Prior to considering the subject matter of this article, a brief explanation of the history of Ethiopian Codes and constitutional development is helpful because it focus attention to the key issues that I would like to raise. The Ethiopian legal system constitutes Constitution, international treaties, codified laws and statues, as a primary source of law. This essay however, limits its self with codified laws and primary legislation.
During the regime of Emperor Haile Sellasie, particularly between 1957 and 1965, a group of highly complex codes – civil code, Civil Procedure code, Penal Code, Criminal Procedure Code, Commercial Code and Maritime Code – were introduced which gives Ethiopia one of the most modern legal systems in the World. Before the introduction of these codes, Ethiopia operated with an informal mixture of legislative/executive and customary laws. Penal, Civil, Commercial and Maritime Codes were modeled on Continental European Law and the remaining two Procedure Codes were based on British-Indian Common Law Models. The introduction of these codes and Ethiopia’s herculean effort towards modernization was described as unique for its ‘eclecticism’ and categorized the country as ‘mixed legal system’.
This is because of two apparent reasons. On the one hand, unlike most African countries which retained at least some post-colonial parental ties, Ethiopia (which has never been colonized) makes voluntary reception of foreign law on the basis of what seems best, and on the other hand, the choice results model from two different legal systems. As stated in the prefaces to most codes, the purpose and goal of these codes was, one the one hand, to establish a perfect knowledge of the law by providing a clear, systematic, compact, complete and authoritative statement of the law and on the other hand, to develop its legal system towards modern states. As a result, the introduction of these set of modern codes marks the end of unwritten or customary scattered rules and the beginning of the modern legislative and regulatory framework of Ethiopia. Although some customary law has been included in civil code all other pre-code law dealing with matters provided for in the code has been expressly repealed.
Furthermore, Legal institutions necessary for the modern legal system including system of court was established before the introduction of these codes in 1942 in order to transform the system to modern legal system. Apart from the Penal code which was entirely replaced by the 2004 criminal code and some scattered amendments of Civil and Commercial Code, all these six codes govern most fields of current legal activity and remain to be in force as primary source of law.
With regard to constitutional development, however, Ethiopia has adopted four different constitutions within the last seven decades. The regime of Emperor Haile Sellasie was characterized by its two imperial constitutions (the 1931 and 1955 constitutions) – which were the basis for the codified laws - based on the principle of political and legal centralization and the legend of the Solomonic Dynasty and religion legitimacy. The coming to power of the Derg military regime marks the end of imperial regime and an official declaration of the country to a socialist state. The 1987 Derg constitution, even if it did not alter the ideals of political and legal centralization, came up with a fundamentally different ideology. The ideological basis of this constitution was the construction of an egalitarian society. However, the transitional charter which crumbled the socialist government and which was the basis for the current 1995 constitution was introduced during (1991 to 1994). To this end, the 1995 constitution has come up with a complete divergence from previous regimes by establishing federalism as a political structure.9 By establishing a federal form of government, the constitution offered for plural law-making institutions and hence, legislation that affects a citizen can have either the federal or the state legislature’s source.
Although change in Constitutional development affects the content of the law and legal institutions greatly, the Ethiopian Codes more or less survived all political upheavals without any evaluation of their effect in the society. This is because of two identical provisions found in two different proclamations - Proclamation No. 1/1974 and proclamation No. 2/1995. The Derg regime through Proclamation No. 1/1974 declares all existing laws that do not conflict with the proclamation and future laws, orders, and regulation shall continue in force. With the same token, the current federal regime through Proclamation No. 2/1995 provides all prior laws that were enforce shall continue to apply unless they are inconsistent with the Constitution.
Beside constitutions and codified laws, primary legislations in the forms of orders, Decrees, Proclamation issued by different regimes had served as primary source of law and the same is true under the current federal structure.
Gaps and current reality
Even if the codified laws of Ethiopia serve the legal activities of the country for the last seven decades, their development is continuously characterized as ‘revolutionary’ and ‘orphan’. J. Vanderlinder as early as 1966-67 asserted that “Ethiopian legal system does not yet exist… and the codes have not yet borne fruits”. In most recent study conducted by Heinrich Scholler in 2008 the same assertion has been made: “Ethiopian law today is not affiliated with any other legal “family” and is juridically “orphaned” as it were”. This problem is assimilated with translation/linguistic and comprehensive evaluation/review problems. On the one hand, because the codes were first drafted in French and English and then translated into Amharic which is the main working language of courts over the years, access to contemporary legal experiences and developments were limited.
Unlike African countries which tie their legal system to wide linguistics group like Britain and France, Ethiopian codes remain in at their infant stage. On the other hand, as discussed above except replacing Penal Code with Criminal Code and some unsuccessful reform projects, all codes are still in force without a substantial change or comprehensive review. They are there as they were for the last fifty two years throughout four different constitutions with different political, social and economical ideologies.
Particularly, with the current federal structure, where division of legislative power is reallocated between federal and state governments and formally recognizes the jurisdiction of religious and regional customary courts, it inevitably raises the vital questions of ‘power of legislation’ and the status of pre-code customary law. Furthermore, the general provision ‘all laws which are consistent with the 1995 constitution remains in force’ creates confusion and makes existing laws frequently uncertain and not uniformly applied. Uncertainty is not only for the provisions of the code but also to extra-code norms that exist under different regimes. Since 1995 constitution, there are a number of efforts to amend provisions found in different codes. For example, Proclamation No. 65/1997 which amends the sale of bank collaterals (Art 2851 and 3060 of the 1960 Civil Code) further repealed and re-enacted by Proclamation No. 639/2009. As the same time provisions relating to family law in the Civil Code has been repealed and replaced by Family Code of Federal and State governments.
Despite being a source of pride and basis for a number of foreign and national literatures, the Ethiopian Codes remain unchanged and fails to accommodate the needs of the new societal development; nor is it capable of providing the solution for the new kinds of legal problems. As new societal institutions are created, new needs appear, and the law should develop in response to those needs.
The Concept of Post Legislative Scrutiny
Post legislative scrutiny is a new recent development in the field of legis-prudence and emerged as a decisive factor in legislative practice of different countries. As the name indicates it is a method of reviewing, analyzing and assessing the effect of legislation after it has been brought into force. It may take place from the wider assessment of intended policy objectives to narrower forms of scrutinizing the legal effects of particular legislation, the purpose of which is to review legislation “whether it is working as it was intended and if not to discover why and to address how any problems can be remedied quickly and cost effectively.” It tries to analyze and assess the effects of legislation in a systematic and methodological way. Professor Luzius Mader describes evaluation of effect of legislation as methodological and systematic because ‘it takes account all relevant effects’ objectively and ‘it is not driven by political interest’ nor does it comply with stringent scientific method. However, there are at least three most utilized criteria for post legislative scrutiny: effectiveness, efficacy and efficiency. Even if, it is noted that there is no ‘one-size-fits-all’ criteria for post legislative scrutiny and these criteria may not exhaustively show the overall effects of a particular legislation, the 3E criteria highlight some aspects of the effects of legislation and emphasize features that are particularly important in the law making process.
Effectiveness is concerned with the relationship of attitudes and behaviors intended by the legislator and observable attitudes and behaviors of targeted population and it is a condition for the second criteria, efficacy. Efficacy is concerned with the goals of the legislation. The goals might be mentioned in the text, or explanatory note or even parliamentary debate and if nothing is found it can be reasonably drawn for evaluating the effect of legislation. Efficiency on the other hand, is concerned with cost and benefits of legislative action, in other words it is concerned with both costs and extent of goals achieved by the legislation either from the perspective of the legislator or the public sector.
By assessing the effectiveness, efficacy and efficiency of legislation once after it has been brought in to force, Law commission for England and Wales concluded that, it is possible to abolish those laws that are obsolete and unnecessary and potentially improves not only accountability of government for legislation but also leads to a better and more effective law.
However, the tools, methods and techniques of post legislative scrutiny vary according to the circumstances of the specific legislation under evaluation. Despite the variation, post-legislative scrutiny provides the sensibility of legislative activity and should be given a due concern of any modern legal system. Most modern legal systems are now advanced to regular scheduled review of legislation as to their effect of intended or anticipated goals and purposes. They even go further by providing a ‘sunset clause’ for a periodic and comprehensive review of legislation. Having this in mind, let us now explore post legislative scrutiny in Ethiopia.
Post-legislative scrutiny in Ethiopia
The concept of post legislative review or evaluating legislation after it has been brought into force in unknown in Ethiopia. Perhaps it is because post legislative scrutiny is emerging new concept but even with the traditional method of reform or review, the major laws of Ethiopia did not get the opportunity for reviews. Though the functionality of laws for more than seven decades can be an indicator of the non existence of post legislative scrutiny in Ethiopia, it is prudent to asses those that were actually changed and the reasons for amendment in the country.
In Ethiopia the need to amend laws needs to be initiated from a particular governmental body. This can be inferred from the trend that a policy initiative from a particular ministry is mandatory for law making or amendment. This in turn shows that there is no room for spontaneity or for any other systematic arrangement to review archaic laws just because they are dated. Apart from that, the fact that ministries of the parties that convert the laws in to action need to trigger amendment shows that there is no systematic arrangement for law makers to assess the post legislative effect or the post legislative status of the laws.
It is the basic assumption of this essay that in order for effective and efficient reform, post legislative scrutiny must be organized and deployed in support of modernizing the legislative and regulatory framework of Ethiopia.
For the purpose of this essay, for example, we can simply summarize the effects of Ethiopian code with a specific reference to the Efficacy criteria i.e. the goals and purposes as were provided within the codes.
Effect of legislation (with a particular reference to the Ethiopian Codes)
|Intended/anticipated purpose and goals||Unintended/unanticipated effect of the law|
to establish a perfect knowledge of the law by providing a clear, systematic, compact, complete and authoritative statement of the law and
to develop Ethiopian legal system towards modern states
Became uncertain, vague, incomplete and unreliable
Make the legal system at its infant stage and usually referred as ‘revolutionary’, ‘orphanage’ and ‘fossil’
To sum up so far in this essay we have been considering the assessment and evaluation of the effect of legislation is an important element of legislative drafting and has gain a considerable acceptance. Analyzing the effect of legislation through effective, efficacy and efficient criteria’s whether it has achieved the regulatory aim whether it has had unanticipated consequences must be assessed to abolish those that are obsolete and to retain those effective. It is done systematically and methodologically and there is no stringent scientific research rule to do it. It is basically concerned with the effect of legislation whether the legislation brings the intended goal and purpose as it was crafted.
However, post legislative scrutiny in Ethiopian context is not known and the major codes that accord once Ethiopia a modern legal system in the world have never been evaluated and exist as a major source of law with all their confusion, uncertainty and above all being as a source for a number of ‘contemptible’ literatures. Besides, the current federal system of government where division of legislative power is divided between states and federal government and the recognition of customary and religious laws makes the code uncertain and incomplete.
A reverence for tradition and to be as up to date as the twenty first century demands a systematic evaluation of existing codes and primary legislation through post legislative scrutiny is a vital importance for the development of Ethiopian legislative and regulatory framework. If there had been a formal post legislative review of legislation, it is very likely that Ethiopian obvious legislative and regulatory framework difficulties would have been spotted and resolved much more quickly. Hence, the systematic post legislative scrutiny plays a pivotal role in identifying unintended consequences of legislation and ensures legal certainty.
Moreover, the development of the legal system will not be an evolutionary one, responding to societal needs as they appear at a given time. It will be a planned and structured development, an obviously different kind of development than that which has taken place.