Draft Criminal Procedure and Evidence Law Contradicts the Ethiopian Constitution and Federal Architecture

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Marew Abebe Salemot

Debark University

Introduction  

This is a commentary on Article 25(3) of the Draft Criminal Procedure and Evidence Law (the Draft Law), which the Attorney General of the Federal Democratic Republic of Ethiopia distributed to stakeholders to solicit feedback. Article 25(3) of the Draft Law empowers courts of the state of Oromia (one of the ten regional states of Ethiopia) to exercise jurisdiction over some criminal matters that arise in one of the two self-administered city governments of Ethiopia, the capital city of the country, Addis Ababa. This commentary explores whether Article 25(3) of the Draft Law is (in)compatible with the Ethiopian Federal Constitution, and concludes that granting jurisdiction to the courts of the state of Oromia over some cases arising in Addis Ababa is unconstitutional. The provision, if not omitted from the final version of the Draft Law, will pose great challenges to the Ethiopian federation.  

Addis Ababa’s (Mis)treatment under the Constitution and the Political Ecology 

While the Ethiopian federal arrangement (for self-administered constituencies) assumes homogeneous identity and is solely based on ethnicity, such design fails when it comes to heterogeneously inhabited metropolitan cities like Addis Ababa and Dire Dawa. 

The constitution contains provisions concerning the Addis Ababa City Administration (as opposed to the Dire Dawa City Administration, which was established by Charter in 2004). Addis Ababa is the capital city of the country (Art. 49(1)). It is not a partner in the federation and does not enjoy the same autonomous status of the regions. However, it is commonly regarded as a region for some legal purposes. Constitutionally, it is a semi-autonomous authority accountable to the federal government (Art.49(2)), which means the federal government has the power to override the decisions of city government consistent with the constitutional provisions.  

The Oromia Regional State, which claims to have a mono-ethnic group, encircles Addis Ababa City and resists the city’s expansion to protect farmer’s rights. The Oromia Regional State even claims ownership of the capital. This situation is complicated partly due to the ambiguous statement in Article 49 of the Ethiopian constitution regarding the relationship between Addis Ababa and the surrounding Oromia Regional State. The provision reads as follows: “the special interest of the State of Oromia in Addis Ababa, regarding the provision of social services or the utilization of natural resources and other similar matters, as well as joint administrative matters arising from the location of Addis Ababa within the State of Oromia, shall be respected”. No detailed separate law has been promulgated to govern the relationship unequivocally. As a result, Addis Ababa has faced challenges, including accessing landfills, water supply, and securing plots of land for various projects and construction of condominium houses for its growing population.     

In the Ethiopian federal arrangement, Addis Ababa City – which is ethnically neutral – does not have any representative in the Upper House (known as the House of the Federation), unlike other self-administered entities, as the House is the representative organ of ethnic groups only. Although Addis Ababa is self-governing (Article 49), the Ethiopian constitution does not allow the city to have any single seat at the very institution that has the power to interpret the constitution (Article 62(1)).  

Furthermore, in the last three decades, the mayor of Addis Ababa City has never been elected by the residents, but has been appointed by the federal government from other regional governments, mostly from the surrounding Oromia Regional State.  

The New Draft Law Contradicts Ethiopia’s Federal Architecture and Addis Ababa’s City Government Sovereignty  

The constitution in Article 47(4) maintains that the “member states of the Ethiopian federation shall have equal rights and powers”. According to Article 50(8) of the Ethiopian constitution, separate powers are assigned to each level of government (federal and regional/self-administered cities), with a duty for each level to respect the powers vested on the other level of government. 

While the above constitutional provisions unequivocally state the Ethiopian federal arrangement in general and Addis Ababa’s autonomous status in the Ethiopian federation in particular, a debatable legal provision under the Draft Law is tabled for Parliament’s approval. According to Article 25(1)(g) of Draft Law, “offences committed in cities or places accountable to the federal government” are within the jurisdiction of federal courts. But in relation to Addis Ababa, this provision is subject to an exception that bestows criminal jurisdiction upon the Oromia State courts.  

Authorizing Oromia State Courts to exercise jurisdiction over crimes committed in Addis Ababa contradicts the principle of non-interference between the members of the federation. It is also surprising that the Draft Law singled out only Addis Ababa, while Dire Dawa (another self-administered city) is also accountable to the federal government.  

The New Draft Law Contradicts the Federal Constitution 

Under Article 52 of the Ethiopian constitution, entitled ‘Powers and Functions of States’, members of the federation are granted, among other things, the power to maintain public order and peace only [within the state] jurisdiction. Although Addis Ababa is not given state status, it has the constitutional right to a full measure of self-government. Against these constitutional promises, the new Draft Law empowers Oromia courts to have criminal jurisdiction over offences committed against the resources and interests of the Oromia state situated in Addis Ababa. 

Article 50 of the constitution allows the federal government to delegate its powers to the states, but it does not explicitly allow interventions by regional governments in other self-governing entities. Still, according to Wondwossen (2021), the constitution delegates the federal judicial power to states (Article 78 cum 80) until and unless federal courts are established in the states. 

Here are the reasons why the Draft Law is not constitutionally bound:  

  • Firstly, the federal government’s right to delegate its powers to the states cannot be used as a tool to promote the interest of a single regional state over other self-administered entities;  

  • Secondly, there are also unanswered questions that the Draft Law does not address. For example, are the federal and Addis Ababa courts not neutral and efficient enough to handle cases related to Oromia’s regional interest in the capital in the eyes of the Draft Law? Which entity has jurisdiction if an individual commits a crime both on Oromia and non-Oromia institutions simultaneously in Addis Ababa? Why does the Draft Law single Addis Ababa out from other territories which are also accountable to the federal government (for example, why is the Draft Law not applicable to Dire Dawa City, since Oromia regional State has properties there too)?  

What if the Draft Law is approved? 

If the Draft Law, including Article 25(3), is passed, it will be forwarded to the House of Federation, the Upper House of Ethiopia empowered to decide the constitutionality of any law, for judicial review. But the House of Federation, the home of the representatives of each ethnic group of the country who live in the ten regional states, but not of those who live in Addis Ababa and Dire Dawa, may not be the right institution to decide the question of constitutionality. In fact, in the absence of any single representative from Addis Ababa and with a large proportion of members who represent the Oromo ethnic group, the decision will hardly be neutral.   

Solutions 

The Draft Law that empowers Oromia Regional State’s intervention in Addis Ababa is unconstitutional for the reasons discussed above. As per the constitution (Article 9), any law which contravenes it shall be of no effect. As a result, the unconstitutional provision of the Draft Law should be omitted. Article 9 of the constitution imposes a duty on officials to ensure observance of the constitution, and so the lawmakers in the House of Peoples’ Representatives should reject Article 25(3) of the Draft Law.  

Marew Abebe Salemot is a Lecturer of Federalism at Debark University, Ethiopia,  

Suggested Citation: Marew Abebe Salemot ‘Draft Criminal Procedure and Evidence Law Contradicts the Ethiopian Constitution and Federal Architecture’ IACL-AIDC Blog (6 May 2021) https://blog-iacl-aidc.org/2021-posts/2021/05/06-draft-criminal-procedure-and-evidence-ethiopia.