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Brief History of the Ethiopian Legal Systems - Past and Present

Published online by Cambridge University Press:  28 February 2019

Tsegaye Beru
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Extract

As a country, Ethiopia needs no introduction. Its three thousand years of history has been told and documented by many who lived in and traveled to Ethiopia The discovery of Lucy, the 3.2 million years old hominid, iconic fossil in the Afar region of Ethiopia in 1974, attests to the fact that Ethiopia is indeed one of the oldest nations in the world. The origin of the northern Ethiopian Empire, is chronicled in the legendary story of Cush, the son of Ham and the founder of the Axumite Kingdom, who gave the name Ethiopis to the area surrounding Axum and later to his son. Ethiopia is thus derived from it which in Greek means land of the burnt or black faces.

Type
Articles
Information
International Journal of Legal Information , Volume 41 , Issue 3 , Winter 2013 , pp. 335 - 388
Copyright
Copyright © 2013 by the International Association of Law Libraries. 

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References

1 John H. Spencer was the Emperor's advisor for four decades; Nathan Marein was the Advocate General and General Adviser to the Imperial Ethiopian Government; Christine Sanders lived in Ethiopia from 1920 to 1935 and after a brief interruption during the Italian occupation and from 1942 on. She Knew the Emperor from the time he was a regent and later Emperor; David Abner Talbot was editor of the Ethiopian Herald; Richard Greenfield lived for many years and was Dean of Students at the Addis Abeba University and lived through the coup d ètat of 1960; Christopher Clapham lived in Ethiopia to undertake his research for his book; Edward Ullendorff lived in Ethiopia five years working on his book; John Buchholzer who wrote, The Land of Burnt Faces traveled in Ethiopia extensively; C.H. Walker: Consul for Western Ethiopia at Gore’ and who “was connected with Abyssinia for more than twenty years and Kenneth Redden was Fulbright professor at the Haile Selassie I University (HSIU) later renamed Addis Ababa University.Google Scholar

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4 Id. at 2-3.Google Scholar

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6 The Transworld Airlines (TWA) the predecessor of the Ethiopian Airlines did not start until 1945, see Spencer, Ethiopia at Bay at 165; the railway that run between Addis and Djibouti did not start until 1917, see Talbot at 145. There were only 2,500 miles of dry weather roads in 1935 see Talbot at 139 and until the Italians built more roads during the occupation, most of the states, particularly the northern states were not connected with the rest of the country.Google Scholar

7 See Art 5 of the 1995 Ethiopian Constitution.Google Scholar

8 See Art 5 and particularly Art 39(2) of the 1995 Constitution which states in part that ‘Every Nation, Nationality and People have the right, to write and develop its own language; to express, develop and to promote its culture; and to preserve its history.”Google Scholar

9 The States using Amharic as their working language are Afar, Benishangul Gumuz, Gambela and Southern Nations, nationalities and Peoples.Google Scholar

10 Ethiopia is the only country in Africa that has never been colonized except for the brief occupation by the Italians from 1935-1941.Google Scholar

11 Sandford supra note 5 at 16.Google Scholar

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13 Talbot, David A. Contemporary Ethiopia 153 (1952).Google Scholar

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20 Id.Google Scholar

21 Id.Google Scholar

22 See Art. 34(5) of the 1995 Constitution which state in part that, “the Constitution shall not preclude the adjudication of disputes relating to personal and family laws in accordance to religious and customary laws, with the consent of the parties to the dispute. See also Art. 785 (which states that the House of Peoples’ Representatives and State Councils can establish or give official recognition to religious and customary courts.Google Scholar

23 Kebele Social Courts Recognized by State Constitutions Afar Art 99; Beninshangu Art 108; Gambela Art 110; Amhara Art 107; South Art 114; Somalia Art 98; Oromia Art 101; Harari Art 75.Google Scholar

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31 Id. at 116. Perham comments that Emperor Menelik was allowed to marry Empress Taitu as her fifth husband who would have been impossible to do had he followed the stricter church doctrine on marriage.Google Scholar

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33 Id. Because of the relaxing of the monogamous marriages, Spencer writes that Empress Taitu was married four times and Empress Menen was married four times, the last husband being Emperor Haile Selassie.Google Scholar

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36 These marriages were mostly for people living in the highland areas. The Moslems followed their rituals according Mohammedan laws where their courts had special jurisdiction to handle such matters as marriage and divorce.Google Scholar

37 Spencer, supra at 31 at 102 note 1. Maria Theresa thaler was a silver coin named after Empress Maria Theresa who ruled Austria and Bohemia from 1740 - 1780. It was an Austrian coin of one troy ounce and 83% fitness first minted in 1951. It was the currency throughout Ethiopia until the Ethiopian currency appeared on May 29, 1945 by Proclamation No. 76/45 and later amended by Proclamation No. 112/50 that came out on March 30, 1950. It should be noted that along with the Maria Theresa, the Egyptian, East African and Indian Rupee were used at the same time. The term “shilling” which is still used come from the British currency.Google Scholar

38 See discussion of Chika Shum infra.Google Scholar

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68 See discussion infra.Google Scholar

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72 Marein, supra note 25 at 152.Google Scholar

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76 Id.Google Scholar

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83 Id. at 48-49.Google Scholar

84 Although the substantive codes followed continental models, Ethiopia adopted the common-law approach to procedural law.Google Scholar

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86 Id. at 74.Google Scholar

87 Id. at 52.Google Scholar

88 Id.Google Scholar

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90 In the appendix to “An Introduction to Ethiopian Penal Law Art 1-84 Penal Code” Philippe Graven, for instance, provides the countries from which the main foreign provisions in the drafting of, Art 1-84 of the Ethiopian Penal Code have been taken and they are from Yugoslav, Greek, Danish, Swiss, Italian, Brazilian, German, Dutch, French, Polish, Spanish and Portuguese. See page 217.Google Scholar

91 The authors of these codes were: Professor Jean Graven from Switzerland who drafted the 1957 Penal Code; Professor R. David from France who drafted the Civil Code in 1960; Professor J. Escarra from France drafted the 1960 Maritime Code, Sir Charles Mathew of England drafted the Criminal Procedure in 1961; Professors J. Escarra and A. Jauffret of France drafted the Commercial Code of 1960 and Ato Nerayo Esayas an Ethiopian jurist, drafted the Civil Procedure Code in 1965.Google Scholar

92 Redden, supra note 18 at 51.Google Scholar

93 Id.Google Scholar

94 Id. at 53.Google Scholar

95 Id. at 52.Google Scholar

96 Id. at 75.Google Scholar

97 Id. at 76.Google Scholar

98 Id. at 77.Google Scholar

99 Id.Google Scholar

100 Id. at 79.Google Scholar

101 Id.Google Scholar

102 Id.Google Scholar

103 Id. at 79-80.Google Scholar

104 Id. at 80.Google Scholar

105 Marein, supra note 25 at 152.Google Scholar

106 Id.Google Scholar

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108 Id.Google Scholar

109 The Brehanena Selam was a weekly newspaper that appeared on Thursdays. The first publication appeared on Thursday, January 1, 1925 both in Amharic and French. There were no decrees or legal notices on the first issue, however, there were some laws that appeared in later newspapers and there were three cases reported from the Crown Prince's Chilot (highest appellate court) and one of the cases was between Altaye and Dejazmatch Seyoum and the case dealt with will.Google Scholar

110 Marein, supra note 25 at 31.Google Scholar

111 The chartered cities and states have their own gazettes: Addis Abeba city has Addis Negarit Gazeta, the city of Dire Dawa has Dire Negarit Gazeta, The state of Oromia has Megeleta Oromia, Tigray has Negarit Gazeta Beherawi Mengiste Tigray; Benshangul Gumuz has Lisane Hig; Amhara has Zikre Hig; Harari has Harari Negarit Gazeta, Afar has Dinkara and Southern Nations, Nationalities and peoples has Debub Negarit Gazet.Google Scholar

112 See Art 57 of the 1995 Constitution.CrossRefGoogle Scholar

113 See Art 31 and 32 of the 1931 Constitution. 1,4 See Art 35 of 1931 Constitution.CrossRefGoogle Scholar

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116 Marein, supra note 25 at 29.Google Scholar

117 See Art 63 of the 1987 Constitution.Google Scholar

118 See Art.53 of the 1995 Constitution.CrossRefGoogle Scholar

119 See Art. 54(1) and (2).Google Scholar

120 See Art 54(3).Google Scholar

121 See Art 55(1) and (2).Google Scholar

122 See Art. 55 of the 1995 Constitution for more duties.Google Scholar

123 For power of the President see Art 71 of the 1995 Constitution.Google Scholar

124 See Art 59.Google Scholar

125 See Art 61.Google Scholar

126 Id.Google Scholar

127 See Art 62.Google Scholar

128 See Art 62 for more of the powers.Google Scholar

129 The Chalo system is practiced in the Fufa Toba area located in the Southern Nations, Nationalities, and Peoples region.Google Scholar

130 Kaplan, Irving, et al. Area Handbook For Ethiopia 284 (1970). Since these courts are generally recognized by the 1995 Constitution, it is assumed these and similar courts still exist.Google Scholar

131 Id.Google Scholar

132 Chika Shum or officer of the mud or land so called because he is a person attached to the land permanently until he is replaced. In some areas this position was hereditary. For more readings, see Sandford at 17 and Perham at 143, et seq.Google Scholar

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134 Buchholzer, John. Land Of The Burnt Faces, (TRANS. translated from Danish Maurice Michael, 61 (1955) For more info on local system read more from this book and also from C.H. Walker's The Abyssinian at Home.Google Scholar

135 Marein, supra note25 at 113. For more on public prosecutor go to pages 113-114.Google Scholar

136 Id.Google Scholar

137 It could be argued that the power of the Emperor to sit in Chilot came from Art. 26 of the 1955 Ethiopian Constitution which states that the Sovereign of the Empire is vested in the Emperor and the supreme authority over all the affairs of the Empire is exercised by Him as the Head of State, in the manner provided for in the present Constitution.Google Scholar

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141 Id.Google Scholar

142 Id. at 59.Google Scholar

143 Id. at 67.Google Scholar

144 Id.Google Scholar

145 Id. at 71.Google Scholar

146 Id.Google Scholar

147 Interpretations of these two terms are mine.Google Scholar

148 Id. at 73-74.Google Scholar

149 Id. at 74.Google Scholar

150 Perham, supra note 2 at 464, 474 (see Appendices E and F Perham Article 2 (A).Google Scholar

151 Id. at 93.Google Scholar

152 Sandford, supra note 5 at 80.Google Scholar

153 For more reading on this court and the others created by 1942 Proclamation, see Marein at 70.Google Scholar

154 Marein, supra note 2 at 96.Google Scholar

155 Id._at72.Google Scholar

156 Id. The dollar has since been changed to Birr starting with the military government.Google Scholar

157 Sandford, supra note 5 at 86.Google Scholar

158 Marein, supra note 25 at 152-3.Google Scholar

159 Singer, Norman J. Singer, A traditional Legal Institution in Modem Legal Setting: The Atbia Dagna of Ethiopia, 18 UCLA L. Rev, 308, 313-314 (1970-1971). 160 Id. at 314.Google Scholar

161 Perham, supra note 2 at 152.Google Scholar

162 Id.Google Scholar

163 Id.Google Scholar

164 Marein, supra note 25 at 441.Google Scholar

165 See Article 13 of the 1944 Agreement. And for further reading on the Agreement see Perham at 474.Google Scholar

166 Spencer, supra note 31 at 98.Google Scholar

167 Id. at 99. Throughout this article you will see two spellings: Addis Ababa and Addis Abeba. Ababa is used when it is included in a citation and Abeba is my preferred spelling of the city.Google Scholar

168 See Art 78(1) of 1995 Constitution.Google Scholar

169 See Art 42 of the Charter.Google Scholar

170 Id.Google Scholar

171 See Art 50 of the City Charter.Google Scholar

172 Marein, supra note 25 at 174.Google Scholar