As recently as 2005, the question, if addressed towards the Ethiopian legal system, would have been real silly. Ethiopia, for one reason or another, adopted the continental legal system in its historic codification project in the 1950’s and 1960’s and hence codes (statutes or whatever name comes to your mind) issued by the legislature (and not by the courts) are sources of laws. The legislature (whether it was an individual or group having legitimate claim of law-making) has had the monopoly of making laws in most of Ethiopia’s modern legal history. Other than looking into court cases to see ways of arguments, or to study legal languages, or to search for persuasive interpretations or understandings of the law, Ethiopian law students, lawyers, and even courts have largely ignored court decisions. The bottom-line, court decisions have never been consulted for binding precedent, as widely understood in the common law legal tradition.

But it would be wrong these days to immediately reject the role of judicial precedent in the Ethiopian legal system and the implications associated with it. A historic legislation, if one might call it so, was passed by the House of Peoples Representatives in June 2005 allowing the cassation division of the Federal Supreme Court to set and reset its “legal interpretations” as precedents. Now what one should wonder about is: what is the impact of this legislation in introducing the concept of judicial law making in Ethiopia? For example, has this legislation opened a room for legislative actions by say for example Federal First Instance Courts?

 

Here are the ground-breaking sub-articles of Article 10 of the Federal Courts Proclamation No. 25/1996 (as amended by the Federal Courts Proclamation Re-amendment Proclamation No.454/2005):

"4. Interpretation of a low [sic] by the Federal Supreme Court rendered by the cassation division with not less than five judges shall be binding on federal as well as regional council [the word council here is a mistranslation of the Amharic version “court”, a version that is binding under our legal system; taking the words of the next sub-article, it would have been better if “and other relevant bodies” was added to courts] at all levels. The cassation division may however render a different legal interpretation some other time.

"5. The Federal Supreme Court shall publish and distribute decisions of the cassation division that contain binding interpretation of laws to all levels of courts and other relevant bodies."

As you could see, there is nothing of course close to the stare decisis of the Britons, the doctrine of precedent that evolved for centuries. For starters, the power is limited to the Cassation Division (not even to the ordinary divisions of the Federal Supreme Court does the power relate!). Plus, given the precondition of the existence of fundamental error of law and other rigorous procedural requirements to get a case before this division of the Supreme Court, the number of cases reaching there is very much limited. And hence not many “interpretations” are expected from the Court. There is also another more important restriction, often overlooked: the precedent relates to “interpretation” and not law-making, though in practice the Court might successfully ignore such distinction (between interpretation and law-making) cleverly preempting accusations of exceeding its powers.

Still there is no denying that the provisions have had big impact in the study and practice of law in Ethiopia. Arguably the legislation has changed the tradition of legal research (carried out by students, lawyers, etc). In the past, legal analysis (remember analytic method of research common to law students and practitioners?) focused only on statutes. When judicial decisions are consulted, it was mostly to look into the disparity between the law and the practice (familiar with the law and practice - a phrase which frequently finds itself in topics of senior essays at law faculties such as the Faculty of Law of Addis Ababa University?). But now students and practitioners might be expected to search for “interpretative” judgments of the Cassation Division of the Federal Supreme Court to make their researches complete. An indication to such a trend is that shelves at law libraries (and of course at lawyers’ private collections as well) are now being occupied with the Supreme Court decisions creating the opportunity (and signifying the importance) of studying and analyzing how the Court interpreted a certain law and thereby predicting how lower courts will and shall decide in similar future cases. (Beware lawyers of the common law tradition! We have our own cases to skim, study, and analyze to find legal rules though we have not yet used terms like ratio decidendi!)

In any case, an additional task is curved out for the Ethiopian lawyer. Her job is no longer limited to searching for endless statutes (proclamations, regulations, administrative directives, etc) to satisfy her clients in providing legal answers. But it also extends to digging the judicial decisions of the Federal Supreme Court, Cassation Division, to identify interpretative rules that bind all courts and administrative organs. True, it is not like our lawyers are soon to bury their heads in the piles of court files. That has not yet happened (and possibly will never happen given our legal tradition). But soon enough (if they have not already started it), your lawyer will write you a legal memo saying “on the basis of a judgment given by the Federal Supreme Court, in a case between Ms. X and Mr. Y, your compensation claim will…….”.

Interested to comment, share ideas, ask for clarification…?

Contact wondimagegn@ethiopianlaw.com

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