This is the last part of ‘some usual facts about repeal in Ethiopia.’ It discuses the power of the rime minister to repeal a law and the sudden action of parliament to repeal its ‘law-making law’
Power of the prime Minister to repeal a law
Article 74 of the F.D.R.E. Constitution grants wider powers to the prime minister of the country. Even though, the Constitution allows conferring more powers to the prime minister other than those indicated in article 74 by issuing a law to this effect, in practice almost all the proclamations that define the powers and duties of the executive organs, do not provide for additional powers. Usually there will be simply a reference to article 74 of the constitution.
“The powers and duties of the Prime Minister of the Federal Democratic Republic of Ethiopia shall be as specified under Article 74 of the Constitution.” [Article 3 of Proclamation No. 691/2010 Definition of Powers and Duties of the Executive Organs of the Federal Democratic Republic of Ethiopia Proclamation]
My intention here is not to discuss the extent and scope of the power of the Prime Minister, rather to raise a question about his power of repealing a law. Does the Prime Minister have a power to repeal a law? Surely he does not have any power to repeal a law issued by the highest law making organ (The House of People’s Representatives.) What about regulations issued by the Council of Ministers and directives of administrative agencies? Looking at article 74 of the Constitution, it in no way provides such power to the prime minister. This similarly holds true for the laws of Addis Ababa Administration even though the administration is accountable to the federal government. On the other hand, the House of People’s Representatives is not constitutionally authorized to make a law empowering the prime minister to repeal a law.
Now, it is time to read article 3 sub article 3 of Proclamation No. 87/1997 (Addis Ababa City Government Charter Proclamation)
“The regulations, Directives and Decisions of the Addis Ababa City Government may be suspended or repealed by the Prime Minister of the Federal Government where they are deemed to be Prejudicial to the National Interest”
The scope of this provision seems to be limited to subordinate legislation, since it only mentions regulations and directives. Hence, it may be argued that the provision applies only to subsidiary legislation of the City Council. However, a brief look at some of the regulations issued by Addis Ababa administration, does not suggest that the term ‘regulation’ is used to refer to a law issued through delegation by a body subordinate to the city council. For instance the Addis Ababa City governmental information provision and standardization regulation number 34/2010 is issued by the City Council, which is the legislative organ of the administration. Even assuming that ‘regulation’ is a delegated legislation does not justify the power of the prime minister. The House of People’s Representatives by granting a repeal power to the prime minister clearly goes beyond the limits of its law making power as provided in the constitution.
The good news is that Addis Ababa City Government Charter Proclamation No. 87/1997 is totally repealed by the Addis Ababa City Government Revised Charter Proclamation No. 311/2003 (The repealing law is also repealed by the Addis Ababa City Government Revised Charter Proclamation No. 361/2003.) The current law which repealed previous legislations (Proclamation No. 361/2003) including subsequent amending proclamation (Proclamation No. 408/2004 Addis Ababa City Government Revised charter (Amendment) Proclamation) does not provide any power of repeal to the prime minister.
Parliament repealed its own ‘law-making’ law
Until 2006, the House of Peoples’ Representatives regulated its own legislative procedure by issuing a law (i.e. a proclamation) to this effect. All of a sudden it repealed its own ‘law-making’ law. The title of the repealing law is:
Proclamation No. 503/2006 The Proclamation to Repeal the Amended Proclamation of the House of Peoples’ Representatives Working Procedure and Members’ Code of Conduct Proclamation
Article 2 of the proclamation reads:
“[Article] 2 Repealed Laws
The Amended Proclamation of the House of Peoples’ Representatives working procedures and members’ code of conduct proclamation No. 470/2005 is hereby repealed in full.”
The first law enacted by parliament regulating the legislative procedure is Proclamation No. 14-1995 House of Peoples’ Representatives legislative Procedure Proclamation. After a year it was amended by Proclamation No. 33-1996 House of Peoples’ Representatives Legislative (Amendment) Proclamation. Both Proclamations were repealed by Proclamation No. 271/2002 House of Peoples’ Representatives Legislative Procedure, Committees Structure and Working Proclamation. The repealing law was again repealed by the Federal Democratic Republic of Ethiopia House of Peoples’ Representatives Working Procedure and Members’ Code of Conduct (Amendment) Proclamation No. 470/2005. For the last time Proclamation No. 470/2005 is now ‘repealed in full’ by Proclamation No. 503-2006 (Repeal of the Amended HPR Working Procedure and Members Code of Conduct Proclamation)
So, why did parliament choose to abolish any law regulating the law making process? Actually, what parliament has done is substituting the proclamation governing the legislative procedure by its own internal regulations. In short, it decided that the legislative procedure should not be regulated by a proclamation published in the Negarit Gazeta, but by an internal regulation not accessible to the public. Be it a proclamation or a regulation, the contents of any legislative procedure will be adopted by a majority vote of the house. Practically, it seems it doesn’t make a difference. Yes it true, if it is a regulation it is not subject to the requirement of signature by the Nation’s President to be effective. It may also be said the regulation will be valid in the absence of publication in the Negarit Gazeta.
As indicated in the preamble of the repealing law, the sudden move by parliament seems to emanate from Article 59 sub article 2 of the constitution. The provision reads:
“The House shall adopt rules and procedures regarding the organization of its work and of its legislative process.”
It may be said that this provision of the constitution allows parliament to regulate the legislative procedure by its own internal regulations. However, this could not be submitted as a convincing ground justifying repeal of Proclamation No. 470/2005. Parliament is expected to provide a practical necessity or a goal to be achieved in choosing a regulation over a proclamation. The preamble part simply states ‘…it has become necessary…’ without providing a single instance of the necessity.
Here is the preamble part of Proclamation No. 503-1998
“WHEREAS, the House is expressly provided by Article 59(2) of the constitution of the Federal Democratic Republic of Ethiopia to adopt rules and procedures regarding the organization of its work and of its legislative process;
WHEREAS, it has become necessary to issue regulation in accordance with the constitution regarding the working procedures of the House, as practiced in other countries;
WHEREAS, it has become necessary to repeal the Amended proclamation of the House of peoples’ Representatives working procedures and members’ code of conduct, and there by replace it by regulation”
If Article 59(2) of the constitution was the real justification, does it mean that the House of People’s Representatives was acting contrary to the constitution until the time it repealed Proclamation No. 470/2005? By the way I am so surprised by the fact it took more than 10 years for parliament to realize the existence of article 59 sub 2 of the constitution.
So, which regulation now regulates the legislative procedure? As I have said it before one of the problems of a regulation is its inaccessibility. Some lawyers may have knowledge that currently, the law making process of parliament is governed by regulation No. 3/2006 (The House of Peoples‟ Representatives of the Federal Democratic Republic of Ethiopia Rules of Procedures and Members‟ Code of Conduct Regulation.) But I doubt whether they have access to it. Previously the regulation used to be on official web site of the HPR, now it could not be found.
I was lucky to get the English version of the regulation and you can also get it here.
Click HERE to read/download regulation No.3-2006
Double Repeal and repeal after indefinite period of time
It is difficult even for law makers to remember each and every law they have amended and repealed. With the ever increasing quantity of legislations issued by the law maker and subordinate organs, sometimes it may happen that a provision of the law be repealed twice. Here are two instances:
A.) Proclamation No. 287/2002 (Tax on Coffee Exported from Ethiopia (Amendment) Proclamation) is an amendment to Proclamation No.99/1998 (Tax on Coffee Exported from Ethiopia.) One of the provisions of the previous law which was amended by Proclamation No. 287/2002 is Article 4. This Article provides that the rate of Tax payable on Coffee exported from Ethiopia shall be 6.5% (six and point five per cent) of the FOB price. FOB is defined in the proclamation as selling price of coffee quoted at the port of loading, agreed between the Coffee exporter and his customer and approved by the National Bank of Ethiopia, from which freight and insurance costs are excluded.
Article 2(1) of Proclamation No. 287/2002 mainly amends the tax rate lowering it to zero. It reads:
Article 4 of the proclamation is deleted and replaced by the following new Article 4.
“4. The rate of the Tax which has been 6.5% (six and point five per cent) shall be zero”
However, the deletion and replacement to article 4 of Proclamation No.99/1998 is a double repeal as it has already been deleted by Council of Ministers Regulations No.73/2001(Tax Amendment on Exported Coffee Council of Ministers Regulations.)
Article 2 of the regulation reads:
Article 4 of the Tax on Coffee Exported from Ethiopia Proclamation No.99/1998 is deleted and replaced by the following new Article 4:
4. Rate of the Tax
1) The Rate of the Tax shall be 6.5% (six and point five per cent) of the FOB price.
2) Notwithstanding the provisions of Sub-Article (1) above, no tax shall be levied if the FOB price of the coffee exported is:
(a) Below 105 cents (one hundred five cents) per pound for washed coffee;
(b) Below 70 cents (seventy cents) per pound for unwashed coffee.
By way conclusion, it means that article 4 of Proclamation No.99/1998 was repealed by Proclamation No. 287/2002 after it [Proclamation No.99/1998] was repealed by Regulations No.73/2001.
B.) Article 17(1) of the Census Commission Establishment proclamation No. 84/1997 states that the Population and Housing Census Commission Establishment Proclamation No.32/1992 is repealed. However, Proclamation No.32/1992 was again repealed for the second time by article 18(1) of Proclamation No. 180/1999 (Census Commission Establishment Proclamation)
The problem seems to have been created due to failure of parliament to set exact expiry date for Proclamation No.32/1992. Even though it [Proclamation No.32/1992] was expressly repealed by Proclamation No. 180/1999, its applicability was extended for indefinite period of time. According to article 19 of proclamation No. 84/1997, the previous proclamation (32/1992) will remain applicable with respect to census undertakings not completed and until such time that the Secretariat (of the Census Commission) is properly organized. Hence, someone has to wait until he/she is told that the Secretariat (of the Census Commission) is properly organized to verify whether the proclamation is active or not. It is a subjective condition and no one could for sure know that it is actually repealed. When I say no one, it includes the House of People’s Representatives. That is why it repealed the same law twice.
What is more interesting is article 20 of Proclamation No. 180/1999. It reads:
“Notwithstanding the provisions of Article 18 (l) of this proclamation, Proclamation No. 32/1992 shall remain applicable until such time that the Secretariat is properly organized.”
It may be confusing, but this article seems to suggest that Proclamation No. 32/1992 which was repealed twice is still active for some unknown time in the future… until such time that the Secretariat is properly organized! By the way, why was it so difficult to organize the secretariat of the Census Commission? [It took more than two years!]
Repeal for the unusual ground
Why is a law repealed? There may be so many convincing justifications to repeal a law, but definitely the following two cases are wrong [I mean may be unusual] answers to the question.
· National Lottery Administration Re-establishment Proclamation No.535/2007
[Article] 22 Repealed and Inapplicable Laws
1/ The National Lottery Administration Re-establishment Proclamation No. 510/2007 .having not been published as endorsed by the House, is hereby repealed
· Addis Ababa City Government Revised Charter Proclamation No. 361/2003
[Article] 67. Repealed Laws
1) The Addis Ababa City Government Revised Charter Proclamation No. 311/2003, having been published with its contents changed without following the Legislative Procedure, is hereby deleted and replaced by this Charter
I was writing an article under a general title ‘Some unusual facts about repeal in Ethiopia’ After writing the first topic I found it good to break it down in to a series of posts. Here is the first part
Repeal of a court decision by law (Legislative review of Court Decisions?)
According to the 1995 Ethiopian Constitution, the House of Federation has a power to interpret the constitution. Although the meaning and scope of the ‘constitutional adjudication’ in general is subject to controversy among some legal scholars, practically we all agree that ordinary courts do not have any power over questions of constitutionality of a proclamation issued by the House of People’s Representatives. The courts are even reluctant to exercise their power of review over the legality of subordinate legislations (regulations and directives) and administrative decisions.
So, as I have said there is no such thing as judicial review of legislation in Ethiopia. What about legislative review of judicial decisions? I mean what about giving power to the House of People’s Representatives to repeal or invalidate those court decisions which are manifestly erroneous or contrary to public interest. I guess most of you will strongly object to this odd ‘concept.’ Yes it is odd, but there is proof that parliament has repealed or invalidated existing court decisions after they were pronounced.
If you have doubt over the validity of this fact, just read Article 3 sub 2 of Civil Code As Amended Proclamation No. 639/2009. This law was issued in response to the position of courts (including the cassation bench) in giving meaning to article 1723 of the 1960 Ethiopian Civil Code. Sub article 1 of article 1723 provides that a contract creating or assigning rights of ownership or bare ownership on an immovable or an usufruct, servitude or mortgage on an immovable shall be writing and registered with a court or notary. To be honest this article is clear and does not need any interpretation. The problem is that it is applicable to mortgage contracts concluded with banks. In practice almost all bank mortgage contracts were not registered with a court or notary. Hence, the fate of such contracts were invalidation by court. This posed a great danger to banks, especially to the commercial Bank of Ethiopia as it results in the loss of huge amount of money not collected from borrowers.
Actually, it was a problem created by the banks, (as they have failed to comply with the requirement of registration) not by the courts. Any ways parliament thought it necessary to act immediately, to reverse the situation. Then it issued Civil Code As Amended Proclamation No. 639/2009. The title of the proclamation seems to suggest that it is amendment to article 1723 of the Civil Code. However, its content clearly goes beyond amendment.
The proclamation contains three important provisions.
1. Article 2 Amendment
The title of Article 2 talks about amendment, but practically it partially repeals article 1723 sub article 1 of the civil code. Article 2 of the proclamation makes the registration requirement of contract of mortgage concluded to provide security to a loan extended by a bank or a micro-financing institution unnecessary. In effect it makes mortgage contracts concluded with banks and micro-financing institutions valid even though not registered with a court or a public notary. This applies to mortgage contracts concluded after the proclamation became effective.
2. Article 3(1) Transitory Provisions (Retroactive measure to previous contracts)
Clearly Article 2 of the proclamation was not sufficient to avert the then existing danger posed to banks. What about mortgage contracts concluded before the issuance of the proclamation? This was dealt in Article 3 sub 1 which reads:
“The validity of any contract of mortgage concluded, prior to the effective date of this Proclamation, to provide security to a loan extended by a bank or a micro-financing institution, may not be challenged for not being registered by a court or notary in accordance with Article 1723 of the Civil Code.”
This will force courts to give effect to unregistered mortgage contracts concluded not only after the effective date of the proclamation, but also to those mortgage contracts concluded before the proclamation. You may say this is against the principle of non-retroactivity of laws, but thanks to the F.D.R.E. Constitution, it only provides for non-retroactivity of criminal laws not civil laws.
3. Article 3(2) Transitory Provisions (Retroactive measure to court decisions)
Even after amending article 1723 (1) and providing a solution to previous contracts, Parliament did not stop there. Before the issuance of the proclamation, courts have already started invalidating mortgage contracts for lack of registration. No one denies the decision of courts severely affected the interest of banks. So, what should be done? (if anything is possible to be done) What about invalidating (I mean repealing) the existing court decisions? That is too extreme and violation of the constitutional principle of separation of powers. However, principle gave way to saving the banks and the House of People’s Representatives invalidated the existing court decisions, rendered prior to the effective date of this Proclamation.
Here is the full text of the article
Article 3(2) of Civil Code As Amended Proclamation No. 639/200
Any court decision, rendered prior to the effective date of this Proclamation, to invalidate a contract of mortgage concluded to provide security to a loan extended by a bank or a micro-financing institution, for not being registered by a court or notary in accordance with Article 1723 of the Civil Code shall have no effect.
PROCLAMATION NO. 674/2010
A PROCLAMATION TO PROVIDE FOR THE REGISTRATION AND CONTROL OF PESTICIDE
WHEREAS, the use of pesticides for different purposes such as for raising crops, animal breeding and the protection of public health has been growing steadily;
WHEREAS, it is necessary to lay down a scheme of control which would minimize the adverse effects that pesticide use might cause to human beings, animals, plants and the environment;
WHEREAS, it is necessary to enact a comprehensive legislation to regulate the manufacture, formulation, import, export, transport, storage, distribution, sale, use and disposal of pesticides and other matters related thereto;
NOW, THEREFORE, in accordance with Article 55 sub article (1) of the Constitution of the Federal Democratic Republic of Ethiopia it is hereby proclaimed as follows:
Ethiopia has pardoned two Swedish journalists jailed last year for supporting terrorism, an official has said, adding they would be freed soon.
Martin Schibbye and Johan Persson are serving an 11-year jail term after they were captured in July 2011 with rebels in eastern Ethiopia.
Prime Minister Meles Zenawi pardoned the journalists before his death last month, the official said.
They have always argued they were in Ethiopia just to do their job.
Schibbye and Persson appealed for clemency following their conviction in December 2011 for supporting the Ogaden National Liberation Front (ONLF), which Ethiopia regards as a terrorist group.
The official, who spoke on condition of anonymity, said they would be freed this week along with about 1,900 other prisoners.
“It was never the intention of the government to see them languish in jail,” he is quoted by AP news agency as saying.
The Ethiopian New Year – when prisoners are often released – will be celebrated on Tuesday.
Mr Meles, who was in power for 21 years, died last month after a long illness.
The government said his deputy, Hailemariam Desalegn, would be sworn in to serve as prime minister until the next election, due in 2015.
But this has not yet happened, fuelling speculation of a power struggle.
Schibbye and Persson were captured by Ethiopian troops during a clash with ONLF fighters in July 2011.
The men acknowledged during their trial that they had held talks with ONLF leaders in London and Nairobi, before entering Ethiopia from Somalia and meeting about 20 members of the group 40km (25 miles) from the border.
They said their contacts with the ONLF were intended to help them to get into a region the Ethiopian authorities would not allow journalists to enter.
They said they wanted to report on the activities of a Swedish oil company, Lundin Petroleum, in the Ogaden.
Both men denied terrorism charges, including claims that they had been given weapons training.
Rebels in the Ogaden region have been fighting for independence since the 1970s, and the ONLF has been at the forefront of the fight since it was founded in 1984.
The Ogaden is an ethnic Somali part of Ethiopia.
One ONLF faction has signed a peace deal with the government, but another splinter group has continued to fight the army.
Rights groups accuse Ethiopia of trying to cover up abuses by troops in the region.
Proclamation No.744/2012 Agreement on Scientific and Technological Cooperation between the Government of the Federal Democratic Republic of Ethiopia and the Government of the People’s Republic of China
Proclamation No.745/2012 Agreement on Scientific and Technological Cooperation between the Government of the Federal Democratic Republic of Ethiopia and the Government of the Republic of Korea Ratification
Now You can easily get all directive in ONE.
Use Bookmark or Table of Contents to find a specific directive within the compilation.
National Bank of Ethiopia
National Election Board
Ethiopian Broadcasting Authority
(የመንግስት ቤቶች ኤጄንሲ በሚያስተዳድራቸው ቤቶች የተፈፀሙ ህገ-ወጥ ተግባራትን ስርዓት ለማስያዝ እንዲቻል ተሻሽሎ የተዘጋጀ መመሪያ)
- በትምህርት ተቋማት የአምልኮ ሥርዓትን በሚመለከት የወጣ መመሪያ
- የግል ከፍተኛ ትምህርት ተቋም የመጀመሪያ ዱግሪ ትምህርት የዕውቅና አሰጣጥ መመሪያ
- ከቴክኒክና ሙያ ትምህርትና ሥልጠና መስክ ወደ ከፍተኛ ትምህርት ተቋም መሸጋገሪያ መመሪያ
For list of Directives included in Each directives CLICK HERE
The Sport Facilities Administration Proclamation may not be as controversial as the new Urban Land Lease Proclamation; however, an unexpected incident during its adoption has made it somewhat ‘Historical’ document. An interesting description regarding the incident is found on capital, one of the country’s top business newspapers.
In a rare show of dissident in the House of Peoples’ Representatives whose 546 of 547 seats are filled by the ruling EPRDF and its affiliates, two ruling party Members of Parliament on Thursday abstained while the majority approved a new proclamation for the administration of sport facilities allowing alcohol ads to be placed in stadiums, while at the same time levying punishment on crimes yet to be spelled out.
(Two ruling party MPs abstain as majority approves controversial sport facilities’ bill Monday, 09 January 2012)
The two representatives were unhappy about the criminal sanctions imposed by the proclamation in article 11(3) (b) &(c). Article 11 (3) (b) of the proclamation makes advertisement in sport facilities about cigarettes or cigarette related substances or liquors with more than 12% alcoholic content a criminal act punishable with imprisonment from six month to one year and with fine from Birr 5,000 to Birr 10,000. This law comes as a good news for the beer industry as they could advertise their products in every sport facility. (The alcoholic content of beer on average is not more than 12%)
The 12% ceiling was unacceptable for the two MPs. It seems they just wanted the prohibition of any advertisement about alcoholic beverages in sport facilities. As reported by Capital, one of the MPs raised a challenging question regarding the unwanted side effects of the law. He asked “Aren’t we sending the message that the alcohol we know to be harmful to the public is ‘ok’ only because their alcoholic content is below 12 percent?”
The other point of dissent was the way the act constituting a crime in article 11 (3)(c) is stated. According to this article, any person who commits in sport facilities, other acts prohibited by regulation issued for the implementation of this Proclamation; is punishable with imprisonment from six month to one year and with fine from Birr 5,000 to Birr 10,000.
Honestly speaking, it is logically and practically impossible to obey this provision. It lays down a punishment, but you can not for sure know the criminalized act.
This is not the first time parliament has failed to be guided by the basic principles of criminal law in its criminal legislation on specific laws. I have tried to briefly address this issue on my previous post ‘You could be a criminal without committing a crime.’ According to Article 20(6) of Forest Development, Conservation and Utilization Proclamation No.542/2007 anyone will be punished with not less than 6 months and not exceeding 5 years imprisonment and with fine Birr 30,000 if he commits A CRIMINAL ACT NOT SPECIEFIED IN THE PROCLAMATION.
The following is the text of Sport Facilities Administration Proclamation No. 729/2012. You can also download the pdf version of the document Continue reading →
Proclamation No. 724-2011 Export Import Bank of China Concessional Loan Agreement to Provide Loan for Financing the Bole Ring Road Round About- Meskel Square Road Project Ratification Proclamation Agreement
According to Ethiopian labour law, an employer loses his right to dismiss a worker irrespective of a valid ground of dismissal, if he fails to make a decision to terminate the employment contract within 30 working days. The time starts to run from the date the employer knows the ground for the termination. (Article 27(3) of the labour proclamation 377/2003)
The following is a brief summary of Cassation decisions regarding the application an interpretation Article 27(3.
The meaning of working days
Applicant Ethio-Djibouti Railway
Respondent Teshome Kuma
Cassation File Number 36377
Date: Hidar 2, 2001 E.C.
In the Federal First Instance Court, where the case was first heard, the respondent claimed reinstatement and 6 months back pay alleging that his contract of employment was terminated unlawfully by the Applicant. However, the applicant employer challenged the claim stating that termination was lawful as it was due to an unlawful act committed by the applicant worker.
The Federal First Instance Court found the termination unlawful on procedural ground without investigating the merit of the case. The Court ruled that the employer (Applicant) has failed to take an action of dismissal within one month as required by the labour proclamation. For this reason, judgment was given in favour of the respondent The court awarded him six months back pay salary and reinstatement.
Applicant lodged an appeal against this decision to the Federal High Court, but it was rejected.
Lastly, the applicant submitted his application to the Federal Supreme Court, Cassation division for review of the lower courts on ground of fundamental error of law.
The cassation division examined the legal issue involved in the case by interpreting article 27 sub 3 of the labour proclamation No.377/2003. Both the federal first instance and high court misread the article in determining the period of time to take dismissal action by the employer. Rather than examining whether 30 working days have passed from the date the employer knew the ground for the termination, they simply counted 30 days to reach at a conclusion.
This was indicated by the cassation division as a manifest error. Accordingly, the case was re-examined based on the facts affirmed in the lower courts in order to determine whether 30 working days have passed. As stated in the decision, the worker allegedly committed fault on Meskerem 24 and 25 1999 E.C. and his contract of employment contract was terminate on Tikimet 25 1999 E.C. From Meskerem 25 to Tikimet 25 there are four Sundays and assuming that Sunday is not a working day, there are only 24 working days during this time. Based on this calculation, the court reasoned, 30 working days have not passed, which makes the action of the employer valid for the purpose of time requirement.
Consequently, the decisions of the lower courts was reversed by the cassation division and the case was remanded to the federal first instance court to give its own decision on the merit i.e. the legality of termination of employment.