.
One of the main reasons for this dilemma is that almost all Ethiopian constitutions were born either as gift of king or aftermath of militarily overtaking of government power. This holds back the development of constitutionalism in Ethiopia. Put otherwise, absence of steady development of constitutional engineering and constitutionalism.
Closely scrutinizing Ethiopian system of transformation of law, one could easily capture that Ethiopia has experienced a polarized system of transformation of laws. On one hand, it uses laws with sexagenarian ages though they face many criticisms from their detractors for a reform16. On the other hand, it transforms laws at their nonage stages which could be termed as infanticide of laws17. Induce
In sum, transformations of law transpire either via enactment of new legislations and amendment and/or repealing systems of existing laws. Repeal is an act of rescinding, especially abrogation of an existing law by legislative act18 [or interpretative organ]. Repeal may be total or partial revocation of statute by one passed subsequently19. From these lexicon definition, among others, one could conjecture that repeal of law is a system of undoing statute by its own or superior legislative or interpretative organ.
As was discussed earlier, the taxonomy of repealing may be either total or selective. It is axiomatic, repealing is a total repeal when the posterior legislation either expressly or impliedly substituted the erstwhile legislation20 whereas repealing is a partial or selective when posterior legislation selectively or some part of prior legislation either expressly or impliedly substituted the erstwhile legislation21.
Though these are conventional taxonomy of repealing system in legal philosophy, there are also some eccentrics repealing system. These, inter alia, include the Henry VIII clause repeal, Expire date repeal, destitute repeal, desuetude repeal and so on types of repealing systems.
To glance on some of these eccentrics repealing system; originally, especially in England, Henry VIII clause is a clause in an act (legislation) of parliament which enables the act to be amended by subordinate or delegated legislation . . . . It named Henry VIII clause repealing system after the monarch (Henry VIII of England) in disrespectfully commutes of his tendency to absolutism22. Subsequent to this incidence, the act of repealing and/or amending of primary legislation by secondary legislation dubbed as Henry VIII clause.
Desuetude repealing system is simply lack of use or obsolescence of law through disuse. Moreover, desuetude is a doctrine holding that if a statute or treaty is left unenforced for long enough court will no longer regard it as having any legal effect even though it has not been repealed.23 From this one can synopsize that desuetude repealing is the incident in which a law or part of it becomes inoperative due to disuse for long time.
Albeit not legally, in practice Ethiopia also experiences not only conventional taxonomy of repealing system but also it experiences some of these eccentrics repealing systems as like other jurisdictions do.
To exemplify it, Oromia Regional State’s Caffee, the largest and populous regional state of Ethiopia’s parliament, enacted land proclamation with a provision that refer criminal liability of land law’s prohibition clause transgressor to be liable under pertinent provision(s) of FDRE criminal code24. However, the Council of Oromia Regional State, disregarding this provision of the proclamation, legislated land regulation with penalty clause which directly substitutes the criminal liability referring provision of land proclamation25.
Furthermore, this Oromia Land Proclamation in black and white sets as illegal occupier of land will be evicted unconditionally and penalized as per applicable law whereas Oromia land regulation legalizes an illegal occupier of land after 12 years26 by means of statute of limitation. Nonetheless, period of limitation of this regulation goes in by and large against constitutionally granted rights – farmers’ and pastoralists’ right against non – evection from their plot of land27.
In legal philosophy, because this land Regulation’s legalization of illegality by statute of limitation is directly contradicted with the land proclamation, either it has to be void or it has to amend the said land proclamation.
In practice, however, 12 years legalization has the upper hand28. So, these blatantly show us the presence and practice of Henry VIII clause repealing system in Ethiopia legal system.
Furthermore, a recent developing precedent system in Ethiopia also shows one that repealing system in Ethiopia doesn’t limited to legislation only but also it embrace FDRE Supreme Court cassation decision that could be repealed either by its own decision or Legislative Organ or House of Federation, and that of House of Federation’s decision which could only be amended/repealed by its own latter decision or through FDRE constitution’s amendment.
Thus, in the present legal system, Ethiopia has two types of precedents that have legal status - FDRE Supreme Court Cassation bench decision precedent which could be termed as Judicial Precedent and House of Federation’s decision precedent which could be termed as constitutional interpretation precedent29.
Hierarchically, judicial precedent and interpretation precedent have one bind the other characteristics – the latter determine the legality status of the former. Put otherwise, the main difference of these precedents is that the former precedent will be transformed either by legislation or House of Federation’s decision or FDRE Supreme Court Cassation bench decision whereas the latter will be transformed only by subsequent decision of House of Federation and that of constituent power30 holder. Hence, we can safely conclude that House of Federation’s precedent is superior to judicial precedent and laws but not FDRE Constitution.
Thus, House of Federation, though its constitutional interpretation power, could transform legislative branch’s legislations, judicial and quasi – judicial decision and also any organs’ decision. It, as instance, repealed article 38(1) (B) of proclamation No.111/1995 by its constitutional interpretation power31. By the same token, it also repealed article 8(1) of proclamation No.25/1988 by its constitutional interpretation power32.
Regarding repealing system, however, unlike statute which could be repealed by both expressly and impliedly, this principle could not be applicable to FDRE cassation precedent mutatis mutandis. Though Cassation Bench of FDRE Supreme Court was empowered to revise its prior precedent by legislator generously, Cassation Bench of FDRE Supreme Court limited its repealingpower only to express repealing system via its precedent.33
3 Propositions of Law in Ethiopia
The phrase proposition of law refers to the various statements lawyers make reporting what the law in the some question to other34. More specifically, Boshno defines ‘proposition of law’ as an obligatory decree, expressed as a power-holding order governing public relations that has the feature of normativity, systemacy, general obligatoriness, formal distinctness and representative-binding nature which distinguishes it from other social rule35.
With the same token, law, for legal positivists, is what is enacted by legislator.36 Positivists capitalize only on positive laws. Positive law is the law in books, the law declared in the clear statements of statutes and past court decision.37
As of these positivist’s assertion, we can infer that law is only legislative command which excludes secondary laws in black-latter but not practically. Similarly, some specialist in law take positive laws as those rules issued by the sovereign38 while some also define positivism as accepting law as it is in lieu of law as it ought to be39. Furthermore, for Austin, law is a general command, and command is the expression of wish backed by threat to inflict an evil on case of the wish is not fulfilled40. Some scholars, however, simply understood law as it is the prophecy of what the courts will do in fact, and nothing more pretentious, are what someone means by the law41.
On the other hand, Lexically, Black law dictionary42 also defines law as an aggregate of legislations, judicial precedents and accepted legal principles.
Be that as it may, from these lexical and scholars definitions perspectives, law could be understood as it is broad concept which has explained with a petite word and which could not be explained simply with a word or words in cut and dried manner. Even from Ethiopian legal system perspectives, law is as jungle as other jurisdictions’ jurisprudence of proposition of law. However, unlike forerunner legists’ and lexicon’s definitional jungle of proposition of law, proposition of Ethiopian law is more jungle in procedure of legislation and practice.
To begin with, in Ethiopian legal system, legislative act to be a law it ought to be published on official law Gazeta which may be either Negarit Gazeta for federal laws43 or Megeleta Oromia for laws of Oromia Regional state44, and mutatis mutandis to all other Regional States of Ethiopia. This is mainly to implement the principle of ignorance of law has no excuse. Due to this reason, Bentham opined that publicity [of law] is the most important security against misrule45.
In our case, strictly focusing on the black latter of this official law Gazeta establishing law, it takes us to conclude that in Ethiopia publication is a mandatory condition precedent to enter into force for all legislations to be a law. This could be extrapolated from this Federal official law Negarit Gazeta’s designs and spirit when it sets the condition of publication in loaded form as (a)ll Laws of the Federal Government shall be published in the Federal Negarit Gazeta, and all Federal or Regional legislative, executive and judicial organs as well as any natural or juridical person shall take judicial notice of Laws published on the Federal Negarit Gazeta.46 All Regional States official law Gazeta also legislated with the same loaded fashion.
This, for a fortiori, shows us the act of publication serves as mandatory condition precedent for legislation to be a law in Ethiopian legal system. On the other hand, House of people representative proclamation defines laws narrowly than definition of official law Gazeta establishing proclamation’s definition of law when it states the laws that need publication are only proclamations, regulations or directives come into force upon their approval by the House of peoples Representatives and subsequent publication on the Federal Negarit Gazeta under the signature of the President . . .47.
This proclamation blindly excluded all legislation except that of House of People’s Representatives laws from the ambit of Ethiopian laws. However, this is a fallacy; because it fails to acknowledge constitutional power of Federal Executive Organ to legislate secondary laws at Federal level on Federal matters48 mutatis mutandis to Regional States’ Administrative Council’s power.
Other proclamation49, proclamation to consolidate House of Federation, defines law as Proclamations issued by the Federal or State legislative organs, and regulations and directives issued by the Federal and States government institutions, and as it shall also include international agreements that have been ratified by Ethiopia. This legislation tries to fill the lacuna created by predecessor legislation when it tries to show legislative federalism and legislative power of executive organ, but in its definition the mandatory publication precondition of legislations to be a law is either latent or absent.
Some scholars bestow the illusion of proposition of law in Ethiopia on this proclamation, specially, in relation to judicial review. Asefa, as an instance, dubbed proclamations (Federal) No.250/2001 and 251/2001 as mother of all confusion in relation to set the proposition of law in Ethiopia, specially, in determining the scope of judicial review in Ethiopia50.
On top of this, the jungle of proposition of law in Ethiopia swells much when strictly evaluated by juxtaposing these laws with judicial practices. FDRE Supreme Court’s Cassation Bench, as indicated earlier, empowered to uniform legal practice in Ethiopia, up held that laws required to be published on Negarit Gazeta are only those legislated by House of People Representative51 - by legislative organ but not that of executive organ.
However, this is the act of undermining the purpose of publication of laws. With the same token, some writers holding the same position and undermine the purpose of publication on commenting on other decision of this bench. In this comment, it was argued that publication of law is required only for an evidentiary purpose52. This decision’s and writers’ standing inspires criticism when valued from cassation’s establishment aspiration and rational behind publication of laws perspectives. These includes, inter alia, this bench analysis only House of People Representatives’ proclamation excluding the official law Gazeta establishment proclamation that has especial preference in relation to publication and House of Federation’s Proclamation to assess a comprehensive definition of law in Ethiopian legal system.
Similarly, this bench limits itself to existing practice without valuing publication from the right of the governed to be accessible to legislation and duty of governor to make laws accessible to citizen to appreciate and defend their rights. From this scenario, it is arguable that publication of laws has constitutional base. FDRE Constitution53 in a black ink empowers Ethiopian citizens to know all activities of Ethiopian government whilst it obliges its government to make their activities transparent to their citizens.
Furthermore, the bench fails to appeal to all laws to appreciate them holistically to make all laws meaningful without making legislations self contradictory in which some legislations’ provision defeat the others’ purpose. This like interpretation of laws make the conclusion will be fallacy.
For these aforementioned reasons, FDRE Cassation Bench lost opportunity to administer soundly for and against arguments revolving around the status of unpublished laws in Ethiopian legal system.
Hence, we can safely conclude that in Ethiopia the issue of proposition of laws, and specifically, the definition of laws are unsettled issues. For these like controversies of proposition of laws, sometimes, some writers labeled law as ‘a Ass’54.
4 Life Expectancy Status of Ethiopian Laws
Etymologically, Life expectancy stands for man’s life; especially when it is defined as the period that a person of a given age and sex is expected to live, according to actuarial tables or the period that a given person is expected to live, taking into account individualized characteristics such as heredity, past and present diseases, and other relevant medical data55. Actually, assessing life expectancy of law is not the act of personification of law; rather it is to evaluate the service life of laws.
With this backdrop, in principle, though there is some exception56, law is enacted for an indefinite duration. It is opined that if the law adopted for an indefinite period and very soon abolished, it harms not only that specific regulations and legislations as a whole, but harms even legal consciousness57. Thus, repetitive change of laws creates social disorder in lieu of preserving social order.
For the reasons discussed hereinbelow, the author argues that Ethiopian law has Low life expectancy status. There are numerous and multifaceted reasons for low life expectancy status of Ethiopian law. This low life expectancy in confluence with the some illegitimate legislation becomes the bedrock for the development of the principle of rule by law in lieu of rule of law in Ethiopia. Though there are numerous reasons for this low life expectancy, the author limits himself only on the following macrocosms matters for convenience and for their foremost big bang for low life expectancy status of Ethiopian laws.
4.1 Excessive/Over-elaboration of Legislations
Almost five decades ago, this factor identified as one factor for low life expectancy status of laws. In one jurisdiction, in 1973, research identified over elaboration as one factor of poor preparation of legislation58. Over elaboration is an abnormal over stretching of the clarity and precision of legal provision. In normative principle, legal provision ought to be as clear and precise as needed to preserve certainty and fill gabs between law and social changes.
For that matter, some stated that . . . statute is part of life and life changes, . . . while the language of statute remains as it was but the meaning changes along with changing life condition; this what is called an old statute speaks to the modern person in which the statutes always speaks59.
These shows us provision of law should not be changed for an ordinary matters of every and each days of social dynamics, rather it ought to be designed with moderate and flexible enough languages to cope with changing social condition.
Furthermore, law should be, case-by-case, general when it ought to be general or moderate when it ought to be moderate or specific when it ought to be specific as per the types of laws, inter alia, constitution or proclamation or regulation or directive. Nevertheless, in common law legal system, in contrast of this view, it is perceived as law (statutory and precedent) ends just at the point where hard cases begin60.
However, though these are truth of legal jurisprudences, Ethiopian law blamed for it’s over elaborative disease victim which serve, among others, as a factor for sequential change of laws. Again, albeit over elaborative defects are in any jurisdiction, the case of Ethiopian laws seems among those with the worst situation. This is because even our constitution is highly criticized for its over elaborative defects in which change in proclamation may quest in changes to FDRE constitution61.
Some scholars blatantly blame Ethiopian legislator not only for their legislating over elaborative unborn laws but also even for over-elaborative defects of basic law of the Ethiopia. Taddese62, as instance, states . . . constitution [FDRE Constitution] creates a tension between what was politically and historically desirable at the time of adaption of constitution and what might transpire in future particularly because of the constitution. In surprising tone, he adds, no constitution to [his] knowledge goes to as much detail as the Ethiopian constitution in allocating tax powers between the two layers of federation.
From this scholar’s view, one could deduce that Ethiopian the provision constitution, inter alia; that of power of taxation suffer from over elaborative flaw that will cause sacrificial constitutional amendment or create constraints on over all taxation system of Ethiopia. This criticized article of the constitutions was unconstitutionally amended by HPR63. This unconstitutional amendment may be presumed as it was caused by it’s of over-elaborative defects.
Over-elaborative malady of legislation is not only limited to constitution but goes to inferior laws even in the worst form. As an instance, some parts of our FDRE criminal code64 amended so many times within a decade since 200565. Corresponding to FDRE criminal code, some scholars also accuse Ethiopian legislator since they failed to scrutinize it with ratified international convention; especially in relation to crime of family violence against women due to its over elaboration66. This detractor argues that the over elaboration of the part of FDRE criminal code that deals with crime of family violence against women defeats its purpose.
On top of this, rules of formation of criminal norms stand on the antithetical side of this over elaborative structure of Ethiopian criminal law.
Gabriel67, as instance, asserts criminal norm must be general both for modern society’s commitment to equality among all individuals and for broad examination of all relevant consideration in order to define a policy up on which criminal norm based.
Sometimes Ethiopian legislator also blamed for over elaborating not only in enacting new law but in revising the existing laws. Alemayehu, as instance, heavily blamed EPDRF parliament in relation to over elaborating part of commercial code that deal with goodwill and unfair competition via proclamation No. 329/2003 and he further dubbed this acts of parliament as not legislation or revision of laws but as it’s the act of distortion of law68. This very blamed proclamation as blamed faces over and over amendment69. Thus, there are so many show cases that indicate transformation of Ethiopian law derived by over-elaborative defects70.
Furthermore, some try to elucidate some factors and drawback of over-elaboration. David71 smartly state that demand for immediate certainty of legal effect lead to too much detail to over elaboration and complexity. He adds, it may therefore be self defeating or counter-productive, because the more the detail the greater the risk of obscurity and therefore uncertainty. Obscurity and uncertainty is one of the reasons for repealing or amendment of laws.
Therefore, one could safely argue that Ethiopian legislative system suffer from over elaborative defects which cause repetitive amendment/repeal of law.
4.2 Absence or Poor Color Papers Stage of Legislation
In Ethiopian context, House Of People Representative (HPR) are empowered with legislative power to enact laws either through legislating new laws or amending or repealing old laws or ratifying international treaties or agreements72. Ideally, legislative branch should undertake pre-legislative consultation prior to legislation of laws. The vantage point of pre-legislative consultation stages are what labeled as white and Green papers stage in legislative processes.
Some define Green and white papers as consultative and explanatory document respectively73. Whilst other tries to illuminate white papers as the announcement of government policy for implementation and green papers as the announcement of tentative proposal for discussion74.
Still some sustain green paper, also christened as consultation document, as merely proposal strategy to implement in details of other legislation or they may set out proposal on which government wishes to obtain public views and opinion whereas white papers as an authoritative report or guide that informs readers concisely about a complex issue and presents the issuing body’s philosophy on matter75.
Whatever explanatory terminology of colors of papers may be, generally it is a stage at which legislative organ ought to be announce the essence of draft laws to citizen to amass for and against, and pros and cons of proposed laws through public lobby. Further, it advocates that citizens are better than the delegates of the citizens and doctrine of ‘laws of people by people’ than law of legislative branch to people.
In Ethiopian legislative procedure, though in principle draft law initiator is a government which is labeled as government bill, members of House of People Representative (HPR) and others can initiate members’ bill and others’ bill respectively76. However, still some bill initiating powers are exclusively reserved only to government77. Once bills initiated via empowered organ, it followed by first, second, third reading and adoption of laws78.
In this legislative procedure, our laws thoughtlessly and totally failed to establish a rigid color papers stages in Ethiopian legislatives system. This makes our laws as law of legislature to citizens with low life expectancy but not law of citizens by citizens.
However, though there are no mandatory provisions of laws as indicated, sporadically, some sector table draft laws for stakeholders’ discussion and lobby. In 2013, as instance, the draft of advocate and paralegals of Oromia Regional State79 allotted and presented for discussion and opinions. Participants of the discussion highly criticized draft law with constitutionally backed first class reasons and vows against, inter alia; provision of draft proclamation which makes legal professional has to be erstwhile unemployed for six months or more to be licensed as advocate.
However, more than the uncommon sense of the draft law, the satirizing response of the then head of Oromia Regional State Justice Bureau80 was astonishing; when he said it is our ‘government’s standing’. In legal philosophy, he is to mean the Law is the Law81. Thus, this proposed draft law, with the whim of his ‘government standing,’ was legislated as a law containing criticized provision. Albeit so many professionals suffered from this dictator’s provision, only for this reason, it survived only from July 2013 to March 8 of 201582.
Similarly in 2015, Caffee has enacted an ironic proclamation83 to revise Oromia Regional State Cities establishment bearing gold galvanized agenda to make cities center of development, technology, information, trade and the lists goes on. This legislation was termed as ‘Addis Ababa master plan’ proclamation which intended to join Finfine suburb Zone of Oromia Regional State with Addis Ababa (Finfinne) city administration.
This legislation first causes Oromia wide then countrywide unrest and mayhem in the country84. Only because Caffee legislate this law, though there are others root causes, the all Ethiopians irrespective of their age, sex, religion and so on faced martyrdom unjustly85 and lead, whether it is either for bad or good, for the change of Ethiopian politics that has lasted for 27 years. Though still the end result of the caused chaos is unknown, it (the criticized clause of proclamation) lasted only from 2nd October 2015 to 3rd April 201686.
In nutshell, the life expectancy of this proclamation was only a round six months only because it has had birth defects which could be synopsized as absence of color papers stage of legislation. Though these statutes analyzed as showcase, there are so many statutes that bear similar defects. Thus, poor or absence of color paper stage is one of the reasons for low life expectancy of law in Ethiopia.
4.3 Constitutional Infidelity of Legislatures.
Constitutional fidelity, if not always, derived from the concept of constitutional legitimacy which could be either derivative or original legitimacy. Constitutional legitimacy is the legal, moral and social tolerability of the document by all who are ruled by it87. The legitimacy of the constitutional process and the constitution itself is measured by the degree to which the process is participatory, open, democratic, socially inclusive, transparent, peaceful, faithful, and where those who adopt the constitution are democratically elected88. Constitutional fidelity is the faithfulness to the constitutional text or to the intention of the framers or the values and principle of underpinning the constitution and so on89.
Hence, affirmatively, constitutional fidelity means the adherence of all government organs’ activities to the spirit of basic law of the country. This in turn implies constitutional fidelity is simply the act of practicing constitutionalism. Therefore, constitutional infidelity is the act of derogating from practicing constitutionalism either by government organs or citizens.
The present Ethiopian constitution recognizes the principle of constitutional fidelity and the duty of all citizens, organ of both federal and regional governments, political organization, and so on to have constitutional fidelity under its supremacy clause90.
This constitutional provision obligates the function of all arms of Ethiopian government organ to be in conformity with the constitution of 1995 which could be christened as act of constitutionalism91. To put differently, some assert in Ethiopian context, faithfulness to constitutional needs to be practiced at all levels, namely at legislative, judiciary and electoral level92. This narration entails, HPR has limited legislative power. Again, it could enact only non- arbitrary and reasonable laws.
Since 1991 onward, Ethiopia follows legislative federalism. Ergo, in Ethiopian context, constitutional fidelity of legislative branch should be respected both horizontally and vertically. Horizontally, all regional states legislative branch are duty-bound not to invalidate each other’s power whereas vertically both all regional states legislative and federal legislative branch should commit themselves to abstain from interfering in other’s constitutional jurisdiction. Though there is the unambiguous legislative power duumvir in Ethiopia, in practice there are so many showcases, especially in vertical relationship, of legislative branches constitutional infidelity.
Exodus to the principle, this constitutional infidelity practiced both by Federal and almost by all Regional States’ Legislative Branches of Ethiopia. At Federal level, HPR has been magnifying its legislative power to the extent to what once Dicey described England parliament as it can do everything but make a woman a man and a man a woman93.
Constitutional infidelity symbolizes the persistence of rule by law, sometimes known as rule of political law, in lieu of rule of law in Ethiopia. The difference is that under the rule of law, the law is preeminent and can serve as a check against the abuse of power while under rule by law, the law can serve as a mere tool for a government that suppresses in a legalistic fashion94.
This is to mean, in case of rule by law the legislator itself is illegitimate and the governed does not accept not only its legislations but also the legislator itself.
In Ethiopian federalism, both vertically and horizontally, the constitution recognizes the self autonomous of both Federal and all regional states on their matters, and follows the doctrine of mutual non-interference in one another’s jurisdiction95. This certifies that the supremacy of FDRE constitution over all regional states’ constitutions and absence of Federal government supremacy over all regional states’ government. Here, government ought to be sensed as a corpus of three wings of government.
Though the FDRE constitution in black and white recognizes the doctrine of mutual respect in lieu of Federal Laws supremacy, HPR legislate a proclamation that subordinate Regional laws to Federal Laws or unconstitutionally creates Federal laws supremacy over all Regional States’ laws96. The inception of this principle of Federal laws supremacy clause by HPR in Ethiopian legal system contravenes the supremacy clause of FDRE Constitution.
Worse to worst, in this very proclamation, federal Laws defined as it embraces all federal government organs’ legislations – from proclamation down to directives. Similarly, with the same arrangement, regional laws include all primary, secondary and tertiary laws97. These federal and regional states proclamations loudly assure both Federal and all Regional States’ law cuddle all proclamations, regulations, and directives of both federal and all regional states’ government.
This empowers all federal government’s organs to nullify both primary and secondary Laws of all regional states’ laws as far as they are inconsistent with the so called Federal Laws. More complex, federal executive organs’ legislations could nullify regional states’ primary legislations which are a paradox and nullification of the essence of FDRE constitution.
In Ethiopia, this not only limited to legislation but also extend to judicial practice which follows similar truck. This tells us FDRE Supreme Court Cassation Bench can reverse regional parliament’s legislation. Following this truck, FDRE Supreme Court Cassation Bench, unconstitutionally, once amended Oromia Family law’s provision dealing with irregular union because they feel that it contradicts with Federal Family law98.
Like Federal Government, there is also cases in which Regional States’ Governments invade Federal government’s jurisdiction. To analyze some cases, constitutionally, Federal Government has principal power to legislate criminal law whereas Regional State Government has only Residual Power99. This constitutional provision in black and white indicates that Regional States can criminalize matters (acts) that Federal Government fails to criminalize it.
To put differently, once Federal Government criminalize an act, Regional States’ Governments are automatically loss the power to re-criminalize it. The rational laying behind this Constitutional provision is, in one hand, to preserve jurisprudential equality principle100 of criminal law and, on another hand, to halt the possible creation of criminal law loophole.
Though constitutionally, the standard of criminalization power is set in this fashion, there are so many showcases of double criminalization of single act both by federal’s and regional states’ governments in a fashion it deteriorate equality principle of criminal law.
To begin with, as instance, Federal Government Legislated Forest Law with penalty clause on 28th March of 1994101 as was repealed on 4th of September 2007102. Similarly, Oromia Regional State, for example, enacted Forest Law with similar sprit and penalty clause of the same act on 9th of July 2003103.
Unexpectedly, this Oromia Forest Law is a verbatim copy of the said Federal Forest Law and, it adds nothing to Federal Forest Law but increases criminal penalty of similar act criminalized by prior Federal Forest Law.
This shows us principle of double criminalization of a single act both by federal and regional states’ governments with different degree of penalty for the same act and for same Citizens but by Federal and Oromia Regional State.
These legislations were legislated in a fashion it directly contradict with Jurisprudential equality principle of criminal Law and constitutionally guaranteed Equality Right of all Ethiopian citizens.
In nutshell, due to these legislations, one could get higher penalty because the crime committed in Oromia Regional State than the one committed similar criminal act in area under Federal or other Regional States’ jurisdiction which is a paradox104.
In mutatis mutandis of forest laws, federal government enacted coffee law on 25th of August 2008105 with penalty clause. Similarly, Oromia Regional State, on its part, also enacted Coffee Law which is verbatim copy of federal government coffee law including penalty clause on 7th of May 2010106.
More complex than forest Laws, both Federal and Oromia Regional States’ coffee Law criminalize similar act with similar penalty. In case of Forest Laws, it was argued, as higher penalty serves to deter the commission of forest crime.
However, it is a general truth that an increase in likelihood of certainty of criminal punishment will deter more effectively than an increase in the severity of Criminal punishment.
These all irregularity emanates from constitutional infidelity of all government organs of both Federal and all Regional states’ Governments which is completely an act in contradiction of the Federal structure of the Country. The sum of these constitutional infidelity act resulted with low life expectancy status of Ethiopian laws.
4.4 Absence of Free and Fair Election
Free and fair election is a condition precedent for the manifestation of truthful representation which is a feature of an indirect democracy. A truthful representation is a quality of modern democracy. Aristotle, as an instance, explained democracy as the people’s collective wisdom will exceed that of any simple person or small group. Furthermore, it is vowed as a people, since it is subject to laws, ought to be the author of them; . . . under a democracy, citizens would not enact laws to oppress themselves; their power to make law is, accordingly, their own best protection107.
People become the author of laws if and only if there is a truthful representation which is democracy. A truthful representation, if not limited to, primarily depends on the electoral formula implemented by a given regime. It’s for this reason; Yonatan avows as the representativity of the lower house depends on the electoral system108. Electoral formula is a mechanism that determines how votes are counted to allocate seats109.
Ethiopia opted plural-majority election formula, a system in which the candidate with the most votes is declared the winner, which is one of a majoritarian election’s genus110 that usually labeled as first past the post (FPTP)111. Electoral Law of Ethiopia defines Ethiopian electoral system as a system in which a candidate who received more votes, at least one, than other candidates within a constituency shall be declared the winner112.
In one hand, majoritarial election formula, a mother of plurality election system, is the oldest, simplest, manufacture majority, exaggerate the share of seats for leading party and penalize minor party and, on another hand, it is appreciated as it creates effective and accountable government113.
From this discussion, one could comprehend that Ethiopian election formula has been favoring leading party (EPDRF/ PP at present) and penalizing minor parties (the Opposition/competitive parties).
Some scholars proclaim that the employed election formula determines election results, in which change of formula either completely or reasonably change the result.114 Hence, in Ethiopia the absence of free and fair legislative branch’s election, a means of truthful representation, could be evidenced both from election formula which is a birth defect and management of election processes which is a derivative defects.
Consequently, in foremost, free and fair election of members of legislative branch is determined by the election formula which is contributing for the unfair election result in Ethiopia since its inception.
This could justify one to synopsis that at the time of FDRE constitutional design and engineering, FPTP election formula was insincerely opted to favor the then and present leading party.
Taking the matter further, one, in fact, has gone so far as to suggest that the surest way to kill the idea of democracy in a plural society is to adopt the Anglo-American system of first-past-the-post (FPTP)115 election formula.
It is for this reason John argues . . . whoever wins the transitional election often has the opportunity to write the rules of the game in their advantage, and hence, significantly influence future political development and democratization116. We, Ethiopians, could be exemplified as an evidence for this assertion.
Secondly, free and fair election is determined by the management and administration of election processes. In management and administration of election processes, there is old adage which states those who vote never decides the winner but those who count that decides the winner. Thus, one could understand from this assertion that management and administration of election processes is as important as the presence of periodic election itself.
Ethiopian political waves have characterized by competitive authoritarian system, genre of hybrid regime. In competitive authoritarian regimes, formal democratic institutions are widely viewed as the principal means of obtaining and exercising political authority117.
Ethiopian’s successive legislative organ’s periodic election result records is undoubtedly a figure that shows Ethiopia had been following competitive authoritarianism.
Under EPDRF, Ethiopia conducted five term election118 ; the first term general election was characterized with over whelming victory of EPDRF and by the boycotting of opposition parties. Almost similarly, the second general election also resulted with over whelming victory of EPDRF and 12 seats of opposition parties. Compared to its predecessor, the third general election was concluded with EPDRF getting government establishing status by winning 327 seats (59%) and opposition parties won 174 seats.
However, this third general election result consequently accompanied with crisis that consummated a precious life and the jailing of opposition leaders and members. The pre-election hope and promise were completely vanished by this post election crisis. Thus, the third general election could be described as the most optimistic but concluded with the most Ethiopian election tragedy.
The fourth generation election resulted with EPDRF won 99% seats while opposition parties returned bare hand and single party parliament was established in Ethiopia119. In fifth general election, fortifying fourth general election tactic, EPDRF won 100% and declared HPR become free of opposition parties or change HPR to EPDRF parliament120.
In spite of this distorted general election processes and results, EPDRF parliament has been enacting so many laws that govern all Ethiopians. As blatant for all, law legislated by one party legislature means law of a man that govern all citizens. For all practical purpose, a law that was enacted by EPDRF parliament is considered as law of king.
Analyzing these five general elections of Ethiopia, one could understand that Ethiopian electoral system with multiparty system started optimistically and till now tragically progressing with single party parliament. This 100% wins of EPDRF exacerbate the illegitimacy of members of HPR and proved the authoritarianism of EPDRF’s government.
Regarding to this 100% winning practice of EPDRF, hopelessly, some asserts the 24 May 2015 Ethiopian parliamentary election confirms that authoritarian rule will persist in Africans 2nd most populous country for the unforeseeable future121.
As Leonardo et al. noted, 100% general election won indicates a regime’s action to harass opponents using both legal and extra legal means122. Therefore, these over whelming or 100% election result of general election could be synopsized as the persistence of the illegitimacy of members of HPR as of 1991 to 2015 election.
The illegitimacy of legislators, members of HPR, due to election with in these periods is in its per se illegitimate its legislations. Ergo, this argument take us to wrap up that absence of fair and free election means garbage in garbage out which ends up with illegitimate representation and illegitimate legislations. Illegitimate legislation serves the governor not the governed and it serves until the governed gets power to demolish it. Thus, absence free and fair election in five general elections has been one of the major reasons that contribute for low life expectancy status of Ethiopian laws.
4.5 Lack of Societal Ethos
Ideally, what is Law ought to be what is society and the vice verse which means law ought to mirror the society it governs. Here, society sensed as a pillar of all societal endowment which among others includes non-state laws. So, it’s a general truth that non-state law has served as governing law prior to state law and sometimes parallels. So, it’s logical to argue that non-state laws serve as a source of state laws.
Hence, in contrast to diffunionism theory, some take in as law is mainly an outgrowth of local society, values, and traditions, and in large part expresses or reflects local society123. It is for this reason, some argues as no modern legislations which does not have its roots in the custom of it governs couldnot have a strong foundation124.
On the another hand, some scholar argues as the tenets of laws primarily from custom through an organic non-deliberate process seem valid only for private law, and only in circumstances of relative stability125. Per this argument, non-state laws to be source of state laws, it ought to have stability and the state law also ought to be non-public laws.
Furthermore, regarding custom as a source of Law, there is difference between Historical and Analytical School of Law126
Per the historical school, custom in per se serves as an authoritative source of law whereas per analytical school, custom is not an authoritative source of law at all until incorporated in decision [for common Law legal system] and [in legislation in civil law legal system].
The problem with latter school is not whether custom is authoritative source or not rather whether custom is recognized as law either as judge–made Law or Legislations to be authoritative.
On top of this, some argue that as most of us conform to law because of more complex social and psychological processes which include obedience to law Lies in the idea of some inner psychological inclination whereby we accept the legitimacy or authority of the source of law127. This implies us compliance or non-compliance to Law, though not always, is based on whether the source is alien or non-alien (non-state law) of the a given Law. It’s for this reason, some legists insist on, in Ethiopia, some nation, nationalities and peoples’ customary law processes have proven resistance to the incursion of modern Ethiopian state in criminal justice arena128. These obedience and resistance to law fortifies our earlier assertion of law as mirror of society it governs.
Furthermore, this assertion has highly conjugated with the so-called Mirror Theory. This theory provides that Legal systems do not float in some cultural void, free of space and time and social context; necessarily, reflect what is happening on their own societies129. Moreover, this theory is explained succinctly as,
The very fact that law mirrors society, it is often said, is what makes law effective and legitimate in functioning to maintain social order. Because law reflects and bolsters prevailing social norms, the bulk of behavior conforms to these norms without the need for legal sanction, allowing law to conserve resources and maintain efficacy…The citizenry view the norms enforced by law as their own products, reflecting their way of life, manifesting their consent. Law, in turn, claims that citizens owe it obedience because it is doing their work, preserving their norms, constituting their way of life, keeping their order, allowing them to pursue their projects and enjoy life in safety and security130.
In nutshell, this theory conveys the massage that the law is not effective if it fails to reach the heart of those to whom it is intended to apply and does not respond to their needs and, customs and natural justice131.
In our case, using the aforesaid pretext of the Krzeczunowiczi’s views of custom could be source only for private law and non-organization of Ethiopian custom at the time it was required as it required, totally repealed all previous laws and customary rule by promulgation of Civil code132.
This Civil code’s repealing provision reads as
Unless otherwise expressly provided, all rules whether written or customary previously in force concerning matters provided for in this Code shall be replaced by this Code and are hereby repealed.
Actually, that decision was decision of ignorant, as the ignorant is entitled to ignore their own custom and invoke ignorance of their own custom as defense. Further, ignoring this fact to this extent is equivalent to the Ostrich’s act of putting its head in the sand. This is because, even recently, there is legists that argue that statutory legal pluralism in Ethiopia . . . recognition and incorporation of the ancient and widely accepted source of authority that are customary law system legitimates the (new) Federal State and its formal legal system133.
However, in respect of custom, what was desired and explained by the then Emperor and scholars have been propagating in one hand and what was modernized (codified), on the other hand, was a paradox.
On the preface of civil code it was noted that no law which is designed to define the rights and duties of the people and to set out the principles governing their mutual relations can ever be effective if it fails to reach the hearts of those to whom it is intended to apply and does not respond to their needs, customs and to natural justice134. This conveys that the then codification scholar and committee’s will was to include not only custom but also natural justice in Ethiopian laws; nevertheless, as indicated earlier, the code ended up by repealing both all prior laws and customary practices (state laws and non-state laws).
For similar reasons, in contrast to Krzeczunowiczi’s assertion and the way the code promulgated, not only in 1960s but at present, scholars have been insisting on for the inclusion of some customary rules not only in our private laws but also in our criminal justice system; especially it has been argued that restorative justice system has to be practiced in parallel to retributive criminal justice system135.
However, regretfully, this excluding customary rules from legislation is still continued with the like-fashion of 1960s codification. As an instance, one could examine federal family law136, especially in respect of betrothal, family arbitrators, adoption criteria, and so on in which customary rule has been excluded from Ethiopian Federal Family law and at some extent from Oromia Family137 law – adoption criteria which ought to in a written form.
Lastly, this all assure us to conclude that though law and custom are inseparable flesh and skeleton in their nature while in Ethiopia they were/are separated/separable unreasonably. This separation makes some of Ethiopian laws on some matters become legal in de jure but illegal in de facto. Thus, exclusion of societal ethos in framing Ethiopian law is one of the factors that make Ethiopian laws with low life expectancy.
5 Conclusion and Recommendations
5.1 Conclusion
This paper assessed life expectancy status of Ethiopian law in general and the factors contributed for the situation to persist. The assessment demonstrated that Ethiopia accustomed to modern legal system, comprehensively, seven decades ago. However, Ethiopian legislations system (transformation of law) is in bipolar of its age - under-developed. The pinpoint of Ethiopian legislations system’s under-development is multifaceted and for a long period of time it is an issue kept behind-the-scenes.
As to this author, the foremost pinpoints of Ethiopian legislations system’s under-development are factors discussed hereinabove. These are over elaboration, absence or poor color papers stage, constitutional infidelity, absence of free and fair general election and lack of societal ethos. Though there are other microcosm causes, these factors are the macrocosm of them.
5.2 Recommendations
To rectify hereinabove discussed defects in the procedure of transforming and enacting laws, the hereinbelow recommendation ought to be considered by the concerned organs.
a) Pre-legislation and legislative processes ought to be participatory as it was guaranteed in the constitution for Ethiopian citizen as the right to participate on public matter either directly or in directly as one of its fundamental principle138. This participatory principle enshrined in the Constitution has highly intertwined with the colors paper stage of legislation. As discussed earlier in this piece, color papers stage of legislation includes pre-legislative research on legislative matter, publication of pre-legislative research and public discussion, tabling draft legislations for public and stakeholder for lobby. Ergo, in Ethiopia, for quality legislation this principle should be exercised and facilitated to be exercised absolutely in pre-legislation.
b) In general Principle of Separation of Power and in particular the principle of independence of legislative organ (both Federal and Regional State) ought to be respected absolutely. This independency principle of Legislative branch has highly inter-related with the umbrella of principle of separation of power of government organs. In principle of separation of power of government organs, in Ethiopia, the legislative power is solitary power of the HPR at federal and Legislative organ of all Regional States of Ethiopia. Therefore, to have high quality law with high life expectancy, this principle, principle of separation of power, ought to be respected and exercised absolutely as guaranteed as per the constitution; especially the unlimited power holder, in practice, of government organ viz. executive branch of federal government and administrative council of regional states’ governments ought to be limited as reasonable as to sustain principle of separation of power.
c) Legislative organ, on its parts, should respect Constitutional Fidelity as it is guaranteed in the Constitution. In Ethiopia, the concept of Rule by Law in lieu of Rule of Law developed, primarily, by legislative organ because of their constitutional infidelity. So, to reverse this practice, constitutional fidelity of legislative organ should not only be respected but should also manifestly and undoubtedly be seen to be respected practically both in parameter of federal structure and principle of separation of power as it is guaranteed in the Constitution. Hence, Ethiopian legislative organs should adopt legislation only with the utmost conditional fidelity.
d) Ethiopian legislative organs should develop and implement vigorously the post-legislative scrutiny as equally as pre-legislative processes. Post-legislative scrutinizing is the processes of auditing legislated legislation from the perspective of effectiveness, efficacy and efficiency of legislated legislations.
e) Fair and free election both from election formula and management of election processes ought to be adjusted and administrated in a right way. As the Constitution is an expression of the Nations, Nationalities and Peoples of Ethiopia, to practice this sovereignty as it sensed in the constitution, election formula and administration must be redefined to conduct fair and free.
f) Legislative process under modern Ethiopian legal system ought to be redefined in a trend it acknowledges Ethiopian customary laws. To do so, it ought to employ both transfer of jurisdiction model and incorporation model of customary law system in Ethiopian legal system.
[...]
1 Legal professionalism characterized as rule of professional law. As Tsegaye noted it, the rule of professional law is that which is dominant in the western legal tradition where the legal professionals (judges, lawyers, etc) “control” or influence the politicians. The rule of political law is one that is dominant in the developing countries, countries in transition, where the politics subordinates the law and the former “controls” or influences the latter. see Tsegaye Regassa, The making and legitimacy of the Ethiopian constitution: towards bridging the gap between constitutional design and constitutional practice, Afrika Focus — Volume 23, Nr .1, 2010 — Pp.94
2 Scott J.Shapiro, Legality, the Belknap press Harvard university press, 2011, pp.35
3 Albeit some argue that Ethiopia started modernizing its legal system as early as 1930s, indicating the 1930 Ethiopian penal code and 1931 constitution, the most convincing one is that of the revolution of modern legal system in Ethiopian is the promulgation of the six compressive codes in late 1950s and early 1960s. Thus, the so called modernization of Ethiopian law was undertaken in late 1950s and early 1960s. See Norman J. Singer, Modernization of Law in Ethiopia: A Study in Process and Personal Values, Harvard International Journal, Vol.11. Among these codes some of them promulgated on the same day, viz. commercial code, civil code, and maritime code promulgated on 5th day of May, 1960.
4 Although this paper is entitled “life expectancy status of Ethiopian Law”, it does not put forward any general thesis about the great changes that have occurred in recent years in this discipline. However, the author’s analysis focuses only on what was prevailing in pre-2018 Ethiopian political reforms. This is because it is too early to analyse the situation in post-2018 reforms.
5 FDRE comprehensive justice system reform program, February 2005, PP-13.
6 Antonin Scalia, The Rule Of Law as Laws Of Rules, The University Of Chicago Law Review, Vol.56, No.4, 1989, P.1176.
7 Though some criticize Ethiopia for this option, there is argument that it has adopted both adoptive and adaptive system of foreign nations’ laws and practices to modernize its legal system. This can be inferred from the Emperor’s expressed will when he stated that . . . We have never hesitated to adopt the best of what other systems of law can offer to the extent that they respond and can be adapted to the genius of Our particular institutions . . . see Singer, supra note 2, Pp.80. This, however, highly slammed as transplantation is impossible as we can’t borrow the mindset, or mentality, even when we can transpose the norms, institutions, and concomitant procedures, doctrines, . . . see Tsegaye, supra note 1, p.94
8 Singer, supra note 2, p.80 seq.
9 Rene David, A Civil Code for Ethiopia: Considerations on the Codification of the Civil Law in African Countries, Tulane Law Review, Vol. XXXVII, pp.188-189. Rene noted, the development and modernization of Ethiopia necessitate the adoption of a “ready-made” system…while safeguarding certain traditional values to which she remains profoundly attached Ethiopia wishes to modify her structures completely, even to the way of life the people. They wish it to be a programme envisaging a total transformation of society and they demand that for the most pat, it set out new rules appropriate for the society they wish to create. See Alemayu Fentaw, Legal Pluralism In Light Of The Federal And State Constitutions Of Ethiopia: A Critical Appraisal, June 2004 Addis Ababa (unpublished thesis, AAU), PP-20; similarly, see John H. Beckstrom, Transplantation Of Legal Systems: An Early Report On The Reception Of Western Laws In Ethiopia, The American Journal Of Comparative Law, Vol.21, p.557 ff.
10 See Asafa Jalata, "Oromummaa as the Master Ideology of the Oromo National Movement" (2008). Sociology Publications and Other Works, 1-1-2008. Similarly, see also Asafa Jalata, Fighting against the Injustice of the State and Globalization: Comparing the African American and Oromo Movements, 1st edition, December 2001, Palgrave.
11 The narcissism and nihilism habits of transforming legal system of Ethiopian law dubiously declared on the preambles of almost all legislations. In the epoch of monarchy law was regarded as gift of emperor. For instance the preamble of the 1955 constitution loudly proof this truth as it reads . . . we, Haile Selassie I, emperor of Ethiopia, do, on the occasion of the twenty-fifth anniversary of our coronation, hereby proclaim and place into force and effect as of to-day, the revised constitution of the empire of Ethiopia for the benefit, welfare and progress of our beloved people. Given in our imperial capital, on this the 24th day of Tekemt, 1948 (Ethiopian calendar), and on the twenty-fifth anniversary of our coronation. Similarly, the 1987 constitution of PDRE follows the same modus operandi by blaming its predecessor. Mutatis mutandis, the 1995 FDRE Constitution follows the same resemblances of its predecessor. These all induce one that, in Ethiopia, all are revolutionary to go to throne but reactionary on throne.
12 Tsegaye Regassa, Between Constitutional Design and Constitutional Practice: The Making and Legitimacy of the Ethiopian Constitution, Mekelle University Law Journal, Vol.1 No.1, 2010, Pp.21 seq.
13 These ideologies are Feudalism of the monarchical period, socialism of the Derg Regime and Developmental state of EPDRF. See Christophe Van der Beken, Ethiopia: From a Centralised Monarchy to a Federal Republic, Afrika Focus, Vol. 20, Nr. 1-2, 2007, Pp.13-48. Similarly, see also Menghistu Fiseha-Tsion, Highlights of the Constitution of PDRE: Critical Review of the Main Issues, 14 Review Of Socialist Law 1998, No.2, 129-180. May be odd, even this trend is also noticed in other discipline in which the act of deconstructing and constructing new constitution and ideologies stretches to the erection of statues that follows the regime. See Mulualem Daba Tola, The Political and Historical Representation of Statues in Three Ethiopian Consecutive Regimes (1889 - Present), Social Sciences, Vol. 6, No. 2, 2017, pp. 35-44.
14 Supra Note,13.
15 Blatantly, Ethiopia totally experienced demolishing the formed and starting new from scratch.
16 Of the six codes of 1950s and 1960s, it is only penal code which is totally repealed and replaced whilst the rest five codes, though they are tainted with selective repeal and amendment, are still applicable.
17 Ethiopian legislative branch, only under EPDRF, as of 21st August 1995 to today (up to 20th October 2018) legislate 1097 proclamations which means Ethiopian legislator (HPR) legislate 48 proclamations annually and 4 proclamations monthly.
18 Black’s Law Dictionary, 9th Edition, P-1413.
19 Oxford Dictionary of Law, 5th Editions, Oxford University Press.
20 This can be analyzed by over viewing some Ethiopian legislation. As an instance, the model can be inferred from Civil Code (Amendment) Proclamation No.65/1997 which is totally repealed by property Mortgaged or Pledged with Banks Proclamation No. 97/1998.
21 Declaration of the Establishment of the Federal Democratic Republic of Ethiopia Proclamation, 1995, Art.5, Proclamation No. 2, Fed. Neg. Gaz. Year 1, No.2. This article states that All prior laws shall continue to apply unless they are inconsistent with the Constitution of the Federal Democratic Republic of Ethiopia. This implies all legislation legislated prior to 1995 selectively repealed with bench mark of FDRE constitution.
22 ___ Henry VIII clauses, Working Papers, Queensland Law Reform Commission, February, 1990 PP-1. available @ <https://www.qlrc.qld.gov.au/__data/assets/pdf_file/0019/372502/r39.pdf> (accessed on 27/12/2017). See also Mulugeta Mangist’s essay on http://www.abyssinialaw.com/blog-posts/item/1445-express-repeal-of-delegated legislation-under-ethiopia (accessed on 28/12/2017)
23 Black’s law dictionary, 9th edition, p-513. See also Richard Albert, Constitutional Disuses Or Desuetude: The Case Of Article V, Boston University Law Review, (2014) Vol. 94, pp.1029.
24 Proclamation To Amend the land Proclamation, 2007, Art.27, Proclamation 130, Megeleta Oromia, Year 15, No-12. This article states . . . Any land user who violates the provisions in this proclamation or Regulations issued for the implementation of this proclamation shall be tried under the applicable law. The 2004 Criminal Code of the Federal Democratic Republic of Ethiopia penalize disturbance of possession under article 686. This article reads as, Whoever unlawfully, with intent to procure a profit or benefit, a) encroaches on or occupies land or buildings, the possession of another; or b) in any other manner, interferes with the quiet possession of another, is punishable, upon complaint, with fine or simple imprisonment.
25 Council of Oromia Regional State Administrative Rural Land Use and Administration Regulation, 2012, Article.31, Regulation No.151. This article penalizes all acts committed by transgressing the proclamation and this very regulation. This is the act of explicitly repealing and substituting proclamation by regulation - Henry VIII clauses amendment and/or repealing system.
26 Rural Land Use And Administration proclamation article 15(14) sets any person who is found using the land not given to him legally, shall be obliged to leave the land without any condition and also be subjected to penalty in accordance with law. Here, the phrase ‘without any condition’ in black and white indicate as far as the act of occupying the land is illegal, occupier could not justify his act by any reasons. Contradictory to this standing, Rural Land Use and Administration Regulation No.151, Article 32 legalize illegality with the reason of 12 years statutory limitation.
27 For detail analysis of this issue, see Fesseha Negash Fantaye, Appraising Legality Status of Prescriptive Limitation Mode of Access to Rural Land in Ethiopia: The Case Of Oromia Regional State (a forthcoming paper).
28 Worku Tadese v. Jirata Elfata (Federal Supreme Court, 2017, Cassation Civil Case No. 140538), Federal Supreme Court Cassation Division Decisions, Vol.22, Pp. 445 – 449).
29 See Federal Courts Proclamation Reamendment Proclamation, 2001, Art.2(4), Proclamation No. 454, Negarit Gaz. Year 11, No. 42, and Consolidation Of The House Of The Federation And Definition Of Its Powers And Responsibilities Proclamation, 2001, Art. 11, Proclamation No. 251, Negarit Gaz. Year 7, No. 41. This Federal Courts proclamation, art 2(4), confers power of interpretation of laws and reversing its own decision on latter time. Implementing this very article, federal cassation bench, is rendering a different legal interpretation in the language of this proclamation to repeal, in conventional term, its prior interpretation. As instance, National Mineral Corporation Plc. Vs Dani Drilling Plc. (Federal Supreme Court, Addis Ababa 2009, Civil Case No- 42239), FDRE Supreme Court Cassation Decision Vol.10, Pp. 350. In this case the bench expressly replaced its prior interpretation given on case No. 21849 which is act of repealing.
30 Constituent power resides in the people of a given state. It is the power of establishing and abolishing any form of government and constitutions. In other word, it is the unlimited power of the people.
31 The House Of The Federation Of Federal Democratic Republic Of Ethiopia, Journal Of Constitutional Decisions, Vol. 1, No.1, P.14, et seq.
32 የሕገ መንግሥት ጉዳዮች አጣሪ ጉባዔ የውሳኔ ሀሳቦች፣ ሕገ መንግሥታዊ ጆርናል፣ ቅፅ 1፣ ቁጥር 1፣መስከረም 2011 ዓ/ም፣ ገፅ፤ 131 et seq.
33 Federal Courts Proclamation Reamendement Proclamation 2005, Art 2(4), Proclamation No-454 Fed. Neg. Gez.,Year 11, No 42. This proclamation confers on FDRE Supreme Court Cassation Bench power of revising its prior interpretation. Implementing this very article, Federal Cassation Bench has revising its prior interpretation. see, as instance, National Mineral Corporation Plc. vs Dani Diriling Plc. (Federal Supreme Court, Addis Ababa, 2009, Civil Case No- 42239) Cassation Decision Volume 10, Pp. 350. In this judgment the bench expressly repealed its interpretation given on case No. 21849. Moreover, on Senai Lulseged et.al v. Tigist Haile case, the bench amplifies its practices stating unless otherwise the bench expressly revised its prior decision, all of its decisions hold legal status. Senai Lulseged et.al v. Tigist Haile (Federal Supreme Court, Addis Ababa, 2010, Civil Case No- 52530) Cassation Decision Volume 11, P. 533.
34 Ronald Dworkin, Law as Interpretation, Taxes Law Review, Vol.60, P.527.
35 Svetlana Boshno, Proposition Of Law: Its Concept, Properties, Classification and Structure, Law and Modern States 4/2015, P.71
36 Dworkin, supra note 34, p-528.
37 Ronald Dworkin, Law's Ambitions For Itself, Virginia Law Review, Vol.71, P.176
38 Scott J. Shapiro, Legality, The Belknap Press of Harvard University Press, Cambridge, Massachusetts, London, England, 2011, PP-53.
39 William Twining, General Jurisprudence: Understanding Law from a Global Perspective, Cambridge University Press, 2009, p.126
40 Shapiro, supra note 38, p.53.
41 Simeneh Kiros, Sharing Thought: What Is The Jail Man Doing?, Mizan Law Review, Vol. 12, No.1, September 2018, P. 226
42 Black Law Dictionary, 9th Edition, Pp-962.
43 Federal Negarit Gazeta Establishment Proclamation, 1995, Art. 2(2), Proclamation No.3, Fed. Neg. Gaz., Year 1, No.3. This article states ‘all Laws of the Federal Government shall be published in the Federal Negarit Gazeta’.
44 Reestablishment Proclamation of the Megeleta Oromia News Paper, 2014, Art.3 (1), Proclamation No.186, Megeleta Oromia, Year 22, No.11. Similar to Federal, this article states, Proclamation, Regulations enacted, agreement entered by the Regional Government of Oromia and ratified by ‘Caffee’ and any law of the Region shall be published on Megeleta Oromia.
45 Twining, supra note 39, pp.332
46 Proclamation No.3, supra note 43, article 2(3).
47 House Of Peoples' Representative Procedure Proclamation, 1995, Art. 2(1), Proclamation No.14, Federal. Neg.Gaz ., Year 2, No.2.
48 Constitution of the Federal Democratic Republic of Ethiopia Proclamation, 1995,art. 77(13), Proclamation No.1, year 1, No.1.
49 Council of Constitutional Inquiry Proclamation, 2001, art. 2(5), Proclamation No.250, Year 7, No.40.
50 Asefa Fiseha, The Concept Of Separation Of Power and Its Impact On The Role Of Judiciary In Ethiopia, Ethiopian constitutional series, faculty of law, AAU press, vol.III, p-14-16.
51 Ethiopian Revenues and Custom Authority V. Dani’el Mokonin, (Federal Supreme Court Cassation Bench, Addis Ababa, 2010, Criminal Case File No. 43181), FDRE Cassation Decision Vol.10, Pp. 345.
52 Getachew Asefa, Is Publication Of Ratified Treaty Requirement For Its Enforcement In Ethiopia?, Journal Of Ethiopian Law, Vol. XXIII, No.2, 2009, Pp.168.
53 Proclamation No-1, infra note 90, Article 12(1). This article reads as ‘The conduct of affairs of government shall be transparent’.
54 Girma W.Selassie, Sometimes The Laws Is A Ass, Journal Of Ethiopian Law, Vol. XXIII, No.1, 2009, p.220-224. The aphorism ‘law is an Ass’ is as jungle as the jungle it is used to clarify. Some state the phrase ‘law is as an ass’ refers to mean that the law has the qualities of a donkey, it means to understand the law one has to work like an ass.
55 Black Laws Dictionary, p.1010
56 This exception can be exemplified by the law on the budget adopted for one year.
57 Boshno, supra note 35, p.72
58 Michael Zander, The Law Making Process, Cambridge University Press, PP-26.
59 Aharon Barak, The Judge in a Democracy, Princeton University Press, PP-7.
60 Mark D. Walters, Legal Humanism and Law-as-Integrity, Cambridge Law Journal, Vol. 67(2), 2008, Pp. 352–375, p.352
61 As an instance, the case of election systems (formula) Negotiation could be taken as a showcase. At present governing and opposition parties are negotiating on the change of election systems (formula) of Electoral Law of Ethiopia Amendment Proclamation, 2007, Proclamation No. 532, year 13, No.54. However, the change of this proclamation’s election formula, presuppose amendment of FDRE Constitution.
62 Taddese Lencho, In Come Tax Assignment Under The Ethiopian Constitution: Issues To Worry About, Mizan Law Review, Vol. 4, No1, March 2010, PP-33.
63 Zelalem Ishetu, Unconstitutional Constitutional Amendment In Ethiopia, Haramaya Law Review Vol.4.1, p-65-66. See also Zelalem Eshetu, decentralizing Treaty Making Power Of The Federal Government Under The Ethiopian Federal System: In Search Of Better Safeguarding Mechanisms, The International Journal Of Ethiopian Legal Studies, Vol. 1:1, p-12.
64 Criminal Code of the Federal Democratic Republic of Ethiopia of 2004.
65 As an illustration, see Corruption crime proclamation, 2015, Art.35 and 36, Proclamation No.882, Federal. Neg.Gaz ., Year 21, No.36. This article repeals all corruption crime from FDRE Criminal Code of 2005. Similarly also prevention and suppression of trafficking in persons and smuggling of migrant’s proclamation, 2015, Art.48, Proclamation No.909, Federal. Neg.Gaz ., Year 21, No.67. This article also suspended some article of FDRE Criminal Code of 2005 viz. 243,596,597,598,599, and 635. However, among the aims of FDRE Criminal Code’s promulgation is to assemble all penalty clause holder legislations comprehensively as it states on its preamble. On its preamble it is aims explained as it is desirable to adopt a comprehensive code by assembling the various criminal provisions published in the Negarit Gazeta in a disintegrated manner.
66 Glory Nirmala k, Family Violence against Women: How Does Ethiopian Law Compare With International Definition, Haramaya Law Review, Vol.1, PP-79.
67 Gabriel Halley, A Modern Treatise On The Principle Of Legality In Criminal Law, Springer-Verlag Berlin Heidelberg -2010, PP-135.
68 Alemayehu Fantew, Ethiopian unfair competition law critical evaluation, Jimma University Journal of law, Vol. I, No II, which the excerpt cited by Alemayeh Fentaw and Kefene Gurmu in law of traders and business organizations, teaching material, prepared under justice and sponsorship of the justice and legal system research institute, 2009, PP-22.
69 Trade Practice and Consumers’ Protection Proclamation, 2010, art.57, Proclamation No.685, Year 16, No.49. This article clearly and totally repeals the predecessor one when it states Trade Practice Proclamation № 329/2003 is hereby repealed and replaced by this Proclamation. Similarly this repealing proclamation also repealed by trade competition and consumer’s protection proclamation, 2013, art. 47(1), Proclamation No.813, year 20, No.28.
70 See as case in point, for instance, proclamation No.60/1997 Vs 125/1998, 25/1996 Vs 321/2003, 27/1996 Vs 343/2003, 377/1996v 466/2005 Vs 494/2006, 686/2010 Vs 731/2012, and so on.
71 David Renton, The Legislative Habits Of The British Parliament, Journal of Legislation, Vol-5, Issue 1, Article 1, p-10.
72 FDRE, HPR working procedure and members code of conduct amendments, 2005, article 6(1), proclamation No. 470, Federal Negerit Gazeta, year 11, No. 60 and FDRE, HPR, article 46, 2006, Regulation No.3 Federal Negarit Gazeta.
73 Renton, supra note, supra Note 71, p.12.
74 Zander, supra Note 58, PP-9.
75 <hh://en.wikipedia.org wiki/white paper> , (accessed on December 19, 2017)
76 HPR working procedure, supra note 61, Article 6(2).
77 Id. Article 6(2).
78 Id. Article 7-11.
79 Proclamation Licensing And Administration Of Advocates And Paralegals, 2013, Art. 10(1)(H), Megeleta Oromia, Proclamation No. 182, Year 21, No. 7. This article states . . . to get any level of advocacy license (1st or 2nd) level of advocacy license shall fulfill the following criteria, among others, Where he is six months or more after he left his job.
80 It was Fikadu Saboka’s, head of Justice Bureau of Oromia Regional State, responses as he was platform holders on that occasion.
81 Wade Mansell et al., A Critical Introduction to Law, 2nd Edition, 1999, pp.5. The term ‘The law is the law’ conveys the notion of the impropriety of not accepting and obeying law. . . . Parties’ political policy, subject to debate and opposition, transforms into law which must be obeyed, ‘because it is the law’, upon the signature of the sovereign upon a piece of paper.
82 A Proclamation provided to amend Licensing and Administration of Advocates and Paralegals Proclamation No. 182/2013, 2015, Art. 2(1), Megeleta Oromia, Proclamation No. 182, year 23, No. 3.
83 A proclamation to revise Oromia Regional state cities establishment proclamation, 2015, Megeleta Oromia, Proclamation No. 195, year 23, No.3.
84 It is the chaos started at ‘Ginch’ as a resistance against maladministration and exacerbated by the so-called this ‘master plan’ proclamation, and spread over nationwide.
85 The unrest created in Oromia and spread to Ethiopia wide.
86 Proclamation to Amend Oromia Regional State Cities Re-establishment Proclamation, 2016, art.2, Megeleta Oromia, Proclamation No. 196, year 24, No.5.
87 Tsegaye Regassa , Issues of federalism in Ethiopia: towards an inventory, Ethiopian constitutional law series, Vol. 2, AAU printing press, Addis Ababa, p. 20 -23.
88 Teguadda Alebachew, When Constitution Lacks Legitimacy In The Making: The Case Of Ethiopia, LLM Thesis, AAU, February 2011, Addis Ababa (unpublished).
89 Tsegaye, supra note 1, p.113.
90 Constitution of FDRE proclamation, 1995, art. 9(3), proclamation No-1, Federal Negerit Gezetta, year 1, No. 1. Article 9(3) declares All citizens, organs of state, political organizations, other associations as well as their officials have the duty to ensure the observance of the Constitution and to obey it.
91 See for bird’s eye view of constitutionalism, Tsegaye Regassa, Making Legal Sense Of Human Rights: The Judicial Role In Protecting Human Rights In Ethiopia, Mizan Law Review, Vol. 3, No.2, September 2009.
92 Tsegaye Ragasa, between constitutional design and constitutional practice the making and legitimacy of of the Ethiopian constitution, Mekelle university law journal, Vol.1, No.1, 2010, Pp. 43
93 Adem Abebe, Rule by law in Ethiopia: rendering constitutional limits on government power nonsensical, center of governance and human right (GHR) working paper, Cambridge, university of Cambridge centre of governance and human right, P.3. See also for the issue of Rule by law as rule of law Antonin Scaliat, The Rule of Law as a Law of Rules, The University of Chicago Law Review, Volume 56, Number 4, Fall 1989, pp.1175-1188.
94 Brian Z. Tamanaha, On the Rule of Law, History, Politics, Theory, Cambridge University Press, 2004, Pp.3
95 Supra Note 80, Articles 47(4), 50(8), 51-52 etc.
96 Federal Court Proclamation, 1996, art. 6(2), proclamation No-25, federal Negarit Gazzeta, year 2, No-13.
97 id. art.2(3), art.2(5) of proclamation No-250/2001, art-2(2) of proclamation No-251/2001 and so on for federal Laws, and for regional states, for instance,art-2(7)of proclamation No.167/2007 and proclamation No-168/2003 of Oromia regional state Proclamations; it serves mutatis mutandis for the left regions.
98 See for further detail on this issue, Jamaal Qumbii, Gaa’ilaa fi Gaa’ilaan Ala Akka Dhirsaa fi Niittiitti Waliin Jiraachuu Adda Baasuu Keessatti Yeroo Waraqaan Ragaa Gaa’ilaa Hin Jirre Rakkoolee Qabatamaan Mudatan (practical problem in identifying marriage and irregular union in the default of marriage certificate), Oromia Journal of law, vol.1, No.1, pp.1-25
99 Proclamation No.1,supra note 90, Article 55(5). This article reads, It (HPR) shall enact a penal code. The States may, however, enact penal laws on matters that are not specifically covered by Federal penal legislation.
100 Peter Cartwright, Consumer Protection and the Criminal Law; Law, Theory, and Policy in the UK, Cambridge University Press, pp.71. See also Glory Nirmala K. and Serkaddis Zegeye, Criminal Law I Teaching Material, Sponsored by the Justice and Legal System Research Institute, 2009, p.56 seq.
101 Forest Development, Conservation and Utilization Proclamation, 1994, Proclamation No-94, Federal Negarit Gazzeta, Year 53, No-80.
102 Forest Development, Conservation and Utilization Proclamation, 2007, Proclamation No.542, Federal Negarit Gazzeta, Year 13, No-56. This proclamation also repealed and substituted by Forest Development, Conservation and Utilization Proclamation, 2018, Proclamation No.1065, Federal Negarit Gazzeta, Year 24, No-21.
103 Forest Development, Conservation and Utilization Proclamation, 2003, Proclamation No.72, Megelata Oromia, Year 9, No-12.
104 Under Oromia Regional States Forest Law, the commission of any forest crime entails five years to fifteen years rigorous imprisonment while under Federal forest law, forest crime categorized as simple and serious crime which the commission of them entails simple or rigorous imprisonment as to the degree of committed acts. Moreover, it sets different penalty for act committed intentionally and negligently but not under Oromia forest law. In sum, any person who commits any types of forest crime in Oromia will be punished minimum one years (1) (if there is general or special mitigating circumstance) and maximum fifteen years (15) (if there is general and special mitigating circumstance) whereas those who commit the same act in Ethiopia except in Oromia will be punished minimum Teen days (10) (if there is general or special mitigating circumstance) and maximum fifteen years (15) (if there is general and special mitigating circumstance).
105 Coffee Quality Control and Marketing Proclamation, 2008, Proclamation No.602, Federal Negarit Gazzeta, Year 9, No-12. This proclamation totally repealed by Coffee Marketing and quality control Proclamation, 2017, Proclamation No.1051, Federal Negarit Gazzeta,Year 23, No-.
106 Coffee Quality Control and Marketing Proclamation, 2010, Proclamation No.160, Megelata Oromia, Year 18, No-7.
107 Brian Z. Tamanaha, On the Rule of Law, History, Politics, Theory, Cambridge University Press, 2004, Pp.34
108 Yonatan Fessha, Ethnic Identity and Institutional Design: Choosing an Electoral System For Divided Societies, 42 Comp. & Int'l. L.J. S. Afr. 323, 2009, pp.324.
109 Pippa Norris, Choosing Electoral System: Proportional, Majoritarian And Mixed Systems, For Contrasting Political Institutions special issue of the International Political Science Review, Vol. 18(3), July 1997: 297-312.
110 Proclamation No.1, supra note 90, Article 54(2).
111 Sileshi Zeyohanes and Dagnachew Asrat, Constitutional I Teaching Material, sponsored by the justice and legal research institute, 2009, PP-87.
112 Electoral Law of Ethiopia Amendment Proclamation, 2007, art.25, Proclamation No.532, Federal Negarit Gazeta, Year 13, No. 54.
113 See Norris, Supra note 98.
114 John Ishiyama, Examining the 2005 Ethiopian Parliamentary Election Results Under Alternative Electoral Rules, (2007), International Conference on African Development Archives, Paper 110, pp.1-11.
115 See Yonatan, Supra note 108.
116 John Ishiyama, Alternative Electoral Systems and the 2005 Ethiopian Parliamentary Election, African Studies Quarterly, Volume 10, Issue 4, Spring, 2009, Pp.37.
117 Steven Levitsky and Lucan A. Way, Elections Without Democracy, The Rise Of Competitive Authoritarianism, Journal of Democracy, Volume 13, Number 2, April 2002, pp.51-65.
118 See Ishiyama, Supra note 114.
119 See < http://en.m.wikipedia.org/wiki/elections_in_Ethiopia > accessed on 27 December 2019.
120 ibid
121 Leonardo R. Arriola and Terrence Lyons, Ethiopia: The 100% Election, Journal Of Democracy, Volume 27, Number 1, January 2016, P-76.
122 Id. PP-77, See Also Simegnish Yekoye, Ethiopia: Silencing Dissent, Journal Of Democracy, Volume 27, Vol. 27, No. 1, 2016, PP. 89-94.
123 William Twining, General Jurisprudence, Understanding Law From a Global Perspective, Cambridge University Press, Pp.287.
124 Stanley Z. Fisher, Traditional Criminal Procedure in Ethiopia, The American Journal Of Comparative Law, Vol.19, Pp.709.
125 G. Krzeczunowiczi, The Ethiopian Civil Code: Its Usefulness, Relation To Custom and Applicability, J.A.L, Vol. 7. No- 3, Pp.174.
126 Tesfaye Abate, Introduction To Law And The Ethiopian Legal System Teaching Material, Prepared Under The Sponsorship of The Justice And Legal System Research Institute, 2009, pp.40 seq.
127 Phil Harris, an Introduction to Law, 7th Edition, Cambridge University Press, Pp.7.
128 Donovan et al., infra Note 133, Pp.529.
129 Mulugeta Getu, Departure Of Ethiopian Family Laws: The Need To Redefine The Place Of Societal Norms In Family Matter, Haramaya Law Review, Vol.4.1, Pp.83-84.
130 Brian Z. Tamanaha, Law and Society, St. John’s University School Of Law, Legal Studies Research Paper Series, available at http://ssrn.com/sol3/papers.cfm?abstract-id=1345204. accessed on 15/01/2019.
131 Krzeczunowiczi, supra note, p.174.
132 Civil Code Of The Empire Of Ethiopia, 1960, Art. 3347 (1), Proclamation No.165, Negarit Gazeta, 19th Year No 2, Addis Ababa 5th May 1960.
133 Dolores A. Donovan et.al, Homicide In Ethiopia: Human Rights, Federalism And Legal Pluralism, The American Journal Of Comparative Laws, Vol.51, Pp.543.
134 Civil Code Of The Empire Of Ethiopia, supra note 132, p.III
135 Julie Macfarlane, Working Towards Restorative Justice in Ethiopia: Integrating Traditional Conflict Resolution Systems with The Formal Legal System, Cardozo J. Of Conflict Resolution , Vol. 8:487, Pp.487-509; see also Jetu Edosa, Mediating Criminal Matters In Ethiopian Criminal Justice System: The Respect Of Restorative Justice System, Oromia law journal, Vol.1 No.1, Pp. 99-143.
136 see Mulugeta, supra note 129.
137 Revised Oromia Family Law, 2004, Art. 211(1), Proclamation No.83, Mageleta Oromia.
Frequently asked questions
What is the central theme of "Life Expectancy Status of Ethiopian Laws"?
The central theme revolves around the feasibility of Ethiopian legislations in adapting to the day-to-day societal dynamics of Ethiopians. The text argues that there are significant anomalies in transforming laws within the Ethiopian legislative scheme, leading to a low life expectancy for Ethiopian laws.
What are the key words associated with this article?
The key words are Amendment, Legislature, Legislation, Repeal, and Transformation of law.
How does the author define "transformation of law"?
Transformation of law is defined as the change of law either totally or partially through primary or secondary legislations by their respective legislator or higher legislative organ or judicial review.
What is the author's opinion on Ethiopia's approach to transforming laws?
The author argues that Ethiopian laws transformation system has gone far quantitatively but remains underdeveloped qualitatively, especially in terms of life expectancy.
What factors contribute to the "low life expectancy status" of Ethiopian laws, according to the author?
The author identifies several factors, including:
- Excessive/Over-elaboration of Legislations
- Absence or Poor Color Papers Stage of Legislation
- Constitutional Infidelity of Legislatures
- Absence of Free and Fair Election
- Lack of Societal Ethos
What is meant by "over-elaboration" of legislation?
Over-elaboration refers to an abnormal over-stretching of the clarity and precision of legal provisions. The author contends that Ethiopian laws suffer from this, leading to frequent changes.
What is the "color papers stage" of legislation, and why is its absence detrimental?
The "color papers stage" refers to pre-legislative consultation phases involving the release of white and green papers to gather public feedback on draft laws. The author argues that the absence of a rigid color papers stage in Ethiopian legislative procedure results in laws that lack societal input and therefore have a shorter lifespan.
What does "constitutional infidelity of legislatures" mean?
Constitutional infidelity refers to the failure of government organs, including the legislature, to adhere to the spirit and principles of the Ethiopian constitution. This leads to the persistence of "rule by law" rather than "rule of law."
How does the absence of free and fair elections contribute to the problem?
The author contends that without free and fair elections, legislative bodies lack true representation. This illegitimacy extends to the laws they enact, making them less durable and more prone to change.
What does the author mean by "lack of societal ethos" in lawmaking?
This refers to the failure to adequately consider and incorporate Ethiopian customary laws and societal values into formal legislation. This disconnect makes some laws legally valid ("de jure") but practically ineffective ("de facto").
What are some of the author's recommendations for improving the life expectancy of Ethiopian laws?
The author suggests:
- Making pre-legislation and legislative processes more participatory.
- Respecting the principle of separation of powers and the independence of the legislative organ.
- Legislative organs respecting Constitutional Fidelity
- Vigorously developing and implementing post-legislative scrutiny.
- Adjusting and administering fair and free elections.
- Redefining the legislative process to acknowledge Ethiopian customary laws.
What is the author's opinion of the current status of 'proposition of laws' in Ethiopia?
The author believes that, within Ethiopia, the notion of 'proposition of laws', particularly regarding the definition of laws, remains an unresolved matter.
- Quote paper
- Fesseha Negash (Author), 2019, Life Expectancy Status of Ethiopian Laws, Munich, GRIN Verlag, https://www.grin.com/document/1112086
