Haramaya Law Review

FOUNDERS OF SHARE COMPANIES UNDER THE ETHIOPIAN SHARE COMPANY LAW: LEGAL ANALYSIS

Serkalem Eshetie Adinew — Fri, 08 Mar 2024 00:00:00 -0500

This article explores the Commercial Code and other laws of Ethiopia regarding founders –
who they are, liabilities and benefits - who are also called ‘promoters’ by many other
company laws. To some extent, it also looks into the business practice based on documents
like memorandum of associations, articles of association and prospectuses. By so doing, it
discloses many of the flaws in the existing laws. It argues that the Ethiopian share company
law recognizes large number of persons as founders which is against the general convention
in the area. Accordingly, it tries to indicate that not all founders in the law shall be held
responsible for the liabilities that may emanate from the activities pertaining to forming a
share company. In addition, it shows that the law does not adequately regulate the matters
connected with the liabilities and benefits of founders. Apart from imposing liabilities on a
person who should not be responsible at all, it is found that there are several challenges for
both the injured parties to claim against the founders and the founders to get their benefits.
Accordingly, the article suggests that the law on founders should be revisited to avoid the
pitfalls arising out of the process of establishing share companies.

DOMESTIC IMPLICATIONS OF CONCLUDING OBSERVATIONS OF THE COMMITTEE ON THE RIGHTS OF THE CHILD: THE CASE OF ETHIOPIA

Anteneh Geremew Gemeda — Fri, 08 Mar 2024 00:00:00 -0500

Ethiopia is party to the Convention on the Rights of the Child and its two substantive
Protocols. Ethiopia’s reporting history to the Committee on the Rights of the Child is better
in terms of complying with periodicity and participation than its reporting histories to other
treaty bodies. Ethiopia submitted four reports to the Committee and received
recommendations. This article aims to examine the implications of these recommendations
on domestic child rights framework. Ethiopian delegates to the constructive dialogues made
a number of promises and submitted reports of compliance with regard to the Committee’s
recommendations. Concluding observations of the Committee, which are checklist of
compliance with conventional obligations, can be considered as soft obligations on the
government of Ethiopia. Though concluding observations cannot sufficiently reach domestic
law-making process and the law making organs, propelling role of the observations in the
adoption of domestic laws, policies and plans of action is observed. With regard to the
interpretative relevance of concluding observations, this article shows that there is no
analytical mode of treaty application and prescribed principles of treaty reference, which
would have paved the way for utilizing the concluding observations of the Committee in
interpreting child rights treaties.

EXAMINING THE DESIGN OF THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIAN CONSTITUTION IN THE LIGHT OF AREND LIJPHART’S GUIDELINES OF CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES

Teferi Bekele Ayana — Fri, 08 Mar 2024 00:00:00 -0500

Consociational democracy model is a political model developed by Arend Lijphart as a
solution to the problem of unstable democracy in divided societies. Its core idea is that in a
divided societies, stable democracy can be realized if diversities are acknowledged and
accommodated through mechanisms of a grand coalition, minority veto, proportional
representation,and segmental autonomy. However, Lijphart remarks that the practical
effectiveness of consociational model presupposes wise constitutional design for which he
provided nine main guidelines of constitutional design for divided societies (hereinafter
shortly referred as, Lijphart’s guidelines): 1) Proportional legislative electoral system, 2)
Using the simplest form of proportional electoral system, 3) Establishing parliamentary
form of government, 4) Power-sharing in the executive, 5) Ensuring cabinet stability, 6) A
ceremonial head of the state who is not directly elected by the people, 7) Adopting
federalism and decentralization, 8) Granting non-territorial autonomy, and 9) Power
sharing beyond the cabinet and parliament.
This article examined to what extent the design of the Federal Democratic Republic of
Ethiopian Constitution (Hereinafter shortly referred as, the FDRE Constitution) reflects
Lijphart’s nine guidelines mainly by analyzing the provisions of the Constitution vis-a-vis
the guidelines or by considering the existing prevailing political practice in some cases. The
overall findings of the examination are summarized into four areas. These are:
1) Areas where the design of the Constitution totally deviated from Lijphart’s guidelines;
2) Areas where the design of the Constitution remained silent as to Lijphart’s guidelines;
3) Areas where the design of the Constitution corresponded to Lijphart's guidelines in
form but deviated or at least has potential to deviate in substance; and
4) Areas where the design of the Constitution fully corresponded to Lijphart’s guidelines
The deviations (both in form and substance, or in substance alone), or the silences of the
Constitution as to the guidelines are mainly because of the choice of electoral system, lack
of explicit constitutional provisions, the absence of established political practice, or silence
of the constitution.

FREEDOM OF EXPRESSION AND THE ETHIOPIAN ANTI-TERRORISM PROCLAMATION: A COMPARATIVE ANALYSIS

Henok Abebe Gebeyehu — Fri, 08 Mar 2024 00:00:00 -0500

The Anti-Terrorism Proclamation of Ethiopia has a far-reaching effect on human rights,
such as freedom of expression. The provisions of this law that impact freedom of expression
are discussed in this article. The law gives leeway to criminalize innocent acts of individuals
who are critical of government policies. It criminalizes in/direct encouragement to the
preparation, instigation and commission of terrorism through the publication of statements.
The law falls short of international standards that require only the criminalization of a
speech intended and likely to incite terrorist acts. The Proclamation demands everyone
including the media and journalists provide terrorism-related information to law
enforcement agencies. The only way to be relieved of this obligation is showing the existence
of a ‘reasonable cause’, a phrase that is not defined by the law. Moreover, the journalistic
privilege of confidentiality of information and the protection of sources is not stipulated as
an exception to the obligation of disclosure of information. Nor does the law provides the
circumstances in which a journalist may be forced to divulge her information. Though
surveillance and interception undermine democracy, a mere suspicion of terrorism gives the
National Intelligence and Security Service a power to conduct surveillance or intercept any
type of communications. The Proclamation failed to provide circumstances that a court
should consider before permitting surveillance or interception. Surveillance and
interception invade privacy and chill freedom of expression. However, the Proclamation
failed to provide any safeguards that limit the misuse of executive power against freedom of
expression. The legal ambiguity together with the nascent jurisprudence pose problems on
freedom of expression. Hence, domestic courts should draw upon or transplant principles
and their interpretations from jurisdictions like South Africa and Council of Europe to fill
legal loopholes. Moreover, the “jurisprudential dearth” could be filled and the impact of the
Proclamation on freedom of expression may be assuaged by incorporating the three-part
test (prescribed by law, legitimate aims and necessary in a democratic society) from the
well-developed jurisprudences of human rights bodies and regional courts, notably the
European Court of Human Rights, which stands at the heart of the Council of Europe
system.

ADMISSIBILITY OF HEARSAY EVIDENCE IN CRIMINAL TRIALS: AN APPRAISAL OF THE ETHIOPIAN LEGAL FRAMEWORK

Gashaw Sisay Zenebe — Fri, 08 Mar 2024 00:00:00 -0500

Despite Ethiopia following a common law approach regarding evidentiary principles, rules
and procedural safeguards in criminal trials, the country does not have a codified and
compiled evidence law. This problem might partly be attributable to the difficulty of
concepts involved in evidences such as hearsay. Because of inadequacy in the legal
framework and absence of explicit provision, there was no clear standing as to the status
and admissibility of hearsay. Recently, the FDRE Supreme Court Cassation Bench rules
hearsay is regulated in the law and makes it always admissible. However, the plausibility of
the court’s decision is questionable starting from the very existence of hearsay as a rule or
an exception, and its constitutionality as well. In this article, an attempt is made to appraise
admissibility of hearsay evidence in criminal trials in the Ethiopian legal framework.
Accordingly, the following vexing issues will be addressed: Pertaining to the legal tradition
it has been adopted, what would be the fate of admissibility of hearsay evidence in the
country? Does the term “indirect knowledge” under Article 137(1) of the Criminal
Procedure Code (CPC) have something to do with admissibility of hearsay evidence? In
light of CPC provisions, what conditions former testimony, preliminary inquiry and
confession must meet to escape the ban under the hearsay rule? What significance the
confrontation clause of Ethiopian Constitution can offer to the admissibility of hearsay
evidence and in solving the thorny issue of permissibility as a rule or as an exception?
Finally, in contrast to ordinary crimes, hearsay is clearly admissible in crimes of terrorism
in the Ethiopian law, why is this so? And the potential risks will be highlighted.

NOTE ON: LAWS REGULATING FRANCHISE BUSINESS IN DIFFERENT JURISDICTIONS

Eshetu Yadeta Temesgen — Fri, 08 Mar 2024 00:00:00 -0500

In franchise business the franchisor allows the franchisee to use its trade mark, trade name,
logos, industrial designs, symbols, emblems and designations in return for royalty related
payments. In this rapidly expanding form of doing business, different jurisdictions regulate
it differently: by enacting franchise specific regulations; developing court practices or
through general contracts provision that protect. Such regulations are primarily meant to
protect the franchisee from the information asymmetry and financial and technical power of
franchisor. Franchise business regulations and general contract provisions jointly regulate
contemporary national and international franchise business.