Analyzing the 'Simplicity' core feature of Ethiopian Civil Code

SIMPLICITY

Simplicity is the last core feature of continental European codification that Weiss has identified. While the element of a gap-less code was addressed to the judiciary, and the systematic element spoke to legal scholars, the element of simplicity is referred to the citizen. Simplicity does not refer only to the technicality of drafting laws.

It also raises an important political question – to whom is a codification addressed? The idea of simplicity has always been a goal of good law and it can be found in most definitions of codification. Historically, the idea of ‘simple’ code was exercised intensively through legislation having two purposes: establishing a rule of law and providing citizens with simple and comprehensive law. Weiss has discussed the arguments of some scholars emphasizing on the conflicting goals of addressing the code to the judiciary and legal scholars, and at the same time, to every citizen. He also explained instances where scholars even considered drafting two versions of a code to each addressee. However, this type of twin code was never enacted. Historically, Weiss has noted the Prussian civil code as the only code enacted by taking into account both legal scholars and citizens. The Prussian civil code was drafted containing abstract rules with many definitions and numerous examples with the goal of teaching the law to citizens without the help of legal professionals. He also cited the German civil code showing how the code was drawn by high technical language and addressed primarily to legal professionals and was not meant to be a first law reader for ordinary citizens. Weiss concluded that although it is not necessarily a defining element of codification, simplicity in the sense of a simple law that can be understood by everybody is a desirable feature of codification. Indeed, one of the supposed advantages of codification includes certainty, simplicity and accessibility to the layman.

With regard to the element of simplicity the following analysis can be made on the Ethiopian civil code. More or less, although the wording of the code was preferred to be somewhat more prolix, the Ethiopian civil code is situated within the same tradition of French legislative expression. The French civil code is inclined more to the idea of complete than simple code and expresses the law by taking into account legal scholars and the French way of life. Thus, the French civil code endeavored to frame the expression of the legal rule at the proper level of abstraction. It is not so abstract as to be incomprehensible or meaningless, and at the same time, it is not so concrete as to be inapplicable to a wide variety of cases or over a long period of time. The Ethiopian civil code followed similar method of expression. Rene David drafted the preparatory plan with the proper level of abstraction having Articles divided into numbered paragraphs and limited each paragraph to one sentence. This has facilitated the work of the codification commission and permitted them to express the rules of the civil code with more clarity. From this, it can be inferred that the codification commission seems to have been guided by the French techniques of addressing the code to legal scholars. As mentioned before, the Ethiopian codification commission accomplished a considerable work in formulating the Amharic language the definitions translated from French and attempted to prepare a code that could be understood by the people. The commission intentionally excludes, whenever possible, any foreign words and phrases from the code. When the commission encountered a French word which had no equivalent in Amharic, the commission endeavored to find a Geez word which could translate it. The code; thus, borrows very little word from European languages and maintains its national characteristics. Nevertheless, apart from the problems associated with the inner system of the civil code discussed earlier, there are some translation-related errors which greatly affect the simplicity of the code. Amharic thought does not develop as does western thought and it is not well developed in its own legal, conceptual terminology, and even less so in the exact equivalences of the foreign language terms. This has resulted in a considerable amount of mistranslation. In the study conducted by Moreno whether the French terms were accurately translated into the English and Amharic versions, it was noted that there are some startling errors. The civil code contains different confusing terminologies to convey one single idea. For example, the words ‘debt’, ‘credit’, ‘claims’ and ‘chose in action’ found in Articles (1048, 1347, 2865-68 and 2411(2)) of the civil code, were all translated from a single ‘crêance’ French word. Likewise, the French ‘faute’ has been translated as ‘offense’, ‘default’, and ‘fault’. With the same method the Amharic version of the code employed different terminologies for both ‘crêance’ and ‘faute’ terms. For French legal scholars the French civil code is relatively simple to understand because of uniform usage of terms throughout the code. In the Ethiopian case, however, different terminologies were used to convey the same idea both in the Amharic and English versions of the code. In addition to different terminologies there are some differences in the French and Amharic version of the code. For example, Article 668of the civil code, ‘Pronouncement of Divorce for Serious Cause,’ states in the English and Amharic versions: ‘The Family Arbitrators shall make an order for divorce within three months.’ In the original French, it states ‘one’ month. With the intention of making the terminology used in the civil code uniform and to assist the use of similar terms to express the same idea, Rene David has provided a very detailed and important alphabetized table in the French version of the preparatory plan. Unfortunately, this alphabetized table has been omitted in the Amharic and English editions for unspecified reason. The alphabetized tables would have facilitated the understanding of the civil code in a country where even legal scholars let alone citizens were not yet familiar with different terminologies of the code. David also prepared an explanatory memorandum (expose des motifs) in an effort to make the civil code simple and relate the abstract to concrete. He planned to upgrade his explanatory memorandum to a formal commentary since he noticed lack of pre-existing body of laws for reference. However, his plan again was never brought to fruition and only small parts of the explanatory memorandum got the opportunity to be published. The absence of these two important alphabetized tables of terms and explanatory memorandum hugely affects the simplicity of the code. Besides, lack of sufficient body of case law and doctrinal works continues to affect the simplicity of the civil code to present time.

In addition to this, the effort to keep the civil code in accordance with the Amharic language creates some additional problems to the civil code’s feature of simplicity. Many legal concepts have been ‘forced’ into ill-fitting Amharic moulds. Many of the provisions of the civil code contain archaic and outdated terms which are not even understood by judges. The problem of the language of the law was a more serious handicap for the non Amharic speaking people than it was for those Amharic speakers. Amharic language is not the mother tongue of the majority of inhabitants of Ethiopia. Regarding the rights of language, it may not be out of place to add here the provisions of the 1995 Ethiopian constitution. The constitution gives equal state recognition to all Ethiopian language and every Nation, Nationality and People have the right to learn with, to speak, to write and develop its own language. According to the constitution members of the federation have the right to determine the working language of their respective states. As a result, state courts in Ethiopia adjudicate civil disputes with their respective state languages. For example, the state of Oromia, Tigray, Somalia and Afar use Afaan Oromo, Tigrigna, Somali and Afar languages respectively. However, the civil code has only Amharic and English versions. The civil code is very difficult for the majority of the people in states to get access to, read and understand. For the legal scholars in different states the English version of the civil code is being used as a common source. Since English language is the medium of instructions in law schools, the English version of the civil code is understood by all. Courts in different non-Amharic speaking regions, for example, translate the civil code either from the Amharic or English version to the state language and apply the provisions of the code to specific cases at hand. Even though the official version of the code is Amharic, the tendency to look for the Amharic version of the code is insignificant. It may safely be assumed that the Amharic version of the civil code has considerably less impact in different states of the country.

Moreover, the Ethiopian civil code, though eroded through time, served the society for a long time. Throughout this time, some terminologies become archaic and outdated for the society as well as intellectuals to understand. This is due to the non existence of a revision process in the Ethiopian drafting framework. For a certain law to be amended, visible and practical defects such as inconsistency with the constitution and restrictions on operation need to be demonstrated. The only terms that exist in the Ethiopian drafting system are amendment and repeal. The non existence of revision of laws on grounds of language evolution and changes in institutional names has made the civil code a very difficult text to understand for the modern day Ethiopian intellectuals as well as citizens. As mentioned previously, in the absence of Amharic equivalent for the French terms, Geez terms were used. Recently, Geez is among the most endangered languages and its applicability is limited only to the Ethiopian Orthodox Church. The Geez language is not in the Ethiopian educational curriculum. Hence, it can be concluded that in the modern Ethiopian legal system, some terms are foreign to most intellectuals as well as citizens. When all of these factors interact, they create numerous instances of genuine code vagueness.