Upgraded by Haleluya T. Belay Introduction to Law 2024.pptx

COLLEGE OF RESOURCE MANAGEMENT DEPARTMENT OF LAW Haleluya T. Belay (LL.B, LL.M, Consultant and Attorney at Federal Courts) 2024 Haleluya T. Belay(LL.B,LL.M) 1 8/5/2024

Chapter I Nature and Functions of Laws Haleluya T. Belay(LL.B,LL.M) 2 8/5/2024

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Various definitions Haleluya T. Belay(LL.B,LL.M) 4 8/5/2024

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Duhaime’s Law Dictionary “ All the rules of conduct that have been approved by the government and which are in force over a certain territory and which must be obeyed by all persons on that territory .” Haleluya T. Belay(LL.B,LL.M) 6 8/5/2024

Glanville Williams Law is the cement of society and also an essential medium of change . Cardozo A principle or rule of conduct so established as to justify a production with reasonable certainty that it will be enforced by the courts if its authority is challenged . Holmes the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law ”. Max Weber “an order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or avenge violation, and is applied by a staff of people holding themselves especially ready for that purpose” Haleluya T. Belay(LL.B,LL.M) 7 8/5/2024

Blackstone, commentaries Law is a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong. Thomas Hobbes Law is the formal glue that holds fundamentally disorganized society together John Austin Law is the command of the sovereign body in a society (which may be a person, such as a king or queen, or a body of elected officials, such as members of a Parliament’), and these commands were backed up by threats of sanctions, to be applied in the event of disobedience. Haleluya T. Belay(LL.B,LL.M) 8 8/5/2024

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Generality… Law is general It addresses the general public A single rule applies to potentially unlimited cases Rules are formed for unlimited period of time 8/5/2024 Haleluya T. Belay(LL.B,LL.M) 10

Example 2: “ Every person has the inviolable and inalienable right to life, the security of person and liberty .” [Article 14 of FDRE constitution]. Determine the extent of its generality Every person in Ethiopia. So, the extent of its generality is national. This is less general than the first example. Haleluya T. Belay(LL.B,LL.M) 11 8/5/2024

Example 3: “ Every Ethiopian national, without any discrimination based on colour, race, nation, nationality, sex, status, has the following rights… (b) On attainment of 18 years of age, to vote in accordance with the law (Article 38(1)(b) of the FDRE constitution ) Where is the extent of its generality? Ethiopian nationals who attain 18 years of age. And hence, it is less general than the second illustration. Haleluya T. Belay(LL.B,LL.M) 12 8/5/2024

Example 4 : Whoever intentionally spreads or transmits a communicable human disease is punishable with rigorous imprisonment not exceeding ten years.” [Article 514 (1) of FDRE Criminal Code]. Where is the extent of its generality? This law is made to be applicable only on a person who commits the crime. Haleluya T. Belay(LL.B,LL.M) 13 8/5/2024

Example 4: “ The term of office of the presidents shall be six years. No person shall be selected president for more than two terms” [Article 70(4) of FDRE constitution ]. Where is the extent of its generality? This law is applicable only to a person who becomes a president in Ethiopia. Hence, it is even less general than the third example. Haleluya T. Belay(LL.B,LL.M) 14 8/5/2024

Under all these illustrations, the subjects of laws are given in general terms. However, the extents of the generalities decrease from universality to an individual person. 1. Human being (More general) 2. Every person living in Ethiopian (Less general) 3. Ethiopians who attain age of majority (18yrs) Less general than 4. A person who commits the crime. (Less general) 5. A person who becomes a president in Ethiopia (less general) Haleluya T. Belay(LL.B,LL.M) 15 8/5/2024

Generality of the subject of the law may serve two purposes. Firstly, it promotes uniformity and equality before the law because any person falling under the group governed by the law will be equally treated under the same law. Secondly, it gives relative permanence to the law . Since it does not specify the names of the persons governed, the same law governs any person that falls in the subject on whom the law is made to be applicable. Haleluya T. Belay(LL.B,LL.M) 16 8/5/2024

Normativity : Law creates norms by allowing, ordering or prohibiting the social behaviour . Based on this feature, law can be classified as permissive, directive or prohibitive. Permissive Law: Permissive laws allow or permit their subjects to do the act they provide. They give right or option to their subjects whether to act or not to act. Haleluya T. Belay(LL.B,LL.M) 17 8/5/2024

In most cases permissive laws use phrases like: has/ have the right to is/are permitted/allowed to shall have the right shall be entitled to may is/are free to Haleluya T. Belay(LL.B,LL.M) 18 8/5/2024

Example; 1 . “Every person is free to think and to express his idea .” [Article 14 of The 1960 Civil Code of Ethiopia]. The human conduct to think and to express ideas is permitted by this law. Therefore, it is a permissive law. Haleluya T. Belay(LL.B,LL.M) 19 8/5/2024

Example 2 : Accused persons have the right to be informed with sufficient particulars of charge brought against them and to be given the charge in writing (Article 20/2/ of FDRE Constitution) The phrase “have the right to” shows that the subject is given the right or permitted to get the charge in writing and to be informed its particulars. Hence, it is permissive law. Haleluya T. Belay(LL.B,LL.M) 20 8/5/2024

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Prohibitive Law Prohibitive law discourages the subject from doing the act required not to be done. Should the subject does the act against the prohibition, an evil follows as the consequence of the violation. All criminal code provisions are prohibitive laws. Haleluya T. Belay(LL.B,LL.M) 24 8/5/2024

Prohibitive laws usually use phrases like: must not; shall not; should not; no one shall/should; no person shall/should; may not; is/are not permitted/allowed; is/are prohibited; is/are punishable; and is a crime. Haleluya T. Belay(LL.B,LL.M) 25 8/5/2024

Example 1: “ Any unmarried person who marries another he knows to be tied by the bond of an existing marriage is punishable with simple imprisonment.” [Article 650(2) of the 2004 Criminal Code of Ethiopia . Haleluya T. Belay(LL.B,LL.M) 26 8/5/2024

Example 2: “ Whoever intentionally spreads or transmits a communicable human disease is punishable with rigorous imprisonment not exceeding ten years.” [Article 514 (1) of FDRE Criminal Code]. Haleluya T. Belay(LL.B,LL.M) 27 8/5/2024

C. Sanction : IT is a penalty or coercive measure that results from failure to comply a law. Each and every member of a society is required to follow the law. Where there is violation the law sanction would follow. Haleluya T. Belay(LL.B,LL.M) 28 8/5/2024

Sanction will make the wrong doer to think that s/he made a fault and s/he should correct it. Objectives of sanction from criminal law perspective; Deterrence, rehabilitation, incapacitation Haleluya T. Belay(LL.B,LL.M) 29 8/5/2024

Proponents of this theory argue that there are two kinds of law that govern social relations. These laws are :- Man made laws :- are made by persons to control the relations within a society and so it may vary from society to society and also from time to tome within a society are called positive laws. Natural laws :-are laws which are not made by person but controls all human beings of the world. Such laws do not vary from place to place and from time to time and even used to control or weigh the laws made by human beings. It is called by different names . Such as :-law of reason, eternal law, rational law, and principles of natural justice. Haleluya T. Belay(LL.B,LL.M) 30 8/5/2024

Natural law theory presupposes that the legitimacy of conventional, or positive, law derives from natural law; and whenever it conflicts with natural law, conventional law loses its legitimacy and should be changed Haleluya T. Belay(LL.B,LL.M) 31 8/5/2024

Influence of the theory The Romans used it to develop their laws as jus civile , laws governing roman citizens, and jus gentium , laws governing all their colonies and foreigners. Dictatorship of Catholic Pope in Europe during the middle age Rousseau’s teachings of individual’s right to equality, life , liberty, and security were based on natural law How about the 1931 and 1955 constitution?? Haleluya T. Belay(LL.B,LL.M) 32 8/5/2024

Criticism Unless natural law is promulgated as a law, it does not carry the force of law and would not be enforceable. At best, it would be considered as a moral rule . Haleluya T. Belay(LL.B,LL.M) 33 8/5/2024

It has the belief that law is the rule made and enforced by the sovereign body of the state and there is no need to use reason, morality, or justice to determine the validity of law. Law is a rules made by the sovereign irrespective of any other considerations. According to this theory there can be no higher law than a nation’s positive law. The followers of this theory include Austin, Bentham and H.L.A Hart. Haleluya T. Belay(LL.B,LL.M) 34 8/5/2024

According to proponent of this theory, Law has three elements in it These are Command : rule given by the sovereign to the subjects or people under the rule of the sovereign. Sovereign : refers to a person or a group of persons demanding obedience in the state Sanction : Sanction is the evil that follows violations of the rule. Haleluya T. Belay(LL.B,LL.M) 35 8/5/2024

Criticism All laws are not commands: (Ex. Law of Family, Law of Contract) The law concerning marriage, for example, never commands us to marry, the law does not command us to make contracts, Law is defined in relation to state. However, Law predate state and it can exit in the absence of state. For example, primitive laws Haleluya T. Belay(LL.B,LL.M) 36 8/5/2024

Law is not always obeyed because of sanction. Sometimes the law is obeyed without sanction. It is superficial to regard the command of the sovereign as the real source of the validity of law. Haleluya T. Belay(LL.B,LL.M) 37 8/5/2024

Private property is considered as the base for the coming into existence of law and state. Property as the cause for creation of classes in the society Those who have the means of production can exploit those who do not have these means by making laws to protect the private property. theory law is an instrument to protect private property Haleluya T. Belay(LL.B,LL.M) 38 8/5/2024

Marxist theory of law Marxists believe that private property is the basis for the coming into existence of law and state. They provide that property was the cause for creation of classes in the society in which those who have the means of production can exploit those who do not have by making laws to protect private property . Haleluya T. Belay(LL.B,LL.M) 39 8/5/2024

Con’d … They base their arguments on the fact that there was neither law nor state in primitive society for there was no private property. The theory has the assumption that people can attain a perfect equality at the communism stage in which there would be no private property, no state and no law though it is yet no attained. Haleluya T. Belay(LL.B,LL.M) 40 8/5/2024

Con’d … The Marxists define law as an instrument of the economically dominant group in a class society to perpetuate its dominance. They believe that law emerged with the emergence of state to serve the interest of the economically upper class. The Marxists like the positivists and Realists agree that law is man made. It is with the coming of the system of private property that class societies( Law) come in to existence and it will disappear in the future when classless society emerge at communism stage of the evolution of society. Haleluya T. Belay(LL.B,LL.M) 41 8/5/2024

Law is what the judge decides in court. According to this theory, rules not put to use to solve practical cases are not laws but merely existing as dead words and these dead words of law get life only when applied in reality. It is the decision given by the judge but not the legislators that is considered as law . This theory has its basis in the common law legal system. Haleluya T. Belay(LL.B,LL.M) 42 8/5/2024

5. Sociological legal theory Sociological School : Unlike the Historical School that conceives a nation’s law as tied to the primitive consciousness of its people , sociological conception of law locate the law in the present-day institutions of its society. The proponents of sociological jurisprudence seek to view law within a broad social context rather than as an isolated phenomenon distinct from and independent of other means of social control . The sociological questions in jurisprudence are concerned with the actual effects of the law upon the complex of attitudes, behavior, organization, environment, skills, and powers involved in the maintenance of a particular society. They are also concerned with the practical improvement of the legal system and feel that this can be achieved only if legislation and court adjudications take into account the findings of other branches of learning, particularly the social sciences . Haleluya T. Belay(LL.B,LL.M) 43 8/5/2024

6. Historical legal theory Historical School: this school of jurisprudence views law as an evolutionary process and concentrates on the origin and history of the legal system . The law of a nation, like its language, originates in the popular spirit , the common conviction of right , and has already attained a fixed character, peculiar to that people , before the earliest time to which authentic history extends. In this prehistoric period the laws, language, manners and political constitution of a people are inseparably united and they are the particular faculties and tendencies of an individual people bound together by their kindred consciousness of inward necessity. Haleluya T. Belay(LL.B,LL.M) 44 8/5/2024

Modern sense about its function?: Law as a means than an end in itself What is that end? = Social Justice Most scholars agree on the function of law in securing justice Haleluya T. Belay(LL.B,LL.M) 45 8/5/2024

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The main objective of the law? ensure justice! Distributive Vs Corrective Justice. Distributive justice: It seeks to ensure fair distribution of social benefits and burden among the members of the community . Corrective justice: It seeks to remedy the wrong. Thus if a person wrongfully takes possession of another’s property, the court shall direct the former to restore it to the latter. Haleluya T. Belay(LL.B,LL.M) 48 8/5/2024

Social Control: members of the society may have different social values, various behaviours and interests. These social values, various behaviours and interests must be controlled How law control them? It clearly specifies rules and norms that are essential for the society and punishes deviant behaviour Haleluya T. Belay(LL.B,LL.M) 49 8/5/2024

The legal system carries out many rules of social control. Police, prosecutor, courts, prison administration are institutions of enforcement. Haleluya T. Belay(LL.B,LL.M) 50 8/5/2024

Dispute Settlement: Disputes are unavoidable in the life of society and it is the role of the law to settle disputes. Disagreements that are justiciable will be resolved by law in court or out of court using alternative dispute settlement mechanisms. Haleluya T. Belay(LL.B,LL.M) 51 8/5/2024

C. Social Change: Law enables us to have purposive, planned, and directed social change. Haleluya T. Belay(LL.B,LL.M) 52 8/5/2024

The Difference between Law and Other Social Norms What is Norm? “ It is a model or standard accepted (voluntarily or involuntarily) by society or other large group, against which society judges someone or something” ( Black’s Law Dictionary) Law is a social norm but not the only one . There are also other values of normative significance in a society. These may include ethics , morality , culture, religion , and e.tc... Haleluya T. Belay(LL.B,LL.M) 53 8/5/2024

The difference between law and other social norms Law is backed by a strong sanction of the state and would be institutionally enforced but other social norms lack such external and effective enforcement mechanism . In scope and application , law enjoys uniform and nationwide application . But other social norms are peculiar to particular groups , and therefore, suffer from extremely localized (restricted) application. Haleluya T. Belay(LL.B,LL.M) 54 8/5/2024

Law originates from a centrally established and clearly defined institutional framework. Law would be exhaustively proclaimed (mostly written) and sufficiently clear. Normative rules of ethics, morality, or religion are, on the other hand, barely exhaustive and known for their manifest lack of clarity. Non-legal norms, on the other hand, do not normally have an easily traceable institutional origin for they are not made in an organized way . They come into existence through a practice by a concerned group over a relatively longer time in a scattered and un-centralized manner . Haleluya T. Belay(LL.B,LL.M) 55 8/5/2024

Relationship between other social Norms and the Law Some social norms stand as the fundamental basis for the ideal set of laws Both are normative Both aim at uplifting moral standards of the people . Haleluya T. Belay(LL.B,LL.M) 56 8/5/2024

Control Questions II 1. Define ethics 2. Define morality 3. Explain the; Differences between ethics and morality Similarities between ethics and morality Differences between law and ethics Similarities between law and ethics Differences between law and morality Similarities between law and morality Haleluya T. Belay(LL.B,LL.M) 57 8/5/2024

Reading Assignment: The relationship between law and state Haleluya T. Belay(LL.B,LL.M) 58 8/5/2024

Chapter II Major Legal Systems of the World Haleluya T. Belay(LL.B,LL.M) 59 8/5/2024

System of legal process , legal rules, legal institutions , legal profession , legal principles . It exists and is identified with its content and structure with desirable autonomy in any society for its objectives. Haleluya T. Belay(LL.B,LL.M) 60 8/5/2024

Major legal systems The legal ‘system’ describes the law and the machinery provided for adjudication and implementation . Major legal systems of the world Anglo-American legal system The Civil law legal system Socialist legal system Haleluya T. Belay(LL.B,LL.M) 61 8/5/2024

Common Law Legal System (Anglo-American Legal System) A system of law that is originated from the judgments of judges . The system has its roots in developments in England in the 11 th century. In common law systems, legal principles are to be found in the decisions of judges adjudicating in individual cases . Haleluya T. Belay(LL.B,LL.M) 62 8/5/2024

The common law systems operate on the basis of ‘binding precedent’ so that judges in a particular case must follow the decisions of judges in earlier similar cases. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and law reports . Haleluya T. Belay(LL.B,LL.M) 63 8/5/2024

The precedents to be applied in the decision of each new case are determined by the presiding judge . Haleluya T. Belay(LL.B,LL.M) 64 8/5/2024

Con’d … Key features No written or codified law . Judicial decisions are binding and decisions of the highest court can only be overturned by the same court or through legislation . Haleluya T. Belay(LL.B,LL.M) 65 8/5/2024

Civil Law (Continental Legal System) It is a system of law whereby the rules and principles intended to govern the behaviours of the society are given by the Parliament (the legislature). The origin of ‘Continental Legal System’ can be traced to the old age Roman Empire of the 5th century A.D during whose time many rules and regulations were compiled and were called ‘Code’. Haleluya T. Belay(LL.B,LL.M) 66 8/5/2024

A key distinguishing feature of civil law is that it is a ‘codified’ system . Jurisdictions with civil law systems have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure and the appropriate punishment for each offence. Haleluya T. Belay(LL.B,LL.M) 67 8/5/2024

In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. The judge’s decision is less crucial in shaping civil law than the decisions of legislators and legal scholars who draft and interpret the codes. Haleluya T. Belay(LL.B,LL.M) 68 8/5/2024

Key features Codified system of law Only legislative enactments are considered binding for all Little scope for judge-made law, although judges generally follow precedent There are constitutional courts that can nullify laws and the decisions of which are binding. Haleluya T. Belay(LL.B,LL.M) 69 8/5/2024

Common Law Vs Civil Law Law Makers Common Law System: The main creators of the common law are the judiciary . While deciding cases, judges lay down the law. Civil-law systems: the law is made by the legislative branch through formal law-making process Legislation Common law System: Basic principles are not enacted and rules are found in official fact patterns & decisions of prior cases . Civil law system: rules are found in codified texts Haleluya T. Belay(LL.B,LL.M) 70 8/5/2024

….. Precedent Civil law system: decisions in individual cases and the opinions handed down by courts in particular lawsuits never have the force of law . Common-law system: the judgments rendered by the High Courts and Supreme Court (or the Superior Courts) enjoy authority and powerful position . Those judgments have to be obeyed by the lower Courts and Tribunals in a similar case as the decisions of higher courts enjoy authoritative power in law. Haleluya T. Belay(LL.B,LL.M) 71 8/5/2024

Con’d … Fact : Common law system: Facts are gathered by the Jury . Civil-law systems: The task of fact finding is left to a professional judge . Haleluya T. Belay(LL.B,LL.M) 72 8/5/2024

Con’d … Structure: In common-law countries: The legal system is not organized in a coherent and clear structure . Its development tends to be incremental and pragmatic , and it is not easy for the civil lawyer to approach. In Civil Law Countries: Civil lawyers lay great emphasis on system and structure . Furthermore, they tend to follow similar patterns in their organization of legal topics, and once these are understood it is relatively simple to locate the law on any given topic . Haleluya T. Belay(LL.B,LL.M) 73 8/5/2024

Merits and demerits of the two legal systems Common law Judiciary law is easier to understand It is formulated by those who have experience Actual concrete problem is solved To interpret it, we focus on words rather than intention of legislature Come only after the dispute arise It can be never complete since it is ex post facto law No test of validity Haleluya T. Belay(LL.B,LL.M) 74 8/5/2024

Civil Law Statute law is direct and unambiguous Concise and definite Apply for cases before hand unlike ex post facto law Relatively complex and bulky Haleluya T. Belay(LL.B,LL.M) 75 8/5/2024

Con’d … What about Ethiopian legal system? As a principle : statutory laws, codes and other legislations serve as a law And in principle, courts in Ethiopia have no power to make law (only apply law), lower courts are not obliged by decisions of higher courts. Haleluya T. Belay(LL.B,LL.M) 76 8/5/2024

Con’d … Exception : Proc. No 1234/2021, art 26(1)&3 … the cassation division shall sit with not less than five(5) judges . See Art. 25(2). Art 26(1): The cassation division presided by five judges may, by its own initiation or by a petition filed by one of the litigant parties, direct the case to be heard by a cassation division comprising of not less than seven judges by giving clear and sufficient reasons where changing the previous legal interpretation is so necessary . The president shall order that the case be heard by a cassation division presided by not less than seven judges , where a request has been made in accordance with Art 26(1). Art 26(2). Interpretation of law rendered by the cassation division pursuant to Art 26(1) shall be binding on all level of Federal and Regional Courts from the date of the decision rendered. Art 26(3). The rationale for this arrangement is to bring uniform system and application of the law. Haleluya T. Belay(LL.B,LL.M) 77 8/5/2024

Chapter III Sources of Law Haleluya T. Belay(LL.B,LL.M) 78 8/5/2024

Source of Law? No common definition about the term Definition of source of law by various scholars C.K Allen “ Agencies through which the rule of conduct acquire the character of law by becoming definite, uniform and compulsory” Haleluya T. Belay(LL.B,LL.M) 79 8/5/2024

Con’d … Oppenheim “ the name for historical fact out of which the rules of conduct came in to existence and acquire legal force ” Keeton “ The material out of which is eventually fashioned through the activity of judges” Generally source of law refers to the origin from which rules of human conduct came in to existence . Haleluya T. Belay(LL.B,LL.M) 80 8/5/2024

Con’d … Sources?? from where law or the binding rules of human conduct originate. From where (Source)?? See the following claims Austin considers sovereign as the source of law Savigny and Henry Maine consider custom as the most important source of law Natural law school considers nature and human reason as the source of law, Theologians consider the religious scripts as sources of law. Haleluya T. Belay(LL.B,LL.M) 81 8/5/2024

sources of law In legal research, the term ‘ sources of law ’ can refer to different concepts. (1) it can refer to the origins of legal concepts and ideas ( material sources of law ). (2) it can also refer to governmental institutions that formulate legal rules . ( formal source of law ). (3) it may also refer to the textual context in which the law is found ( literary source of law ) Generally there are three types of sources: Formal , Material and literary(textual) sources of law. Haleluya T. Belay(LL.B,LL.M) 82 8/5/2024

Types of sources Formal Vs Material Sources of Law Formal Source of Law: It is a source from which law derives its validity and force It is the will of the State which is express through statutes and judicial decisions . A source which confers binding authority on a rule and converts the rule into law. Haleluya T. Belay(LL.B,LL.M) 83 8/5/2024

Con’d … Material sources of law The material sources of law are those which give the matter or content of law. Material sources deal with the substance, elements or constituent material of law. Material sources of law tell us what is contained in the law. Sources where we can get information about the law It refers to the source ,material or input, which is used to make the law. Legislations of other countries, religious doctrines, customary practices, are examples of material sources of law. Haleluya T. Belay(LL.B,LL.M) 84 8/5/2024

Con’d … Types of material Sources of Law: The constitution, proclamations, regulation, directives Judicial Precedents (court decisions) Customs Writings of Jurists (books and journals on law) Religious Rules (The Bible, The Koran,) art 34(5) FDRE, 1(2) and 26(1) family … . Rules of public morality: art 2030(1) of the Civil Code Haleluya T. Belay(LL.B,LL.M) 85 8/5/2024

Con’d … Material sources can be; Legal material sources Historical material sources Haleluya T. Belay(LL.B,LL.M) 86 8/5/2024

What are historical sources? Sources that express the history or evolution of law and the circumstances through which it attained the form of law. These sources are un-authoritative , and have only persuasive value . Historical Sources may become legal if they are recognized by law. Haleluya T. Belay(LL.B,LL.M) 87 8/5/2024

What are legal material sources? Those Sources which are the instruments or organs of the State by which legal rules are created. They are binding (Have authoritative value) Legal material sources can be; Custom, Legislations, International Agreement, Decisions of courts (Precedents) Haleluya T. Belay(LL.B,LL.M) 88 8/5/2024

Custom as a source of Law What is Custom? “A continuing course of conduct which by the acquiescence or express approval of the community observing it , has come to be regarded as fixing the norm of conduct for members as society.” Haleluya T. Belay(LL.B,LL.M) 89 8/5/2024

Con’d … “ It is rules of human action , established by usage and regarded as legally binding by those to whom the rules are applicable, which are adopted by court and applied as a source of law because they are generally followed by the political society ” Prof. Keeton Haleluya T. Belay(LL.B,LL.M) 90 8/5/2024

Requirements for custom to be recognized as a law Reasonableness : It should not be against the principles of justice, equity and good conscience. Consistency : It should be in harmony with the law of the land (Morality and legality). If not? Null and void Continuity : Must have been practiced for a very long time Certainty : The existence and continuity of custom must be proved beyond doubt Haleluya T. Belay(LL.B,LL.M) 91 8/5/2024

The place of custom under Ethiopian Laws Any law or customary practice that contravenes the FDRE Constitution shall be of no effect (Art 9(1) of the FDRE Constitution). There are a number of c ustomary practice recognized under various Ethiopian laws (Ex on family, dispute resolution.. e.t.c ..) Haleluya T. Belay(LL.B,LL.M) 92 8/5/2024

Religion as a source of law Religion contributed significant share to the growth of legal system in most part of the world ( Ex. Ancient Greece and Roman Laws ) Islamic law ( Sharia ): A religious law forming part of Islamic tradition Sources of Sheria : Qura’an and Hadith ( Sunnah- ሱና ), Qiyas (Analogy) and Ijma (Consensus) Haleluya T. Belay(LL.B,LL.M) 93 8/5/2024

Con’d … Influence on secular law: Official rule in most middle east countries (Ex. Saudi Arabia) and some part of far east and Africa Scope of Sheria Law: Almost all norms that regulate human conducts (Rules on Crime and punishment, Marriage, Succession, Contract… e.t.c ) Haleluya T. Belay(LL.B,LL.M) 94 8/5/2024

Con’d … Christianity It served as an important source of many modern laws In Ethiopia: Major source of Fitha Negest ( ፍትሐነገስት )- አንብቡ-አባ ፓውሎስ ጸዳሉ ፡፡ It is a literal translation of a well-known Coptic “ nomocanon ” originally written in Arabic, The author of the nomocanon is the Coptic Christian scholar, ( saff abul ibn al Assal ) who lived during the first half of the 13 th century Haleluya T. Belay(LL.B,LL.M) 95 8/5/2024

The place of religious laws in Ethiopia The FDRE Constitution: It permits the adjudication of family and private disputes according to the rules of religion(Art. 34(5) of the Constitution). It is also recognized that marriage concluded pursuant to the rules of religion as one type of marriage under our law (Art. 579 of the Civil Code and Art. 3 and 26 of RFC). Haleluya T. Belay(LL.B,LL.M) 96 8/5/2024

Con’d … Some principles of Christianity are incorporated under Ethiopian laws Civil Code: On family: one to one marriage Criminal code: Prohibition of bigamy (See art. 650) The Law recognized Sharia courts The courts have jurisdiction any question regarding marriage, divorce, maintenance, guardianship of minors and family relations. (Article 4 of Sheria courts establishment proclamation) Haleluya T. Belay(LL.B,LL.M) 97 8/5/2024

Legislations as a source of Law Legislation is that source of law, which consists in the declaration of legal rules by competent authority . A law passed by the supreme or subordinate legislatures. Why legislation as a source? It involves lying down of legal rules by the legislatures, which the State recognises as law. It has the force and authority of the State. Haleluya T. Belay(LL.B,LL.M) 98 8/5/2024

Types of legislations Primary legislations: laws that are directly enacted by the sovereign. Secondary legislations: laws made by authorities subordinate to the maker of primary legislations. Haleluya T. Belay(LL.B,LL.M) 99 8/5/2024

Federal Vs Regional Laws The FDRE constitution allocate legislative power to the federal and regional governments Federal laws Art. 55 Criminal law Federal family law Regional laws Art. 52 Regional family law Haleluya T. Belay(LL.B,LL.M) 100 8/5/2024

Precedent as a source of Law Judicial precedent refers to previously decided judgments of the superior courts, which judges are bound to follow. The doctrine of stare decisis Stare decisis ?? Literally it means “let the decision stand in its rightful place.” According to this doctrine, when a decision of higher courts contains a new principle, it is binding on subordinates courts and has persuasive authority for equivalent courts. Haleluya T. Belay(LL.B,LL.M) 101 8/5/2024

Principles of stare decisis Each court is absolutely bound by the decisions of the courts above it. To a certain extent, higher courts are bound by their own decisions. The decision of one High Court is not binding on another High Court and it has only a persuasive value . A single Bench Judge is bound by the decision of a Division Bench of the same High Court but a Division Bench is not bound to follow a decision of a Single Bench (judge) of the same High Court. Haleluya T. Belay(LL.B,LL.M) 102 8/5/2024

Decisions of courts as a source of law in Ethiopia The Supreme Court Cassation division is empowered to render a decision that is binding on federal as well as regional council at all levels [See Art. 25(2),26,27&28 of Proc. No. 1234/2013 A decision to be binding must be rendered by the cassation division of the Supreme Court; The members of judges must not be less than five ; Haleluya T. Belay(LL.B,LL.M) 103 8/5/2024

Con’d … The cassation division presided by five judges may , by its own motion or by a petition filed by one of the litigant parties , directed the case to be heard by a cassation division comprising of not less than seven judges by giving clear and sufficient reasons where changing the previous legal interpretation is so necessary-Art 26/1/ of proc. 1234/2023 Haleluya T. Belay(LL.B,LL.M) 104 8/5/2024

Con’d … The decision should be with regard to interpretation of laws In interpreting laws, the Supreme Court cassation division will create rules (laws). Generally, the decision of the cassation division is a source of laws in Ethiopia so long as the requirements are fulfilled . Haleluya T. Belay(LL.B,LL.M) 105 8/5/2024

International agreements as a source of law International agreements?? Treaties Treaties?? BIT or MT The place of international agreement under Ethiopian system All agreements ratified by Ethiopia are integral parts of law of the land (FDRE constitution) Haleluya T. Belay(LL.B,LL.M) 106 8/5/2024

Constitution is: a supreme law of the land principal legal framework of a country Its validity is accredited to the highest possible (supreme) authority of a country---The People. The making of constitution is not as simple as the making of ordinary legislations . It provides umbrella legal framework by which other subordinate laws are made Haleluya T. Belay(LL.B,LL.M) 107 8/5/2024

Constitution as a source… FDRE constitution as a source of Law As a source of Human right Laws : Provisions on Human Rights enshrined under the constitution: Chapter III (See artcle.13 - 44) As a source of Family Law : equality of both sexes with regard to ‘marital, personal and family rights’ (See article 34 ) As a source of criminal Law: Example; arrested persons have the right to be released on bail (See article 19(6)). Discretion is given to courts based on specific laws Haleluya T. Belay(LL.B,LL.M) 108 8/5/2024

Constitution as a source… Detail provisions are provided under relevant criminal procedure laws. For instance, See; Article 63 – 79 of criminal procedure Code Articles 4 and 5 of the Revised Anti-Corruption Special Procedure and Rules of Evidence Proclamation No 434/2005 as amended by Proclamation No. 882/2015. Haleluya T. Belay(LL.B,LL.M) 109 8/5/2024

Constitution as a source… As per art. 67 of the CPC , the court may not allow a person on bail where the suspect or the accused, if released on bail, is likely to abscond ; is likely to tamper with evidence or commit other offences Haleluya T. Belay(LL.B,LL.M) 110 8/5/2024

Formal Source It is the will of state manifested in statutes or decisions of the courts of law . It includes law making authority, procedure through which law shall pass before it comes into existence and constitutional validity. Elements of formal sources : Sovereignty, procedural values, and constitutional values of a law that derives its validity 1.Sovereignty: Supremacy of state to make laws, Haleluya T. Belay(LL.B,LL.M) 111 8/5/2024

Con’d … 2.Procedural validity : There are procedures a particular draft of law should pass through in order to get its binding force. Basic law making process: Initiation-deliberation -approval-publication In the Ethiopian Context? Haleluya T. Belay(LL.B,LL.M) 112 8/5/2024

Con’d … 3.Substantive validity : Every law shall be in harmony with the rules and principles enshrined under the Constitution. If not?? It has no effect See Article 9(1) of the Constitution: A law that contravenes the Constitution shall be of no effect. Haleluya T. Belay(LL.B,LL.M) 113 8/5/2024

Chapter IV Classification of Laws Haleluya T. Belay(LL.B,LL.M) 114 8/5/2024

Classification? A shaping and developing of traditional systematic conceptions and traditional systematic categories in order to organize the body of legal precepts. Importance of classification Laws can be stated effectively with a minimum of repetition, over lapping and potential conflict ; Laws can be administered effectively; Laws can be taught effectively, and developed effectively for new situations Haleluya T. Belay(LL.B,LL.M) 115 8/5/2024

Classifications… Laws can be classified as Public and Private International and National Substantive and Procedural Civil and Criminal Civil vs. commercial Haleluya T. Belay(LL.B,LL.M) 116 8/5/2024

Public Vs Private Laws A. Public law: Body of law directly concerned with public rights and obligations . It regulates the acts of persons who act in the general interest ; and specifically, it regulate the relations between Individuals and state Different institutions within state Different branches of government Haleluya T. Belay(LL.B,LL.M) 117 8/5/2024

Public Vs Private… Main areas of public law: Constitutional law, Administrative Law, Criminal Law, Tax Law Constitutional Law : Supreme law of the land which defines the organization of the state, its fundamental rules, mode of government, and the attributions of its political organs, their limits and their relations. Basic feature of constitution? Haleluya T. Belay(LL.B,LL.M) 118 8/5/2024

Public Vs Private… Administrative Law: A body of law which regulates the operation of the executive power in all its degrees, beginning with cabinet ministers and descending to its most humble representatives It deals with the decision making of administrative agencies that are part of executive branches of the government. Haleluya T. Belay(LL.B,LL.M) 119 8/5/2024

Public Vs Private… Criminal Law: It is a body of law which deals with behavior that is or can be construed as an offense against the public, society or the state It defines criminal offences, regulate the apprehension, charging, and trial of suspects, and prescribe penalties and modes of treatments applicable to arrested persons. Haleluya T. Belay(LL.B,LL.M) 120 8/5/2024

Public Vs Private… B . Private law: Body of law regulating the rights and duties existing between private persons . Examples of private law include: contract law, sales law, property law, agency law, insurance law etc .... Haleluya T. Belay(LL.B,LL.M) 121 8/5/2024

International Vs National Laws A. International Law : A set of rules and standards generally recognized as binding between nations It establishes normative guideline and a common conceptual framework for states across a broad range of domains, including war, diplomacy, trade, and human rights Haleluya T. Belay(LL.B,LL.M) 122 8/5/2024

International Vs National Laws “ The body of customary and conventional rules which are considered legally binding by civilised States in their intercourse with each other .” (Oppenheim) It is a species of conventional law and has its source in international agreements. Scholars such as John Austin consider international law as positive morality and do not agree that it is law properly so-called. Why? Haleluya T. Belay(LL.B,LL.M) 123 8/5/2024

International Vs National Laws It is not enforced by a political sovereign authority, it is not law. Criticism against international Law It has no effective authority to enforce its rules The sanctions are very weak It has failed to maintain peace and order in the world Haleluya T. Belay(LL.B,LL.M) 124 8/5/2024

International Vs National Laws International law is classified into public international law and private international law. Public international law: It regulates the relation between states. For example the relations between Ethiopia and Sudan are governed by public international law. Examples: UN Charter, UDHR, International Law of Sea, International Law of Aviation..... Haleluya T. Belay(LL.B,LL.M) 125 8/5/2024

International Vs National Laws Private international law : It governs the relations between individuals of different nationalities. Examples: EU contract law, CISG.... Haleluya T. Belay(LL.B,LL.M) 126 8/5/2024

International Vs National Laws B. National Law : is a law that pertains to a particular nation Application of national law is territorial Examples: All domestic laws of a given jurisdictions fall within this category Haleluya T. Belay(LL.B,LL.M) 127 8/5/2024

Substantive Vs Procedural Laws A. Substantive Law : General principles and detailed rules defining legal rights and duties. Examples of substantive rules; Definition of minor: “a person below the age of legal competence. For most purposes, in most states, minority ends at age 18.” One cannot pass a better right than he or she has . Haleluya T. Belay(LL.B,LL.M) 128 8/5/2024

Substantive Vs Procedural Laws Civil Code, Criminal Code, and Commercial Codes are examples of substantive laws Haleluya T. Belay(LL.B,LL.M) 129 8/5/2024

Substantive Vs Procedural Laws B. Procedural law: General principles and detailed rules that define the methods of administering the substantive law. Examples : Rules of evidence such as the hearsay rule Civil Procedure, criminal procedure and law of evidence. Method of filing a lawsuit such as the requirement of a complaint and service of summons Haleluya T. Belay(LL.B,LL.M) 130 8/5/2024

Civil Vs Criminal Laws A. Criminal law : Body of law dealing with crimes and their punishment . It concerns duties which individuals owe to the state. Usually leads to punishment Haleluya T. Belay(LL.B,LL.M) 131 8/5/2024

CHAPTER V LAW MAKING PROCESS Haleluya T. Belay(LL.B,LL.M) 132 8/5/2024

Separation of Power An absolute state with absolute power is bad for the people The power of the state is therefore divided into three organs State Legislature Executive Judiciary 8/5/2024 Haleluya T. Belay(LL.B,LL.M) 133

Con’d … The Legislature is the parliament, and its power is to make laws , approve budgets,.. Executive branch is the one with the task of enforcing and implementing the laws for which the prime minister and his cabinet ministers constitute this branch. The Judiciary is the court . It interprets the laws and gives decisions in the event of disagreements. Haleluya T. Belay(LL.B,LL.M) 134 8/5/2024

Con’d … What is law making? It is the process of establishing a new rule of law on a particular subject. It is a process during which an idea of a law is transformed into a law . Usually, it involves steps such as Initiation , Deliberation , Adoption , and Promulgation. Haleluya T. Belay(LL.B,LL.M) 135 8/5/2024

Con’d … 1. Initiation of Bill It is the stage at which the legislative machinery would be set in motion and the whole legislative processes begin . It include submission of draft laws for consideration by the legislator for enactment . Who initiate?: It depends on the form of a government in particular country (Presidential, Parliamentary) Haleluya T. Belay(LL.B,LL.M) 136 8/5/2024

Con’d … In Parliamentary system: Both the legislator and the executive may initiate bills Separation of power?? Not really In presidential system: The executive has very slim power to initiate bills There is clear separation of power between the law maker and the executive, and hence, Bills are usually initiated by the legislator Haleluya T. Belay(LL.B,LL.M) 137 8/5/2024

Con’d … Initiation by bodies other than the executive and legislative organs Initiation by Presidium in Albania, Hungary and the U.S.S.R, Initiation by the Council of State in Poland and Romania Initiation by the Presidential Bureau in Czechoslovakia Haleluya T. Belay(LL.B,LL.M) 138 8/5/2024

Con’d … Initiation by the national council on the economy and on labour in Italy Initiation by Church in United Kingdom, Finland and Sweden 2. Submission of the bill to the legislator Screening before distribution of the bill to members of the law maker Haleluya T. Belay(LL.B,LL.M) 139 8/5/2024

Con’d … Experience of some countries United Arab Republic: bills must first be submitted to the committee whose duty is to prepare proposals and decide goes forward . France: bills shall be examined by talented individual members before publication Yugoslavia: before any debate takes place, every bill shall be checked by the Assembly’s legislative and judicial committee Haleluya T. Belay(LL.B,LL.M) 140 8/5/2024

Con’d … 3. The parliament referrers the bill to committees Italy: Chambers may entrust to committees not merely the examination of bills, but also their final enactment Senegal: Committees are authorized to make law when this power is expressly delegated to them by the Assembly Haleluya T. Belay(LL.B,LL.M) 141 8/5/2024

Con’d … In several countries Parliament may decide to debate a bill in the House without referring it to a committee . For instance; if bills are urgently needed. Haleluya T. Belay(LL.B,LL.M) 142 8/5/2024

Con’d … 4. Deliberation 5.Promulgation : The passing of a bill by the legislature. Promulgation authenticates a bill as a law and gives it binding force. Haleluya T. Belay(LL.B,LL.M) 143 8/5/2024

COMPARATIVE STUDY OF LAW MAKING PROCESS IN ETHIOPIA 1. HAILE SELASSIE’S ERA There were four major types of law (Orders, Proclamations, Decrees and Legal Notices) Orders , Proclamations and Decrees are Primary Legislation Order: A prerogative of the emperor (Article 27 of the Constitution of 1955) Purpose of Order: to determine the organization, powers and duties of all ministries, executive departments and the administration of the government . Haleluya T. Belay(LL.B,LL.M) 144 8/5/2024

HAILE SELASSIE.. Proclamation: It is passed by Parliament and approved by the Emperor Decree: Primary legislation promulgated by the emperor Condition for Decree? “ in cases of emergency that arise when the Chambers are not sitting ”. Legal Notice: It is subordinate legislation issued by various government officials. Purpose of legal notice: it is used mainly for the publication of Rules and Regulations , and Municipal Law Haleluya T. Belay(LL.B,LL.M) 145 8/5/2024

HAILE SELASSIE.. Publication of Laws The Negarit Gazata ( Gazeta ( ነጋሪት ጋዜጣ ) is the official legislative, executive and administrative Law Reporter of Ethiopia. First issued on March 30, 1942 (Written in Amharic & English). Occasionally, a law published in the Negarit Gazata contained a specific provision naming a later date at which time the law will become effective. Haleluya T. Belay(LL.B,LL.M) 146 8/5/2024

HAILE SELASSIE.. Proclamations, Decrees, Orders and Legal Notices used to appear in the Negarit Gazeta under their generic name, number and year they were so cited. For example: Decree No. 42 of 1962 Legal Notice No 257 of 1962 Laws were published in the Negarit Gazeta in strict chronological order Haleluya T. Belay(LL.B,LL.M) 147 8/5/2024

HAILE SELASSIE.. Law making under The 1955 constitution There were two types of laws (Primary and subordinate) made at two different levels. Primary legislations (Proclamation, Decrees and Order), which were the result of the legislative activities of the supreme organs of state power of the Empire The sources of primary legislations were the Emperor and Parliament. Haleluya T. Belay(LL.B,LL.M) 148 8/5/2024

HAILE SELASSIE.. The Emperor used to be constitutionally empowered to issue Orders and Decrees The Parliament has the authority to issue Proclamations Subordinate legislations, which were enacted by organs of authority, delegated to them by the supreme organs of state power. Haleluya T. Belay(LL.B,LL.M) 149 8/5/2024

HAILE SELASSIE.. Initiation of order By emperor and by specific government body 1.By emperor: The Emperor himself could unilaterally initiate and subsequently issue them whenever he saw it fit to do so. 2.By government body: A governmental body would submit draft bill to the Council of Ministers If approved, it would passes to the Emperor for enactment or shelving as the case may be. Haleluya T. Belay(LL.B,LL.M) 150 8/5/2024

HAILE SELASSIE.. Initiation of proclamation ( By the two chambers of parliament and by government body) 1.By the two chambers of parliament Must be approved by majority approval in the Chamber it was initiated in It would be transferred to the other chamber where it was again subjected to discussions and a vote. After approval in the second chamber , it shall be submitted to the Emperor for approval Haleluya T. Belay(LL.B,LL.M) 151 8/5/2024

HAILE SELASSIE.. 2.By government body interested in having a law passed Draft bill shall be submitted to the council of Ministers From council of Ministers it shall be submitted to the Emperor in the hands of the Prime Minister. If the Emperor agrees with the proposed law, he sends it to any of the two Chambers of the Parliament If approved by majority vote of the Chambers, the draft bill shall be forwarded to the Emperor for final approval and promulgation. Haleluya T. Belay(LL.B,LL.M) 152 8/5/2024

HAILE SELASSIE.. Initiation of Decrees Decrees were legal prerogative of the Emperor. Used to be enacted only during the temporary absence of the Parliament ( presumably, when it was out of session during the summer). Concluding remarks: Considering the whole law-making process it is often said that all laws in pre-revolution Ethiopia were in effect made by the Emperor . Haleluya T. Belay(LL.B,LL.M) 153 8/5/2024

THE DERG’S ERA There was only one type of primary legislation (the proclamation that was enacted by the congress ) The congress of the PMAC is the highest organ of state power and it was also the only source of the sole primary legislation of the time (i.e., the proclamation). Haleluya T. Belay(LL.B,LL.M) 154 8/5/2024

THE DERG’S... Initiation of proclamation By the congress of the PMAC By governmental organs It shall be submitted to the Council of Ministers. If the draft meets the approval of the Council of Ministers, it passes to the PMAC’s Congress for deliberation, voting and enactment . Haleluya T. Belay(LL.B,LL.M) 155 8/5/2024

THE DERG’S... How about Subordinate legislations They went under the general name of Legal Notice. Drafted and issued at the level of the governmental body authorized to issue them. Haleluya T. Belay(LL.B,LL.M) 156 8/5/2024

Law Making under the PDRE (Peoples Democratic Republic of Ethiopia) Two types of laws: Primary and Subordinate laws Primary Laws: laws issued by the highest organ of state power of PDRE (the National Shengo , the Council of State and the President of the Republic) These Primary Laws were: Proclamation, Decree, Special Decree, Presidential Decree, Special Presidential Decree Haleluya T. Belay(LL.B,LL.M) 157 8/5/2024

Law Making under the PDRE.. Proclamation: by the National Shengo . (Art 63(1)EDPRE Constitution) Decrees: by the council of state (to facilitate the implementation of the powers and duties entrusted to it by the Constitutio n (Art. 82/3/). Special Decree: The power of the council of state ( in case when necessary and compelling circumstances arise ) Haleluya T. Belay(LL.B,LL.M) 158 8/5/2024

Law Making under the PDRE.. Presidential Decree: By the President; to facilitate the implementation of the powers and duties entrusted upon him/her by the Constitution (Art. 86(4) of PDRE Const.). Special Presidential Decree: By the president (under compelling circumstances when the National Shengo is not in session) subject for approval of the National Shengo Haleluya T. Belay(LL.B,LL.M) 159 8/5/2024

Law Making under the PDRE.. Initiation of Proclamations The Council of State The President of the Republic Commissions of the National Shengo Members of the National Shengo The Council of Ministers The Supreme Court The Prosecutor General Shengos of higher administrative and autonomous regions Mass organizations through their national organs, Haleluya T. Belay(LL.B,LL.M) 160 8/5/2024

Law Making under the PDRE.. Initiation of Decrees (Council of state) Initiation of Special Decrees (Council of state) Initiation of Presidential Decrees (The President) Initiation of Special Presidential Decrees (By the president) Haleluya T. Belay(LL.B,LL.M) 161 8/5/2024

Law Making under the PDRE.. Subordinate Laws: Laws issued by organs of both state and administrative power (outside supreme organs of state) by virtue of power delegated authority from the National Shengo . These laws were; Directives and Regulations Haleluya T. Belay(LL.B,LL.M) 162 8/5/2024

LAW MAKING IN THE PRESENT DAY ETHIOPIA Preliminary issues; The existence of two layers of Governments; Federal and Regional Governments Power of Federal Government (See Art. 51 Of the Constitution) Power of Regional Governments (See Art. 52 Of the Constitution) Haleluya T. Belay(LL.B,LL.M) 163 8/5/2024

Con’d … Power to Make Laws: Federal Vs Regional Legislative Power of Federal Government (See Art.55 Of the Constitution ) The House of Peoples’ Representatives has the power to enact laws (Proclamations) in the following sectors Natural resources of the Federal State; Inter-region and foreign trade law; Federal transportation laws; Haleluya T. Belay(LL.B,LL.M) 164 8/5/2024

Con’d … Electoral laws and other laws with regard to the enforcement of political rights; Nationality and other laws; Standard and calendar; Patent and copyright laws. The HPR has the power to enact the following Codes (see Art. 55(3), (4) and (5), (6) of FDRE Constitution) Labour Code Commercial Code Criminal Code Haleluya T. Belay(LL.B,LL.M) 165 8/5/2024

Con’d … Legislative Power of Regional Governments All powers not given expressly to the Federal government alone, or concurrently to the Federal government and the State are reserved to the State (See Art. 52(1) of the Constitution) Laws on State civil service (See Art.52(2(f)) of the constitution) Penal Laws on matters that are not specifically covered by the federal government (Art. 55(5) of the constitution) Haleluya T. Belay(LL.B,LL.M) 166 8/5/2024

Con’d … Power of the Executive to enact Laws Council of ministers have the power to enact regulations (See Art. 77(3) of the constitution) The power of the council of ministers is delegated from the HPR The Council of Ministers has also the power to enact directives (See Art.74(5) of the Constitution) Haleluya T. Belay(LL.B,LL.M) 167 8/5/2024

Procedures of law making (Current Ethiopia) Initiation, Deliberation, Adoption, Publication A. Initiation of Laws; Who Initiate? Who Initiate Laws? The Legislature and Executive Legislature: Members of the HPR, Committees of the House, Parliamentary Groups Executive: The council of ministers (See Art. 77(11) FDRE Constitution) Each ministry can also initiate laws Haleluya T. Belay(LL.B,LL.M) 168 8/5/2024

Procedural Requirements for Initiating Laws General requirements Any draft law be submitted to the HPR should be accompanied by an explanation of its importance, having a document explaining the potential impact of the draft on government budget (Art. 8 of Reg. No 3/2006) All draft laws should be submitted to the HPR through the Speaker of the House. Article 50(1) (4), (6) and (7) of the Regulation Haleluya T. Belay(LL.B,LL.M) 169 8/5/2024

Initiation Specific requirements 1. Initiation by Members of the Parliament: When members of the House initiate laws, these drafts should be accompanied by the signature of members. 2.Initiation by committees of “Parliament Groups” Draft bill shall be been submitted to the parliament by the chairperson of the committee Haleluya T. Belay(LL.B,LL.M) 170 8/5/2024

Initiation 3. Initiation by the executive Each ministry requests with a written letter to the Council of Ministers for the specific legislation that the ministry tends to propose The line Ministry prepares the draft policy with stake holders; different governmental bodies and expertise invited to enrich the policy; and all the minutes of the meeting reduced in the report form. The line Ministry sends the draft which it feels final to the Council of ministers. Haleluya T. Belay(LL.B,LL.M) 171 8/5/2024

Initiation The policy unit at Council of Ministers scrutinizes the draft policy and refers the matter to standing committee of the Council of Ministers for further scrutiny If the Standing Committee of the Council of Ministers agrees with the policy it refers the bill to Council of ministers for approval If the Council of Ministers is dissatisfied with the bill it returns the same to the line Ministry to incorporate the issues it feels sound . But if it is satisfied, it forwards to the parliament Haleluya T. Belay(LL.B,LL.M) 172 8/5/2024

Deliberation After submission of draft Bill to HPRs, the bill need to pass three stages First Reading Second Reading Third Reading Haleluya T. Belay(LL.B,LL.M) 173 8/5/2024

Deliberation First Reading: The process of reading and general discussion held on fundamental concepts of a draft law submitted to the house before it gets endorsed, or referred to the pertinent standing committee for further inspection (Art.2 (18) of the Regulation) At this stage, the body that has initiated the law is required to give “… a brief explanation as to the content and purpose of the draft law” . Haleluya T. Belay(LL.B,LL.M) 174 8/5/2024

Deliberation After the initiator of the law has explained what the purpose and content of the law is, the House will conduct a general debate on the content and the purpose of the law . At this stage there will not be a discussion on the specific provisions of the law. After the end of the general debate the House can directly proceed to a “second reading ”, or it can refer the matter to one or more of Parliamentary Committees Haleluya T. Belay(LL.B,LL.M) 175 8/5/2024

Deliberation The House shall have the following Standing Committees the Capacity Building Affairs; the Trade and Industry Affairs; the Rural Development Affairs; the Natural Resources and Environmental protection Affairs; the Infrastructure Development Affairs; the Budget and Finance Affairs; the Legal and Administrative Affairs; the Foreign, Defence and Security Affairs; the Women’s Affairs; the Information and Cultural Affairs; the Social Affairs; and the Pastoralists Affairs. Haleluya T. Belay(LL.B,LL.M) 176 8/5/2024

Deliberation Second Reading: The process of reading in which detailed discussion is conducted on the draft law (Art. 2(19) of the Regulation) The reports and recommendations of committees to which a draft has been submitted will be heard as well. At this stage the House will have a closer look at the content of the bill. Haleluya T. Belay(LL.B,LL.M) 177 8/5/2024

Deliberation Members of the House can propose amendments to the draft law. If the proposed amendment is approved, the house may refer the draft bill to the committee for reconsideration If members of the House feel that sufficient deliberation has been conducted, they should end the “second reading” by voting. Haleluya T. Belay(LL.B,LL.M) 178 8/5/2024

Deliberation Third Reading: It means discussions and the process of giving decisions conducted after the submission to the house of reports and recommendations, which are prepared regarding the draft law referred to by the house to a standing Committee(s) for further and extensive re-examination subsequent to the Second reading (Art. 2(20) of the Regulation) Haleluya T. Belay(LL.B,LL.M) 179 8/5/2024

Deliberation The committee(s) to which the draft law has been referred back for reconsideration shall submit to the house its final report and recommendation After conducting sufficient deliberation on the reports and recommendations, the house shall pass its final decision Haleluya T. Belay(LL.B,LL.M) 180 8/5/2024

Adoption (Approval) The House shall approve the draft law by vote Two steps of approval Approval article by article; Approval of the draft law as a whole to pass it as a law The draft law shall be passed by a majority vote (See Article 59(1) of the constitution) Haleluya T. Belay(LL.B,LL.M) 181 8/5/2024

Con’d … What's next after approval? The Speaker of the House should pass the adopted law over to the President of the Republic for signature (See Article 57 of the FDRE Constitution and 57 of the Regulation) The president shall sign the law submitted to him within 15 days If the president does not sign the law within 15 days, it (the adopted law) shall take effect without his signature Haleluya T. Belay(LL.B,LL.M) 182 8/5/2024

Publication A law approved by the HPR shall be published in Negarit Gazetta Gazeta ( ፌደራል ነጋሪት ጋዜጣ ) through the speaker Before publication the Speaker could make any necessary corrections What sort of corrections? Haleluya T. Belay(LL.B,LL.M) 183 8/5/2024

Publication Is Publication a mandatory requirement? See Art. 57 of the Constitution “.. If the president does not sign the law within 15 days, it shall take effect without his signatur e” Without publication? See (Art. 2 () of Proc. No.3/1995): All Laws of the Federal Government shall be published in the Federal Negarit Gazeta ( ፌደራል ነጋሪት ጋዜጣ ) Compare Art. 57 of the constitution with the proclamation Effect of Publication: All Federal or Regional legislative, executive and judicial organs as well as any natural or juridical person shall take judicial notice of Laws published in the Federal Negarit Gazeta (Art. 2 () of Proc. No.3/1995) What if the law is not published but approved? Haleluya T. Belay(LL.B,LL.M) 184 8/5/2024

Chapter VI Hierarchy of Law Haleluya T. Belay(LL.B,LL.M) 185 8/5/2024

Con’d … What do we mean by hierarchy of laws? The term “hierarchy” expresses the “ ascending series ranks or degrees of power and authority with the correlative subjection, each to the one next above.” It is believed that l aws derive their validity from the authority that respective makers possess . Thus, the superior and subordinat e kind of relationship exists between the laws. Hierarchy of laws is “ a chain of subordination ” between laws. Hierarchy of laws is a system in which all the laws of a certain country are put at various levels or ranks according to their order of importance . Haleluya T. Belay(LL.B,LL.M) 186 8/5/2024

Hierarchy of laws under 1995 FDRE constitution Now federalism system of government is adopted State power is divided b/n federal and state gov . Both governments have a power to make laws. Supremacy of constitution Source of both the federal and regional government. Why supreme? Emanation from the will of the people. Art 9(1) … as supreme Haleluya T. Belay(LL.B,LL.M) 187 8/5/2024

Con’d … Now federalism system of government is adopted State power is divided b/n federal and state gov. Both governments have a power to make laws. Supremacy of constitution Source of both the federal and regional government. Why supreme? Emanation from the will of the people. Art 9(1) … as supreme Haleluya T. Belay(LL.B,LL.M) 188 8/5/2024

Con’d … The people are the supreme power holders and the C onstitution is the expression of their will. The constitution vs. International treaties? Art 9(1), 9(4), 55(1)? Art 13(2)?=inconformity refers to they are superior to constitution. International treaties vs. other domestic laws The HPR is empowered to ratify IT and proclamations. Which one is superior when conflict arises b/n the two? When laws are passed by the same organ such laws are equal. Haleluya T. Belay(LL.B,LL.M) 189 8/5/2024

Con’d … Art 51(8)=power of federal government. If that is the case under federal state structure both the federal and state laws are parallel (no superior inferior relationship between the two) So, we can’t establish hierarchy between International Treaties and state laws. Haleluya T. Belay(LL.B,LL.M) 190 8/5/2024

Federal legislations and their hierarchy The proclamation comes next to the constitution because it is enacted by the HPR , which is the direct representative of the people and the HPR is a supreme organ. Emergency decrees are issued by the Council of Ministers to tackle certain extraordinary happenings in the country (77.10 and 93) . Haleluya T. Belay(LL.B,LL.M) 191 8/5/2024

Con’d … Regulations are to be enacted by the Council of Ministers. Whereas, directives are adopted by each individual ministry. Thus , FDRE Constitution, Proc , emergency decree, regulations, directive…………….. Haleluya T. Belay(LL.B,LL.M) 192 8/5/2024

Cont ’ d Hierarchy of the Federal state structure Constitution Proclamation Regulation Directive People HPR Individual Ministry, Agency… Council of Ministers Haleluya T. Belay(LL.B,LL.M) 193 8/5/2024

Con’d … The laws that are enacted by the federal and state government organs are similar in form ; Since, the federal and state governments are empowered with their own spheres, their laws are independent. Some powers are clearly given to the federal government and residual powers are assigned to states. And they can enact laws on the areas they are empowered to exercise power. Haleluya T. Belay(LL.B,LL.M) 194 8/5/2024

Con’d … If that is the case under federal state structure both the federal and state laws are parallel ( no superior inferior relationships between the two ) So, we can’t establish hierarchy b/n federal and state laws. Haleluya T. Belay(LL.B,LL.M) 195 8/5/2024

Con’d … E.g. Foreign affairs, defense, land and natural resources, trans-boundary rivers,(see Art.51, 55 & 96) Regional states also have the power to make law (art 52) …..on issues which are not given for the Federal Government or not given as a concurrent power( Art.52(1)). They also may be delegated to enact laws. Concurrent powers, Art 98. Haleluya T. Belay(LL.B,LL.M) 196 8/5/2024

Chapter VII Interpretation of Laws Haleluya T. Belay(LL.B,LL.M) 197 8/5/2024

Con’d … Interpretation refers to the act or process of determining the sense, real meaning of obscure or ambiguous terms of laws. Interpretation is a process of giving meaning to the phraseology of the law. It is reducing the law into reality. “Interpretation is the art or process of discovering and expounding the intended signification of the language used, that is, the meaning which the authors of the law designed to convey to others ” Why do we need to interpret laws? 1.1.The nature of Law: Laws are formulated in general terms . The law maker can’t offer to go into details of everything while making laws . Haleluya T. Belay(LL.B,LL.M) 198 8/5/2024

Con’d … 1.2 . The problem of Language (ambiguous and vague words) e.g. Who is a family member? What is a family? 1.3. Social dynamism and the static nature of law Society changes very fast , but the law doesn’t; it usually lags behind. 1.4. The Possibility of Making error: While the legislator enacted laws, they may contain various errors. Haleluya T. Belay(LL.B,LL.M) 199 8/5/2024

Con’d … We have grammatical and logical interpretations. Grammatical interpretation implies that the meaning of the law is to be sought in the actual words used in it , which are to be understood in their ordinary and natural meaning. In other words, where there is no ambiguity in the language employed by the statute any other interpretation except grammatical interpretation is permissible. This is known as litera scripta . Haleluya T. Belay(LL.B,LL.M) 200 8/5/2024

Con’d … Logical interpretation , on the other hand, is that which departs from the letter of the law and seeks elsewhere or some other or more satisfactory evidence of the intention of the legislature . This is known as “ sententia legis ”. Interpretation may also be classified as doctrinal, judicial, or legislative interpretation depending on who interprets the law Haleluya T. Belay(LL.B,LL.M) 201 8/5/2024

Con’d … 2. Who interprets laws? 2.1 Judicial (by courts, most common) 2.2 Doctrinal (legal scholars and writers). But usually non authoritative (persuading courts, legislators and future decisions). 2.3 Legislative (historically, but currently, not applicable). Recently, constitutional interpreting organs ( HoF in Ethiopia, Constitutional council in Italy and France, Constitutional court in Germany) Haleluya T. Belay(LL.B,LL.M) 202 8/5/2024

RULES OF INTERPRETATION IN GENERAL A. The golden Rule of Interpretation The main purpose of judicial interpretation is to ascertain the intention of the legislature. In ordinary cases the Judges must resort to grammatical interpretation for ascertaining the true intention of the legislature. The golden rule of interpretation is that “if the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound words in their natural and ordinary sense. The words themselves alone do, in such cases, best declare the intention of the law-giver ” Haleluya T. Belay(LL.B,LL.M) 203 8/5/2024

Con’d … Lord Wensleydale called grammatical interpretation as the “golden rule” for the interpretation of statutes. He observed that in construing statutes and all other written instruments “ the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnancy or inconsistency but no further .” The golden rule of interpretation guides us to interpret words as they are employed in the statute. In short, grammatical interpretation is known as golden rule of interpretation . Haleluya T. Belay(LL.B,LL.M) 204 8/5/2024

Con’d … B) The Ejusdem Generis Rule According to ejusdem generis rule, a sweeping clause in a statute which says “all other articles whatsoever ” may be interpreted to mean only articles of the same genus or species as those expressly dealt with by the statue . Haleluya T. Belay(LL.B,LL.M) 205 Salmond gives an interesting example of ejusdem generis which serves to restrict the meaning of general words to things or matters of the same kind as the preceding particular words. If a man tells his wife to go out and buy butter, milk, eggs and anything else she needs, he will not normally be understood to include in the term, ‘anything else she needs,’ a new hat or an item of furniture . 8/5/2024

Con’d … 3. How Should One Interpret the Law? 3.1. Where the Law is Clear, No need of interpretation when the law is clear. There is an exception to this rule when the rule entails for absurd consequences and that is not the intention of legislature . 3.2. Where the law is Ambiguous: Word meaning (give the word its ordinary meaning). Legislative intent (look into legislative minutes) Haleluya T. Belay(LL.B,LL.M) 206 8/5/2024

Con’d … 3.3 Where the Law is Silent: Argument a Pari or Argument for Similar reason (Analogy) This happens where the law lists some matters while leaving the statement illustrative, that puts a room to add other lists (then we can include similar lists with what is listed). E.g. Agricultural products such as maize, chat and wheat shall be exempted from tax . What about Teff ? Haleluya T. Belay(LL.B,LL.M) 207 8/5/2024

Con’d … Argument a fortiori (for stronger reason) E.g. A person who has one Ethiopian parent will get Ethiopian citizenship. What about if both of his parents are Ethiopians? (see art 6 of the constitution) Argument a Contrario (Contrary Reason) Eg. Heavy trucks may not enter into the city from 6 Am up to 6 PM. What about from 6PM up to 6AM? Haleluya T. Belay(LL.B,LL.M) 208 8/5/2024

Con’d … 3.4 Where the Law is Contradictory: 1. The law that is higher in the hierarchy prevails over the law that is lower ( hierarchy of laws ) 2. Posterior law prevails over prior law ( time of promulgation) Lex posterior derogate lex priori (the latter law prevails over prior law ) 3. The special law prevails over the general (General contact law Vs Law of Sales )- sepecialia generalibus drogant Haleluya T. Belay(LL.B,LL.M) 209 8/5/2024

Con’d … These rule(3) are applicable when. - provisions of a single legislation contradict with each other ; or - where the contradiction is between laws of the same hierarchical position that are issued at the same time . ( civil code.. contract law, sales, agency) Haleluya T. Belay(LL.B,LL.M) 210 8/5/2024

Con’d … In such cases the law which is more specific or special prevails over that which is general . Because the specific is more explicit and tells us clearly the intention of the legislature . Haleluya T. Belay(LL.B,LL.M) 211 8/5/2024

Con’d … 3.5. Where there is discrepancy between the provisions of the law written in different languages- e.g. Amharic prevails over English as the former is the working language of the federal government. 3.6. Where there is discrepancy in amounts written in words and figure- word prevails E.g Five thousand,......500 Haleluya T. Belay(LL.B,LL.M) 212 8/5/2024

Chapter VIII Amendment and Repeal of laws Haleluya T. Belay(LL.B,LL.M) 213 8/5/2024

Con’d … Amendment of law refers to the system of adapting the existing law to the new circumstances and situations of the nation . i.e. since the society is changing, laws must also change in order to coup up with the existing scenario. The amendment of existing laws is normally made by the state organ that issued them . Haleluya T. Belay(LL.B,LL.M) 214 8/5/2024

Con’d … Repeal of law-refers to the total or partial abrogation of a given legislation. It refers to the unmaking of the law that has been once enacted. There are different forms/ types of repeal. Express/explicit/, tacit/implied/, expiry of laws, and repeal by disuse Haleluya T. Belay(LL.B,LL.M) 215 8/5/2024

Con’d … 1. Express/Explicit Repeal/ When a new law expressly and explicitly withdraws the obligatory force of the old law . To say that an existing legislation is expressly repealed by a newly enacted legislation (the repealing law), it must state specifically that the previous legislation is no more operative in the future. It must indicate which legislation ( proc No.--- )and which of its provisions( Art xx) are repealed Haleluya T. Belay(LL.B,LL.M) 216 8/5/2024

Con’d … Express repeal itself takes two forms-general or partial. An express repeal is said to be general repeal when the repeal concerns the entire body of a given legislation . That is in case of general express repeal the repealing legislation abrogates the whole body of an old law stating it expressly and specifically. Haleluya T. Belay(LL.B,LL.M) 217 8/5/2024

Con’d … An express repeal is said to be partial when the repeal affects only part of an old legislation . In other words, repeal is partial when the new repealing legislation limits only the scope of application of an earlier legislation without abrogating it totally. Haleluya T. Belay(LL.B,LL.M) 218 8/5/2024

Con’d … This is an example of partial express repeal . It does not hinder the applicability of the proclamation or regulation as a whole . The repeal indicated in the new proclamation affects only those provisions of the old legislation that are expressly mentioned in the repealing proclamation . Haleluya T. Belay(LL.B,LL.M) 219 8/5/2024

Con’d … 2. Tacit (Implied) Repeal Implied repeal refers to the case where the repeal of the old legislation is not expressly provided but inferred from the incompatibility between the provisions of a new legislation and an old one . The existence of tacit repeal is known by way of interpretation. Haleluya T. Belay(LL.B,LL.M) 220 8/5/2024

Con’d … The law making organ may sometimes issue a law that is inconsistent with an existing legislation without expressly providing the repeal of the earlier legislation . Haleluya T. Belay(LL.B,LL.M) 221 8/5/2024

Con’d … 3. Expiry of Laws: In most cases laws are issued to serve for an indefinite period of time for the future and such type of law come to an end either by express or tacitly repeal or when they are replaced by a new legislation. There are, however, some instances where laws are issued to serve only for a definite period of time after the expiry of which they will cease to have a force of law. Haleluya T. Belay(LL.B,LL.M) 222 8/5/2024

Con’d … Such types of laws for instance, include, emergency decrees , annual budget proclamations, laws establishing an ad-hoc committee or body. Haleluya T. Belay(LL.B,LL.M) 223 8/5/2024

Con’d … 4. Repeal by Disuse: Although legislations issued for an indefinite period of time and come to an end through either express or tacit repeal , there are cases where such types of law fall into disuse and thereby rendered inapplicable even if there is no express or implied repeal . Laws fall into disuse when they, through years, become incompatible with the prevailing social, economic and political realities and conceptions of the society . Haleluya T. Belay(LL.B,LL.M) 224 8/5/2024

Effects Of Repeal of Laws Generally, effects of repeal are : It renders the repealed law inapplicable for the future. It will neither create nor destroy rights and duties thereafter. Specifically, effects of repeal are: Haleluya T. Belay(LL.B,LL.M) 225 8/5/2024

Con’d … 1. The non-revival of repealed laws: Think of the following hypothetical situation. Legislation ‘ A ’ is repealed by another subsequent legislation ‘ B ’ . Suppose that legislation ‘ B ’ , is again repealed by legislation ‘ C ’ which comes after legislation ‘ B ’ , do you think that this will revive legislation ‘ A ’ ? Haleluya T. Belay(LL.B,LL.M) 226 8/5/2024

Con’d … 2. Non- retroactivity of repealing Law 3. Subsidiary legislations in case of repeal of the parent legislation. In principle, it follows parent legislation, unless the legislature saves it. Who repeal laws? A. Laws may be repealed by the organs that make them B. The organ that interprets the constitution C. Courts Haleluya T. Belay(LL.B,LL.M) 227 8/5/2024

Chapter IX JURIDICAL ACTS Haleluya T. Belay(LL.B,LL.M) 228 8/5/2024

Con’d … What is it? Those acts which are performed solely in order to bring about one or several legal effects . Juristic act- is defined as “ as act that is intended to create, transfer, or extinguish a right and that is effective in law for that purpose .” It is also explained as “ the exercise of legal power ” . Prerequisites for the validity of juridical acts a. legal capacity b. Consent c. Consent free from vice d. Form e. Lawful content/object/ Haleluya T. Belay(LL.B,LL.M) 229 8/5/2024

Con’d … Marriage Will Contract Effects of juridical acts Art 1731…..binding b/n the parties and considered as laws. Haleluya T. Belay(LL.B,LL.M) 230 8/5/2024

Rights and duties The term “right” is defined as “ something that is due to a person by just claim, legal guarantee, or moral principle (the right of liberty).” It includes a “power, privilege, or immunity secured to a person by law (the right to dispose of one’s estate) ” Further the term is defined as a “ legally enforceable claim that another will do or will not do a given act; a recognized and protected interest the violation of which is a wrong (a breach of duty that infringes one’s right )” Haleluya T. Belay(LL.B,LL.M) 231 8/5/2024

Con’d … Right is a correlative to duty ; where there is no duty there can be no right . But the converse is not necessarily true . There may be duties without rights . In order for a duty to create a right, it must be a duty to act or forbear. Haleluya T. Belay(LL.B,LL.M) 232 8/5/2024

con’d … The term “duty” is defined as follows: “ a legal obligation that is owed or due to another and that needs to be satisfied; an obligation for which somebody else has a corresponding right ” A legal right – what is a legal right ? The test for a legal right is –is the right recognized and protected by the legal system itself? Thus, a person may have a legal right to do an act, which is unethical and opposed to the standards of positive morality. However, this does not mean that the law is unreceptive to the general conception of right, which exists in a community, for the ethical views and positive morality of a given community naturally influence the law in its determination of the conduct, which it will protect, and of the actions, which it will prohibit. ‘ Rights spring from right . Principles of liability, in the last analysis, must be derived from the moral sense of the community . Haleluya T. Belay(LL.B,LL.M) 233 8/5/2024

Con’d … Juridical acts are distinguished from material acts in that the latter consist in some action of physical relationship, such as claims for compensation for a literary work . Juridical acts, are categorized into unilateral and bilateral , those addressed to a particular person and to anyone, intervivos and mortis causa , onerous and gratuitous , obligatory and real , promissory and dispositive , casual and abstract . Haleluya T. Belay(LL.B,LL.M) 234 8/5/2024

Essential elements for a valid juridical acts First and for most, legal capacity : persons must be capable in the eyes of the law to perform legally binding juridical acts . In addition, a person should have a specific legal capacity that means s/he/it should have sane mind; attain the age of majority; and so on. Secondly , the actor must declare his/her/its will to create the legal consequences to have valid juridical acts. The declaration, as we have seen, may be either express or implied. The third pre-requisite for validity of a juridical act is that there must be concordance between what is manifested (or declared) and that is intended . Haleluya T. Belay(LL.B,LL.M) 235 8/5/2024

Con’d … Further, in order to have a valid juridical act , the declaration of intention should be serious . In accordance with the fourth pre-requisite for a valid juridical act, the will should be declared free from vices. Accordingly, the person is required to declare his/her its will without fraud, violence or threats. The fifth pre-requisite for valid juridical acts, as we discussed, is that the juridical acts must comply with the formality , particularly where the law provides the form. Further more, the contents of juridical acts must be lawful . Thus, according to Article 1678 of the Ethiopian Civil Code, a contract (and a juridical act) must have lawful purpose and need not contravene the morality of the society. Haleluya T. Belay(LL.B,LL.M) 236 8/5/2024

Effects of juridical acts The basic principle is that juridical acts create rights and obligations only as between persons who perform them. Thus, the rights and obligations of third parties may not be affected by juridical acts. This clearly shows the relative effect of juridical acts . Juridical acts performed by some one else representing another person will produce effects to the person for whose favour (name) they are performed. Haleluya T. Belay(LL.B,LL.M) 237 8/5/2024

Part II The Ethiopian Legal system Haleluya T. Belay(LL.B,LL.M) 238 8/5/2024

Chapter X LEGAL PLURALISM Haleluya T. Belay(LL.B,LL.M) 239 8/5/2024

Introduction Legal pluralism is “ a concomitant of social pluralism; the legal organization of society is congruent with its social organization ”. As a result, “Law is present in every ‘ semi-autonomous social field , and since every society contains many such fields, legal pluralism is a feature of social organization ” [Griffiths; 1986: 38]. Haleluya T. Belay(LL.B,LL.M) 240 8/5/2024

Con’d … A situation of legal pluralism is therefore “one in which law and legal intuitions are not all subsumable within one ‘system’ but have their sources in the self-regulatory activities of all the multifarious social fields present, activities which may support, complement, ignore or frustrate one another” Haleluya T. Belay(LL.B,LL.M) 241 8/5/2024

Con’d … On this argument, African societies are amongst the most pluralist in the world, comprising as they do a diversity of tribal, ethnic, cultural and religious groups, different traditions, and people divided along urban and rural lives . It would therefore appear to follow that African states would manifest a healthy legal pluralism reflecting this diversity-but reality demonstrates that this is not necessarily a logical conclusion. Indeed , it may be possible to argue that there is a cleavage between social pluralism and rules which it generates on the one hand, and constitutional pluralism on the other Haleluya T. Belay(LL.B,LL.M) 242 8/5/2024

Con’d … Ethiopia being a country of different nations and nationalities, the Constitution grants the legislative, executive and the judiciary power to them. Therefore , both the federal government and the regions have those powers at the same time. This is the sense of legal pluralism in Ethiopia Haleluya T. Belay(LL.B,LL.M) 243 8/5/2024

Con’d … In short, the existence and practice of law in Ethiopia other than formally recognized ones may be categorized under informal legal pluralism . There are traditional dispute settlement mechanisms in Ethiopia. In traditional dispute settlement mechanism, customary laws of the respected ethnic group apply Haleluya T. Belay(LL.B,LL.M) 244 8/5/2024

Con’d … Legal pluralism in Ethiopia, currently, recognizes and legitimizes the personal laws of Ethiopia’s religious and customary groups legal pluralism is the manifestation of federalism in Ethiopia that accommodates the rights of various multicultural society Legal pluralism may be classified formal and non formal . In case of formal legal pluralism, the law clearly recognizes the applicability various laws. The Ethiopian Constitution recognized the validity and applicability of non state laws such as religious and customary laws in some fields of social activity (Art. 34(5)) Haleluya T. Belay(LL.B,LL.M) 245 8/5/2024

Con’d … The existence and practice of law in Ethiopia other than formally recognized ones may be categorized under informal legal pluralism. Haleluya T. Belay(LL.B,LL.M) 246 8/5/2024

LEGAL TRANSPLANTATION FROM FOREIGN SOURCES In most places at most times borrowing is the most fruitful source of legal change. The borrowing may be from within the system, by analogy-from negligence in torts to negligence in contract, for instance-or from another legal system. The act of borrowing is usually simple. To build up a theory of borrowing, on the other hand, seems to be an extremely complex matter. Receptions come in all shapes and sizes: from taking over single rules to (theoretically) almost a whole system Haleluya T. Belay(LL.B,LL.M) 247 8/5/2024

Con’d … What is the basis for a reception of law? It goes with out saying that practical utility is the basis for much of a reception of law . The paramount reason for reception of law is economica l for the borrowing country because it saves time that could be spent to draft a new, original law. Thus , it avoids a labour some law making particularly a new law. Haleluya T. Belay(LL.B,LL.M) 248 8/5/2024

Con’d … A problem related with reception is misunderstanding . The principle of a law may be misunderstood in the process of reception. For example, Huber’s theory of conflict of law was accepted in common law jurisdictions but not in the civil law. His third axiom was misunderstood . Haleluya T. Belay(LL.B,LL.M) 249 8/5/2024

THE NEED FOR AUTHORITY Borrowing is often creative . However, it needs authority. This creativity may be very open. Ulricus Huber’s own theory of conflict of laws which he founds on three axioms all ostensibly based on Roman law. The enormous need for legal authority for legal decisions and reasoning is unveiled . It is this need for legal authority that often lends strength to transplants (or apparent transplants). Haleluya T. Belay(LL.B,LL.M) 250 8/5/2024

Con’d … There are four aspects of legal transplantation First, they highlight the enormous influence of legal education or legal attitudes . Southern African students educated in law at Edinburgh imported to Botswana, Lesotho and Swaziland some Scots law. Thus, transplantation influences the legal education. Second, they show that though patterns of development can be discerned, the future development cannot be predicted . Chance plays too great a role. Third, when foreign law is given high authority, then when new situations arise, jurists may not find it easy to develop new law on the basis of irrelevant or even non-existent sources . Fourth, they confirm the central role of authority in law making by subordinate lawmakers. Judges cite with all apparent seriousness what are regarded as the appropriate authorities, who are unhelpful or irrelevant, and they may seem to follow them when constructing their own route. Haleluya T. Belay(LL.B,LL.M) 251 8/5/2024

CONFLICT BETWEEN FEDERAL LAWS AND REGIONAL LAWS The laws that are enacted by the federal authorities and the state authorities are similar in form. The hierarchy of laws manifested at each level (federal and state) is also the same. But now the issue is, what is the hierarchical relationship between the federal and state laws? Haleluya T. Belay(LL.B,LL.M) 252 8/5/2024

Con’d … In a federal system, the power of the state is divided between the two governments, which are not subordinated one to another but coordinate, and sovereign with in their own sphere of jurisdiction. Therefore , since each of them is sovereign with in the sphere of jurisdiction allotted to it , we cannot say that the idea of superiority exists between the federal and state laws that are enacted on matters under the federal and the state lists. The doctrine of paramount between the federal and state laws is understood in relation to the concurrent power . In connection with this, Where says “…if there is a concurrent jurisdiction, there must also exist some provisions to determine which authority, in case of conflict, to prevail. Because it is in this field that both of the legislators of the federation and of the member states enact laws on the same matters and thus conflict arises between the two. Haleluya T. Belay(LL.B,LL.M) 253 8/5/2024

Con’d … In order to say that there exists conflict of laws in federal systems, such laws should be made by the federal and the state legislators having the same power (concurrent). In addition, there should be repugnancy between the command or power contained in the federal statutes and the command or power contained in the state statutes. Thus , in such a case, the state enactments shall, to the extent of repugnancy, be void, and the federal statute shall prevail . Haleluya T. Belay(LL.B,LL.M) 254 8/5/2024

Con’d … Nevertheless, does Art. 98 of the FDRE Constitution clearly indicate whether or not that the legislators of the two governments enact laws independently in the exercise of their concurrent power and thus conflict arises between the two laws? Art 98 of the Constitution is not clear on this point, and hence, this provision can be interpreted in two ways: Haleluya T. Belay(LL.B,LL.M) 255 8/5/2024

Con’d … The above article can be interpreted to mean that the legislators of the two competent governments can independently make laws which enable the two governments to collect their revenue from the taxes mentioned hereunder. This can be understood from the heading of the article. It says “the concurrent power”. Therefore, since we have said before, that the concurrent field is the area in which both the general and regional governments have common jurisdiction, they enact laws with respect to the same subjects. In such a case, if conflict arises between the federal and state laws, the rule is that the federal laws should prevail over state laws. However, this rule is not embodied in the FDRE Constitution. In other words, the Constitution of FDRE does not stipulate a provision, which shows the superior and inferior relation between the federal and state laws . However, it would have been better had the Constitution incorporated a provision to solve the problem of conflict between federal and regional laws. Haleluya T. Belay(LL.B,LL.M) 256 8/5/2024

Con’d … 2. Art 98 of the Constitution may also be understood to mean that the two governments by agreement, concluded as between them, may levy and collect together the taxes that are listed in the same article . The term “jointly” as employed in the article under discussion supports this very interpretation . If the provision which deals with the concurrent power is interpreted in this way, it is, their agreement which becomes the governing law in case dispute arises between the two government and thus there is no need for the two legislators of the federation and of the member states to enact laws independently for the purpose indicated in art 98 of this Constitution. Haleluya T. Belay(LL.B,LL.M) 257 8/5/2024

Con’d … It is difficult to say the Article 98 of the Constitution embodies a true concurrent jurisdiction . Because as we have seen above, the concurrent jurisdiction is one under which both the federal and the state government exercise the power independent of each other . However, this is not true under the Constitution of FDRE . Moreover, since the Constitution does not stipulate a provision which deals with the hierarchy between the federal and state laws. In case conflict arises between the two, such conflict is resolved only by the amendment of the provision dealing with this issue. However, in so far as the amendment of the constitution requires a special procedure, resolving such conflict does not become easy. Haleluya T. Belay(LL.B,LL.M) 258 8/5/2024

OFFICIAL NORMS AND UN OFFICIAL NORMS Official norms are standards that emanate from the law of the government . An official is expected to behave according to those standards that are accepted as guidelines in performing official duties . Haleluya T. Belay(LL.B,LL.M) 259 8/5/2024

Con’d … Unofficial norms , on the other hand, are those standards of behaviour accepted by the society . There fore, the right or wrongness of a given behaviour is tested against the “basic norms” that are accepted by the society. In general, a norm is a model or standard accepted by society against which society judges someone or something. For example, the society has a standard to judge a given behaviour as right or wrong Conflict could arise between official norm and unofficial norms. In such a case, the official norms should prevail over, and the officer should be judged by the standards of his/her office. Haleluya T. Belay(LL.B,LL.M) 260 8/5/2024

Chapter XI INSTITUTIONAL FRAMEWORK IN ETHIOPIA Haleluya T. Belay(LL.B,LL.M) 261 8/5/2024

THE FEDERAL LEGISLATURE The House of People’s Representatives exercises federal legislative powers pertaining matters that follow: utilization of land, natural resources, of rivers and lakes crossing the boundaries of the national territorial jurisdiction or linking two or more states; inter-state commerce and foreign trade; air, rail, water and sea transport , major roads linking two or more states, postal and telecommunication services; enforcement of the political rights established by the Constitution and electoral laws and procedures; nationality, immigration, passport, exist from and entry to the country, the rights of refugees and of asylum; Haleluya T. Belay(LL.B,LL.M) 262 8/5/2024

Con’d … uniform standards of measurement and calendar; patents and copyrights ; the possession and bearing of arms ; enactment of the penal, labour and commercial codes ; enactment of such civil laws as are designated by the House of Federation necessary to establish and sustain a single economic community; determine the organization of national defence, public security, and a national police force; declaration of state of emergency and a state of war; Haleluya T. Belay(LL.B,LL.M) 263 8/5/2024

Con’d … administration of the National Bank and foreign exchange; levying of taxes and duties on revenue sources reserved to the federal government ; ratification of international agreements concluded by the executive; approval of the appointments of federal judges, members of the council, ministers, commissioners, etc. enactment of laws to determine the powers and functions of the Human Right Commission and the Ombudsman; Haleluya T. Belay(LL.B,LL.M) 264 8/5/2024

THE HOUSE OF FEDERATION The House of Federation has the principal power of interpreting the Constitution authoritatively or better still, it is the ultimate interpreter of the Constitution. Thus, it can adjudge with final authority any law to be contrary to the Constitution hence with not legal effect or vice versa. Haleluya T. Belay(LL.B,LL.M) 265 8/5/2024

Con’d … Its other powers and functions include the following: It organizes the Council of Constitutional Inquiry , a kind of a technical body that gives its recommendations to the House of Federation on issues of constitutional interpretation as they arise from any interested party. Members of the Council include the President and Vice-President of the Federal Supreme Court, six other legal experts, three members of the House of Peoples’ Representatives. Decides on matters relating to the rights of nations, nationalities and peoples to self-determinatio n. Haleluya T. Belay(LL.B,LL.M) 266 8/5/2024

Con’d … Determines the division of revenues derived from joint federal and state tax sources and the subsidies that the federal government may provide to states. Single out those civil matters, which seek enactment of laws by the House of Peoples’ Representatives. Orders federal intervention in the event of any state, in violation of the constitution endangers the constitutional order. Haleluya T. Belay(LL.B,LL.M) 267 8/5/2024

FEDERAL JUDICIAL ORGANS The Constitution enshrines a broad range of principles of cardinal importance regarding the judiciary. One of these is the establishment of the independence of the judiciary. By so doing it puts on a firmer pedestal both institutional and personal autonomy. The Constitution recognizes religious and customary courts and envisages their establishment by law, while those already functioning continue to exist. A tribunal which doesn't fallow legal procedure shall not be established under the constitution. Haleluya T. Belay(LL.B,LL.M) 268 8/5/2024

THE EXECUTIVE ORGAN The executive organ is the other organ of a state. However, our discussion is limited only to the justice organ. Haleluya T. Belay(LL.B,LL.M) 269 8/5/2024

A) FEDERAL PROSECUTION ORGANS There are various prosecution organs at the Federal level. Let us discuss them below. I) The Ministry of Justice The Ministry of Justice is principally and pretty exclusively responsible for the prosecution of federal crimes throughout the land. Its specific powers and functions of prosecution relate to offences subject to the criminal first instance and appellate jurisdiction of federal courts provided by law. The Ministry also institutes, causes to be instituted or intervenes in civil proceedings affecting the public and federal government . Haleluya T. Belay(LL.B,LL.M) 270 8/5/2024

Con’d … II) The Special Prosecution Office It appears obvious from the way it is labelled that it is a prosecution institution. It is constituted by law to conduct investigation and prosecution of crimes of genocide and crimes against humanity (which are punishable crimes under the penal code of the country) by members and officials of the previous regime. It carries the appellation special because it would only function for the duration of the proceedings. Once the proceedings are over (which they apparently are nearing completion) it shall cease to exist as institution. Haleluya T. Belay(LL.B,LL.M) 271 8/5/2024

State jurisdictions STATE Council The State Councils exercise exclusive legislative power on matters falling under state jurisdiction provided by the Federal Constitution and over matters not expressly given to the Federal and/or State Councils by the Constitution. STATE COURTS State judicial power is vested in state courts. The structure of the state courts comprises state supreme, high and first instance courts. These courts exercise judicial authority with in state jurisdiction and the jurisdiction of federal courts as delegated by the federal Constitution Haleluya T. Belay(LL.B,LL.M) 272 8/5/2024

Administration of Justice in Ethiopia Courts play a great role in the administration of justice. The FDRE Constitution makes clear the role of courts. The preamble of the Constitution articulates that the Nations, Nationalities and Peoples of Ethiopia are strongly committed to build a political community founded on the rule of law. It also emphasizes on the respect of individual and people’s fundamental freedoms and rights [Preamble, 1 st and 2 nd paragraphs]. This shows the close relationship between rule of law and the respect of rights and freedoms in Ethiopia. Haleluya T. Belay(LL.B,LL.M) 273 8/5/2024

Con’d … The principle of rule of law and respect of rights is ensured by the application of laws on each and every person by the courts. The government is required to work within the limits without violating the rights of individuals and people’s. On the other hand, individuals are required to live up to their rights. The administration of justice made by courts is to adjudicate on disputes so as to ensure a balance between the power of state and rights of individuals. In general, the court is empowered to check that the rights of individual are not abridged or violated by the government. Haleluya T. Belay(LL.B,LL.M) 274 8/5/2024

Chapter XII Alternative Dispute Resolution Mechanisms in Ethiopia Haleluya T. Belay(LL.B,LL.M) 275 8/5/2024

Introduction Alternative dispute resolution is a mechanism to settle disputes out of the court of law. Arbitration, mediation, conciliation are types of alternative dispute resolution mechanisms. Alternative dispute mechanism offers more informal procedure than that of courts, it is expeditious , and less expensive. Haleluya T. Belay(LL.B,LL.M) 276 8/5/2024

Con’d … The Ethiopian people are very much accustomed to settle their disputes rather than going to the courts of law. Customary laws that are easily accessible to the people are applicable. Thus, we have seen that settling disputes out of court is a co-existent mechanism in Ethiopia. Contradiction between formal and tradition mechanisms of dispute settlement is very high in Ethiopia. In such a case, we have observed that the formal mechanisms should prevail. Haleluya T. Belay(LL.B,LL.M) 277 8/5/2024

Con’d … Traditionally, every dispute involving legal questions, civil or criminal, has been determined formally by the regular law courts . Nowadays, however, this trend is a bit changing, for variety reasons, in favor of what we call alterative dispute resolution (ADR) for civil cases. ADR techniques provide a viable and preferable alternative , as its naming can tell, to court proceedings in the swift disposition of legal matters. Haleluya T. Belay(LL.B,LL.M) 278 8/5/2024

Con’d …. Business-persons prefer one or the other of the two dispute disposition alternatives for a couple of reasons. In particular, they indulge themselves in using out-of-court settlement mechanism because of certain virtues. Court settlement is conducted in an extremely formalistic manner and is surrounded by legal/procedural technicalities. Entrepreneurs would choose simple means of dispute disposition and such is effectively provided by ADR. Haleluya T. Belay(LL.B,LL.M) 279 8/5/2024

Con’d … Adjudication by courts entails greater cost litigation and consumes time and energy because the number of court cases filling the dockets (court schedules listing the cases to be tried) grows every year and continues to grow. Such a backlog of court cases awaiting trial and subsequently accompanied by delayed resolution is very unwelcoming to business world that deals in the fast-paced commercial transactions. A final judicial disposition of a legal dispute is usually accompanied by a winning and losing spirit . Court settlement is solely driven by letters of the law and never admits give and take circumstances. Haleluya T. Belay(LL.B,LL.M) 280 8/5/2024

Con’d … A judgment of a court satisfies one of the litigants and that disappoints the other is rendered. It creates an adverse relationship between the disputants and potential beneficial relationship between these very disputants would be jeopardized. ADR, on the other hand, is based on the concept of reciprocity (give and take) so that both litigants would go home satisfied and future relationship is possible. This settlement is non-adversarial in nature. Methods of ADR range from neighbors sitting down over a cup of coffee to work out their differences to huge multinational corporations agreeing to resolve a dispute through a formal hearing before a panel of experts. methods used for settling disputes outside the court system are negotiation, mediation, conciliation ,arbitration etc. Haleluya T. Belay(LL.B,LL.M) 281 8/5/2024

Con’d … i) Negotiation : In this process, the parties come together informally, with or without attorneys to represent them. In such an informal setting, the parties air their differences and try to reach a settlement or resolution without the involvement of independent third parties . Because no third parties are involved and because of the informal set-up, negotiation provides the simplest and swift opportunity of dispute disposition outside the court structure. Attorneys, if any at all, get involved in the dispute by representative capacity stepping into the foot and taking the place of the party they represent and hence they are regarded as parties to the dispute. Even if a lawsuit has been initiated, the parties may continue to negotiate their differences at any time during the ligation process and settle their dispute . Haleluya T. Belay(LL.B,LL.M) 282 8/5/2024

Con’d … ii) Conciliation : Conciliation is a mechanism of dispute resolution in a friendly and antagonistic manner in which a third party , the conciliator, assists the parties to a dispute in reconciling their differences . Conciliation is often employed when disputants refuse to face each other in direct negotiations ; accordingly, the conciliator plays a facilitator role in that he/she helps to schedule negotiating forums and carries offers forth and back between the parties. Technically, conciliators are not to recommend solutions ; practically, however, they often do. But the final decision is taken up the parties themselves . Haleluya T. Belay(LL.B,LL.M) 283 8/5/2024

Con’d … iii) Mediation : In this process too, it is the parties who must reach a final agreement but being assisted by the influential role of an independent third party, the mediator . The procedure of mediation allows the mediator to propose solutions for the parties to consider. The parties may select the mediator on the basis of the person’s reputation for fairness and impartiality . The mediator may by a volunteer from the community and need not be a lawyer . Usually, a mediator will charge a fee for his or her services (which can be split between the parties). Haleluya T. Belay(LL.B,LL.M) 284 8/5/2024

Con’d … In mediation, the mediator talks face to face with the parties and allows them to discuss their disagreement in an informal atmosphere. There are a few procedural rules established flexibly by the mediator and/or the parties for the proper conduct of the mediation proceedings. Haleluya T. Belay(LL.B,LL.M) 285 8/5/2024

Con’d … iv. Arbitration: Arbitration is a bit more formal and court-like method of ADR. The peculiar feature of arbitration is that a third party hearing the dispute decides the issue . Depending on the circumstances and parties’ wishes, the decision rendered by an arbitrator may be legally binding on the parties, or it may be non-binding. This implies that arbitration proceedings make use of ordinary laws of the land (Art.3325(1) of the Civ. C) but such use is compromised with the ultimate end of reaching an amicable solution. Currently , we have a newly enacted proclamation on arbitration and conciliation that repeals provisions of the Civil Code.(“Arbitration and Conciliation Working Procedure Proclamation No. 1237 /2021”.) In arbitration, the arbitrator practically becomes a private judge even though he/she does not have to be a lawyer. Frequently, arbitration proceedings are conducted by a panel of experts from different walks of life . Haleluya T. Belay(LL.B,LL.M) 286 8/5/2024

Con’d … Any commercial matter can be invariably submitted to arbitration . Parties may present their dispute to arbitration on the following two possibilities. The parties can agree to settle their differences through arbitration rather than the court system when a dispute arises (Art.3328 (1)). In the majority of cases, however, disputes are resolved via arbitration because of an arbitration clause in a contract entered into before the dispute arose (Art.3328 (2)). An arbitration clause provides that any disputes arising under the contract will be resolved by arbitration. Haleluya T. Belay(LL.B,LL.M) 287 8/5/2024

Con’d … The arbitration process – The arbitrator may be given the power at the beginning of the arbitration process to establish rules that will govern the proceedings. Typically, these rules are much less restrictive than those governing formal litigation . Regardless of who establishes the rules, the arbitrator will apply them during the course of the hearing. In the typical hearing format, the parties begin as they would at a trial by presenting opening arguments to the arbitrator and stating what remedies should or should not be granted . After the opening statements have been made, evidence is presented. Witnesses may be called and examined by both sides . After all the evidence has been presented, the parties give their closing arguments . On the completion of closing arguments, the arbitrator closes the hearing. Haleluya T. Belay(LL.B,LL.M) 288 8/5/2024

Con’d … After each side has had an opportunity to present evidence and to argue its case, the arbitrator will reach a decision . The final decision of the arbitrator is called an award , even if no money is conferred on a party as a result of the proceedings. The role of the court in arbitration proceedings can be noticed at both pre-arbitration and post-arbitration stages . In pre-arbitration stages , the court may involve to resolve issues of arbitrability – the determination of whether the dispute can be brought to arbitration , not the consideration of the dispute on its merits . The court usually settles the matter by compromising public policy and freedom of contract . At the post-arbitration level , the court would have its hands in the arbitration for setting aside an arbitral award when that is warranted. The court may nullify or render an award ineffective when it violates public policy , contravenes public morality, or where similar public interest is at a stake . Haleluya T. Belay(LL.B,LL.M) 289 8/5/2024

Brainstorming questions Is shimglina ( ሽምግልና ) similar with Arbitration( ግልግል )? Is it similar with mediation( ማስማማት ? ? ) or conciliation ( እርቅ ) ? Explore other cultural dispute resolution mechanisms in various areas of Ethiopia? Haleluya T. Belay(LL.B,LL.M) 290 8/5/2024

Thank you !!!! Haleluya T. Belay(LL.B,LL.M) 291 8/5/2024

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