The Federal and state courts system under the FDRE
Chapter nine of the Constitution, (Article 78 to 84) deals with the “structure and powers of the courts” on federal and state levels. It describes a “regular” three-tier Federal and State Court system. On the Federal level, the court system is comprised of Federal First Instance Courts, Federal High Courts and the Federal Supreme Court. On a state level, the system consists of State First Instance Courts (Woreda Courts), State High Courts (Zonal Courts) and the State Supreme Court. The Constitution also allows for Religious and Customary Courts. In addition, courts known as Social Courts have been set up in a number of States. Some of those courts have a historic origin. Others have been legislated for by the States’ Governments. Chapter nine of the Constitution, however, does not mention the Social Courts. This has led to a debate, in some quarters about whether such courts are constitutionally permissible.
Article 78(2) vests the supreme federal judicial authoritty in Federal Supreme Court. It also stipulates that the “House of Peoples’ Representatives may establish nation-wide, or in some parts of the country only, the Federal High Court and First-Instance Courts it deems necessary. Unless decided in this manner, the jurisdiction of the Federal High Court and of the Federal First-Instance Courts is delegated to the State Courts”.
As is evident in the Federal Courts Proclamation No. 25/1996, the Federal Supreme Court sits in Addis Ababa. The Federal High Courts and the Federal First Instance Courts sit in Addis Ababa, Dire Dawa and in such other places as may be determined in accordance with Article 78(2) of the Constitution. Pursuant to the Federal Court Establishment Proclamation No. 322/2003, Federal High Courts were established in the States of Afar, Benshangul, Gambella, Somali and Southern Nations Nationalities and Peoples.
Article 78(3) of the Constitution stipulates that the “States shall established State Supreme, High and First Instance Courts, and that particulars shall be determined by law”.
The jurisdiction of the Federal Courts, as based on the Constitution, is provided for in the Federal Courts Proclamation No. 25/1996, as amended by the Federal Courts (Amendment) Proclamation No. 138/1998 and the Federal Courts (Amendment) Proclamation No. 321/2003.
The principle is that Federal Courts have jurisdiction over:
In civil cases, the Federal Courts have jurisdiction over cases to which a Federal Government organ is party, suits between persons permanently residing in different Regional States, cases to which a foreign national is a parry, suits relating to patent, literary and artistic ownership rights, suits regarding insurance and applications for habeas corpus.
Article 80 of the Constitution, deals with the concurrent jurisdiction of Federal and State Courts.
The “regular” court system does not encompass the whole judicial structure within Ethiopia. In fact, religious (Sharia) Courts play a considerable role in the administration of justice. It is assumed that among the Muslim population (approximately 40% of the total population), a large number of cases end up before Religious Courts. The basis for those Religious Courts is not only cultural or historic. The Constitution allows for these courts to exist and to provide traditional justice. Article 34(5) of the Constitution stipulates that the “Constitution shall not preclude the adjudication of disputes relating to personal and family laws in accordance with religious or customary laws, with the consent of the parties to the dispute. Particulars shall be determined by law”. Pursuant to this article and to article 78 (5) of the Constitution, the House of Peoples’ Representatives and State Councils can establish or give official recognition to Religious and Customary Courts. Religious and Customary Courts that had state recognition and functioned prior to the adoption of the Constitution shall be organized on the basis of recognition accorded to them by the Constitution. In accordance with those provisions, the Federal Courts of Sharia Consolidation Proclamation No. 188/1999, established the Federal First Instance Court of Sharia. These courts are accountable to the Federal Judicial Administration Commission.
The Federal Courts of Sharia have common jurisdiction over the following matters:
On the level of first instance courts the State Religious Courts are called Naiba. The State Religious High Courts are called Kadi, and the State Religious Supreme Court is called the Sharia Court. The Islamic Council of the region recruits the judges of these religious courts and their names are transmitted to the Judicial Administrative Commission. The Commission accepts them on the basis of their qualifications. They are mostly involved in marital disputes.
Municipal and social court
In the U.S. judicial system, municipal courts (city courts) typically have jurisdiction over cases involving local regulations. These courts decide local liquor-license issues, complaints about land-use violations, city ordinance violations, misdemeanor traffic and parking violations, and other minor complaints. In many states, such as Delaware, local elected officials, including the mayor or city council members, preside over these courts as part of their official duties. In Montana the municipal courts have jurisdiction in small claims, with maximum awards ranging from $3,000 to $15,000.
Small-claims courts( in our country more or less similar to social courts) are those with jurisdiction to hear cases with very limited financial implications, generally valued up to $15,000, or with a maximum as low as $5,000. Small-claims courts generally have less rigorous procedures and they are venues that encourage individuals to represent themselves, without the assistance of a lawyer.
Social courts exist as part of the organizational structure of the Ethiopian judiciary. They have been established in five States: Tigray, Amhara, Oromia, Southern Nations, Nationalities and Peoples and Harar. These courts are established at the Kebele (community) level in rural and urban areas. The number of Social Courts has not been determined but it is believed that they number thousands. In any case, their number is much higher than the Woreda Courts.
In 2003, Oromia adopted the Municipal Administration Proclamation. Pursuant to this Proclamation any city with a population of more than 10,000 citizens may establish a Municipal Administration, a Municipal First Instance Court and a Municipal Appellate Court.
The jurisdiction of the Municipal Courts includes:
In Addis Ababa City, Keble Social Courts were established by the Addis Ababa City Government Revised Charter Proclamation No. 311/2003.
According to Article 50 of this Proclamation, Addis Ababa City Courts have jurisdiction over cases regarding property and monetary claims where the amount involved does not exceed Birr 5,000. The jurisdiction of Kebele Social Courts over city hygiene and public health contraventions and other similar petty offences are to be determined by the law issued by the City Council. A party dissatisfied with a decision of a Keble Social Court may appeal to the First Instance Court of the City. The decision rendered by the latter shall be final. Where a matter decided by a First Instance Court of the City on appeal contains a fundamental error of law, this may form the basis of an appeal in cassation before the Appellate Court of the City.
Article 61 and 62 of the Tigray State Constitution provide in addition to the State Supreme Court, a High Court and Woreda Courts, that Social Courts are to be established by law. Article 62(2) reads as follows: “There shall be Social Courts under the Woreda Courts in each Tabia and Kebele. Details shall be provided by law”. Article 89(1) stipulates that “Tabia or Kebele Social Courts are part of the Judiciary”. The jurisdiction of Social Courts in Tigray includes both civil and criminal matters and they are thus empowered to deliver enforceable judgments in both cases. In civil matters, the jurisdiction of the Social Courts is confined to matters in which the amount in controversy does not exceed Birr 1,500. The case can be any civil matter related to contract, damage and compensation, property, lease agreement, and the like. The Social Courts have the jurisdiction to try the case, pass judgment and ensure its execution. In criminal matters, Social Courts are authorized to determine the guilt or innocence of a defendant charged with a petty offence that is determined by law to be within the jurisdiction of Social Courts. Either party to a dispute has the right to have the decree or judgment delivered by a Social Court reviewed by the Woreda Court. If the case appealed is fully confirmed by the Woreda Court, it becomes final. However, if the case is completely reversed or partially amended either party has the right to appeal to the High Court. The judgment rendered at this stage will be final
Administrative courts and the tribunal system
Administrative agency courts are designated to hear cases emerging from disputes with particular governmental bureaucracies, or on narrowly defined subject matter. Administrative courts are independent from the executive branch of government. Before accepting cases, these courts typically require that all avenues for resolving the conflict through commissions and agencies have been attempted. It is only when the bureaucracy has failed to find a resolution that is satisfactory to the parties involved in the dispute that the court will take up a particular case. Selection of judges, their terms of service, and qualifications for office vary by state. Appeals of the decisions made by administrative agency courts go directly to intermediate appeals courts, or in some states, to the highest court. There are different types of administrative courts across the nation. The development of particular administrative courts is closely connected to the particular culture, history, industry, and natural environment of individual states.
The comment of the Indian Supreme Court in R.K. Jain vs. Union of India may be noted here due to its relevance to the current state of tribunals and the tribunal system in Ethiopia. The Supreme Court observed:
“An intensive and extensive study needs to be undertaken by the Law Commission in regard to the constitution of tribunals under various statutes with a view to ensuring their independence so that the public confidence in such tribunals may increase and the quality of their performance may improve. We strongly recommend to the Law Commission of India to undertake such an exercise on priority basis.”
In another case the court unequivocally said: “That the various tribunals have not performed up to the expectations is a self-evident and widely acknowledged truth.” This is also true to the current situation in Ethiopia. No one including those in charge of the administration of justice will deny that the public is not reaping the fruits of justice which mainly emanate from the very nature of administrative courts.
The ultimate justification for the existence of administrative courts is to render an alternative means of adjudication to the citizen. The adjudication process in the ordinary courts is expensive, not easily accessible and rigid due the stringent procedure courts follow. On contrary the system of administrative courts has been proved to be flexible, easily accessible, inexpensive and suitable to provide speedy justice. However, those advantages peculiar to administrative courts have not been practically realized in our country.