Constitution as Social Contract in Contemporary Ethiopia: The Need to Re-construct Political Arrangements

Constitutions represent social contracts that accommodate subjective interests of groups within the framework of impersonal shared interests among citizens of the society at large. This article examines the contemporary social contract theory in relation to the constitutional making process in Ethiopia. The lawmaking process of Ethiopia’s 1995 Constitution does not fulfil the procedural legitimacy of social contract because important sections of the society were neglected. The institutions created by the FDRE Constitution denote the subjectivist approaches to social contract theory thereby ignoring the impersonal interests of the society. To accommodate both the subjective ends and impersonal interests of the society, the Constitution should be reconstructed in light of the dualist contemporary social contract theory. This article argues that Ethiopia's contracting actors should consider both the subjective and impersonal interests of society. The article examines the conditions that make constitution a social contract. It also discusses the controversies concerning Ethiopia's Constitution in light of the theory of social contract, and tries to show what the Constitution should fulfil as a social contract in contemporary Ethiopia.

Comment: Attesting Representation through Power of Attorney: The Ethiopian Approach

Agency is vital in modern life, and it is hardly effective without a power of attorney. However, it has not received sufficient attention in legal discourse commensurate with the legal requirements for its validity and its wide utilization. An agent is allowed to perform acts that have impact on the rights and obligations of another person usually through this instrument. This comment aims at examining the sporadic provisions in various laws which are relevant to the instrument so as to address issues which have legal as well as practical significance arising in the use of the instrument. In the absence of a law devoted to the instrument (and that takes its impact into account), it is obvious that more questions remain unanswered. An attempt is made to test the relevant laws in force with a view to establishing whether they live up to the expectations of the time.

The Legal Framework and Barriers to Access to Environmental Information in Ethiopia

Information plays a vital role, both in terms of its importance for a democratic order and as a prerequisite for public participation. Many countries have made provisions for access to information in their respective constitutions. The FDRE Constitution explicitly provides that everyone has the right to seek and receive information. The Freedom of Mass Media and Access to Information Proclamation –which entered into force in 2008– gives effect to this Constitutional guarantee. Moreover, the number of laws on different environmental issues is on the rise, and the same could be said of the multilateral environmental agreements that Ethiopia has ratified. Many of the laws incorporate the right of the public to access environmental information held by public bodies. Despite the existing legal framework, there are still notable barriers to access to environmental information. By analyzing the relevant laws, the aim of this article is to contribute to the dialogue on the constitutional right of access to information with particular emphasis on the legal framework on, and the barriers to, access to environmental information within the meaning of Principle 10 of the Rio Declaration.

Freedom of Expression and Hate Speech in Ethiopia: Observations (Amharic)

Freedom of expression is one of the human rights enshrined under International human right instruments. However, hate speech in the course of exercising this right has the potential to pose threats on the peace and security of nations and wellbeing of individuals. This has brought about arguments in favor of limitations to expression and against the limitations owing to unintended adverse impact of such limitations in the exercise of freedom of expression. In the Ethiopian case, ‘Hate Speech and Disinformation Prevention and Suppression Proclamation No. 1185/ 2020’ has been enacted. The Proclamation indicates prohibited acts of hate speech and its exceptions. In particular, the generic terms contained in the definition given to ‘hate speech’ need to be carefully examined. However, the implications of provisions that set exceptions to ‘hate speech’ in the new law have not yet been subject to adequate academic discourse. This article examines these issues. By consulting different international human rights instruments, experience of other countries and scholarly literature, the article examines the appropriateness, constitutionality and implications of the Proclamation on the right to freedom of expression. Moreover, it indicates potential challenges that the exceptions will pose on the process of implementing the Proclamation in real court cases.

Comment: Ethiopia's Quest for an Appropriate Law: ‘An Answer’ from a Brother from Afar

There have been three waves of foreign influence in the ‘flesh’ and ‘soul’ of the Ethiopian legal regime ranging from the reception of liberal laws from Western modern legal systems to the socialist legality borrowed from the Marxist regimes of the pre-1990s. While the first epoch turned to the West for emulation, socialist legality went East. From the1990s onward, Ethiopia seems to have a hybrid (guramaile) of the two. Once again, Ethiopia’s post-2018 legal regime is rehearsing yet another chapter in its quest for the appropriate law. This comment reflects these pursuits and challenges, and it indicates the need for insight from an indigenous African wisdom of Sankofa.

An Enduring Path for National Unity and Human Rights Protection in Ethiopia: A Case for Human Dignity Centered Constitutional Design and Interpretation

Ensuring National Unity and upholding Human Rights have always been a big challenge in Ethiopia, since the establishment of the modern Ethiopian state. These problems are still troubling the country, long after the adoption of the present Federal Democratic Republic of Ethiopia (FDRE) Constitution, which is claimed to have addressed them once and for all. This article seeks to revisit the historical underpinnings of the FDRE Constitution and its ethnic-centered design, in relation to its actual capacity to achieve national unity and adequate protection of human rights. The article demonstrates how human dignity centered constitutional design and interpretation could advance both national unity and adequate protection of rights. It argues that the historical foundation of the FDRE Constitution and the design that came out of it is backward looking, exclusionary and inadequate to address both challenges for a number of reasons. As a possible alternative, it proposes a human dignity centered re-reading of history, constitutional design and interpretation. Since Ethiopia is in a process of reform in various spheres, the issues raised and discussed in the article deserve serious attention as they are essential to move forward.

Cybercrime Lawmaking and Human Rights in Ethiopia

Ethiopia has embarked upon an ambitious project of revising a number of laws with a view to entrench human rights and democratic governance. Part of this legal reform program has been the revision of Computer Crime Proclamation No 958/2016. This article examines key aspects of the Draft Computer Crime Proclamation prepared by the Media Law Working Group from a human rights perspective. As it shall be shown in this article, making the cybercrime legal regime human rights friendly has been the overarching objective of the revision project. Most human rights concerns associated with the current cybercrime legislation are, as a result, rectified in the cybercrime Bill. However, the Bill goes overboard in embracing themes that go well beyond the scope of cybercrime legislation. With respect to the overall revision process, the article submits that the process has not been sufficiently inclusive.

Enforcement of Arbitral Awards in Nigeria and the Jigsaw of Limitation Period: The Need for Compliance with Global Best Practices

In Nigeria, the limitation period begins to run from the date the dispute leading to the arbitration arose instead of when the award was rendered. While highlighting the rationale and effect of limitation period to the jurisdiction of court, I argue that the period set out in the Arbitration and Conciliation Act (ACA) for enforcement of arbitral awards fails to countenance the inherent delays in Nigeria’s justice system which can be exploited to render the enforcement of an award nugatory. The operationalisation of limitation period unless amended, can be a dissuading factor for choosing Nigeria as a seat of international arbitration which rubs her of the attendant benefits. It is further argued that, anyone, wishing to enforce an award in Nigeria, must ingeniously act timeously to avoid untoward outcome due to the repressive limitation period. This article identifies registration of award pursuant to Foreign Judgment (Reciprocal Enforcement) Act as a leeway to enforce foreign arbitral awards. It compares the practice in Nigeria with jurisdictions like India, Canada, United Kingdom and Ethiopia and draw lessons for Nigeria. It makes a case for amendment of the existing legal framework to bring the law on limitation of time in tandem with global best practices.

Comment: Legitimizing Gerrymandering in the Harari Regional State Contrary to the Principle of Equality of Votes

The National Election Board of Ethiopia (NEBE) had rejected the request to enable ethnic-Hararis who reside outside Harari Regional State to vote in the election of Harari National Council members. The Board stated that it is not bound by prior practices that do not have constitutional foundation. The Board further noted that accepting such demand would jeopardize the fairness and impartiality of the Board against other minority ethnic groups whose members reside outside their national state. NEBE argued that article 50(2) of the Harari Constitution contradicts the provision of article 50(3) of the FDRE Constitution. However, based on the Harari National Council’s petition to the Federal Supreme Court, the decision of NEBE has been reversed, and this has been further affirmed by the FSC Cassation Division. This comment examines the legal foundation and propriety of the decisions of the Federal Supreme Court and the FSC Cassation Division. Inter alia, the FSC Cassation Division has misinterpreted a provision under article 50(2) of the Harari Regional State Constitution that expressly refers to the right to be candidate in elections at place of birth as opposed to voting rights irrespective of residence.

The Regulation of Cryptocurrencies under Ethiopian Legal Norms

Cryptocurrencies are a subset of virtual currencies that have been devised for anonymous payments made entirely independent of governments and traditional financial institutions. The payment system of cryptocurrencies is expanding at a rapid pace and has reached Ethiopia. This article examines the extent to which cryptocurrencies are regulated under Ethiopia’s national payment system and anti-money laundering legal norms. The study has employed doctrinal research supported by in-depth interviews. During the last decade, Ethiopia has adopted several legal frameworks that govern different aspects of the payments landscape, most notably regarding payment services and electronic money. The country has anti-money laundering legal norms that are embodied in domestic laws and international and regional instruments that it has ratified. However, these legal norms have strategic deficiencies in regulating cryptocurrencies. Thus, the government of Ethiopia should consider enacting a comprehensive law that regulates the payment system of cryptocurrencies.