Journal of Ethiopian Law Vol.22 No.1

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JOURNAL OF ETHIOPIAN LAW
22 A Vol. XXII No. 1

2000 .
. Published at least once annually July, 2008
In This Issue:
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Case Reports
Articles
Ethiopia’s Reluctant Move to Join the WTO
Reform of Legal Education in Ethiopia
Environmental Policy and Law of Ethiopia
On Formation of a Share Company in Ethiopia
Whose Power Is It Anyway: The Courts and Constitutional Interpretation in

Ethiopia
Perspectives
¾SêNõ ƒ‹ƒ
Book Review
Published at least once a year by the Faculty of Law
Addis Ababa University
Founded in 1965
(to be cited as 22 J. Eth. L. No. 1)
Editorial Board
Ato Tamiru Wondimagegnehu

(Chairman)
Dr. Fikremarkos Merso AtoTilahun Teshome

Dean and Assistant Professor Associate Professor
Faculty of Law Faculty of Law
Addis Ababa University Addis Ababa University
Ato Wondimagegnehu G/Selassie

Attorney-at-Law and Consultant
Editor-in-Chief
Dr. Fikremarkos Merso
Assistant Editor-in-Chief
Ato Muradu Abdo
Article Editor Case Editors

Ato Wondwossen Demissie
Ato Seyoum Yohannes Ato Yazachew Belew
Associate Article Editor Managing Editor
W/rt Blen Asemire Ato Gedion Timothewos
Page Setting: W/rt Elise G. Nalbandian

Secretary: W/rt Kidist Belay
ii
ADDIS ABABA UNIVERSITY
FACULTY OF LAW
Full-Time Faculty
2007/08 Academic Year
Abebe Abebayehu - LL.B, LL.M; Lecturer (on study leave)

Aberra Degefa - LL.B, LL.M; Lecturer (on sabbatical leave)
Aman Assefa - LL.B, LL.M; Lecturer and Assistant Dean
Andreas Eshete - B.A, M.Phil, PhD; Professor, President of A.A.U.
Blen Asemire - LL.B; Graduate Assistant II
Bohomepalli Hydervali - PhD; Associate Professor
Gedion Timothewos - LL.B; Graduate Assistant
Fikremarkos Merso - LL.B, LL.M, PhD; Assistant Professor, Dean
Getachew Assefa - LL.B, LL.M; Assistant Professor
Girmachew Alemu - LL.B, M.A; (on study leave)
Khushal Vibhute - PhD; Professor
Mandefro Eshete - LL.B, LL.M, Dr. Jur., Assistant Professor
Martha Belete - LL.B, LL.M; Lecturer
Mehari Redae - LL.B, LL.M; Assistant Professor
Mekete Bekele - LL.B, LL.M Assistant Professor
Mohammed Habib - LL.B, LL.M; Assistant Professor
Molla Mengistu - LL.B, M.A, LL.M; Lecturer and Asso. Dean
Muradu Abdo - LL.B, LL.M; Lecturer
Seyoum Yohannes - LL.B, LL.M; Lecturer (on research leave)
Tadesse Lencho - LL.B, LL.M; Lecturer
Tilahun Teshome - LL.B; Associate Professor
Tsehai Wada - LL.B, LL.M; Assistant Professor
Wondowssen Demissie - LL.B, LL.M; Lecturer
Yazachew Belew - LL.B, LL.M; Lecturer
Yonas Birmeta - LL.B, LL.M; Lecturer
Zekarias Keneaa - LLB, LL.M; Assistant Professor
Vaibhv Goel - LL.M, PhD; Assistant Professor
iii
Part-Time Faculty
Abraham Ayalew - LL.B, LL.M; Lecturer

Ameha Tesfaye - LL.B, LL.M; Lecturer
Aschalew Ashagrie - LL.B, LL.M; Lecturer
Assefa Fisseha - LL.B, LL.M, PhD; Assistant Professor
Berhanu Taye - LL.B, LL.M; Lecturer
Elise G. Nalbandian - LL.B; LL.M, Lecturer
Enemanachew Yemamu - LL.B, Lecturer
Emiru Tamrat - LL.B, LL.M; Assistant Professor
Fekadu Petros - LL.B, LL.M; Lecturer
Hailu Burayo - LL.B, LL.M; Lecturer
Harka Haroye - LL.B, LL.M; Lecturer
Filipos Aynalem - LL.B; LL.M, Lecturer
Mandefrot Belay - LL.B. LL.M; Lecturer
Mekonnen Firew - LL.B, LL.M; Lecturer
Mellese Damtie - LL.B, BA, LL.M; Lecturer
Menelik Alemu - LL.B, LL.M; Lecturer
Mesfin Tafese - LL.B, LL.M; LL.M; Lecturer
Mezmur Yared - LL.B; Lecturer
Getahun Kassa - LL.B, LL.M; Lecturer
Mitiku Mada - LL.B, LL.M; Lecturer
Samuel Assfaw - LL.B, LL.M; Lecturer
Solomon Emiru - LL.B; Lecturer
Solomon Negus - LL.B, LL.M, PhD; Assistant Professor
Tamirat Kidanemariam - LL.B, LL.M; Lecturer
Teramed Tezera - LL.B; Lecturer
Tewodros Miheret - LL.B; LL.M; Lecturer
Tsegaye Regassa - LLB ; LL.M (PhD candidate)
Yosef Aymero - LL.B; Lecturer
iv
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vi
Is a scholarly publication devoted to the legal, political and social issues arising in relation
to Ethiopian law and related international law.
The Journal invites the submission of unsolicited articles, essays, case comments, book
reviews and comments on law/legislation. The Journal also invites letters in response to
articles, essays, case and legislation comments, book reviews and notes appearing in the
Journal within the last year. Correspondence should be brief (about 3 pages). Selected
letters will be edited with the cooperation of the author and published.
Our Address is: The Editor – in – Chief

Journal of Ethiopian Law
Faculty of Law, Addis Ababa University
P.O. Box 1176
Addis Ababa, Ethiopia
Tel., 0111240010
The Journal is distributed by the Book Centre of Addis Ababa University. If you wish to
subscribe, please address correspondence to:
The Book Centre, Addis Ababa University,
P.O. Box 1176, Addis Ababa, Ethiopia.
E-mail: jel_law2008@yahoo.com
Copyright
© 2008 by the Faculty of Law of Addis Ababa University. The contributions in this
issue may only be duplicated for educational or classroom use provided that (1) It is not
meant for profit purposes; (2) The author and the Journal of Ethiopian Law are
identified; (3) Proper notice of copyright is affixed to each copy; and the Faculty of Law
is notified in advance of the use.
vii
& ' (
!" ) '*+,%
. /0 123 456 547 A9) 7 :;…………………....1

(Ø@A BC/4 !/) E-F GH" 13241)
Case Summary
Melaku Rufael V. Special Public Prosecutor………………………………………….....8
(The Fed. Sup. Ct. Criminal File No.13241/August 2, 2004)
IM "N 456 547 AO P A7 :;……………...…11

(ØQA BC/4 !/) E-F GH" 13263)
Case Summary
The Ethiopian Insurance Corporation V. Bezu Abebe……………………………...…18
(The Fed. Sup. Ct. Civil Appeal File No. 13263/March 1, 2004)
viii
Table of Contents
Page
Articles
Ethiopia’s Reluctant Move to Join the WTO: A Preliminary Look at

Legal and Institutional Implications of Accession……………………..……...21
Melaku Geboye Desta
Reform of Legal Education in Ethiopia: the Ethiopian Experience in the

Context of History, the Present, and the Future……………………………….49
Thomas F. Geraghty and Emmanuel K. Quansah
Environmental Policy and Law of Ethiopia: A Policy Perspective………........75

Khushal Vibhute
On Formation Of A Share Company In Ethiopia…………………………….102

Seyoum Yohannes Tesfay
Whose Power Is It Anyway: The Courts and Constitutional Interpretation in

Ethiopia……………...…………………………………………..….…......…128
Yonatan Tesfaye Fesseha
Reflections
“In The Beginning”: Reflections on the Early Years of the Addis Law
School...............................................................................................................145
James C. N. Paul
Preface to the Second Printing of the Fetha Nagast……………………….....154

Peter L. Strauss
Book Reviews
¾SêNõ ƒ‹ƒ.................................................................................................157
òMæe ¯Ã“KU “ C %W
Book Review..…………………………….………………………………….162
By Tsegaye Regassa
ix
///. 13241
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7
Federal Supreme Court of Ethiopia
Judges: Tegene Getanehe

Desta Gebru
Aseged Gashaw
Appellant: Captain Melaku Rufael

Respondent: Special Public Prosecutor
Criminal File No. 13241
August 2, 2004
Criminal Law-Preparation and attempt: -Arts. 26 and 27 of the 1957 Penal Code. Criminal
Procedure- Conviction of a defendant for an offence not charged: -Art. 113 of the Criminal
Procedure Code.
Held: Judgment of the Federal High Court reversed; appellant convicted for an offence not
charged with.
Summary of the Judgment
The Special Public Prosecutor charged four persons, including the appellant, before the
Federal High Court under article 32(1)(a) or (b) and articles 27(1), 523(1)(a) of the 1957
Penal Code, for attempting to kill some identified members of EPRP, OLF and TPLF
(hereinafter to be referred as victims) who were residing in Germany. The charge indicated
that the accused persons organized an operation known by the name ‘Wolfgang’ to carry
out the killing by planting a time bomb in an office and a library located in West Berlin at
Hasselblant, a place where the victims were suspected to be found.
In support of the charge, the prosecutor produced two letters, which were written by the
appellant to his superior reporting the progress of the operation. The trial court was
satisfied by the evidence to find the appellant guilty and sentenced him to a life
imprisonment.
Dissatisfied by the trial court’s judgment, Captain Melaku filed an appeal before the
Federal Supreme Court. His ground of appeal is the inadequacy of the prosecution’s
evidence to support the charge and to warrant his conviction. The appellant does not deny
that he wrote the letters, the only evidence of the Prosecutor. He objected the judgment of
the trial court on the following grounds: the reports do not show the commission of the acts
alleged in the charge; nor do the letters show that the time bomb was placed in a position at
Hasselblant; rather the items of evidence indicate that the bomb exploded at the hotel
where those who were assigned to plant the time bomb were staying and hurt them; nor
does the evidence show that any of the victims were at the hotel where the explosion
occurred; none of the activities or their totality constitutes an attempt to commit homicide
as defined under Article 27(1) of the 1957 Penal Code. The accused persons were merely
preparing things to commit the crime which are not punishable under Ethiopian law. The
appellant requested the Supreme Court to quash the judgment of the lower court.
8
The Special Public Prosecutor, on his part, argued as follows: The major roles of the
appellant in the commission of the crime were to identify persons against whom the crime
was to be committed, to provide weapons to those who would directly commit the crime,
and to facilitate their escape after the commission of the crime. To accomplish those things,
the appellant traveled from East Germany to West Germany; the weapons were transported
to the place where the crime was to be committed and the appellant, by being at the place
where the crime was to be committed, was supervising the operation. These activities are
more than preparatory acts as he has already done everything that he could with a view to
accomplish the commission of the crime though he failed to complete the crime, which is a
clear case of attempt. The public prosecutor requested the appellate court to confirm the
judgment of the trial court and dismiss the appeal.
The appellate court framed two issues, namely, whether or not the facts that the lower court
believed to have been supported by the evidence of the prosecutor are proved. And whether
or not the acts that the evidence of the prosecutor proved constitute an attempt. The court
approached the first issue by framing two questions: whether or not the bomb intended to
kill the persons was planted. And whether or not the bomb explosion occurred at the place
where it was intended to.
The evidence of the prosecution show that there was a plan to kill the victims at the library
and the office in Hasselblant; that there was a plan to place the bomb in books and put them
in the library; that one of the persons who were in charge of planting the bomb made
unsuccessful attempt to buy a new clock as one of the clocks of the time bomb was not
functioning; and that the bomb blasted at the hotel they were staying. Furthermore, the
evidence shows that the victims were suspected to be found at the library but not at the
hotel where the explosion occurred. The evidence does not show that the bomb was placed
in position at Hasselblant; rather, it shows that the bomb exploded at the hotel where the
accused persons were staying.
Based on its own appreciation of the allegations and evidence of the prosecutor, the
appellate court found part of the lower court’s judgment which indicate that the convicted
persons went and caused the explosion of the bomb at the hotel where the victims were
suspected to be found” and which state that “ though the accused persons went to the hotel
where victims were to be found, the crime was not completed for the bomb blasted while it
was planted” to be factually wrong, not alleged in the charge and not supported by
evidence. Accordingly, the Court observed that the lower court convicted the appellant for
attempted homicide based on a fact not stated in the charge and not supported by evidence.
The court proceeded to the second issue: whether the explosion of the bomb, while it was
being checked at the hotel where the convicted persons were staying, constitutes an attempt
to kill those victims who were suspected to be found at Hasselblant.
Different activities aimed at the killing of the victims, such as transporting experts from
Ethiopia to Germany and identifying the place where the time bomb was to be planted,
have been performed. The prosecutor’s evidence established the determination of the
convicted persons to commit the crime. There are other several critical steps that should
have been taken if the convicted persons were to be found guilty of attempted homicide.
9
That is, every step necessary to commit the crime, short of execution, must have been
taken. Most importantly, the clock should have been made to function properly or a new
one should have been affixed onto the time bomb and the bomb should have been taken to
and placed at Hasselblant to detonate it there. In the case at hand, the bomb blew up at the
hotel before it was taken to and planted at Hasselblant and the evidence does not show that
the clock was made to function properly or a new one was fixed. In short of these critical
steps, the activities performed by the convicted persons with a view to cause the death of
the victims were mere preparations.
Under article 27(1) of the 1957 Penal Code an act or combination of acts constitutes
attempt where the act or the acts are unequivocally targeted at the intended result. The
court found it hardly possible to conclude that the performed activities were unequivocally
targeted at the killing of the victims and to hold the appellant criminally responsible for
attempted homicide.
Where the evidence proves a crime that is not disclosed in the charge, article 113(2) of the
Criminal Procedure Code allows the court to convict the accused for the disclosed crime
provided that such offence is of a lesser gravity than the offence charged. The court
convicted the appellant, who is found in possession of weapons for an unlawful purpose,
under article 41(1) of Proclamation number 214/1981 and sentenced him to twelve years
rigorous imprisonment setting aside the lower court’s judgment.
10
////.13263
22 1996 .
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17
Federal Supreme Court of Ethiopia
Judges: Menberetsehai Tadesse

Dagne Melaku
Getachew Miheretu
Appellant: Ethiopian Insurance Corporation

Respondent: Bezu Abebe
Civil Appeal File No. 13263
March 1, 2004
Insurer’s liability for consequential damage; whether an insurer is liable for loss of income
suffered by the insured while the object insured was under repair for a longer period of
time-interpreting insurance policy- risks excluded-Articles 663(1) and 665(1) of the
Commercial Code; whether a party to a contract can be said to be late in performing its
obligation, thus in breach of a contract where the contract itself fixes no specific time for
performance-Articles 1790(1) and 1791 of the Civil Code.
An appeal was lodged against the judgment of the Federal High Court on the ground that
the insurer is neither contractually nor legally liable to compensate consequential damage
Held: The judgment of the Federal High Court was reversed by majority.
Summary of the Judgment
Respondent’s delivery vehicle was damaged in an accident during the currency of a valid
insurance contract with the appellant. The insurer, i.e., the present appellant, having opted
for repairing the insured vehicle, took the vehicle and gave it to a garage owner in which
the latter agreed to undertake the repair and deliver the vehicle within 40 days. However,
delivery was effected to the respondent, i.e. the insurer after a delay for 920 days.
Respondent brought an action against the appellant before the Federal High Court of Dire
Dawa to recover a sum of Birr 880,000 by way of damages for an allegedly lost income
(for a period of 880 days while the vehicle was not in use as it was under repair and at the
rate of Birr 1000 a day) on the ground that the appellant caused such loss by failing to
honor its obligation to repair and handover the vehicle within the agreed period of 40 days.
Appellant denied liability for the said loss of income arguing that it had had the vehicle
repaired and returned to the respondent as per its contractual obligation; that the appellant
did not undertake to repair and deliver the vehicle within 40 days upon notification of
occurrence of risk; that pursuant to the insurance policy the duty of the insurer was to
repair and deliver the vehicle and the insurance policy did not provide for a specified time
within which the insurer had to repair and deliver the vehicle.
The Federal High Court found the appellant liable for the alleged loss of income and
awarded the insured a sum of Birr 586, 666.66 (an amount the court fixed by equity).The
18
Court further ordered the insurer to refund to the insured the amount the insured paid by
way of court fee, advocate’s fee plus an additional sum of Birr 1000 for what the Court said
was due as other costs.
On appeal the Federal Supreme Court, by majority, reversed the decision of the trial court
holding that the insurer is not liable for the allegedly lost income, while a dissenting
opinion upheld the decision of the lower court on that issue.
The Supreme Court framed the issue of whether the insurer is liable for the income
allegedly lost during the time taken to have the vehicle repaired.
The Court argued that the insurance policy adduced by the parties provides that the insurer
has no obligation to compensate the insured for any loss suffered because the insured
vehicle was out of use. This is obviously to mean, the Court reasoned, that if the insured
vehicle has been damaged, and the insurer has no liability to compensate the insured for the
loss of income the insurer could have derived during the time it may take to have the
vehicle repaired. Thus, seen from the point of view of the insurance policy, the income
allegedly lost was not one among the risks for which the insurer is to be held liable on the
policy.
Pursuant to Article 663(1) of the Commercial Code an insurer shall guarantee the insured
against the risk specified in the policy; and that under Article 665(1) its liability to
compensate arises when the risk insured against materializes.
In the case at hand, the respondent is not legally entitled to claim compensation as the risk
occurred is not covered by the insurance policy. It is not possible to say that the appellant is
liable for the loss of income which the insured could have obtained from the use of his
vehicle where it is shown that such loss is not the type of risk covered in the policy.
The Court also rejected the respondent’s contention that the appellant, pursuant to Article
1790ff of the Civil Code, is liable for the damage that ensued from late performance of
obligation on the part of the appellant on the ground that there is no evidence which shows
that the appellant had assumed a specific obligation in which it was bound to repair and
deliver the insured vehicle within 40 days of the occurrence of damage; there is nothing in
the insurance policy to the effect that the insurer shall cause the repair of the vehicle and
deliver it within a fixed period.
The Court also reasoned that the respondent has not shown that the delay in repairing and
delivering the vehicle was attributable to the fault of the appellant either because the latter
failed to follow up the repair process or did not pay for the costs necessary to carry out
such repair.
Finally, the majority opinion concluded that there was neither contractual nor legal ground
on which the appellant insurer could be held liable to pay compensation for the loss of
income allegedly suffered by the respondent insured. The Court reversed the decision of
the Federal High Court and taxed the respondent with the cost of litigation.
19
Dissenting opinion
In as much as the insurer would have been liable for delay of performance if it had opted
for paying damages in cash and was late in effecting such payment, it should equally be
held liable for the loss its delay to repair and deliver the vehicle in due time might have
caused upon the insured where the insurer has chosen to repair and deliver the vehicle
instead of compensating the insured in cash.
Appellant’s contention that it is not bound, under the insurance policy, to compensate for
the loss of income is untenable for two reasons. Firstly, where the appellant contractually
assumed the obligation to repair the insured vehicle, it means that its duty is rather to cause
such repair in due time and it should not be construed to mean that the appellant is not at all
liable for a damage that may ensue if it fails to honor such duty where it opted for repairing
the vehicle itself than paying compensation in cash. As the main purpose of an insurance
policy is to avoid, or to reduce damage, or to obtain compensation equivalent to the
damage suffered, a conduct on the part of the insurer which could expose the insured to
additional damage by failing to repair and deliver the vehicle is in due time is contrary to
the purpose of the policy.
Secondly, where the insurer agreed with a [a third party] garage owner so that the latter
shall repair and deliver the vehicle within 40 days time, it is not difficult to understand that
the appellant had also assumed the same obligation towards the respondent; but the
appellant has not shown any sufficient cause, though the burden of proof lies upon it, for its
failure to accomplish this duty within the time fixed. Rather the appellant was at fault not
to have exerted the necessary diligence to discharge its obligation. The dissenting opinion
concluded that the appellant was liable as per Articles 1790(2) and 1791 of the Civil Code
for the loss of income allegedly suffered by the respondent due to appellant’s failure to
discharge its obligation in due time
20
ETHIOPIA’S RELUCTANT MOVE TO JOIN THE WTO:
A PRELIMINARY LOOK AT LEGAL AND INSTITUTIONAL
IMPLICATIONS OF ACCESSION
Melaku Geboye Desta∗
Introduction
The World Trade Organization (WTO) is the pre-eminent global body for the
regulation of international trade in goods and services today. With a current
membership of 152 countries and customs territories, and about 30 others negotiating
their accession to it, the WTO can easily aspire to universal membership as a real
possibility. Indeed, the 152 members alone already account for roughly about 95
percent of global merchandise trade.1 Ongoing negotiations for the accession of
Russia, Iran and Algeria – the only countries with significant share of international
trade still outside the trading system – promise that virtually all international trade will
take place within its framework of rules and enforcement mechanisms in the near
future.2
Perhaps to the surprise of many, Ethiopia has yet to join the WTO. Given Ethiopia’s
tradition of enthusiastic participation in multilateral initiatives, this contribution
attempts to ask some of the basic questions about why Ethiopia uncharacteristically
stayed out of such an important endeavour for so long and why it wants to join now,
and what the potential implications of the decision to join the system will be for the
legal, institutional and economic policy landscape of the country both during the
accession process as well as after achieving membership.
To do this, section II provides a brief historical account of how the multilateral trading
system evolved over time. The purpose of this section is to situate Ethiopia’s current
∗
LL.B., LL.M., PhD, Reader in International Economic Law, CEPMLP, University of Dundee, Scotland.
Contact: m.g.desta@dundee.ac.uk. I am grateful to Abebe Abebayehu, Chris Rogers, Lorand Bartels,
Fikremarkos Merso, Moshe Hirsch and Mamo Esmelealem for helpful comments on earlier drafts. All
errors remain mine.
1
See WTO Secretariat, International Trade Statistics 2007 (Geneva 2007).
2
The reality is of course more complicated. A significant portion of international trade takes place within
a web of bilateral and regional preferential trade arrangements, whether of a reciprocal (e.g. free trade
areas and customs unions) or non-reciprocal (e.g. unilateral schemes based on the Generalised System
of Preferences, GSP) nature. And yet, these preferential agreements are supposed to operate under a
framework of rules set by the WTO system itself. As Dam put it in 1963, the GATT “has been charged
with the duty to regulate the formation of customs unions and free trade areas.” Kenneth W. Dam,
“Regional Economic Arrangements and the GATT: The Legacy of a Misconception”, 30 University of
Chicago Law Review (1963), p. 615. Moreover, the fact that a country is not a member of the
GATT/WTO system does not always mean that the rules of that system do not affect the international
trade interests of that country; indeed, it is natural that the moment a country decides to trade with
another, the rules and regulations in the latter inevitably dictate the actual conduct of such trade.
21
interest to join the WTO in its historical context, and the discussion on the evolution of
the trading system itself is only secondary to this objective of assessing where Ethiopia
stood throughout this historical process. The discussion in this section, and to a certain
extent in others, is however incomplete in the sense that it is written only from an
‘outside’ perspective, i.e. based on the official records of the trading system itself
rather than any archives of the Ethiopian Government on the subject.3
This is followed in Section III by a brief introduction to the accession process. There is
ample literature on this subject and the sole purpose of this section is to provide a
highlight of the process to make sure the article makes sense on its own. Section IV
then asks the question of why Ethiopia wants to join the system now. We find
indications of the Government’s thinking from quite a few sources,4 but a statement
made by Ethiopia’s representative to the WTO at the meeting of the General Council
on 10 February 2003 that considered Ethiopia’s accession application appears to have
captured this well.5 This section attempts to answer the “why?” and “why now?”
questions using this official statement as a point of departure. Section V concludes that
the Government is right to seek to join the WTO, and it needs to be supported. The
accession process is a painful one for the country now, but it will be worth all the
effort in the future. To maximise the benefits of the accession process, and of final
membership, this article concludes with a proposal for an institutional response that
relevant government departments, academic institutions and the business community
might need to consider, and also outlines some areas for future research.
It is hoped that the article will make a modest contribution to the debate that must take
place among all stakeholders in this area, encompassing all of us as citizens, farmers,
business people, civil servants, academics, lawyers, economists, and the fledgling civil
society. The article is written with such a wide readership in mind.
I. Brief Historical Note: Where was Ethiopia for So Long?
One of only four African members of the League of Nations (since 1923)6, a founding
member of virtually all major global inter-governmental organizations that cropped up
in the aftermath of the second World War, including the United Nations, the World
Bank and the International Monetary Fund, and a leading player in continental and
regional initiatives within Africa, it is a mystery as to why Ethiopia appears to have
3
It is the hope of this writer that people with an ‘inside’ perspective will contribute to this journal and fill
this gap in our understanding.
4
The discussion in this article is based exclusively on publicly available information, which means that
our sources are limited to the few official statements available out there, including: WTO, Request for
Observer Status: Communication from Ethiopia (WT/L/229, 10 October 1997) and WTO, Request for
Extension of Observer Status: Communication from Ethiopia (WT/L/445, 11 January 2002).
5
See WTO doc. WT/GC/M/78, 7 March 2003.
6
Liberia and South Africa were founding members of the League while Egypt joined in 1937.
22
never wanted to join the International Trade Organization (ITO) in the 1940s and the
General Agreement on Tariffs and Trade (GATT) that effectively took over since
1948.7
It is not due to lack of awareness of what was going on at the time. The ITO Charter
was negotiated under the auspices of the United Nations Economic and Social Council
(ECOSOC), of which Ethiopia is a founding member. Nor would it be related to any
ideological discomfort with the system, since the political and economic thinking of
the Imperial Government of Ethiopia (1941-1974) was closer to the established West
than the then emerging East.8 The real reasons are difficult to determine, but a look at
the history of the GATT/WTO system will provide the context within which
government decisions were taken. To that end, it may be helpful to distinguish the
establishment phase of the multilateral trading system (between 1945 and 1948),
which would have allowed Ethiopia to become a founding member, from its later
evolution during which Ethiopia could have acceded to it.
A. Ethiopia during the Establishment of the Trading System
The whole idea of establishing an international trade organization was conceived by

the United States (US) Government, which saw a rules-based system of international
trade relations as a key component of its mission to build a post-war world at peace
with itself.9 The US administration believed that in order to build world peace and
stability, countries should adopt “a code of economic ethics and agree to live
according to its rules”.10 Then US President Truman believed that the same principles
of fair dealing that were being applied in politics by the United Nations also applied to
economics and declared, “this is the way to peace”.11 The US Government thus took
7
On the history of the ITO negotiations, see Clair Wilcox, A Charter for World Trade (Macmillan, New
York, 1949). See also John H. Jackson, World Trade and the Law of GATT (Bobbs-Merrill,
Indianapolis 1969).
8
Indeed, it is worth bearing in mind that a number of countries from the Eastern Bloc, such as Hungary,
Poland and Romania, became GATT contracting parties in the late 1960s and early 1970s. For a list of
the 128 countries that were contracting parties to the GATT on the eve of the WTO’s establishment in
January 1995 along with the date on which they signed the GATT, see
http://www.wto.org/english/thewto_e/gattmem_e.htm. For a broad survey of the economic thinking of
the Imperial regime, and particularly the close economic links with the US, see Shiferaw Bekele (ed.),
An Economic History of Ethiopia: The Imperial Era 1941 – 74 (Codesria, Senegal 1995).
9
US Government official Harry Hawkins is quoted to have said: “We’ve seen that when a country gets
starved out economically, its people are all too ready to follow the first dictator who may rise up and
promise them all jobs. Trade conflict breeds non-cooperation, suspicion, bitterness. Nations which are
economic enemies are not likely to remain political friends.” Hawkins, as quoted in Jackson, supra n. 7,
p. 38.
10
US President Truman, as quoted in Wilcox (1949), supra n. 7, pp. 20-21.
11
Id. P. 21.
23
the initiative and actively led the whole process that resulted in the conclusion of the
Havana Charter for the establishment of the ITO in 1948.12
Already in 1945, the US Government had sent invitations to fifteen countries to

participate in negotiations for the reduction of tariffs and other trade barriers.13 The
invitation was accepted by all except the USSR and talks commenced in December of
the same year.14 Ethiopia was not in that list. Given Ethiopia’s cordial relations at the
time with the US, this might indicate that the US determined the list on economic
rather than political considerations. And when the UN ECOSOC, at its first meeting in
London in February 1946, adopted a US-sponsored resolution for the calling of an
International Conference on Trade and Employment, it appointed the US and the same
15 countries in the US list, plus another three (Chile, Lebanon and Norway), as the
Preparatory Committee for the Conference.15 It was this committee of 18 countries, i.e.
except the USSR, that prepared the draft of the ITO Charter between October 1946
and August 1947. The draft later became the “basis for discussion” at the Havana
Conference from 21 November 1947 to 24 March 1948.16 The objective of the Havana
Conference was to agree on a draft Charter that would establish a new specialized
agency of the UN ECOSOC, the International Trade Organization.17
At the first session of the Preparatory Committee in London (15 October to 26

November 1946), the US “gave notice of its intention to enter into tariff negotiations
with the members of the group”18, thereby formally sowing the seeds of what later
came to be known as the GATT. The Preparatory Committee completed the draft ITO
Charter at the second session that commenced in Geneva on 10 April 1947 and
concluded on 22 August 1947. But members of the Preparatory Committee were soon
joined by five other countries (Burma (Mynamar), Ceylon (Sri Lanka), Pakistan,
Southern Rhodesia (Zimbabwe), and Syria) to undertake the first tariff negotiations
and adopt the GATT text, effectively the commercial policy chapter of the draft ITO
charter, which was concluded on 30 October 1947. The GATT was applied
provisionally through the Protocol of Provisional Application (PPA) on 1 January
12
See Interim Commission for the International Trade Organization, Final Act and Related Documents of
the Havana Conference (UN doc. E/CONF. 2/78, April 1948).
13
These were Australia, Belgium, Brazil, Canada, China, Cuba, Czechoslovakia, France, India,
Luxembourg, New Zealand, South Africa, the Netherlands, UK, and the Union of Soviet Socialist
Republics (USSR). See Clair Wilcox, supra n. 7, p. 40.
14
See http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact4_e.htm.
15
See UN ECOSOC, Resolution Regarding the Calling of an International Conference on Trade and
Employment, para. 6 (Annexure 1 to E/PC/T/33).
16
See GATT, Analytical Index: Guide to GATT Law and Practice, Updated 6th Edition (Geneva, 1995),
p. 5.
17
See UN Information Center, Press Release No. 36 (8 April 1947), para. 1.
18
See Wilcox, supra n. 7, p. 43.
24
1948 among the eight countries listed in paragraph 1 of the PPA plus Cuba.19 These
nine countries and the 14 others that signed the PPA by the cut-off date of 30 June
1948 set under its paragraph 3 became GATT founding ‘members’ – its original
Contracting Parties.20
Ethiopia was not involved in this process. Several other countries not members of the
ITO Preparatory Committee sent observers to the first and second sessions of the
Preparatory Committee as well as the Drafting Committee and, as we saw above, some
even joined the tariff negotiation process and became original parties to the GATT.
But we have not found any records of Ethiopia ever expressing interest in participating
in this process. Indeed, once the draft ITO Charter was finalized by the Preparatory
Committee, invitations were extended to all UN members to participate in the
Conference that was scheduled to open in Havana on 21 November 1947. According
to a report of the Chairman of the Preparatory Committee, as of 30 October 1947, 28
countries had accepted the invitation,21 while eight others, including Ethiopia, had
refused the invitations.22 Ethiopia was thus absent when 53 countries signed the ITO
Charter at Havana on 24 March 1948.23 But the Charter never entered into force24 and
the resulting gap was essentially filled by the GATT.
19
These are Australia, Belgium, Canada, France, Luxembourg, the Netherlands, the United Kingdom
(UK) and the US.
20
Chile missed the 30 June 1948 deadline and became an ‘original’ contracting party only through a
Special Protocol of September 1948. Note also that China, Lebanon and Syria later withdrew from the
GATT. For more on this, see GATT, Analytical Index: Guide to GATT Law and Practice, Updated 6th
Edition (Geneva, 1995), pp. 3-6; and WTO, World Trade Report 2007 (hereafter WTR 2007).
21
These are Australia, Brazil, Canada, China, Colombia, Costa Rica, Denmark, Haiti, Liberia,
Luxemburg, Netherlands, New Zealand, Norway, Philippines, Turkey, United Kingdom, United States,
Uruguay, Afghanistan, Sweden, Pakistan, Portugal, Switzerland, Trans-Jordan through Iraq, Indonesia,
Burma, Ceylon, and Southern Rhodesia. See United Nations Economic and Social Council, Second
Session of the Preparatory Committee of the United Nations Conference on Trade and Employment,
E/PC/T/PV.2/7, 30 October 1947, pp. 17.
22
The seven others are Byelo Russia (Belarus), Saudi Arabia, Ukraine, USSR, Yugoslavia, Siam
(Thailand), and Bulgaria. Id.
23
Only four of the 53 countries were from Africa: Afghanistan, Australia, Austria, Belgium, Bolivia,
Brazil, Burma, Canada, Ceylon, Chile, China, Colombia’ Costa Rica, Cuba, Czechoslovakia, Denmark,
Dominican Republic, Ecuador, Egypt, El Salvador, France, Greece, Guatemala, Haiti, India, Indonesia,
Iran, Iraq, Ireland, Italy, Lebanon, Liberia, Luxembourg, Mexico, Netherlands, New Zealand,
Nicaragua, Norway, Pakistan, Panama, Peru, Philippines, Portugal, South Africa, Southern Rhodesia,
Sweden, Switzerland, Syria, Transjordan, United Kingdom, United States of America, Uruguay, and
Venezuela (African countries in italics).
24
The reasons for this failure are many and varied. Many commentators now believe that the Charter was
too ambitious to enter into force at the time. Among the specific reasons often mentioned include its
treatment of agriculture (which some developed countries thought had gone too far – and note that the
US secured a waiver from GATT’s already weak agriculture provisions in 1955 – while mainly the
developing countries thought it had not gone far enough), its approach to international commodity
agreements, its ambitious investment and competition chapters, and so on. Indeed, it appears that by the
time the Charter was submitted for ratification before national legislatures, the political tide appeared to
have turned hostile towards economic liberalization. In the words of the WTO itself, ratification of the
ITO Charter “proved impossible” in some national legislatures and “[t]he most serious opposition was
25
In sum, what stands out about Ethiopia at this time is not the fact that it was not invited
by the United States or the UN ECOSOC to take part in the Preparatory Committee
but its express refusal to do so when the invitation to participate in the Conference was
finally made. This section has shown that Ethiopia actively rejected the trading system
then, but we do not know why it chose to do so. But, whatever the reasons at the time,
it is now clear with the benefit of hindsight, and an appreciation of the escalating
“entry fee” to the WTO over the years, that this was an expensive mistake for the
country, and the real cost of that mistake will become only clearer as the current
accession negotiations progress.
B. Ethiopia and the GATT: from Active Rejection to Active Observation
From its modest beginnings as a provisional agreement among 23 largely rich

countries, GATT membership grew sharply over the following decades. It is worth
noting in this connection that GATT recognizes independent customs territories that
may not satisfy the international law requirements of statehood as subjects of rights
and obligations on the same basis as states.25 For both states and independent customs
territories, GATT allowed two routes for accession – a standard route under Article
XXXIII,26 and a special route under Article XXVI:5(c).27
The special route of Article XXVI:5(c) was intended to achieve two things: (1)
regulate the application of the GATT to dependent territories for which GATT
in the US Congress.... In 1950, the United States government announced that it would not seek
Congressional ratification of the Havana Charter, and the ITO was effectively dead.” See
http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact4_e.htm.
25
GATT Article XXIV:2 defines a customs territory as “any territory with respect to which separate
tariffs or other regulations of commerce are maintained for a substantial part of the trade of such
territory with other territories.” Jackson has noted that GATT preparatory meetings had Southern
Rhodesia, Burma, and Ceylon in mind as they “were deemed to have autonomy in external commercial
relations when GATT was drafted in 1947” and were accepted as contracting parties to the GATT. See
Jackson supra n. 7, p. 96. See also Melaku Geboye Desta, “EC-ACP Economic Partnership Agreements
and WTO Compatibility: An Experiment in North-South Inter-Regional Agreements?”, 43(5) Common
Market Law Review (2006) pp. 1343-1379.
26
The text of Art. XXXIII provides as follows: “A government not party to this Agreement, or a
government acting on behalf of a separate customs territory possessing full autonomy in the conduct of
its external commercial relations and of the other matters provided for in this Agreement, may accede
to this Agreement, on its own behalf or on behalf of that territory, on terms to be agreed between such
government and the CONTRACTING PARTIES. Decisions of the CONTRACTING PARTIES under
this paragraph shall be taken by a two-thirds majority.”
27
GATT Art. XXVI:5(c) provides as follows: “If any of the customs territories, in respect of which a
contracting party has accepted this Agreement, possesses or acquires full autonomy in the conduct of its
external commercial relations and of the other matters provided for in this Agreement, such territory
shall, upon sponsorship through a declaration by the responsible contracting party establishing the
above-mentioned fact, be deemed to be a contracting party.”
26
contracting parties had international responsibility,28 and (2) facilitate participation in
the GATT of newly-independent or semi-independent countries and customs
territories.29 Following the decolonisation of large parts of Africa and Asia in the
1950s and 1960s, a number of countries from these regions used this route to join the
GATT.30 Indeed, this route allowed newly-independent countries to become GATT
contracting parties in some cases without having to undertake serious commitments of
their own.31 The accession-by-sponsorship option was of course de jure unavailable
for Ethiopia as it was never colonized by any foreign power.32 The only route for
Ethiopia to accede to the GATT would thus be that in Article XXXIII.
Article XXXIII is notorious for its opacity, providing merely that any state or separate
customs territory may accede to the GATT “on terms to be agreed between such
government and the Contracting Parties.” During its 47 years of life, GATT
successfully processed the accession of scores of countries,33 which was done mostly
as part of its series of trade negotiation rounds.34 Again, we could not find any records
28
This is a reference to countries or territories under colonial or other foreign rule in which the ruler is a
party to the GATT and the colony or dependent territory does not yet have full autonomy over its own
external commercial relations.
29
The following statement made by the UK representative to the GATT in 1986 where the UK sponsored
the accession of Hong Kong as a separate customs territory would be a good example of how it worked
in practice. The UK declared that Hong Kong “possesses full autonomy in the conduct of its external
commercial relations and of the other matters provided for in the Agreement. In accordance with the
provisions of Article XXVI(5)(c) of the said Agreement and with the wishes of Hong Kong, Hong
Kong will, with effect from the date of this communication, be deemed to be a contracting party to the
Agreement. … the United Kingdom will restore Hong Kong to the People's Republic of China with
effect from 1 July 1997 and that the United Kingdom will continue to have international responsibility
for Hong Kong until that date.” GATT doc. L/5986, 24 April 1986.
30
Indonesia became the first country to accede to the GATT under Art. XXVI:5(c) in 1950, which
followed recognition by the Netherlands (27 December 1949) of Indonesia’s unilateral declaration of
independence on 17 August 1945. See WTR 2007, p. 213. Starting with the 1957 accession of Ghana,
the first sub-Saharan African country to gain its independence in the same year, all sub-Saharan African
countries currently members of the WTO, with the exception of the Democratic Republic of Congo,
first became GATT contracting parties via the sponsorship route. See GATT Secretariat, “De Facto
Status and Succession: Article XVI:5(c): Revision”, GATT doc. MTN.GNG/NG7/W/40/Rev.1. See
also WTR 2007, Appendix Table 10, pp. 253-56. For a legal analysis, see GATT, “De Facto
Application of the General Agreement”, GATT doc. C/130, 28 June 1984.
31
A 1995 GATT Trade Policy Review of Cameroon noted, for example, that “Cameroon had no tariff
bindings in the pre-Uruguay Round GATT”. See http://www.wto.org/english/tratop_e/tpr_e/tp2_e.htm.
After the conclusion of the Uruguay Round, Cameroon bound only three tariff lines, i.e. 0.1 percent of
its total tariff lines. See WTO, Market Access: Unfinished Business – Special Studies 6 (Geneva, 2001),
pp. 7-8.
32
Note also that this route is not available any more for accession to the WTO.
33
GATT had a total of 128 contracting parties as at the end of 1994, i.e. on the eve of the creation of the
WTO.
34
As VanGrasstek observed, in “the great majority of GATT accessions, the applicant’s ‘entry fee’ was
negotiated concurrently with one of the eight rounds of multilateral trade negotiations conducted under
the auspices of the GATT.” See Craig VanGrasstek, “Why Demands on Acceding Countries Increase
over Time: A three-dimensional analysis of multilateral trade diplomacy”, in UNCTAD, WTO
27
showing if Ethiopia ever sought to join the system through the standard route of GATT
Article XXXIII.
However, Ethiopia’s attitude towards the trading system certainly changed over the
years. Firstly, Ethiopia participated in the GATT on an ad hoc basis since its early
days. To mention just a few examples, Ethiopia participated in the debate on the
problem of commodities regulation in 1956.35 It was also one of the countries that
responded positively to a 1967 GATT invitation for non-member developing countries
to take part in the work of the Trade Negotiations Committee of Developing Countries
with a view to their participation in those negotiations.36 Secondly, Ethiopia benefited
from the training programmes of the GATT from as early as 1960.37 Finally, Ethiopia
participated in GATT activities as an observer since at least 1984.38 Although there
were no formal GATT rules on the role of observers, in practice, this meant that
Ethiopia could attend meetings and participate in discussions but had no voting
rights.39 This established GATT practice has now been consolidated in detailed rules
of procedure within the WTO, which expressly provides that an observer’s right to
speak “does not include the right to make proposals, unless a government is specifically
invited to do so, nor to participate in decision-making.”40 The highest point of
Ethiopia’s GATT participation in this capacity was reached during the Uruguay Round
Accession and Development Policies (Geneva, 2001, hereafter UNCTAD (2001)), p. 121. To mention
an early example, the second GATT round of tariff negotiations at Annecy (France) in 1949 was
entirely about tariff negotiations between the original Contracting Parties and 11 countries that just
acceded to the GATT. See WTO, WTR 2007, p. 181. GATT sponsored eight such rounds: Geneva
(1947), Annecy (1949), Torquay (1951), Geneva (1956), Dillon (1960-1961), Kennedy (1964-1967),
Tokyo (1973-1979), and Uruguay (1986-1994). The ninth, or the WTO’s first, round of trade
negotiations is the ongoing Doha Development Agenda which was launched in November 2001.
35
GATT Intersessional Committee, Commodity Problems: Present Situation Regarding the Draft on
Commodity Arrangements, IC/W/51 10 September 1956.
36
See GATT Trade Negotiations Committee of Developing Countries, Participation of Non-GATT
Countries: Note by the Secretariat, TN(LDC)/6, 10 April 1968.
37
GATT records show that an Ethiopian economist was one of nine young African economists that
attended lectures in the Secretariat in February 1960. See GATT, Fellowship Programme and Course
for Officials of Governments Parties to the GATT or Members of the United Nations: Note by the
Executive Secretary, L/1327, 27 October 1960. Ethiopian officials continued to participate in GATT
training programmes since the 1960s.
38
See GATT, Observer Status in GATT: Note by the Secretariat, GATT doc. C/129, 27 June 1984.
Although I was unable to verify this with the help of original GATT documents, Professor Jackson
noted in his 1969 authoritative treatise that Ethiopia had an observer status in GATT already in 1968.
See Jackson, supra n. 7, p. 901.
39
At GATT Council meetings, for example, observers would traditionally be invited to speak on a
particular point only after Council members have spoken. See GATT doc. C/129, supra n. 38, para. 11.
40
WTO, Rules of Procedure for Sessions of the Ministerial Conference and Meetings of the General
Council, WTO doc. WT/L/161, 25 July 1996, Annex 2, para. 10.
28
negotiations when it sounded nearly as committed to the principles and objectives of
the trading system as any full-fledged member could be.41
Such increasingly warm and active participation could not of course alter the fact that,
by the time the WTO was created, Ethiopia remained outside the GATT system. For
Ethiopia and others still outside the system, the transition from GATT to the WTO
also meant a transition to a more difficult and demanding system of accession with
ever rising “entry fee”.42 As Gerald Curzon observed in 1965, accession to the GATT
was “biased in favour of newcomers” and GATT contracting parties “do not normally
try to drive too hard a bargain in payment of concessions which they made to third
countries many years before.”43 Those ‘good old days’ have undoubtedly gone.44
C. Ethiopia and the WTO: Seeking Membership with Reluctance?
It was in 1997, two years after the establishment of the WTO, that the Ethiopian
Government formally submitted an application for observership with a declaration of
its “intention to apply for accession to the WTO Agreements in the near future”.45 Under
the WTO rules of procedure, a government that requests such status is expected to
initiate accession negotiations “within a maximum period of five years”.46 The WTO
General Council accepted Ethiopia’s application at its meeting of 22 October 1997 in
which Ethiopia was represented at ministerial level, indicating the importance the
41
During the Uruguay Round negotiations, Ethiopian representative Gezahegne Tsegaye said that
Ethiopia “follows the activities of the organization with keen interest, because not only do the activities
of GATT directly or indirectly concern all countries, but also the objectives and principles of the
organization merit the respect by all countries.” Gezahegne went on to argue about the marginalization
of the poor, endorsed statements made by the LDC Group in the Round and concluded: “while my
delegation notes with satisfaction the progress made in the Uruguay Round of negotiations, it feels
concerned that most of the substantive issues will have to be tackled within the remaining one year of
the Round. Under the circumstances, the negotiations on the substantive issues will have to be
accelerated further in order for the Round to reach a successful end.” See GATT doc. SR.45/ST/33, 21
December 1989. As it turned out, the Uruguay Round negotiations continued for another four years.
42
See Murray Gibbs, in UNCTAD (2001), p. xviii, noting that the process of WTO accession “has
become more difficult than that of accession to the GATT 1947.”
43
Curzon, as quoted in Steve Charnovitz, "Mapping the Law of WTO Accession" , WTO at Ten:
Governance, Dispute Settlement and Developing Countries, in Merit Janow, Victoria Donaldson and
Alan Yanovichm (eds. Juris Publishing, forthcoming), p. 4, available at SSRN:
http://ssrn.com/abstract=957651.
44
Note however that this could be a matter of perspective. Peter Sutherland is certainly not alone when he
says that those countries that undertook significant commitments as part of their accession benefited
from their accession more than those that acceded with less rigorous commitments, as happened during
the GATT days. See Peter Sutherland, “Transforming Nations: How the WTO Boosts Economies and
Open Societies”, in 87(2) Foreign Affairs (2008).
45
WTO, Ethiopia – Request for Observer Status: Communication from Ethiopia, WT/L/229, 10 October
1997.
46
See WTO Rules of Procedure supra n. 40, para. 4.
29
Government attached to the process.47 However, domestic events soon overtook any
intentions expressed in Geneva, and Ethiopia missed the five-year deadline within
which to initiate the accession process. This meant that Ethiopia had to seek an
extension for its observer status in 2002,48 which was granted by the WTO General
Council at its meeting of 13-14 May 2002.49 This time, Ethiopia acted on its promises
and submitted its request for accession in January 2003.50 At its meeting of 10 February
2003, the General Council accepted the application and established an accession
working party with standard terms of reference: “to examine the application of the
Government of Ethiopia to accede to the WTO Agreement under Article XII, and to
submit to the General Council recommendations which may include a draft Protocol of
Accession.”51 As we shall see further below, however, Ethiopia submitted its
Memorandum on Foreign Trade Régime (MFTR) only in 2007.
II. What Next for Ethiopia? Highlights of the Accession Process
The establishment of the working party is an important first step, but it is also the
easiest part of the process. Almost every WTO member present at the General Council
meeting appeared keen not to miss an opportunity to register a friendly statement
about Ethiopia’s decision to seek accession.52 This friendly atmosphere inside the
47
See WTO doc. WT/GC/M/23, 28 November 1997.
48
See WTO, Ethiopia - Request for Extension of Observer Status: Communication from Ethiopia, WTO
doc. WT/L/445, 11 January 2002. Among the most eye-catching statements in the two brief documents
submitted by the Government was the statement about a tariff overhaul in which the maximum rate was
slashed from 230 per cent prior to the reform to 50 per cent by 1997, and to 40 percent by 2002. See
Ethiopia’s 1997 request, p. 3, and 2002 request, para. 22.
49
See WTO doc. WT/GC/M/74, 1 July 2002.
50
See WTO, Technical Note on the Accession Process: Note by the Secretariat: State of Play and
Information on Current Accessions: Revision, WT/ACC/11/Rev.7, 18 May 2007.
51
See WTO doc. WT/GC/M/78, 7 March 2003, para. 31. Membership of the working party is open to all
WTO members, and we will have indications of the numbers only after the first meeting of the working
party takes place. In practice, the size of working parties “varies considerably”. According to a WTO
note, as of November 2005, Russia had the largest working party with 58 members, while Bhutan and
Montenegro had the smallest number of members at nine each. See WTO Secretariat, Technical Note
on the Accession Process – Note by the Secretariat: Revision, WT/ACC/10/Rev.3, 28 November 2005,
p. 8. Note that in both cases then EC-25 was counted as one.
52
See WTO doc. WT/GC/M/78, 7 March 2003, paras. 12-30, in which virtually every WTO member
present “warmly welcomed Ethiopia’s statement, and supported its request for accession and the
establishment of a working party to examine it.” The members that spoke, either for themselves or on
behalf of groupings, include Morocco (on behalf of the Africa Group), Bangladesh (on behalf of the
LDCs), the European Communities, India, Israel, Kenya, Pakistan, China, United States, Peru (on
behalf of GRULAC, an informal grouping of Latin-American members of the WTO), Indonesia (on
behalf of the ASEAN Members), Bahrain, Botswana, Canada, and Turkey, and Slovenia (on behalf of
Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania and Slovak
Republic).
30
meeting room will change soon, and there are almost no rules governing what goes on
in that room.
A. The Process
The accession process is carried out on two parallel and often overlapping tracks – a
multilateral track that aims to find out about the relevant laws, policies and practices of
the acceding country and ensure they are brought into conformity with WTO rules, and
a bilateral track that aims to extract as many specific commitments from the acceding
country as is deemed reasonable by each member of the working party.
The multilateral and fact-finding track starts with the applicant country’s submission
of a Memorandum on its Foreign Trade Régime, a crucial document that is prepared
according to a detailed outline format provided by the WTO Secretariat.53 Once the
MFTR is submitted, members of the working party start the questions and answers
process in which they try to learn as much as they can about the applicant country’s
trade and legal regime and identify areas of possible inconsistency with WTO
Agreements.54 This multilateral process then moves on to negotiate “the terms of
accession”, which covers WTO rules on goods, the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS Agreement) and systemic issues in the
area of services.55
Parallel to the multilateral process, bilateral market access negotiations on goods and
services take place between the acceding country and any interested WTO member.56
A successful conclusion to the process comes in the form of a Report of the Working
Party, including a draft Decision and Protocol of Accession, which is forwarded to the
General Council. The Protocol “contains a single package of agreed commitments on
rules, concessions and commitments on goods, and specific commitments on services”
and “sets out the terms on which the Applicant is invited to join the WTO.”57
As noted earlier, Ethiopia submitted its MFTR only in January 2007 and this has
already triggered the bilateral questions and answers process, which has the potential
to become a drawn-out exchange of papers between Ethiopia and any member of the
working party. The first accession working party meeting took place in May 2008.
53
See WT/ACC/1, Attachment.
54
See WT/ACC/10/Rev.3, 28 November 2005.
55
See Id., p. 5.
56
See Id.
57
See Id.
31
B. Inequities of the Accession Process
Given the tradition of consensus with which decisions are taken at the WTO, the
slowest or most obstructive member of the working party normally dictates the pace of
the entire process. As noted already, the whole accession process is subject to the same
opaque language of GATT Article XXXIII, which has been reproduced almost
verbatim in Article XII:1 of the Marrakesh Agreement establishing the WTO.58 This is
a provision that was written with deliberate vagueness and parsimony so as to
guarantee existing members complete control over the identity of countries that may
join and the speed and terms under which they may do so. As the WTO Secretariat
observed,
Perhaps the most striking feature of WTO Article XII is its brevity. It gives
no guidance on the ‘terms to be agreed’, these being left to negotiations
between the WTO Members and the Applicant. Nor does it lay down any
procedures to be used for negotiating these terms, the latter being left to
individual Working Parties to agree. … In this, it follows closely the
corresponding Article XXXIII of GATT 1947.59
There are a number of useful guidelines prepared by the WTO Secretariat and the
United Nations Conference on Trade and Development (UNCTAD) about the
accession process, but every country is different and it is impossible to say definitively
what a specific acceding country can expect from this arduous process. The one-sided
nature of the rule and the process has been used in practice to delay, and in some cases
deny, the accession of countries for other than trade-related reasons,60 and when
accession is finally granted, to impose terms and conditions that go well beyond the
commitments undertaken by existing members. We have seen from previous
experience that newly-acceding countries could be “forced” to undertake obligations
that exceeded those applying to existing WTO members (often called “WTO-plus
58
Article XII (1) and (2) of the Marrakesh Agreement provides as follows: “1. Any State or separate
customs territory possessing full autonomy in the conduct of its external commercial relations and of
the other matters provided for in this Agreement and the Multilateral Trade Agreements may accede to
this Agreement, on terms to be agreed between it and the WTO. Such accession shall apply to this
Agreement and the Multilateral Trade Agreements annexed thereto. 2. Decisions on accession shall be
taken by the Ministerial Conference. The Ministerial Conference shall approve the agreement on the
terms of accession by a two-thirds majority of the Members of the WTO.”
59
WTO Secretariat, Technical Note on the Accession Process – Note by the Secretariat: Revision
(WT/ACC/10/Rev.3, 28 November 2005), p. 3.
60
A recent article on the Financial Times (London, 15 April 2008, p. 6) noted that Ukraine’s then
imminent accession to the WTO (as from 16 May 2008), has put the country in a position to block
Russia’s bid to join the WTO, “giving it significant leverage that it could use in natural gas supply talks
or in retaliation over Moscow’s opposition to plans by Ukraine and Georgia to join NATO.” Likewise,
it was widely reported in the media that Russia ratified the Kyoto Protocol in 2004 at least in part
because the EU made support for Russia’s WTO accession conditional on such move. See The
Independent (London, 23 October 2004).
32
obligations”) while they acquired less-than full rights within the system (often called
“WTO-minus rights”).61 In a few cases, this process has been used by WTO members
to effectively “modify” the rules of the WTO Agreement and its annexes that apply to
newly-acceding countries.62
The inequities resulting from the opacity of Article XII of the WTO Agreement and
the self-serving manner with which many developed countries apply it to the accession
of developing countries has attracted criticism from observers and acceding countries
themselves over the years. To cite only two examples, Craig VanGrasstek called it
“almost a reverse form of special and differential (S&D) treatment for developing
countries,”63 while Grynberg and Joy described it as a process “akin to having a
complainant at a panel act as the sole panellist” and an “abuse of power”.64
C. The WTO Decision to Expedite the Accession of LDCs
It was in response to these and many other criticisms that the Doha Ministerial
Declaration promised special procedures to accelerate the accession of LDCs.65 This
commitment was supplemented by a 2002 decision of the WTO General Council
which aimed to set out “simplified and streamlined accession procedures” for LDCs.66
The key points of the Decision include (1) an exhortation that WTO members must
“exercise restraint” in seeking concessions and commitments on trade in goods and
services from acceding LDCs; (2) a reaffirmation that acceding LDCs offer access
through “reasonable concessions and commitments” on terms commensurate with their
individual development, financial and trade needs; (3) a commitment to make existing
special and differential treatment benefits immediately available to all acceding LDCs
from the day of accession; (4) a commitment to make available the transitional periods
and arrangements foreseen under specific WTO Agreements, which should be
accompanied by action plans for implementation of commitments and supported by
technical assistance and capacity building measures; (5) a commitment not to demand
61
For an insider analysis, see Marc Bacchetta and Zdenek Drabek, “Effects of WTO Accession on Policy
– Making in Sovereign States: Preliminary lessons from the recent experience of transition countries”,
WTO Staff Working Paper DERD-2002-02 (April 2002). For a legal analysis of these concepts, see
Charnovitz, supra n. 43.
62
For analysis of how this process was used to alter the WTO rules that apply to China, see Julia Ya Qin,
“’WTO-Plus’ Obligations and Their Implications for the World Trade Organization Legal System: An
Appraisal of the China Accession Protocol”, in 37(3) Journal of World Trade (2003), pp. 483-522.
63
See VanGrasstek, supra n. 34, p. 115.
64
See Roman Grynberg and Roy M. Joy, “The Accession of Vanuatu to the WTO: Lessons for the
Multilateral Trading System”, in UNCTAD (2001), p. 36.
65
See Doha Ministerial Declaration (WT/MIN(01)/DEC/1, 20 November 2001), para. 9. The Declaration
further stated, in para. 42, that: “Accession of LDCs remains a priority for the Membership. We agree
to work to facilitate and accelerate negotiations with acceding LDCs. We instruct the Secretariat to
reflect the priority we attach to LDCs’ accessions in the annual plans for technical assistance.”
66
See WTO, Accession of Least-Developed Countries: Decision of 10 December 2002, WTO doc.
WT/L/508, 20 January 2003.
33
membership of plurilateral agreements as a precondition for WTO accession; (6) a
cautious suggestion for WTO members to be supportive of LDCs in their bilateral
negotiations including the conduct of such negotiations “in the acceding LDC if so
requested”; and (7) to give priority to acceding LDCs in the provision of “targeted and
coordinated technical assistance and capacity building” including under the Integrated
Framework (IF).67
The adoption of this Decision was soon followed by the successful accession of
Cambodia and Nepal in 2003, the first and so far the only LDCs to join the WTO since
its establishment in 1995.68 No African country has acceded in accordance with Article
XII of the WTO Agreement since 1995,69 and indeed no sub-Saharan African country
(hereinafter SSA) except the Democratic Republic of Congo has ever joined the
GATT/WTO system through the standard accession route over the past six decades.
Although this reflects the fact that most SSA countries took advantage of the
sponsorship option described above, there are also quite a few African countries that
have tried the full-fledged accession process that are still struggling to see it finalized.70
Devising the right strategy with which to exploit the lamentable record of the WTO on
LDCs in particular to their advantage is one of the challenges for the Ethiopian
negotiators.
67
The IF was first established in 1997 by six multilateral institutions (IMF, ITC, UNCTAD, UNDP,
World Bank and the WTO) to support LDCs in the multilateral trading system by helping them
integrate trade into their national development plans and “to assist in the co-ordinated delivery of trade-
related technical assistance in response to needs identified by the LDC.” See
http://www.integratedframework.org/about.htm. Among its most valuable contributions are the so-
called Diagnostic Trade Integration Studies (DTIS), including one for Ethiopia. All these studies are
freely available for download at: http://www.integratedframework.org/index.html.
68
The two candidates were formally welcomed into the club at the WTO’s Cancun Ministerial
Conference in September 2003, which may not be remembered for much else. See WTO, Ministerial
Conference: Fifth Session – Cancún, Ministerial Statement: Adopted on 14 September 2003,
WT/MIN(03)/20, 23 September 2003, para. 2.
69
A qualification must be added here: Cape Verde, an African country that graduated out of the LDC
category in 2007, got its accession package approved by the WTO General Council on 18 December
2007, but the country has yet to ratify the deal in order to complete its accession. Cape Verde can do
this until 30 June 2008, pending which it remains an observer at the WTO. See WTO Press Release,
“Lamy welcomes Cape Verde’s accession as another sign of confidence in the WTO”, Press/503, 18
December 2007.
70
African countries currently negotiating accession, apart from Ethiopia and Cape Verde, are Algeria
(since June 1987), Comoros (since October 2007), Equatorial Guinea (since February 2008), Liberia
(since December 2007), Libya (since July 2004), Sao Tomé and Principe (since May 2005), Seychelles
(since July 1995), and Sudan (since October 1994). The dates in parentheses indicate when their
accession applications were accepted and accession working parties established.
34
III. Why Join the WTO, and Why Now?
To start with the question of timing, the Government’s decision to join the WTO now
must be seen in the light of the economic reform programme it has been pursuing since
1991/92. The reform programme aimed to replace the command economy of the
previous regime with a market economy by, inter alia, “lifting restrictions on the
private sector, instituting markets for factors of production, macro-economic and trade
liberalization.”71 This economic programme has been developed into an overall
economic development strategy that has come to be known as Agricultural
Development-Led Industrialization (ADLI).72 A key feature of the reform programme
has been the unilateral economic liberalization process that, in trade terms, led to a
reduction of the maximum import tariff levels in the country from as high as 240
percent prior to 1991 to 80 percent in 1995 and 35 percent in 2002.73 WTO accession
thus appears to be the logical extension of this reform programme.
In preparation for its WTO accession negotiations, the Government has established a
WTO Affairs Department within the Ministry of Trade and Industry (MOTI), the
ministry responsible for trade negotiations. While the minister of MOTI is the chief
negotiator, a national Steering Committee made up of about 12 ministers and the heads
of about ten autonomous governmental agencies has been set up to provide overall
guidance for the negotiations and submit legislative proposals to the Council of
Ministers for final decision. Furthermore, a national Technical Committee has been
established to provide technical support to the negotiation effort.74
This does not of course answer the critical question of why Ethiopia wants to join the
WTO at all. A few governmental documents and speeches by relevant officials provide
indications of the overall objectives of the Government in seeking accession, but the
statement made by Ethiopia’s representative at the meeting of the WTO General
Council on 10 February 2003 that considered Ethiopia’s accession application appears
to have captured well the Government’s thinking in this respect and this section
attempts to answer the “why” question using that official statement as a point of
departure.
71
See WTO, Trade-Related Technical Assistance Needs-Assessment Presented By Ethiopia,
WT/COMTD/IF/19, 26 February 1998, p. 8.
72
ADLI’s objectives are “to create adequate markets so as to sustain the growth of the agricultural sector;
[to] generate foreign exchange necessary for the overall economic development; and [to] ensure the
promotion of an internationally competitive industry.” See WT/L/445, supra n. 4. A recent World Bank
report strongly endorses this approach saying “the growth strategy of agriculture-based economies for
many years to come has to be anchored in improving agricultural productivity.” World Development
Report 2008: Agriculture for Development (2007) p. 7.
73
See Diagnostic Trade Integration Study (DTIS) of Ethiopia: Trade and Transformation – Summary and
Recommendations (July 2004), Vol. 1, p. 20.
74
See Ministry of Trade and Industry, Directive 1/1999, November 2007, Amharic version on file with
author.
35
A. Reasons Given by the Government
At that General Council meeting, the representative of Ethiopia outlined “some of the
reasons which had led his Government to decide to start the WTO accession process
and to be part of the multilateral trading system” as follows:
[the Government] was fully convinced that the best way to accelerate
economic growth and development was to integrate its economy into the
multilateral trading system. To be a Member of the WTO was to be part of
the rules-based multilateral trading system, and this would create
confidence for investors and serve as an instrument to attract foreign
direct investment for diversifying the production base and expanding the
supply capacity of the country. It would also help to secure predictable and
transparent market access. The effective participation of the least-
developed countries in the decision-making process of the multilateral
trading system would encourage them that the speed, nature and direction
of globalization would be compatible with their developmental needs.75
This statement makes it clear that the Government has identified at least four broad
and interrelated objectives for its WTO accession: (1) to accelerate economic growth
and development, (2) to attract foreign investment, (3) to secure predictable and
transparent market access, and (4) to influence the speed, nature and direction of
globalization. The first three objectives in particular are conventional explanations
often invoked as reasons for WTO accession. However, we will argue below that the
direct role of WTO accession for the attainment of these otherwise worthy goals may
be limited. But, if the Government handles the accession process carefully and carries
out its membership obligations in good faith, WTO accession is likely to help
achievement of these goals, albeit indirectly.
1. WTO Accession and Economic Development
To start with the first and overriding objective, the relationship between trade
liberalization – the one thing we can surely expect to come out of the WTO accession
process – and economic growth is a complex and controversial one.76 While there is
strong evidence that suggests that “freer trade tends to lead to greater growth”, no one
seriously claims that freer trade necessarily leads to this. Leading trade economist and
ardent champion of the multilateral trading system Jagdish Bhagwati wrote that “those
who assert that free trade will also lead necessarily to greater growth either are
ignorant of the finer nuances of theory and the vast literature to the contrary on the
subject at hand or are nonetheless basing their argument on a different premise: that is,
75
See WTO doc. WT/GC/M/78, 7 March 2003.
76
For an excellent analysis of the relationship between trade and economic development, and accessible
to the non-economist, see WTO, World Trade Report 2003 (Geneva 2003), pp. 78-113.
36
that the preponderant evidence on the issue (in the postwar period) suggests that freer
trade tends to lead to greater growth after all.”77 Another influential group of scholars
argued more recently that development comes primarily from inside, that “outsiders
can play only a limited role” and that national “history and economic and political
institutions have trumped other factors in determining economic success.”78 The World
Bank also agrees that “[m]ost of the gains from trade liberalization result from a
country’s own reforms.”79 Peter Sutherland, the first Director General of the WTO
(and the GATT’s last), sees a more significant role in “outsiders”, but even he does not
present WTO membership as the primary determinant of economic success; he
considers the trading system only as “a catalyst” for outside support once the internal
commitment to reform is firmly in place – i.e., when “political leaders understand that
fundamental change is necessary, or unavoidable, and that it cannot be achieved
without [such] support from the outside.”80
Even if we were to assume that freer trade leads to greater growth, it does not
necessarily follow that a country has to be a WTO member to liberalize its trade
policies.81 Unilateral liberalization is always an option and, while WTO membership
can facilitate the liberalization process, membership comes with a package of its own,
and parts of that package can impose additional costs. As Ismail noted, “[t]here is
increasing recognition that WTO rules may have gone too far in reducing the
discretion available to many developing countries to use some trade policy instruments
to enhance their economic development”.82 Indeed, it has been almost an article of
faith among developing countries that the very design of the GATT/WTO system has
been skewed against their interests since its inception. A summary of India’s reaction
to US proposals for the ITO in 1946, recounted by then US negotiator Clair Wilcox,
captured well the discontent of developing countries at the time:
In India, as in other underdeveloped countries, the original American

Proposals were regarded with suspicion. They were designed
exclusively, it was said, to serve the present needs of the industrial
powers. They offered no hope of reducing disparities in living
standards between the nations of the world. They afforded no positive
program for the development of backward areas. Their approach was
wholly negative; they would deny to undeveloped nations freedom to
77
Jagdish Bhagwati, Free Trade Today (Princeton, 2002), p. 42.
78
See Nancy Birdsall, Dani Rodrik, and Arvind Subramanian, “How to Help Poor Countries”, 84(4)
Foreign Affairs (July/August 2005), pp. 136-152.
79
World Bank, Global Economic Prospects 2004, p. 206.
80
Sutherland, supra n. 44.
81
However, for an argument that WTO accession helped its new members to accelerate their economic
development, see Sutherland, supra n. 44.
82
Faizel Ismail, “How Can Least-Developed Countries and Other Small, Weak and Vulnerable
Economies Also Gain from the Doha Development Agenda on the Road to Hong Kong?”, 40(1)
Journal of World Trade (2006), p. 58.
37
use the very devices by which the industrial powers had established
their pre-eminence.83
This developing country view was later found to have merit by a high profile study
commissioned by the GATT itself in 1958, which concluded, inter alia, that “there is
some substance in the feeling of disquiet among primary producing countries that the
present rules and conventions about commercial policies are relatively unfavourable to
them.”84
The result was that the history of developing countries in the GATT/WTO system
became a history of relentless struggles to modify the system in their favour, which
traditionally meant an effort to water down the extent of obligations applying to them
in the form of what is now generally known as special and differential treatment.85
Among the notable multilateral responses that took a legal form over the lifetime of
the GATT/WTO system are the amendment of GATT Article XVIII by the 1954-55
GATT Review Session to relax the conditions under which developing countries could
take measures for infant industry protection as well as for balance-of-payments
purposes, the 1964 addition of Part IV to GATT on trade and development, the
introduction of the Generalized System of Preferences in 1971 on the basis of a
temporary waiver from the MFN principle which was later put on a permanent legal
foundation as the Enabling Clause, as part of the Tokyo Round agreements in 1979,
and the insertion of special and differential treatment provisions in virtually every
agreement that has been concluded as part of the Uruguay Round whether in the form
of exemption from specific obligations, longer transition periods to implement certain
commitments or the institution of special procedures in dispute settlement cases
involving developing countries.86 It is depressing to realize that most of the
development issues at the top of the agenda today are almost exactly the same as they
were during the formative years of the trading system.87
The conclusion for us here would be straightforward: WTO membership is neither a

necessary nor a sufficient condition for economic growth and development. However,
we can go a step further and argue that parts of the WTO package have the potential to
83
Wilcox, supra n. 7, p. 31.
84
GATT, Trends in International Trade: Report by a Panel of Experts (presided by Gottfried Haberler,
Geneva 1958), para. 62.
85
As Keck and Low put it, the issue of special and differential treatment has been “a defining feature of
the multilateral trading system for most of the post-war period.” A. Keck and P. Low, Special and
Differential Treatment in the WTO: Why, When and How? (WTO Staff Working Paper 2004), p. 3.
86
For more on this, see WTO Secretariat, “Non-Reciprocal Preferences and the Multilateral Trading
System” in WTO, World Trade Report 2004 ((hereafter WTR 2004), pp. 26-44) and Dos Santos, et al,
“Generalized System of Preferences in General Agreement on Tariffs and Trade/World Trade
Organization: History and Current Issues”, 39(4) Journal of World Trade (2005) pp. 637-670.
87
For more on the trade and development debate, see Robert Hudec, Developing Countries in the GATT
Legal System (Gower Publishing, Aldershot, Hampshire 1987).
38
directly undermine the development objectives of countries such as Ethiopia. The main
threat comes from the TRIPS Agreement, which was brought into the WTO primarily
to protect the interests of developed countries over developing countries.88 Developing
countries agreed to TRIPS in exchange for developed country commitments to
liberalize agriculture and textiles,89 but the result is an intellectual property regime
that, in the words of Lord Templeman, will help to “keep developing countries in a
state of economic subjection which is no better than the colonial exploitation of the
last century.”90 None other than Bhagwati argued that the WTO approach to
intellectual property, such as its 20-year protection for patents, amounts to “a transfer
[of resources] from most of the poor countries to the rich ones” and dismisses TRIPS
as “an item that does not belong to the WTO.”91 The utility of the TRIPS Agreement
for poor countries like ours is next to non-existent,92 and the Agreement itself
recognizes this and provides for flexibilities designed to respond to the particular
challenges of LDCs.93 But, empirical evidence suggests that those flexibilities are
rarely used by these countries.94
From the perspective of an acceding country, therefore, the accession process is

effectively about finding the right point of balance between what is supportive of
development in the WTO against that which could be damaging to development.
88
As Finger put it, intellectual property came into the Uruguay Round agenda “at the insistence of
developed country industries. … [F]ew delegates or analysts (such as this reviewer) appreciated the size
of the liability TRIPS would create for intellectual property users.” See Michael Finger, “Review
essay” in 6(1) World Trade Review (2007), p. 139. For an extensive treatment of the TRIPS Agreement,
see UNCTAD-ICTSD, Resource Handbook on TRIPS and Development (Cambridge 2005).
89
Donald Mcrae, “Developing Countries and ‘The Future of the WTO’”, 8(3) Journal of International
Economic Law (2005), p. 603.
90
Lord Sydney Templeman, “Intellectual Property” in 1(1) Journal of International Economic Law
(1998), p. 605.
91
Bhagwati, supra n. 77, p. 75. Likewise, Birdsall et al argue that “[c]urrently, the developed world uses
international trade agreements to impose costly and onerous obligations on poor countries. The most
egregious example has been the [TRIPS Agreement]. TRIPS will make the prices of essential
medicines significantly greater, and this at a time when poor countries are being ravaged by one of the
worst health epidemics ever known—HIV/AIDS. The price increase means that money from the
citizens of poor countries will be transferred directly to wealthy pharmaceutical companies. … An
international community that presides over TRIPS and similar agreements forfeits any claim to being
development-friendly.” Birdsall et al, supra n. 78, pp. 144.
92
For a rare story of potential success by an LDC pursuing the route of intellectual property protection,
see “Coffee in Ethiopia: Direct from the source”, The Economist, April 17th 2008. It tells the story of
how the Ethiopian Government successfully trademarked its three top coffee varieties, Harar,
Yirgacheffe, and Sidamo and licensed the brands to about 70 suppliers worldwide, which has created
the hope that this will establish the varieties as brand names and “enable farmers to demand higher
prices.”
93
See, e.g. TRIPS Art. 66.
94
For a recent review of the role of the TRIPS Agreement on technology transfer and development, see
UNCTAD, The Least Developed Countries Report 2007: Knowledge, Technological Learning and
Innovation for Development (Geneva 2007), available at
http://www.unctad.org/Templates/Page.asp?intItemID=3073.
39
While it seems fairly clear that WTO membership can play a significant role in
facilitating economic development, it is only secondary to a national commitment to
economic, legal and overall policy reform. It is this internal commitment to reform that
seems to have played the decisive role in the economic development of many countries
that have acceded hitherto. The lesson from that experience appears to be that, for
governments that have taken the firm commitment to reform, the WTO provides them
with a framework within which to implement it, a catalyst with which to speed it up,
and a reason to remain loyal to it even in the face of politically more expedient short
term options.95
2. WTO Accession and Foreign Direct Investment
The role of WTO membership and consequent trade liberalization on the flow of
foreign direct investment is at best unclear, and at worst counterproductive. There is
plenty of empirical evidence that suggests that one of the main reasons companies
invest in a foreign country is to avoid the import barriers of that country by producing
their goods from inside the border. As a WTO Secretariat report noted, “[b]ypassing
protectionist measures by establishing production facilities in the protecting country is
perhaps the oldest explanation for FDI”.96 This theory would naturally lead to the
conclusion that, other things being the same, higher import restrictions are more
attractive to FDI than lower ones. In fact, the conclusion reached by economists who
studied the subject is much more nuanced than that: “both high and low trade barriers
can attract FDI, but of different types. … FDI attracted to protected markets tends to take
the form of stand-alone production units geared to the domestic market. In contrast, low
trade barriers, especially on intermediate goods, are conducive to vertical FDI attracted
by the fundamental advantages of the host country, such as low labour costs, natural
resources and generally favourable economic conditions. Judging from the cross-country
regressions on inflows of FDI to developing countries, countries with an ‘open’ trade
regime seem on average to attract more FDI than countries with a ‘closed’ trade
regime.”97
What this means for our purposes is that not much can be expected in terms of FDI
flows from WTO membership per se.98 Government policy seems to play the decisive
95
This is also what comes out from Sutherland’s analysis: “The fundamental value of WTO membership
– and the negotiations that precede it – is an opportunity to establish an agenda and identify priorities
for the candidate countries. Government ministers and officials and businesspeople in these countries
have to consider issues of WTO compliance whenever they are tempted to slip back into the old ways.
Broadly, the restraints imposed by the WTO push countries toward better governance. Above all, the
global trade rules provide a cover for reformers.” Sutherland, supra n.44.
96
See WTO, The Relationship between Trade and Foreign Direct Investment: Note by the Secretariat,
WT/WGTI/W/7, 18 September 1997, para. 62.
97
WT/WGTI/W/7, 18 September 1997, para. 73.
98
Unlike participation in multilateral trade agreements, there is a clearer link between the conclusion of
bilateral investment treaties (BITs) and the flow of FDI. A recent study in the US found that: “After
reviewing both the literature, which makes note of the potential impact of BITs with strong investor
40
role once more. This can be illustrated by what is happening in those sectors that are
already attractive to foreign investors, such as telecoms and finance. Foreign
investment is not happening today in these sectors mainly because of government
policy to keep the sectors closed to foreigners99 rather than the country’s non-
membership of the WTO. If the accession process forces the Government to change
such policies, we will probably see a quick flow of foreign investment into these
sectors, but the same could very well happen much earlier if the Government were to
make the policy change prior to accession.
3. WTO Accession and Secure Market Access
The third objective identified by the Government, i.e. to secure predictable and
transparent market access, is much more plausible and directly relevant than the
others. There is no doubt that WTO membership provides Ethiopian producers more
predictable access to foreign markets. A question can be raised even here, though. As
an LDC, Ethiopia already has duty- and quota-free access to some of the most
lucrative markets for virtually anything that we are able to produce and supply. The
generous everything-but-arms initiative of the EU100 and the Africa Growth and
Opportunity Act (AGOA) of the US101 easily come to mind here. A typical
counterargument here is that these are unilateral measures, introduced with the
laudable object of helping the poorest countries in the world, but they are often time-
limited and can be withdrawn unilaterally at the whims of those countries; hence they
are also too unpredictable for any businessperson to base their decisions on. On the
other hand, a commitment within the WTO framework is legally binding, and hence
stable and predictable, and its breach will have legal consequences.
From a strictly legal angle, this is certainly the case. Breach of a commitment within
the WTO will not be as easy as withdrawing a privilege granted unilaterally, not least
because there is the threat of resort to the dispute settlement mechanism. In reality,
however, this is a threat that exists only on paper for many developing countries. The
protections, and our own econometric study on the promotional effects of a U.S. BIT, we find strong
evidence that BITs have, to a significant extent, attained their stated goal of promoting investment.”
Jeswald W. Salacuse and Nicholas P. Sullivan, “Do BITs Really Work?: An Evaluation of Bilateral
Investment Treaties and Their Grand Bargain”, 46(1) Harvard International Law Journal (2005), p. 11.
99
For the reasons why the Government is keeping telecoms in monopoly ownership, see “Interview:
Meles Zanawi, Ethiopian prime minister”, Financial Times, 6 February, 2007.
100
See Council Regulation (EC) No. 416/2001 (28 Feb. 2001) O.J. 2001, L 60/43, later replaced by
Council Regulation (EC) No 980/2005, OJ L 169/1, 30.6.2005, usually called the everything-but-arms
(EBA) initiative. This is a unilateral EC instrument which applies equally to all LDCs in the world. For
the current UN list of LDCs, see www.un.org/special-rep/ohrlls/ldc/list.htm.
101
See Raj Bhala, “Global Interdependence and International Commercial Law: Generosity and
America’s Trade Relations with Sub-Saharan Africa”, 18 Pace International Law Review (2006), pp.
133-225.
41
dispute settlement process is often too costly for a poor country to make use of,102 and
even the final benefits of a ‘victory’ before a panel and/or the Appellate Body could
easily be illusory.103 That is why LDC participation in WTO dispute settlement has
been practically nonexistent over the past 12 years. According to the WTO’s own
analysis, one reason small countries do not participate in the dispute settlement process
is because they “lack the necessary retaliatory power to enforce rulings in their favour.
Anticipating the futility of their endeavours to coerce economically powerful countries
into compliance, small countries abstain from engaging in costly litigation procedures
in the first place or right away opt for other options to protect their interests”.104
It follows that while WTO accession will enhance the predictability and transparency
of market access opportunities for Ethiopia’s products, it is important that we approach
the accession process with a realistic view of what we can get out of it. Equally, the
developed countries that offer unilateral market access privileges are unlikely to
withdraw them arbitrarily despite the fact that there is no legal reason to stop them
from doing so. It was not for legal reasons that they introduced such preferential
access opportunities to poor countries in the first place. All the GATT/WTO system
did was “authorise” these countries, with a waiver from the Most-Favoured Nation
principle, to introduce, if they so wished, more favourable terms of trade for defined
groups of poor countries without having to extend the same treatment to all members;
but, it did not require them to do so. The political, moral and possibly economic
arguments that persuaded them to introduce such schemes in the first place are likely
102
Shaffer and Nordstrom found that “it can take up to three years to litigate a [WTO] dispute, cost more
than half a million dollars in legal fees, and require a significant time commitment from government
officials who may already be severely under-resourced. Moreover, all this could be for naught, since
there is no assurance that a ruling will be affirmative or that the respondent will comply in a manner
that leads to market access.” They concluded that “Notionally equal litigation rules provide unequal
opportunities for WTO Members. Small trading nations are effectively constrained from being able to
use the legal system to the full extent, constituting, in practice, a form of in-built discrimination.”
Shaffer, Gregory C. and Nordstrom, Hakan, “Access to Justice in the World Trade Organization: The
Case for a Small Claims Procedure?” (May 2007), available at SSRN: http://ssrn.com/abstract=983586.
103
There is extensive literature on the problems with the remedies system of the WTO particularly for
developing countries, but for an excellent summary of the debate and a proposed solution, see Marco
Bronckers and Naboth van den Broek ‘Financial Compensation in the WTO: Improving the Remedies
of WTO Dispute Settlement’, 8(1) Journal of International Economic Law (2005) 101-126. The authors
argue that the WTO dispute settlement system envisages two types of remedies: compensation (in the
form of reduction of trade restrictions in sectors where the winning party in the dispute has a particular
interest) or retaliation (in the form of withdrawal by the winning party of proportionate trade
concessions in sectors of particular interest to the offending party). However, while compensation is
only theoretical (because it is dependent on the agreement of the offending party), retaliation is often
counterproductive to the interest of the winning party and almost impossible to use especially by
developing countries. In their own words, trade retaliation “is not available to [developing country]
Members, with the possible exception of the largest amongst them. The cost of imposing these
measures is simply too high, and developing countries feel – often rightly so – that given the small size
of their markets, retaliation will never put sufficient pressure on larger, more developed Members.”
Shaffer and Nordstrom, Id., p. 102.
104
WTR 2007, p. 278.
42
to remain nearly as effective a guarantee as the WTO dispute settlement system can be
for a poor country like ours. The real challenge on Ethiopia’s export trade for now and
the foreseeable future remains our poor production and supply capacity rather than the
traditional trade barriers in the developed countries.105
4. WTO Accession and Globalization
Finally, the fourth objective of the Government, i.e. to use participation in WTO
decision-making processes to influence the speed, nature and direction of globalization
is again plausible, if slightly overstated. If Ethiopia plays its cards well, its
membership can further strengthen the groups within the WTO that have been fighting
for a more development-friendly trading system, whatever that is. This can however be
only a long-term ambition. The sheer breadth and technical complexity of the WTO
system means that our focus for the short- to the medium-term will remain on how to
best master the technical details of the system and use the knowledge to negotiate a
reasonable accession package that preserves some policy space and still forces us to
critically examine our laws, institutions and practices and take appropriate reform
measures. Whether we like it or not, the globalization process is shaped by forces
totally beyond the control of any single nation, and the best we can do is follow at a
reasonable distance rather than lead from the front.
In conclusion, it appears that the objectives set by the Government for its WTO
accession, while certainly plausible, probably paint too rosy a picture of WTO
membership. This is not however to suggest that Ethiopia should not join the WTO; it
is only to argue that the said reasons are based on an exaggerated view of the trading
system and its potential role for the development of the country. Otherwise, it is the
view of this author that Ethiopia’s accession to the WTO is long overdue and the
sooner we join, the better. The reasons are neither original nor exhaustive, and include
the following.
B. Additional Reasons
The WTO Secretariat’s comprehensive World Trade Report 2007 mentions two
“popular propositions” often used to make the case for accession to the WTO, i.e.
accession as an “external anchor” and accession as a “signalling device”, but they
dismiss them both as having not yet been formalized and difficult to assess exactly
how they operate.106 I suggest that both propositions have some relevance for
Ethiopia’s accession. Importantly, I see three potential benefits from the process of
accession as well as final membership of the WTO.
105
I use the term “traditional trade barriers” advisedly to refer to tariffs and quantitative restrictions as
opposed to the health, technical and other standards that still are significant barriers particularly to our
agricultural exports.
106
See WTR 2007, p. 60.
43
Firstly, for a country like Ethiopia, with laws largely unknown outside a narrow circle,
and often irrelevant to day-to-day administrative and business practice, the accession
process gives us an opportunity to systematically collect our laws and evaluate the
extent to which the laws in the books are observed in the daily life of the nation. It is
not difficult to demonstrate that a wide gap exists between the laws in the Negarit
Gazetas and the ‘laws’ in action. The accession process will force us to critically
examine our own system, learn our own laws and practices and revise them to fit in
with an externally-imposed system of rules and principles.107 This is where “external
anchorage” and “lock-in” become relevant. Not only do we need to understand and
reform our laws, we will also need to defend them in front of a powerful club of
nations that are prepared to challenge us.
Secondly, the transparency requirements of the WTO, i.e. reporting obligations

contained in virtually all WTO instruments108 on all trade-related legislative and
administrative developments in the country as well as the periodic national trade
policy reviews conducted by the WTO mean that the law review and reform process is
a continuing one. It is an expensive and time-consuming process, but it will ultimately
be more than offset by the resulting benefits. If carried out properly, the effect can be
clearer, more business-friendly and enforceable laws that are administered
professionally and transparently and with accountability embedded in them. Put
differently, the process of accession as well as the resulting membership obligations
could enhance rule of law and the quality of institutions in the country. The quality of
institutions is “an important component of a well-functioning market” and “[t]he state
of institutions will … likely affect the amount of trade and welfare generated by trade
liberalization.”109 As Carothers put it, “[b]asic elements of a modern market economy
such as property rights and contracts are founded on the law and require competent
third-party enforcement. Without the rule of law, major economic institutions such as
corporations, banks, and labor unions would not function, and the government’s many
involvements in the economy — regulatory mechanisms, tax systems, customs
structures, monetary policy, and the like — would be unfair, inefficient, and
opaque.”110 Both the process of accession as well as final membership can be used to
consolidate rule of law and speed up the process of institution building in the country.
107
As Murray Gibbs observed, acceding countries “often lack the capacity to clearly identify the conflicts
between their existing laws, regulations and administrative practices and the obligations of the WTO
Agreements.” UNCTAD (2001), p. 163.
108
Just to mention a few examples, see GATT Art. X, GATS Art. III, TRIPS Art. 63 and so on.
109
See WTR 2004, p. xxiv. The term institution is used in a broad sense to mean “formal and informal
rules of behaviour, ways and means of enforcing these rules, procedures for the mediation of conflicts,
sanctions in the case of a breach of the rules, and organizations supporting market transactions.” Id. See
also E-U Petersmann, “How to Promote the International Rule of Law: Contributions by the World
Trade Organization Appellate Review System” 1 Journal of International Economic Law (1998), pp.
25-48, at 26.
110
Thomas Carothers, “The Rule of Law Revival”, 77(2) Foreign Affairs (March/April 1998) p. 97.
44
Finally and related to the above two, a number of WTO provisions require the
establishment of an independent system for the objective and impartial judicial review
of administrative action.111 The transparency requirements and the periodic
surveillance process described above, coupled with the fact that there is now an
explicit requirement on the Government to ensure availability of a well-functioning
independent judicial review mechanism, can have significant positive implications for
the evolution of the country’s administrative and judicial systems.
The reasons briefly outlined above are worthy goals in themselves, but they are also
critical means for the achievement of other goals, including those of economic growth
and attraction of foreign investment identified by the Government. For these and
several other reasons, the decision of the Government to accede to the WTO is the
right one.
Concluding Remarks and Areas for Future Research
The WTO is virtually about everything the government of a nation is – whatever is

within the scope of government activities could potentially be brought within the scope
of the WTO. This ranges from the type of industrial, agricultural and even social
development policies adopted, to the way imports and exports are treated, to the
manner government agencies purchase stationery for office use, to the content and
manner of administration of almost any laws of the country. Not only are governments
required to enact, and live by, laws that comply with WTO requirements, they are also
often required to be seen to be doing so – transparency is a vital principle of the WTO
system.
The Ethiopian Government is right to seek accession to the WTO, and it must be
supported. The reasons given by the Government for its decision to seek accession –
facilitation of economic growth, attraction of foreign investment, securing predictable
and transparent market access, and influencing the direction of globalization – are
broadly in line with the conventional explanations about the benefits of WTO
accession. As we attempted to show in section IV above, however, the direct role of
WTO accession for the attainment of these otherwise worthy goals may be limited.
But, if the accession process is handled carefully and final membership obligations
carried out in good faith, WTO accession is likely to help achievement of the goals
articulated by the Government, albeit indirectly. WTO accession will require review
and reform of laws and policies and the establishment of administrative procedures
and implementing institutions that are objective, impartial and effective. The attributes
of rule of law, administrative transparency and accountability, and impartial judicial
review of administrative action are some of the most vital prerequisites for a
111
See, e.g. GATT Art. X:3(b), GATS Art. VI:2(a), and TRIPS Art. 41:4.
45
functioning domestic market that is attractive to domestic and foreign investment and
supportive of economic growth and development.
In order to make the best out of the accession process, however, relevant government
departments, academic and training institutions and the business community must
carefully consider how they can work together to come up with the best possible
institutional response. The priority must be to establish research and training
institutions, made up of economists, lawyers and international relations experts,
dedicated to international economic relations. Ethiopia’s position as the seat of
international, continental and regional economic institutions means that there is
potentially a large pool of expertise within Addis that can be tapped into without
undue difficulty. A number of multilateral and bilateral initiatives have been launched
to support particularly the LDCs, and the Integrated Framework (IF) is perhaps the
most prominent multilateral effort so far. A project proposal prepared jointly by the
Government, the business community and universities for the establishment of a
dedicated research and training institution is likely to win the financial and other
backing of some of these funding arrangements. The Government and the business
community must also encourage and support the establishment of independent think
tanks and non-governmental organizations that are vital for the huge task of
information dissemination, public education, and critical analysis and debate that is
badly needed in the course of this process.
New research and analysis in this area should be able to help us appreciate that, apart
from the poor production and supply capacity mentioned above, the main hurdles
against our export trade relate to a combination of bad geography and poor
infrastructure rather than tariff-based protectionism in our potential markets.112
However much we may love our rugged terrain and enjoy the breathtaking landscape,
we know that those same topographical features, together with distance from the
nearest sea port, mean high cost of infrastructure and high overall transaction costs for
our import-export trade, often making our exports unprofitable and our imports
unaffordable. This is particularly the case for the two sectors in which we have the
potential to compete on the global marketplace, i.e. agriculture and mining, which are
characterised by the production of goods with a “low value-to-weight ratio.”113 A
policy to enhance Ethiopia’s exports must thus primarily focus on how best to address
the infrastructure problems.
As if our rugged terrain, distance from the sea and poor infrastructure are not hurdles
enough, Ethiopia’s landlockedness since 1993 has added an even larger problem to the
112
The impact of tariffs on the export competitiveness of our goods can be significantly smaller than the
effect of transport costs. According to a WTO study, “for the majority of Sub-Saharan African
countries, transport cost incidence for exports (the share of international shipping costs in the value of
trade) is five times higher than tariff cost incidence (the trade weighted ad valorem duty actually paid).”
WTR 2004, p. 114.
113
See WTR 2004, p. 115.
46
mix. Infrastructural challenges can be overcome by a determined effort from within;
problems of transit and access to the sea, on the other hand, require the consent and
cooperation of other sovereign states within the province of international law. This
leaves our vital national interests in the hands of sometimes unfriendly, often
unpredictable, and possibly unstable, regimes in the region.114 This is where regional
economic integration arrangements could play an important role, including in building
regional political stability and a cooperative spirit.115 Regrettably, however, Ethiopia
once again appears to be a reluctant player even here, which can be seen from its non-
membership of the COMESA Free Trade Area, the lack of progress in the economic
integration objectives of the Intergovernmental Authority on Development (IGAD)
and the absence of any other serious bilateral or regional integration initiatives to
which Ethiopia is a party.116 Whatever one’s view of the proliferation of regional trade
agreements (RTAs) over the past decade or so, a geographically disadvantaged country
such as Ethiopia is likely to benefit from closer regional economic integration. The
research and training institutions proposed above should help us clarify the role of
these and other factors on our export trade opportunities and assist policymakers to get
a clearer sense of priorities. Such research should inform not just our trade negotiation
policy but the type of products we specialize in must also reflect these geographical,
political and infrastructural realities.
Finally, and by way of caution, while the Government’s decision to seek accession is
the right one, it is not clear if it is truly committed to a speedy conclusion of the
accession process. It is already 11 years since Ethiopia formally became an observer to
the WTO with the declared intention to apply for accession “in the near future”,117 and
five years since its accession application was accepted by a meeting of the General
Council where the Ethiopian representative expressed his Government’s “commitment
114
Note that, even under normal circumstances, landlocked countries face “on average, 50 per cent higher
transport costs than otherwise equivalent coastal economies.” WTR 2004, p. 115.
115
RTAs can serve several objectives, an important one of which is regional political stability. It is widely
recognized that creating linkages between economies through RTAs “can make conflicts more costly
and favour cross-border collaboration”. WTR 2003, p. 50.
116
Note that there are a few intra-IGAD arrangements of a bilateral nature. For example, Ethiopia and
Sudan have a bilateral agreement which aims to promote trade and broader economic relations between
the two countries. The parties to this agreement however agreed to grant only Most-Favoured-Nations
(MFN) treatment to each others’ goods. (See Trade Agreement between the Government of the Republic
of Sudan and the Government of the Federal Democratic Republic of Ethiopia, signed at Khartoum on
6th March 2000, on file with author.) Likewise, Ethiopia and Kenya also have a bilateral trade
agreement with effectively the same objectives as the Ethio-Sudan agreement except that the former has
a broader scope. (See Trade Agreement between the Government of the Federal Democratic Republic
of Ethiopia and the Government of the Republic of Kenya, signed at Addis Ababa on 23rd July 1997, on
file with author.) In both cases, the key trade commitment only requires of the parties MFN treatment
for each other’s trade in goods and services. Given that all three countries are members of COMESA,
which naturally aims to deliver preferential terms of access that are more favourable than MFN, it is
difficult to find a trade rationale behind such agreements, let alone the seed of any free trade agreement.
117
WTO doc. WT/L/229, 10 October 1997.
47
to speed up the accession process.”118 This needs to change. Given the technical
complexity of the process and our institutional deficiencies, only a sense of utmost
urgency can bring this process to completion within a reasonable period.
At the same time, we know that the process may drag on even under the best of
intentions and commitments on our part. This is where a careful management of our
diplomatic relations will be needed. As anywhere in life, friends in high places are
vital, and the friendly relations that prevail between Ethiopia and a number of
influential WTO members and groupings will be critical. The Africa Group and the
LDCs Group within the WTO are a natural ally that should be skilfully utilized to
expedite the process. A number of developed members of the WTO, including the
influential US and EU, might also like to see Ethiopia inside the WTO. Indeed, the
Organization itself will be keen to support a determined African LDC to complete the
process expeditiously not least because its reputation and legitimacy will benefit from it.
However, ultimately, Mosoti was right when he said that the ability to carry through
the accession process successfully depends on “the tenacity and expertise of the
acceding country’s negotiators and political will and support from home.”119
118
See WTO doc. WT/GC/M/78, 7 March 2003, para. 11.
119
Victor Mosoti, “The Legal Implications of Sudan’s Accession to the World Trade Organization”,
African Affairs (2004), 269–282, pp. 273-74. As the WTO Secretariat likes to stress, “much depends on
the readiness of the applicant country to meet not only the rules and obligations of the WTO’s market-
economy principles, and its policies of pro-competition and non-discrimination, but also the market-
access conditions for goods and services which the applicant country grants to other WTO Members.”
See WTO, “WTO successfully concludes negotiations on China's entry”, Press/243, 17 September
2001, http://www.wto.org/english/news_e/pres01_e/pr243_e.htm.
48
REFORM OF LEGAL EDUCATION IN ETHIOPIA: THE ETHIOPIAN
EXPERIENCE IN THE CONTEXT OF HISTORY, THE PRESENT, AND
THE FUTURE
Thomas F. Geraghty*
Emmanuel K. Quansah**
Introduction
The objectives of this article are to: (1) provide a brief history of efforts to establish and to
improve legal education in English speaking African countries; (2) assess the strengths and
weaknesses of those efforts; (3) place Ethiopia’s on-going and extensive efforts to
strengthen its program of legal education in historical and present day context; and
(4)identify areas of future collaboration between Ethiopia’s legal educators and external
funders, including governments, foundations, and law schools outside of Ethiopia.
I. Some Perspectives on the Goals of Collaborations In Support of Legal Education in

Africa
The creation and maintenance of a strong legal profession is thought in the United States to
be a key element in promoting the efficient and fair administration of justice. Law schools
and bar associations in the United States stress the importance of training ethical and
socially responsible lawyers. The mission statement of the Northwestern University School
of Law reads as follows:
The mission of Northwestern University School of Law is to lead in
advancing the understanding of law and legal institutions, in furthering
justice under the rule of law, and in preparing students for productive
leadership, professional success, and personal fulfillment in a complex
and changing world.1
* Professor of Law, Associate Dean for Clinical Education; Director, Bluhm Legal Clinic, Northwestern
University School of Law. This article is adapted from the article by Professors Geraghty and Quansah
entitled, “African Legal Education: A Missed Opportunity and Suggestions for Change: A Call for
Renewed Attention to a Neglected Means of Securing Human Rights and Legal Predictability,” 5
Loyola Chicago International Law Review 101 (2008). The authors gratefully acknowledge the
permission of the Loyola Chicago International Law Review to adapt this article and to publish it in the
Journal of Ethiopian Law.
** Associate Professor of Law, former Head of the Department of Law, Coordinator, Clinic Legal
Education Programme, University of Botswana. The idea to write this article was conceived when Prof.
Quansah paid a two week visit at the invitation of Prof. Geraghty to the Bluhm Legal Clinic at
Northwestern University School of Law from April 10-21, 2006. The authors would like to thank
Charles Majinge, LLM 2007, Northwestern University School of Law, and former Director of the Legal
Clinic at the University of Dar es Salaam School of Law, and Alex Aixalá, J.D., 2008, Northwestern
Law School for their research support. The authors also thank Ato Taddese Lencho, former Acting
Dean of the Faculty of Law, Addis Ababa University, and Adam Stapleton, Visiting Clinical Professor
at the Bluhm Legal Clinic, Northwestern Law School and Consultant to Penal Reform International, for
their comments on drafts of this article. Thanks also to Dr. Fikremarkos Merso, Dean of the Law
49
The motto of the American Bar Association (“ABA”) is “Defending Liberty, Pursuing
Justice.”2 Prominent members of the legal profession in the United States urge that
American law schools should do more to train future leaders of our society.3
The recent book Educating Lawyers, popularly known as the “Carnegie Report on Legal
Education,” notes that in the United States, professional education is:
[I]nherently ethical education in the deep and broad sense. The distillation of
the abilities and values that define a way of life is the original meaning of the
term ethics. It comes from the Greek ethos, meaning ‘custom,’ which is the
same meaning of the Latin mos, mores, which is the root of ‘morals.’ Both
words refer to the daily habits and behaviors through which the spirit of a
particular community is expressed and lived out. In this broad sense,
professional education is ‘ethical’ through and through.4
As a consequence of the recognition that the quality of legal education is important to the
quality of justice, substantial resources, both private and public, are devoted to legal
education in the United States.
The question of what the role of African law schools should be in their countries is a more
complex issue, one that cannot be resolved in a sentence, a paragraph, in an article, or by
outsiders. Moreover, the state of legal education varies from country to country. This
article focuses on the state of legal education in sub-Saharan Africa, excluding South
Africa, where legal education is relatively well-supported.
In the 1960’s and 1970’s, it was thought by many legal educators in the United States that
law schools in Africa could play a key role in developing a cadre of able, ethical, and
effective leaders.5 As a consequence beginning in the 1960’s, a great deal of time, effort,
and money were spent on attempting to create African law schools in the image of
Western, university-based legal education.6 This effort waned in the mid-1970’s as the
Faculty of the Addis Ababa University and to Ato Muradu Abdo of the Law Faculty of Addis Ababa
University for their help in supplying information and materials regarding the latest developments in
legal education in Ethiopia.
1
See THE STRATEGIC P LAN FOR NORTHWESTERN UNIVERSITY SCHOOL OF LAW, 2 (2001), available at
http://www.law.northwestern.edu/difference/Strategic_Plan.pdf (last visited Feb. 25, 2008).
2
See American Bar Association, http://www.abanet.org (last visited Feb. 25, 2008).
3
See Ben W. Heineman, Jr., Lawyers as Leaders, 116 Yale L.J. Pocket Part 266 (2007), available at
http://yalelawjournal.org/images/pdfs/102.pdf (“…law schools should more candidly recognize the
importance of leadership and should more directly prepare and inspire lawyers to seek roles of ultimate
responsibility and accountability than they do today.”) (last visited Feb. 25, 2008).
4
WILLIAM M. SULLIVAN, ANNE COLBY, JUDITH WELCH WEGNER, LLOYD BOND, & LEE S. SHULMAN,
EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW 30-31 (Jossey-Bass 2007).
5
See generally, JOHN S. BAINBRIDGE, THE STUDY AND TEACHING OF LAW IN AFRICA, (Fred B. Rothman &
Co., 1972); Quintin Johnstone, American Assistance to African Legal Education, 46 TULANE L.R. 657
(1972).
6
Id; see also J. Donald Kingsley, The Ford Foundation and Education in Africa, African Studies Bulletin,
Vol. 9, No. 3 (Dec., 1966); L. Michael Hager, Legal Development and Foreign Aid: A Liberian
Experience, 29 J. LEGAL EDUC. 482 (1978).
50
result of a number of factors, including political unrest in many African countries, as well
as the prevalence of one-party states that were not supportive of higher education generally
and legal education in particular.7 In addition, a debate emerged (still on-going) concerning
whether the “law and development” theory that underlay the early efforts to establish
Western-style law schools in Africa was responsive to the needs of Africa.8 The
participants in the 1986 conference, “Twenty Years After: A Conference of Law Teachers
Who Worked in Africa,”9 convened by Professor John Bainbridge, a leader in efforts to
support legal education, reached no consensus regarding the future of legal education in
Africa or of the role of ex-patriot participants in that future.10
7
See TWENTY YEARS AFTER, A CONFERENCE OF LAW TEACHERS WHO WORKED IN AFRICA (Compiled by
John S. Bainbridge, 1986) [hereinafter TWENTY YEARS AFTER]. At this conference, Cliff F. Thompson,
a leader in the movement to strengthen African law schools in the 1960’s and 1970’s remarked, “[w]e
went to Africa in 1961, and we left our final job there in 1973. In 1983, I returned on a Fulbright grant
to Sudan and Ethiopia. Political events in Sudan have washed away much of what was done, but the
remnants of much able work by visitors and Sudanese remains, should the rule of law, whether Islamic
or Sudanese common law, again be allowed to flower. Able faculty remain in the University of
Khartoum and in government ministries, but the destruction of the legal and judicial system, which was
carried on by General Numeri even before his Islamization of the substantive law, was a serious blow to
the work of two decades. Given the Marxist-Leninist regime in Ethiopia, I expected the situation there
to be even worse, but was greatly surprised to find many direct ties to the early work of people who
served there. In 1983, the law school was composed of those whom we had helped educate at the law
school, and who had taken over as leading educators and senior government officials upon our
departure.” Id. at 18. More recently, one scholar has noted, “[t]he downturn in the continent’s
economic fortunes has taken a heavy toll on African universities and their law schools. Recruitment,
and particularly retention, of able African law teachers by impoverished universities has become
increasingly difficult, and that problem has affected the quality of some of today’s legal education.”
Muna Ndulo, Legal Education in Africa in the Era of Globalization and Structural Adjustment, 20
PENN. ST. INT’L L. REV. 487, 502 (2002).
8
Another participant in the TWENTY YEARS AFTER conference remarked, “I have suggested that we were
all moved by the spirit of the times, a Zeitgeist, when we set forth to build legal education and research
in Africa. The times change, and with it their prevailing spirit. The years since …have been full of
doubts and criticisms of what we tried to do. We have read and heard charges of legal imperialism and
chauvinistic devotion to American law and legal education directed at efforts not only in Africa but all
over the world. There was certainly naiveté and ignorance that was quickly recognized and led to the
efforts to make law and development into a serious field of research. But I believe that the rise of
criticism had less to do with errors and follies we may have committed than with a broad change in the
Zeitgeist. The whole conception of development that guided us in the early years came to be seriously
questioned or rejected by the turn of 1970’s. Governments were less benevolently regarded, planning
was ‘in crisis’, and faith withered in the powers of foreign assistance to build national institutions. We
came into a time of emphasis on equity and direct efforts to meet the basic needs of the poorest.
University development was criticized as favoring national elites and foundation interests in law shifted
toward legal aid to the poor and human rights.” Remarks of Francis X. Sutton, TWENTY YEARS AFTER,
supra note 7, at 23-24.
9
Id.
10
In his remarks at the 1986 TWENTY YEARS AFTER conference, Jim Paul noted that the then Dean of the
law School in Ethiopia had recently written him saying that “all who participated in the law school
endeavor, ‘set a standard that we have never forgotten and that we only wish we could reproduce
today,’ TWENTY YEARS AFTER, supra note 7, at 57. But this did not mean to Dean Paul that a new
initiative should imitate the old: “…[A] more basic understanding has been occurring during recent
years, and it is I think, a very important, very enduring perspective. People, including, I believe, people
at the Ford Foundation…have become much more interested in ‘development’ as a process of helping
the poor, not only to realize ‘basic needs’ but to realize self-reliance, dignity, and the kinds of
51
Since 1986, there has been no organized effort among American law teachers, in
cooperation with their African colleagues, to again reassess the efforts of the 1960’s and
1970’s to provide assistance to legal educators in Africa, or to attempt to chart a new
course that might address the concerns of the critics of the “law and development”
movement. The time is now ripe for such a reassessment and for the development of new
strategies for supporting legal education in Africa. We argue that this is an appropriate
and, indeed, a critical time for such a reassessment, because of the importance of
international human rights norms and practices in Africa, and because of the forces of
globalization. New strategies must be the result of close collaboration with African law
faculties, with our African colleagues in the lead.11 They and we should be cognizant of
the need to support the training of lawyers and of other legal professionals who can expand
access to justice efficiently and economically.12
African law schools have the potential to produce the next generation of leaders committed
to promoting human-rights through ethical and social responsibility.13 This critical
potential remains unrealized and is in jeopardy due to a lack of resources. Despite legal
educators and university administrators’ best efforts in Africa, African law schools are
starving.14 This means that young lawyers graduating from African law schools often lack
meaningful training in key ethical, professional, commercial, and human rights-related
subjects.15 These students also lack exposure to new teaching methodologies, and due to
empowerment and initiative which come when people enjoy rights. A big task of development, as
conceived today, is to help self-help activities, to help people become legally empowered to shape their
own futures and not be pawns for the state’s or someone else’s concept of ‘development.’” Id. at 59.
Another participant at in the Conference noted that future initiatives should “focus on the need for
material resources to be given to the African law faculties, a fairly easy thing to do…but I am frankly
somewhat skeptical about the effectiveness of the role which can be played by Americans, and by
Westerners in general in the political process that is going on in Africa today. Remarks by Gary E.
Davis, United Nations Development Program, Id. at 74.
11
The ABA announced in October 2007 that its Rule of Law Program had received a $2.5 million grant
from USAID to support legal education and judicial education in Ethiopia. New Ethiopia Program Part
of Growing Work in Africa, ABA, Oct. 10, 2007,
http://www.abanet.org/rol/news/news_ethiopia_new_aba_roli_office.shtml. This program should
provide new information about effective approaches to providing support for legal education in
countries in which law schools lack resources.
12
See Malawi Prison Service: Paralegal Advisory Service, available at
http://www.mps.gov.mw/paralegal.htm (last visited Feb. 25, 2008).
13
This does not mean, however, that the provision of justice at the grassroots level can or should always
be provided by formally trained lawyers and judges. Indeed, many argue that the legal profession in
resource-starved countries is not particularly inclined or particularly well-suited to deliver legal services
to the poor or at the community level. See, e.g., Adam Stapleton, “Introduction and Overview of Legal
Aid in Africa,” in ACCESS TO JUSTICE IN AFRICA AND BEYOND, MAKING THE RULE OF LAW A REALITY, 1-
35 (Eds. Penal Reform International and the Bluhm Legal Clinic of the Northwestern University School
of Law, 2007). This being said, formal justice systems require well-trained lawyers to run them and to
make informed policy decisions, as well as to act as advocates and judges in human rights and
commercial cases that have far reaching effects on individuals, communities, governments, and
businesses.
14
Laure-Helene Piron, Time to Learn, Time to Act in Africa, in PROMOTING THE RULE OF LAW ABROAD,
275, 276-78 (Thomas Carothers ed., 2006).
15
Indeed, one commentator has noted recently that the “Red Terror” trials in Ethiopia were hampered by
lack of skilled personnel in both the Special Prosecutor’s Office and in Ethiopia’s Public Defender’s
52
limited access to legal information, the most recent developments in national and
international law.
Although the philanthropic community once recognized that support of legal education in
Africa was a critical element in the support of humane, efficient, and predictable justice
systems, external donors (non-African governments and foundations) have all but
abandoned their support of African legal education.16 This article argues that despite the
prevailing consensus in the United States regarding the importance of educating future
judges, legislators, and lawyers, the same consensus has not been evident in the external
funding of justice initiatives in Africa. This situation demands change.17
Historically, the legal profession in Africa was seen primarily as an aid to the
developmental efforts of the respective governments.18 Consequently, the overall objective
of legal education at the inception of independence in African states was to train lawyers to
serve the manpower needs of the newly formed countries.19 Over the years this objective
has been maintained despite changes in the domestic and international circumstances of
African countries.20 As a matter of colonial policy, legal education was discouraged due to
Office. With respect to the services provided by public defenders to the defendants in the “Red Terror”
trials, this commentator notes that, “[p]ublic defenders lacked formal skills to deal with the complex
national and international concepts involved in the trials.” Girmachew Alemu Aneme, Apology and
Trials: The Case of the Red Terror Trials in Ethiopia, 6 AFR. HUM. RTS. J. 64, 79 (2006).
16
See Piron, supra note 14, at 276-78 (demonstrating the changed focus from legal education to a more
generalized attention to the concept of rule of law in donor aid to Africa); Ndulo, supra note 7, at 493.
(“In the 1960s and 1970s American legal scholars contributed a great deal to knowledge and skills to
the growth of legal education in Africa. This source of law teachers has virtually ceased because of the
economic difficulties that most African countries are experiencing and the lack of international support
for funding for such law teachers.”); The Partnership for Higher Education in Africa, launched in 2000
by the Carnegie Corporation, the Ford Foundation, the John D. and Catherine T. MacArthur
Foundation, and the Rockefeller Foundation (which now includes the Kresge Foundation, the William
and Flora Hewlett Foundation, and the Andrew Mellon Foundation) has not provided support for legal
education in Africa and appears to have no plans to do so. See The Partnership for Higher Education in
Africa, http://www.foundation-partnership.org/ (last visited Feb. 25, 2008).
17
See Mark K. Dietrich and Nicolas Mansfiield, Lessons Spurned: Legal Education in the Age of
Demoncracy Promotion 1 (East West Management Institute’s Occasional Papers Series, Spr. 2006),
available at http://www.ewmi.org/Pubs/EWMILegalEducationReform.pdf (“. . .the failure of reformers
and donors to emphasize legal education reform in their programs constitutes a major mistake, critically
undermining the effort to establish the rule of law in the developing world. The inability or
unwillingness of donor organizations in the United States to tackle legal education in meaningful way
also tells us something about America’s overall approach to promoting the rule of law; that we are often
myopic, looking only for short-term results in an area where long-term vision and commitment is
necessary, and where change is likely to be generational. As America tackles legal reform in the even
more complex and daunting context of the Muslim world, this is an error that it cannot risk repeating.”)
Id . at 2.
18
Dr. Kwame Nkrumah, Speech at the Opening of the Ghana Law School: Ghana Law in Africa, 6 J.
AFR. L., 103, 107 (1962).
19
See id. at 107-108; see also Emmanuel Kwabena Quansah, Educating Lawyers for Transnational
Challenges: Perspectives of a Developing Country-Botswana, 55 J. LEGAL EDUC. 528, 528-33 (2005)
[hereinafter Educating Lawyers].
20
For example, the minimum academic standards for legal education in Nigeria approved by the National
University Commission states the main objective of legal training in Nigeria to be, inter alia,
53
its potential for producing political agitators.21 Consequently, emphasis had been placed on
the training of other professionals, such as engineers, doctors and agriculturalists, to the
detriment of the legal profession.22
The need of these nascent independent countries for lawyers was relatively acute.23
Governments, in their desire to accelerate the growth of the legal community, funded legal
education in the context of the overall development of higher education.24 Scholarships for
legal education were awarded dependent upon the manpower needs of the country with
some countries being more progressive than others.25 Growing decline in the economic
fortunes of African countries has forced funding for legal education to compete with other
pressing national priorities, causing a considerable continental deterioration of legal
education.26 Accordingly, funding of universities, including law schools, has taken on an
increasingly regional and international dimension.27
Several international partners have been active in funding or implementing programs aimed
at enhancing the transformation of the African education system, in general, and higher
education, in particular.28 The African Higher Education Activities in Development
“specifically aimed at producing lawyers whose level of education would equip them properly to serve
as advisers to governments and their agencies, companies, business firms etc…” See M.O. Adediran,
Transnational Curriculum for Tomorrow’s Lawyers, Written for the Association of American Law
Schools conference on Educating Lawyers for Transnational Challenges at Oahu, Hawaii, U.S.A (May
26-29, 2004).
21
See W. A. Twining, Legal Education within East Africa, in Commonwealth Law Series No. 5 115, 116
(1966).
22
See id.; Piron, supra note 14. (Even in a post-colonial context, “justice programs have not benefited
from the same rhetorical push that the [Millenium Development Goals] have provided for other sectors
such as health or education.”); M. Ndulo Legal Education, Internationalization and African Law
School, 2 J. OF COMMONWEALTH L. AND LEGAL EDUC., 22, 31 (2004).
23
It has been pointed out that the situation was better in West Africa than in East Africa. See L.C.B.
Gower, “The Legal Profession” in INDEPENDENT AFRICA – THE CHALLENGE TO THE LEGAL PROFESSION,
108, 116-117 (Cambridge, Harvard University Press 1967); see also Twining, supra note 21.
24
John Seaman Bainbridge, THE STUDY AND TEACHING OF LAW IN AFRICA, 53, 68-69 (1972).
25
See id. at 54-55 (detailing the different approaches taken by African nations to the issue of offering
scholarships: Tanzania provided full scholarships, Malawi offered 9 out of 10 students scholarships, but
Nigeria and Liberia offered none); see also Gower, supra note 23, at 140 (The first time the Nigerian
Federal Government gave scholarships for law studies was in 1964. These were six out of the total of
606 scholarships granted to students to study various courses).
26
See Akilagpa Sawyerr, Challenges Facing African Universities: Selected Issues, 1, 8, 36-37 (Feb. 2004)
(unpublished paper, on file with the Association of African Universities (AAU)), available at
http://www.aau.org/english/documents/asa-challengesfigs.pdf (last visited Feb. 25, 2008); see also
David Court, Financing Higher Education in Africa: Makerere, the Quiet Revolution (The World Bank
and Rockefeller Foundation, Working Paper No. 22883, 2000).
27
See African Union [AU], Record of Proceedings of the 2nd African Union Meeting of Experts, (February
27-28, 2006), available at http://www.aau.org/au_experts/docs/after_conf/proceedings.pdf; see also
AU, Second Decade of Education for Africa (2006-2015) Plan of Action, Revised (August 2006),
available at http://www.education.nairobi-
unesco.org/PDFs/Second%20Decade%20of%20Education%20in%20Africa_Plan%20of%20Action.pdf
(last visited Feb. 25, 2008).
28
See Joel Samoff & Bidemi Carrol, The Promise of Partnership and Continuities of Dependence:
External Support to Higher Education in Africa, 47 AFR. STUD. REV. 67 (2004).
54
(AHEAD) database, developed by the Association of Commonwealth Universities (ACU),
in support of the Association of African Universities (AAU), and the South African
Universities’ Vice-Chancellors Association (SAUVCA) ten year partnership program, has
compiled data on 349 externally-funded projects in African higher education.29 An
analysis of the database shows that the main thematic areas that draw the highest funding
are: (1) sector governance projects (by the World Bank); (2) human resource development
projects (by the Canadian International Development Agency (CIDA) and the Japan
International Cooperation Agency (JICA)); (3) institutional strengthening as well as
HIV/AIDS projects (by Ford Foundation); and (4) quality enhancement/curriculum
development, science and technology, and research collaboration (by The Norwegian
Programme for Development, Research and Education (NUFU) and JICA).30 In analyzing
this database it becomes clear that legal education is not featured in any measure of
importance.31
There have been several U.S. national organizations and private foundations engaged in
funding higher education in Africa, but here again little funds are channeled specifically
towards legal education.32 As a consequence, there is a need to push legal education to the
forefront of international aid to higher education in Africa. The overarching goal of this
effort is to attract the requisite funding necessary to sustain reform and modernization of
legal education in Africa.
This debate raises many questions. For instance, has African legal education been ignored
by western governments and foundations that favor other means of promoting the rule of
law? If so, why have African law schools failed to receive the extent of funding that
supports other Rule of Law initiatives? Should African legal education receive more
support from external sources? Finally, what types of initiatives and collaboration should
characterize on-going support for legal education in Africa? Before we suggest answers to
these questions, we shall provide a brief history of external aid to legal education in Africa.
II. A Brief History of Western Partnerships with English Speaking African Law
Schools
Since the mid-twentieth century there have been various modes of interactions among
Western lawyers and law professors and their African counterparts. The “Law and
Development” movement of the 1960’s and early 1970’s was an attempt by American law
professors and foundations to teach and import Western legal codes, educational, and legal
systems to Africa to support economic development.33 This movement has been criticized
29
JAY KUBLER, AFRICAN HIGHER EDUCATION ACTIVITIES IN DEVELOPMENT: THE AHEAD DATABASE
(Association of Commonwealth Universities Sept. 2005), available at
http://www.acu.ac.uk/policyandresearch/publications/aheadpaper.pdf (last visited Feb. 25, 2008).
30
Id. at 18.
31
Id.
32
Id.; see also Samoff & Carrol, supra note 28.
33
JULIO FAUNDEZ, LEGAL REFORM IN DEVELOPING AND TRANSITION COUNTRIES–MAKING HASTE SLOWLY,
(Law, Social Justice and Global Development (LGD) Jan. 8, 2001), available at
http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2000_1/faundez/ (“The role of lawyers in the process of
55
for its perceived insensitivity to the particular political, economic, and social needs of
African communities.34 During the period from 1975 to 1990, attention shifted to support
of legal infrastructure, particularly the training of judges and legal officers, and attention to
community-based programs, particularly those that made legal services available to the
poor.35 Since 1990, a new movement devoted to the support of legal system improvement,
development was a matter of great concern for the group of American law professors who in the 1960s
launched the well-known, but short-lived law and development movement. In their view, legal
education in developing countries was inadequate as it placed excessive emphasis on rote learning of
legal rules and doctrine, a method which, apart from dull, did not enable the students properly to
understand social and economic reality...As these law professors believed that lawyers had a major role
to play in the development process they set out to help a select number of developing countries reform
legal education. As we know, the enterprise was cut short because funds dried up and the professors
became aware that it was futile to attempt to export legal liberalism.” Id. at 8.5.; see also Leah
Wortham, Aiding Clinical Education Abroad: What Can be Gained and the Learning Curve on How to
do so Effectively, 12 CLINICAL L. REV. 615, 632-644 (2006) [hereinafter Aiding Clinical Educations
Abroad].
34
FAUNDEZ, supra note 33, at 6.2. (“In addition to the immediate political impact that any technical
assistance project is bound to have, legal reform projects also generate resentment as they are often
depicted as tools designed to impose alien legal regulatory schemes which undermine the indigenous
legal culture.”); see also Laura Nader, Promise or Plunder? A Past and Future Look at Law and
Development, Global Jurist: Frontiers Vol. 7: Iss. 2, Art. 1. (2007), available at
http://www.bepress.com/gj/vol7/iss2/art1/. But see, Hon. J. Clifford J. Wallace, Globalization of
Judicial Education, 28 YALE J. INT’L L. 355 (2003) (“A globalized judicial education would
supplement, not replace, existing local education efforts. Despite countries’ differences, judicial
education principles are generic, and a globalized judicial education system based on those universal
principles will improve and enhance court systems, irrespective of the country’s legal system, size,
wealth, or age.” ) Id. at 358; see also Bryant G. Garth, Building Strong and Independent Judiciaries
Through The New Law and Development: Behind The Paradox of Consensus Programs And
Perpetually Disappointing Results, 52 DEPAUL L. REV. 383 (2002) (“The setting for today’s law and
development is quite different…the consensus is far stronger in favor of reform and the legal
approaches identified with the United States, including the core idea of a strong and independent
judiciary. Lawyers do not have to fight for their role this time. Economists have come to see the
importance of legal institutions to the markets that they now promote [footnote omitted].” Id. at 385.
Garth also notes that the character of proposed legal reform initiatives has a lot to do with the political
and economic philosophies of the U.S. power elite: “…the process is a hegemonic one that focuses on
the business of exporting and importing on debates and issues that have salience in the north (here in the
United States) at a particular time and place. We export our own palace wars.” Id. at 395-96).
35
See, e.g., MANY ROADS TO JUSTICE: THE LAW RELATED WORK OF FORD FOUNDATION GRANTEES AROUND
THE WORLD (Mary McClymont & Stephen Golub eds. 2000) [hereinafter MANY ROADS TO JUSTICE];
Open Society Justice Initiative, Clinical Legal Education in Africa, available at
http://www.justiceinitiative.org/activities/lcd/cle/cle_africa (last visited Feb. 25, 2008). Prof. Geraghty
has participated in U.S. Dept. of State/American Bar Association programs, including a program in
Ethiopia designed to provide information about clinical legal education and a State Department/ABA
project designed to provide American and African children’s rights advocates opportunities to learn
from each other about children’s rights, juvenile court, and child protection systems, and the
implementation of the UN Convention on the Rights of the Child. Each of these programs involved
exchanges between African and American law faculties. Professor Cynthia Bowman of the
Northwestern University School of Law led a State Department funded program which was a
collaboration between Northwestern Law School and the Faculty of Law at the University of Ghana,
Legon. A product of this collaboration is a book on women’s rights co-authored by Prof. Bowman and
Prof. Akua Kuenyehia, a former Dean of the Faculty of Law, Ghana and currently a judge of the
International Criminal Court at The Hague, Netherlands. The Northwestern Law School has also
56
dubbed “Development Law,” has emerged.36 The movement is primarily supported by
multilateral and bilateral institutions.37 Recently, the US government has been active
through the United States Agency for International Development (USAID) in supporting
Rule of Law programs in Africa, with a heavy focus on the training of judges.38
The ABA’s African Law Initiative Sister Law Program sought to establish a framework for
cooperative relationships by achieving a number of goals.39 These goals included gaining
an overview of legal education in Africa and the United States, exploring areas of mutual
and special interest such as educational programs, libraries, and responsibilities to the bar
and the public, and developing an action plan for the future.40 However, this program is no
longer in existence.41 The ABA’s Africa-related projects are now managed by its Rule of
Law Initiative.42 The initiative’s webpage references the ABA’s support of various
projects, such as the Louis Arthur Grimes Law School in Liberia and support for the
Liberian National Bar Association.43 Likewise, the British Commonwealth Legal
Education Association (CLEA), through its West African and Southern African chapters,
has sponsored law paper competitions, moot courts, and a legal research center in
Cameroon.44
worked with Ghanaian faculty to develop a clinical program and a children’s law curriculum.
Northwestern Law librarian Chris Simoni has traveled twice to Ethiopia to consult regarding law library
development and to the Law Faculty at Legon, Ghana for the same purpose. Northwestern Law School
has provided opportunities for our colleagues from Ghana to pursue their research in our library.
36
Grady Jessup, Symbiotic Relations: Clinical Methodology–Fostering New Paradigms in African Legal
Education, 8 CLINICAL L. REV. 377, 397 (2002) [hereinafter Symbiotic Relations] (citing Lan Cao, Law
and Development: A New Beginning? 32 TEX. INT’L L.J. 545 (1977)) (“The emergence of Development
Law provides a new construct following the demise of the law and development movement which was
attributable to deficiencies in modernization and dependency theories of law reform. [footnote omitted].
Development Law is a fresh approach to evaluating the impact of existing national laws governing
political and economic development of developing nations by adapting laws, policies or customs to
meet the unique national needs without the baggage of imposed laws and norms of the modernization
theory or exploitation of natural and human resources of the dependency theory.”); see also Richard
Bilder & Brian Z. Tamanaha, Law and Development, Law and Crisis in the Third World, 89 AM. J.
INT’L L. 470, 472 (Apr. 1995).
37
See Thomas Carothers, The Rule of Law Revival, in PROMOTING THE RULE OF LAW ABROAD, 10-11 (ed.
Thomas Carothers, 2006); see also, FAUNDEZ, supra note 33.
38
See Office of Democracy and Governance Bureau for Democracy, Conflict, and Humanitarian
Assistance, U. S. Agency for International Development, Guidance for Promoting Judicial
Independence and Impartiality (rev. ed. Jan. 2002), available at
http://www.usaid.gov/our_work/democracy_and_governance/publications/pdfs/pnacm007.pdf.
39
Steven Keeva, To Africa, With Law, 81 A.B.A. J. 89 (Feb. 1995).
40
Id.
41
See M. Wolf, Summary of Proceedings, 2, American Bar Association Section of Legal Education and
Admission To The Bar, African Law Initiative Sister Law School Program (1997).
42
See American Bar Association, Promoting the Rule of Law, http://www.abanet.org/rol/ (last visited Feb.
25, 2008).
43
See American Bar Association, Current Events/Updates, http://www.abanet.org/aba-
africa/eventsupdates.shtml (last visited Feb. 25, 2008).
44
Commonwealth Legal Education Center, Developing the CLEA Legal Resource Centre in Cameroon,
available at
http://web.archive.org/web/20040205210350/http://www.ukcle.ac.uk/clea/newsletter/87/cameroon.html
(last visited Feb. 25, 2008); see also Commonwealth Legal Education Centre, Developing Legal
57
The World Bank has also taken the lead in promoting judicial reform with the objective of
improving conditions for sustainable development.45 World Bank programs supporting the
improvement of legal infrastructures are likely to continue to take center stage with a
growing recognition that such programs must walk the fine line between supporting
“reform” and being sensitive to African cultural, social, and legal norms and
expectations.46 The legal and judicial sector studies that precede large scale funding of
legal and judicial reform projects contribute to the overall understanding of the African
justice system’s strengths and weaknesses.47 The support for these programs will
inevitably be substantial due to the comprehensiveness of World Bank-funded projects, and
the perceived and actual links between a stable and predictable legal system and economic
progress.
III. Observations
It is interesting to note that African legal education has been largely left out of the mix as
far as large-scale funding from foreign governments, foundations, and banks are
concerned.48 Presently, Rule of Law projects say little about initiatives to support legal
education in Africa.49 In part, this lack of attention may be the result of the belief that
American initiatives to support legal education in the late 1960’s and early 1970’s were a
futile attempt to “export legal liberalism.”50 However, this belief alone could not have
Education in the Commonwealth: Some Current Issues (“Developing Legal Education”), available at
http://ltfiledown.qut.edu.au/download.asp?rNum=3384545&pNum=2522503&fac=law&OLTWebSiteI
D=CLEA&dir=gen&CFID=579781&CFTOKEN=38933363 (last visited Feb. 25, 2008) [hereinafter
Developing Legal Education].
45
See Swithin J. Munyantwali, T. Mpoy-Kamulayi, & Paati Ofosu-Amaah, Legal and Judicial Reforms
Activities in Africa: Experience to Date and Prospects for Further Improvement (Feb. 2003)
(unpublished manuscript presented at the All Africa Conference on Law, Justice, and Development,
Abuja, Nigeria, on file with authors).
46
Id.
47
Legal Vice Presidency, The World Bank, Legal and Judicial Reform: Strategic Directions (Jan. 2003),
available at http://www-
wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/2003/10/24/000160016_20031024092948/Re
ndered/PDF/269160Legal0101e0also0250780SCODE09.pdf (last visited Feb. 25, 2008) [hereinafter
Legal and Judicial Reform]; see e.g. Linn Hammergren, The World Bank, Diagnosing Judicial
Performance: Toward a Tool to Help Guide Judicial Reform Programs (Nov. 1999), available at
http://www1.worldbank.org/publicsector/legal/HammergrenJudicialPerf.doc (last visited Feb. 25, 2008);
see also Order in the Jungle, THE ECONOMIST, Mar. 13, 2008, available at
http://www.economist.com/displaystory.cfm?story_id=10849115.
48
Legal and Judicial Reform, supra note 47. (focus of “Legal Training” is not centered around the
education of lawyers but is focused on development of civil society and the knowledge of the citizenry).
The World Bank does acknowledge the importance of legal education but does draw attention to the
need for additional or increased funding. Id.
49
See e.g. FAUNDEZ, supra note 33, at 17. (“[T]he quality of legal education in developing countries has
not significantly improved since the mid-1970's. Although it is self-evident that a well-trained legal
profession is essential for ensuring the long-term sustainability of legal reforms, the issue of legal
education is notoriously absent from current debates on legal reform.”).
50
Id. (citing John Henry Merryman, Comparative Law and Social Change: On the Origins, Style, Decline
& Revival of the Law and Development Movement, 25 AM. J. COMP. L. 457 (1977); see also, Peter
Sevareid, TWENTY YEARS AFTER, supra note 7, at 107-08.
58
prevented those who wished to support legal education in Africa from continuing with
programs that sought to improve the quality of Africa’s legal education. There must have
been other reasons why the outreach of the 1970’s did not continue.
These reasons could include a lack of faith in the political environments in which many
African law schools and universities operated, the notion that Westerners had “shown the
way” and that it was time to let African law schools sink or swim on their own, or that
African law faculties rightly wanted to Africanize their institutions to the extent that large
scale foreign presence was incompatible with the goal of developing autonomous, truly
African law schools.51 Indeed, the African Union’s plan for higher education states that,
“[i]t is the wish of the African Union that the Plan will be largely self-funded, from the
internal resources of the member states. It is also expected that intra-continental support
for the poorest countries by wealthier African countries will become institutionalized as
regular practice.”52
Although support for legal reform in Africa was aggressively pursued by governments,
foundations, and banks, the question remains why different means of support for African
law schools were not pursued. For example, governments, foundations, and banks could
have reached out to African law schools with the same sensitivity that characterized the
new approaches to undertaking Rule of Law initiatives in the late 1980’s and 1990’s.53
Significant resources could have been devoted to collaborations that would have supported
curriculum design, consideration of new teaching methodologies including clinical
education, and faculty development.54 Such initiatives could arguably have made law
schools at African universities more significant players in promoting the rule of law than
they have been in recent years.55 After all, many of the leaders of the judicial systems,
which outsiders sought and still seek to reform, are graduates of African law schools.
However, it seems that a collective decision was made that African law schools did not
have as much to contribute to the promotion of the rule of law as did already existing
judicial systems, provided that those systems could be reformed.56
51
See Wortham, supra note 33, at 637-40 (citing Brian Z. Tamanaha, The Lessons of Law-and-
Development Studies, 89 AM. J. INT’L. L. 470 (1995) (arguing that many of the failures of the Law and
Development movement stemmed from failure to meet the specific needs of the respective African
nations – whether specific to ethnic or tribal concerns or the unsettled political climate).
52
Second Decade of Education for Africa (2006-2015), supra note 27, at 2.
53
Richard J. Wilson, The New Legal Education in North and South America, 2 STAN. J. INT’L L. 375
(1989) (demonstrating the changed focus of legal education in South America in the 1980s towards
increased efforts to assist the poor with knowledge of their legal rights and increased access to justice
programs).
54
See Wortham, supra note 33, at 640-44 (citing the examples of financial assistance to clinical education
programs in Vietnam, South America, and South Africa that proved successful).
55
One commentator has observed, “[t]he lawyers produced by the present system of legal education in
Africa are trained to become legal technicians. They are encouraged to have little or no interest or
comprehension of policy issues inherent in the law. They are generally reluctant to criticize current law.
Even as technicians, they have limits, for few are competent to represent national and commercial
interests in international business transactions, involving complexities of taxation and international
finance.” Ndulo, supra note 7, at 500.
56
It should be noted, however, that there has been government and foundation support for a number of
collaborations between American clinical faculty and African law schools. USAID and the Fulbright
59
If, indeed, this decision was made, we argue that it was a bad decision. African law
schools and African legal systems would be relatively better off today if substantial
funding had been committed with proper sensitivity to indigenous culture and values. The
impact of effective legal education upon emerging African lawyers and political leaders
could be substantial. Despite the energy and commitment of Africans and Americans who
have continued to work to support legal education in Africa,57 African law faculties
continue to be under-funded. This reality means law teachers in Africa simply cannot
afford to devote their full-time to teaching and scholarship. 58
African law faculties cannot afford to implement new teaching methodologies because they
do not have access to new materials and technologies.59 The Commonwealth Legal
Education Association (CLEA) has identified the following constraints, among others,
facing a number of Law Schools in the Commonwealth: (1) resource constraints; (2)
staffing constraints; (3) retention of professors; (4) lack of local legal materials; (5) lack of
access to electronic resources; and (6) outdated law curricula.60 These constraints are
relative and they are more acute in Commonwealth African countries than in other parts of
the Commonwealth.61 In some African countries, such as Liberia, law schools do not have
access to any materials because of civil strife.62
Program have sent American clinical faculty to Botswana, Eritrea, Mozambique, Kenya, and Nigeria.
American law schools have granted sabbaticals to faculty who have taught in South Africa. The U.S.
Information Service (U.S.I.S) (now part of the U.S. Department of State International Information
Programs) has funded American law school clinical faculty to teach in Ethiopia, South Africa, Malawi,
and in Kenya. The Ford Foundation has funded clinical teachers in South Africa. An author of this
paper, Prof. Geraghty, was one such teacher. In 1968, as part of a Ford Foundation initiative, he
traveled to the Addis Ababa University School of Law under the supervision of a law professor studying
the court system in Ethiopia. In 1996, he returned to that law school as part of a U.S. State
Department/ABA funded program to collaborate on a clinical curriculum for that law school. Through
the Northwestern University School of Law’s International Team Project program, he has traveled with
law students to visit Botswana, Namibia, Malawi, Tanzania, and Uganda; See generally Roy Stuckey,
Compilation of Clinical Law Teachers with International Teaching or Consulting Experience,
available at http://law.sc.edu/clinic/docs/internationalsurvey2005.pdf (last visited Feb. 25, 2008).
57
MANY ROADS TO JUSTICE, supra note 35, at 3. The University of Addis Ababa School of Law, under the
leadership of Acting Dean Taddese Lencho, has drafted an ambitious strategic plan for its law faculty.
This plan includes upgrading law school facilities, professional development opportunities for its
faculty (including access to PhD programs), and renewed emphasis on the production of scholarship.
Draft Strategic Plan, June 2007 (on file with author). This program will be supported in part by the
international law firm DLA Piper and by the Northwestern University School of Law.
58
Professor Ndulo observes, “Few really able people want to work for long in situations that offer no
rewards in either money or prestige—and such is the case with law teaching in Africa today.” Ndulo,
supra note 7, at 502.
59
Id. at 492-495 (describing the general state of African legal education in former British colonies as one
focusing on the learning of general holdings of British law and the marked absence of law reports
detailing recent rulings in African courts as well as the dearth of practical experience); see also KUBLER,
supra note 29.
60
See, CLEA, Developing Legal Education, supra note 44, at 21-31; see also Addis Ababa University
Faculty of Law, Reform on Legal Education & Training in Ethopia (Draft) (on file with authors).
61
See CLEA, Developing Legal Education, supra note 44, at 21-31.
62
U.F. Law Students Act to Replace Legal Texts Destroyed by Liberia Civil War, Press Release,
University of Florida, Levin College of Law (on file with the authors).
60
The time has come to design a new program of massive aid to African law schools. This
program should follow an in-depth study of the needs of law schools in Africa in order to
ensure the design and implementation of appropriate initiatives. However, even before such
a study is undertaken, it is possible to predict some of the serious problems that such a
study would identify.
IV. A Study of Legal Education in Africa: Expected Results

A. Faculty Salaries
After a study is completed we predict that a consensus will emerge, stating that one key
problem is the inadequate amount of money allotted for faculty salaries. Interactions with
faculty members in Ethiopia, Tanzania, Uganda, Malawi, and Ghana reveal that the
average professors’ salary ranges from $400.00 to $500.00 per month.63 At the same time,
members of African law faculties are highly sought after by governments, corporations,
and by private law firms.64 The consequence of this dynamic is that many law faculty
members in Africa find it impossible to devote their full-time to teaching.65 We concede
that we do not know how to solve this problem other than by providing support for research
and program initiatives that would augment the salaries of the African law faculty engaged
in such projects. However, subsidies from outside sources that single out law professors
might be politically unacceptable to African universities.66 This is especially true due to
the peculiar salary structure of faculty members at African universities. African
universities pay equal salaries to professors of all disciplines, and singling out law
professors for additional subsidy may lead to upheaval among staff unions in the
universities.67 However, increasing the resources available to these faculty members and
generating enthusiasm about the process and importance of legal education and scholarship
are both critical needs. Additionally, giving frequent opportunities to African law
professors to undertake short research and teaching visits (or what has been dubbed “Cooks
Tours”)68 to American law schools, for which they may be given a stipend, could also have
a positive impact.
63
It must be noted that the structure of academic posts in African Law Schools differ from that of
American Law Schools. In Botswana, for instance, the structure starts from Lecturer to Senior Lecturer,
to Associate Professor and ending with full professor. In Nigeria the structure starts with Lecturer II
and goes on to Lecturer I, Senior Lecturer, Associate Professor, and Professor. Salaries attached to
these academic positions vary considerably. In Ethiopia, full professors are paid about $350 per month.
Boston College Ctr for Int’l Higher Educ., Int’l Network for Higher Educ. in Africa, available at
http://www.bc.edu/bc_org/avp/soe/cihe/inhea/profiles/Ethiopia.htm .
64
See Akilagpa Sawyerr, Challenges Facing African Universities – Selected Issues, at 23-25, available at
http://www.aau.org/english/documents/asa-challengesfigs.pdf (last visited January 16, 2008) (noting the
general challenges of African universities of maintaining faculty because of the lure of private sector
professors).
65
See Ndulo, supra note 7, at 502.
66
Professor Quansah makes this observation based on his experience in teaching at universities in Ghana,
Nigeria, and Botswana.
67
Id.
68
See D. GUSTAFSON, MANAGING ECONOMIC DEVELOPMENT IN AFRICA 224 (Warren H. Hausmen ed.,
M.I.T. Press 1963).
61
B. Law Libraries
Funding to support law teachers in Africa in a scholarly capacity should be a high priority
at African universities. Law libraries in many African law schools are in a sad state. This
knowledge is borne out of experience in connection with Northwestern University School
of Law’s collaborations with the libraries in Ghana, Ethiopia, and Uganda.69 In order to
accomplish effective scholarship, African legal academics must often leave their countries
for law schools in Europe or the US.70 Law students in these and other African countries
have little access to the most recent developments in the laws of their own country, and
virtually no access to current news concerning international law and human rights.71
Creating and maintaining highly developed and innovative libraries in African law schools
could make those schools models for the establishment of consensus based legal systems.
C. Teaching Methodologies
New, more interactive, teaching methodologies, particularly those based on the clinical
education model, might also invigorate legal education in Africa. Initially, it would be
necessary to explore the extent to which African legal educators share this view.
Preliminary conclusions based upon work that Northwestern University School of Law has
done in Ethiopia, Ghana, Tanzania, and Malawi suggest that interactive teaching
methodologies are well-received by students.72 Although we must be cautious not to
confuse the pervasive politeness of African law students with enthusiasm for our
presentations, many African law students complain that the teaching in African law schools
is too mechanical, especially in the larger classes.73 Smaller classes employing a more
interactive model might generate more enthusiasm for the learning process. This method
of teaching requires resources, for instance more classrooms, a higher degree of support for
faculty members, technological improvements for the multimedia presentations, student
performances for review, and access to information on the internet.74
69
Information regarding these collaborations is on file with the authors.
70
See Sawyerr, supra note 64, at 23-26 (since faculty salaries have dried up African professors do not
have sufficient time to research and use sabbatical opportunities as both a means to engage in research
and help subsidize their minimal salary); see also Ndulo, supra note 7, at 502 (noting the lack of
resources available within Africa to law scholars as well as the lack of critical thinking about the law).
71
Ndulo, supra note 7, at 492-493 (describing lack of access to law reports of recently decided cases in
African courts as well).
72
Thomas F. Geraghty, Legal Clinics and the Better Trained Lawyer (Redux): A History of Clinical
Education at Northwestern, 100 NW. U. L. REV. 231, 240, 251 (2006) [hereinafter Legal Clinics and the
Better Trained Lawyer (Redux)]; see also Jessup, Symbiotic Relations, supra note 36, at 379-80 (citing
Michael Wolf, Summary of Proceedings, 2, American Bar Association Section of Legal Education and
Admission To The Bar, African Law Initiative Sister Law School Program (1997)) (“The reports
prepared by American and African law professors participating in the ABA African Law Initiative
Sister Law School Program provide strong evidence that Clinical Legal Education as part of the
curriculum at an African Law School is an enriching and significant component of the law school
experience.”).
73
Ndulo, supra note 7, at 500-01 (noting that African law professors are essentially legal technicians and
the classes are quite rigid in nature and arguing for more imaginative degree programs and critique).
74
See, e.g, Geraghty, Legal Clinics and the Better Trained Lawyer (Redux), supra note 72, at 249 (from the
inception of clinical programs to their expansion the programs require increased funding to ensure
62
A clinical method of teaching could take the law student outside of the classroom and into
the field. The model would involve carefully supervised student externships in government
agencies, non-governmental organizations (NGO’s), and human rights organizations. In
these placements, students would receive first-hand experience of the shortcomings of the
justice system in relation to under-served populations, as well as government and human
rights organizations’ responses to those needs. Law school-sponsored clinics could also be
developed, allowing students and faculty to work together representing individuals and
groups.75 Such “clinics” now exist in many countries (Botswana, Ghana, Nigeria, South
Africa, Sierra Leone, Uganda, Tanzania, Malawi, Kenya); however, the majority of these
clinics are not formally affiliated with any law schools.76 Predominately, the law students
who work in these clinics do so without receiving academic credit.77 In addition, student
practice rules should be developed, allowing students to practice law under the supervision
of clinical faculty.78 However, this idea poses political problems, especially with local bar
associations.79
sufficient educators and resources for effective teaching).

75
We acknowledge the political problems that would be posed to universities in some countries by the
existence of such clinical programs.
76
African legal clinics not formally associated with a law school: MBDHP’s Legal Clinics Section
(Burkina Faso), Centre for Practical Legal Studies (Mozambique), Legal Aid Clinic (Namibia), Legal
Clinic (Butare, Rwanda), Legal Clinic (Saint Louis, Senegal), Legal Clinic (Somaliland), and Kampala
Law Development Centre Legal Aid Clinic (Uganda). African legal clinics associated with law schools
in Africa: Legal Aid Clinic (University of Mekelle, Ethopia), University of Nairobi Clinical Program
(Kenya), Akungba Law Clinic (Adekunle Ajasin University – Nigeria), University of Ibadan Law Clinic
(Nigeria), University of Maiduguri Law Clinic (Nigeria), Abia State University Law Clinic (Nigeria),
University of Uyo Campus Law Clinic (Nigeria), Rhodes University Legal Aid Clinic (Rhodesia),
Human Rights Clinic Fourah Bay College (Sierra Leone), University of KwaZulu-Natal Law Clinic
(Durban, South Africa), Wits Law Clinic (Johannesburg, South Africa), Community Law Centre
(Mmabtho, South Africa), University of Pretoria Law Clinic (Pretoria, South Africa), and University
Legal Aid Centre (Tanzania). The preceding information was provided by Ms. Mariana Berbec of the
Open Society Institute and is on file with the author.
77
In Botswana, clinical work forms part of the Clinical Legal Education courses which are compulsory for
all fourth and fifth year students and for which a total of 12 credits are awarded. In South Africa, legal
clinics are a well established part of the curricula of law schools, for example Universities of Natal and
Witswatersrand, to name a few. See M. Wolf, Summary of Proceedings, Workshop on Clinical Legal
Education in Africa 1, ABA SEC. ON LEGAL EDUC. AFR. LAW INITIATIVE SISTER LAW SCHOOL PROGRAM
(July 8-12, 1996) at 9 (1996).
78
The following countries lack student practice rules as confirmed with professors at African Law
Schools: Nigeria (email response provided by Prof. Oke-Samuel on February 2nd, 2008, on file with
authors), Zambia (email response proved by Dr. Patrick Matibini on Febrary 6th, 2008, on file with
authors), and Nambia (email response provided by Prof. Amoo on February 11th, 2008, on file with
authors). While students at the Akungba Law Clinic at Adekunle Ajasin University in Nigeria can
receive academic credits for clinical work, they are not allowed to practice in courts and can only
observe with a supervising attorney. See email response provided by Professor Oke-Samuel, Feb. 2,
2008 (on file with authors).
79
See email response by Professor Ndubisi, Jan. 30, 2008 (on file with authors). In Nigeria, students have
“limited opportunity to observe trial advocacy under the supervision of a qualified lawyer”, but only
after they have completed a law degree. Id. But, “[e]fforts are underway by university law clinics and
NGOs to persuade the Bar and judicial authorities to expand opportunities for student practice.” Id.
63
A major advantage of funding programs in the “clinical legal education” category is that
such programs can respond to the critique of African legal education that it has been too
much taken with Western values and the domestic debate that law schools provide no
practical training.80 Additionally, the clinical method of teaching is able to counter the
debate over “legal imperialism” in that, if properly managed, the clinical method will
always be responsive to the “real world” of legal practice and social needs.81 This “real
world” technique, whether it is brought into the classroom, into a government agency or
NGO, or into a law school sponsored legal clinic, will inform and control the subject matter
taught and learned.82 In this way the clinical method most appropriately ensures that the
legal education received by law students is culturally relevant and sensitive.83
There is a tendency in African law schools to use textbooks that usually reflect the state of
the law in England.84 In this realm, a program providing assistance in formulating local
content material for teaching may be useful. For instance, in Botswana there is an
inordinate reliance on South African and English textbooks.85 While these textbooks tend
to reflect the common law of Botswana, they do not reflect the statutory law to the same
extent.86 This is likely because the statutory laws inherited from the country’s historical
political association with South Africa and England have remained substantially
unchanged, while conversely there have been tremendous legislative reforms in the two
countries over the years which are not reflected in the current editions of relevant
textbooks.87 Students therefore find themselves being lectured about Botswana law, and
80
Jessup, supra note 36, at 387-388; see, e.g. Vanguard, Nigeria: Critical Reform Considerations for
Preparing a Well Fit Lawyer of the Future, AFRICA NEWS, Jul. 11, 2003.
81
See Richard J. Wilson, Training for Justice: The Global Reach of Clinical Legal Education, 22 PENN.
ST. INT’L L. REV. 421, 422- 24 (2004).
82
Id. at 423-24, 428.
83
Wortham has put forward three requisites for support of clinics abroad. These are (1) clinic programs
should be based on students’ live experience providing legal services to poor people or under-served
interests, (2) law school faculty must play a significant role in the design, administration, and teaching
of the program and (3) the funder should assess the competence and sincerity of those seeking to
implement the program and make a subsequent assessment of the clinic’s operation. Wortham, supra
note 33, at 655-70.
84
“Legal education in Nigeria is modeled on that of England and Wales.” Information provided by
Professor Ndubisi of the University of Ibadan, Nigeria. For more information on Nigerian Legal
Education see http://www.nigeria-law.org/Legal%20Practitioners%20Act.htm and http://www.nigeria-
law.org/Legal%20Education.htm. See also, Nkrumah University of Science & Technology in Ghana,
www.knust.edu.gh/law/books.php (last visted Feb. 25, 2008) (In the Faculty of Law, for example, the
recommended textbook for the course on Ghana Legal System is a book on the English Legal system).
85
For instance, in Botswana there is an inordinate reliance on South African and English textbooks. (For
example, in the University of Botswana in teaching Delict (Tort), reliance is placed on the South
African Text book, Burchell, Principles of Delict. In Succession, the South African text book by
Corbett, The Law of Succession in South Africa, is used as a basic text and the English text of Cross on
Evidence is required reading for the law of Evidence; see also G. van Niekerk, The Application of South
African Law in the Courts of Botswana, 38 COMP. INT’L L J. S. AFR. 312 (2004).
86
For example, the English Divorce Reform Act 1969, on which the Botswana Matrimonial Causes Act
1973 was based, has since been replaced by the Family Law Act 1996. Current English divorce
textbooks, such as Cretney & Masson Principles of Family Law, discuss the latter Act with passing
references to the former. In teaching divorce law therefore, reliance had to be placed on the repealed
law of England.
87
Id.; see Prof. Ndubisi’s comments, supra note 84.
64
then reading about a different law in the textbook. Whilst there has been a spirited attempt
to produce local legal texts, publishers have not shown the required enthusiasm to publish
them due to the smallness of the Botswana’s education market.88 Thus, funding to produce
local legal text is of current importance.
Clinical education is faculty intensive, labor intensive, time consuming, and exhausting.89
Only the law schools in the United States with relatively substantial resources can support
large programs in clinical education. If this is so, how can we expect African law schools
to make substantial investments in clinical education? One answer is to look back on the
history of the establishment of clinical programs in the United States in the late 1960’s and
early 1970’s.90 The Ford Foundation, through a spin-off foundation called The Council on
Legal Education for Professional Responsibility, urged law schools to create clinical
programs and provided substantial seed money for those clinical programs it helped to
develop.91 The faculty members who populated those early clinical programs were young
and relatively “inexpensive” recent graduates of law schools, who were enthusiastic about
the opportunities that those programs offered to teach and to provide service.92 Thus, the
initial cost of setting up the early clinics in the United States was relatively modest.
Reliance upon recent graduates was key not only to the financial viability of these early
programs, but to generating enthusiasm among law students as well. These students and
faculty shared common ideals and formed communities of learning, scholarship, and
service.93
The clinical movement in American legal education has evolved to the extent that clinical
education is now evident in every law school in the country.94 Almost every American law
student is exposed to the “real world” of lawyering through clinical legal education.95 The
“inexpensive” beginnings of clinical education in the United States are evident in some
African countries. In Botswana, for example, the legal clinic was conceived as part of the
Department of Law in implementing its mandate to provide academic as well as practical
skills training in its L.L.B. program.96 The administrator and the teaching staff of the clinic
88
Prof. Quansah is relating his and his colleagues’ efforts at the Department of Law, University of
Botswana in trying to interest local publishers to no avail in publishing manuscripts that have been
prepared on various aspects of Botswana Law.
89
See, e.g, Geraghty, Legal Clinics and the Better Trained Lawyer (Redux), supra note 72, at 249 (noting
the need for increased clinical professors and space); see also George S. Grossman, Clinical Legal
Education: History and Diagnosis, 26 J. LEGAL EDUC. 162,182-83 (1974).
90
See, e.g, Geraghty, Legal Clinics and the Better Trained Lawyer (Redux), supra note 72, at 238-44.
91
See Clinical Education for the Law Student CLEPR Conference Proceedings, Buck Hill Falls, June,
1973; see also, Selected Readings in Clinical Education, Council on Legal Education for Professional
Responsibility, the International Legal Center, 1973. For the most comprehensive list of readings in
clinical legal education, see J.P. Ogilvy and Karen Czapansky, CLINICAL EDUCATION, AN ANNOTATED
BIBLIOGRAPHY (Revised, 2005) available at http://faculty.cua.edu/ogilvy/Biblio05clr.htm.
92
Id.
93
Id.
94
Wilson, supra note 82, at 421.
95
Id. at 421-24.
96
A very important part of the program at the University of Botswana is the Clinical Legal Education
courses which were introduced in the 1986/87 academic year. The courses which are compulsory for all
students are taken over a two-year period – the 4th and 5th years of the program. It consists of: (1) an
65
are part of the Department of Law.97 Clinical responsibilities are part of the job description
of Department staff, and as such there is no need to recruit staff specifically to operate and
maintain the clinic.98 The drawback of this arrangement is that the clinic does not have a
separate budget from the Department of Law, and as a result it is severely handicapped in
its operations.99 There is also a marked reluctance on the part of staff to undertake clinical
duties due to its inherent time-consuming nature.100 In such a circumstance, funding to
augment the budget of the Department, and perhaps to recruit staff specifically for the legal
clinic, will help to improve and enhance the teaching of practical legal skills.
V. Ethiopia: A Case Study in National Leadership and Collaboration

A. History and Reform
Modern legal education in Ethiopia began in 1952 when law courses were taught at the
University College of Addis Ababa.101 In 1961, Haile Selassie I University was formally
established and law courses were taught there.102 In 1963 James C.N. Paul became Dean of
the Law Faculty at Haile Selassie I University, bringing with him Ford Foundation support
and a substantial ex-patriate faculty.103 From the early 1960’s until the early 1970’s the
Haile Selassie I University Law Faculty was predominately American and European.
However, leaders of the Law Faculty did put in place a process to “Ethiopianize” the Law
Faculty.104 Foreign governments and foundations provided major support for the new law
school. By the late 1970’s and early 1980’s the Law Faculty was staffed primarily with
Ethiopian faculty and led by Ethiopian deans. During the period of the Dergue, and, indeed
for some years after the overthrow of the Dergue, support for legal education in Ethiopia
waned. 105
eight week long internship within legal establishments during the long vacation at the end of the fourth
year; (2) participation in at least one moot or mock trial session each academic year; (3) attendance at
clinical seminars for a minimum of two hours a week; and (4) attending to clients and files in the legal
clinic on a regular basis.
97
Quansah, Educating Lawyers, supra note 19, at 530-31.
98
Id.
99
Id.
100
Observation of Professor Quansah based on teaching experience in Nigeria and Botswana.
101
Getachew Assefa, The Current Situation of Legal Education in Ethiopia: Problems and Proposals, 6,
Proceedings Int’l Conf, Why A Justice Personnel Training Center for Ethiopia, (Addis Ababa, Ethiopia,
July 2003).
102
Id. at 8
103
Id. at 9.
104
See Getachew Aberra, The Faculty of Law and the Curriculum for Legal Training, Wonber No. 2
ALEMAYEHU HAILE MEMORIAL FOUNDATION, (2008).
105
Dr. Aberra notes that after Emperor Haile Selassie’s government was overthrown in 1974, “…all
expatriate staff of the faculty had left Ethiopia. Obviously, this sudden departure of expatriate staff had
its negative impact on the standard of legal education given by the Faculty…The Ford Foundation
which had been a major source of financial assistance soon terminated its assistance to the Faculty. As a
result, the Faculty could no longer get current law books, journals, periodicals and other reference
materials. It was therefore, found very difficult to maintain the high standard of legal education that was
set by Dean Paul and his colleagues during the early 1960’s.” Id. at 101.
66
Since 2000, the Government of Ethiopia and legal educators in Ethiopia have placed
substantial emphasis on the importance of legal education.106 This is evidenced by the
establishment of 20 government-supported and private law schools in Ethiopia, and by an
intensive effort by the Ethiopian government and law school faculty to put into place a
sophisticated strategic plan, as well as a comprehensive framework for reform of legal
education in Ethiopia. These efforts have involved a massive and detailed re-examination
of the role of law schools in Ethiopia, an examination of the composition and qualifications
of law school faculty, the creation of a standardized curriculum, and the creation of
teaching materials.107 This has been a thoughtful and coordinated effort on the part of the
Ethiopian Government and law faculty throughout the country to make legal education
more accessible and more relevant to the demands of a diverse citizenry and consumers of
legal services.
The reform of legal education in Ethiopia began in 2002 when the Ethiopian Government,
under the auspices of its Ministry of Capacity Building, launched the National
Comprehensive Justice Reform Project.108 This Project had as one of its goals the reform of
legal education in Ethiopia.109 One of the committees formed to design and implement this
project was the “Technical Committee” which undertook a study of private and public law
schools in Ethiopia, in Europe, and in the United States.110 The problems identified by
June, 2006 report were as follows:
The curriculums in place have failed to incorporate new demands and
developments such as investment, alternative dispute resolution, and
federalism. The curriculum’s failure to focus on skill oriented courses and its
inclination towards theory based courses stand out as a major problem of the
curriculum. There is serious shortage of human and material resources needed
for achievement of goals set by the curriculum. Another downside of the
curriculum is its failure to clearly indicate mechanisms for quality
assurance.111
In an effort to address these issues, the Addis Ababa University Faculty of Law, the senior
law faculty in Ethiopia developed a strategic plan.112 The strategic planning document
106
The importance of this initiative is underscored by the Ethiopian Government’s adoption of a Code of
Conduct for Federal Court Advocates. This Code provides in part that, “Any advocate shall have the
responsibility to assist the organs of the administration of justice in the effort to promote respect for the
rule of law and the attainment of justice. Any advocate shall, in particular discharge his professional
duty to his client, other lawyers and opposing party, the court, his profession, and the society in general
honestly, faithfully, and truthfully.” Federal Negarit Gazeta, 6th Year, No. 1, 24th Sept. 1999, Council of
Ministers’ Regulations, p.1156
107
See, Reform on Legal Education & Training in Ethiopia (June 2006) (working draft, on file with
Professor Thomas F. Geraghty).
108
See Reform on Legal Education & Training in Ethiopia, supra, note 60, at p. 6.
109
Id. The Project recognized that, “effective law schools …can contribute to the sustenance of
democracy, peace, good governance and justice as well as…producing competent and responsible
graduates that can detect and fight against unethical and corrupt practices.” Id. at 7.
110
Id. at 8.
111
Id. at 9.
112
Strategic Planning Document for the Addis Ababa University Law Faculty, provided by Acting Dean
Tadesse Lencho (insert date) (on file with Thomas F. Geraghty).
67
adopted by the Addis Ababa University Law Faculty identifies key challenges and plans
for meeting those challenges. The strategic planning document takes a hard look at legal
education at Addis Ababa University. This strategic planning document merits
consideration by any law school that is contemplating a strategic planning process.
In the plan’s section entitled, “Internal Situation Analysis: Strengths and Weaknesses,” it is
noted that a strength of the Law Faculty of Addis Ababa University is “a considerable
number of strong, experienced and committed academic staff.”113 On the other hand, the
plan identifies a weakness of the Law Faculty as being, “[t]oo few academic staff members
with PhD’s,” and “[t]oo few academic staff members with experience in research and
publications.”114 Thus, the capacity of Ethiopian law schools to produce scholarship is a
key component of Ethiopia’s plan to improve the quality of its program of legal education.
The Addis Ababa University Faculty of Law’s vision, as set forth in its plan, is to “become
a preeminent center of legal studies dedicated to excellence in teaching, critical inquiry and
public action in an academic community that cultivates vibrant discourse on the rule of law
development and social justice in Ethiopia.”115 The Addis Ababa University’s Law
Faculty’s mission is to “[a]ctively work for the enhancement of rule of law, equality,
human rights, democracy, social justice, tolerance and economic development for the
peoples of Ethiopia through quality programs of teaching, research and community
service.”116 Other law schools in Ethiopia have adopted similar thoughtful, far reaching,
and ambitious objectives, equally signaling the re-emergence of legal education as a
priority in Ethiopia. The program of clinical instruction at the Mekelle University Law
Faculty is a particularly impressive example of the re-invigoration of legal education in
Ethiopia.117
Ethiopian legal educators are thus attempting to meet the twin challenges of making the
substance of legal education relevant to the needs of Ethiopia’s citizenry and developing
new teaching methodologies that will improve the quality of training that its law students
receive. Ethiopia has taken several impressive steps to achieve these twin goals.
Ethiopia has formulated a model curriculum that will be adopted by all Ethiopian law
schools.118 This 5 year undergraduate curriculum is responsive to the needs of modern
113
Id. at 3.
114
Id.
115
Id. at 24.
116
Id.
117
On February 24-28, 2008, the Faculty of Law of Mekelle University sponsored a national workshop on
clinical legal education. Seven public and two private Ethiopian law schools participated in this
conference. A committee consisting of legal educators in Ethiopia was formed to establish a national
network of Ethiopian law clinics. E-mail from Desta G/Michael Giday, Director, Mekelle University
Law Faculty Legal Aid Clinic, to Prof. Thomas F. Geraghty (March 6, 2008) (on file with Prof. Thomas
F. Geraghty).
118
E-mail from Ato Muradu Abdo, Coordinator of the Research and Publication Unit of the Addis
Ababa University, Faculty of Law, to Professor Thomas F. Geraghty, (March 23, 2008) (on file with
Prof. Thomas F. Geraghty). “A new curriculum has been put in place in over 20 public and private law
schools in Ethiopia. The curriculum has two aspects: a core curriculum with about 40 courses (about
68
Ethiopia, focusing heavily upon both the history and present status of Ethiopia’s legal
system and upon core courses such as contracts, torts, property, criminal law and business
organizations, and human rights.119 In addition, courses in legal skills, such as legal
writing, appellate advocacy, judgment writing, and legal clinics are offered throughout the
curriculum.120 Course materials for these offerings are being prepared under the auspices of
the Justice System and Legal Research Institute of Ethiopia and the Ministry of Capacity
Building. These materials are comprehensive and well-organized.121 The materials are a
critical contribution to modern-day legal education in Ethiopia. Prior to the creation of
these materials, much of legal instruction in Ethiopia was based upon materials prepared in
the late 1960’s and early 1970’s by expatriate faculty.
B. Significant Remaining Challenges
1. Centralization and De-Centralization
The proliferation of law schools throughout Ethiopia has the salutary effect of making legal
education available to more of Ethiopia’s citizens. In order to manage the expansion of
legal education, the Government of Ethiopia has chosen to centralize various aspects of
legal education including admissions, curriculum development, and assignment of faculty.
Unlike law schools in most other countries, law schools in Ethiopia have no role in
deciding who is admitted to their schools; and, prospective law students have no ability to
choose which public law school they would like to attend. Although centralized decision
making is necessary to manage the kind of expansion put in place by the Ethiopian
Government, some might argue that elimination of competition for the best students and
faculty will result in few truly exceptional law schools. On the other hand, it is difficult to
see how a government-funded initiative to fund legal education throughout Ethiopia could
be managed differently. Perhaps an incentive structure could be created to further
curriculum reform, excellence in teaching, and scholarly productivity.
2. Selectiveness in Admitting Law Students/Increased Enrollments
It is commonly accepted that during the early years of legal education in Ethiopia, the
Addis Ababa University Faculty of Law attracted the most talented graduates of Ethiopia’s
secondary schools. However, the capacity of the Law Faculty in Addis Ababa to enroll
students was always limited. Moreover, the logistics and expense involved in training all of
120 credit hours) and an area of concentration of about 15 courses (about 40 credit hours).” Id. Each law
school must provide the core curriculum, but can elect concentrations. Id.
119
Course Offering Breakdown (Regular LL.B. Program) Sept. 2006 (unpublished manuscript, on file
with Prof. Thomas F. Geraghty).
120
Id.
121
Ethiopia’s Justice and Legal System Research Institute, Materials on Introduction to Law and the
Ethiopian Legal System (Oct. 2007) (on file with Professor Thomas F. Geraghty) (These materials
underscore Ethiopia’s commitment to provide law students with new teaching material that is drawn
from, and that is directly relevant to, Ethiopian history and experience.). See also a course material on
Legal History and Traditions (Oct. 2007) provided by Dean Fikremarkos Merso, (unpublished
manuscript, on file with Professor Thomas F. Geraghty) (extensive course work materials prepared
under the auspices of the Ethiopia’s Justice and Legal System Research Institute).
69
Ethiopia’s lawyers in Addis Ababa were daunting. Inevitably, the dramatic expansion of
the number of slots available in Ethiopia’s law schools has resulted in a more diverse but
less academically elite student body.
The decision to expand the opportunities to obtain legal education is undoubtedly in the
best interests of the country. However, this decision has implications for curriculum and for
instruction that are very challenging, especially in the context of undergraduate programs
in law. Increased enrollments in public law schools require additional faculty and
administrative resources. Larger class size means less faculty contact and individualized
instruction. Thus, it becomes difficult to implement new and more interactive teaching
methodologies, such as clinical legal education. The cost of duplication and distribution of
materials increases with the number of students admitted. These are difficult issues,
especially during a period of time in which there is a vigorous effort to expand
opportunities for students and faculty.
3. Curriculum Development and Implementation
As noted above, Ethiopia has invested significant resources in developing a new

curriculum supported by new teaching materials. The need for new materials was acute.
Few new materials had been created since the early 1970’s. The new materials reflect the
realities of practice in the formal justice system and also recognize the important role of
customary dispute resolution systems.
The new model curriculum will require the education and training of more law faculty.
Both old and new faculty will have to become experts in areas of law not previously
covered by the curriculum. In addition, implementation of more interactive teaching
methodologies will also require teacher training. If clinical programs are implemented and
expanded, Ethiopian law schools will be required to attract faculty who have experience in
practice. 122
In order to address the need for new law faculty who are prepared to teach in the model
curriculum, the Government of Ethiopia is expanding its ability to provide post-graduate
legal education in Ethiopia to train law teachers locally and relatively inexpensively. Until
recently, most Ethiopian law faculty received their graduate degrees from foreign
universities. Given the expansion of legal education in Ethiopia in recent years, sending all
law professors abroad for graduate legal education will become increasingly, and perhaps,
impossibly expensive. Thus, new initiatives are underway to train Ethiopian law faculty in
Ethiopia. .123
122
A training in new pedagogy was organized by the Justice and Legal System Research
Institute in September 2007 for about 70 participants drawn from all law schools in Ethiopia.
A similar pedagogy workshop is planned to be held in July 2008.
123
There are a number of new initiatives underway to support the capacity of Ethiopian law schools to
provide graduate legal education. The law firm, DLA Piper, is working with the Addis Ababa
University Law Faculty to provide graduate-level instruction in business-related courses. The University
of Alabama, under the leadership of Professor Norman Singer and the Ethiopian Ministry of Capacity
Building launched a program in March of 2008 to support post-graduate legal studies. The Dutch
Government has been supporting law faculty at Jima University and at Bahir Dar University by
70
The ambitious plans of legal educators in Ethiopia to train future law professors to teach
traditional law courses seem well on track from the standpoint of providing the substantive
knowledge to teach a new and ambitious curriculum. What is not so clear is what efforts
will be made to train existing and future law professors in teaching methodologies that are
more interactive and problem-based. In particular, the training of clinical faculty poses
significant additional challenges. No planning document reviewed by the authors of this
article set forth a plan for attracting and training law teachers qualified to provide clinical
instruction.
A critical pre-requisite for teaching clinical skills such as legal writing, appellate and trial
advocacy, negotiation, and mediation, is experience in practice. It is not clear the extent to
which Ethiopia plans to draw upon practicing lawyers to be trained as law professors. In
fact, anecdotal evidence suggests that many new law faculty in Ethiopia are very recent law
school graduates. Moreover, the emphasis on the production of traditional scholarship as
the primary criterion for the hiring, retention, and promotion of law faculty may be
inconsistent with the objective of attracting and retaining faculty qualified to teach clinical
courses.
4. Research
The Journal of Ethiopian Law is one of the oldest and most respected law journals in
Africa. After the founding of the modern law school in Addis Ababa in 1963, the Journal
was published on a regular basis and included articles on newly enacted codes as well as on
the interplay between the new codes and customary practices.124 During and after the time
of the Dergue, the Journal was published infrequently and Ethiopian law faculty found it
difficult to find support for their scholarly activities.
This situation is changing thanks to the renewed efforts of Ethiopian faculty and staff. The
Journal of Ethiopian Law is being published on a regular basis. 125 Moreover, Ethiopian
law faculty are increasingly publishing their work in law journals abroad.126
However, further support for research is required. While faculties need grants to foster and
support their research, they also need time off from teaching that will allow them to write.
In addition, they need better access to information. The latter will require a modern library
covering the cost of post-graduate legal studies. The University of Pretoria has also been instrumental in
providing opportunities for Ethiopian law graduates to obtain post-graduate degrees.
124
See for example, John H. Beckstrom, Divorce in Urban Ethiopia Ten Years after the Civil
Code, 5Eth.J.L.2(1969) at 283-304; and Thomas F. Geraghty, People, Practices, Attitudes and
Problems in Lower Courts of Ethiopia, 5Eth.J.L.2(1969) at 427-512.
125
As per information received by Professor Thomas F. Geraghty from Ato Muradu Abdo, the
Coordinator of the Research and Publication Unit of the Faculty of Law of Addis Ababa
University, in 2007, Vol. 22 of the Journal of Ethiopian Law came out; in 2008, the Journal
will have two issues, July and December issues; the July issue is going according to the
schedule; it looks that the regularity of the Journal is being restored.
126
See, e.g., Girmachew Alemu Aneme, Apology and Trials: The Case of the Red Terror Trials in
Ethiopia, 6 AFR. HUM. RTS. J. 64, 79 (2006); Muradu Abdo, The International Investment Regime:
Towards Evolutionary Bilateral and Regional Investment Treaties? 1MJIEL1(2004) at 54-75.
71
and increased access to the internet. Currently, internet access is expensive and slow,
complicated by frequent power outages.
5. The Role of Ethiopian Law Schools in Support of Good Governance and Social
Justice
Ethiopia’s very impressive strategic planning document, Reform on Legal Education &
Training in Ethiopia, states that “law schools shall actively work for the enhancement of
democracy, good governance, tolerance, equality, social justice and economic development
for the people of Ethiopia through quality programs of teaching, research and public
service…”127
As in every county, this lofty goal of legal education is difficult to implement in the context
of classroom instruction. Students are pre-occupied with the necessity of learning the law
and becoming adept at utilizing the tools of legal analysis and practice. Faculty are
dedicated to providing students with the information and training necessary for the
performance of technical tasks. In countries that do not enjoy the tradition or luxury of
well-established and well-funded resources and institutions to support good governance
and social justice, pre- and post-graduate involvement in such activities may, as a practical
reality, be quite limited.
Meeting the challenge articulated in Ethiopia’s vision for reform of legal education will be
difficult. If during law school students are exposed to project-based learning that is focused
on good governance and social justice, then that vision could very well become a reality.
Implementing “project-based learning” will necessitate additional planning and resources.
In addition, it requires the support of the government for programs that may involve
analysis of existing practices within Ethiopia’s system of justice.128
6. Ethiopian Law Schools and the Practicing Bar
In the various documents reviewed by the authors, and in conversations with Ethiopian law
faculty and with Ethiopian lawyers, there is very little mention of collaboration between
law faculties and practicing lawyers. One has the impression that it is common for
graduates of Ethiopian law schools not to remain involved as alumni in the activities of the
law schools they attended. It is also common for members of law faculties to have little
contact with members of the practicing bar. Without continuing exchanges between law
faculties and members of the practicing bar and bar associations, it will be difficult to
127
Reform on Legal Education & Training in Ethiopia, supra, note 60, at p.53.
128
See, e.g., Work undertaken at Northwestern Law School’s Center on Wrongful Convictions
(“CWC”). CWC, Our Mission ,
http://www.law.northwestern.edu/wrongfulconvictions/aboutus/mission.html. Through the
work of faculty and students at the CWC in the representation of the wrongfully convicted,
reforms of the criminal justice system in the United States have been suggested and
implemented. See CWC, About Us,
http://www.law.northwestern.edu/wrongfulconvictions/aboutus/. (detailing the clinics work
on offering reforms to reduce the conviction of the wrongfully convicted).
72
ensure that curricula and teaching methodologies are relevant. It will also be difficult to
teach the many practice-oriented courses that are envisioned by Ethiopia’s model legal
education curriculum. Moreover, law students will be deprived of valuable information
about the challenges facing the profession as well as information that will allow them to
make informed career choices.
VI. Conclusions and Modest Suggestions

A. Conclusions
This article began with a description of efforts of Westerners to provide support for legal
education in Africa. It then went on to describe the dynamic progress now underway in
Ethiopia to improve the availability and quality of legal education.
Ethiopia has accepted the proposition that improvements in its system of legal education
are critical to the overall well-being of its citizens. This is an auspicious time for legal
educators in Ethiopia and for those outside of Ethiopia who seek to support Ethiopia in this
ambitious undertaking. Because what is happening in Ethiopia is particularly dynamic,
those involved in shaping legal education initiatives in other countries should take notice.
However, it is apparent that even with the resources now being devoted by the Ethiopian
Government to legal education, resources from outside of Ethiopia will be needed to
support the Government’s ambitious plans. Ethiopia needs access to legal information, new
materials, new teaching methodologies, and a continuing ability to draw upon the
experiences of legal educators from around the world. All of this is expensive.
It is also apparent that many foreign governments, private foundations, foreign law schools,
and international NGO’s are available to assist in the effort to make legal education in
Ethiopia more relevant, more available, and current in legal information, teaching
methodology, and technical support.
B. Modest Suggestions
The progress that Ethiopia has made in legal education has been made despite the fact that
there is sometimes a lack of coordination of the efforts of the Ethiopian Government and
Ethiopian law faculty, and the efforts of non-Ethiopians interested in supporting legal
education in Ethiopia. In fact, one of the difficulties faced by both the Ethiopian
Government and non-Ethiopian supporters of legal education in Ethiopia is the lack of a
centralized knowledge base regarding past and present initiatives to support legal education
in Ethiopia. This means that organizations and individuals who may have resources to
devote to legal education in Ethiopia often have difficulty making sure that their initiatives
are not duplicative and are welcomed by Ethiopian legal educators. A central repository of
information and opportunities could be of great benefit to all of those concerned about the
future of legal education in Ethiopia, especially at this critical moment when there is so
much interest in and support of new initiatives.
73
The practicing bar in Ethiopia could be a valuable resource in support of efforts to improve
the quality of legal education in Ethiopia. The practicing bar should engage law faculties in
discussions about the priorities to be given the various initiatives that are planned and/or
on-going. Law faculties should seek out members of the practicing bar to assist with
programs of legal education, particularly those courses and programs that teach lawyering
skills and human rights. There is considerable evidence that leaders of the Ethiopian
Lawyers Association are concerned about the development of a stable and predictable legal
system staffed by well-qualified and experienced lawyers.129 Leaders of the Ethiopian
Lawyers Association have recently played constructive leadership roles in helping to
resolve difficult legal, political, and human rights issues in Ethiopia.
Finally, we make a plea for more support of exchanges between law teachers in Ethiopia
and law teachers from abroad. We acknowledge that there is nothing particularly new or
creative about this suggestion. But it is a basic truth that we learn from each other. Such
learning cannot take place without opportunities for truly collaborative and sustained
interactions. It takes time, effort, and money to develop the relationships that lead to the
most productive collaborations. There are many opportunities for such collaborations on
behalf of legal education in Ethiopia. Given the recent expansion of legal education in
Ethiopia, and the priority placed upon legal education in Ethiopia, governments,
foundations, and law schools outside of Ethiopia should view support of legal education in
Ethiopia as an important opportunity to make a difference.
129
See, e.g., THE ETHIOPIAN BAR REVIEW (February, 2007) (a publication of the Ethiopian Bar Association
containing the articles on trademarks, arbitration, and case reports).
74
ENVIRONMENTAL POLICY AND LAW OF ETHIOPIA: A POLICY
PERSPECTIVE
Khushal Vibhute*#
Introduction
Man, who has acquired the power and ability to transform his environment in countless
ways, has unending desire for better quality of life and materialistic comforts. The state,
which claims sovereignty over its natural resources, has also been excessively exploiting
and indiscriminately using natural resources at its command to meet its endless desire for
development. The excessive exploitation of natural resources and their imprudent use,
rather misuse, by Man and State have been posing serious threats to the fragile ecosystem.
The environmental crisis is evinced by global warming; rise in the sea level; ozone
depletion; acid rains; water, air and soil pollution; the extinction of numerous animal and
plant species, and the loss of biodiversity.
The global community, conscious of the deteriorating ecosystem and its consequences, has
been trying hard to arrest further deterioration of the environment. The hitherto convened
three mega Conferences, namely, the UN Conference on the Human Environment
(UNCHE, 1972), the UN Conference on Environment and Development (UNCED, 1992),
and the World Summit on Sustainable Development (WSSD, 2002), have, inter alia,
evolved a couple of global prescriptive and normative environmental policies and
principles. These are the precautionary principle (including the environmental impact
assessment), the polluter-pays principle, sustainable development, and common but
differentiated responsibility. These principles have influenced environmental policies and
laws of different countries, including Ethiopia.
The present paper attempts to have a ‘closer look’ at the environmental policy and law of
Ethiopia and to highlight the nexus between the policy and the law.
*
Professor of Law, Faculty of Law, Addis Ababa University (AAU), Addis Ababa (Ethiopia). Email:
khushal.dr@gmail.com
#
I would like to sincerely thank Ato Muradu Abdo, former Asst. Dean of the Law Faculty, for allotting me
a course on Law of Environment and thereby ‘motivating’ me, in my background and understanding of
International Environmental Law, to have a ‘closer look’ at the Environmental Policy and Law of
Ethiopia and for persuading me to pen it down.
I would also like to express my sincere thanks to the Officials of the Environmental Protection Authority
for giving me audience for frank informal interactions and for unhesitant parting with documents and
information in their armory. The dialogue and documents have immensely helped me in having further
‘deeper peep’ into the Environmental Policy and Law of Ethiopia and in sharpening some of my ideas.
I would like to acknowledge the efforts taken by Ato Girma Haile for making me available the Federal
First Instance Court’s decision in Action for Professionals’ Association for the People (APAP) v
Environmental Protection Authority, Civil File No. 64902/21.02.1999 (EC).
75
1. Environmental Policy of Ethiopia- A Broad Policy Perspective
1.1 Environmental Policy and Environmental Law-Mutual Context
Environmental law, ostensibly, is the juridical articulation of environmental policies and

programs. However, the evolution and formulation of environmental policy of a State is a
complex process. It is influenced, rather dictated, by policy-oriented approaches to other
sectors correlated with the environment. Environmental policy of a State is bound to have
significant correlation with the State’s population policy, agricultural policy, land and
natural resources use policy, development policy, industrial policy, rural and urban
development policy, forest policy, mining policy, and transport policy, to name a few. Eco-
interests of the political parties, national scientific advancement and development priorities,
among others, also play significant roles in the formulation of environmental policy.
1.2 Environmental Policy of Ethiopia- A Sketch
A broad and basic environmental policy of Ethiopia is reflected in the FDRE Constitution,1
the Environmental Policy of 1997 (hereinafter the EPE).2
1.2.1 FDRE Constitution-Environmental Spirit and Policy Principles
A set of ‘fundamental rights’ and ‘environmental objectives’ incorporated in the FDRE

Constitution exhibits Ethiopia’s deep concern for the environment. They also contain some
basic policy-oriented principles and guidelines for environmental protection and
management.
A. Fundamental rights
The FDRE Constitution guarantees the fundamental right to live in a clean and healthy
environment, the right to livelihood, and the right to sustainable development.
(1) The right to a clean and healthy environment
The FDRE Constitution is one of the constitutions in the world that explicitly recognizes
the right to live in a clean and healthy environment. Art 44(1) declares that ‘all persons
have the right to a clean and healthy environment’. It finds place in the Chapter dealing
with ‘Fundamental Rights and Freedoms’ along with other precious rights of an individual,
such as the right of thought and expression, the right of assembly and demonstration, the
right of access to justice, and the right to property, to mention a few. Such a high place
accorded to it in the Constitution exhibits the country’s deep concern for the environment.
1
The Constitution of the Federal Democratic Republic of Ethiopia, Proclamation No. 1/1995.
2
Environmental Protection Authority and Ministry of Economic Development and Cooperation,
Environmental Policy (1997).
76
(2) The right to livelihood
Art 44(2) of the Constitution guarantees a person, who is displaced or has lost means of his
livelihood due to the implementation of State programs, the right to seek appropriate
compensation from the State. It reads:
All persons who have been displaced or whose livelihoods have

been adversely affected as a result of State programmes have the
right to commensurate monetary or alternative means of
compensation, including relocation with adequate State
assistance.
The right to livelihood, another aspect of the right to live in a clean and healthy
environment, can potentially check the Government’s actions and programs that threaten to
dislocate persons and thereby disrupt their right to livelihood.
(3) The right to sustainable development
Art 43(1) of the Constitution, inter alia, guarantees the people of Ethiopia ‘the right to
sustainable development’ and ‘the right to improved living standards’.
The right to sustainable development, as globally perceived, refers to the development that
meets the needs of the present generation without compromising the environmental needs
of its future generations. 3 Art 43(4) reiterates the underlying idea of sustainable
development i.e. development through rational and prudent use of the environmental
resources. In pursuance of the right to sustainable development, Ethiopia, by virtue of art
43(3), is required to see to it that its international agreements and relations, concluded,
established or conducted, with other states protect and ensure the right to sustainable
development.
The right to improved living standards, obviously, has reference to the better quality of life
in terms of environment as well as other basic needs and comforts.
Against this backdrop, it is significant to note that art 89 of the Constitution, which outlines
‘economic objectives’, inter alia, refers to the Government’s duty to hold, on behalf of the
People, land and other natural resources and to deploy them for the common benefit and
development of the People.4
B. The constitutional imperatives of the right to a clean and healthy environment and of
the right to sustainable development
The constitutional significance of arts 43 and 44 and of the fundamental rights guaranteed
thereunder can be realized when one recalls the provisions of arts 13 and 105 of the
Constitution. The former imposes on the Federal and the States legislative, executive and
judicial organs ‘the responsibility and duty to respect and enforce’ the Fundamental Rights.
3
See, World Commission on Environment and Development, Our Common Future (1987) 43.
4
Art 89(5), FDRE Constitution.
77
While art 105 mandates that arts 43 and 44 and the rights guaranteed thereunder, being
Fundamental Rights, can be amended only when (i) all the State Councils, by a majority
vote; (ii) the House of Peoples’ Representatives, by a two-thirds majority vote, and (iii) the
House of Federation, by a two-thirds majority vote, approve the proposed change(s).
C. Environmental objectives
The Constitution also enumerates a set of ‘environmental objectives’ and places them
under the chapter dealing with ‘National Policy Principles and Objectives’. These
objectives are placed along with the ‘principles’ for ‘external relations’ and ‘national
defence’, and ‘political, economic, social and cultural objectives’. Such a constitutional
treatment and status accorded to them, obviously, exhibit the prime concern of the
Ethiopian Government for ‘environment’. Art 92, listing these environmental objectives,
reads:
1. Government shall endeavour to ensure that all Ethiopians live in a clean

and healthy environment.
2. The design and implementation of programmes and projects of
development shall not damage or destroy the environment.
3. People have the right to full consultation and to the expression of views in
the planning and implementation of environmental policies and projects
that affect them directly.
4. Government and citizens shall have the duty to protect the environment.
Art 92, thus, not only reiterates the fundamental right to live in a clean and healthy
environment but also imposes a corresponding constitutional ‘duty’ on the Federal and the
Regional Governments, along with citizens, ‘to protect the environment’. In the same spirit,
it expects the Governments to ensure that development projects and programs do not
damage or destroy the environment. It also assures Ethiopians that they have the
constitutional right to participate in the planning and implementation of environmental
policies and projects that affect them directly.
These ‘environmental objectives’ are not merely pious or cosmetic constitutional

declarations. Art 85(1) of the Constitution mandates all organs of the Federal and Regional
Governments ‘to be guided’ by these ‘objectives’ in implementing the Constitution, other
laws and public policies. The objectives, thus, do acquire the status of ‘guiding principles’
in the State Governance.
D. International environmental obligations- the Fundamental Principle
Art 9(4) of the Constitution, one of the fundamental principles of the Constitution, makes
international agreements ratified by Ethiopia an integral part of its domestic law. It states
that ‘All international agreements ratified by Ethiopia are an integral part of the law of the
land’.
No other substantive step, except a Proclamation ratifying the convention, is required to

make a ratified agreement an integral part of the Ethiopian law. The President of Ethiopia
78
has to proclaim it in the Negarit Gazeta 5 and the Judiciary, along with the Executive, has
to take its judicial notice.6
1.3 Environmental Policy: Goal, Objectives, Key Guiding Principles, and

Implementation Strategy
The Environmental Protection Authority Establishment Proclamation No. 9/1995, which

came into force on August 24, 1995, i.e. three days after the FDRE Constitution came into
force, established the Environmental Protection Authority (hereinafter the Authority), inter
alia, to prepare environmental protection policy and laws. 7 It accomplished its task on
April 2, 1997 by completing the EPE.
In the backdrop of the environmental philosophy and spirit of the fundamental rights to live
in a clean environment and to sustainable development, the EPE offers a structural and
strategic policy-blueprint of the environmental governance in Ethiopia. The structural and
strategic paradigm of the EPE is designed in the light of, and guided by, the well articulated
‘Overall Policy Goal’ and ‘Specific Policy Objectives’. The ‘goal’ and ‘objectives’, in turn,
are premised on, and built around, the eleven ‘Key Guiding Principles’.8
1.3.1 Environmental Policy: the Goal, Objectives and Key Principles
A. The overall policy goal
The overall policy goal is two-fold, namely, the improvement and enhancement of the
health and quality of life of Ethiopians, and promotion of sustainable development. The
former gives stress on the improvement of the environment for realizing the constitutional
right to a clean and healthy environment. While the latter gives, prominence to the
balancing of environmental needs and interests of the present and of the future generations.
B. The specific policy objectives
The Specific Policy Objectives of the EPE, which set comparatively more specific policy
goals for the environmental law, are: (i) to ensure that essential ecological processes and
life support systems are sustained, biological diversity is preserved, and renewable natural
resources are used in such a way that their regenerative capabilities are maintained and that
the needs of future generations are not compromised, (ii) to ensure that the benefits of
exploitation of non-renewable resources are also extended to the future generation, (iii) to
prevent the pollution of land, air and water in the most cost-effective way so that the cost of
effective preventive intervention does not exceed the benefits; (iv) to ensure peoples’
participation in the eco-management, (iv) to improve the environment of human
settlements in such a manner that satisfies the physical, social, economic, and cultural
5
Art 71 (2), ibid.
6
Art 2(3), Proclamation No. 3/1995.
7
Art 6, Proclamation No. 9/1995.
8
Paras 2.1-2.3, EPE.
79
needs of the inhabitants, and (v) to enhance public awareness and understanding about the
link that exists between development and environment.
C. The key guiding principles
The ‘key guiding principles’ are the principles on which the ‘overall policy goal’ and the
‘specific policy objectives’ are based. These ‘key guiding principles’, the EPE hopes, will
help the policy-makers in shaping subsequent environmental policies, strategies and
programs and their implementation. These principles, according to the EPE, will also help
them in ensuring consistency in the sectoral and cross-sectoral environmental policies dealt
with under the EPE. Some of the pertinent ‘key guiding principles’ are: (i) every person has
the right to live in a healthy environment, (ii) the development, use and management of
renewable resources need to be based on sustainability, (iii) the use of non-renewable
resources need to be minimized and where possible their use should be extended through
recycling, (iv) when a compromise between short-term economic growth and long-term
environmental protection is necessary, the compromise should be in favor of protection of
the environment, (v) environmental protection should be made an integral part of
development planning, (vi) regular and accurate assessment and monitoring of
environmental conditions should be undertaken and the information relating thereto should
be widely shared with the public, (vii) increased awareness and understanding of
environmental and resource issues should be promoted by policy makers, government
officials, and the population, (viii) a ‘conservation culture’ in environmental matters among
all levels of society should be encouraged, and (ix) an integrated implementation of cross-
sectoral and sectoral policies and strategies should be perceived as a pre-requisite for
attaining objectives of the EPE.
D. The sectoral and cross-sectoral policies
The EPE also formulates a set of comprehensive sectoral and cross-sectoral environmental
policies. The former signify that the environmental policy, to be comprehensive, needs
certain policy-oriented approach to other inter-related sectors of the environment. While
the latter signify the need to tackle, with specific goals, other related sectors, social as well
as economical, to make the environmental policy more effective and holistic. As stated
earlier, environmental policy of a State is influenced by a number of other related policies.
The EPE, with an inimitable vision, has outlined environmental policy in terms of policy
statements pertaining to varied inter-related sectors and cross-sectors9 in a single document
so that a goal-oriented comprehensive environmental policy of Ethiopia emerges
therefrom.
A careful reading of the sectoral and cross-sectoral environmental policies reveals their
stress on safeguarding the environment and emphasis on the sustainable, judicious, and
eco-friendly use of the environmental resources. These policy propositions, with contextual
9
Paras 3.1-3.10 & 4.1-4.10, ibid. Nevertheless, Ethiopia has a couple of policy documents on specific
issues. See, the National Population Policy (1993), the National Biodiversity Policy (1997), the Economic
Policy (1998), the Federal Water Resource Management Policy (1998), and the Agricultural and Rural
Development Policies and Strategies (2002).
80
variations, also propagate a blend of protective, preventive, precautionary, and conservative
approaches to, and strategies for, the protection and use of the environmental resources.
Out of these, Environmental Impact Assessment (EIA), as a means of assessing in advance

the adverse impacts of any developmental activity on the environment and of incorporating
an appropriate measure in the development plan itself, figures more prominently in the
EPE. Further, the ‘Environmental Information System’ asserts that the right to live in a
clean and healthy environment ‘carries with it the right to be informed about environmental
issues’.
1.3.2 The Implementation Strategy
In consonance with the constitutional spirit and in the light of its ‘overall goal’, the
‘specific policy objectives’ and the ‘key guiding principles’, the EPE, in its last segment,
also indicates the way to implement the environmental policy. It visualizes an institutional
mechanism that gives political as well as popular support to the sustainable use and
effective management of natural and environmental resources at all the levels from the
Federal down to the Wereda and community levels.
The legal instruments designing institutions and strategies for conservation, development
and management of natural and environmental resources, the EPE stresses, should be in
conformity with the Constitution, especially with respect to the decentralization of power;
harmonization of sectoral interests, and integration of environmental planning with
development planning.
With a view to avoiding conflict of interests, the EPE proposes that the task of developing
and managing natural resources, as a matter of policy, should be assigned to one
organization and that of environmental protection, regulation and monitoring to another. It
suggests that the enforcement and administration of environmental laws and regulations
should be assigned to (the Federal and Regional) courts.
1.3.3 Significance of the Environmental Policy
The environmental policies and strategies reflected in the EPE are not mere pious
declarations or wishful thoughts of their author, the Authority. It seems that they have
emerged after considerably intensive deliberations among members of the Authority, a
multi-Ministerial statutory body. It was composed of the Minister of Agriculture, the
Minister of Trade and Industry, the Minister of Health, the Minister of Mines and Energy,
the Commissioner of the Science and Technology Commission, the Minister of Water
Resources, and the General Manager of the Authority.10 Further, it is equally significant to
note that the Conservation Strategy of Ethiopia (CSE),11 a multi-volume report, dealing
extensively with the principles, guidelines and strategies for the effective management of
the environment and sustainable development of the country, has played a crucial role in
10
11
Environmental Protection Authority and Ministry of Economic Development and Cooperation,
Conservation Strategy of Ethiopia, vols I-V (1996).
81
shaping the EPE. It seems that the Authority has drawn inspiration from, and heavily relied
upon, the second volume of the CSE, captioned ‘National Policy on Natural Resources and
the Environment, in its formulation of the EPE.
Further, the EPE is also endorsed by the Federal Council of Ministers in April 1997 itself.
The seal of approval by the Council of Ministers added further impetus, legal as well as
political, to the EPE and to the environmental policy-objectives, principles, and strategy-
incorporated therein.
2. Environmental Law of Ethiopia: A Policy-Oriented Analysis

2.1 Environmental Law of Ethiopia: Legislative Framework
In the backdrop of the environmental policy, let us now have a ‘closer look’ at the
environmental law of Ethiopia.
Environmental laws of Ethiopia can conveniently be grouped into two broad categories
based on their underlying motivational sources. First, the Proclamations enacted by the
Parliament for giving effect to the environmental policy reflected in the FDRE Constitution
and the EPE. Second, the Proclamations giving effect to international environmental
obligations of Ethiopia.
However, at the outset we want to make it clear that in this paper we will confine ourselves
to, and concentrate on, the post-FDRE Constitution Proclamations that intend to translate
environmental policy of Ethiopia into the law. Therefore, Proclamations or other
instruments having the force of law, or that dealt with, or had bearing on, one or the other
aspect of the environment, and emanated from, or prevailed during, the erstwhile imperial
regimes, the Dergue regime or the period of the Transitional Government, will not figure in
the present paper. This is appreciatively done for two obvious reasons. First, the present
writer, as mentioned in one of the opening paragraphs of the paper, is merely interested in
having ‘a closer look’ at the existing environmental policy and law of Ethiopia. Secondly,
the pre-FDRE Constitution legislative instruments, dealing with, or having bearing on, the
environment, in the present submission, do not qualify to be labeled as ‘environmental
law’, in the strict sense of the terms, as the connotations ‘environment’ and (the
consequential) ‘environmental law’ paved their way in the arena of ‘law’ and thereby
became amenable to legal discourse only after the UNCHE (1972). At the most, these
instruments may be termed as ‘incidental’ environmental laws as their ‘prime objective’
was not the protection of the environment. Similarly, we will not undertake any analysis of
the Proclamations that, by virtue of art 9(4) of the FDRE Constitution, have given effect to
the international environmental obligations of Ethiopia.
In fact, the FDRE Constitution, by conferring on individuals the right to have a clean and
healthy environment and on Ethiopians the right to improved living standards and to
sustainable development and creating a corresponding constitutional duty on the
Government to make every possible effort to ensure that Ethiopians live in a clean and
healthy environment and not to, through its programmes and projects of development,
destroy or damage it, and on the Ethiopians to protect the environment, has envisaged a
82
great role of (environmental) law in the realization of these constitutional rights and in the
protection and improvement of the environment.
However, the Federal Legislature, except enacting the Proclamation No. 9/1995
establishing the EPA and assigning to it, inter alia, the task of formulating environmental
policy, did not until 2002 show much enthusiasm in using law in the environmental
governance. In the absence of sound environmental policy until 1997, the legislative
inaction can understandably be appreciated. However, not a single Proclamation, dealing
with environment, emanated from the Parliament between 1997 and 2002 even though the
EPE was ready to translate itself into law. Only in October 2002, it, through the
Environmental Protection Organs Establishment Proclamation No. 295/2002 (hereinafter
the EPO Proclamation), has ‘re-established’ the Environmental Protection Authority
(hereinafter the EPA) and repealed the Proclamation No. 9/1995.
Nevertheless, the EPO Proclamation carries significance in the Ethiopian environmental

law regime for two reasons. First, it is the first Proclamation in the series of the
Proclamations that are tuned, contextually, thematically as well as operationally, to the tone
of the EPE. With a view to avoiding conflict of interests between the organizations that are
responsible for the environmental development and management activities, on the one
hand, and the organizations responsible for the environmental protection, regulation and
monitoring, on the other, as proposed in the EPE, 12 it, inter alia, re-structured the EPA. It,
again in tune with the EPE, seeks to establish a ‘system’ that fosters coordinated but
differentiated responsibilities of environmental monitoring at the Federal and Regional
levels. Secondly, it has set in motion the EPA, an autonomous public institution of the
Federal Government, headed by, and accountable to, the Prime Minister, to see that the
‘environmental objectives’ reflected in the FDRE Constitution and the basic principles set
out in the EPE are realized.
In pursuance of the EPE, the Environmental Impact Assessment Proclamation No.

299/2002 (hereinafter the EIA Proclamation) and the Environmental Pollution Control
Proclamation No. 300/2002 (hereinafter the EPC Proclamation), dealing respectively with
EIA and environmental pollution control, followed in December 2002 the EPO
Proclamation.
These three Proclamations, in fact, constitute the core of the Ethiopian environmental law
regime. They, among other things, deal with protection of the environment, the
safeguarding of human health and well-being, the prevention of pollution, the
environmental standards and enforcement thereof, the enforcement mechanism, and
environmental impact assessment.
2.2 Environmental Law of Ethiopia: Structural Paradigm
Now, we will have a closer look at the structural framework of the environmental law that
emerges from the EPC and the EIA Proclamations, the two core substantive environmental
law instruments.
12
Preambulary para 1, EPO Proclamation.
83
Realizing the fact that some socio-economic development activities may be harmful to the
environment, the EPC Proclamation, through appropriate measures and strategies,
endeavors to mitigate the environmental pollution. While the EIA Proclamation, realizing
that adverse impacts of a development activity on the environment can be predicted and
assessed in advance and accordingly apt measures can be taken to arrest those effects or
risks, provides for a mechanism of EIA.
2.2.1 The EPC Proclamation
The EPC Proclamation, inter alia, prohibits a person from polluting or causing any other
person to pollute the environment in violation of the ‘environmental standards’ (hereinafter
ESs) to be set by the EPA. Causing environmental pollution is an offence under the
Proclamation. 13 It authorizes the EPA or the relevant Regional Environmental Agency
(hereinafter the REA) to take an apt administrative or legal measure, including the closure
or relocation of an enterprise, against such a person. A polluter is required to clean up or
pay the cost of cleaning up the polluted environment as determined by the EPA or the
REA.14
For the purposes of preventing environmental pollution, the Proclamation mandates the
EPA to formulate practicable ESs. Art 6 (1) runs:
In consultation with competent agencies, the Authority shall formulate

practicable environmental standards based on scientific and
environmental principles. The sectors that require standards shall include
at least the following:
(a) Standards for the discharge of effluents into water bodies and sewage
systems.
(b) Air quality standards that specify the ambient air quality and give the
allowable amounts of emission for both stationary and mobile air
pollution sources.
(c) Standards for the types and amounts of substances that can be
applied to the soil or be disposed of on or in it.
(d) Standards for noise providing for the maximum allowable noise level
taking into account the settlement patterns and the availability of
scientific and technological capacity in the country.
(e) Waste management standards specifying the levels allowed and the
methods to be used in the generation, handling, storage, treatment,
transport and disposal of the various types of waste.
However, art 6(3) authorizes the EPA to prescribe different ESs for different areas for
protecting the environment or rehabilitating it. Art 6(5) also empowers it to waive, for a
fixed period, compliance with some requirements of specified ESs for promoting ‘public
13
For details, see ‘4.2 Operational Strategies’, infra.
14
Art 3, EPO Proclamation.
84
benefit’. A Regional State, based on its specific situation, can adopt ESs stringent than that
stipulated by the EPA. However, it, by virtue of art 6(4), is not permitted to adopt the
standards that are less rigorous than those set by the EPA.
The Proclamation provides for the enforcement of ESs through the ‘Environmental
Inspectors’ (EIs) to be appointed by the EPA or the relevant REA. 15 For effective
implementation of these standards, it also imposes certain duties on individuals and creates
a set of offences for their failures.16
The Proclamation does not allow a person to handle, store or dispose any hazardous waste,
radioactive substance, or hazardous chemicals without having a license from the EPA or
the relevant REA to this effect. A person engaged in handling of hazardous waste is
required to take appropriate precaution to prevent any damage to the environment or to
human health or well-being. A person engaged in the preparation, manufacturing or trading
in hazardous substance or hazardous chemical is required to ensure that the chemical is
registered, packed and labeled as per the applicable standards.17
By virtue of art 5 of the Proclamation, all urban administrations in the country are duty-
bound to ensure that the collection, transportation, and, as appropriate, the recycling,
treatment, or safe disposal of municipal waste is carried out through an integrated
municipal waste management system. And the EPA, in collaboration with the relevant
REA, is required to monitor and evaluate adequacy of the system and to ensure its
effectiveness.
2.2.2 The EIA Proclamation
The EIA Proclamation intends to ensure development without unacceptable adverse

impacts on the environment. It aims to integrate environmental considerations in the
development planning process so that natural resources are used in a responsible manner
and thereby the environment is protected. It endeavors to ensure eco-friendly development.
It, inter alia, empowers the EPA, through Directive, to determine the categories of
development projects that are/are not likely to have negative impacts on the environment.
The development projects that fall in the category of activities that entail adverse impacts
on the environment require EIA. 18 A proponent, who initiates a development activity that
finds place in the list of the activities that are likely to have adverse impacts on the
environment, is required to get the EIA done before the proposed project is launched. For
this purpose, he is obligated: (i) to identify the likely adverse impacts on the environment
15
Arts 7-9, ibid. For details see, ‘4. Implementation of Environmental Law: Institutional Framework and
Operational Strategies’, infra.
16
Arts 12-17, ibid. For details see, ‘4.2.1.2 Environmental Crimes and Penal Sanctions: A Strategy for
Controlling Environmental Pollution’, infra.
17
Arts 4 & 5, ibid.
18
Art 5(1), EIA Proclamation. The EPA has identified major activities that require/not require EIA. See,
Environmental Protection Authority, Environmental Impact Assessment Procedural Guideline Series 1
(2003). For comments on EIA, see Mellese Damtie and Mesfin Bayou, Overview of the System of
Environmental Impact Assessment in Ethiopia: Gaps and Challenges (2007).
85
of his project, (ii) to incorporate in the design of his project the apt means of their
prevention or containment, and (iii) to get an Environmental Impact Study Report (EIS
Report) prepared, at his cost, by experts.19 The EIS Report is required to contain ‘sufficient
information’ to enable the EPA or the concerned REA to determine as to whether the
proposed project should or should not be allowed to proceed. An EIS Report, as a rule, is
required to include in it a description of: (i) the nature of the project, including the
technology and processes to be used, (ii) the content and amount of pollutants that are
likely to be released during operation of the project, (iii) source and amount of energy
required for its operation, (iv) likely trans-regional environmental impacts of the project,
(v) characteristics and duration of all the estimated environmental impacts, (vi) measures
proposed to eliminate, minimize, or mitigate the identified negative impacts, (vii)
contingency plan in case of accident, and (viii) procedures designed for self-auditing and
monitoring of the activity during its operation.20 Then, he is required to submit the EIS
Report, along with its brief summary in non-technical terms and necessary documents, to
the EPA for review and necessary approval, if the proposed project is subject to licensing,
execution or supervision by a Federal agency or when it is likely to produce trans-Regional
impacts. Otherwise, he is required to submit it, for review and approval, to the REA where
he plans to launch the project.21
The EPA or the relevant REA, before it reviews the Report, has to make it available to the
public and experts and to solicit their comments. Then, it has to evaluate the Report in the
light of the comments received from public and experts as well as from the communities
that are likely to be affected by implementation of the project.22 After review, the EPA or
the relevant REA, may: (i) approve the project and issue the required authorization, (ii)
approve the project and issue authorization with ‘conditions’ that the proponent should
fulfill, or (iii) refuse implementation of the project, if it is convinced that the negative
impacts cannot be satisfactorily avoided.23 In case of conditional approval, the proponent is
under legal obligation to fulfill the terms and conditions attached with the authorization24
and the EPA or the relevant REA is to monitor and evaluate the compliance.25 Failure on
part of the proponent to comply with the conditions may warrant a fine in amounting
between 10,000 and 20,000 Birr,26 suspension or cancellation of the authorization, and the
consequential suspension or cancellation of the license.27
Every licensing agency is under legal obligation, prior to issuing an investment permit or a
trade or an operating license for any development project, to ensure that the EPA or the
relevant REA has authorized its implementation.28
19
Art 7, ibid.
20
Art 8, ibid.
21
Art 14(1), ibid.
22
See, arts 9(2) & 15, ibid. Also see art 6(3).
23
Art 9(2), ibid .
24
Art 7(4), ibid.
25
Art 12(2), ibid.
26
Art 17(4), ibid.
27
Art 12(3), ibid.
28
Art 3(3), ibid.
86
The Proclamation provides for incentive as well as punitive measures for ensuring EIA of
development projects.
3. Implementation of Environmental Law: Institutional Framework and Operational

Strategies
3.1 Institutional Framework
A careful look at the EPC and the EIA Proclamations discloses that the EPA is entrusted
with the task of environmental protection.
3.1.1 The EPA- the Old and the Re-structured: Change in Philosophy and Role
Perception
The prime ‘objective’ with which the Authority was created in 1995 was ‘to ensure that all
matters pertaining to the country’s social and economic development activities are carried
out in a manner that will protect the welfare of human beings as well as sustainably protect,
develop and utilize resource bases on which they depend for survival’.29 It was composed
of two components, the General Manager [with the Deputy General Manager] and the
Environmental Protection Council (EPC). The latter was composed of: (i) an official
(designated by the Government-Chairman), (ii) the Minister of Agriculture, (iii) the
Minister of Trade and Industry, (iv) the Minister of Health, (v) the Minister of Mines and
Energy, (vi) the Commissioner of Science and Technology, (vii) the Minister of Water
Resources, and (viii) the General Manager of the Authority. 30 The General Manager was
the Chief Executive Officer of the Authority. The EPC had twin powers, i.e., (i) to
deliberate upon policy matters concerning environmental protection and to submit (to the
Council of Ministers) recommendations thereon, and (ii) to evaluate and approve directives
and standards issued by the Authority. 31
The Authority, as a composite legal entity, was, inter alia, charged with the responsibility
of: (i) preparing environmental protection policy and laws, and, upon approval, following
up their implementation, (ii) preparing standards that help in the protection of soil, water
and air as well as the biological systems they support, and following up their
implementation, (iii) recommending the application of diverse encouragement and
regulatory measures for the better protection of the environment, (iv) following up of the
implementation of international treaties on environmental protection to which Ethiopia is a
party, (v) providing instructions required for enhancing awareness of the need for
environmental protection, and (vi) rendering advice and technical support to Regions on
environmental protection. 32
The EPO Proclamation re-structured the Authority with renewed philosophy and assigned
it much more extended and varied roles to translate the constitutional rights to a clean and
healthy environment and to sustainable development, and the EPE objectives, into a reality.
29
30
Art 8, ibid.
31
Art 10, ibid.
32
Art 7, ibid.
87
The EPA is created with the objective of formulating and implementing policies, strategies,
laws and standards that foster socio-economic development that sustains longer and
protects the environment. 33 It, unlike its predecessor, is accountable to the Prime
Minister.34
The re-structured EPA, however, like the Authority, has two basic components with
different nomenclatures, namely, the executive and policy-making. Director General,
appointed by the Government, Heads the EPA, directs and administers its activities. 35
While the Environmental Council (EC) comprises of the Prime Minister (or his designee)-
Chairman, members to be designated by the Federal Government, a representative
designated by each National Regional State, a representative of: the Ethiopian Chamber of
Commerce, the local NGOs, the Confederation of the Ethiopian Trade Unions, and the
Director General of the EPA. 36 Responsibilities of the EC are: (i) to review proposed
environmental policies, strategies and laws, and issue recommendations to the
Government, (ii) to evaluate and provide appropriate advice on the implementation of the
EPE, and (iii) to review and approve directives, guidelines and ESs prepared by the EPA.37
The EPA, as a composite legal institution, is entrusted with a variety of (26) powers and
duties. These powers and duties can, for clarity and brevity, be grouped into seven thematic
heads, namely, (i) formulation of environmental policies, laws and their enforcement, (ii)
setting ESs and their enforcement, (iii) EIA, (iv) collection and dissemination of
information about environmental matters, (v) participation in the formulation and
implementation of international environmental policy, (vi) co-ordination (research on
environmental protection and other activities), and (vii) advisory.38
A careful comparative look at the structural framework of the Authority and the EPA
discloses that the latter moves away from the multi-Ministerial-influence in the formulation
and implementation of environmental policies and laws. It gives representation to the
Federal and Regional Governments, the Ethiopian Chamber of Commerce, local NGOs,
and Trade Unions in the formulation of environmental policies, laws, strategies, and in the
approval of directives, guidelines and ESs prepared by the EPA, and implementation of the
EPE. It also reveals that it, among others, is made more responsive to the environmental
policies and objectives reflected in the Constitution as well as in the EPE and to their
realization. With this changed philosophy and role perception, it is assigned the overall task
33
Art 5, EPO Proclamation.
34
Art 3(2), ibid.
35
Arts 7(2) & 11(1), ibid.
36
Art 8, ibid. The first EC is constituted only on September 21, 2007. It consists of : (i) the Deputy Prime
Minister, Chairman, (ii) the State Minister, Ministry of Agricultural and Rural Development, (iii) the State
Minister, Ministry of Mines and Energy, (iv) the State Minister, Ministry of Water Resources, (v) the State
Minister, Ministry of Public Works and Urban Development, (vi) the State Minister, Ministry of Trade and
Industries, (vii) the Mayor, Addis Ababa City Administration, (viii) the Mayor, Dire Dawa City
Administration, (ix) the Head, National Regional States (all) (x) the President, Ethiopian Chamber of
Commerce, (xi) the President, Forum for Environment, (xii) the President, Confederation of Ethiopian
Trade Unions, and (xiii) the Director General, EPA.
37
Art 9, ibid.
38
Art 6, ibid.
88
of eco-management. To accomplish its task in a better way, the EPA is armed with the
thitherto unknown multifarious powers (like setting ESs and their compliance, power to
seek entry into any premise, and inspect anything while enforcing the ESs), equipped with
a variety of strategies (like establishing a system for EIA, carrying cost-benefit analysis of
development projects), and entrusted with certain duties (like liaising with competent
agencies for environmental protection, carrying studies for combating desertification and
mitigating the effects of draught on the environment and taking corrective measures).
3.1.2 Sectoral Units and Regional Environmental Agencies- A New Co-ordination

Institutional Strategy
The EPO Proclamation has brought in another significant change in the environmental
monitoring system. It mandates every Ministerial and Government Unit of the Federal and
Regional Governments to establish (or designate an existing one) an environmental unit
and to charge it with the responsibility of ensuring that activities of the Ministerial or
Government Unit are compatible with and carried out in accordance with the
environmental laws in vogue.39
It also mandates the Regional States, and the Addis Ababa and the Dire Dawa
Administrations to establish (or designate the existing one) an independent environmental
agency in the region. Such an institution is required to be premised on the EPE and the
CSE and to incorporate a decision making process that allows public participation. And the
REA be charged with the responsibility of: (i) coordinating the formulation,
implementation, review and revision of the regional conservation strategies, (ii)
monitoring, protecting and regulating the environment of the region, and (iii) ensuring the
implementation of the Federal ESs, or of the region’s own if they are not less stringent than
that of the Federal ones.40 The REA is also required to prepare periodic reports on the
status of environment and of sustainable development in the region and to submit them to
the EPA.41
3.2 Operational Strategies
In pursuance of its objective, the EPO Proclamation has conferred more than two dozens
‘powers and duties’ on the EPA. However, subsequently, within less than two months, two
of these powers and duties, namely, ‘setting of ESs and their compliance’ and the
‘establishing a system of EIA’, probably perceiving them as the most crucial strategies for
accomplishing the environmental objectives reflected in the Constitution and the EPE,
received legislative attention. The EPC Proclamation and the EIA Proclamation
respectively govern these two.
39
Art 14, ibid.
40
Art 15(1) & (2), read with art 2(8), ibid.
41
Art 15(3), ibid. However, it is not clear as to whether these reports are subject to review by the EPA.
89
3.2.1 Environmental Pollution Control: Strategy and Scheme
The EPC Proclamation, as mentioned earlier, mandates the EPA to lay down ESs for
different sectors of the environment. Discharge of effluents in the given environment in
excess of the stipulated standards amounts to ‘pollution’. It categorically prohibits a person
from polluting the environment. Art 3(1) states that ‘No person shall pollute or cause any
other person to pollute the environment by violating the relevant environmental standard’.
It makes an act of pollution, and acts related thereto, an offence.
A. Environmental standards: Norms and compliance with them
After taking into account the environmental standards prevalent in some of the developing
Asian and African countries, like Bangladesh, Pakistan, India, Jamaica, China, Thailand,
Uganda, Nigeria, Zambia, and Kenya, and looking into the relevant information obtained
from the UNEP, United Nations Industrial Development Organization (UNIDO), the
European Union, and the United States’ Environmental Protection Agency, the EPA has
prepared a set of ESs to be introduced throughout Ethiopia.42 However, a REA, taking into
consideration peculiar ecological conditions in the region, can have its own standards
provided they are not lesser stringent than that prescribed by the EPA.
However, these standards are merely provisional in nature and are not in operation as they
are still awaiting the requisite statutory approval of the EC.
The EPA or the concerned REA is mandated to ensure ‘compliance’ of the ESs through EIs
appointed by it.43 With a view to ensuring effective compliance with these standards, an EI
is empowered:
1. To seek entry into any land or premise at any time (which seems
appropriate to him) even without a court order or prior notice, if he
thinks that such a notice is likely to be prejudicial to the efficient
performance of his statutory duty.
2. To question any person alone or in the presence of witness.
3. To check, copy or extract of any paper, file or a document, which, in his
opinion, is related to pollution.
4. To take samples, in the presence of the proprietor or his representative, of
any material and to carry out or cause to be carried out tests thereof for
determining whether or not it causes harm to the environment or to life.
5. To take photographs, measure, draw, or examine any commodity, process
or facility for ensuring compliance of the Proclamation and/or any other
relevant law.
6. To seize any equipment or any other object that is believed to have been
used in the commission of an offence under the Proclamation and/or any
other relevant law.
42
See, Environmental Protection Authority, Provisional Standards for Industrial Pollution Control in
Ethiopia (2007).
43
Art 7(1), EPC Proclamation.
90
7. To specify a person the matter constituting contravention of the
Proclamation and/or of any other relevant law, and to specify the measures
that he needs to take to remedy the contravention within the stipulated
period.
8. To suggest corrective measures to be taken immediately, including
cessation of the activity, when he suspects that an activity may cause
damage to the environment.44
With a view to ensuring unreserved compliance with the ESs, the Proclamation also
mandates a person, natural as well as juridical, not to hinder or obstruct an EI in the
execution of his duty.
The EPA or the relevant REA is empowered to take any administrative or legal measure,
including the closure or relocation of an enterprise, if it, in its opinion, poses a risk to
human health or to the environment.
B. Environmental crimes: A strategy for controlling environmental pollution
One of the prominent strategies employed for combating environmental pollution is the
creation of environmental crimes and subjecting their perpetrators to severe punitive
sanctions. The EPC and the EIA Proclamations have resorted to this strategy.
The EPC Proclamation has created a set of offences relating to: (i) pollution, (ii)
environmental inspectors, (iii) records, and (iv) wastes and hazardous materials.
By virtue of art 3(1) of the EPC Proclamation, as mentioned earlier, no person is allowed to
pollute or to cause any other person to pollute the environment. And art 16 of the
Proclamation makes an act of discharging pollutants in the environment in violation of the
stipulated ESs an offence. The offence is punishable by a fine of not less than 1,000 Birr
and not more than 5,000 Birr or an imprisonment for a term between one year and ten
years, or both. And if the polluter happens to be a juridical person, its liability further
escalates. It is punishable by a fine amounting between 5,000 and 25,000 Birr and
imprisonment of the officer in charge for a term between five and ten years or by a fine
between 5,000 and 10,000 Birr or both.
The Criminal Code of 2004 (hereinafter the CC), 45 however, stipulates more severe
punishment for causing pollution. It provides for a fine of upto 10,000 Birr or rigorous
imprisonment for a term of up to five years for discharging, in contravention of the relevant
law, pollutants into the environment. If the pollution results in serious consequences on the
health or life of persons or on the environment, the term of rigorous imprisonment extends
up to ten years.46 The CC also provides for rigorous imprisonment for a term of upto fifteen
years if a person intentionally poisons a well, cistern, spring, water hole, river or lake.47
44
Art 8, ibid.
45
Proclamation No. 414/2004. It has revised and repealed the Penal Code of the Empire of Ethiopia, 1957.
46
Art 519, ibid.
47
Art 517(2), ibid.
91
Under the EPC Proclamation, the EIs are, inter alia, authorized to seek entry into any
premises, to inspect documents, to question a person, to take samples and to carry their
tests, and to seize any instrument. It also creates corresponding obligation on the persons
concerned to render the requisite assistance to him. Art 13 makes (i) any act of a person
that hinders or obstructs an EI in the execution of his duty, (ii) a failure of a person to
comply with lawful orders of an EI, (iii) a refusal to an EI to seek entry into any land or
premise, (iv) an act of hindering an EI from getting access to records, (v) an act of
preventing an EI from checking, copying or extracting any paper, file or any other
document, and (vi) withholding, misleading or giving wrong information to an EI, an
offence. Such a person, if happens to be a natural person, is punished by a fine of not less
than 3,000 Birr and not more than 10,000 Birr. If it happens to be a juridical person, its
liability extends to a fine of not less than 10,000 Birr and not more than 20,000 Birr and an
imprisonment (of the officer in charge) for a term between one year and two years or a fine
amounting between 5,000 and 10,000 Birr or both.
If a person, who, by virtue of the Proclamation or any regulation, is required to keep

records fails to do so or alters records, he is punishable by a fine of not less than 10,000
Birr and not more than 20,000 Birr.48
A person who fails to manage any hazardous waste or another substance according to the
relevant laws, mislabels or fails to label or in any way withholds information about any
hazardous waste or other material or attempts to take part or takes part or attempts to aid or
aids in the illegal traffic of any hazardous waste or other material is punishable by a fine of
not less than 20,000 Birr and not more than 50,000 Birr. If the person happens to be a
juridical person, it is punishable by a fine of not less than 50,000 Birr and not more than
100,000 Birr and the officer in charge to an imprisonment for a term between five and ten
years, or a fine of not less than 5,000 Birr and not more than 10,000 Birr or both.49
In addition to these specified penal sanctions, the Proclamation contains two additional
punitive clauses. Art 12, which is a sort of residuary penal provision, deals with the
punishment for the acts that amount to offences under the Proclamation or any other law in
force but no punishment is provided therefor either in the Proclamation or the Penal Code
of 1957. It provides for a fine of not less than 5,000 Birr and not more than 10,000 Birr or
an imprisonment for a term up to one year or both, if the offender happens to be a natural
person. And if the perpetrator happens to be a juridical person, the punishment provided for
is a fine of not less than 10,000 Birr and not more than 20,000 Birr. However, if the
juridical person happened to be in charge and had knowledge about the commission of the
offence but failed in his duty to avert it, he would be ordered to pay a fine of not less than
5,000 Birr and not more than 10,000 Birr or to undergo an imprisonment for a term up to
two years or to bear both. However, art 12(3) makes the punishment prescribed under the
Proclamation inapplicable if the punishment provided for the offence by the Penal Code
(now CC) is more severe.
48
Art 14, EPC Proclamation.
49
Art 15, ibid.
92
Art 17 of the Proclamation, inter alia, empowers the trial court, in its discretion, to order
confiscation of ‘any thing used in the commission of the offence in favor of the State or to
dispose it of in any other way’ and to order the offender to bear the cost of cleaning up and
disposing of the substance, chemical or equipment.
The EIA Proclamation also creates a set of environmental crimes for ensuring EIA.
Without prejudice to the relevant provisions of the Penal Code (now CC), it provides for
criminal liability for operating a development activity without obtaining the requisite
authorization from the EPA or the relevant REA,50 making a false presentation in the EIS
Report, failing to keep the required records, and failing to fulfill conditions attached with
the authorization. The first two offences are made punishable by a fine ranging in between
50,000 Birr and 100,000 Birr, while the latter two are made punishable by a fine of not less
than 10,000 Birr and not more than 20,000 Birr. It also provides for an additional fine of
not less than 5,000 Birr and not more than 10,000 Birr for a Manager if he failed to
exercise his due diligence.
The CC also labels certain acts contrary to EIA as offences. It provides for simple
imprisonment for a term of up to one year for a person who implements a development
project requiring EIA without obtaining the requisite authorization or makes a false
statement concerning EIA.51
C. Restoration of damage to the environment: A strategy of the eco-management
The EPC and the EIA Proclamations, in addition to the penal sanctions mentioned here
before, also provide for restoration of the damage to the environment.
Art 17(c) of the EPC Proclamation empowers a trial court, in its discretion, to order the
person convicted under the Proclamation or Regulations issued thereunder to ‘restore to the
state in which the environment was prior to the infliction of the damage, and when such
restoration is not possible to pay appropriate compensation’. Similarly, art 18(5) of the EIA
Proclamation allows a trial court, before which a person is prosecuted for committing an
offence under the Proclamation and/or Regulations or Directives issued thereunder, in its
discretion, to, in addition to the penalty imposed, order the convicted person ‘to restore or
in any other way compensate for the damage inflicted’.
Art 3(4) of the EPC Proclamation, incorporating the ‘polluter-pays principle’, and also
empowers the EPA and the REA to ask a polluter to clean up or to pay the cost of cleaning
up the polluted environment.
D. Incentives: A strategy for preventing environmental pollution
The EPC Proclamation allows the EPA to exempt any new imported equipment for
controlling pollution from customs duty. The Council of Ministers is expected to issue a
50
Art 18(2), EIA Proclamation. It seems that the Printers have inadvertently omitted some material part
from the provision.
51
Art 521, the CC.
93
Regulation providing incentives for the existing undertakings. 52 However, it has yet to
issue such a Regulation. Nevertheless, a Draft Regulation prepared in 2005 by the EPA,53
for consideration of the Council of Ministers, inter alia, indicates the following incentives.
Art 10 says:
10. Incentives:
1. An industrial enterprise that installs equipment to avoid the

generation or to recycle pollutants may be entitled to a 30 percent
depreciation allowance on such equipment.
2. An industrial enterprise that installs equipment to minimize the
generation of pollutants at least by 50 percent shall be granted a 15
percent depreciation allowance on the equipment.
3. Any equipment or spare-parts thereof destined to treat a pollutant
shall be exempted from all taxes.
4. The incentive rights granted under these Regulations shall not limit
the enjoyment of other rights provided for under other laws.
Similarly, the EIA Proclamation mandates the EPA and the REA to, within the means
available, ‘support implementation of a project destined to rehabilitate a degraded
environment’. It enables the EPA, within its capacity, to provide any environmental
rehabilitation, pollution prevention, or clean up project with financial and technical support
to cover additional costs.54
E. Public interest litigation: An innovative strategy of the environmental pollution

control
Art 3 of the EPC Proclamation empowers the EPA and the relevant REA to ‘take any
administrative or legal measure’, penal and/or civil, against a polluter. Nevertheless, art 11
of the EPC Proclamation grants ‘standing’ to a private individual for initiating action
‘against any person’ who is allegedly causing or is likely to cause damage to the
environment. It reads:
11. Right to standing
1) Any person shall have, without the need to show any vested interest,
the right to lodge a complaint at the Authority or the relevant
regional environmental agency against any person allegedly causing
actual or potential damage to the environment.
2) When the Authority or regional environmental agency fails to give a
decision within thirty days or when the person who has lodged the
complaint is dissatisfied with the decision, he may institute a court
52
Art 10, EPC Proclamation.
53
The Industrial Pollution Prevention and Control Regulation (2005).
54
Art 16(2), EIA Proclamation.
94
case within sixty days from the date the decision was given or the
deadline for decision has elapsed.
The phraseology of art 11 does not make it clear as to whether a private individual has
‘standing’ in initiating criminal as well as civil action against an actual or a potential
polluter. Some of the terms (like ‘vested interests’ and ‘complaint’) used in the article give
indication that he has ‘standing’ in initiating only a civil action, while others (like
‘instituting a court case’ and ‘damage to the environment’, which under the Proclamation
can be done only by violating the ESs and thereby committing an offence thereunder) rule
out such a restriction. Further, from the wordings of art 11(2) it becomes difficult to
ascertain the underlying legislative intent. The provision does not make it crystal clear as to
whether the EPA or the REA can/cannot be made a party to the ‘court case’, along with, or
in exclusion of, the alleged polluter. It leaves scope for two possible interpretations. A
complainant may argue that it will be difficult/impossible for him to know the ‘reasons’
and ‘factors’ that prompted the EPA or the REA for not taking a ‘decision’ or taking a
‘decision’ that is neither sound nor appealing unless the former is made a party to the case.
And it [the EPA or the REA] should be made accountable for failing in its statutory
obligation (of controlling environmental pollution). While the EPA or the REA may
oppose such a move on the ground that art 11 gives the complainant the ‘right to standing’
to initiate an action against a ‘person’ who is causing or is likely to cause ‘damage to the
environment’ and not against a supervisory body, like it. Both the arguments seem to be
equally appealing and fitting into the legislative intent reflected in art 11(2). 55 This sort of
ambivalence should be done away with by the Legislature.
Nevertheless, art 11, in the backdrop of art 33 of the Civil Procedure Code of 1965, which
lays down a general principle that ‘no person’ can be a plaintiff in a civil action ‘unless he
has vested interest in the subject-matter of the suit’, carves out an exception. It allows ‘any
person’, even having ‘no vested interest’, to initiate civil proceedings against a person who
is causing or is likely to cause damage to the environment. The phrases ‘any person’ and
‘without the need to show any vested interest’ used in art 11 are of wide amplitude. They
55
Recently, in Action for Professionals’ Association for the People (APAP) v Environmental Protection
Authority (Civil File No. 64902, Federal First Instance Court, October 31, 2006 [21.02.1999 (EC)]
(Unpublished), the first case instituted under art 11 of the EPC Proclamation, these viewpoints were
agitated before the Federal First Instance Court. The APAP, a social organization, after lodging a
complaint on December 8, 2005 with the EPA about pollution of Akaki and Modjo rivers caused due to
discharge of industrial effluents contrary to the EPC Proclamation and urging it to take immediate steps to
combat it. The EPA, on December 26, 2005, responding the complaint, pleaded that the environmental
standards are still in the draft form and are awaiting the EC’s approval and therefore they cannot be relied
upon for deciding whether the rivers are polluted or not. It also asserted that it has taken ‘all the necessary
measures’ to combat the pollution. The APAP, being dissatisfied, on March 16, 2006 approached the
Federal First Instance Court for seeking apt relief. It made the EPA a defendant. In its petition, APAP,
inter alia, urged the court: (i) to compel the EPA to take administrative and legal measures to stop the
alleged pollution, (ii) to direct the EPA to clean both the allegedly polluted rivers, and (iii) to institute
inspectors to ensure that the EPA takes the necessary measures. The court, on 31.10.2006 [21.02.1999
(EC)], ruled that art 11(2) does not permit APAP to sue the EPA. The present writer is told that the Court’s
ruling is challenged in the Federal High Court and it has decided to hear it. If the appeal is admitted, the
issue may probably resurface before the High Court.
95
enable environmentalists, public-spirited individuals, NGOs or organizations, to invoke art
11 in their fight against environmental degradation.
It enables a private individual to make the EPA and the REA more responsive to the
environmental protection and to make them to act with vigor to discipline actual and
potential polluters. It gives an opportunity to environmentalists, in the public interest, to
attract attention of the EPA and the REA to the environmental pollution when their EIs,
advertently or inadvertently, turn blind eyes to anti-environmental activities or deliberately
become inactive in discharging their statutory obligations.
However, it is pertinent to note a few pragmatic facts that diminish the practical utility of
art 11. When a private individual/an organization intends to institute or institutes a court
case against a person for causing or likely to cause damage to the environment, it may not
be easy for him/it to collect all the required information to substantiate his/its assertion in
the court. He/it does not have any authority to receive information from the polluter or
from the EPA or the relevant REA. By virtue of art 19 of the EPC Proclamation, a person
engaged in an activity pertaining to any of the provisions of the Proclamation (or any other
related law) is obliged to provide information to the EPA or the relevant REA, and only the
EPA has access to all environmental information. He/it also does not have any legal
authority to seek entry into the premises where alleged anti-environmental activities are
being carried out, to take sample of the effluents therefrom, or to inspect documents or
equipments. If he/it ventures to do so, he/it takes risk of being prosecuted for unlawful
trespass. All these powers, as mentioned earlier, vest with the EIs. Therefore, all the
required information can be accessed by, and is available to, the EPA or the relevant REA.
In the absence of such information, a complainant is bound to loose his case. Thus, art 11
practically turns out to be non-existent. However, with a view to overcoming the difficulty
and to making the ‘standing’ of a private individual more effective, environmental laws of
most of the countries, recognizing locus standii of private individuals in environmental
matters, have, through law, made it obligatory for the pollution control authorities to make
available, on demand, all the relevant information available with them to the individual
intending to institute a case against a polluter. 56 Similar provision, with requisite
modifications, may advisably be incorporated in the EPC Proclamation.
3.3 Grievance Redressal Mechanism
3.3.1 Redress of Grievance under the EPC Proclamation
The EPC Proclamation, as mentioned earlier, empowers the EPA to formulate ESs and to
ensure compliance to them through the EIs, who are armed with vast powers.
56
For example, in India the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention
and Control of Pollution) Act, 1981 oblige the Pollution Control Boards to disclose relevant internal
reports and information to a person seeking to prosecute a polluter. However, a Pollution Control Board is
allowed to withhold any report if it considers that disclosure would be against ‘the public interest’. While
in some jurisdictions, individuals are conferred with the right to information, which can be invoked to
obtain the requisite information from the environmental protection agencies.
96
A look at these powers convinces one that EIs need to be armed with these powers for
effective compliance of the standards even though some of the powers are drastic. Exercise
of most of the powers, obviously in the quest for controlling pollution, is left entirely to the
subjective satisfaction of the concerned EI. He is allowed to invoke them when he
apprehends that the ESs have been violated or are likely to be violated. Some of the
powers, if exercised capriciously or on unfounded apprehensions, may even go against the
spirit of some of the cherished rights, constitutional or statutory, of an individual. The
Proclamation merely expects an EI to ‘discharge’ his powers ‘with due diligence and
impartiality’.57 Nevertheless, exercise of these powers in a capricious manner or on some
unfounded apprehensions cannot be ruled out. The Proclamation does not hint at any
substantive or procedural restrictions on the EI. He is left entirely to his conscience and
sense of impartiality when he decides to invoke and exercise his powers.
However, the Proclamation provides for a right to appeal to the ‘Head’ of the EPA [i.e. the
Director General] or of the concerned REA by a person dissatisfied with any of the
measures taken by the EI. Such an appeal has to be made within ten days from the date on
which the EI has taken the measure. And if the ‘Head’ has not given any decision on the
appeal or has given a decision with which the person is not satisfied, he may, within thirty
days from the date on which the decision was given or the deadline for such a decision has
elapsed,58 institute a case in a Federal Court of First Instance or a designated regional court,
as the case may be.
However, in the absence of self-evident malafide actions of the EI, it would be difficult for
the aggrieved person to either convince the Head of the EPA (or of the REA) that the EI
did not exercise his powers ‘with due diligence and impartiality’, the phrase pregnant with
legal imprecision and of wide amplitude.
The Proclamation is silent about the way and the manner in which the ‘Head’ is expected to
handle the grievance at his hand. It seems that there is neither a Directive nor a Regulation
on the subject. Such a legal instrument, in the opinion of the present writer, is necessary
for, at least, two reasons: (i) it will streamline the decision-making process at the EPA and
the REA, and (ii) it will help to eliminate the apprehended departmental bias from the
decision-making process. An aggrieved person might apprehend that the institutional bias
might go in favor of the EI, an appointee of the ‘Head’. It is one of the settled principles in
administrative law that justice should not only be done but also should be seen to have been
done. Such an instrument, therefore, will do away with the apprehension and thereby will
boost his confidence (and that of others) in the decision-making process at the EPA and the
REA levels. It will also ultimately relieve the EPA and the REA from unwarranted court
proceedings.
Further, proving a case by an aggrieved person against the EI before the court, for the
reasons mentioned here before, is not an easy task. However, if he has been able to make
57
Art 7(2), EPC Proclamation.
58
Art 9, ibid. However, art 9(1) does not stipulate any deadline for the Head of the EPA or of the REA for
giving his decision. Therefore, a combined reading of art 9(1) & (2), in this context, exhibits some
legislative ambivalence.
97
out his case, the Proclamation is silent about the ‘relief’ he is entitled to as well as the kind
of ‘liabilty’ that can be imposed on the erred EI. It gives an impression that the EI, in the
name of seeking compliance with the ESs, is free to exercise his powers even in a
capricious manner with impunity. If the impression is correct, it, in the present submission,
deserves serious attention of the policy-makers. An appropriate inbuilt mechanism within
the administration of the EPA and the REA is, therefore, needed. Such a move will not
only boost confidence of the aggrieved persons in the grievance redressal mechanism
designed at the EPA, the REA and the judicial levels but will also desist the EIs from
exercising their powers on flimsy grounds.
3.3.2 Redress of Grievance under the EIA Proclamation
The EIA Proclamation empowers the EPA or the relevant REA, after evaluating an EIS
Report, to approve, refuse or allow with certain conditions the implementation of a
development project, and in the latter case to monitor their compliance. It also provides a
grievance procedure for a person who is dissatisfied with certain decisions of the EPA or
the relevant REA. Art 17 says:
17. Grievance Procedures
1) Any person dissatisfied with the authorization or monitoring or any

decision of the Authority or the relevant regional environmental
agency regarding the project may submit a grievance notice to the
head of the Authority or the relevant regional environmental agency,
as may be appropriate.
2) The decision of the head of the Authority or relevant regional
environmental agency shall, as provided under Sub Article (1) above,
be issued within 30 days following the receipt of the grievance.
The provision is self-explanatory. It enables a dissatisfied proponent to seek redress from

the Director General of the EPA or the Head of the relevant REA. They are obligated to
give their decision within thirty days from the receipt of the grievance notice.
For appreciating the nature and ambit of the grievance procedure, it is, however, necessary
to note two facts. First, the EPA or the relevant REA, after evaluating the EIS Report, is
empowered to approve, approve with conditions, or refuse an authorization for the
proponent’s project and to monitor the implementation of an authorized project and to
ensure the compliance of the conditions attached with the authorization. Secondly, the
Proclamation, unlike the EPC Proclamation, does not provide for any judicial remedy to a
proponent who is dissatisfied with any decision, including decision about the authorization
or monitoring thereof, of the EPA or the REA.
The absence of a provision in the Proclamation for seeking judicial redress against any
decision of the Director General of the EPA or of the Head of the REA leaves scope for
two conflicting views.
98
One may argue that the Proclamation excludes judicial review of decisions of the ‘Head’ of
the EPA and of the REA as it gives finality to the decisions. This view gets support from
the fact that the EPC Proclamation contains in it an explicit provision enabling a person
dissatisfied with the decision of the Director General of the EPA or of the Head of the REA
to seek judicial remedy. The absence of a similar provision in the EIA Proclamation
exhibits the legislative intent of keeping these decisions away from judicial scrutiny.
Further, one may even seek support from art 3, read with art 9, of the EPC Proclamation,
which excludes judicial review of certain decisions of the EPA and of the REA pertaining
to the control of pollution. The EPC Proclamation does not allow a polluter to seek judicial
review of: (i) any of administrative or legal measures taken against him by the EPA or the
REA, (ii) its order to install a sound technology for reducing or avoiding generation of
waste and to employ methods of recycling of waste, (iii) its order to clean up or to pay the
cost of cleaning up of the polluted environment, and (iv) order to close or relocate his
enterprise if it is posing threat to the human health or to the environment. The exclusion of
judicial review of decisions of the EPA and of the REA under the EIA Proclamation is,
therefore, in tune with the legislative policy of keeping decisions of the EPA and of the
REA beyond judicial purview.
One, however, may take a position that the absence of explicit provision for judicial redress
against the decisions of the Director General and of the Head of the REA in the EIA
Proclamation does not give finality to the decisions of the EPA or of the REA. Such an
argument finds its base in, and seeks support from, art 37 of the FDRE Constitution. It says
that ‘everyone has the right to bring a justiciable matter to, and to obtain a decision or
judgment by, a court of law or any other competent body with judicial power’. In no way,
he may argue, can the EIA Proclamation take away the constitutional right of access to
justice. A dissatisfied proponent, he may assert, therefore, cannot be precluded from
seeking judicial redress.
Both the views seem to be equally sound and convincing. We will have to wait until a test
case reaches to a court of law to know the judicial interpretation of art 17. However, the
present writer is inclined to prefer the second view for the simple reason that an ordinary
legislative instrument cannot vitiate a constitutional right.
Conclusions
The FDRE Constitution guarantees the fundamental right to have a clean and healthy
environment, the right to improved living standards and the right to sustainable
development. It also includes in it a set of well-articulated ‘environmental objectives’ and
accords them the status of ‘guiding principles’ in the state governance.
Immediately after the Constitution came into force, Ethiopia, in 1995, established the
Authority and assigned it, inter alia, the task of formulating Environmental Policy. It
accomplished its task in 1997 by formulating a comprehensive EPE. The EPE is premised
on, and is built around, the fundamental rights to live in a healthy environment and to
sustainable development, and the environmental conservation strategy. It also offers a set
of sound baseline principles for implementing the policy. The EPE is indeed in tune with
the international environmental policy and principles.
99
In pursuance of the EPE and the environmental spirit reflected in the FDRE Constitution,
the Federal Parliament, in 2002, restructured the EPA and armed it with a new set of
powers and duties. It also enacted other two core Proclamations for carrying out EIA and
controlling environmental pollution.
However, none of the two Proclamations is yet in operation. There are no environmental
standards to seek compliance for or no EIA norms to apply. In the absence of these
standards and norms, these anti-pollution Proclamations are still dormant in the statute
book. The EPA has prepared comprehensive ESs, EIA guidelines, and a few draft
Directives for effective environmental governance but they do not have legal force as they
have yet to receive the requisite approval of the EC. The EC, for the first time, was
constituted in September 2007. It has yet to convene its first meeting. Hopefully, these
environmental standards and guidelines will become operative very soon as the EC is set to
meet in the near future. It is hoped that EPA thereafter will start functioning with vigor to
combat the environmental pollution and to make every possible effort to see that very soon
the constitutional right of Ethiopians to live in a clean and healthy environment and the
right to sustainable development and to improved living standards become a reality.
However, in the meantime, it would be apt to pay due attention to some of the gray areas,
structural as well as operational, spotted in this paper to make the Ethiopian environmental
law regime more effective. There is a need to create some appropriate inbuilt-mechanism to
ensure that the EIs, who are armed with vast powers, do not exercise their powers in a
capricious manner and thereby put legitimate interests and rights of the persons at stake
with impunity. Similarly, the right to standing under the EPC Proclamation and the
mechanism for grievance redress designed under the EPC and EIA Proclamations, for the
reasons highlighted in the paper, deserve serious re-look.
The essence of the EPO, the EPC, and the EIA Proclamations may be clustered, with
appropriate thematic segments, in a single Proclamation. The suggestion, if acted upon,
will lead to a couple of advantages for the enforcing authorities as well as for the persons
concerned. A combined reading of the three Proclamations reveals that a couple of articles
are reproduced in more than one Proclamation.59 Such a repetition can, without loosing
context, be avoided in the suggested unified Proclamation. Some of the articles, when read
in the context of other Proclamations, sound inapt as they are, with elaboration, dealt under
some other Proclamations.60 Such provisions can be appropriately modified in the proposed
new Proclamation.
Lastly, in the opinion of the present writer, it is high time to undertake a decade’s review of
the achievements of the EPE to see how many of the policy-propositions, and the sectoral
and cross-sectoral environmental policies enumerated in the EPE are/are not given
59
For example, arts 2(1), 2(3), 2(6), 2(8), 2(12) of the EPO Proclamation are repeated in the EIA
Proclamation and the EPC Proclamation.
60
For example, arts 6(4) & 6(5) of the EPO Proclamation become obsolete in the light of the EIA
Proclamation. Similarly, arts 6(7), 6(10) & 6(15) of the EPO Proclamation, in the light of the EPC
Proclamation, warrant apt modifications.
100
legislative effect to and reasons therefor. Such an evaluation will reveal the extent to which
environmental policies have been translated into the law. It will also stimulate and initiate
legislative processes for translating the hitherto untouched/partially touched policy
statements into legislative propositions.
101
ON FORMATION OF A SHARE COMPANY IN ETHIOPIA
Seyoum Yohannes Tesfay*
Introduction
A share company does not spring into being spontaneously. It rather results from planning
and other preliminary arrangements by founders. These promotional activities of founders
may be classified into three categories. The first is discovery, which consists of finding the
business idea to be exploited. Investigation, the second category, involves research or
analysis to determine whether or not the proposed business idea is economically feasible.
The third category is assembly, which includes the dual process of bringing together the
necessary personnel, property and money to set the business in motion and involves the
secondary details of completing the formalities requisite to set up the company.1
Fraudulent or careless practice in this formation process can undermine permanently the
financial solidity, creditworthiness and profitability of the company. Such practice can also
jeopardize the legitimate interests of future creditors of the company.2 Many legal systems,
therefore, deem it necessary to provide safeguards to ensure that errors and malpractices
fatal to the company and future creditors do not take place. Ethiopian law too has rules and
institutions aimed at preventing malpractices and errors in the formation of a share
company. This article aims at critically examining these rules and institutions with a view
to throwing some light on those that lack clarity, identifying the lacunae, where any, and
making suggestions to plug the legal loopholes.3
To this end, the writer discusses the fundamental attributes of a share company that
underlie formation in the section that follows. In the third section, he deals with the seven
specific requirements for formation of a share company. Then follows section four where
he dwells on contracts concluded on behalf of a company in formation. Defective
formation and its consequences are analyzed in section five. In the very last section, the
author summarizes his major findings and makes some recommendations.
* Currently a Lecturer, formerly Assistant Dean of the Faculty of Law, Addis Ababa University. He holds
LLM from the University of Michigan Law School, Ann Arbor (2003), and LLB, from Addis Ababa
University Law School (1997). E-mail: dayaseyoum@yahoo.com
1
H.G.Henn and J.R. Alexander, Law of Corporations,(West Publishing Co., Hornbook Series, 1983) 237.
2
D.F. Vagts ‘Law and Accounting in Business Associations’ in A. Conard(ed), International Encyclopedia
of Comparative Law, ( Paul Siebeck, 1972)7.
3
To gain perspective, the writer has made use of literature in various foreign jurisdictions. As regards
terminology, words and terms used in Ethiopian law have been used instead of those in the references,
where it is believed that will not distort the ideas in the material being used. Corporation, promoters
and incorporators are terms that have been retained and recur particularly often in the article.
Comparable terms used under Ethiopian law are Share Company for corporation and founders for both
promoters and incorporators.
102
1. Nature of a Share Company
Understanding the nature or fundamental attributes of a share company helps shed some
light on the formation process and the reasons behind the rules on formation. For this
reason, one cannot help asking what a share company really is and its essential
characteristics that underlie the formation process.
No simple answer can be found for these questions. The answer may actually vary
depending on perspective and emphasis given to various theories. There are a number of
theories with differing levels of emphasis on specific features of the company. For
instance, the license theory tends to treat the share company as a passive devise wholly at
the mercy of the state for its characteristics. In this view, the share company is understood
as an entity of limited powers whose characteristics, powers and those of the individuals
with interest in it are wholly defined and limited by the state.4 The concession theory
according to which the corporation is created by a grant, from the state, of privileges to
form an artificial entity seems to be very close to this understanding of the corporation.
Hence, the corporation may be characterized as a legal construct having an existence
separate from that of the participants in the enterprise.5
Some, however, are of the view that the foregoing understandings tend to oversimplify the
reality of the corporate enterprise. According to Larry C. Backer, for example, it is
individuals that, in the very real sense, enjoy benefits, take the risks and assume
responsibilities we lump together under the legal concept of corporation. The principal
participants in the corporate enterprise are owners, managers, and employees while
creditors, suppliers, customers, franchisees etc…play a secondary role.6 So, the corporation
might be understood as a series of bargains between these actors with conflicting interests
and legally specified powers and duties.7 It seems, this view meshes in well with the “free”
or “normative” outlook according to which a corporation is formed by the voluntary act of
founders conforming to the general norms established by the legislature.8
The foregoing nuanced understandings make it clear that the exact nature of a share
company remains elusive. One should, however, note that the concept of Share Company is
a conclusory label, not an analytical tool. If consequences are said to flow from it, they are
statements of policy, not logical necessities.9 So, one should not overemphasize the role of
logic in the matter. The share company in Ethiopia is no exception to this. With this in
mind we will look at some of the features of a share company that the Ethiopian
Commercial Code of 1960, (hereinafter the Code), indicates help us understand its nature,
and hence the ideas that lie beneath the formation process.
4
L.C.Backer, Comparative Corporate Law: United States, European Uniorn, China and Japan (Durham:
Carolina Academic Press, 2002) 323.
5
R.M. Buxbaum, ‘The Formation of Marketable Share Companies’ A. Conard(ed), Internatioanal
Encyclopedia of Compartive Law,(Paul Siebeck 1975) 4.
6
L.C.Backer, Comparative Corporate Law, op cit, 304.
7
Id. 323.
8
R.M.Buxbaum, ‘The Formation of Marketable Share Companies’, Op. Cit,4
9
Id. 35.
103
According to the Code a share company is a legal person, whose liabilities are met only by
its assets.10 Members are liable only to the extent of the contributions promised but not
effectively made.11 So, understanding the nature of a share company, and hence the
formation process presupposes understanding the attributes of legal personality, the extent
of liability of shareholders and the related concept of capital. For this reason, a brief
discussion of the three follows.
1.1 Legal Personality
In spite of occasional refusal by courts and commentators to treat the company as really
separate from its shareholders that a share company and its ‘owners’ are distinct and
separate, each with different rights and obligations is thoroughly entrenched.12 The same
holds true in Ethiopia. The Code vests in a share company legal personality.13 The law
regulates this ‘singularity’ it ‘creates’. The nature of that regulation may depend on the
underlying understanding of that singularity. Therefore, the way in which different
jurisdictions approach corporate regulation is substantially affected by the underlying
understanding of the ‘corporate personality.’14 The same holds true regarding regulation of
the formation process.
As a legal person a company has certain powers ‘necessarily and inseparably incident to
every corporation’ such as the power to sue and be sued, the power to acquire capital by
selling its shares, the right to appoint agents, the power to compromise bona fide disputes
etc….15 The foregoing implies that it is the subject of rights and obligations, in its own
right, distinct and separate from its shareholders, directors, managers and creditors etc…. It
may, therefore, enter into contracts not only with the outside world but also with its
members whom it can sue and by whom it can be sued. The transactions of a share
company create legal rights and obligations vested in the company itself as opposed to its
members. The property owned by the share company is distinct from that of shareholders’.
So, shareholders cannot use, mortgage, and alienate etc… company property for private
purposes. Set off is not possible between creditors of a shareholder and debtors of the share
company.16
10
Commercial Code of the Empire of Ethiopia Proclamation, 1960, Arts 212 & 210, Proc No. 166, Neg.
Gaz. Year 19, no. 3.
11
Id Art 304 and 499(4)
12
W.L.Church,Cases and Materials on Agency and Business Organizations Vol. II, (Unpublished
Teaching Material, Haileselassie I University, 1965) 385.
13
Commercial Code Art 212 and 210
14
L.C.Backer, Comparative Corporate Law, Op.cit, 324.
15
J.L. Stewart and M.L.Palmer, Company Law of Canada,( Toronto: The Carswell Company Ltd,5th
ed.,1962) 46.
16
W.L.Church, Cases and Materials on Agency and Business Organizations, Op cit 385. Preclusion of set
off is true even for partnerships in Ethiopia (Commercial Code Art 257) while partners may use
partnership property for personal ends so long as that does not prejudice the interests of the partnership
and the rights of other partners to similarly use the same (Commercial Code Art 245)
104
In sum, the share company in Ethiopia has all the attributes of full corporate personality as
is known in the west17. Most of the foregoing attributes like distinction between rights and
obligations of members and the association, capacity to perform acts consistent with its
nature and being party to legal suits are explicitly vested in associations under the Civil
Code.18 Though the Commercial Code does not explicitly vest similar attributes in share
companies it can be argued cogently that all these attributes do apply to share companies,
necessary changes having been made. This is so, owing to Art 1 of the Commercial Code,
which provides ‘unless otherwise provided in this Code, the provisions of the Civil Code
apply to the status and activities of persons and business organizations….’ That means, in
the absence of contrary stipulations in the Commercial Code, the attributes of personality
of associations in the Civil Code apply to the personality of business organizations. What is
more, jurisprudence has it that, most of these attributes are ‘necessarily and inseparably
incident to every corporation’ as seen above.
1.2 Limited Liability
A defining feature of a share company that underlies the rules on formation is the limited
liability of members save in exceptional circumstances stipulated by law. Vesting the
benefit of limited liability in shareholders is necessitated by the need to shift some of the
costs of innovation and its failures to the creditors and employees of companies.19 It is
maintained that people would be reluctant to invest in large and very risky endeavors
without the protection afforded by the concept of limited liability. As a result, it is
contended, much human progress would be considerably slowed.20 It is further argued that
conferring the benefit of limited liability on shareholders is compatible with generally
accepted views of fairness as a widespread distribution of shares results in divorce of
ownership from the opportunity to effectively participate in management.21 Yet another
benefit of this rule is that it minimizes the impairment of capital markets. The idea is that in
the absence of limited liability creditors would pursue wealthier shareholders first, and the
practical imposition of liability would be influenced by the relative wealth of shareholders.
As a result, an investment decision would involve a judgment on the financial conditions of
not only the company itself but also of fellow shareholders. This would entail substantial
cost of acquiring information about the enterprise and fellow shareholders. The bottom
line: raising capital would be less efficient and organized securities markets would be
impaired.22 Other alleged benefits include avoiding increased agency costs, facilitation of
the diversification of portfolio, and minimizing contracting costs.23 We cannot dwell on
these without making unwarranted digression from the theme of this article.
17
See: W.L.Church, Cases and Materials on the Law of Agency and Business Organizations, Op cit pp
385- 389.
18
Civil Code of the Empire of Ethiopia Proclamation, 1960, Arts 451 454, 455 Proc. No. 165, Neg. Gaz.
Year 19, No. 2.
19
L.C.Backer, Comparative Corporate Law, Op cit, 995
20
Ibid
21
Ibid
22
Id, 996.
23
Id, 996 to 997.
105
In keeping with the laws in other jurisdictions, in Ethiopia, only the assets of the company
meet the liabilities of a share company.24 Assets are the sum total of what the company
owns in a general sense.25 They include what the company got from shareholders by way of
contribution and earned surplus. Of the original value of contribution from members, the
part that corresponds to the sum total of the par value of all the shares makes the capital. 26
Anything contributed by shareholders in excess of the par value of shares is known as issue
premium and is not deemed part of capital27 but is still part of the assets of the company.
The other components of the assets of a share company are the various reserves created
from the wealth generated by the company itself. The reserves could be the legal reserve
required by law28 reserves created because required by the articles of association and free
reserve created by ordinary general meeting of shareholders, there being no requirement in
the law or articles of association. 29 All the foregoing constitute the assets of the company
available for execution by creditors. No shareholder is personally liable so long as s/he has
made her/his promised contribution.30
1.3 Capital and Its Protection
Considerable confusion surrounds the notion of capital under different legal systems. This
is particularly so in judicial decisions and academic writings in the United States. There is
similar confusion in the United Kingdom though to a lesser degree.31 In general, the
concept of capital has been subject to greater refinement in Romano-Germanic legal
systems than Anglo-American jurisdictions. At this juncture, one must note, however, that
once the indispensable distinctions have been made, the basic notions of the two groups of
legal systems come very close together.32 Delving into discussion of the concept of capital
and the subtle differences in different legal systems is beyond the purpose of this article.
For our current purpose, suffice it to say, shareholders acquire rights in a company by
paying or agreeing to pay for the shares they take, in money or assets which the company
agrees shall be treated as having certain value, and share capital, is the money or the assets
contributed by members to the company’s resources.33 The money or assets, which are
contributed, become the company’s property, but the company does not become the
shareholder’s debtor for its repayment.34
Because the liability of shareholders is limited to their contribution as seen above, there is a
need to balance this against the interest of creditors. Hence, capital plays a critical role in a
24
Commercial Code, Art 304(1).
25
See generally, P.Mc. Carthy, Materials for the Study of the Law of Agency and Business
Organizations,( Unpublished: Haleselassie I University, 1972) 118. For a more technical definition read
Commercial Code Arts 73,10, 74,78, & 79.
26
Commercial Code Arts 10, 73, and 82.
27
Id, Art 326 and 455.
28
Id. Art 454.
29
Id. Art 453.
30
Id. Art 304(2).
31
P.V. Ommeslaghe et al ‘Capital and Securities of Marketable Share Companies’, in D. Vagts(ed),
International Encyclopedia of Comparative Law(Paul Siebeck 1990) 3.
32
Ibid.
33
R.R. Peninington, Pennington’s Company law,(London: Butterworths &Co.Ltd,1990) 135.
34
Id 136.
106
share company in Ethiopia unlike in partnerships and sole proprietorships where at least
some of the investors are personally liable to creditors of the firm.35 In Ethiopia, the capital
of a share company is always fully subscribed36, if not fully paid, and is deemed to be a
general security for the payment of the debts of the company. For this reason, the law on
share companies is replete with provisions that are meant to ensure the company has assets
equivalent, at least to its capital at any given point in time.37 We, thus, have elaborate rules
that are aimed at effective raising of capital on which we will dwell at a later stage. This
emphasis that the law puts on raising the capital may be said to be a defining characteristic
of a share company. In deed, the concern of the law with effective raising of capital
explains a whole host of the provisions of the law on the formation of a share company.
2. Requirements for Formation of a Share Company
In some jurisdictions, the formation of a share company normally poses few significant
legal problems with some exception to regulated sensitive industry sectors.38 Particularly,
in Common Law traditions like USA, and UK it is a very simple, fast and routine process
unless shareholders contemplate a complex capital structure from the moment of
incorporation.39 In contrast, incorporation in Continental European states can be a complex
process in which errors fatal to the corporation can take place.40 With respect to the
incorporation process, Ethiopian law resembles very much Continental European countries
like France and Germany. Ethiopian law requires fulfillment of seven particulars. These
are:
1. Minimum of five members
2. Minimum initial capital
3. Full subscription of the capital
4. Payment of ¼ of the par value of cash shares
5. Submission and valuation of contributions in kind
6. Adoption of memorandum and articles of association and
7. Registration and publicity requirements
We will dwell on each of the above, in this particular order, in the pages that follow.
2.1 Minimum of Five Members
Less than five members cannot establish a share company.41 One may contend that none of
these five should be a straw person. In other words, it could be maintained the spirit of the
law is that contributions by each should be of the extent required for carrying out the
35
Regarding the differences among business organizations on the point of members’ liability to creditors
compare Commercial Code Arts 304 with Art 255,276(1), 280, & 296.
36
Commercial Code Art 312(1)a.
37
G.Everett, The Commercial Code of Ethiopia Selected topics,( Unpublished: Addis Ababa University
Faculty Of Law, 1972) 23.
38
R.M.Buxbaum, ‘The Formation of Marketable Share Companies’ in A.Conard (ed), International
Encyclopedia of Comparative Law, Op cit, 1.
39
L.C. Backer, Comparative Corporate Law, Op cit 665.
40
Id 667.
41
Commercial Code Art 307(1)
107
purpose of the company. This, one may contend, can be inferred from Art 229(3) of the
Commercial Code, which provides contributions to a partnership must be of the nature and
extent required for carrying out its purpose. If the law requires sufficiency of contribution
in a partnership where partners are personally liable, and hence capital is not of critical
importance, for a stronger reason, the amount of contribution of a shareholder in a
company should not be nominal. This argument could perhaps be further buttressed by the
fact that the law requires a company to have a minimum of three directors and that the
directors are supposed to deposit directors qualification shares with the company, which
are to be a security for the proper discharge of their obligations.42 So, arguably
contributions by straw men are not acceptable even though the Ethiopian law on Share
Company is silent on that. Hence, it might be maintained that the law requires five
members who each make contribution, which helps in the attainment of the purpose of the
share company, not straw men.
The foregoing view could be challenged though. It may be maintained that the minimum
permissible par value of a share is ten Birr and the law does not specify a minimum
number of shares a person should have43. So, it could be contended that a person could
invest as little as ten Birr. In other words, it may be held that the amount of the contribution
by each member should not be subject to any inquiry as taken alone no shareholder’s
contribution is enough and even taken together a share company can always be under-
capitalized seen from the view point of its business. An additional argument based on
policy could be made in support of this view. It could be held that inquiring into the extent
of contributions by each member would unnecessarily impede the raising of capital. In
other words, people with small savings to invest would be barred from investing because of
this requirement. This would ultimately deny the company the opportunity of raising funds
from a large pool of investors. In view of all these, it may be argued, the contention that
contribution by straw men is illegal does not hold water. It may, therefore, be maintained
that it is very easy to comply with the law on this point. All that is needed is finding straw
men who contribute ten Birr each. As far as my research could uncover, no Ethiopian court
or administrative agency inquires into the extent of the contribution by members. Thus,
complying with the requirement for the minimum number of members to form a share
company is very easy.
A possible justification for the insistence on the company having the prescribed minimum
number of shareholders at formation and for that matter at all times44 is that the Ethiopian
law envisages management organs for the share company where only members of the
company can be directors.45 Under sub 2 of Article 347 every share company should have a
minimum of three directors. It also needs to have a meeting of shareholders which is the
ultimate authority which appoints, monitors, dismisses etc…the directors.46 So, it may be
argued that the company will not be able to have the organs of management that the law
anticipates unless it has at least five members.
42
Id. Art 347(1)(2) and 349
43
Id. Art 306(2)
44
Id. Art 311(1)
45
Id. Art 347(1)
46
Id. Art 419
108
2.2 Minimum Initial Capital
One of the most significant events in the accounting life of any company is its financial
creation through the contribution of cash and assets tangible or otherwise by its
shareholders. Many legal systems deem it necessary to provide safeguards to ensure that
fraudulent or careless practice in formation do not undermine permanently the financial
solidity, creditworthiness and profitability of the new company. One of such safeguards is
that which requires the capital contributions of the founders equals a specified minimum.47
This minimum capital requirement has two major objectives. The first is preserving
creditors from becoming involved with companies that are financially too frail. The second
is to prevent investors from choosing a corporate form when it is too cumbersome and
expensive for their intended operations.48 In other words, where the capital needed is very
small, investors are encouraged to form other types of business organizations that are easier
to form, and not a share company. Professor Escarra, one of the drafters of the Code,
emphasizes this latter role.49 In sum, the idea behind this requirement is to prevent the
failure of companies owing to under-capitalization and, thus, safeguard the interest of
stakeholders like shareholders and most importantly creditors of the company as
shareholders are not personally liable to company creditors. Owing to its perceived and real
role in protecting creditors, the minimum legal capital is sometimes referred to as the
‘ransom’ for limited liability.50
The statutory requirements regarding minimum initial capital for share companies follow
no particular pattern. In some countries high requirement is the rule. In some others, an
amount, which was once deemed very high, has become meaningless through inflation and
devaluation, as the law is not amended to keep pace with the diminishing buying power of
money.51 Yet in others, you have a small amount. Some other jurisdictions do not even
require minimum initial capital for the formation of a company. As is well known, the
Common Law tradition is opposed to the idea of a minimum capital requirement. Even the
few American state codes that specify minimum capital make it a prerequisite for
commencing operations as opposed to formation.52 The practice in the US with regard to
minimum capital is typified by the traditional approach illustrated by the Delaware
Corporate Law and the modern approach exemplified by the Revised Model Business
Corporation Act. Neither approach stipulates a certain minimum aggregate amount of
capital to be contributed to the corporation. Each corporation is free to determine its own
minimum. Yet, all corporations are required to be adequately capitalized. So, the question
47
D.F.Vagts,’Law and Accounting in Business Associations’ in A.Conard( ed), International
Encyclopedia of Comparative Law, Op cit 7.
48
Id 8.
49
P.Whinship (ed), Background Documents of the Ethiopian Commercial Code of 1960 (Addis Ababa:
Artistic Printing Press, 1974) 61 .
50
Kgeens and B.Servaes ‘Corporations and Partnerships in Belgium’ International Encyclopedia of Laws(
The Hague: Kluwer Law International,1997) 69.
51
R.Buxbaum ‘The Formation of Marketable Share Companies’, in A Conard(ed), International
Encyclopedia of Comparative Law, Op cit pp 9-10.
52
Ibd.
109
of adequate capitalization is determined on a case-by-case basis by the corporation itself.53
Where the corporation is found to be too thinly capitalized, serious consequences follow
under corporate, bankruptcy and tax laws. For instance, shareholders may face personal
liability for corporate debt in certain cases. Similarly, the priority of shareholder rights to
repayment from out of a bankruptcy estate can be reduced by the doctrine of equitable
subordination in bankruptcy. What is more, tax authorities may recharacterize shareholder
debt as equity under principles of US federal tax laws.54
With respect to the legal minimum capital, Ethiopian law resembles continental European
jurisdictions that stipulate a legal minimum. Art 306 of the Code provides “the capital of a
share company shall not be less than 50,000 Ethiopian Birr.” So, shareholders are required
to make available to the company at least this much resources at formation. This sum is,
therefore, the ‘ransom’ for the benefit of limited liability in Ethiopia. This may have been
a huge sum by Ethiopian standards, in 1960, when the Code was issued. Today, due to
inflation, devaluation and other factors, this is a very negligible amount. So, many share
companies that satisfy this legal minimum capital will be undercapitalized from the
economic vantage point. Yet, the law attaches no legal consequence to economic under-
capitalization unlike in the US where failure to adequately capitalize the company will
have various repercussions on shareholders.
2.3 Full Subscription of the Capital
In legal systems that recognize share companies or similar organizations by different

appellations, the company capital is regarded as an essential prerequisite for the company’s
existence without which it cannot be set up.55 In Ethiopia too a share company cannot be
formed without capital. In fact, the law clearly stipulates that a share company is a
company whose capital is fixed in advance and divided into shares.56 The founders will,
through the feasibility studies they conduct or cause to be conducted, determine the amount
of resources the shareholders will have to make available to the entity.57 So, the capital is
predetermined. Many jurisdictions go beyond requiring fixing the capital of a share
company in advance. They require subscription of the capital. In fact, Continental
European countries, apart from the Netherlands, always required subscription in full of the
corporate capital.58 In keeping with this tradition, the Code provides, a share company shall
not be formed until the capital has been fully subscribed.59 Subscription in the pre-
incorporation context means offers by interested investors to purchase shares when the
share company is subsequently formed.60
53
L.C.Backer, Comparative Corporate Law, Op cit 795.
54
Id.
55
P.V.Ommeslaghe et al, ‘Capital and Securities of Marketable Share Companies’ in D. Vagts(ed),
International Encyclopedia of Comparative Law, Op cit 3.
56
Commercial Code Art 304(1).
57
See: H.G. Henn and J.R. Alexander, Law of Corporations, Op cit pp 236-238.
58
59
Commercial Code, Art 312(1).
60
J.E Moye, The Law of Business Organizations(St Paul:West Publishing, 4th ed,1994) 235.
110
In the Ethiopian context, one might argue, subscription is an ‘acceptance’ by an investor to
purchase shares, rather than an ‘offer’ to do the same. To buttress this viewpoint, one might
raise Art 318, which provides ‘a prospectus is an offer to subscribers made by the
founders’. This, it might be argued, shows that the subscribers are responding to the offer
already made, and hence upon subscription the contract to buy shares in the company under
formation is complete. This, of course might have interesting repercussions on revocability
of subscription and the ability of the company to decline subscriptions. Discussion of these
subtleties is beyond the current theme. So, suffice it to say that full subscription of capital
entails acceptance by investors to buy all the shares into which the capital of the company
is divided and offered by founders for sale, at least in cases where the company is formed
by public subscription.61
Whether a binding offer to buy shares or acceptance of offer already made to that end, the
subscription of capital is necessary because every company needs capital to commence
business, and investors must be identified and promises to purchase shares must be secured
before the new enterprise goes operational.62 The fact that Ethiopian law requires full
subscription, therefore, forecloses the possibility of formation of a share company without,
there being sufficient interest to invest therein, hence minimizing the number of failing
companies. In Continental Europe, this subscribed capital is an essential element of the
company, endowed with a certain measure of permanency. The founders must therefore,
establish it and its amount must be specified in the memorandum of association. It can be
modified only in compliance with a variety of safeguards and formalities designed to
protect both shareholders and creditors.63 The law in Ethiopia follows this tradition. The
memorandum of association must state the amount of the subscribed capital.64 What is
more, changing the subscribed capital requires compliance with various rules that the law
puts in place to protect shareholders and creditors alike.65
2.4 Payment of ¼ of the par value of cash shares
If capital safeguards offer any significant protection to creditors of the company, it lies in
their application to the capital that is actually paid in. In other words, subscribed capital
will not be of much utility to creditors as collection of subscriptions is likely to become
difficult at the very moment the money is needed.66 Aware of this problem, some laws like
that of the European Union require the founders to put some real assets at risk before they
commence business. Even seen from the vantage point of the company’s own practical
need, it is important that a company collects and reports assets in amounts that bear a
reasonable relation to the risks of its business, before it embarks on operation. Otherwise, it
might not be regarded as creditworthy.67
61
Commercial Code Arts 317 to 322.
62
J.E Moye, The Law of Business Organizations Op Cit 235.
63
64
65
Id. Arts 431, 484 to 494, 454,470 to 473.
66
A.F.Conard, ‘One Hundred Years of Uniform State Laws: The European Alternative to Unifying
Incoproration Laws’(1991) 89 Michigan Law Review 24.
67
Id.
111
The Ethiopian law on this point requires shares subscribed in cash be paid up upon
subscription as to one fourth of their par value or a greater amount if so provided in the
memorandum of association.68 This was necessitated, according to the draftsperson,
Professor Escara, by the need to put in place ‘a sound commercial regime’ that provides
security to creditors.69 To avert loss of the money, the law in Ethiopia requires, this amount
be paid up and deposited in a bank, in the name and to the account of the company under
formation.70 The official in charge of the Commercial Register will require proof of that
before registering the company.71 The remaining three fourth can be paid in a period not
exceeding five years, according to the plan to be formulated by the company pursuant to
Art 342 of the Code. Some European jurisdictions do not believe payment of one-quarter
provides sufficient security. A case in point is the current French law, which provides
‘shares subscribed in cash be paid in respect of at least fifty per cent of their face value’.72
2.5 Contributions in Kind: Usefulness, Validity, Submission and Valuation
In an organization like a share company where the liability of members is limited to their
contributions, the contribution of members is instituted as much in the interest of creditors
as in that of other members and the business firm itself.73 Hence, there is a need to take
particular care to ensure that a contribution by a person does not jeopardize the interest of
all stakeholders and especially that of the creditors of the company. In this regard,
contributions in kind pose a host of problems. Of particular concern in this respect are: a)
usefulness of the contribution b) validity of service as contribution. c) lawfulness and
morality of contributions and d) submission and valuation of contributions.
a) Usefulness of the contribution: One issue that raises its head in relation to
contributions in kind is usefulness of the contribution in the attainment of the business
purpose. Accepting contributions in kind which are manifestly useless jeopardizes the
success of the company. This in turn exposes creditors to greater risk than anticipated, as
the wealth generated by the company too is their security.74 Besides, ultimately the
interests of the shareholders who made useful contributions are adversely affected as the
company’s chances of success will be low. Owing to this, and due to the fact that accepting
a useless contribution might be regarded as a breach of trust on the part of the founders, the
contribution should be such that it helps in the attainment of the business purpose of the
share company. In recognition of this, some jurisdictions explicitly require that the
contributions in kind be of such a nature that they facilitate the attainment of the business
68
69
P.Whinship (ed), Background Documents of the Ethiopian Commercial Code of 1960, Op cit 62.
70
Commercial Code Art 312(1)b.
71
Id. Arts 323 and 97.
72
Law No 2003-7 of 3 January 2003 Articles 50 (ii) and L225-3 Official Gazette of 4 January 2003.
73
J.Heenen, ‘Partnerships and other Personal Associations for Profit’ in International Encyclopedia of
Comparative Law ( Paul Sieback 1978) 169.
74
112
purpose of the company. A case in point is the Belgian law that requires incorporators to
draft a report indicating the importance to the company of each contribution in kind.75
The Ethiopian company law remains mute on the issue of usefulness of contributions in
kind. This should not, however, delude one into thinking that a person can make
contributions that are manifestly useless. That would run contrary to the legitimate interests
of creditors and other stakeholders. Besides, one may maintain that, the fact that the law on
partnerships specifies contributions must be of the ‘nature’ required for carrying out the
purpose of the enterprise,76 implies the same for companies. There is a stronger reason for
requiring that in the context of share companies where none of the shareholders is
personally liable to creditors unlike in partnerships where at least one partner is liable to
creditors even beyond his/her promised contribution.77 In spite of this, there is no
mechanism in the formation process in Ethiopia to ensure the usefulness of contributions.78
Hence, requiring the founders to file a report on the usefulness of contributions in kind, as
under the Belgian law, seems in order.
b) Validity of contribution of service: Another issue one confronts in relation to

formation is whether even where useful contribution of service is valid. Some jurisdictions
lay this question to rest by taking position explicitly. The current French Law, for instance,
provides, shares may not represent contribution in the form of service.79 Similarly, under
OHADA Treaty, now in force in more than 18 Francophone African countries, only cash
and in-kind contributions are allowed. Contributions of know-how, work and services
(apports en industrie) are prohibited.80 One possible reason for such prohibition is that
contribution of service is of limited utility, if any, to the creditors of a company that has
defaulted.
Unlike in the foregoing countries, the law in Ethiopia does not expressly prohibit
contribution of service. In fact, it may be cogently argued that contribution of past services,
unlike future services, does not seem to jeopardize the legitimate interest of stakeholders in
the matter and is permissible where rendered by persons other than founders. This is
implied from the fact that the company is under obligation to take over commitments
entered into by founders and reimburses all expenses incurred, among others, to pay for
services rendered, so long as the services were necessary for the formation of the
company.81 So, one may contend, there is no material difference in effecting payment for
such services from the capital and writing off the money owed by the company by issuing
shares instead to people other than founders who rendered services in the formation
process. This viewpoint is particularly convincing as the law expressly allows, albeit in
relation to increase of capital after formation, issuing shares to pay off current debts in
75
K.Geens and B Sarves, Corporations and Partnerships in Belgium, International Encyclopedia of Laws,
Op Cit 62.
76
77
Compare and Contrast Commercial Code, Arts 255(2), 276(1), 280(1), 296,300 with 304(2).
78
Interview with Ato Ermias G/Mariam, Registration Officer, Registration and Licensing Department,
Ministry of Trade and Industry, February 6, 2008
79
Law No 2003-7 of 3 January 2003 Articles 50 (ii) and L225-3 Official Gazette of 4, January 2003.
80
Earnest and Young International, A Guide To OHADA Treaty( Unpublished Brochure) 6.
81
113
order to increase capital.82 The service rendered by founders is treated differently owing to
the need to protect subscribers from founders securing unreasonably high rewards taking
advantage of their dominant position at this early stage, according to Professor Escara.83
To this end, Commercial Code Art 310 expressly prohibits conferring on founders any
benefit other than reserving a share in profits not exceeding one fifth of the profits in the
balance sheet for a period not exceeding three years. In fact, Art 310(3) specifically states
no founder shares may be issued.
In contrast, it may be argued, the law impliedly prohibits an undertaking to render service
in the future. This can be gathered from Art 339(1), which provides shares representing
contributions in kind are fully paid for, not later than the day of the registration of the
company. It seems, therefore, a promise to render service to the company after formation
can never be a valid contribution, and hence cannot form part of the capital of a share
company. This viewpoint is further strengthened by the fact that contribution of service is
of limited utility to creditors of the company, should the company default. The creditor
may not have any interest in getting the service promised by the shareholder. Even if
creditors were by some curious circumstances interested in that, specific/forced
performance is not required where that affects the personal liberty of a debtor, as does
rendering service, under Ethiopian law.84
c). Lawfulness and Morality of Contributions: The legal act of contribution may be null
and void because its object is unlawful or immoral.85 “Unlawful” obligations are those
contrary to public law or to the mandatory rules of private law. In relation to obligations to
convey rights on things as contribution, the object could be unlawful if the thing being
contributed is not in commercio, that is, non-conveyable by law. For instance, parts of the
human body are not in commercio.86 Hence, they cannot be contributed to a company.
More importantly, goods excluded from private commerce on grounds of public health as
well as things excluded from private commerce for other reasons like public domain
property87 and all land in Ethiopia cannot be contributed to a company. Regarding land,
one notes that the FDRE Constitution vests ownership of land exclusively in the ‘State and
in the peoples of Ethiopia’.88 Hence, ownership over land cannot be contributed. Note,
however that, leasehold right on land, be it on rural or urban land, can validly be
contributed.89 Regarding immoral objects, it suffices to say that a contribution may be
found to be null on this ground by courts. Venturing into what kind of contributions may be
82
Id. Art 464(2)b.
83
P.Whinship (ed), Background Documents of the Ethiopian Commercial Code of 1960, Op cit 62.
84
Commercial Code Art 1read together with Civil Code Arts 1776, 2583. See Also Civil Procedure Code
Decree, 1965, Arts 389(1), 400(1), 394, 399, 401 Proc No. 52,, Neg. Gaz. Year 24, No. 3 and George
Krzeczunowicz, Formation and Effects of Contracts in Ethiopia (Addis Ababa:Addis Ababa University,
Faculty of Law 1983) pp 124-126.
85
The Civil Code Art 1716. Note at this juncture that the Civil Code complements the Commercial Code
because the latter in its first article clearly stipulates that.
86
Civil Code of Ethiopia, 1960, Op cit. Art 18.
87
Id Art 1454.
88
FDRE Constitution Proclamation, 1995, Art 40(3) Proc. No 1, Neg.Gaz. Year 1, No. 1.
89
Re-Enactment of Urban Lands Lease Holding Proclamation, 2002, Art 13(1), Proc. No. 272 Neg. Gaz.
Year 8, No. 19.See also Rural Land Administration and Land Use Proclamation, 2005, Art. 8(3), Proc.
No. 456, Fed. Neg. Gaz. Year 11 No. 44.
114
deemed moral or immoral here would be intruding into the courts authority probably for no
useful reason.90
d) Submission and valuation of contributions in kind: If the capital of the company is to

be raised effectively, thus, foreclosing putting at risk the interest of creditors, shareholders
and the company itself, contributions in kind must be submitted at the earliest possible
time. What is more, their value should not be exaggerated. To this end, Ethiopian law
requires contributions in kind be fully made at the very latest on the day of the registration
of the company.91 To prevent overvaluation of contributions in kind, previously, the law
ordained that a member who makes a contribution in kind file a report made and sworn by
experts appointed by the Ministry of Trade and Industry.92 These disinterested experts were
required to state the method of valuation they followed, and indicate the value they gave to
each of the items contributed.93 Furthermore, this report by independent experts was to be
annexed to the memorandum of association so that third parties would have the chance to
have a look and make their own judgment.94 According to Professor Escara,, this system of
valuation, which was, in part, borrowed from the Italian Civil Code, was one of the most
simple and effective methods available.95 Indeed, it does seem to be very effective.
Unfortunately, the foregoing system of valuation is no longer in place. The agreement of
founders or members of the company as to the value of the contributions in kind has
substituted this method.96 So, all that the new law requires is founders, and where the
company is formed by public subscription97 other members too, agree on the worth of
contributions made in kind.
The system currently in place is fraught with problems. For one thing, it might be
impractical where there are a large number of shareholders with small investment each.
Besides lacking the expertise necessary to value contributions made in kind, people who
have invested insignificant sums might find involvement in this exercise waste of time,
thus leaving it to few. These few could manipulate the process to favour themselves. What
is worse, shareholders might deliberately overestimate the value of the contributions of
each member in a bid to enhance the creditworthiness of their company by inflating its
capital. In some cases, things could get much worse than that. An ‘agreement’ might be
made to ‘contribute’ property that does not exist or does not belong to the ‘contributing’
member. This is possible because the notary before whom the memorandum of association
is to be signed is required by law to ascertain the right of the transferor to transfer the
property, only with respect to contributions made to transfer property for which title
90
George Krzeczunowicz, Formation and Effects of Contracts in Ethiopian Law, Op cit pp 65-70.
91
92
Id. Art 315(1).
93
Id. Art 315(2).
94
Id. Art 315(3).
95
P.Whinship, (ed.),Background Documents of the Ethiopian Commercial Code Op cit 62.
96
Commercial Registration and Business Licensing Proclamation, 1997, Art 8, Proc. No 67, Neg. Gaz.
Year 3, No. 25, as amended, Proclamation to Amend the Commercial Registration and Business
Licensing Proclamation, 2003, Art 2(1), Proc. No 376, Id, Year 10, No. 9.
97
Commercial Code Arts 317 to 322.
115
certificates are issued under the law.98 Obviously, the law does not require title certificates
for every type of property that might conceivably be contributed to a share company. Title
certificates are issued under the law only for immovables and special movables, namely,
cars and ships assimilated to immovables.99
To prevent mischief in this regard, the people entrusted with authentication of

memorandums of association have come up with a novel but problematic method. They
require putative contributors of things whose ownership is not evidenced by title
certificates to submit receipts of payment upon purchase, customs declarations etc….
Where such ‘proofs’ are not adduced they do not authenticate the memorandum of
association.100 The problem with this ‘solution’ is that these documents prove neither the
ownership nor the very existence of the property indicated therein. The item indicated on
such documents could well have been transferred to someone else for consideration or
gratis or even destroyed. That they do not accept any contribution not supported by such
documents is, therefore, more of a problem than a solution. By insisting on the production
of these documents they are effectively excluding contribution of certain things with
respect to which such documents can never be adduced such as, say, contribution by a
cattle breeder of some of his oxen born to his cows.
The foregoing should not, however, mislead one into thinking that the current law has no
mechanism at all aimed at averting overvaluation. It does require directors and auditors to
verify and, where necessary, review the valuation made, within six months from the
formation of the company. If the revaluation by auditors and directors shows that the
contribution in kind was overvalued by one fifth or more, the person who made the
contribution in kind is required to make good the difference.101 What is more, founders are
jointly and severally liable for the damage resulting from such overvaluation.102 My
contention is that this is too little too late. During six months of operations lots of mischief
could be committed. A host of people may transact with the company in reliance of the
inflated capital. So, the revaluation will be little more than shutting the stable door after the
horse has bolted, especially in cases where the contributing member(s) and founders are not
people of wealth, able to make whole the persons caused damage by the overvaluation.
Hence, there is a need to prevent overvaluation rather than relying on post facto remedies.
98
Authentication and Registration of Documents Proclamation, 2003, Art 4(7), Proc. No 334, Neg. Gaz.
Year 9, No 54.
99
Civil Code Art_1195 and 1186(2), Maritime Code Proclamation, 1960, Arts 7(1), 45 and 50, Proc. No
164, Neg.Gaz. Year 19, No 1.
100
Interviews with Ato Desalegn Woldegebriel and W/ro Tsehai Mamo, Notaries at the Section for the
Registration of Business Organizations and Investors, FDRE Ministry of Justice Documents
Authentication and Registration Office, February 7, 2008.
101
Commercial Code Art 315(3) &(4). Where the verification under this sub-article results in the value of
the contribution being lowered by less than one fifth it seems neither the contributing member nor the
founders are liable for the balance. This, in my view, is recognition by the lawmaker of the fact that
valuation is just an estimate and bona fide differences in value can always occur. In other words, the
revaluation does not necessarily show the true value of the contributed property. Besides, the value of
the contributed property could well have changed due to changes in the market situation. All these
necessitate having a margin of tolerance. The lawmaker, it seems, believed that a margin of tolerance of
one fifth is fair in the Ethiopian context.
102
Id Art 309(1)a.
116
To this end, there is a need to explore ways of getting around the problems that
necessitated abolishing evaluation by disinterested experts, which presumably are lack of
experts in sufficient numbers and the resultant delays in company formation. One possible
solution is outsourcing this, instead of relying on employees of the Ministry. Another is
introducing valuation as a business. The Ministry could license and supervise firms that
engage in valuation as their business. If this does not succeed, one should perhaps think
along the lines of the law on private limited companies. As can be gathered from the
Commercial Code Art 519(1)&(2), it is members of the company that determine the value
of contributions in kind in private limited companies. This, of course, is accompanied by
accountability to those that might be adversely affected by overvaluation. Members of the
private limited company are jointly and severally liable to third parties for the valuation
fixed. And this liability remains, notwithstanding that a member was not aware of the
overvaluation.103 In other words, all members are personally liable, beyond their
contribution to compensate those who have sustained loss as a result of overvaluation.
Indeed, this solution is not without its own downside in the context of a share company
where you can have theoretically thousands of shareholders, some with very small
investment. Every investor would be expected to verify the value of every other investor’s
contributions. This could be impractical and unfair. Nevertheless, its pros and cons should
be weighed.
2.6 Adoption of the Memorandum and Articles of Association
a) Memorandum of Association: Various national legal systems prescribe that a share

company have a document known by various appellations in different countries like
memorandum of association, charter, certificate of incorporation, projet de status, Satzung,
teikam etc…. Most company laws specify a number of mandatory provisions to be included
in this document.104 It will also have optional provisions that do not go against the
mandatory provisions of the law.105 Owing to this, the memorandum normally reveals the
unique nature of the company and helps particularize the company by showing the
company’s name, capital structure, purpose, location, number of members of the board,
their powers etc….106 In short, therefore, it ‘…constitutes both a legislative, albeit
delegated, set of common norms, and a memorandum of agreement, not necessarily the
exclusive one, between a number of entrepreneurial venturers, reflecting their
understanding of the format, scope and aims of their venture’.107
As do the laws of other countries, the Commercial Code of Ethiopia, requires that the
formation of a share company be by a public memorandum, known as the memorandum of
103
Id Art 519 (3)&(4).
104
Encyclopedia of Comparative Law Op cit 11.
105
R.R. Pennington, Penington’s Company Law, (6th ed), Op cit 3.
106
107
Id 12. See also C. de Hoghton(ed), The Company: Law Structure and Reform in Eleven Countries
(London: George Allen & Unwin LTD, 1970) pp 71-76.
117
association.108 According to Art 313, the memorandum of association must contain names,
nationality and address of the shareholders as well as the number of shares, which they
have subscribed, the name of the company, its head office and branches, if any. It must also
indicate the business purpose of the company, the amount of capital subscribed and paid
up, the par value, number, form and classes of shares as well as the value of contributions
in kind, their object, the price at which they are accepted, the designation of the shareholder
and the number of shares allocated to him by way of exchange. What is more, the
memorandum of association must indicate the manner of distributing profits, the share in
profits allocated to founders, the number of directors and their powers, and the agents of
the company. Besides the foregoing, the auditors, the period of time for which the company
is to be established and the manner in which the company will publish its reports must be
indicated in the memorandum of association.
The above are but the required elements of the memorandum of association. So, members
can provide for such other matters, as they deem proper. Hence, each memorandum can
vary significantly from another.
b) Articles of Association: It is important to distinguish between rules that might be called

‘substantive’ and ‘housekeeping flexibility.’109 According to Richard M. Buxbaum, the
former actually shape the enterprise while the latter govern the routine and internal
varieties of meeting and their procedures, and similar essentially parliamentary matters.110
Ideally, the latter functions and their ordering might be put into a less formal and flexible
document known in different jurisdictions by various names such as the articles of
association, projet de statuts,Geschaftsordnung etc….111 In other words, the memorandum
defines the company’s objects, and confers powers on it; the articles determine how those
objects are to be achieved and powers exercised.112 Though this is the ideal scenario, the
fact remains that there is no consensus among legal systems as to which items belong to
which category. Therefore, almost every system permits some admixture of substantive and
formal provisions in the same document, hence no clear-cut distinction between the
memorandum and articles of association.113
The Commercial Code of Ethiopia requires the share company to have articles of
association.114 Unlike with regard to the memorandum of association, it does not list down
what the contents of this document should be. It does, however, give clues as to the
possible contents in different parts of the Code.115 On reading the various provisions that
indicate its possible contents one gets the impression that it is by and large meant to deal
with in-house affairs, which have little impact on third party interest. Cases in point are,
108
Commercial Code Art 313.
109
110
Ibd.
111
Ibd.
112
R.R. Pennington, Penington’s Company Law, (6th ed), Op cit 24.
113
114
115
W.L. Church, Cases and Materials on Agency and Business Organizations, Op cit 446.
118
one may contend, its contents like the fact that groups of shareholders having different
legal status must have at least one representative in the board of directors116 remuneration
of directors,117 who presides over the meeting of shareholders118 the possibility of
extending the time at which the ordinary annual meeting may be called,119 and the question
of representation in shareholder meetings.120
Other provisions of the Commercial Code indicating the possible contents of the articles of
association show that it may contain provisions, which might have repercussions on third
parties. Good examples are Commercial Code 363(2) and 457. The former states that the
articles of association must specify whether the directors are jointly responsible as
managers of the company or whether one only of the directors is responsible. It may be
contended that, read together with Commercial Code Arts 323(2)( b), which requires the
articles of association be deposited in the commercial register and the binding effects of
entries in the register121 such a provision will have consequence on third parties.
Particularly, dealing with a director not indicated as the one with powers to deal with
outsiders may result in unenforceable transaction. Certainly, the provisions of the articles
of association dealing with the payment of fixed or interim interest122 have the potential to
impact third parties. So, it may be argued that, in Ethiopia, the provisions in the articles of
association are not limited in their impact to shareholders or in house matters. They might
have far reaching consequences on third parties like creditors of the company.
Cognizant of the foregoing, perhaps, the Commercial Code deems the articles of
association as part and parcel of the memorandum of association.123 As a result, only an
extraordinary general meeting of shareholders can amend it, with the same quorum and
majority requirements as for the amendment of the memorandum of association. 124 The
law also recognizes the interest of the public in knowing its contents. It, therefore, requires
that it be deposited in the commercial register alongside the memorandum of association.125
116
117
Id. Art 352(2)(4).
118
Id. Art 404
119
Id. Art 418(2).
120
Id. Art 420(2).
121
Id. Art 120(2).
122
Fixed or interim interest is money paid to shareholders even where there are no profits during the
period of preparatory works and construction of the enterprise and ceases to be payable as soon as
normal business begins according to Commercial Code Art 457. If interim interest is paid before the
company commences business operations, it means the payment entails return of contributions to
shareholders. Obviously, this affects third parties as it reduces the capital/assets of the company, which
are their security in an enterprise where every shareholder is the beneficiary of limited liability.
123
124
Id. Arts 423 and 425.
125
Id. Art 323(2)a and b.
119
2.7 Registration and Publicity
Different legal systems recognize an institution widely known as ‘the commercial

register’.126 Of course, its organization and functions vary from country to country. It may,
for example, be kept by a judge or at least under judicial control or by administrative
organization or even by vocational organization like a chamber of commerce.127 The idea is
that the register serves various private and public purposes such as proving the status of the
business organization/trader, provision of information as to the types and levels of business
activities, as an administrative record etc….128 In fact, in some legal systems, registration
in the commercial register may be an indispensable condition for entitlement to certain
benefits like obtaining legal personality.129
Like in other jurisdictions, we have the institution of the commercial register in Ethiopia.130
The law requires that the final text of both the memorandum and the articles of association
that are to be drawn up at the meeting of subscribers131 be deposited in this register132 .It is
only once the subscribers have signed these documents before a notary public133 and the
same are deposited in the commercial register that the company becomes a legal person.134
Incidentally, this contrasts with the practice in some jurisdictions like most US states where
this organizational meeting takes place after the corporation has come into formal existence
when the incorporator files the articles of incorporation with the Secretary of the State or a
comparable state official.135 Unlike with the practice in the US, one notes a close similarity,
in this regard, between the incorporation processes of share companies in Ethiopia and the
Spanish sociedad anonima(SA) and the French societe anonyme(SA).136
On top of registration, previously, the law had required publication of a notice in the
official commercial gazette before a share company acquired legal personality.137 However,
the official commercial gazette, which had been anticipated by the Commercial Code,
never came into existence. Thus, the law was amended to require publication of the notice
in a newspaper published by the Federal Government with a countrywide circulation or
published by Regional Government138. This requirement of publication in newspaper has
126
D.Tallon, ‘Civil and Commercial Law’ in K. Zweigert(ed), International Encyclopedia of Comparative
Law ,(Paul Siebeck, 1983) 110.
127
Id.
128
Id.
129
Id.
130
Commercial Registration and Business Licensing Proclamation 67/97, Art 4. Commercial Code Arts
86-114.
131
Commercial Code Arts 320 and 321(2).
132
Id. Art 323(2) a & b, Council of Ministers Regulation 13/1997, Art 6(5).
133
Proclamation to Provide for the Authentication and Registration of Documents, Proc No. 334/2003 Art.
2(2), 5(1)c .
134
Commercial Code Arts 323 and 223 read together.
135
L.C.Backer, Comparative Corporate Law Op cit 666 Compare also the Revised Model Business
Corporation Act “RMBCA” Sec 2.01-2.06, 10.20-10.22 and the Delaware General Corporation Law
‘DGCL’ sec 101-109.
136
On these two systems read L.C.Backer, Comparative Corporate Law, Op cit 668.
137
Commercial Code Arts 323, 2223 & 87.
138
Commercial Registration and Business Licensing Proc. 67/1997 Art 8(1)&(2).
120
now been abolished altogether because of the unwarranted delay that it caused in formation
of business organizations, and the considerable expenses it sometimes entailed.139
3. Contracts Made On Behalf Of Company In Formation
As can be gathered from the foregoing discussions, a share company comes into existence
as a result of planning and other preliminary arrangements by founders which. Henn and
Alexander classify into discovery, investigation and assembly, raised in the introduction
part.140 Throughout these phases founders may require the service of various professionals.
They may also have to secure various options, licenses, patents, and lease etc… for the
company to be formed. For these reasons, they will have to conclude contracts and incur
expenses before the company is born.141 Therefore, the questions of whether and the extent
to which founders are liable for such commitments arise.
In principle, the founders are fully jointly and severally liable in respect of the
commitments entered into for the formation of the company.142 This does not mean that the
transactions of the ‘entity’ under formation concluded by founders can be avoided by the
entity after formation when third parties claim rights on the basis of the said transactions
against it. Commercial Code Art 308 (2) imposes an obligation on the company to take
them over. The same is true in other legal systems.143 But as honoring these contracts will
encumber company assets, there is a need to address the concerns of the subscribers who
had no say on what contracts to conclude. That is why the law limits the company’s
obligation in this regard. The company is obliged to take over the commitments and
expenses only in so far as they were necessary for the formation of the company or
approved by the general meeting of the subscribers.144 In relation to this, one notes that
Ethiopian law does not seem to require express adoption of the commitments and expenses
by the company for it to be bound. All that the third party who wants to proceed against the
company has to show is that the commitments and expenses were necessary for the
formation of the company.
In this regard, the question arises as to whether a third party who transacted with a founder
retains the right to proceed against the founders even though the company has the
obligation as seen above. The case where the founder specifically binds himself on the
contract, whether or not the company to be formed wishes to or does adopt the contract
139
Read together Proclamation to Amend the Commercial Registration and Business Licensing Proc
376/2003 Art 2(2) and Art 8(1) of Proc 67/1997. According to a pamphlet from the Ethiopian Press
Agency the cost of publishing a notice that is a page long in the Ethiopian Herald or ‘Addis Zemen’ is
10,626:00 Birr VAT inclusive. As a result, publishing the excerpts from the memorandum of
association as was required by law entailed prohibitively high expenses in some instances. What is
worse, the time it took for the notice to appear was very long. Currently, any notice to be publicized
needs to be submitted to the Ethiopian Press Agency ten days ahead of the desired date of publication.
140
H.G.Henn and J.R.Alexander, Law of Corporations, Op cit 237.
141
Ibd.
142
143
144
121
poses no problem. Problematic is the situation where the founder takes no such explicit
responsibility.145 Different legal systems give differing solutions on the basis of different
theories. In Common Law systems the labels used such as adoption and novation matter.
Where the term used in the law is ‘adoption’ of the agreement the previous contracting
parties are fully liable in addition to the new party, i.e. the company. In contrast, ‘novation’
is an agreement for substitution of parties, and thus of liability.146 So, the company takes on
all the obligations assumed by the founders thus relieving the latter. Some systems infer
the continued liability of the founder on the basis of agency law which provides ‘unless
otherwise agreed a person who, in dealing with another, purports to act as agent for a
principal whom both parties know to be nonexistent or wholly incompetent, becomes a
party to such contract.’147 In the Civil Law systems too there are differing constructs, which
might lead to different results as to the continued liability of the founders. The general
tendency, however, seems to be to make them still liable, the debate being more about the
obligation of the company to reimburse the founders who have paid the third party.148
Given the importance of the language used in the law with regard to this issue, it is
important to note that Art 308(2) of the Commercial Code says ‘…the company shall take
over these commitments from the founders….’ Is this language suggestive of novation
hence resulting in substitution of parties and, therefore, obligations or is it simply entitling
the promoter to reimbursement without relieving him from continued obligation towards
the third party? Strong arguments can be raised in support of the latter point. One may
contend that the law talks about the obligation of the company to take over the
commitments from the founders, NOT about the contracting party’s obligation to relinquish
the right to claim from the founders. This argument may further be strengthened by the fact
that at least some of the people who transact with promoters have no way of telling what
the capital of the company will be. For this reason, it can be said that they rely on the credit
worthiness of the promoter. Therefore, denying them the right to proceed against the
promoters would be giving them less than they bargained for unless they have expressly
accepted that. If this line of interpretation is taken, the result is in consonance with that
reached by many countries of the Civil Law tradition as indicated above.
A host of other issues may arise in relation to pre incorporation contracts. One such issue is
where a person prematurely acts on behalf of a ‘share company’ because he erroneously
but in good faith thinks the share company has been formed. Should such person be made
personally liable like a founder just because the transaction took place before
incorporation? A review of recent case law in the US shows that courts have relied on
common law concepts like de facto corporation, de jure corporation, and corporation by
estoppel that provide uncertain protection against personal liability for these kinds of pre-
incorporation transactions.149 The Revised Model Business Corp Act, Sec 2.04 gives even
more protection as it makes liability for such pre incorporation acts conditional on the third
145
R.M. Buxbaum, “Formation of Marketable Share Companies’ in A. Conard(ed) International
Encyclopedia of Comparative Law, Op Cit 31.
146
Id 33.
147
Id 31 and Restatement of Agency 2nd (1957) S. 326 as quoted in footnote 200.
148
Id 60.
149
L Backer, Comparative Corporate Law, Op cit 686.
122
party knowing that there was no corporation.150 It makes sense to exempt from personal
liability a person who honestly and reasonably but erroneously believed to represent a
company when there was in fact no company at the time.
This does not seem to be the position taken by Ethiopian law. It provides that the ‘founders
are liable for commitments entered into for the formation of the company’. It then
continues ‘…all persons who have acted in the name of the company before its registration
in the commercial register shall be similarly liable’.151 Remember at this juncture that, the
company’s legal personality and existence commences upon registration under Ethiopian
law.152 So, such people are personally liable like founders though unlike founders they
might believe in good faith that the company already exists. Ethiopian law is not alone in
taking such a position though. Many US states have statutes, which provide expressly that
those who prematurely act for or on behalf of a corporation are personally liable on all
transactions entered into.153
4.Defective Formation and its Consequences
Traditionally, legal systems made distinction between two categories of defects in the
formation of a company. The first category pertained to the concept of ‘agreement to form
a corporation’ or in American usage ‘underlying joint venture’. Defects pertaining to vices
in consent like a ‘shareholder’ joining the company under duress, owing to fraud or
mistake fall in this category of defect.154 In other words, the initial act of incorporation of a
share company is but a contract. Thus, validity requirements for the formation of a contract
are applicable to the creation of a share company.155 So, defects pertaining to the validity
requirements of the contract comprise the first category of defects. The second category of
defects comprised improper publication of the memorandum, defects of form thereof,
failure to hold organizational meeting and the like, which are more formal or technical in
nature. These technical defects had no retroactive annulling effect on the company while
they could result in dissolution of the company.156
There was less uniformity as regards the consequences of defects of the first category. In
pre 1967 French law, for instance, defects in relation to ‘agreement to form a corporation’,
the first category above, affected the juridical status of the entity. Thus, dissolution for
failure of the underlying agreement might have had a retroactive effect leaving creditors of
the defective entity to share with personal creditors of the shareholders in the remaining
assets of the defective entity on a non-preferred basis.157 In contrast, the long held German
150
Id.
151
The Commercial Code, Art 308(1), emphasis mine.
152
Id Art 323(1) and 223.
153
L. Backer, Comparative Corporate Law, Op cit 686.
154
R.M.Buxbaum, ‘Formation of Marketable Share Companies’, in A.Conard (ed), International
155
K.Geens and B. Servaes, ‘Corporations and Partnerships in Belgium’, International Encyclopedia of
Laws , Op cit 61.
156
R.M.Buxbaum, ‘Formation of Marketable Share Companies’, in A.Conard (ed), International
157
Id.
123
approach, also adopted in some other countries, did not give similar effect to consensual
errors on the side of parties that have subscribed shares in the company. Such errors did not
result even in the avoidance of the payment duty in respect of his/her contribution on the
part of such subscriber once the company has been formed. In other words, a person who
subscribed owing to fraud would still be required to pay what s/he ‘promised’ to
contribute.158 After the 1969 revision even the French statute eliminates the annulling
effects of these contractual defects. The modern tendency is to prevent defective formation
of either type from affecting the juridical status of the entity unsettling the expectations of
third parties in good faith. The consequence of defective formation is, therefore, either
calling on the company to rectify the problem or resulting in dissolution and winding up of
the entity, not retroactive nullity. In deed, this is specifically provided for in most
statutes.159
Under Ethiopian law no valid contract can exist unless parties capable of contracting have
given their consent sustainable at law, the object of the contract is sufficiently defined, is
possible and lawful.160 So, in the Ethiopian context defects pertaining to these could,
perhaps, be regarded as defects of the first category, i.e, defects pertaining to the
‘agreement to form a corporation’. Examples of defects under this category are, therefore,
vices in the consent of founders or/and subscribers like duress, fraud or mistake and lack of
the requisite legal capacity.161 Arguably, the seven requirements like minimum number of
members, minimum initial capital, full subscription of capital etc…discussed under section
3 above fall under the second category of defects, i.e. the ‘formal’ or ‘technical’ defects.
The Commercial Code of Ethiopia has only one article dealing with defective formation
and its consequences. It provides, “where the share company is entered in the commercial
register it will have legal existence and personality even where some legal requirements for
the formation of the company have not been fulfilled.”162 Where the non-compliance with
the formation requirements endangers the interest of creditors or shareholders, the court
may, upon the application of such creditors or shareholders, order the dissolution of the
share company or take provisional measures it deems proper.163 The court is barred from
considering a tardy application. Such application should be made within three months from
registration.164
From the foregoing, one notes that the law does not classify defects in formation into
defects pertaining to ‘agreement to form a company’ or contractual defects and technical or
formal defects. It simply says defects in formation will have no consequence on the legal
existence or personality of the company once it is registered. So, one may contend that
neither type of defect will have retroactive effect of annulling the company, and the
transactions entered into by it. The law expressly provides that shareholders or creditors
158
Id. 27.
159
Id. 28.
160
Commercial Code Art 1 cum Civil Code Arts 1678. See also G. Krzeczunowicz, Formation and Effects
of Contracts in Ethiopian Law Op cit 57.
161
Commercial Code Arts 307, 3016-322 and Civil Code Arts 1696-1710.
162
Id. Art 324(1).
163
Id. Art 324(2).
164
Id. Art 324(3).
124
affected by defects in formation can apply for dissolution (Emphasis mine). This implies
that creditors of the company as well as the shareholders themselves will have the kind of
rights they have in the said process, i.e, dissolution.165 So, it may be contended even a
person who joined the company under duress will have to make the ‘promised’
contribution to the extent that is required by the interest of third parties in good faith.166 Of
course, s/he will have recourse against the party at fault for the resultant damage. In effect,
this means the Ethiopian law is in line with developments in other jurisdictions when it
comes to the consequence of defects in formation on third parties in good faith. Though it
seems courts have not entertained sufficient number of cases pertaining to this issue to
warrant making conclusions167, there are indications showing a proper understanding of the
law on the matter. For instance, in the case between the National Bank of Ethiopia and
Horn International Bank Share Company, the court confirmed the revocation of business
license by the National Bank, which was issued on the basis of false evidence, according to
the National Bank. It then instructed the liquidator to pay creditors of the bank from the
proceeds of the sale of its assets though the issuance of the license and hence the formation
was found defective168. It did not rule that the defect has retroactive effect of annulling the
company and the transactions entered into by it. The court rather acknowledged the need to
protect the interest of third parties in good faith. A problem in regard to defective formation
is that the law does not provide a list of defects that warrant dissolution and those that do
not, hence leaving the courts with no guidance.
Conclusions and Recommendations
Fraudulent or careless practice in the formation process of a share company can undermine
the financial solidity of the company. What is worse, such practices jeopardize the
legitimate interests of future creditors. Cognizant of this, the law in Ethiopia provides some
safeguards. By and large, these safeguards resemble those provided in the Continental
European legal tradition and are in keeping with current standards and trends. There are a
few points with respect to which revision is warranted though. Those that stand out follow:
1. The reasons for requiring minimum initial capital are twofold. The first is preserving
creditors from becoming involved with companies that are financially too frail. The second
is to prevent investors from choosing to form a share company when it is too cumbersome
and expensive for their intended operations. The minimum initial capital of 50,000 Birr,
which the Ethiopian law requires to this end, can achieve neither of the purposes above
today. Hence, there is a need to either increase the amount to reflect the current reality or
follow the alternative mechanism used in the USA, according to which, the company is
simply required to be ‘adequately capitalized’, subject to consequences where it is found to
have been too thinly capitalized.
165
Id. Arts 501,504(1),505.
166
Id Art 499(4).
167
Interview with Ato Yossief Aemro, Judge at the Federal High Court, On February 26,2008
168
National Bank of Ethiopia v Horn International Bank Share Company (Civil File No 58/92, Federal
High Court, Ginbot 24 1992 EC) (Unpublished)
125
2. In an organization like a share company where the liability of members is limited to
their contributions, the contribution of members is instituted as much in the interest of
creditors as in that of other members and the business firm itself. Hence, there is a need to
take particular care to ensure that a contribution by a person does not jeopardize the interest
of all stakeholders and especially that of the creditors of the company. In this regard,
contributions in kind are cause for concern in Ethiopia.
2.1. The first is that in regard to the usefulness of contributions in achieving the business
purpose of the company. Accepting contributions in kind which are manifestly useless
jeopardizes the success of the company. This in turn exposes creditors to greater risk than
anticipated, as the company will generate little wealth to be used for discharging its
financial obligations. Yet, the Ethiopian company law is silent on the issue of usefulness of
contributions in kind. As a result, there is no mechanism meant to ensure the usefulness of
contributions, in the formation process. Hence, requiring the founders to file a report on the
usefulness of contributions in kind, as under some other jurisdictions, seems appropriate.
2.2. The second problem is that in regard to contribution of service. Unlike in some other
jurisdictions, contribution of service is not expressly prohibited in Ethiopia. In fact, it may
be argued that contribution of past services, unlike future services, does not jeopardize the
legitimate interest of stakeholders. Hence, it would be good if the law took clear stand on
this.
2.3.The third problem in relation to contributions in kind pertains to their submission and
valuation. Previously, the law required that contributions in kind be valued by disinterested
experts from the Ministry of Trade and Industry. This requirement has been scraped. The
agreement of founders or members of the company as to the value of the contributions in
kind has substituted this method. All that the new law requires is that founders, and where
the company is formed by public subscription, subscribers agree on the worth of
contributions made in kind.
This system is fraught with problems. For one thing, it might be impractical where there
are a large number of shareholders with small investment each. What is worse,
shareholders might deliberately overestimate the value of the contributions of each member
in a bid to enhance the creditworthiness of their company by inflating its capital. In some
cases, things could get much worse than that. An ‘agreement’ might be made to
‘contribute’ property that does not exist or does not belong to the ‘contributing’ member.
This is possible because the notary before whom the memorandum of association is to be
signed is required by law to ascertain the right of the contributing member to transfer the
property, only with respect to contributions made to transfer property for which title
certificates are issued under the law.
So, there is a need to explore ways of getting around the problems that necessitated
abolishing valuation by disinterested experts, which presumably are lack of experts in
sufficient numbers and the resultant delays in company formation. One possible solution is
outsourcing this, instead of relying on employees of the Ministry. Another is introducing
valuation as a business. The Ministry could license and supervise firms that engage in
valuation as their business. If this does not succeed, one should perhaps think along the
126
lines of the law on private limited companies, i.e., make members of the company jointly
and severally liable for the valuation fixed as under Art 519(1) and (2).
3. Yet another area in which the law seems to have shortcomings pertains to absence of
guidelines as to defects in formation that warrant dissolution. One notes that the law in
Ethiopia does not classify defects in formation into defects pertaining to ‘agreement to
form a company’ or contractual defects and technical or formal defects. It simply says
defects in formation will have no consequence on the legal existence or personality of the
company once it is registered. So, one may contend that neither type of defect will have
retroactive effect of annulling the company and the transactions entered into by it. In
effect, this means the Ethiopian law is in line with developments in other jurisdictions
when it comes to the consequence of defects in formation on third parties in good faith.
127
WHOSE POWER IS IT ANYWAY: THE COURTS AND
CONSTITUTIONAL INTERPRETATION IN ETHIOPIA
YONATAN TESFAYE FESSHA∗
Introduction
The 1995 Constitution of the Federal Democratic Republic of Ethiopia (hereinafter the
‘FDRE Constitution’ or ‘the Constitution’) provides the power to “interpret”1 the
Constitution to the House of Federation (hereinafter ‘the House’), which is the second
chamber of the parliament. The Constitution also establishes the Council of Constitutional
Inquiry (hereinafter ‘the Council’), a body composed of members of the judiciary, legal
experts appointed by the House of Peoples’ Representatives and three persons designated
by the House from among its members, to examine constitutional issues and submit its
recommendations to the House for a final decision. The formal way through which issues
of constitutional interpretation pass is via the Council. Issues of constitutional
interpretation are referred to the Council by a court or “the interested party”2 to a dispute.
This is, of course, very different from a number of other more well-known legal systems
which vest the power of constitutional review either in ordinary courts or in constitutional
courts set up exclusively for constitutional matters.
As indicated above, the House has the final and ultimate power to interpret the
Constitution. However, the role of the courts in the interpretation of the Constitution is still
far from settled. The function, relation and co-existence of the courts and other organs of
state need to be spelled out clearly. The extent to which and the circumstances under which
the judiciary should defer to other institutions, and especially to the House, need to be
ascertained. The difficulty lies in determining where the role of the court ends and that of
the other institutions (especially the Council and House) begins.
This contribution investigates the locus of constitutional interpretation and constitutional

review in Ethiopia. As the title of the article and the discussion in the preceding
paragraphs suggest, it asks who interprets the constitution. It specifically explores the role
of the courts. It shall do this in four related parts. Section two provides us with a brief
comparative account on the development of constitutional review in the different major
constitutional systems of the world. This is followed by a concise historical review of
∗
LLB (Addis Ababa University), LLM (University of Pretoria), Researcher and PHD Candidate
(University of the Western Cape, Community Law Centre). The author would like to express his
appreciation for the very insightful comments provided by Professor JR Deville at the University of the
Western Cape. The author claims sole responsibility for views expressed here. E-mail:
tesfayon@yahoo.com
1
The Ethiopian Constitution uses the terms ‘constitutional interpretation’ and ‘constitutional disputes’.
Nowhere in the Constitution does one finds the terms constitutional review or judicial review (i.e. the
power to invalidate legislation for constitutionality). The concept of constitutional review is, however,
recognized by the constitution, as it is obvious from the reading of article 84(2) of the Constitution.
2
For a discussion on the term ‘interested party’ see Abebe Mulat, “Who is the Interested Party to Initiate
a Challenge to the Constitutionality of Laws in Ethiopia” The Law Student Bulletin Vol. 1 (1999), p. 9-
12.
128
constitutional review in Ethiopia. The article then proceeds to examine constitutional
review under the present constitution. In this regard, it first examines the argument that
puts constitutional review under the normal business of courts. Second, it examines the
argument from the duty to enforce the constitution, which albeit on a different basis,
arrives at the same conclusion – the courts cannot avoid interpreting the constitution as
they have the constitutional duty to enforce the constitution. The discussion on
constitutional review is made complete after discussing the developments that have
unfolded in the areas of constitutional review after the adoption of the Constitution. The
article then concludes with a few remarks.
I. A Brief Comparative Note On Constitutional Review3
Constitutional review, the power to determine the constitutionality and, therefore, the
validity of the acts of the legislature, takes various forms. This depends on various factors.
Irrespective of these differences, however, most countries in the world have been practising
some form of constitutional review.4
The subject of constitutional review, however, gained considerable attention only after
1803 when the American Supreme Court in Marbury v. Madison asserted its power to
review the conformity of legislation with the constitution and to disregard a law held to be
unconstitutional.5 Since then it is not uncommon to find ordinary courts empowered to
control the compatibility of legislation and executive acts with the terms of constitutions.
This is what is often referred to as decentralized or diffuse system of constitutional review.
In such a system, of which America is a good example, constitutional review is a power
exercised by all courts.
This system of constitutional review, which is also alternatively referred to as the

“American” system of control, failed to strike root in Europe. This is attributable to various
reasons, among which are the difference in legal traditions of Europe and America,6 the
inability of European judges to exercise constitutional review and the different level of
status accorded to constitutions in Europe and the United States between the two world
3
This section is adopted from the work previously published by the same author. Yonatan Tesfaye
Fessha, “Judicial Review and Democracy: A Normative Discourse on the (Novel) Ethiopian Approach
to Constitutional Review” 14 African Journal of International and Comparative Law Vol. 14(1), (2006),
p. 53-83. The term constitutional review in this article is used interchangeably with judicial review.
Judicial review, in this article, refers to the act of reviewing the constitutionality of statutes or
legislation.
4
Today close to 100 countries have some form of constitutional review. See MI. Aboul–Enein “The
Emergence of Constitutional Courts and the Protection of Individual and Human Rights: A Comparative
Study” in AO. Sherif and E. Cotran (eds.) The Role of the Judiciary in the Protection of Human Rights
(1997), p. 284.
5
Marbury v Madison (Supreme Court of U.S 1803 5U S. (1(Granch) 137, 2, L.Ed.60 quoted in D.
Kommers and J. Finn American Constitutional law: Essays, cases and Commentary Notes (2000), p.
25.
6
In Europe, the law is identified with legislation, whereas in the United States there is still a substantial
common law. European courts cannot engage in the interpretation of constitutions while quite a
contrasting attitude is established in the United States where ordinary courts are entitled to interpret the
constitution.
129
wars.7 A number of European countries, in which constitutional review of legislation was
virtually an unknown phenomenon till the end of World War II, have, by and large,
adopted a different model of constitutional review. In most of the European countries the
power of constitutional review is assigned to a single organ of state. This may be either a
supreme court or a special court created for that particular purpose. This system is called a
concentrated system of constitutional review.8
In France, where it is considered that “constitutional review through an action in the courts
would conflict too much with the traditions of French public life” 9, constitutional review,
is exercised by a body other than a court. It is the Conseil Constitutionnel, a political body,
which exercises constitutional review. The Conseil Constitutionnel challenges the
constitutionality of a law only before it is promulgated by parliament. Hence, some authors
refer to the system as a preventive system of constitutional review.10
The institution of constitutional review in France is often wrongly described as another

“European Model”. This is partly because of the fact that the Conseil Constitutionnel deals
only with constitutional questions. However, the Conseil Constitutionnel is a political body
composed of members appointed by a person holding political office and political
institutions: The President of the Republic, the National Assembly and the Senate. Its
whole structure is essentially political. Moreover, in contrast to the other systems of
constitutional review, the Conseil Constitutionnel does not deal with constitutionality of
law as a result of “a challenge in the ordinary courts by way of defence”. Examination of
Bills before promulgation is typically the only way envisaged for dealing with questions of
constitutionality.
7
See generally L. Favoreu, “Constitutional review in Europe” in L. Henkin and A.J. Rosenthal (eds.),
Constitutionalism and Rights: The Influence of the United States Constitution Abroad (1990). Until the
post world war II period only a few European constitutions, most notably the 1920 Austrian
constitution, recognized constitutional review. It was introduced in France until the introduction of the
institution of the Conseil Constitutionnel in the 1958 Constitution. For further discussions see C.
Sampford and K. Preston, Introducing the Constitution: Theories and Principles and Institution (1996),
p. 22 –25.
8
M. Cappilleti Judicial review in Comparative Perspective (1989), p. 136-146. In Great Britain and some
other countries, where the doctrine of parliamentary sovereignty has long been regarded as the most
fundamental element of the constitution, no organ has legal authority to invalidate statutes on the
ground that they are not in conformity with the constitution (the unwritten constitution) or some
fundamental moral or legal principles. In Britain, the legislative authority of parliament is supreme, and
the function of the court, in this system, is merely to give effect to these laws. In the words of Dicey, the
legislature “has the right to make or unmake any law whatever” and no person, body or court outside
Parliament “is recognized by the law of England as having a right to override or set aside the legislation
of parliament”. In the most quoted statement of Walter Bagehot, “[t]here is nothing the British
Parliament can not do except transform a man into a woman and a woman into a man” Quoted in Y.
Meny and A. Knap Government and Politics in Western Europe (1998), p. 317. See also generally J.
Goldsworthy The Sovereignty of Parliament: History and Philosophy (1999). With the introduction of
the Human Rights Act 1998 in Britain, the courts, if satisfied that primary legislation is incompatible
with a right recognized by the European Convention of Human Rights, can make a declaration of
incompatibility. The declaration of incompatibility, however, does not, in itself, affect the validity of the
challenged legislation. For further discussion see PP. Craig Administrative Law (2003), p. 570-571.
9
See generally J Bell French Constitutional Law (2001), p. 1-27.
10
Ibid.
130
II. Constitutional Review In Ethiopia: Historical Overview
A brief examination of the legal history of Ethiopia reveals that constitutional review, as
one writer commented, “does not have a gratifying history”.11 To begin with, the 1931
Constitution, the first written constitution, did not include a specific provision on
constitutional adjudication. One may even argue that such conception of constitutionalism
was not possible during that period. This mainly has to do with the fact that the 1931
Constitution, in the first place, was designed to enhance both change and stability in favour
of the monarchy rather than impose a limit on government.12 It especially achieved this by
“effectively removing the church from the forefront of Constitutional power play”.13 As a
result, the powers of the Emperor were not subject to any strict kind of review and his
authority could not be contested.14
Neither was there a practice of constitutional review after the introduction of the 1955
Revised Constitution. This is despite the fact that the 1955 Constitution contains a
supremacy clause under Article 122. According to this provision, the Constitution, together
with those international treaties conventions and obligations to which Ethiopia [is] a party,
shall be the supreme law of the Empire, and all future legislation, decrees, orders,
judgments, decisions and acts inconsistent therewith shall be null and void.
No specific organ, however, was empowered to exercise the power of constitutional review
and thus declare legislations, decrees, orders, judgments, decisions and acts, which are
unconstitutional, null and void. Based on this provision, one may advance an argument, as
some do,15 that constitutional review was possible under the 1955 Revised Constitution.
Theoretically, this is not completely implausible. The fact that the 1955 Constitution did
not explicitly empower a specific organ to exercise the power of constitutional review does
not exclude such a possibility. As the history of constitutional review in America
demonstrates, a court may exercise constitutional review without explicit authorization of
the Constitution. This may also be the reason why some even hold that the 1955 Revised
Constitution followed the American system of judicial review. The above construction,
however, does not take account of the power structure envisaged by the Constitution.
Under a Constitution that recognizes the “indisputability” of the power of the Emperor and
grants him a legislative power (in addition to the fact that he appoints all members of the
Senate in the two chamber parliament), it is almost impossible to talk of constitutional
review. As George Krzeczunowicz has rightly pointed out, the power of the Emperor to
quash any decision rendered by the courts would make the exercise of constitutional review
11
Assefa Fiseha, “Constitutional interpretation: the respective role of courts and the House of Federation”
in Faculty of Law/Civil Service College (ed.) Proceedings of the Symposium on the Role of the Courts
in the Enforcement of the Constitution (2000), p. 18.
12
Fasil Nahum Constitution for a Nation of Nations: The Ethiopian Prospect (1997) 21. Tradition and
religion were the only limits on the power of the monarch, Emperor HaileSelassie. The introduction of
the constitution, by centralizing government power in the hands of the Emperor, limited the influence of
both religion and tradition.
13
Ibid.
14
CN, Paul and C. Clapham Ethiopian Constitutional Development (1967), p. 287.
15
Meaza Ashenafi “Ethiopia: Process of Democratization and Development” in A An-narim(ed.) Human
Rights under African Constitutions (2003), p. 30.
131
pointless.16 The fact that some argue that the 1955 Revised Constitution had envisaged an
American system of constitutional review can possibly be explained by the fact that the
Constitution was drafted by three American legal scholars. The belief, therefore, is that the
Constitution reflects the American experience.17
The advent of the 1987 Constitution, on the other hand, has brought with it the designation
of an institution that exercises the power of constitutional review. The Constitution
contained express clauses on the interpretation of the Constitution and determination of the
constitutionality of legislative acts. It was the State Council, a political body, which was
entrusted with the control of constitutionality. It is reported that no significant case was
brought before it.18
The present Constitution, however, provides detailed provisions on constitutional

interpretation. It has also established the institutional framework necessary to discharge this
function. With this as a background, we now proceed to discuss constitutional review and
constitutional interpretation under the present Constitution. The aim of this discussion is to
explain the institutional structure adopted by the Constitution for constitutional
interpretation and specifically for constitutional review. Establishing the role of the House
and the courts is a specific objective of this section.
III. Constitutional Review Under the 1995 Constitution
The FDRE Constitution deals with the issue of constitutional review under Article 83.19
Article 83 Interpretation of the Constitution

1. All Constitutional disputes shall be decided by the House of Federation.
2. The House of Federation shall, within thirty days of receipt, decide
a constitutional dispute submitted to it by the Council of
Constitutional inquiry.
As the reading of this article indicates, it does not tell us much about constitutional review.
It only declares that the House decides on all constitutional disputes. But what is a
constitutional dispute? Is it the same as a ruling on the constitutionality of laws or does it
only refer to the expounding of the provisions of the constitution or to both? A reading of
some other provisions of the constitution may shed light on the meaning of this term.
Article 62 of the Constitution which provides for the powers and functions of the House
states, under sub article one, that the “[House] has the power to interpret the constitution”.
16
G. Krzeczunowicz, “Hierarchy of Laws” Journal of Ethiopian Law Vol. 1(1), (1984), p. 111-117.
17
Ibrahim Idris, “Constitutional Adjudication under the 1994 FDRE Constitution” Ethiopian
Law Review Vol. 1(1) (2002), p.63.
18
Assefa, cited above at note 11, p. 19.
19
It is important to note right from the beginning that the title of this article is interpretation of
the Constitution and not constitutional review or judicial review.
132
This is what article 84, the other relevant article that deals with the power of the Council
has to offer:20
1. The Council of Constitutional Inquiry shall have the power to investigate

constitutional disputes. Should the Council, upon consideration of the matter, find it
necessary to interpret the Constitution, it shall submit its recommendations thereon
to the House of Federation.
2. Where any Federal law is contested as being unconstitutional and such a dispute is
submitted to it by any court or interested party, the Council shall consider the matter
and submit it to the House of Federation for a final decision.
3. When an issue of constitutional interpretation arises in the courts, the Council shall:
A) Remand the case to the concerned court if it finds that there is no need for
constitutional interpretation; the interested party, if dissatisfied with the decisions
of the Council, may appeal to the House of Federation
B) submit its recommendations to the House of Federation for a final decision if it
believes that there is a need for constitutional interpretation
The meaning and implications of these articles has been the subject of controversy and
debate. The Chief Justice of the Federal Supreme Court (FSC), on one occasion, stated that
“the power to interpret the Constitution is equated with the power to declare federal or state
law as unconstitutional and therefore null and void”.21 Thus, according to him, the act of
invalidating legislation for unconstitutionality is what the phrase ‘Constitutional
interpretation’ is meant to signify in the Ethiopian Constitution.22 The import of this
argument is that it is only the power to enquire into the constitutionality of legislation that the
Constitution has entrusted to the House. The Constitution, as a result, does not identify a
single organ that is responsible for constitutional interpretation. In the absence of any law or
provision that excludes the courts from the business of constitutional interpretation, they
conclude, the courts still have the power to expound the provisions of the Constitution
through interpretation, short of invalidating legislation for unconstitutionality.
A careful reading of the provisions of the Constitution, however, does not warrant the
conclusion that the Constitution, in referring to constitutional interpretation, only refers to the
power to determine the constitutionality of legislation. The Constitution does not equate
constitutional interpretation with the act of invalidating legislations. In order to demonstrate
this one needs to determine what a “constitutional dispute” is since article 83 of the
Constitution and, by implication, article 84(1) of the Constitution23 state that the House shall
20
A discussion of the power of the Council indirectly indicates the power of the House as the Council
serves as an advisory organ of the House.
21
Kemal Bedri Key note address in Faculty of Law/Civil Service College (cited above at note
11).
22
Donovan, an American scholar, has also argued that the act of interpretation, which the drafters had in
mind when they assigned the power of constitutional interpretation to the House was the act of declaring
a federal or state legislative provision invalid as violative of the Ethiopian Constitution. See DA.
Donovan, “Levelling the Playing Field: the Judicial Duty to Protect and Enforce the Constitutional
Rights of Accused Persons Unrepresented by Counsel” Ethiopian Law Review Vol. 1(1) (2002), p.31.
23
Any power entrusted to the Council is a power given to the House as the former is merely an advisor of
the latter on matters of constitutional interpretation and constitutional review.
133
decide all constitutional disputes. Once we determine what a constitutional dispute is, we can,
then, easily identify the role of each organ in constitutional interpretation and constitutional
review.
An apparent feature of a constitutional dispute, that one identifies easily, is the determination
of constitutionality or what we call constitutional review. This is the power of invalidating a
legislative act, which is considered to be in contradiction with the Constitution. This is also
what the Constitution in article 84 (2) refers to when it makes mention of the
“unconstitutionality of a federal or state law”. This is the first aspect of a constitutional
dispute. A constitutional dispute, however, should not necessarily involve the issue of
unconstitutionality of legislation. What makes a dispute a constitutional dispute is the mere
fact that the dispute involves constitutionally recognized rights. The determining factor is that
a claim is made based on the provisions of the Constitution or that provisions of the
Constitution are in one way or another implicated in a case brought before the court.
Resolving such a dispute may not require more than expounding the provisions of the
Constitution. At the most, what would be required of the responsible organ under such
circumstances is to determine the scope and application of the constitutional rights to the
operative facts of the case. It would not require of them to declare a legislative act
unconstitutional.
The Ethiopian Constitution, in agreement with the above explanation of constitutional

dispute, recognizes that not all cases of constitutional dispute entail the need to determine the
constitutionality of legislation. This is clear from article 84(1), which empowers the House to
receive matters that give rise to issues that involve constitutional interpretation. Here the
Constitution, by simply referring to the interpretation of the constitution (without mentioning
anything about issues of constitutionality), has made it clear that it acknowledges that
constitutional interpretation may not always be about determining the constitutionality of
legislations. That is also why it specifically deals with the issue of constitutional review
under another specific provision, article 84(2), and does not lump it together with article
84(1), which generally discusses constitutional interpretation. Had the Constitution, like the
Chief Justice argued, equated constitutional interpretation with the act of determining the
constitutionality of legislations, it would not have been necessary to deal with the latter under
a separate provision (i.e. article 84(2)).
Thus, a constitutional dispute, in the context of the Ethiopian Constitution, has two aspects:
the general task of interpreting the Constitution with a view to ascertaining the meaning,
content and scope of a constitutional provision (article 84(1)) and the more specific task of
determining the constitutionality of “federal or state law” (article 84(2)). Thus, in contrast to
the conclusions of the Chief Justice, the Constitution does not equate constitutional
interpretation with the act of determining the constitutionality of legislation. In fact, it
recognizes that not all cases of constitutional dispute involve issues of constitutionality. It
acknowledges that the process of interpreting the Constitution does not always lead to what
the Chief Justice referred to as the end product (a declaration of unconstitutionality).
Once this is made clear, the argument that courts have the power to interpret the Constitution
falls away. It becomes obvious that the House has both the general power of interpreting the
Constitution and the specific function of invalidating legislation that is unconstitutional. This
134
is so because the Constitution, under article 84(1) and (2), provides to the House both the
power to decide on matters where it is necessary to interpret the Constitution and cases where
the constitutionality of any federal or state law is contested.
The House, in discharging its duty of constitutional adjudication, is assisted by the Council,
an advisory body, whose main function is to examine constitutional issues and submit its
findings to the House. This is a body composed of mostly legal experts of high standing,
headed by the Chief Justice of the FSC.24 The list of its members include the Vice President
of the FSC, six legal experts appointed by the President of the Republic on recommendation
by the House of Peoples’ Representatives and three other persons designated by the House
from among its members.
Where issues of constitutional interpretation arise, the matter is first referred to the Council
by a court or ‘the interested party’. The Council, upon receiving the matter, should deliberate
upon it and submit its recommendations to the House if it believes that the issues raised
involve constitutional interpretation. If the Council, on the other hand, believes that there is
no need for constitutional interpretation, it can remand the case to the concerned court. In this
regard, it should be noted that the findings of the Council are mere recommendations and the
House is at liberty to adopt or reject the recommendations of the Council. The Council, as
indicated earlier, is thus an institution with an advisory capacity. The House, on the other
hand, is the body that is entrusted with the function of providing the ultimate and final
decision both on constitutional interpretation and more specifically on the constitutionality of
legislations.
This concentration of power in the House has provoked debates regarding the role of courts
in constitutional interpretation. Does it mean that there is no role left for the courts as far as
constitutional interpretation is concerned other than referring to the Council matters that
require the interpretation of the Constitution? The article now turns to deal with this issue.
IV. THE ROLE OF THE COURTS
Notwithstanding the consensus on the ultimate power of the House to interpret the
Constitution and rule on the constitutionality of legislations, there is an argument that has
been going on for a while now to the effect that the courts still have the power to interpret the
Constitution and refuse to apply a legislation on the ground that it is not in conformity with
the Constitution. Some of them rely on what they call “the normal (sometimes they call it
“inherent”) judicial business of courts” and argue that the power of the courts includes
refusing to apply an Act of parliament on the ground that it is not compatible with the
Constitution.25 Others advance their argument based on the premise that the courts have the
duty to enforce the Constitution.26 However, those who argue along these lines do not accept
24
See article 83-84 of the Constitution.
25
Tsegaye Regassa, “ Courts and the Human Rights Norms in Ethiopia” in Faculty of Law/Civil
Service College, cited above at note 11, p.116.
26
See Assefa, cited above at note 11, p. 13.
135
the conclusion that the courts can invalidate an Act of parliament. They rather limit the power
of courts to espousing the provisions of the Constitution.
In the following paragraphs, the article examines these positions. The purpose of this
exercise is to identify the role of the courts, if there is any, in constitutional interpretation
and constitutional review in Ethiopia. The article shall commence the discussion by
elucidating the argument from “the inherent judicial task”, which according to this writer,
is not defensible under the Ethiopian legal system.
1. CONSTITUTIONAL REVIEW: ‘THE NORMAL BUSINESS OF

COURTS’?
According to some Ethiopian academics, declaring a law invalid is the “inherent” judicial
task of the courts. These academics start from the premise that it is the usual/ normal
business of courts to find and declare the law. When a court nullifies legislation on the
ground that it is unconstitutional, it is applying the existing law as opposed to a non-
existing or repealed law.27 The court, in other words, is declaring what the law is. The
“normal business of courts” thus includes the act of invalidating legislation for
unconstitutionality. Based on this, they argue that the courts should proceed to resolve
constitutional disputes without referring them to the Council. To substantiate their
argument, they forward two reasons. First, all judicial power (including finding,
interpreting, and declaring the law) belongs to courts. In relation to this, a reference is
made to article 79(1) of the Constitution, which vests all judicial powers, both at Federal
and State level, in the courts. Second, all laws, practices and decisions in contradiction with
the Constitution, which are nullified ab initio by the Constitution, need no interpretation.
What they need is mere application, which in this case is a mere declaration of repeal.28
The first line of argument which relies on the so called “inherent judicial task” bears a
resemblance to the arguments advanced by Chief Justice Marshall in the most celebrated
case of Marbury v Madison. In that case the court, despite the absence of explicit
constitutional authorization to do so, refused to apply an Act of a coordinate branch of
government. By doing so, it assumed for itself the power of judicial review. In Marshall’s
opinion, a written Constitution is a law and it is “the province and duty of the judicial
department to say what the law is”.29 Thus, judicial power, according to him, includes
reviewing Acts of the legislature.
The problem with this line of argument is its reliance on the so-called “inherent judicial
task”, a concept that does not necessarily apply in Ethiopia. It assumes that finding,
interpreting and declaring a law is an “inherent judicial power”, which in the Ethiopian
case is vested in the courts. It, however, is not clear if judicial power necessarily includes
reviewing Acts of the legislature. A brief survey of the different legal systems would show
that this is not always the case. France, for instance, could be a good example. In France,
Constitutional control of legislation has always been entrusted specifically to political non-
27
Tsegaye, cited above at note 25, p.116.
28
Ibid.
29
Marbury v Madison, cited above at note 5.
136
judicial bodies. There is a long-standing distrust of the judges, who were perceived as
being the ‘bitterest enemies of even the slightest liberal reform”.30 Giving the judiciary a
controlling power has always been considered as something that ‘conflicts too much with
the traditions of French public life’.31This, in fact, was the main reason for denying courts
the power of constitutional review and establishing the Conseil Constitutionnel in 1958.
As it is also stated in the beginning of this chapter, in the United Kingdom, where
parliamentary sovereignty is “the dominant characteristic of [the] political institutions”,
judging statutes to be invalid for violating either moral or legal principles of any kind is not
the “normal business of courts”. Courts have no legal authority to invalidate statutes on the
ground that they are contrary to fundamental moral or legal principles.32 Understanding
judicial power as including the exercise of the power of constitutional review has always
been considered dangerous, as it would amount to “a massive transfer of political power
from parliament to judges”.33 The same is also true for New Zealand.34
One may not even be sure whether this (i.e. the inherent judicial task and considering the
Constitution as any other ordinary but supreme law) is not Marshall’s invention. During the
early days of America, the Constitution was understood to be a political instrument
different in kind from ordinary laws.35 Enforcing the Constitution was accordingly
understood to be an extraordinary political act. In refusing to execute particular laws,
judges [back then] relied on a variety of justifications, all of which were closer to outdated
English precedents than subsequent American doctrine, which extended judicial power to
include the power of constitutional review.36 It was only after Chief Justice Marshall that
the written Constitution started to be considered as any other law that falls within the ambit
of judicial authority.37
As indicated earlier, this development is, however, not matched by corresponding

developments in other legal systems. The situation, for example, is quite different in
Ethiopia. As the brief review of the history of constitutional review earlier in this chapter
indicated, declaring a law void for its repugnancy to the constitution has never been
considered as the normal business of the courts. Either it had never been recognized as
such or, when it was, it was explicitly given not to the courts but to another political body.
It is, therefore, difficult to accept in the Ethiopian context the argument that judicial power
includes the power of refusing to apply legislation on the ground that it is incompatible
with the Constitution.
The academics, in making a case for the role of the courts in constitutional review, also
relied on the argument that the courts, in refusing to give effect to legislation on ground of
30
Bell, cited above at note 9, p.2o.
31
“It is neither in the spirit of a parliamentary regime nor in the French tradition to give the
Courts…the right to examine the validity of a loi.” See Id, p. 27.
32
Goldsworthy, cited above at note 8, p.1-3.
33
Craig, cited above at note 8.
34
Ibid.
35
S. Snowsis, Judicial Review and the Law of the Constitution (1990) p. 1.
36
Ibid.
37
Id, 2-4.
137
incompatibility, need not engage in interpretation. This is so because legislation, which is
in conflict with the Constitution, is nullified ab initio by the Constitution. What is required
from the courts is mere application, which in this case is mere declaration of repeal. It is
true that provisions of laws, which contradict the Constitution, are of no effect right from
the beginning and not when the court declares them so.38 ”The declaration is merely
descriptive of a pre-existing state of affairs.”39 In an interesting remark by Ackermann J:
The court’s order does not invalidate the law; it merely declares it to be invalid.
A pre-existing law which [for instance] was inconsistent with the provisions of
the constitution become invalid the moment the relevant provisions of the
constitution came into effect…the test for invalidity is an objective one.40
However, making such a distinction in the present context would only be simplifying the
matter as interpretation and declaration cannot be divorced from one another. It is, of
course, the Constitution that nullifies them ab initio. This, however, does not mean that
interpretation is not needed. Any institution that is competent to make this decisive
declaration needs to necessarily engage itself in constitutional interpretation. A declaration
of unconstitutionality requires of a court to examine the impugned provisions of law
against the rights recognized by the Constitution. The court needs to determine whether the
impugned provision infringes the rights and whether such infringement is justified by the
limitations recognized by the Constitution. In fact, it is when the court exercises its power
of constitutional review that it needs to undertake a vigorous and careful interpretation of
the Constitution. Enquiring into the constitutionality of legislation is always ‘a question of
much delicacy’.41
As the foregoing discussion suggests, any argument to empower the courts with a
constitutional review power cannot base itself on a claim that engaging in such exercise is
the normal judicial business of courts. This would be an erroneous application of an
American principle in a country that has a different legal tradition. It would also amount to
utter disregard of the existence of various legal systems that construe judicial power quite
differently and stand quite in contrast to the American judicial system.
2. THE DUTY TO ENFORCE THE CONSTITUTION AND

CONSTITUTIONAL INTERPRETATION
A number of Ethiopian academics and officials of the judiciary, though on a different basis,
still maintain the argument that Ethiopian courts have the power to interpret the
Constitution. The argument is that this power stems from the constitutional commitment to
respect and enforce the fundamental rights and freedoms set forth in chapters two and three
of the Constitution.42
38
Article 9 of the Constitution states that any law which contravenes the Constitution shall be of
no effect.
39
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) para 94.
40
Ferreira v Levin No 1996 (1) SA 984 (CC) para 27.
41
Snowsis, cited above at note 35, p. 131.
42
See Assefa, cited above at note 11, p. 13; Tsegaye, cited above at note 25, p.111. Article
138
The basic premise of this argument is that ‘enforcement presupposes interpretation’.
In the words of Assefa Fiseha:
The judiciary’s role in ‘respecting and enforcing’ fundamental rights and

freedoms is clearly enshrined in Article 13 and this role of ‘respecting and
enforcing’ fundamental rights and freedoms is illusionary unless the judiciary is,
in one way or another, involved in interpreting the scope and limitation of those
rights and freedoms for [sic] which it is duty bound to ‘respect and enforce’.43
The court, it is argued, is faced with this “unavoidable duty” of interpreting the
Constitution both in civil and criminal cases.44 The following issues are often raised to
illustrate that constitutional interpretation is a necessary corollary to adjudication of
criminal cases:
Was the respondent granted a sufficient hearing before his driver’s license was
revoked? Did the entry into the burglar’s house require a search warrant? Does
hearsay violate the right of confrontation? …Has the defendant’s detention for
seventeen consecutive days violated the right of speedy hearing? Was the zoning
ordinance that shut down the loud speakers at the local cathedral a violation of
free speech,[religion] and separation of church and state?45
Therefore, to the extent that the courts enforce the rights and freedoms enshrined in the
Constitution, they exercise the power of interpreting the Constitution. To this extent, they
conclude, the courts have the power to state what the constitutional law is.46
It is, however, not clear whether all enforcements of rights under chapter three of the
Constitution presuppose interpretation. Of course, most often courts are required to
interpret the law in order to determine the meaning of the applicable law and apply it to the
operative facts of the case brought before them. It is seldom that courts mechanically apply
a pre-existing rule. This, however, does not mean that there are no cases where the courts
cannot enforce a provision of the Constitution by simply applying it, without going into the
business of interpretation. However few they might be, it is submitted, there are still cases
where the courts can enforce the provisions of the Constitution without interpretation.
It is also because not every single enforcement of a provision of a constitution, or any law
for that matter, requires interpretation that it is sometimes said that one should simply
apply the law when its meaning is clear. When the language of a constitution provides a
plain, clear meaning, the plain meaning of the language is to be applied and there is no
13(1) of the Constitution reads: “All Federal and State legislative, executive and judicial organs at all
levels shall have the responsibility and duty to respect and enforce the provisions of this chapter”.
43
44
M Wills “Draft Materials on the Ethiopian Constitution” (1999) 29 as cited in Assefa, cited
above at note 11, p. 15.
45
Ibid.
46
139
room for judicial construction.47 In such cases, it is submitted, the judiciary is left with little
to do other than strictly and literally to applying and enforcing the provisions of the
Constitution.48
Of course, there is a view that says a court cannot give meaning to a provision of a
constitution, ‘however plain’, without engaging in the work of interpretation. According to
this view, all legal meaning is fundamentally a matter of context and interpretation.49 The
proponents of this view also believe that words only take on their real meaning when
placed in context. In the words of De Ville, interpretation is a “mode of existence rather
than a methodology”.50 According to him, we are always interpreting.
This theory of interpretation, which denies the existence of a ‘non-positional’ interpreter

under all circumstances, entails the view that all texts are indeterminate. This, however, is
difficult to accept in a country like Ethiopia, which follows the civil law tradition where
detailed rules are enacted and judges are expected to strictly apply them without engaging
in interpretation. In Ethiopia, as may also be the case in many other civil law countries, the
legislature enacts laws which are detailed, explicit and clear. Under such circumstances,
however unreasonable the law may sound, the judges are expected to apply it consistently.
Many of the provisions of the Ethiopian Constitution, especially those that the courts are
expected to invoke in their daily functioning, are stated in an explicit and clear manner.51
This becomes clear when one looks closely at some of the provisions of chapter three of the
Constitution. Article 21 for instance, provides for the rights of persons held in custody and
convicted prisoners. Under sub article 2, it states, “all persons shall have the opportunity to
communicate with and to be visited by their spouses or partners, close relatives, friends,
religious councillors, medical doctors and their legal counsel”. If a detainee or a prisoner
presents a claim before the court alleging that he was denied contact with any of these
individuals, the court need only to invoke the provisions of this article and order the
defendant to comply with the constitutional provision. To do so, the court need not engage
itself in interpreting the Constitution. It only needs to mechanically apply this specific
provision of the Constitution to the facts of the case.
Article 19, which provides for the rights of persons arrested, is another good example. One
of the important stipulations of this article is that persons arrested have the right to be
brought before a court within 48 hours of their arrest. This is a very important principle of
any criminal justice system that courts need to enforce vigorously. It lies at the heart of the
duty of a state to protect citizens from any arbitrary and unlawful pre-trial arrest or
detention. However, the application of this article needs no interpretation. It only requires a
judge to ascertain the time of arrest and thus compute the time that went on before the
47
C. Antieau, Constitutional Construction (1982), p.3.
48
Ibid.
49
S. Sugunasiri, “Contextualism: The Supreme Court’s New Standard of Judicial Analysis and
Accountability, Dalhousie Law Journal Vol. 22 (1999) p.126.
50
JR de Ville Constitutional and Statutory Interpretation (2000), p. 3.
51
Donovan stated that the language used in the sections of the Constitution detailing the rights of
Ethiopian citizens caught up in the criminal justice system are written in the familiar language of the
everyday functioning of the courts. See Donovan, cited above at note 22, p. 31-34.
140
arrested person is presented before the court.52 The same also goes for article 23, which
provides for the prohibition of double jeopardy and article 32, which decrees freedom of
movement.
The implication of this argument is that the courts are expected to enforce the provisions of
chapter three of the Constitution only to the extent that it does not engage them in
interpretation. However, “if issues of Constitutional interpretation arise in the courts”[the
words of the Constitution itself] in the process of enforcing the Constitution, the courts
should refer the matter to the Council.53They should refrain from giving meaning to the
provisions of the Constitution and resolve the constitutional dispute. Under such
circumstances, they are expected to defer to the interpretation of the House.
Such understanding of the position of the Constitution in regard to constitutional review is

also important if the provisions of the Constitution itself are to be considered as consistent
and not contradicting each other. To the extent possible, provisions of the Constitution must
be read in conformity. This is often referred as the ‘unity of the constitution’ or “harmonious
interpretation of the constitution”. 54 Reading the Constitution as allowing courts to interpret
the Constitution in the course of enforcement gives the impression that the provisions of the
Constitution are inconsistent with each other. This is because, as already mentioned, the
Constitution, under article 84, provides the House with the power to interpret the
Constitution, in addition to the specific task of determining the constitutionality of legislative
acts. On the other hand, if the argument that the courts are only allowed to enforce the
Constitution to the extent that it does not require interpretation is valid, then the provisions of
the Constitution will be rendered consistent. The Constitution will then be read as having
categorically assigned a role for each organ (i.e. the House, the Council and the courts).
The controversy surrounding constitutional review was only confined to the text of the
Constitution. After the year 2001, however, that is almost six years after the adoption of the
Constitution, another element that gave momentum to the controversy came into picture. The
following section shall discuss this specific and important post-Constitution development.
52
Of course, there is another element of this same stipulation that may require the courts to engage in
interpretation. The Constitution states that the court, when calculating the 48 hours, should not include
the time reasonably required for the journey from the place of arrest to the court. On a case-by-case
basis the court may decide, “the time reasonably required for the journey”. This obviously may require
the court to interpret what the constitution meant when it refers to the ”reasonableness” of the time.
This, however, is only in cases where people may have to travel a long distance before they reach a
nearby court. For obvious reasons, this does not apply in most of the towns where there is always a
court, which is not too far from the police station.
53
Article 84(3) proceeds with the assumption that the courts refer a case to the Council when issues of
Constitutional interpretation arise in the former. This obviously suggests that courts are expected to
refer the matter to the council in the event deciding the matter at hand requires interpretation of the
Constitution.
54
N. Steytler, Constitutional Criminal Procedure: A Commentary on the Constitution of the Republic of
South Africa, 1996 (1998), p.17.
141
V. POST-CONSTITUTIONAL DEVELOPMENT
In the middle of 2001, the House of Peoples Representatives issued two proclamations
consecutively. Proclamation NO 250/2001, which deals with the powers and responsibilities
of the Council of Constitutional Inquiry, was issued first. Proclamation No 251/2001 that was
issued to consolidate the House of the Federation and define its powers and responsibilities
followed this.
Prior to the enactment of these two legal instruments, there was a general belief, among those
who believe that the courts are mandated to interpret the Constitution (either by way of
enforcement or as part of their “normal judicial task”), that the courts hold the power to
review the constitutionality of executive acts. According to the proponents of this argument,
the courts can examine the constitutionality of executive acts and, if they found them to be
incompatible with the Constitution, consider them null and void.
To substantiate their argument, proponents of this viewpoint capitalize on the reading of the
Amharic and English versions of Article 84(2) of the Constitution, which have different
meaning and implication. According to the English version, “where any federal or state law is
contested as being unconstitutional….” the House of Federation provides the final decision.
“The import of this provision is that the constitutionality of laws enacted by the House of
Peoples’ Representatives or state legislatures can only be challenged before the CCI and final
decision is rendered by the House of Federation.”55
A rough translation of the Amharic version of Article 84(2), on the other hand, suggests that
it is only where “laws enacted by the federal or state legislative bodies [i.e. the House of
Peoples Representatives or state legislature] are contested” that their constitutionality can be
challenged before the Council and final decision is rendered by the House of Federation.
Thus, according to the Amharic version, ‘law’ in article 84(2) only refers to formal
enactments of either the House of Peoples’ Representatives or state legislative bodies. The
offshoot of this argument is that the ordinary courts can challenge the compatibility of the
acts of the executive with the Constitution. In other words, the courts, for instance, have the
power to consider whether so-called regulations, which are issued by the Council of
Ministers, contravene the Constitution. The same applies for enactments passed by the
Federal government or its agencies or by regional agencies or governments.56
Advocates of this position maintain that this is consistent with the parliamentary system
adopted by the Constitution.
In parliamentary system, at least theoretically speaking, the existence and

effectiveness of the executive depends upon the securing of continuous support
from the members of parliament. Consequently it is often said that, parliament is
supreme, subject, of course, to the supremacy of the constitution. All other
branches of government are accordingly bound to assume that legislation
enacted by parliament is constitutional and that is why ordinary courts are
55
Assefa, cited above at note 11, p.12.
56
H. Scholler, Notes on Constitutional interpretation in Ethiopia (2003) p. 7.
142
prohibited from nullifying such legislation…[Thus] when the constitutionality of
executive acts is at issue, the judiciary is bound to review for their
constitutionality.57
Henrich Scholler who, almost in the same words, argues that the reason for this limitation is
that the Constitution does not want to exclude the executive power from control by the courts
also shares this. “Only the parliament itself is excluded, because in parliament the popular
will is expressed and should [not] be subject to control by a court.”58
Much need not be said on the fact that it is difficult to sustain this position in the face of the
conclusion we reached at the end of the previous section of this article. This is for all the
same reason that invalidating executive acts for constitutional incompatibility requires
interpreting the Constitution, which according to the Constitution, is a task left for the House
of Federation.
The implausibility of this position is, however, made more apparent by the two
proclamations. According to the Council of Constitutional Inquiry Proclamation, the House
of Federation has the power to decide on the constitutionality of any law or decision by any
government organ or official, which is alleged to be contradictory to the Constitution.59Law,
according to this Proclamation, is meant to include “the proclamations and regulations issued
by the federal government or the state as well as international agreements which Ethiopia has
endorsed and accepted”. Thus, the review power of the House of Federation is not limited
only to laws issued by the Federal and state legislative bodies but also extends to executive
acts, which includes directives and by-laws.
Some have considered these proclamations as having further elaborated the provisions of the
Constitution with regard to constitutional interpretation and cleared the confusion that
attended the role of the different organs in constitutional interpretation and in the more
specific task of constitutional review. Others have taken these developments to be
unconstitutional. According to them, these proclamations have unconstitutionally
consolidated the power of the House of Federation and further marginalized the courts from
the important task of constitutional interpretation. Some even speculate that these
proclamations were issued as a response to the growing consensus, especially among
academicians and some members of the judiciary, regarding the “unavoidable” role of courts
in interpreting the Constitution and more specifically in invalidating executive acts.60
It is submitted that these post-constitution developments go along with the general trend of
the Constitution in excluding the courts from any exercise that involves expositing the
57
58
Scholler, cited above at note 56, p.7.
59
Article 17(2) of the Proclamation reads: where any law or decision given by any government organ or
official which is alleged to be contradictory to the Constitution is submitted to it, the council shall
investigate the matter and submit its recommendation thereon to the House of federation for a final
decision.
60
Personal observations of the different views advanced by participants of the conference
on “Constitutional interpretation in Ethiopia”, organised by the Federal Supreme Court and Friedrich Ebert
Stiftung, 2002 Addis Ababa, Ethiopia.
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provisions of the Constitution. The Constituent Assembly, that adopted the Constitution,
believed that constitutional issues are more than judicial matters. “It was, therefore convinced
that such a task was so essential to the basic interests of the nations, nationalities and peoples
of Ethiopia that it could not be entrusted to an organ other than the House of Federation.”61 It
is this conviction that is now affirmed by the enactment of the two proclamations.
CONCLUSION
As the foregoing discussion suggests, the ultimate authority to interpret the constitution is
vested in the House. This includes the power to declare legislative acts and executive acts
invalid when it finds them to be repugnant to the Constitution. The House fulfils this task
with the expert help of the Council, which provides the House with recommendations. The
discussion has also demonstrated that the courts have neither the power to give an exposition
of the provisions of the Constitution nor the power to exercise constitutional review. The line
among academics that attempt to endow courts with the power to interpret the Constitution
can only be a pious wish.
As this same author has argued elsewhere, this particular Ethiopian approach to constitutional
interpretation and constitutional review does not escape from the same criticism that is
levelled against constitutional system that relied on courts for constitutional review. Its
attempt to eschew the counter-majoritarian problem by creating a novel system of
constitutional review that excluded the judiciary has not succeeded. Its decision to entrust the
function of constitutional interpretation and constitutional review to the House which is not
institutionally and functionally suited to discharge the task is also problematic. In as much as
the Ethiopian approach can be commended for the novelty of the system, it is not a
commendable system of constitutional review as it does not have characteristics that make it
a good part of a well-designed constitutional system. 62
61
Discussions at the Constitutional Assembly, December 1994 as cited in Ibrahim, cited above at note 17,
p.69.
62
For a detailed critical examination of the current system of constitutional review see Yonatan, cited
above at note 3.
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“In The Beginning”: Reflections on the Early Years of the Addis Law
School
James C. N. Paul•
Introduction
This is not a detailed history of the beginning of the Law School. Rather it is, primarily, a
discussion of the principles on which it was founded. I believe those principles may still be
of interest, even as the school now confronts very serious pressures and problems which
affect its ability to meet its obligation to train professional lawyers dedicated to the rule of
law. As will be evident from what follows, the Law School, during the decade 1963-74 was
a collective enterprise. Its successes were due to the combined efforts of a dedicated,
international faculty and our students of this period. I remain forever grateful to these
colleagues and friends. Indeed, their continuing affection for the law school is now evident
from the fact that, on the occasion of the school’s 40th anniversary, we (the faculty of
1963-74) joined in a project to create a Fund, now totaling around $125,000, to help the
school develop teaching materials and research in the fields of human rights law and the
rule of law – subjects which, I hope will remain basic goals of legal education in Ethiopia,
even in times of adversity.
Launching the Enterprise
During the years 1960-62 I visited Ethiopia several times, first on my own initiative as an
Eisenhower Fellow commissioned to study the development of legal education in
Anglophonic Africa, and then on missions for the Peace Corps. These trips inspired a
continuing affection (despite my ignorance) for Ethiopia and a deep interest in the steps
then underway to codify and “modernize” its legal system and, in light of these changes,
the need to develop a university law school.
During this time I corresponded with Don Levine (then working on his masterpiece, “Wax
and Gold”.) He encouraged my interest, and I wrote a short paper expressing my thoughts
which I sent to a few acquaintances in Addis. Indeed, I learned that, upon the founding of
Haile Sellassie University, the Emperor (as Chancellor) had pressed for the immediate
creation of a law school; and, in 1962, despite my slender qualifications, I was invited by
Lij Kassa Wolde Meriam, then President of HSIU, to become its founding Dean.
Three factors led to my acceptance. First, my wife, Peggy, was enthusiastic about the
project and about living in Ethiopia and the chance to expose our young children to a
different culture. Second, I was granted a generous leave of absence from the University of
Pennsylvania (where I was a tenured Professor). Third, the Ford Foundation indicated a
willingness to help the enterprise - though no final commitment had been made.
•
Professor of Law and the Founding Dean of the Law School
145
We arrived in Addis in June 1963. The rain season had begun. Lij Kassa was out of the
country. The university lacked an Academic and a Business Vice President to advise me on
what to do. There was neither a university budget nor a plan for the new Law School. The
“Duke Bet,” designated as the home of the Law School, was locked, and apparently, the
key was lost. There was no furniture, not even a chair, in that strange structure – (the Duke
Bet), nothing but a substantial amount of dust. When I sought help to get the building in
shape I quickly learned about the concept of “ishi negga.”
Despite this discouraging beginning, the picture soon brightened. The Ford Foundation
quickly responded to my urgent plea for an immediate, substantial grant to help pay for the
moving expenses of the initial faculty who I had already recruited; for the cost of starting a
library, for a mimeograph machine and for other essential items. Lij Kassa returned and, at
my request, invited the Emperor to dedicate the Law School as soon as we could put the
Duke Bet in operation. In preparation for that occasion, there suddenly appeared an army of
cleaners and carpenters and others carrying the furniture we needed. Books from the
University Library were temporarily “borrowed” to fill up our empty shelves and make us
look like a “going concern”.
The first faculty contingent also arrived - an energetic, gifted group who, along with our
memorable, scholarly friend, George Krzeczunowicz, supplied the hard work needed to
make plans and start operations in just a few months. Together we made some decisions
based on our basic assumptions about university legal education in general, and the
principles we should follow to implement them in Ethiopia. I hope these early decisions
may still be of some interest today.
Some Initial Formative Decisions
1. Determining the Size and the Academic Standards of the Law School
In 1963 there were, in Addis, less then a dozen, young Ethiopian graduates from foreign
university law schools – notably a group from McGill University in Canada, plus a few,
rather exotic, older professionally trained foreign judges and lawyers. Especially in light of
the “modernization” of Ethiopian law, the need for many more professionally trained
judges, government lawyers, and advocates was obviously urgent.
In theory, a case could be made for us to recruit a large entering class. However, several
considerations led us to limit enrollment. We determined that entering students should have
completed at least two years of university education with a superior academic record. That
meant we had to lure good students away from other units of the university – an outcome
which did not sit well with these faculties. Accordingly, our entering class was limited to
about 30 – although that number grew in subsequent years when we began to recruit full
time students from the military, police and various government offices.
We also believed a limited enrollment was particularly important at this time to establish
appropriate academic standards. The determination of appropriate standards for any
professional institution should depend on goals sought-- on the knowledge and skills
required for its graduates. We resolved that graduates of the Law School should be at least
146
as well prepared, professionally, as the Ethiopian LLB graduates from foreign universities
– such as the McGill group.
This called for rigorous classroom instruction of a kind which was new to most students,
notably because some faculty used “Socratic” methods of teaching. Our program also
called for the immediate preparation of teaching materials grounded in Ethiopian law that
challenged students to use that law (and, where appropriate, relevant foreign sources) to
resolve hypothetical cases and other problems related to the interpretation and
implementation of this new body of law. Our program also called for intensive “hands on,”
individualized instruction in legal analysis, drafting and advocacy—training which seemed
particularly important because there were no other institutions to provide practical, post-
degree training.
In light of the above, we lacked faculty resources to teach a large student body. Rather, it
seemed appropriate to adopt the “elitist” model described above. Certainly there are “large
scale” university programs of legal education in other countries, notably in many civil law
jurisdictions; but the legal systems of these countries also provide extensive, specialized
post-degree training before university graduates can become notaries, advocates, judges,
law teachers or other kinds of professionals. Later, when I became Academic Vice
President of HSIU, I did argue that it was very important for the government to create
regional universities in order, inter alia, to expand opportunity for legal education where
there was also an urgent need for professionally trained lawyers.
However, that step would obviously depend on the adoption of new, long term government
policies and budgets not then planned. In any event, I continue to believe that a country
lacking a well trained judiciary and an independent, self regulated legal profession can ill
afford to sacrifice quality for quantity. The effective development of the rule of law, as the
foundation of any creditable legal system, requires competent, dedicated and independent
judges and lawyers. Legal education committed to training them should never be provided
“on the cheap,” nor overwhelmed by numbers.
2. Outreach: Part Time Legal Education
At the outset we decided to establish an evening, part time program designed to provide an
opportunity for LLB training to experienced, educationally qualified, government officials
and military and police officers. We believed this program would serve important public
needs, and certainly these older students would also provide us, a foreign faculty, with
greater knowledge of Ethiopian circumstances relevant to our mission. Too, the evening
program provided important contacts and links with the world outside the university, and,
ultimately, a loyal and supportive alumni body. Indeed this program did prove to be a very
valuable asset.
Entry requirements, academic standards, the curriculum, course materials and

examinations for the evening LLB program were the same as those established for full time
programs. No “mercy” was shown to those who fell behind - no matter how highly placed
in government they might be. The popularity and success of the evening LLB program
soon led to decisions to establish Diploma programs modeled on the LLB course but with
147
more liberal standards and a modified curriculum. One specialized diploma program was
developed in cooperation with leaders of police to provide much needed training for their
officers.
Before the founding of the law school, there also existed, thanks to the initiative of the
McGill trained lawyers, a “Certificate” program which was taught in Amharic and
designed to “familiarize” advocates, judges, and members of Parliament with the new
codes. It was quite popular, and when the program was put under the aegis of the Law
School this gave it added prestige, and linked it to our “outreach” mission. These programs
provided, an interesting, if limited, practical response to local needs, and they ultimately
provided us with a large, diverse alumni constituency - and friends.
Thus, the Addis Law School became something more than a traditional “Faculty of Law”.
It was a “sui generis” center for legal education. Indeed we even began to reach out further
when we encouraged students, with the cooperation of the Ministry of Information, to
present radio programs in the form of discussions about Ethiopian law, aimed at informing
the general public about their rights and obligations. These efforts proved to be quite
popular, attracting large audiences.
3. The Curriculum, Course Materials and Faculty Loads
Planning a curriculum is a subject that often consumes much faculty time. However the
first step is to determine the principles and objectives which we thought should guide the
development of our program – not on the details of particular courses. For example: (i) In
view of the recent “ modernization” of Ethiopian law it seemed important to devote time to
the history and evolution of law and legal institutions in other regions, particularly in Civil
Law and Anglo-American countries, and then to the problems of” transplanting” those
systems to other regions of the world, notably Ethiopia. Too, the students should be
introduced to modern philosophies of law (e.g. Austinian vs. Sociological), and to political
theories particularly relevant to constitutional development. (ii) As noted above, some
courses should emphasize methods of interpreting, legislation, critiquing legal doctrines
and resolving hypothetical cases. We also thought that an additional objective should be to
provide close supervision individual student work requiring research and writing different
kinds of legal documents. (iii) The teaching of most courses should be based on faculty
prepared teaching materials designed not only to teach Ethiopian law but to relate this “law
in the books” to Ethiopian circumstances - and which included illustrative problems of
interpretation and implementation of the codes and other legislation for class discussion.
Preparation of these materials and revisions of them based on classroom experience and
further research, required considerable faculty time – and, thus, teaching loads limited to
one subject area. In light of the above, the organization and detailed content of each course
should be left to the discretion of individual teachers – not dictated by the full Faculty.
4. The Journal of Ethiopian Law and its Relation to the Educational Program
During 1963, we also developed plans for publishing the bilingual JEL twice a year.
Overall supervision was entrusted to an editorial board composed of both Ethiopian
lawyers and judges and members of our faculty. The first two issues were produced in
148
1964. The Emperor, in an “Introduction” (which I helped to draft) emphasized the need for
scholarly commentary and publication of significant, well reasoned court decisions in order
to promote knowledge of Ethiopia’s new legal system. His remarks helped to “legitimize”
the Journal and to encourage its circulation. From its founding until it ceased publication in
the 70’s; the JEL did provide scholarly resources to the profession, faculty and students.
The JEL also provided a valuable kind of educational experience to the many students who
volunteered time to work as “Assistant Editors” and as translators of sophisticated articles
written in English and vice-versa for court decisions written in Amharic. Many students
also became co-authors (with faculty members) – or authors in their own right – of articles.
Other articles were written by distinguished members of the judiciary and government
lawyers. Further, the JEL served an “outreach” function. It was well received by many
advocates, judges and in government circles as well. In 1965, we invited readers of the
Journal to become “patrons” (financial supporters) of it – promising that their names would
be published in each issue. This effort proved successful during the Journal’s early years. It
helped to expand its readership as well as pay for its publication costs.
5. The Library
The importance of the Law Library to the quality of legal education need hardly be
elaborated here. During the early years, we were fortunate to enjoy considerable assistance
from our Ford Foundation grant and many foreign donors to help build a sizeable
foundation collection.
Departing from my basic assignment in regard to this article, I offer here some personal
thoughts (for whatever they are worth) on several additional principles which, I think,
should guide the ongoing development of the library, especially in light of the important
“role” now assigned to the Law School to develop graduate level education. Advanced
legal education and, indeed, the intellectual development of new faculty members, should
encourage study of political and legal theory, comparative law, the history of the transfers
of legal systems into non-western countries, the concept and importance of the “rule of
law” in both the private and public spheres and the problems of implementing these
concepts in large socially diverse countries like
Ethiopia.
The collection should also aid exploration of theories about the different roles of law in
promoting different concepts and strategies of development .e.g. the problems of state-
managed development; the history of harms done to people by different kinds of state-
managed, large scale infrastructure projects, (such as the building of dams) which have
often resulted in the uncompensated, displacement of the rural poor and pastoral people;
the roles of human rights in promoting “people” and “poverty” centered “human”
development; the problems of creating an effective body of foreign investment and
“private” international law; the importance of environmental law in Ethiopia and the
development of effective methods to enforce it. Fortunately much of the literature on these
new subjects now exists in electronic form.
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6. Ethiopian University Service
This university wide program requiring students to serve, in rural areas – in various fields
such as education, public health, agriculture, and local government - was initiated in 1967.
I strongly supported it, believing that it would provide a valuable educational experience –
notably because most of our students came from Addis or Asmara, and many were rather
unfamiliar with the cultural and social diversity of the different rural areas of their country
where most Ethiopians lived. Some of the faculty writings, based on field research,
reported in the appended faculty bibliographies underscore this point.
It was my hope that, through the EUS programs, our students could be attached to local
courts and governments in rural areas. Learning about the administration of law at “grass
roots” levels was, and perhaps still is, an important dimension of legal education, and a
subject, which, absent research materials, could not be taught in the classroom, nor by
professional work in Addis. A good example of this is learning about the problems of
enforcing women’s rights, as codified by the UN Women’s Convention (ratified by
Ethiopia long ago). Alas these hopes for developing “grass roots” education were never
realized. The Ministry of Justice “drafted” all our EUS students into government service in
Addis – not in the Provinces. However, today, in light of development programs,
emphasizing small – holder agriculture, and important human rights considerations
concerned, e.g. with women’s right and “participatory development” it seems to me that
knowledge of “grass roots” legal development is still very important.
Interestingly, a group of able senior law students challenged the legality of the EUS
program in the High Court, claiming that the University Charter did not authorize it.
Despite the able arguments of the University’s experienced counsel, and to my dismay
(albeit tempered by admiration for the skills shown by our students), the High Court, in an
opinion rendered by its foremost foreign judge, agreed with our students; he decided that
the EUS was not an “academic” program and thus not authorized by HSIU’s Charter.
Although I disagreed with his opinion, I included it in my constitutional law sourcebook as
a valuable illustration of doctrine of “ultra vires”, then a rather novel concept. The students
abandoned their case when the University appealed the High Court judgment, permitting
the program to go forward until it was terminated with the coming of the revolution.
7. The Development of Professional Standards and Ethics
In the ‘60s, advocates and judges (with a few exceptions) had no formal training in
professional organization, responsibilities and standards. There was no bar association, no
code of professional ethics, nor an effective system of oversight and discipline. The
concept of an independent, self regulated profession, an essential component of “rule of
law,” was lacking.
Accordingly, we took steps to develop knowledge of, and pride in, professionalism in the
Law School. We requested the first entering class to form their own professional
association and draft a body of rules establishing an Honor System - a code of governing
the taking of exams, the use of the library and the preparation of student papers, and other
conduct. This was a novel enterprise – unknown then, I believe, to Ethiopian education.
150
To its credit, the Law Student Association (LSA) also produced an annual “Law Day”
program, which entailed both a guest lecture by a distinguished government official and a
student presentation featuring, in a drama format, discussion of some novel legal issue - for
example: a parliamentary debate on the constitutionality of the Penal Code’s authorization
of corporal punishment for theft; a depiction of a labor dispute which followed the history
of a worker’s case from a hearing and decision of the Labor Board through appellate
review.
Another notable achievement of the LSA was the project to raise funds to construct “Law
House” - a building designed to provide for student - managed programs and receptions
and living quarters for senior students. Towards this end, starting with a gift of $10,000
from the Emperor, the LSA raised more than $80,000 during the period of my Deanship.
The building was completed after I left Ethiopia. Alas, after the Derg took control of the
campus, “Law House” was “expropriated” by the University and used for other purposes -
an unlawful act which, I suppose, will never be redressed.
8. External Evaluations and Consultation with Outside Experts
During our second year, we arranged for an international team of distinguished law
professors to visit the Law School, evaluate our progress and submit a report to the
President. The team was requested to visit classes, meet with individual students, faculty
members and university officials and the Minister of Justice. They also were invited to
review the curriculum, teaching materials and examination papers - and assess the quality
of these.. Thereafter, these evaluations occurred on a regular basis, and I think it is fair to
say, that we were regularly given high marks.
I believe that assessments, and visits and consultations with individual foreign experts, are
useful ways to review the development of new programs, particularly in some particular,
novel subject area – such as “law and development.” These visits can also be useful to
bolster the Law School’s standing within the university and the outside legal community –
and to boost faculty morale. Moreover, especially in times of adversity, guest experts are
usually quite willing to write strong reports to the university and the government
emphasizing the need for more resources to support programs which are essential to
maintain the academic quality of the Law School, and to condemn policies which
undermine its quality. Reports by internationally recognized experts can also provide useful
support in approaching donors for help in meeting specific needs.
9. The Faculty as a Key Resource
The quality of any academic institution is measured by the quality of its faculty - not only
the quality of its classroom teaching, but also, the quality of its scholarship, notably (in
Ethiopia) as reflected in the production of articles and teaching materials. During its
formative years, the Law School was fortunate to have an international faculty who were
both productive scholars and stimulating teachers. We were also, as noted, fortunate to be
able to limit most faculty teaching loads to one subject area. A survey of the publication
records of these colleagues attests to their extraordinary energy–not only in the preparation
151
of course books and texts but in the many JEL articles they wrote during their stay in
Ethiopia, and, indeed, in the many, very useful articles which they wrote after they left the
country. I believe that no other law faculty in Africa (or elsewhere) has left such an
institutional legacy - such valuable resources for the teachers who succeeded them.
Some Concluding Observations
Much of the above account has focused on decisions made during time when I was Dean.
But I wish to stress that the Law School continued to prosper during the able Deanships of
my successors: Deans Quintin Johnstone and Cliff Thompson. They, too, enjoyed the
support of a wonderful, productive faculty. Indeed, I hope my admiration for the efforts of
these colleagues has been made very clear. Today we are all part of a close– knit tribe,
which maintains an ongoing interest in the progress of the Law School.
I also remain very grateful for the generous support provided by the Ford Foundation and
particularly to Frank Sutton (Vice President of the Foundation) who convinced the
Foundation’s trustees that support for legal education in Africa, and particularly in
Ethiopia, was a worthy cause. In the ‘60s, other major, international donors thought that
funding legal education was a “luxury”, irrelevant to the country’s “development”; but
Frank believed that the building of a rule of law was indispensable to building both a
sustainable democratic system and development policies which are accountable to the
people.
In the ‘70s, in Africa, brutal military regimes, such as the Derg, seized power in many
countries and attempted to destroy the rule of law in them. In the United States, a strident
group of academics ridiculed the Ford Foundation’s legal education assistance programs of
the ‘60s, especially the Ethiopian program. We were told that we (the faculty who went to
Ethiopia) were deluded “legal missionaries,” that our assumptions about the importance of
the “modernization” and the rule of law were based on ignorance of lessons taught by the
“sociology of law” (an amorphous discipline which enjoyed popularity, if not much
intellectual coherence, in those days). In Europe, Marxist legal academics portrayed us as
“bourgeois enemies of socialist development”. These were discouraging times both in
Ethiopia (suffering under the Derg) and for many of us, the “deluded legal missionaries”.
However, today, all this criticism of our efforts seems ill-informed, to say the least.
International donors have now changed their tune. US AID and the World Bank support of
legal education and rule of law projects in Ethiopia are examples of a change of heart
which is better late than never. A large body of scholarly literature (based on considerable
experience) stresses the importance of developing a “rule of law” and human rights law, as
preconditions for building a sustainable system of democratic governance. Clearly, too, the
rule of law is also essential to promote foreign investment and maintain accountable
governance.
This new interest in support of legal education may, hopefully, be useful in helping today’s
Law School plan its ongoing development. In my view, planning legal education for the
future should start by identifying basic principles and goals and then identifying particular
programmatic decisions to implement them, and then estimating some of the costs required.
152
Perhaps the preceding discussion of the planning process we followed during the very early
years of the Law School may be of some value to planning today for the future. Of course,
presently, this exercise may seem academic, due to current policies of the government and
the university. Yet it still may be useful for the Dean and faculty to articulate a plan
showing what must be done to provide the kind of “quality” legal education urgently
needed, in light of experience and present national aspirations. Too, a well thought out plan
may provide an effective way to seek donor support in a time of donor interest. Donors
should be pressed to support programs identified by the Faculty as a result of its careful
planning, not programs cooked up by the staffs of donors.
Finally, let me come back to the faculty of the first decade. All of us are today, truly
appreciative of the wonderful opportunity we enjoyed: to have lived in Ethiopia and
learned something about its unique history and its cultures, and to have served the Law
School during its exciting founding era.
Certainly my family and I still look back on those years with nostalgia. My work with the
Law School provided the most challenging and rewarding period of my professional career,
which has spanned over 50 years. The Law School will always remain dear to my heart.
153
Preface to the Second Printing of the Fetha Nagast
Peter L. Strauss*•
Forty years ago, a modest Roman Catholic priest and scholar completed work on his
English translation of the Fetha Nagast,1 the traditional source of law for Ethiopia’s Coptic
Christian community and, thus, for its imperial courts as well. Fluent in most of the
languages needed for the task,2 Abba Paulos Tzadua had learned English when he was
forced to flee his seminary for England (where he was ordained) during the Italian
occupation; returning to Asmara to direct the Cathedral school, in the late ‘50’s he earned
degrees in Law and in Political and Social Sciences from the Catholic University of Milan.
By 1967 he was in Addis Ababa (Where in 1977 he would become Archbishop) and had
completed his translation. He asked James CN Paul, the founding Dean of Ethiopia’s
national law school, for help in finalizing it; and Dean Paul honored me, then a young
lecturer at the law school, with the request to be his editor. Abba Paulos and I spent
afternoons during the better part of a year discussing this storied document and the best
way of rendering it into what remains, to date, its final language. A gentle, unassuming
man of remarkable intelligence, Abba Paulos would rise through the Catholic hierarchy to
the rank of Cardinal… the first Ethiopian to attain that rank in the history of his church.
Remembered by Pope John Paul II in his homily as “a zealous priest and Bishop,” a pastor
of “outstanding concern for lay people,” this translation is only a part of the rich legacy he
left behind when, in 2002, he passed away.
Only in his absence would I dare to write an introduction to this printing of the Fetha
Nagast. His scholarship shines through the translation itself, and through the original
preface to the translation. What appears to have been his last published work was an essay
on its history that is attached as an appendix to these paragraphs. Among my colleagues in
Addis Ababa at the time, Peter Sand (a young German scholar) was the one who essayed
independent scholarship on this remarkable manuscript. Deeply familiar with civil and
Roman Law, as I am not, and with easy linguistic access to German and other European
scholarship about the Fetha Nagast, he contributed important analyses of its origins that
remain among its more important glosses, and that have greatly informed the paragraphs
that follow. Finally, the reader interested generally in the history of law in Ethiopia must
read Dr. Aberra Jemberra’s remarkable book, An Introduction to the Legal History of
Ethiopia, 1434-1974.3
*
Betts Professor of Law at Columbia Law School; teaches courses in Administrative Law, Legal
Methods, and Legislation.
1
“Fetha Nagast” is the spelling that will be used in this preface, corresponding to that chosen for this
translation. The researcher will also find it referred to in the literature as “Fetha Negest” and “Fetha
Negast,” and in quotations the spelling used in the material quoted will be repeated.
2
In addition to Ge’ez, the language of the traditional text, and his native Tigrinya, Abba Paulos was fluent
in Amharic (the language of a local translation and much commentary), Arabic (the language from which
the work had been translated into Ge’ez), Italian (the language of the existing European translation, by
Guidi), Latin (Roman law sources) and, of course, English-thus permitting him ready access to most of the
source documents of the Fetha Negast.
3
Published by the African Study Center of Leiden University. The Netherlands (Lit Verlag, 2000).
154
As sub-Saharan Africa became a destination for European missionaries, merchants, and the
colonizing soldiers who followed in their wake, it was surely wonderful to find a part of the
continent that was already Christian in substantial part-that had, indeed, survived its own
bloody encounters with Muslim antagonists… and that, through Egypt and its churches,
enjoyed regular, if somewhat tenuous, contacts with rest of the Christian world. It may
even have been some consolation to the European powers that, even during the Nineteenth
Century’s “scramble for Africa,” remarkably failed to reduce the Ethiopian empire to
colonial status that this part of Africa was Christian Africa on its own account. To have
found there, in the Fetha Nagast, a document with an apparent European heritage, with
roots in the same Roman law traditions as underlay the law of all Europe, suggested that
Ethiopia might already be civilized, as Europeans understood what that meant. It produced
a fascination with the Fetha Nagast, with translations and scholarly analysis quite stressing
the northern connection.
There is general agreement that the Fetha Nagast had its immediate source in a compilation
made in Arabic from the original Greek, for use of the Egyptian Coptic Church, by a
thirteenth century Christian Egyptian jurist usually referred to as Ibn Al4-Assal. (Until
recent times, the Ethiopian Coptic Church was a dependency of the Egyptian church and, at
least in name, its prelates came from there.) Ethiopian tradition traces the Fetha Nagast’s
origins back as far as the 318 sages of the Council of Nicea, during the reign of the
(Christian) Roman Emperor Constantine. Just when it came to Ethiopia and was translated
into Ge’ez (the Ethiopian ecclesiastical language equivalent to Latin) is uncertain, but
accounts that seem to have a fair grounding in historic fact have it brought up the Nile at
the request of the mid-fifteen century emperor Zara Yacob, seeking a written basis for law
by which to govern. What he received was a document at least as concerned with
ecclesiastical as secular matters, and it may well have had more use in church than official
circles. Indeed, on some accounts it was treated as a document only the elect were
privileged to know of and consult.
Little is known about its actual use in connection with Ethiopian law-administration. There
are accounts of consulting it in important criminal contexts from the moment of its arrival
Dr. Aberra Jembere reports:
When exactly the Fetha Negest became an integral part of the Ethiopian legal system is not
yet definitely established. Nor is it known when it started to be cited as an authority in the
process of adjudication of cases by courts. …Even though the Fetha Negest cannot be said
to have been codified on the basis of the objective realities existing in Ethiopia, it was put
into practice as well as interpreted in the context of Ethiopian thinking, and all this has
4
The history is well told in Richard Pankhurst, The Ethiopians (Blackwell 1998). Battles with English
expeditionaries, the product of diplomatic “misunderstandings” in the middle of the century, resulted in
the suicide of Emperor Tewodros, and the confiscation of many manuscripts of the Fetha Nagast (inter
alia) for the British Museum; but the British had no ambitions to remain and leadership of the Ethiopian
empire passed first to Yohannes and then to Menelik. When the Italians, who had occupied areas in what
is now Eritrea, attempted to push south in 1895 to vindicate a treaty that only in its Italian version
appeared to make Ethiopia a protectorate, their forces were routed at Adwa: the resulting peace treaty
secured Ethiopia’s independence until Italy’s avenging invasion of 1935, demonstrating the failure of the
League of Nations and preparing the globe for world war II.
155
given it an Ethiopian flavor. It was, however, formally incorporated into the legal system
of Ethiopia only in 1908 by Emperor Menelik II, when he established ministries for the
first time in Ethiopia. The law that established ministries and defined their powers and
duties laid down the following as one of the functions of the minister of justice. “He shall
control whether any decision has been given in accordance with the rules incorporated in
the Fetha Negast.”… The criminal provisions of the Fetha Negest were applied in Ethiopia
until they were replaced by the 1930 Penal Code of Ethiopia.5
That code, like those produced in mid-century at the behest of Emperor Haile Selassie, took
the Fetha Nagast as a starting point.
Perhaps, then, the principal importance of the Fetha Nagast, certainly today, is as a
symbolic document … and that, at many levels. It strongly reflects the Christian heritage
of the Ethiopian highlands that remains at the core of national character. And when
Ethiopia’s stature as an independent African monarchy helped to catalyse the emergence of
the ras tafari6 religion in Jamaica, the Fetha Nagast acquired new status as a revered book
outside Ethiopia: in 2002 copies of this translation were printed for distribution within that
religious community. For present purposes, the commitment of the Fetha Nagast to law is
the more important. For those concerned with rule of law issues in a nation where those
values have often enough been challenged, it stands for five and a half centuries of
commitment to written law, and to the higher character of that law… reaching ruler and
ruled alike. Like Magna Carta, like highest of the Roman law ideas on which it draws, it
may be able to serve as a strong tap root, capable of withstanding the momentary winds of
despotism and permitting the tree of freedom under law to re-enfoliate once they have
subsided.
5
Op.cit. P. 194
6
Ras Tafari is the name by which Emperor Haile Sellassie was known prior to his ascendancy.
156
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Book Review
George Anderson, Federalism: An Introduction (Special Advance Conference

Edition). Oxford/New York: Oxford University Press, 2008. Pp. viii+85. Price not
specified.
Tsegaye Regassa•
For anyone looking for a primer on federalism, George Anderson’s Federalism: An

Introduction is a good find. For those of us looking for a concise presentation of the
meaning, values, types, variants, and modes of operation of a federal system in a
comprehensive manner without however getting too technical or sophisticated—so that our
undergraduate students of federalism can relish on it—the publication of Anderson’s little
book comes as a good news that brings a sigh of relief. Fresh, current, and comprehensive
(without being detailed), it is reminiscent in many ways of Ronald Watts’ now classic book
on Comparing Federal Systems (2nd ed.) (1999)1. Its comparative reach, without however
calling itself to be a book on comparative federalism, is one of the best qualities of the
book. Within the pages of a small book (only 85 pages), all the basic information on all the
federal and quasi-federal countries in the world is summarized, often in the many boxes
that appear to have been prepared for this very purpose.
This “little book on federalism” is everyone’s guide to federalism and all that it implies. As
such it is written with the common man, the non-expert, in mind, it appears. In deed the
author meant it for practitioners of federalism—“politicians, government officials,
journalists, members of governmental and international organizations and concerned
citizens—who have practical interest in federalism, probably focused on federalism in their
own or other specific countries.”(Preface, p.vii). Needless to say, it is not a typical
academic book directed to scholars of federalism although they benefit from reading it. Nor
•
Tsegaye Regassa, LL.B, LL.M; PhD student, Lecturer-in-Law, teaches at the Law Faculties of ECSC
and AAU and can be contacted at: tsegayer@gmail.com, or tsegayer@yahoo.com .
1
Ronald L. Watts, Comparing Federal Systems (2nd ed). Montreal: McGill-Queens University, 1999, is
deservedly classic not only for its comparative reach but also for trying to study federalism not just
normatively by looking into the design of federations in constitutions and laws but also by looking at their
operations in practice. Daniel J. Elazar’s Federalism and the Way to Peace (Kingston: Queens University,
1994) is a more theoretical book with a similar significance. Elazar’s other book, Exploring Federalism
(Tuscaloosa,AL: University of Alabama, 1987) is another interesting work on the comparative genre. One
cannot however neglect the work by Ivo Duchacek’s Comparative Federalism: The Territorial Dimension
of Politics (rev. ed). (Lanham, MD: University Press of America, 1987) in this connection. In more recent
years, the Handbook of Federal Countries such as the one edited by Ann L. Griffiths in 2005 (Montreal:
McGill-Queen’s for the Forum of Federations) and Michael Burgess’s Comparative Federalism: Theory
and Practice (London: Routledge, 2006) have proved to be very helpful for students of federalism.
Anderson’s book will be part of this list of great books on federalism but will stand out as unique for its
conciseness and comprehensiveness.
162
are its audience exclusively experts or academicians. But to say this is not to discount its
importance; in fact, it is because of this that the book needs to be acclaimed.
Having been written by the current president of the Forum of Federations2 the book seems
to have benefited from the global and comparative perspective that the position of the
author brings to it. In a total of 10 chapters, the author effectively strikes a balance between
the need to become comprehensive and concise. Accordingly, in chapter 1 he gives us a
brief overview of federalism (its gaining increasing importance in the world 40% of the
population of which lives in federal polities; its varieties and contexts; and key common
features of federal systems such as a written, supreme, and rigid constitution interpreted by
a neutral body; autonomy of states; bicameralism with a representative upper house; etc.).
Chapter 1 also contrasts/compares federal systems with devolved unitary regimes (pp.5-6).
In chapter 2, in the main, the origins and evolutions of federalism are discussed. Coming
together, alias aggregation/integration, and devolution are considered the paths that lead to
the “birth” of a federal polity. In an attempt to describe the “waves” of federalism that have
been seen in history, Anderson discusses old federations (which could otherwise be called
classical3 or mature4) of the late 18th to early 20th century, postcolonial federations (of
Africa, Asia, and Asia-Pacific), post-communist federations (of East and Central Europe
and former USSR), post-conflict federations (of the type in Bosnia, Ethiopia, the Sudan,
Congo, etc), federations emerging out of a strong unitary past (e.g. Belgium, Spain, South
Africa, etc), and transnational5 federations (e.g. the EU). In chapter 2, Anderson also tries
to see the link, if any, between federalism and democracy.
The issue of the method used in forming the units that constitute a federal union (be it
states, provinces, cantons, lander, regions, republics (oblasts), territories (krais),
2
Ronald L. Watts, Comparing Federal Systems (2nd ed). Montreal: McGill-Queens University, 1999, is
deservedly classic not only for its comparative reach but also for trying to study federalism not just
normatively by looking into the design of federations in constitutions and laws but also by looking at their
operations in practice. Daniel J. Elazar’s Federalism and the Way to Peace (Kingston: Queens University,
1994) is a more theoretical book with a similar significance. Elazar’s other book, Exploring Federalism
(Tuscaloosa,AL: University of Alabama, 1987) is another interesting work on the comparative genre. One
cannot however neglect the work by Ivo Duchacek’s Comparative Federalism: The Territorial Dimension
of Politics (rev. ed). (Lanham, MD: University Press of America, 1987) in this connection. In more recent
years, the Handbook of Federal Countries such as the one edited by Ann L. Griffiths in 2005 (Montreal:
McGill-Queen’s for the Forum of Federations) and Michael Burgess’s Comparative Federalism: Theory
and Practice (London: Routledge, 2006) have proved to be very helpful for students of federalism.
Anderson’s book will be part of this list of great books on federalism but will stand out as unique for its
conciseness and comprehensiveness.
3
The US, the Swiss, the Canadian, the German, and the Australian federations of the late 18th and early
20th centuries are viewed as the classical of modern federations. See, for instance Ronald Watts,
Comparing Federal Systems (2nd ed).Montreal and Kingston: McGill-Queen’s University Press,
1999.pp.2-3
4
See Arthur MacMahon (ed), Federalism: Mature and Emergent. New York: Doubleday & Company,
1955, for the reference to the old federations as the mature federations.
5
Anderson does not use the term “transnational” to refer to the EU as a federation.
163
autonomous areas (okrugs), etc) is discussed in chapter 3 in a section fittingly titled “the
political geometry of federations”. Very thorny issues such as the redrawing of state
boundaries, choice of capital cities and their administration, etc are also discussed in this
chapter albeit briefly. In chapters 4 and 5, Anderson discusses the important topic of power
division (political and financial, respectively). Chapter 6 deals with political institutions of
the “central”, alias “federal”, government such as the legislative organs and the executive
offices with the concomitant challenges of ensuring representation of all states (or groups)
represented in these institutions of the “centre”.
“The legal pillars of federalism” (such as the constitution, rules on its interpretation, on
emergency powers, on constitutional amendment, on (human) rights, and the courts) are
discussed in chapter 7. In this chapter, Anderson makes the interesting point that “the
legitimacy of the courts is a key issue”, especially in the light of “the importance of the
judicial interpretation of the constitution” (p.62). Chapter 8 discusses intergovernmental
relations. Here, the point is made that interdependence and interaction between the
orders/planes6 of government exist as a consequence of which models of relations (coercive
versus consultative) should be carefully selected. The institutions and processes used to
manage the intergovernmental relations are also discussed in this chapter.
Chapter 9 is about the challenge of diversity. The title itself is quite telling: “Unity and
Diversity”. The challenge of preserving political unity in a federation, especially in the face
of demographic diversity, is given a deserved attention. A diverse array of methods used to
meet the demands of diversity (such as repression, exclusion, assimilation, or embracing
diversity, etc) is identified with the obvious preference, of course for embracing diversity.
Anderson also underscores the importance of “building out (devolution)” and “building in”
(representation at the “centre”) as the way to go about managing the challenge of diversity
if we have to take “a balanced approach to diversity” (pp72-74). The sensitive “question of
secession” is also discussed in this chapter. The fact that granting secession as a
constitutional right is unusual in the practice of countries is readily pinpointed. That
“Ethiopia’s constitution is unusual in providing a formal right to secession” is also made
mention of (pp.77-78). Perhaps it is because of this unique nature of the Ethiopian
federation that Ethiopia is frequently mentioned (at least 6 times) in this chapter alone.
The last chapter, chapter 10, is more or less a wrap up of the theme of the entire book. It
identifies the major strengths (e.g. its potential for democratizing a polity, for
accommodating diversity, etc) and weaknesses ( e.g. its being as much susceptible to
6
See Joseph F. Zimmerman, “National-State Relations: Cooperative Federalism in the Twentieth
Century”, Publius: The Journal of Federalism 31:2 (Spring 2001) on the use of the terms “orders” and/or
“planes” to refer to the realms of government in federations. John Kincaid’s “From Cooperative to
Coercive Federalism,” The Annals of the American Academy of Political and Social Science 509 (May
1990): 139-152 is more explicit on the use of the term “planes”.
164
conflict, corruption, breakdown of democracy, as other systems of governance, etc) of
federalism, its growing relevance in recent years, and the conditions needed for the success
of federalism. Apropos of the latter, it is stressed that “respect for the rule of law, a culture
of tolerance and accommodation between population groups, and significant elements of
shared identity” (p.81) are identified as factors that serve as hotbed for the success of
federalism. While Anderson also mentions the need for appropriate institutional
arrangements, he implies (with the rhetorical questions he asks) that leaders have immense
influence in turning a federal system a success or a failure (p.81). He thus seems to imply
that leaders can hugely contribute to the “making or breaking” of a federation.
The book is written in clear and simple language that makes it very accessible. To the
uninitiated reader of federalism, this book is read with the ease that an introductory and
non-condescending book is read. The boxes, which are 25 in total, make reading easy by
giving the uninitiated reader a break while also giving the nosy reader a mass of facts
detailing and exemplifying the assertions stated in the text. By way of instantiation, the
book often refers to one or other federal and/or quasi-federal polity(ies) from among the
world’s (28) federal and/or quasi-federal polities existent today7. Thus, either to illustrate
some common attributes of federal systems or to provide examples of some unique
features, countries are referred to along with brief information about those countries’
systems, laws, institutions, procedures, etc. To an Ethiopian reader, it is pleasing to see
her/his country’s federal system—the attributes it shares with other jurisdictions as well as
its unique features—is descriptively presented in a comparative context. For those who
would like to see the references to Ethiopia, they can only refer to pp. 2, 10, 17, 18, 45, 47,
48, 49, 57, 65, 72, 73, 75, 76, 78, and others, especially the boxes. This, it is hoped, will
help such readers to put the Ethiopian federation in perspective.
Nevertheless, the Ethiopian reader cannot but notice some inaccuracies regarding the
Ethiopian federation or some of the institutions. For instance, on page 47, Anderson makes
mention of Ethiopia as one of the federations (alongside Austria, Belgium, Canada,
Germany, and India) which “have unequal representation by constituent units, with weight
given to population differences”. As any observer of the Ethiopian federation would readily
note, in Ethiopia, states are not directly represented in the federal houses. While people as a
mere conglomeration of 100,000 individuals are represented in the lower house (called the
House of Peoples’ Representatives, HPR), “Nations, Nationalities, and Peoples” are
represented--not equally, of course—in the upper house (the House of the Federation,
7
The countries that have adopted a federal or quasi-federal arrangement, as listed even in Anderson’s
book under review (p.2), are: Argentina, Australia, Austria, Belau, Belgium, Bosnia-Herzegovina, Brazil,
Canada, Comoros, Democratic Republic of Congo, Ethiopia, Germany, India, Iraq, Malaysia, Mexico,
Micronesia, Nigeria, Pakistan, Russia, St Kitts and Nevis, South Africa, Spain, Sudan, Switzerland, United
Arab Emirates, United States of America, and Venezuela.
165
HOF)8. On page 48, Anderson maintains that in Ethiopia (like in Switzerland),
“constituent-unit legislatures decide how to select their members of the national upper
house.” In a similar vein, he states, on page 57, that “[i]n Ethiopia, the House of the
Federation, elected by the state legislatures, has final authority, subject to legal advice from
judges”. While his first assertion (on p.48) is correct, the second is not, especially when
seen in the light of article 61(3) of the constitution which holds that “members of the HOF
shall be elected by the State Councils. The State Councils may themselves elect
representatives to the HOF, or they may hold elections to have the representatives elected
by the people directly.” It is thus important to note that the route to membership in the HOF
is not only through indirect election, i.e., election by the state legislatures, but also through
direct popular elections as determined by the state legislatures. Of course when we see the
practice so far, Anderson’s statement seems to fare well as no state legislature saw the need
for direct popular election of its members of the HOF. Consequently, all the members of
the HOF are elected by the state legislatures9.
Anderson also commits a minor error when he makes his observation that the HOF,
“subject to legal advice from judges”, has the final interpretive power in times of
constitutional disputes. This is perhaps because he overlooks the (textual) fact that not all
members of the Council of Constitutional Inquiry (CCI) are judges. According to article 82
of the constitution, the membership of the CCI is made up of the President and Vice
President of the Federal Supreme Court, six legal experts (who may or may not be judges),
and three members of the HOF. So, while the CCI is predominantly a body of legal experts,
these experts are not necessarily judges10.
8
Article 61 of the Constitution of the Federal Democratic Republic of Ethiopia (FDRE) stipulates to the
effect that: “1. The House of the Federation is composed of representatives of Nations, Nationalities, and
Peoples. 2. Each Nation, Nationality, and People shall be represented in the House of the Federation by at
least one member. Each Nation or Nationality shall be represented by one additional representative for
each one million of its population.”
9
One recognizes that direct popular election of the members of the HOF is significant in terms of
providing the opportunity for the electorate to elect a person whom they think best represents their
interests. The indirect election by the state legislatures might result in the election, by the dominant party
in the legislatures, of someone who is more loyal to the party than to the electorate.
10
Article 82(2) of the FDRE Constitution stipulates that the 11 members of the CCI are: the President and
Vice-President of the Federal Supreme Court; six legal experts with “proven professional competence and
high moral standing”; and three members of the HOF designated by the HOF. It is obvious from this that
the six experts are not required, as a matter of necessity, to be judges. In actual fact, the profile of the
current members show that none other than the two presidents of the Federal Supreme Court are judges.
The names of the members are the following: 1) Ato Kemal Bedri (President of the Federal Supreme
Court and Chairman of the CCI); 2) Ato Menberetsehay Tadesse (Vice-President of the Federal Supreme
Court and Vice-Chair of the CCI); 3) Ato Degfe Bula (currently also the Speaker of the HOF); 4) Ato
Kuma Damaqsa (Currently Minister of Defense and a member of the HOF); 5) Ato Mulugeta Ayalew
(currently Deputy Chief Administrator of the Amhara National Regional State); 6) Dr Fasil Nahum (Legal
Advisor to the Prime Minister); 7) Dr Hashim Tewfic (Minister détat, Ministry of Justice); 8) Ato Hassen
Ibrahim (member of the HOF); 9) Ato Abay Woldu (member of the HOF?); 10) Ato Beyene Biltu (??);
and 11) Ato Getahun Kassa (formerly Dean of the Mekelle Law School and currently Executive Director
166
Anderson also makes the observation (on page 49) that the HOF “plays no role in normal
legislation.” While this is generally true, to say “no role” is to state it too strongly as it does
have some, although little, role in legislation. But perhaps one can ignore this as this is an
extremely minor point. In the chapter dealing with the challenge of diversity, Anderson
makes the observation that “Ethiopia has two major indigenous languages, as well as 11
minor and many tribal ones: there is no official language and all enjoy equal recognition in
principle.”(Page 76, italics mine). A question that quickly comes to mind is: what criterion
is used to establish the fact that some languages are major and others are minor? A
corollary question would be: which are the two major languages, and which are the 11
minor ones? Why are the rest “reduced”, if that is the right word, to the status of being
“tribal” languages? It is important to underscore that in Ethiopia, the constitution makes no
distinction between “major” and “minor” languages; nor does it use the rather pejorative
word “tribal” to refer to any of the languages of Ethiopia. Instead, it guarantees that “All
Ethiopian languages shall enjoy equal state recognition”11 and that Amharic is the working
language of the federal government.12 It is hoped that these comments are taken note of for
the second edition of this important book. These minor comments regarding inaccuracies
aside, this is a fine book.
A representative list of relatively current books on comparative federalism in the “Further

Readings” section is a plus, and the reader can only revel in finding it there.
of the Ethiopian Human Rights Commission ). As is indicated above, none of the members, other than the
Presidents of the Court--who are ex-officio members and chair and vice-chair of the CCI—are judges.
This has been confirmed on 26 February ’08 through an interview with Ato Daniel, the Acting Head of the
Secretariat of the HOF.
11
Article 5 (1) of the FDRE Constitution.
12
Article 5 (2) of the FDRE Constitution.
167

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Ethiopia’s Reluctant Move to Join the WTO

Reform of Legal Education in Ethiopia

Environmental Policy and Law of Ethiopia

On Formation of a Share Company in Ethiopia

Whose Power Is It Anyway: The Courts and Constitutional Interpretation in

Ato Tamiru Wondimagegnehu

Dr. Fikremarkos Merso AtoTilahun Teshome

Ato Wondimagegnehu G/Selassie

Article Editor Case Editors

Page Setting: W/rt Elise G. Nalbandian

Abebe Abebayehu - LL.B, LL.M; Lecturer (on study leave)

Abraham Ayalew - LL.B, LL.M; Lecturer

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Ethiopia’s Reluctant Move to Join the WTO: A Preliminary Look at

Reform of Legal Education in Ethiopia: the Ethiopian Experience in the

Environmental Policy and Law of Ethiopia: A Policy Perspective………........75

On Formation Of A Share Company In Ethiopia…………………………….102

Whose Power Is It Anyway: The Courts and Constitutional Interpretation in

Preface to the Second Printing of the Fetha Nagast……………………….....154

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