Legal updates on federal court establishment proclamation, proclamation number 1234/2021

Introduction

The Federal Court Proclamation no 25/96 its amendment, which has been in force for many years, is repealed and replaced by the federal courts' Proclamation number 1234/2021.  When we look at the existing proclamation, the new law introduced new elements. In these short notes, we will briefly explore the new features of the proclamation and the reason behind the improvements of the proclamation to its current content.

• Defining fundamental error of law

Although the existing proclamation states that the fundamental error of law should be the basis for filing a complaint about cassation, but it did not put the exact meaning of what kind of error is the fundamental error of law? What kind of error is not considers as fundamentals?  As a result, it has been difficult to handle cassation cases. Under the current system, three judges of the federal supreme courts' cassation have no legal framework to rule on whether a final decision has contained a fundamental error of law or not. To help to avoid this problem the proclamation under article 2(4) clearly stated the exhaustive list of the fundamental errors of law. Accordingly, the following can be cited as a fundamental error of law.

• The decision passed in the violation of the constitution
• Decision made by misinterpreting a legal provision or by applying an irrelevant law to the case
• Decision made by not framing the appropriate issue or by framing an issue irrelevant to the litigation.
• Decision made by denying to award judgment to justifiable matters
• By giving an order in the executing proceedings unwarranted by the main decision.
• Decision made in the absence of jurisdiction over the subject matter in dispute.
• An administrative decision or act rendered in contradiction with the law.
• The decision was made in contradiction with the decision of the federal Supreme Court cassation decision.

To some extents cassation over cassation is prohibited

The Federal Supreme Court Cassation Division has been re-examining cases on a cassation procedure regardless of whether the issue involves a federal or a state matter.  The Federal Supreme Court re-examination of state matters is against the letters and spirit of the Constitution and has no legal basis. Such practice puts the federal and federated member states' power-sharing arrangement at risk. Furthermore, the practice would open flood gates of cases to the bench of the Federal Supreme Court Cassation Division, thereby making it inefficient in terms of timely disposition of cases and quality of decisions. There is neither legal nor factual basis for cassation over cassation in state matters in present-day Ethiopia.

The Federal Democratic Republic of Ethiopia Constitution under Article 80 states that:

1. The Federal Supreme Court shall have the highest and final judicial power over Federal matters.
2. State Supreme Courts shall have the highest and final judicial power over State matters.
3. Notwithstanding the Provision of sub-Articles 1 and 2 of this Article;
4. The Federal Supreme Court has a power of cassation over any final court decision containing a basic error of law. Particular shall be determined by the law.
5. The State Supreme Court has the power of cassation over any final court decision on State matters which contains a basic error of law. Particular shall be determined by law.

Federal Court Proclamation No. 25/96 under Article 10 made it abundantly clear that “in case where they contain a fundamental error of law, the Federal Supreme Court, shall have the power of cassation over final decisions of the Regional division of the Federal Supreme Court and final decisions of the Regional Supreme Court rendered as a regular division or in its appellate jurisdiction.” Moreover, Article 2(1) of Proclamation No. 454/2005 state that “interpretation of a law by the Federal Supreme Court rendered by the Cassation Division with not less than five judges shall be binding on Federal as well as the regional council at all level This sweeping provision poses the most controversial constitutional issue: Cassation over Cassation. There is intense academic debate on the constitutionality of Cassation over Cassation. The new Proclamation takes a drastic shift in this regard by abolishing Cassation over Cassation by way of curbing the power of Federal Cassation to review only decisions of Regional Cassation decisions only in restricted instances. As per Article 10 of the Proclamation, the Federal Supreme Court Cassation Division will have the mandate and competence to review a decision of the Regional Supreme Court Cassation Division if and only if the decisions of Regional Supreme Court Cassation “violate the Constitution” and misinterpreting legal provisions or by applying an irrelevant law to the case and when these cases involve “high public interest and national importance.”  

• The jurisdiction of the federal courts on civil matters is amended

According to the repealed proclamation 25/88 the civil jurisdiction of the federal first instance court was up to five hundred thousand birr (500,000) .pursuant to article 11(1) and 14 of the new federal court proclamation 1234/2021 the jurisdiction of the federal first instance court is up to ten million (10,000,000) and the jurisdiction of the federal high court is over ten million birr. The main reason for this is

• the current existing inflation;
• according to article 5(1)(p) of the new proclamation up to five hundred thousand birr of financial, contract, and credit dispute are to be settled by Addis Ababa city court are the major one.
• Public interest litigation allowed

Pursuant to Article 11(3-4) of the proclamation the federal high court has the power to render decision, judgment or order in order to protect fundamental rights and freedom set forth in chapter three of the constitution. Any person who has vested interest or sufficient reason may institute a     suit before the federal high court to protect the right of his own and others. The court may use the appropriate article of 176-179 of the civil procedure code for any proceeding. This means, for example, a human right organization can be taken their claim to the federal high court in the event of a human rights violation.

• Establishment of the cassation panel hearing

Pursuant to Article 26(1) of the proclamation if cases subject to different interpretations of the binding decision already made by the supreme court of cassation, should be decided by the cassation division of at least seven judges.  

• Court annexed mediation and case management

Regarding court-annexed mediation under article 45 of the proclamation clearly stated that, among the case that is to be heard by the federal first instance court and federal high court, the main civil case shall be referred to the court-annexed mediation in accordance with a directive issued by the supreme court. The purpose of court annex mediation is to encourage the parties to amicably settle their disputes or reach a compromise agreement to avoid protracted and costly litigation.

Article 45(2) states that where the parties have failed the resolve their dispute through court-annexed mediation, the court proceeding shall be initiated by filing a letter signed by the mediators to that effect. 

Pursuant to Article 45(3) (4) where the parties have reached an agreement, the mediator shall cause the approval of the settlement agreement by a court by clearly stating the term of settlements and having it signed by the parties.  The approved settlement shall be executed like any decision of a court.   

Regarding the appearance and non-appearance of parties where the proceeding is interrupted due to the absence of the other party, the mediator shall report to the court by specifying the reason for the interruption and the court proceeding shall be initiated after the absent party paid the appropriate fee.

Where the parties reach an agreement through court-annexed mediation or other dispute resolving mechanisms, any paid court fee shall be reimbursed after deducting mediation expense according to the regulation. 

Supreme Court shall establish a committee from the court leader .judge and senior mediator which may support court-annexed mediation activities and supervise mediators.

For the implementation of the above-mentioned court-annexed mediation, the federal Supreme Court shall issue a directive. 

As per article 46 the parties, however, are not compelled to settle their dispute during the mediation or conciliation as such decision is purely voluntary on their part, but they are “expected to negotiate in good faith and exert earnest efforts towards settlement. The communication of the parties shall not be admissible as evidence in the process of litigation and the mediator shall give assistance for same. All communication of the court-annexed mediation shall be confidential.

Article 47 of the proclamation provides for the mediator and accordingly, a person with a bachelor degree in law and with at least five years experience in the field of law and who has taken training in the mediation and has fulfilled the criteria set by the Supreme Court may be appointed as a mediator. A professional who has fulfilled this requirement shall be entered into a roster of mediators prepared by the federal Supreme Court. The court may hire a mediator as a permanent or temporary employee as may be necessary.

Regarding the fee of the mediator under article 48 stated that the mediator shall pay the annual and administrative fees as described by the federal Supreme Court directive. Mediators who are elected by the parties and provides mediation service shall be entitled to an appropriate fee for their service. Parties to court-annexed mediation shall pay an appropriate fee for the service. The federal Supreme Court shall issue detailed directives regarding with fee.

• Case fellow management

The federal courts do not have a clear timeline for when a case will begin or end, as they do not set a clear timeline for handling and concluding their case the court cases are unpredictable and difficult to control.  To help solve this problem the proclamation under article 49 stated the federal court shall implement a case flow management system in order to make the system of rendering justice efficient and ensure its quality by seating a time frame for filing and completion of cases. For the implementation of it, the federal Supreme Court shall issue detailed directives.

• Criminal liabilities

As stated under article 52  whosoever obstruct the independence of court and judge or put pressure or attempt to put pressure on a judge is punishable unless a more severe penalty is provided for in another law with simple imprisonment not less than 3month and with rigorous imprisonment not exceeding two years.

Fail to cooperate or give assistance so requested is punishable unless a more severe penalty is provided for in another law with simple imprisonment not less than two years or with a fine not exceeding birr 5000( five thousand).   

• The establishment of an external judicial advisory council

As stated under article 53 the federal Supreme Court may establish an external advisory council composed of ex-judge of the federal court, highly experienced and qualified legal professionals, university professors who serve the council for free.

The advisory council shall support the administration of the court by providing non-binding recommendations and perform such other functions assigned to it by the court.

The advisory council shall perform its function by complying with the principle of judicial independence and undertake its function with greater discipline.