The International Journal Of Ethiopian Legal Studies

FORMALISATION OF CUSTOMARY TENURE OR ‘INFORMALISATION’ OF NON-CUSTOMARY TENURE? PARADOX IN THE CADASTRAL SYSTEM DEVELOPMENT EFFORTS IN MOST OF AFRICA

Melkamu Belachew Moges — 2020-12-08

Generally, in most African countries, cadastral systems have not developed well. This paper, first, uncovers the critical problem surrounding customary tenure in Africa under the theory the author has introduced ‒ ‘custom paradox’ theory. In the paper,‘custom paradox’ theory is considered as a common misunderstanding of customary tenure, and, as such, has contributed to the failure of cadastral systems in most African countries. Second, the paper elaborates on the true characteristics of customary tenure and demonstrates its strong relationship with statutory tenure. In order to best establish the relationship, the author introduces an analytical theory which calls for the ‘informalization’ of the statutory tenure where the cadastral system legislations are made the reflection of the practices of the African people. A critical desk review of relevant secondary and sometimes legislative documents is mainly used in the paper. In addition, the paper has critically reviewed legal theory in order to cater for the relationship between law and practice and to apply same in the context of the objective of the research. The paper argues that recognition and formalisation of customary tenure is now getting legislative coverage in a few countries of Africa including Ethiopia despite some practical shortcomings.

While showing the mechanisms of favorably making custom work in cadastral systems by way of striking a balance between ‘modernization’ and ‘tradition’, the paper would contribute to the strengthening of the already existing scholarly work through establishing the casual relationship between the failure of cadastral systems and the misunderstandings about customary tenure in most African cadastral systems.

THE MANDATE AND LIMITATIONS OF NATIONAL HUMAN RIGHTS INSTITUTIONS IN ETHIOPIA AND SOUTH AFRICA: COMPARATIVE PERSPECTIVE

Gashaw Sisay Zenebe — 2020-12-08

International, regional and national human rights documents often entitle human beings certain fundamental rights such as rights to life, liberty, dignity, equality, education and health, in order to help individuals lead a life worthy of living. However, the rights, as enshrined in these various instruments, will amount to mere rhetoric if appropriate enforcement mechanisms have not been designed. In view of this, establishing National Human Rights Institutions (NHRIs) provide states with the necessary equipment in advancing the human rights of their citizens. Although the Paris Principles lays down the standards of NHRIs and the importance of their establishment, it is left to domestic laws to declare the specific functions and powers of these institutions. The Paris Principles stipulate the guidelines or standards of what a fully functioning NHRI needs to have and six main criteria as a minimum condition can be identified: 1) Mandate: a broad mandate need to be given; 2) Independence from Government; 3) Legal autonomy: autonomy guaranteed by statute or constitution; 4) Pluralism, including through membership and/or effective cooperation; 5) Infrastructures: adequate funding; and 6) Operational efficiency: adequate powers. Since choosing on a specific activities and nomenclature is a matter to be determined by the national laws, it is natural to observe a variety of mandates and functions across different states. Even though NHRIs working in South Africa and Ethiopia are established at the constitutional level, there is a greater disparity in the scope of the mandate and powers entrusted to these institutions. This paper compares mandates, adequacy of resources, the nature and levels of independence, and the degree of interrelations with various organs, and the overall activities of NHRIs functioning in Ethiopia and South Africa. It specifically evaluates limitations or successes of these national institutions measured against the six criteria set out in the Paris Principles. Assuming that the South African system and national institutions are far more robust and advanced than the Ethiopian human rights institutions, the article explores to what extent the Ethiopian system could be improved or draw lessons to come closer to the South African system.

THE NEED FOR LEGISLATIVE PROTECTION OF WOMEN LAND RIGHTS IN ETHIOPIA: EMPHASIS ON THE LAND RIGHTS OF WOMEN IN THE POLYGAMOUS MARRIAGE

Temesgen Solomon Wabelo — 2020-12-08

This article looks into the need for legislative protection of women land rights in Ethiopia with a focus on the land rights of women in the polygamous marriage. Mostly, the author has utilized doctrinal legal research approach so as to respond the intended objectives the article and to this end, international and regional (African) human rights instruments are deeply consulted concerning the issue at hand. The article has also examined the domestic (Ethiopian) legislations including the Federal Supreme Court Cassation Division decisions in order to respond to the issue raised by the article. Doing so, the article has found out that, even though the international human rights instruments have clearly incorporated non-discrimination clause on the enjoyment of rights contained therein, all of them have not clearly built-in protection for the land rights of women in the polygamous marriages. Regionally, it is only the African Women’s Rights Protocol, which has recognized polygamous marriage relations provided that if such union is due to the influence of culture or religion and obliges state parties in order to enact laws to ensure and promote such relations. Since, the Protocol has given place for the protection of polygamous marriage, and then one can reckon that, the Protocol has impliedly recognized land rights of women in the polygamous marriage. In the domestic laws arena, the FDRE Constitution prescribes women to have equal rights with men with respect to use, transfer, administer and control of land. But the Constitution has not clearly recognized polygamous marriage in general and land rights of women in the polygamous marriage in particular. Nevertheless, if we consult Article 34(4) of the Constitution, it impliedly accepts the possibility of recognizing polygamous marriage practices provided that such practice is maintained within the religious and customary laws of the intending spouses’ community. Since, the Constitution has impliedly recognized polygamous marriage relations, then one can correspondingly say that, it has not totally denied the land rights of women in the polygamous marriage by leaving place for other detailed legislations in order to fill the gap.

JUDICIAL INTERVENTION IN COMMERCIAL ARBITRATION IN ETHIOPIA: A COMPARATIVE ANALYSIS

Nebiat Lemenih Lenger — 2020-12-08

Domestic courts play an essential role in modern international commercial arbitration by ensuring the smooth process and supplementing the parties’ failures to agree on various procedural points. Although the involvement of the courts in commercial arbitration is agreed in all jurisdictions, the extent of such involvement is still debatable. The proposition that the judicial role should be supportive of the arbitration rather than drifting the jurisdictions of arbitration tribunals is now accepted. Like the international experience, domestic courts of Ethiopia play a significant role in both domestic and international commercial arbitrations. This article discussed the judicial intervention in Ethiopia and the global trend on a comparative basis, the article found the judicial role in Ethiopia is more interventionist. Therefore, to create a more favorable environment for arbitration, the article argues for the revision of arbitration related laws.

GLOBALIZATION, SOVEREIGNTY AND ETHIOPIA IN THE AGE OF IP CREATIVE JURISPRUDENCE

Samuel Samiai Andrews — 2020-12-08

Intellectual property (IP), trade, national language (lingua franca), sports and other socio-cultural interventions could be an agency for economic and national unity. This short communication analyses the intersection of contemporary IP international regimes and socio-economic development of a developing economy, using Ethiopia as a case study. The research further analyses the intersection of IP systems of laws and other socio-economic concepts like globalization, human rights, and legal education. Human rights and intellectual property have become a current subject of legal scholarship as evidenced in the recent Marrakesh Treaty signed by more than eighty countries. Recently, Ethiopia entered a multilateral agreement to participate in an e-commerce platform. The implication for Ethiopians could range from exposures to digital creative jurisprudence to full participation in the creative culture of the networked digital era. However, Ethiopia currently does not belong to any major Internet Treaty or intellectual property (IP) Treaty, and this paper seeks to explore the implications for its economic and developmental innovation and creativity policies. Multilateral economic and investment Treaties in this millennium represent manifestations of the impacts of globalization. Sovereign and political rights proponents have raised concerns about the derogation of political and economic capacities of nation-states because of globalization. The protagonists of national sovereignty and constitutional order demand the renegotiation of most of the international socio-economic Treaties. This paper will suggest ways of allaying the suspicions of sovereign dilution, which may be part of raison d'etre for the skepticism towards international economic and developmental Treaty regimes. As a starting point Ethiopia should use the template of its human-rights Treaty recognition to sign or accede to international IP Treaties.