Mizan Law Review

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• Comment: The Principle of Universal Jurisdiction for Massive Human Right Violation of the Past: An International and Ethiopian Perspective

  Confronting egregious human rights violations and repressive past is an arduous and necessary task to end the cycle of impunity. Bearing in mind Ethiopia‟s notable contribution to the peace and security in the Horn of Africa and beyond, Ethiopia and the region at large can benefit from showing support to institutions that aim to establish accountability for grave human rights violation. Ethiopia needs to champion and redefine its support of accountability by exercising universal jurisdiction. Where the domestic judicial system is unable or unwilling to deal with grave crimes committed within its national jurisdiction or against its nationals, other countries‟ institutions can serve as safeguard and fallback options to establish accountability, thereby significantly contributing to the protection of human rights. Thus, it is very crucial to the fight against impunity that Ethiopian laws providing for universal jurisdiction should be set in motion. In this comment, the scope, development, role and challenges of the principle of universal jurisdiction with proper reference to practical cases are discussed. Furthermore, thes cope of universal jurisdiction under Ethiopian law is compared with international law and African model Universal Jurisdiction Law to indicate its implication to the Horn of Africa.

• Towards a Better Commercial Arbitration: Should Ethiopia Ratify the New York Convention?

  The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral awards is currently ratified by 161 states. The Convention gives a visa for arbitral awards made in a Convention state and guarantees enforcement of the award elsewhere except on few grounds. It imposes obligations on states and their courts to recognize and enforce foreign arbitral awards and arbitration agreements. It also imposes on courts the obligation to stay proceeding with a matter subject to the arbitration agreement. Ethiopia has not yet ratified the NYC. This article aims at demonstrating the challenges and prospects of ratification of the Convention by Ethiopia. I argue that by ratifying the Convention, Ethiopia would be able to, inter alia, increase trade and investment, get access to lower interest rates and rates of return, improve its international image, improve on competition for trade and investment, improve its arbitration system, decrease caseloads of courts and hasten its move towards the accession to WTO. These factors show that it is in the country's interest to ratify the Convention and domesticate it through the instrumentality of the UNCITRAL Model Law.

• Comment: The Role of Courts in Safeguarding the Best Interest of the Child (Amharic)

  The best interest of the child is a multifaceted principle governing children’s rights. This principle is tri-dimensional which serves as (i) human right, (ii) a mechanism of evaluation of other rights, and (iii) as a means of interpreting other rights under the Convention on the Rights of the Child (CRC). Ethiopia has ratified the CRC. As the judiciary is the ultimate guardian of human rights including the rights of children, allowing the judiciary to safeguard such rights –when it adjudicates cases that affect the interest of children– is one of the mechanisms of implementing the right. Pursuant to Article 13(1) of the Federal Democratic Republic of Ethiopia Constitution, the Judiciary, among others, is legally entrusted with the function of enforcing and respecting human rights. This comment explores the law relating to the interpretation and application of the best interest of the child in Ethiopia. Primary and secondary data sources indicate that there is no clear assessment and criteria-specific procedure on the use and evaluation of the best interest of the child. Consequently, there is no uniform interpretation and application of the best interest of the child by courts.

• The Procedure for the Creation of New Regional States under the FDRE Constitution: Some Overlooked Issues

  The Ethiopian Federation which was created by the 1995 Federal Democratic Republic of Ethiopia (FDRE) Constitution had nine member states and one city administration. Apart from the creation of Dire Dawa as a city administration, no new state has been introduced in the Ethiopian federation since the adoption of the Constitution. However, several ethnic-based Zonal administrations in the country‟s Southern Nations, Nationalities and Peoples (SNNP) region are now demanding to form their own regional states. Apparently, the demands are justified under Article 47(2) of the 1995 Ethiopian constitution which follows a purely ethnic-centered approach by giving “each nation, nationality and people” living in the nine States of the federation “the right to establish their own States at any time.” However, since this right has so far never been exercised in practice, the new demands are creating anxiety in some quarters and drawing a growing attention to the constitutional procedure for the creation of new states. This article aims to critically examine the relevant constitutional provisions dealing with the issue of creation of new states. Drawing insights from some other federations, we argue that the ethnic-centered approach taken under the FDRE Constitution for the creation of new states overlooks several important issues such as economic viability, administrative efficiency, equity, sustainable peace, and resilience of the federal system.

• The Quest for Identity and Self-Determination in the SNNP Region of Ethiopia

  The rich ethnic diversity in the SNNP region is being managed by different mechanisms of constitutional, institutional, and political practice. Yet, this has not been able to contain new questions of identity, not only seeking for recognition as a distinct ethnic group, but also a desire to establish ethnic territorial administrations. Moreover, ethnic groups that are already recognized are also laying claims to various self-determination rights, inter alia, to territorial autonomy, equitable participation, and the redrawing of internal (ethnic) boundaries. Based on legal analysis of cases from the SNNP region, the article critically discusses the quest for identity and self-determination, and provides an overview of the experience of the region. In dealing with the existing dilemma, we argue that there is a need to maintain the balance between constitutional rights to identity recognition and self-determination with the threat of ethnic and territorial fragmentations.

• Comment: Filing Suit in the Wrong Court and its Effect in Interrupting Period of Limitation

  Although the Federal Supreme Court rendered a sound decision on the effect of filing suit in the wrong jurisdiction with regard to the period of limitation, it failed to provide detailed analysis and reasoning. The importance of reasoning in judgment is well known. However, the Supreme Court Cassation Division in this case arrived at conclusion without deeply exploring the issues involved and without adequate analysis.

• Amicable Dispute Resolution in Civil and Commercial Matters in Ethiopia: Negotiation, Conciliation and Compromise

  Amicable dispute settlement methods play a major role in the resolution of civil and commercial disputes. These mechanisms present advantages to the parties as compared to arbitration and litigation. The Civil Code of 1960 contains provisions on Conciliation and Compromise, which set out the minimum legal framework for practical use by disputing parties in civil and commercial matters. Conciliation and compromise are in the main regulated under Arts. 3318-3324 and 3307-3317 respectively. The Civil Procedure Code of 1965 also consists of several provisions on compromise (Arts. 274-277). Generally, disputes are legally and conveniently amenable and better resolved through these amicable dispute settlement methods. However, whether they are put in use entirely depends on the free will of the disputing parties‟. They can only be resorted to whenever the disputing parties commit themselves to use them in their contractual agreements. For certain other disputes, these amicable dispute settlement mechanisms are compulsory; in such cases, policy rationale dictates that disputes of such nature should be swiftly resolved through amicable dispute settlement methods. Some other disputes are, however, vested exclusively in the courts. This article distinguishes arbitration from conciliation. It is discussed whether conciliation differs from mediation. Attempt has also been made to shed light on the nature and application of concilio-arbitration in Ethiopia. The legal framework underpinning negotiation, conciliation, and compromise is expounded. Furthermore, the legal lacunae in relation to conciliation is addressed.

• Sense and Nonsense in the Regulation of Equipment Financing Business in Ethiopia

  The discourse about equipment financing (financial leasing) business is not as to whether it is useful; but it is about how to create the best possible investment climate for the growth and expansion of the sector; that is how to maximize the economic gains in terms of facilitating alternative access to financing for businesses. Equipment financing or financial leasing is one of the alternative mechanisms of solving financing needs of businesses and individuals. It combines the attributes of lending and leasing, hence the name finance leasing or lease financing. It involves lending equipment (instead of lending the funds needed to purchase it) with the possibility of eventual ownership of the equipment by the borrower. Although equipment financing and leasing existed in Ethiopia over a long period of time, a detailed law on the subject was introduced only recently. However, the new regulatory regime which placed the financial leasing sector under the regulation of the National Bank of Ethiopia (NBE) did not stimulate the emergence of financial leasing companies as intended. It brought about the creation of big government owned leasing companies whose formation and operation is rather politically driven than supported by economic rationales. Much of the reason for the lack of enthusiasm from the private sector seems to be the discouraging regulatory environment. Therefore, the complex and cumbersome regulatory framework should be simplified if financial leasing companies are to flourish and play a meaningful role as alternative sources of financing.

• Ethiopia's Justice System Reform at Crossroads: Impediments relating to Institutional Continuity, Ethnic Politics and the Land Regime

  Ethiopia‘s Justice System Reform Program has not achieved the pledges that were promised since 2002. One of the sources for the impediments was ‗revolutionary democracy‘ because its ‗democratic‘ limb represented the pursuits of justice system reform while its ‗revolutionary‘ limb caused impediments to the reform. This involves various manifestations of ‗revolutionary democracy‘ which include institutional discontinuity, ethnic politics and reluctance to land reform. Disruptions owing to periodic changes in institutional structures (and mandates) adversely affect institutional memory and continuity in Ethiopia‘s justice system reform. The second impediment relates to problems in law and order owing to the risky experiment in ethnic politics that has nurtured ethnic radicalism and hostilities along linguistic lines thereby creating pressures on the justice sector. It has also impeded attainments in the first two dimensions of good governance, (i.e. voice and accountability) because genuine voice of citizens envisages rational choice as opposed to ethnicity. The third trap which is among the manifestations of ‗revolutionary democracy‘ involves rigidity against reforming Ethiopia‘s land law which has handcuffed broad-based economic performance thereby impairing the resource base of all reform pursuits (including justice system reform). The way forward thus envisages not only addressing the external manifestations of the problems in the justice system, but also requires directly addressing the root causes of the impediments.

• Traditional African Conflict Resolution: The Case of South Africa and Ethiopia

  In Africa, traditional conflict resolution is based on values, norms, cultures and beliefs as practiced by the members of the community. Thus, traditional conflict resolution decisions are readily accepted by the community. However, colonialism had very serious impact on African values, norms, cultures and beliefs. It disregarded, undermined and weakened them. Cultural hegemony (as a result of colonialism) and legal transplantation (without adequate attention to traditional systems) have adversely affected traditional conflict resolution in Africa. Nonetheless, the continuous use of traditional dispute resolution mechanisms across African communities clearly demonstrates that they still have a role to play. The article aims to assess the institution of traditional conflict resolution in Africa with particular emphasis on South Africa and Ethiopia. Both countries are multiethnic societies with a variety of cultures, languages and religions. Ethiopia maintained its freedom from colonial rule with the exception of a short-lived Italian occupation and from 1936 to 1941. South Africa was a Dutch colony from 1662 to 1815, a British colony from1910 to 1948 and under the Apartheid era from 1948 to1994. Using case studies of South Africa and Ethiopia, the article examines some of the successes and challenges faced by traditional conflict resolution institutions. The opportunities offered to them by the two legal systems are also examined. The two systems are not selected for the purpose of comparative analysis compared, but are examined as self representative examples in their own historical, political and legal contexts.

Featured documents

• Between 'Land Grabs' and Agricultural Investment: Land Rent Contracts with Foreign Investors and Ethiopia's Normative Setting in Focus

  This article examines whether the land rent contracts and the Ethiopian legal framework on rural land use rights can assure win-win mutual benefits expected from large-scale land transfers to foreign investors. The article further examines the challenges in the realization of the Seven Principles...

• Comment: Some thoughts on the organization of legal Practice in Ethiopia

  The art of arguing cases evolved in Ethiopia as elsewhere as a personal skill and to this day, legal service in Ethiopia is a sole practice that has not been able to organize itself into a law firm1. Lawyers have not been able to take advantage of partnership models under the Ethiopian Commercial...

• Ethiopia's Justice System Reform at Crossroads: Impediments relating to Institutional Continuity, Ethnic Politics and the Land Regime

  Ethiopia‘s Justice System Reform Program has not achieved the pledges that were promised since 2002. One of the sources for the impediments was ‗revolutionary democracy‘ because its ‗democratic‘ limb represented the pursuits of justice system reform while its ‗revolutionary‘ limb caused impediments ...

• Judicial Reform Pursuits in Ethiopia, 2002-2015: Steady Concrete Achievements - versus - Promise Fatigue

  Judicial reform constitutes a sub-program within the Justice System Reform Program (JSRP) which is underway in Ethiopia since 2002. Its targets have been consistently articulated in the 2005 Comprehensive Justice System Reform Program, the First Growth and Transformation Plan and various strategic...

• Overview of corporate governance in Ethiopia: The role, composition and remuneration of boards of directors in share companies

  Good corporate governance is an important pillar of the market economy and it enhances investor confidence. A strong and balanced board of directors is necessary as a supervising body for the executive management of a company with dispersed ownership. The Ethiopian company law does not have...

• Setting the Law Straight: Tanganyika Law Society & anor v. Tanzania and Exhaustion of Domestic Remedies before the African Court

  The rule of exhaustion of domestic remedies is an integral part of the right of individuals to bring international claim against a State. This rule is expressly required in the African Charter on Human and Peoples’ Rights and the Protocol of the African Court on Human and Peoples’ Rights....

• The Nile Basin Initiative and the Cooperative Framework Agreement: failing institutional enterprises? A Script in legal history of the Diplomatic Confront (1993?2016)

  Nearly two decades since its inception, the Transitional Mechanism of the Nile Basin Initiative (NBI) has been credited for fulfilling several components of its institutional undertaking –building an atmosphere of trust and dialogue among riparian states. Yet, the negotiations pursued under the...

• To Tax or Not To Tax: Is that Really the Question? - VAT, Bank Foreclosure Sales, and the Scope of Exemptions for Financial Services in Ethiopia

  The Ethiopian Value Added Tax of 2002 follows the standard approach of exempting financial services from VAT. Not all ‘financial services’ are, however, exempted from VAT. A number of services provided by the financial institutions are made taxable by the VAT laws of Ethiopia. No subject in this...

• Blasphemy in a Secular State:Some Reflections

  Anti-blasphemy laws have endured criticism in light of the modern, secular and democratic state system of our time. For example, Ethiopia’s criminal law provisions on blasphemous utterances, as well as on outrage to religious peace and feeling, have been maintained unaltered since they were enacted ...

• Comment: The Principle of Universal Jurisdiction for Massive Human Right Violation of the Past: An International and Ethiopian Perspective

  Confronting egregious human rights violations and repressive past is an arduous and necessary task to end the cycle of impunity. Bearing in mind Ethiopia‟s notable contribution to the peace and security in the Horn of Africa and beyond, Ethiopia and the region at large can benefit from showing...