Mizan Law Review
- St. Mary's University College
- Publication date:
- Nbr. 13-1, January 2019
- Nbr. 12-2, December 2018
- Nbr. 12-1, January 2018
- Nbr. 11-2, July 2017
- Nbr. 11-1, January 2017
- Nbr. 10-2, July 2016
- Nbr. 10-1, January 2016
- Nbr. 9-2, July 2015
- Nbr. 9-1, January 2015
- Nbr. 8-2, July 2014
- Nbr. 8-1, January 2014
- Nbr. 7-2, December 2013
- Nbr. 7-1, September 2013
- Nbr. 6-2, December 2012
- Nbr. 6-1, June 2012
- Nbr. 5-2, July 2011
- Nbr. 5-1, January 2011
- Nbr. 4-2, July 2010
- Nbr. 4-1, January 2010
- 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.
- 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.
- 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.
- Trust and Distrust Approaches in the Constitutional Lawmaking of Rural Land Rights in Ethiopia: Nature, Drafting and Implications
Although rural land rights are recognized in the 1995 Constitution of the Federal Democratic Republic of Ethiopia (FDRE), the academic discourse and policy dialogues on the issue are still underway. However, these dialogues do not comprehensively cover the provisions in the Constitution concerning rural land rights, the modus operandi in the drafting approaches of the provisions and their legal implications. Hence, by analyzing the different sections and articles of the Constitution, this article seeks to examine the extent to which rural land rights are defined in the Constitution and the legal implications of its constitutional recognition. This article examines the compatibility of the approach adopted by Ethiopian Constitution makers with the Trust and Distrust approaches propounded by Rosalind Dixon for drafting of constitutional provisions on rural land rights. Dixon‘s view is reviewed before considering it in relation with compatibility issues.
- Burdens of Proof, Presumptions and Standards of Proof in Criminal Cases
In jurisdictions that subscribe to adversarial mode of litigation, burdens and standards of proof have significant roles in the adjudication and determination of criminal cases. The operation of the principle of presumption of innocence in such jurisdictions determines issues of who bears what...
- Comment: The standards in admitting expert evidence in Ethiopia: some practical discrepancies
Judges render justice based on the presented evidence justifying their decisions. In criminal cases, these decisions can have ramifications on an individual’s right to liberty, life and property. Correctness of conviction much depends on the evidence presented to the courtroom and the...
- Examining some of the raisons d'être for the Ethiopian anti-terrorism law
There has been a proliferation of counter-terrorism legislation around the world following 9/11, a turning point in the history of counter-terrorism. Ethiopia passed its anti-terrorism law in July 2009. This law and its application have been controversial since its promulgation. A debate on several ...
- Legal and Practical Aspects of Child Custody, Visitation and Maintenance: A Case Study in SNNP Regional State
Although divorce disrupts the marital bond thereby terminating marital rights and obligations, each parent’s obligations to the wellbeing and upbringing of children (custody, visitation rights, and maintenance) persists. This article examines the practice of courts with regard to child custody,...
- Protection of the Environment and the International Salvage Convention, 1989: An Assessment
This article focuses on the International Salvage Convention and the protection of the environment in salvage operations. The article traces the evolution and history of the law of Salvage to its present status by using the UK as a case study. In essence, the article seeks to ascertain the extent...
- State Succession in International Transboundary Water Obligations: South Sudan and the Nile Water Agreements
South Sudan’s independence has raised the number of Nile riparian states to eleven, and the questions of state succession and international law discourse on the issue are expected to arise in relation to South Sudan. Some of the international legal issues that may be raised in relation to Nile...
- The Politics Underpinning the Non-realisation of the Right to Development
The right to development stands out as one of the controversial rights ever since its articulation in the 1970s. The adoption of the 1986 United Nations Declaration on the Right to Development underlines the importance of international cooperation for it to be realised. I argue that the emphasis on ...
- Trade Facilitation in Ethiopia: The Role of WTO Accession in Domestic Reform
Ethiopia is one of the countries with excessive challenges in cross border trade. The high cost of doing business across borders in Ethiopia has become a major constraint. The focus of this article is trade facilitation which requires the examination of the dynamic gains associated with lowering...
- Case Comment: Comment on the Cassation Division's Decision in File No. 80119 (Amharic)
- Comment: Theorising Nigerian Crime Problems
This comment presents an overview of criminological theories of crime and examines some contemporary crime problems in Nigeria against the backdrop of relevant theories. It also analyses society’s response to each crime problem in the form of government policies and legislation. The paper argues...