Some unusual facts about repeal in Ethiopia (Part III)

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“The regulations, Directives and Decisions of the Addis Ababa City Government may be suspended or repealed by the Prime Minister of the Federal Government where they are deemed to be Prejudicial to the National Interest”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

Pages: 12

Some unusual facts about repeal in Ethiopia (Part II)

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:

2. Amendment

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

Some unusual facts about repeal in Ethiopia

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.

New Council of Ministers Regulations 2011

Council of Ministers Regulation No. 247/2011 Ethiopian Roads Authority Re-establishment

Council of Ministers Regulation No. 24912011 Ethiopian Youth Sports Academy Establishment

Council of Ministers Regulation No. 250/2011 Information Network Security Agency

Council of Ministers Regulation no. 251/2011 Federal Urban Real Property Registration and Information Agency Establishment

Council of Ministers Regulation No. 252/2011 Certain Rights and Privileges of Foreign Nationals of Ethiopian Origin to be exercised in the Country of their Origin Council of Ministers (Amendment)

Council of Ministers Regulation No. 253/2011 Rift Valley Lakes Basin High Council and Authority Establishment

Council of Ministers Regulation No.254/2011 Ethiopian National Theater Establishment

Council of Ministers Regulation No.255/2011 Ethiopian Shipping and Logistics Services Establishment

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

REPEALED ETHIOPIAN LAWS 1998

REPEALED TEXT	REPEALING TEXT
Livestock and Meat Board Proclamation No.212/1964; Livestock and Meat Board Order No. 34/ 1964.	Proclamation No. 117/1998 Animal, Animal Products and by-products Marketing ,Development Authority Establishment Proclamation
The Civil Code (Amendment) Proclamation No. 65/1997	Proclamation No. 97/1998 Property Mortgaged or Pledged with Banks Proclamation
The Ethiopian Authority for Standardization Establishment proclamation No. 328/1987 Weights and Measures Proclamation No. 208/1963 Standards Mark and Fees Council of Ministers Regulations No. 13/1990 Weights and Measures Regulations No. 431/1973 The Ethiopian Standards Council of Ministers Regulations No. 12/1990	Quality and Standards Authority of Ethiopia Establishment Proclamation No. 102/1998
The Stamp Duty Proclamation No, 334/1987	Proclamation No. 110/1998 Stamp Duty Proclamation
Article 51 of the Customs Authority Proclamation No. 60/1997	Proclamation No. 125/1998 Customs Authority (Amendment) Proclamation
Transaction Tax Proclamation No. 205/1963; The third schedule (export duties) attached to the Customs Tariffs Regulations No. 42/1976; Coffee Surtax Regulations No. 280/1964 and all subsequent amendments Tax on Coffee Exported from Ethiopia Regulations No. 47/1976.	Tax on Coffee Exported from Ethiopia Proclamation No.99/1998
Customs (warehouse) Regulations No. 47/44	Customs warehouse License Issuance Council of Ministers Regulations No. 24/1997