Administrative Rulemaking in Ethiopia:Normative and Institutional Framework
| Author | Aron Degol - Abdulatif Kedir |
| Position | Lecturer, St. Mary's University Faculty of Law - Lecturer, Addis Ababa University, Center for Human Rights |
| Pages | 1-28 |
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ADMINISTRATIVE RULEMAKING IN ETHIOPIA:
NORMATIVE AND INSTITUTIONAL FRAMEWORK
Aron Degol and Abdulatif Kedir ♣
Abstract
Administrative action is steadily growing in Ethiopia, the major part of which
is administrative rulemaking. It ranges from regulation of the major industries
to the provision of basic commodities like sugar and edible oil. Modern states
cannot effectively function without allowing the administrative agencies to
have such roles, subject to the caveat that the agencies should to be kept in
check by procedural stipulations and schemes. In this regard, there is gap in the
Ethiopian legal regime due to the absence of administrative procedure law. This
is a neglected subject both by the legal academia and practitioners. This article
highlights the problems associated with the gaps in administrative law in
Ethiopia and we argue that the prompt adoption of the Draft Federal
Administrative Procedure Proclamation (2004) is necessary. The meaning of
and the theoretical issues in relation to administrative legislation are discussed
followed by the basic procedures and principles that should harness discretion
and abuse of authority.
Key words
Administrative law, Administrative rulemaking, FDRE Constitution, Ethiopia.
DOI http://dx.doi.org/10.4314/mlr.v7i1.1
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Introduction
Ethiopia has pledged to have a government limited by law, i.e. the principle of
constitutionalism first through the 1991 Transitional Period Charter and then the
1995 Constitution of the Federal Democratic Republic of Ethiopia. This
inevitably envisages certain standards of government. One of the areas of
executive action that needs schemes of checks and balance is rulemaking or
administrative legislation, which owing to various theoretical and practical
reasons, allows the executive to make rules of general application.
Good governance presupposes universally accepted minimum procedures of
administrative rule making. The absence of general administrative rulemaking
♣ Aron Degol (LL.B, LL.M) Lecturer, St. Mary’s University Faculty of Law;
Abdulatif Kedir (LL.B, LL.M), Lecturer, Addis Ababa University, Center for Human
Rights
2 MIZAN LAW REVIEW Vol. 7 No.1, September 2013
procedures in Ethiopia is indeed a striking scenario in the Ethiopian executive
working environment. Another way of placing a controlling scheme on the
exercise of power by the executive is institutional control by the parliament and
courts as part of separation of powers. Moreover some watchdog institutions
like human rights commissions and the Ombudsman institutions could also have
a role.
The aim of this article is to highlight the problem associated with the absence
of adequate normative rules in the Ethiopian legal system and the gap in
institutional setup. To this end, the article starts with an introductory discussion
on the functions of administrative law and highlights some of the theoretical
objections to administrative rulemaking. The article further deals with some
fundamental principles and procedures of administrative rulemaking and the
controlling mechanisms that serve as background to the discussion of the
Ethiopian case. Moreover, discussion is made on the expedience of legislation
on general administrative procedures.
1. Definition and Functions of Administrative Law and
Administrative Rulemaking: An Overview
There is variation in the definition of administrative law and administrative
rulemaking. As the following brief discussion (on the core features of
administrative law and administrative rulemaking) indicates, this is mostly
attributable to the variation among legal systems as to what they consider to be
within the realm of administrative law.
1.1 Administrative Law
Some British jurists define administrative law narrowly while others use broad
definitions.1 Dicey observes that administrative law was unknown to British
1 For instance, Robson defined administrative law as the law of public administration;
see Robson, quoted in Upadhyaya, J.J.R., (2006), Administrative law, 6th ed., (Central
Law Agency, Allahabad, India) p. 2. Robson’s definition seems to be circular that
may have a negative impact on the clear understanding of the concept and nature of
the subject. Administrative law should be regarded as the law relating to public
administration, in the same way as commercial law consists of the law relating to
commerce, or as land law is related to land. Dr. Port, in 1929, defined Administrative
law as a branch of public law, which is made up of all those legal rules either formally
expressed by statutes or implied in the prerogative-which have as their ultimate object
the fulfillment of public law. According to Sir Ivor Jennings, Administrative law is the
law relating to Administration. Neither Port nor Jennings defined Administrative law
properly as the former described it and the later put it in a very general manner. See
Jennings, (1959), Law and the Constitution quoted in Upadhyaya, J.J.R., (2006).
Others like Albert Dicey understood it in a very narrow manner denoting only the
portion of a nation’s legal system which determines the legal status and liabilities of
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