2011 was the busiest year for the Council of Ministers. During this year more regulations have been issued by the Council than proclamations issued by the House of People’s Representatives. One of the factors contributing for the growth of legislation by the Council is the delegation of vast powers of law making power provided in article 34 of Definition of Powers and Duties of the Executive Organs of the Federal Democratic Republic of Ethiopia Proclamation No. 691/2010. According to this provision, The Council of Ministers is empowered, where it finds it necessary, to reorganize the federal government executive organs by issuing regulations for the closure, merger or division of an existing executive organ or for change of its accountability or mandates or for the establishment of a new one. The power of establishing new agencies through regulation has significantly increased the legislative role of the Council of Ministers.
Most of the regulations issued in 2011 are regulations for the establishment of Agencies, public enterprises and universities. These regulations mainly give legal personality for the newly established universities. There are also regulations for the re-establishment of the existing universities. The contents of each of the regulations are almost similar and contain four or five articles. Here is a brief summary of the content of university establishment or re-establishment regulations.
- All Universities are accountable to the Ministry of Education
- They are governed by Higher Education Proclamation No. 650/2009 and Federal Universities Council of Ministers Regulation No.211/2011
The respective regulations establishing or re-establishing a university is listed below:
Reg no.221/2011 Wollo University
Reg no.222/2011 Wachamo University
Reg no.223/2011 Adigrat University
Reg no.224/2011 Mizan Tepi University
Reg no.225/2011 Axum University
Reg no.226/2011 Jigjiga University
Reg no.227/2011 Debre Markos University
Reg no.228/2011 Debre Birhan University
Reg no.229/2011 Debre Tabor University
Reg no.230/2011 Dire Dawa University
Reg no.231/2011 Hawassa University
Reg no.232/2011 Haramaya University (Re-establishment)
Reg no.233/2011 Bahir Dar University (Re-establishment)
Reg no.237/2011 Adama Science and Technology University
Reg no.238/2011 Dilla University (Re-establishment)
Reg no.239/2011 Metu University
Reg no.240/2011 Jimma University (Re-establishment)
Reg no.241/2011 Gondar University
Mulugeta Getu, Law Schools’ Access to Legislation and Decisions: Current Trends and Suggested Outlets
Law Schools’ Access to Legislation and Decisions: Current Trends and Suggested Outlets DOWNLOAD (pdf)
(Journal of Legal Education Vol. 3, No.2 December 2010 )
(LLB, LLM, Lecturer in Law Haramaya University College of Law.)
Legislations enacted by the different organs of the regional and federal states and precedents (interpretation of law given by the Federal Supreme Court Cassation Division and the decision of the House of Federation on constitutional issues) comprise the sources of law in Ethiopia. These materials should be easily accessible to the public to let it guide its behavior in accordance with the law. In addition, access to law paves the way for the establishment of the rule of law.
There is, however, a serious problem of accessing legislations and decisions in Ethiopian law schools. The lack of access is often caused by many factors, namely, lack of commitment, poor attention, financial constraints, bureaucratic acquisition process, lack of regular publication and distribution, geographical limitations, etc. Law schools being the naissance of lawyers, have the most compelling need of accessing these documents. Unlike ignorance of law by ordinary citizen that affect that individual alone, ignorance of a lawyer (who will eventually become a judge, attorney, or a prosecutor) endengers the public. Legislations and decisions, moreover, are periodic in a sense that upon their issuance, they might repeal or suspend earlier laws or decisions. This nature of the documents, in turn, requires their prompt communication to law schools and the public in general to make them effective.
This article tries to assess the challenges and possible outlets regarding the accessibility of these documents by law schools. To address these issues, the writer has used a combination of methodologies. Most of the data for the research gathered through interview and questionnaires from different law schools. Literature review has also been made to appreciate the necessity of these legal documents, effect of poor access to the legal education and observe the lessons of foreign law schools. In addition, documents like legislation have also been consulted wherever found necessary.
The article is divided in to three chapters. It starts with an introduction followed by the first chapter addressing three more points: history of publication of legal documents in the world and Ethiopia, the kinds of documents statutorily required to be published in Ethiopia together with the responsible organs, and laws schools‘attachment to these documents. The Second chapter is devoted for assessing the means used by law schools to access these legal materials, and the effect of poor access on the legal education. The tasks we ought to do to enhance accessibility of documents to best support the legal education is dealt in the third chapter. And, finally, the conclusion follows.
Mizan Law Review publishes peer reviewed scholarly articles that identify, examine, explore and analyze legal and related principles, stipulations and concepts based on research findings. Mizan’s articles aim at interpretation, description, exploration and diagnosis towards the solution of problems (or legal issues) including proactive critique and projection that assist the development of laws.(Source African Journals on-line http://www.ajol.info)
BETWEEN ‘LAND GRABS’ AND AGRICULTURAL INVESTMENT: LAND RENT CONTRACTS WITH FOREIGN INVESTORS AND ETHIOPIA’S NORMATIVE SETTING IN FOCUS
Elias N. Stebek
This article examines whether the land rent contracts and the Ethiopian legal framework on rural land use rights can assure win-win mutual benefits expected from large-scale land transfers to foreign investors. The article further examines the challenges in the realization of the Seven Principles for Responsible Agricultural Investments prepared by FAO, IFAD, UNCTAD and the World Bank Group as a framework of standards for the current global dialogue on large-scale farmland acquisitions. I argue that land-use insecurity in the Ethiopian context results from the extensive powers of executive offices that are empowered to dispossess holders and reallocate land to investors. These powers can be even more discretionary where land transfers are made without prior mapping and demarcation of protected forests and wildlife, and where registration and the issuance of land-holding certificates to smallholder farmers and pastoralists have not yet been made. The article suggests the need to rectify the gaps in the land transfer contracts and most importantly, the need to render the government a custodian (and not owner) of land in conformity with the FDRE Constitution and to ensure that the termination of land use rights is decided by courts so that executive offices would not perform the dual functions of revoking and reallocating rural land use rights.
THE POLITICS UNDERPINNING THE NON-REALISATION OF THE RIGHT TO DEVELOPMENT
Belachew Mekuria Fikre
The right to development stands out as one of the controversial rights ever since its articulation in the 1970s. The adoption of the 1986 United Nations Declaration on the Right to Development underlines the importance of international cooperation for it to be realised. I argue that the emphasis on ‘development aid’ rather than the broader ‘development cooperation’ has contributed a great deal to the politicisation of the right and consequently undermined its materialisation. Indeed, there is the need for semantic and conceptual clarity in the use of the term ‘international assistance and cooperation’ that has deceptively supplanted ‘international cooperation.’ While the former is a term used under Article 2(1) of the International Covenant on Economic, Social and Cultural Rights with a view to laying down the broader States Parties’ obligations, the latter is what the Declaration on the Right to Development exclusively employs. I argue that even if development assistance is indispensable, taking it as the sole approach to the realisation of the right to development is both wrong and unhelpful.
ETHIOPIAN LAW OF INTERNATIONAL CARRIAGE BY AIR: AN OVERVIEW
Hailegabriel G. Feyissa
Ethiopia’s aviation history goes back to the late 1920s. And, carriage of goods and passengers by air dates at least as far back as the 1940s – the decade which witnessed the establishment of Ethiopian Air Lines Corporation (now Ethiopian Airlines). Despite Ethiopia’s relative success in commercial aviation, domestic literature on commercial air law has been scanty. Court decisions involving air carriage are rare, and one can seldom find a course on air law in the curricula of Ethiopian law schools. This article is an attempt to briefly address the gap in literature and encourage further academic discourse on Ethiopian law of air carriage with particular attention to the law and practice regarding international carriage by air.
TO TAX OR NOT TO TAX: IS THAT REALLY THE QUESTION? VAT, BANK FORECLOSURE SALES, AND THE SCOPE OF EXEMPTIONS FOR FINANCIAL SERVICES IN ETHIOPIA
The Ethiopian Value Added Tax of 2002 follows the standard approach of exempting financial services from VAT. Not all ‘financial services’ are, however, exempted from VAT. A number of services provided by the financial institutions are made taxable by the VAT laws of Ethiopia. No subject in this regard has probably attracted as much attention and controversy as that of sale by foreclosure of property held as security by banks. Both sides (i.e., members of the financial industry and the tax authorities) seemed locked in their conviction over the treatment of foreclosure sales in VAT. Members of the financial industry (in particular banks) are convinced that foreclosure sales enjoy the privilege of exemption in VAT while some within the Tax Authorities are equally convinced that foreclosure sales should be chargeable with VAT. These controversies have played out in the courtrooms, the press and a number of communications between the Tax Authorities and the members of the financial industry. This article examines these controversies and analyzes the scope of exemptions for financial institutions under Ethiopian VAT laws.
New Land lease Proclamation No. 721 –2011
Federal Negarit Gazeta No.4 28th November, 2011
18th Year No.4
Addis Ababa 28th November, 2011
Proclamation No. 721/2011
A PROCLAMATION TO PROVIDE FOR LEASE HOLDING OF URBAN LANDS
Short title: Urban Lands Lease Holding Proclamation No. 721 /2011.
URBAN LAND LEASE PROCLAMATIONS No. 721 –2011 (DOWNLOAD pdf)
Click on the above link, which will take you to the file attachment page
Basic requirements for the formation of a consortium of Charities and Societies
Following the coming in to force of Charities and Societies Proclamation no. 621-2009, the executive organ has issued regulations and directives for the implementation of the law. The Council of Ministers, which is delegated with a general power of issuing regulations for the successful implementation of the proclamation, issued a regulation (Council of Ministers to provide for the registration and administration of Charities and Societies Regulation number 168/2009) providing for the basic rules of procedures and requirements governing registration and administration of charities and societies. However, the detail (in practical terms, these are the most important rules) are found in the directives issued by the Charities and Societies Agency. So far, the Agency has issued about eight directives (Unfortunately, all of them in the Amharic language only.)
- You can download seven of the eight directives from Consortium of Christian Relief and Development Association web site. Click HERE.
- Directive No. 2 is not available from the above link. You can down it from my Amharic blog በላ ልበልሃ. Click HERE.
The first directive of the charities and Societies Agency, (Directive No. of 2002) provides detailed rules of procedure and requirements necessary to form a consortium. The Charities and Societies Proclamation No.621/2009 generally gives recognition to the right of charities and societies to form a consortium to co-ordinate their activities, leaving the particulars to be determined by the Agency. (See Article 15 sub 3 and Article 55 sub 2 of the proclamation)
Similarly, Article 8 of Council of Ministers to provide for the registration and administration of Charities and Societies Regulation number 168/2009, lays down a general rule for the formation and registration of a consortium, which is also contained in the directive in a more detailed and elaborated manner.
The following brief note about the pre-conditions and procedures applicable to the formation of a consortium highly relies on the content of the directive. (Directive No. of 2002)
Who can establish a consortium?
Generally speaking, there are no restrictions on the types of charities and societies eligible to establish a consortium. However, the directive prohibits the establishment of a consortium as between charities and societies, if they are within a different category. Accordingly:
- Ethiopian Charities could not form consortium with Ethiopian Residents Charities or Foreign Charities
- Ethiopian Societies could not form consortium with Ethiopian Residents Societies
- Charities could not form consortium with Societies
The minimum number of members to establish a consortium is two. There is no legal limit as regards the maximum number.
Purpose of a establishing a consortium
Article 5 of the directive lays down the purpose of establishing a consortium, in broad and general terms. Accordingly, consortium may be established by charities and societies with a view to facilitate or co-ordinate their objectives and activities. When one compares the provisions of the proclamation and the regulation in this regard, they don’t employ the same language in describing the reason or ground of establishing a consortium. According to the proclamation, charities and societies may establish a consortium ‘to co-ordinate their activities.’ On the other hand, the regulation states that such a consortium may be established by charities and societies ‘in order to achieve their common objectives.’ This raises a question as to whether charities and societies not sharing any common objectives could be established simply to coordinate their activities.
In order to avoid any confusion in this regard, sub-article 2 of article 5 of the directives, lists down some of the acceptable grounds for establishing a consortium. Hence charities and societies mat establish a consortium to:
- Achieve their common objectives
- Share experiences, information and ideas
- Build capacity of members
- Developing ethical and professional capacity of members
- Tackle problems encountered by members, creating conducive environment, conduct consultation with relevant stakeholders
Pre-conditions for establishing consortium
The following requirements should be cumulatively fulfilled to establish a consortium
- Rules of the consortium signed by member constituting the consortium.
- Minute of members which contains their joint decision to establish consortium.
- Renewed license of each member issued by the agency or a regional agency authorized by law to issue license
- Minute of each member which contains a decision by its higher body to establish the consortium or a member of the consortium.
The content of Rules of a consortium
According to article 2(11) of the proclamation rules shall include the objects for which a Charity or Society is formed, or which it may pursue, or for which its funds may be applied; the qualifications for membership and for the holding of any office; the method of appointment or election to any office; the rules by which the Charity or Society is to be governed; and the method and manner by and in which any of the above matters may be amended.
Rules of a consortium should in the first place, contain the particulars listed down in article 6 of the registration and administration of charities and societies regulation no. 168/2009. Accordingly the rules of a consortium should contain the following particulars.
- Name, address and objectives of the consortium
- Organizational structure of the consortium
- Budget year
- The utilization and administration of the financial resources of the consortium
- Procedure through which officers of the consortium are elected or employed including their powers, functions and terms of office.
- The conditions on which membership or tenure of officers of the consortium cease
- Meeting and decision making procedure of the governing body and executive organs of the consortium
- Procedure through which the rules of the consortium are amended
- Sources of income of the charity
- Logo or symbol, if any
- Procedure to be applied in case of dissolution
The regulation authorizes the agency to prescribe additional particulars to be included in the rules of charities and societies. Similarly, such authorization also extends to the contents of the rules of a consortium.
Article 7 of the directive lists down additional particulars to be included by a consortium in addition to those required by regulation no. 168/2009.
Accordingly, the rule of a consortium shall contain the following particulars:
- Procedure for admission of membership
- Rights and duties of members
- Grounds of termination of membership
- Voting and meeting procedure of the general assembly
- Election and decision making procedure of the general assembly
- Contribution of members
- Conditions for dissolution of the consortium
Organizational structure and membership of consortium
Generally speaking, it is up to the members to device their own rules, regulations and procedures governing the internal matters of the consortium. However, the directive lays down some minimum requirements uniformly applicable to all consortiums as regards management and membership.
The management of any consortium should comprise of a general assembly, board of executives and an auditor. This is only a minimum requirement. A consortium could have additional organs, bodies or committee responsible for specific tasks.
The general assembly follows up and supervises the activities of the board of executives. The minimum number of the members of the board of executives is 5 (five) whereas, the general assembly should comprise of members twice the number of the board of executives. It is also possible to have more members on the general assembly. For instance, for a consortium having 8 (eight) members, the equivalent number of members on the general assembly is 16 (sixteen) or more than sixteen. But, it could not be less than sixteen.
All ordinary members of the consortium have equal voting right and representation in the general assembly. In additional to the ordinary members constituting the consortium, associate and honorary members who lack a voting right could also be admitted. The role and contribution of these members should not go beyond the objectives of the respective consortium or the spirit of the charities and societies proclamation.
Establishment and registration
Once a consortium is established by fulfilling the minimum conditions and requirements set by the proclamation and mainly by the directive, it has to be registered within three months by the Charities and Societies Agency. Registration endows the consortium a legal personality which shall be effective from the date of registration. The legal personality of the consortium is distinct from that of the constituting members. For all legal purpose, it shall be considered as having its own independent existence.
Revocation of Registration and Dissolution
Article 92 up to 94 of the charities and Societies proclamation is similarly applicable to a consortium as regards the grounds, procedures and effects of revocation of registration and dissolution. Members of the consortium may provide their own grounds and procedure for dissolution. However, at least 3/4th of the members of the general assembly should be present if a decision for dissolution is to be reached. Any such decision is void if the members present in the meeting are less than 3/4th of the total members of the general assembly. In case of dissolution, the higher authority of the consortium may decide for the partition of property, equally among members or transferring the whole asset and property to a consortium having similar objectives. In both cases, such decision has to be approved first by the Charities and Societies Agency to be effective.
Consortium of Consortiums
The directives allows for two types of associations. The first one is a consortium which is established by two or more individual charities and societies. Sometimes there might be a need to organize at a national level. Consortium of consortiums may become a preferred form of organization for such type wide-scale association. According to article 10 of the directives legally registered consortiums may again establish a consortium of consortiums “if it is proved that there is no other alternative other than establishing a consortium of consortiums.” The directive lacks clarity in the conditions that must be met before establishing a consortium of consortiums. It simply referes to the requirements, conditions and procedures of a consortium and makes them applicable mutatis mutandis to consortium of consortiums.
I think it is not too late to say merry Christmas. Merry Christmas for all!!
2011 was a wonderful year in my blogging activity. Here is a brief overview.
I started chilot.wordpress.com (now chilot.me) on January 18, 2011 (only days left to celebrate my first year.) During this one year, Ethiopian legal brief has grown significantly mostly in content and to some extent in quality. I would like to warmly thank all of you who have visited my blog, specially those of you who have active on my blog by posting constructive comments sending me encouragement, advice and even complaints.
Here is a brief overview my report in addition to the one prepared by wordpress.com
128 WordPress.com blog followers. 14 WordPress.com comment followers.WordPress tells me that all of my followers are now 440 (including 290 Twitter followers. 22 Facebook followers.
Total Comments: 225
views for the first month (i.e. January 2011) =121
views for the last month (i.e. December 2011)= 25, 345
Still not doing well on alexa, but just for the purpose of comparison:
Previous: alexa rank for chilt.wordpress.com = 25 million and no regional data.
Current: alexa rank for chilt.wordpress.com = 781,196 and 278 in Ethiopia.
Special thanks to:
- Aseged Engeda (Sacramento, US) who helped me get my own domain. (chilot.me)
- Ethiopian blog (http://ethiopian-blog.com/)
- danielberhan’s blog
- All of you who sent me feedback through contact me page.
- All of you who left your comment. Most of the comments came from the following visitors. Thanks again.
kebede 5 Kedir Mohammed 4 kaleab 4 temesgen berhanu 3 Adinew Lonseko Chinkiso 3 WONDIMU
The plan for 2012
Here is a brief outline of what I will be doing in 2012.
- Keep blogging
- Case comments on a regularly basis.
- Articles and legal analysis
- Moving to wordpress.org provided someone help me with online payment. The problem with me is not the cost, rather the mode of payment.
What follows is the annual report by worpress.com about Ethiopian legal brief.
The WordPress.com stats helper monkeys prepared a 2011 annual report for this blog.
Here’s an excerpt:
The Louvre Museum has 8.5 million visitors per year. This blog was viewed about 77,000 times in 2011. If it were an exhibit at the Louvre Museum, it would take about 3 days for that many people to see it.
About TADDESE LENCHO (profile is at the time this article written)
Currently a Lecturer, formerly the Associate Dean and Acting Dean of the Faculty of Law, Addis Ababa University; he holds LL.B (AAU), LL.M(University of Michigan Law School)
E-mail:firstname.lastname@example.org. r am grateful to all the assessors who kindly went through the draft version of this article and pointed to errors of one sort or 8Ilmher. Responsibility for al1 the errors that remain is all mine
JOURNAL OF ETHIOPIAN LAW
VOL. XXII No. 2
ETHIOPIAN BANKRUPTCY LAW: A COMMENTARY (PART I)
The bankruptcies came to us from Italy, bancorotto, bancarotta, gambarotta e la giustizia non impicar _. Every merchant had his bellch C banco..J in the place of exchange; and when he had conducted his business badly, declared himself Jallito and abandoned his property to his creditors with the proviso thai he retain a good part of it for himself, be free and reputed a very upright man. There was nothing to be said to him, his bench was broken, banco rotlo, banca rotla ; he could even, in certain towns, keep all his property and baulk his creditors, provided he seated himself bare-bottomed on a stone in the presence of all the merchants. This was a mild derivation of the old Roman proverb solvere aut in aere aut in cute-, to pay either with one’s money or one’s skill. But this custom no longer exists; creditors have preferred their money to a bankrupt’s hinder parts.
Voltaire, Philosophical Dictionary, ‘Bankruptcy’
It is no exaggeration to state that Ethiopian Bankruptcy Law (tucked away in the last Book of the Commercial Code) is the least known and hence the least practiced in Ethiopia. Since the coming into force of the Commercial Code in 1960, cases having to do with bankruptcy have been few and far in between.’ Why might this be? Is the defect in the law or in the economic environment? Is Ethiopian business environment immune from the natural laws of bankruptcy or has it always gone bankrupt without ever being noticed by the public or mediated by the law?’ The Economist magazine recently quipped that imagining capitalism (business enterprises) without bankruptcy is like imagining Christianity without hell. 3 Perhaps, that is what happened in Ethiopia.
The questions of why bankruptcy laws have become dormant are troubling questions. However, as troubling they are, they cannot be answered in categorical terms. An answer to these questions would require an extensive empirical study of the business environment and the historical factors that might have kept the bankruptcy laws of Ethiopia from having to see the light of the courts.
There is no shortage of theories as to why bankruptcy cases are not as common as the failure of businesses would suggest. One theory puts the blame on the freezing of commerce in the aftermath of the 1974 Ethiopian Revolution, tying the (mis)fortunes of the bankruptcy provisions to the Commercial Code in general.4 The problem with this theory is that it only explains why bankruptcy fell into disuse between 1974 and 1991. It does not explain the situation after 1991 when the economy of Ethiopia was more or less liberalized (seventeen years and counting!).
Another theory is lack of familiarity (of the legal community) with the provisions of bankruptcy in the Commercial Code. Lawyers are a critical piece in the application of the law. If lawyers do not know or understand the law, it is unlikely that the law will ever come to courts even if it were included in the Code. It is what Emperor Haile Sellassie J was emphasizing in his speech on the inauguration of the Journal of Ethiopian Law:
… We have observed that Ethiopia’s rapid progress demands the services of a large number of legal experts … capable of insuring the effective application of the laws
In a recent report commissioned by the USAID, this matter has been aptly emphasized:
There is little demand for change from the debtor side because so little is known about bankruptcy protection. The possibility of reorganization or’ protection arises not only from law, but from knowledge of the law, and that is quite limited.
The third theory points to the foreclosure laws and practices of Ethiopia as probable reasons for the eclipse of bankruptcy. According to the USAJD Commissioned report:
lenders are using foreclosure law and practice instead of bankruptcy. Secured lenders can institute accelerated proceedings to repossess and liquidate security and do not need to start a bankruptcy action. Frequently, borrowers are’ captive to a single lender, with few other commercial obligations than their bank loan, so that foreclosure effectively deals with most of the debtor’s liabilities, although it does not permit rehabilitation or reorganization and often results in liquidation. 7
Foreclosure powers were granted to banks and selected other creditors only in the last decade and could not entirely explain why bankruptcy practices are not so common.8 It is perhaps nearer to the truth to conclude that multiple factors were conspiring to keep bankruptcy out of the limelight of the practice.
Although cases of bankruptcy have rarely been taken to courts, there are several reasons why one should write about Ethiopian bankruptcy law. First, it is barely known even among the otherwise savvy and seasoned lawyers of Ethiopia. Second, it has now been offered as an independent course for the last five or so years without any reference material. And lack of reference material is always a legitimate inspiration for writing (even if it were just an article). Third, since 1991, Ethiopia has taken on an economic policy whose driving engine is the participation of the private sector, and the private sector needs laws not just for its formation but also for its orderly winding up and possibly for its rehabilitation after bankruptcy.’ It is not that Ethiopia lacks these laws but they are unknown even among those who earn a living from their knowledge of the law.
This commentary is divided into two parts. In the first part, I intend to treat subjects like the background of Ethiopian bankruptcy law, its organization and structure, scope and meaning, and the tests for commencement of bankruptcy under Ethiopian bankruptcy law. In the second part, I intend to throw light on some of the other basic features of Ethiopian bankruptcy law and related subjects of composition and schemes of arrangement.
At the end of each part, I will provide some concluding remarks on what I think would be striking features of Ethiopian bankruptcy law. For these commentaries, I have relied upon as wide a range of literature on the subject of bankruptcy as I could get my hands on. But as repeated quotes and references in the footnotes show, I am indebted primarily to the 2005 UNCITRAL Legislative Guide on Insolvency Law of 2005 (hereinafter simply ‘UNCITRAL’ Guide’).l0 As far as I am concerned, ‘UNCITRAL Guide’ offers the latest and most comprehensive reference on the subject of bankruptcy. The ‘UNCITRAL Guide’ also provides alternative approaches on controversial points of bankruptcy, something one can rarely find in many other sources. .