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THE HISTORY AND TRADITION OF JUDGMENT AND JUDGMENT WRITING IN ETHIOPIA

Taken from: Judgment Writing Teaching Material

Prepared by: Misker Getahun & Tafese Yirga

Prepared under the Sponsorship of the Justice and Legal System Research Institute

2009

THE HISTORY AND TRADITION OF JUDGMENT AND JUDGMENT WRITING IN ETHIOPIA

For the prime reason that there is no adequate source material to deal with the entire history and tradition of judgment and judgment writing in Ethiopia only, a brief account of discussion on the topic will be made in the forthcoming section. As such, the discussion will be based on the period from the reign of Emperor Zar’a Ya’eqob,(1434-1468) which marked the end of monarchical rule and the beginning of a new era.

In the legal history of Ethiopia, the first codified law of the country is coined with the name Zar’a Ya’eqob, who directed the compilation of the then existing legal norms by and through the Ethiopian Orthodox Church scholars. This law was known as “Fewuse Menfesawi”, which has the literal meaning of “spiritual remedies”. The contextual translation of same is “cannonical penances.” Emperor Zar’a Ya’eqob was not only the reason for the compilation of the then existing legal norms of the country in to a code,but he is also credited for making an order which resulted in the bringing of the copy of the so called “Fetha Negest” (the law of the kings) from Egypt and had it translated in to Ge’ez, which was the then working language of the country.

Another incident which has a historical as well as legal significance in the country came at the year 1931, which unfolded the promulgation of the first written constitution of Ethiopia by virtue of the then reigning Emperor of the country, Haile Sellasie I, whichestablished a two -chamber parliament (members of which were appointed by himself).

In between these great historical incidents i.e., the promulgation of the first ever written constitution of 1931 and the compilation of the ‘fewuse menfesawi’ oral as well as some foreign travelers’ travel memories (diaries) give evidence to the fact that the people of Ethiopia, then administered by local chiefs and tribe leaders, having their own small area to administer, were subjected to a particular norms and custom that were prescribed by the chief of the society.

Emperor Haile Sellasie I had replaced the 1931 Constitution by enacting the Revised Constitution in 1955 which among others came up with one of the chambers of parliament as elective body. In addition to these, the Emperor had managed to have promulgated six new modern law codes all between the years 1957 and 1965. These include; the civil code, the civil procedure code, the penal code, the criminal procedure code, the commercial code and the maritime code.

Basically there are two main criteria of identifying laws in to the three major legal families in the world: namely the Romano Germanic (Romanistic-German) family, the common Law family, and the socialist family. These are: the criteria of ideology (which is the product of religion, philosophy, or political, economic or social structure) and the criteria of legal technique.

Generally speaking, the major sources of the codified laws of Ethiopia seems to be the codes of continental or civil law systems, most of which were based on Roman law and jurisprudence. These western laws and jurisprudence, i.e., the Romanistic-German, were believed to have been transplanted in the Ethiopian legal system through reception when Ethiopia accepted the “Fetha Negest” in the fifteenth century, which was mostly based on Roman-Byzantine law.

However, it is important to say a few words, at this juncture, concerning the nature and application of laws in the country prior to the coming into force of the codified laws. Especially before 1936, cases were entertained in Ethiopia on the basis of the then existing customary laws, which could be different at different localities, and on natural law. Natural law, mainly, referred to be a moral law, has its basis on natural justice. It, originally, was meant to refer to a law of common-sense which could be applied by any reasonable person within a given society. Later, it was developed and elaborated so as to have application in light of religious edicts. Thus, it must be noted here that there was an administration of justice in the country even in the absences a written provision of law made by the state.  In the above mention has been fairly made with regard to the existence of applicable laws in the distant past as well as their nature and the source they were taken from. Apart from these, it is necessary to investigate in to the overall administration of justice and the manner of rendering and writing of judgment in Ethiopia, as a whole.

With respect to administrating justice in Ethiopia prior to 1936, it can be said that Ethiopians have a rich culture of participating in the administration of justice. This holds true, as it was considered as a “Civic duty” to take part in the administration of justice on the part of the people.

In the past, cases were used to be brought before any person in the locality and the person for whom the case is submitted for resolution was required to adjudicate as a judge or settle as an arbitrator. This kind of settlement of dispute was designated by foreigners as a “Road-Side-Court”. The person so requested would hear the dispute in the presence of people who happened to be there and finally decide the case as his conscience dictated him. If he found the case submitted to him for disposal is, however, complicated he would take the disputants himself or send them to the court of first instance by tying their clothes together, where the case was then made to be resolved (decided) in accordance with the customary law of the locality.

Hence, it should be underlined here that judgments given during these times were solely based on the personal appreciation of facts and on a person’s individual conception of justice. And customary laws, which mean without the existence of a written law, and more importantly the judgments, were given orally. As such, it appears difficult to deal with the features of the judgments being rendered then.

It is the year 1942 which heralded the coming in to existence of a structured court system in the history of the Ethiopian legal system. The Administration of justice proclamation of 1942, March 30, had also established a four-tier court system which later added the governor-general, sub-district and local judge courts.  A court of this nature had been exercising both civil and criminal jurisdictions within the same territorial limit.

By virtue of the administration of justice proclamation on March, 1942, there were created five hierarchically arranged courts in Ethiopia. These are, in accordance with their hierarchy from bottom to top, Yafer-Dagna or Yessir Dagna (court of first instance), yakal Dagna (district court), Shaleqa court (provincial court), the court of Afe-Negus (Appellate court of the chief justice) and finally the Zufan chilot (Crown court) where the emperor himself preside.

In the early times judges used to adjudicate cases in the name of the emperor or king of the state as the emperor was thought to be the fountain of justice and the judges were called “Afe-Negus” which literally means the mouth of the king. As such, the conceptual thinking embodied in the decisions rendered by judges was considered to show some principles of law. Such norms of both substantive and procedural laws were referred to as “Atse-Ser’at”. which has the meaning of presidential jurisprudence that developed out of case law or judge-made-law. Of course, the basis for this Atse Ser’ at law was judgment. When a case is decided at a local level and endorsed by a national court of appeal, the ruling becomes, from that moment on wards, king’s rule or Atse-Ser’ at. As such, it could be cited in the future as law in deciding cases of similar nature.

However, Case law, unlike other Ethiopian laws, is not found in an adequate quantity being recorded in a case digest in Ethiopia. Hence, it poses difficulty so as to illustrate the nature and characteristic features of judgments rendered in the past. As a result, due to the lack of recorded written judgments rendered in the previous period, it becomes impossible to evaluate the judgments given during the past However, there are a few decisions known to the society through various means, especially historical tales, and literature. Let’s see the features of some of these decisions.

Among other things, finding of truth, weighing of evidence, due process of law, equity and fairness can be mentioned as a basic tenet of those judgments. However, since it is only the report of the case and the judgment that is accessible, so far, more cannot be said on the issue of judgment and judgment writing at this level.

Therefore, by way of summary, it can be said that only little is known and hence few things can be said about the history of judgment and judgment writing due to the simple reason that there are not adequate recorded written judgments rendered in the past.

 

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