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The Nebulous Lawmaking Process in Eritrea

Published online by Cambridge University Press:  18 September 2009

Simon M Weldehaimanot  and
Daniel R Mekonnen
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Abstract

This article contrasts the lawmaking process in the Eritrean transitional legal framework with experience in South Africa, which offers insightful lessons for future improvement in Eritrea. Indeed, the Eritrean lawmaking process retains many imperfections in terms of the design of the interim constitution and ensuing practice. On paper, the competence of the executive and the legislature is not clearly demarcated. Rather, it is nebulously shared between both branches, resulting inevitably in competing interests. The lawmaking process lacks democratic characteristics and defies the requirements of accountability and good governance. The practice that has followed is worse. In a country with a protracted history of executive dominance, the lawmaking competence conferred upon the executive has inexorably contributed to entrenched dictatorship. The article offers suggestions for improvement.

Type
Research Article
Information
Journal of African Law , Volume 53 , Issue 2 , October 2009 , pp. 171 - 193
Copyright
Copyright © School of Oriental and African Studies 2009

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References

1 IM Rautenbach and EFJ Malherbe Constitutional Law (4th ed, 2004, Butterworths) at 149Google ScholarPubMed.

2 One of the best examples provided by Rautenbach and Malherbe is sec 1(2) of the Namibian Constitution which reads: “All power shall vest in the people of Namibia who shall exercise their sovereignty through the democratic institutions of the State”. However, in some other counties, such as Britain which does not have a written constitution, “the sovereignty of parliament is always justified in terms of the fact that the whole population is represented in parliament”: id at 74–75.

3 Id at 108. See also Devenish, GThe South African Constitution (2005, Butterworths) at 20–21Google Scholar.

4 Rautenbach and Malherbe Constitutional Law, above at note 1 at 108.

5 Ibid, citing art V of the US Constitution and sec 140 of the Swiss Constitution.

6 Id at 78.

7 See generally, the classical work of Baron de Montesquieu L'Esprit de Lois [The Spirit of the Laws] (1748) book XI, ch VI. The English philosopher and political thinker John Locke is, however, credited with propounding the concept of the distribution of government authority in an earlier time.

8 Vile, MJCConstitutionalism and the Separation of Powers (1967, Oxford Clarendon Press) at 1–2Google Scholar.

9 Rautenbach and Malherbe Constitutional Law, above at note 1 at 83.

10 Vile Constitutionalism and the Separation of Powers, above at note 8 at 2–3 and 13. See also generally Marshall, GConstitutional Theory (1971, Oxford Clarendon Press) at 97Google Scholar.

11 Rautenbach and Malherbe Constitutional Law, above at note 1 at 83.

12 See, for example, Marshall Constitutional Theory, above at note 10 at 97; Kmiec, DW “Debating separation of powers” (1991) 53/2The Review of Politics 391 at 391–96CrossRefGoogle Scholar. In contrast, Vile Constitutionalism and the Separation of Powers, above at note 8 at 13, argues that: “It is true, of course, that the doctrine has rarely been held in [the] extreme form, and even more rarely been put into practice, but it does represent a ‘bench-mark’, or an ‘ideal-type’ which will enable us to observe the changing development of the historical doctrine, with all its ramifications and modifications”.

13 Rautenbach and Malherbe Constitutional Law, above at note 1 at 78.

14 Vile Constitutionalism and the Separation of Powers, above at note 8 at 2.

15 Rienow, RIntroduction to Government (1967, Knopf) at 237–38Google Scholar.

16 See, for example, In re: Certification of the Constitution of the RSA, 1996 1996 4 SA 744 (CC) para 51 (commonly referred to as the First Certification judgment).

17 Asimow, M “Delegated legislation: United States and United Kingdom” (1983) 3/1Oxford Journal of Legal Studies 253 at 253–59CrossRefGoogle Scholar.

18 Ibid.

19 Id at 259.

20 Devenish The South African Constitution, above at note 3 at 219.

21 Rautenbach and Malherbe Constitutional Law, above at note 1 at 150.

22 Id at 149–51; see also Devenish The South African Constitution, above at note 3 at 221. On latest developments in the jurisprudence of the South African Constitutional Court, see generally Matatiele Municipality and Others v President of the Republic of South Africa and Others 2006 (5) SA 47 (CC). This case concerns the legislature's obligation to facilitate public involvement and deliberation in a proposed legislative process which affects the general public. The particular legislative process involved the re-drawing of provincial boundaries in the KwaZulu-Natal Province which, according to the Constitutional Court, was inconsistent with the constitution as it failed to meet the requirements of public involvement and deliberation. See paras 75–86 of the case.

23 Rautenbach and Malherbe Constitutional Law, above at note 1 at 149–54.

24 Ibid.

25 See, for example, the First Certification judgment, above at note 16 at paras 11–20.

26 Sec 81 of the South African Constitution.

27 (5 US) 137 (1803). In one of its latest cases, Browsher v Synar 106 S Ct 3181 (1986), the US Supreme Court again emphasized the enduring prominence of the doctrine of separation of powers. According to Sargentich, this is a continuation of the significant development which reiterated the fundamental importance of the separation of powers to American constitutional law and practice; see Sargentich, TO “The contemporary debate about legislative-executive separation of powers” (1987) 72 Cornell Law Review 430 at 430–87Google Scholar.

28 The leading cases are: the First Certification judgment, above at note 16; Executive Council of the Western Cape Legislature v President of the RSA 1995 4 SA 877 (CC); Bernstein v Bester NO 1996 2 SA 751 (CC) at para 105; De Lange v Smuts NO 1998 3 SA 785 (CC) at paras 60–61; South African Association of Personal Injury Lawyers v Health 2001 1 SA 883 (CC) at paras 38, 45 and 46; S v Dodo 2001 3 SA 382 (CC) at paras 22–25.

29 Art 1 of Proc No 23/1992. In Eritrea, a statute is called a proclamation. It is the equivalent of what is commonly called an act in many jurisdictions. Legislation issued in furtherance of a proclamation is called a legal notice and is equivalent to what in other jurisdictions is commonly known as a regulation.

30 DR Mekonnen “The reply of the Eritrean government to ACHPR's landmark ruling on Eritrea: A critical appraisal” (2006) 31/2 Journal for Judicial Science 26 at 35, referring to Proc No 37/1993 as the interim constitution. The Eritrean president also at times refers to the same proclamation as the “basic law” of Eritrea. See also para 3 of the preamble to Proc No 57/1994. On this issue, Gebremedhin notes that, although formal constitutional law was completely absent in the transitional period, there was a weak and incomplete constitutional framework which “has immense drawbacks, in terms of public participation … easy accessibility to the public, protection of civil rights, government accountability, and entrenchment of constitutional principles”. See Y Gebremedhin The Challenges of a Society in Transition: Legal Development in Eritrea (2004, Red Sea Press) at 131–32. See also generally Weldehaimanot, SM “The status and fate of the Eritrean Constitution” (2008) 8/1African Human Rights Law Journal 108Google Scholar.

31 Transitional constitution of the PFDJ, chap 5, sec A-2.

32 Art 3(1) of Proc No 23/1992.

33 Id, art 3(2)(10).

34 Id, art 4(3).

35 Id, art 4(1).

36 Id, arts 4(1) and 5(1).

37 Id, art 4(4)(5).

38 There is no official English version of this proclamation.

39 Proc No 9/1991 provides for the establishment of the Eritrean Gazette of Laws in which proclamations and legal notices shall be officially published.

40 Art 3(1) of Proc No 37/1993.

41 Id, art 4(2).

42 Ibid.

43 Ibid.

44 Art 2(3) of Proc No 52/1994.

45 See Proc No 92/1996.

46 Rosen, RA and Selassie, BH “The Eritrean constitutional process: An interview with Dr Bereket Habte Selassie” (1999) 3 Eritrean Studies Review 139 at 172Google Scholar.

47 Ibid.

48 Arts 4(4) and 4(5)(g) of Proc No 37/1993.

49 Id, art 6.

50 Id, art 4(3).

51 Art 2(2) of Proc No 52/1994.

52 Art 3(1) of Proc No 23/1992; art 4(4) of Proc No 37/1993.

53 Proclamations and legal notices invariably contain, at the very end, a clause that states where, when and by whom the legislation or legal notice was promulgated.

54 See all proclamations issued before 22 May 1992, the date on which the PGE was formally established.

55 The following are examples of laws promulgated by the state president: Proc No 76/1995; Proc No 33/1993; Proc No 56/1994; Proc No 57/1994; Proc No 70/1995; and Proc No 78/1995.

56 The following are examples of regulations promulgated by the National Assembly: Legal Notice No 11/1993; and Legal Notice No 12/1993.

57 Of the over 225 proclamations and legal notices promulgated after 24 May 1991, more than 62% were issued in the name of the PGE and the GOE, and around 29% in the name of ministers and other government officials such as the National Bank of Eritrea.

58 See arts 2 and 3 of Proc No 23/1992 and Proc No 37/1993, respectively.

59 There is no express provision in the relevant proclamation that excludes members of cabinet from becoming members of the legislature. Practice shows that the majority of cabinet ministers are members of the Central Council of the EPLF/PFDJ and the National Assembly.

60 These instances are the promulgation of Legal Notice No 11/1993 and Legal Notice No 12/1993.

61 See Connell, DConversations with Eritrean Political Prisoners (2005, Red Sea Press) at 171–98Google Scholar, quoting the letter of the G-15 (the Group of 15) addressed to President Isaias Afwerki, dated 20 March 2001. G-15 denotes a groups of high-ranking government officials who initiated a movement of democratic reform in 2001. Most of them were eventually arrested in September 2001 and have since remained in solitary confinement. See G-15 “An open letter to all members of the PFDJ: A call for peaceful and democratic dialogue” (English version), available at: <http://news.asmarino.com/PFDJ_Membership/Introduction.asp> (last accessed 18 August 2006). See also P Tesfagiorgis “In search of a normal Eritrea”, available at: <http://eritreaone.com/pipermail/opinion_eritreaone.com/2003q4.txt?ABCDEFGH> (last accessed 2 December 2005).

62 Writing in May 2001, some members of the National Assembly mentioned that they debated and approved only a few draft laws; these include the Land Proclamation and the Press Proclamation. See Connell, id at 180.

63 Gebremedhin The Challenges of a Society in Transition, above at note 30 at 104 and 110.

64 This proclamation aimed to rectify the nationalization of private property carried out after 1974 by the communist junta that took power in Ethiopia and Eritrea at that time.

65 G-15 “An open letter”, above at note 61; Awate Team “The chronology of the reform movement”, available at: <http://www.awate.com/artman/publish/article_3629.shtml> (last accessed 5 December 2005).

66 Art 4(3) of Proc No 37/1993.

67 Mekonnen “The reply of the Eritrean government”, above at note 30 at 28.

68 Proc No 118/2001, Proc No 112/2000, Proc No 115/2001, Proc No 114/2001, Proc No 116 /2001 and Proc No 117/2001 are some examples.

69 Under art 4(6)(c) of Proc No 37/1993 the National Assembly is given the sole power to establish a committee that drafts laws related to the formation of political parties.

70 Awate Team “The chronology of the reform movement”, above at note 65.

71 For the political development that was sparked in 2000 and 2001, widely known as a reform movement, see generally Connell Conversations with Eritrean Political Prisoners, above at note 61; Mekonnen “The reply of the Eritrean government”, above at note 30; and Awate Team “The chronology of the reform movement”, above at note 65.

72 Legal Notice 11/1993, which was passed by the National Assembly, was repealed by Legal Notice 16/1994 which was passed in the name of the GOE.

73 For a similar exposition, see Gebremedhin The Challenges of a Society in Transition, above at note 30 at 135–42.

74 There is variation in the constitutions of the countries mentioned in this article, notably regarding the issue of assent by the head of the executive and the government organ which finally publishes the enacted laws. The point in the comparison is to show that the experience of those countries demonstrates that the law is passed by the legislature.

75 See any Federal Negarit Gazeta.

76 Proc No 3/1995: a proclamation to provide for the establishment of the Federal Negarit Gazeta.

77 See, for example, Council of Ministers reg no 80/2002.

78 See, for example, the act to provide for the safe management of biotechnological activities and to provide for connected and incidental matters. See Gazette Extraordinary: The Malawi Gazette Supplement (18 December 2002) at 1 and 3.

79 Ibid.

80 Ibid.

81 Ibid.

82 See Act: Supplement to the Sierra Leone Gazette (10 March 2005) vol CXXXVI, no 11 at 1.

83 The Local Government Act 2004.

84 See Statutory Instrument: Supplement to the Sierra Leone Gazette (11 November 2004) vol CXXXV, no 61.

85 See, for example, the Ugandan act which provided for the form and commencement of acts of parliament, the procedure following the passing of bills and other related matters.

86 Note that, under art 91(3) of the 1995 Ugandan Constitution, the clerk of the parliament can declare law a bill to which the president has refused to assent.

87 See, for example, Gazette of Eritrean Laws (2001) 10/5 (issued on November 15/2001).

88 Id at 202.

89 Compare art 4(5)(f) of Proc No 37/1993 with art 3(2)(7) of Proc No 23/1992.

90 Compare art 5(4)(h) of Proc No 37/1993 with art 4(4)(7) of Proc No 23/1992.

91 This was the power given to the secretary general under art 5(4)(4) of Proc No 23/1992.

92 Compare art 6(4)(c) of Proc No 37/1993 with art 5(4)(4) of Proc No 23/1992.

93 Compare art 4(5)(f) of Proc No 37/1993 with art 3(2)(7) of Proc No 23/1992; art 5(4)(h) of Proc No 37/1993 with art 4(4)(7) of Proc No 23/1992; and art 6(4)(c) of Proc No 37/1993 with art 5(4)(4) of Proc No 23/1992.

94 Art 6(4)(c).

95 See Proc No 33/1993.

96 Ibid.

97 Para 4 of the preamble to Proc No 23/1992.

98 See art 5(4)(4) of Proc No 23/1992.

99 See arts 4(5)(f) and 6(4)(c), respectively.

100 Examples include: Proc No 56/1994; Proc No 57/1994; Proc No 70/1995; Proc No 78/1995; Proc No 79/1995; Proc No 80/1995; Proc No 81/1995; Proc No 87/1996; Proc No 97/1997; Proc No 98/1997; Proc No 99/1997; and Proc No 100/1997.

101 See Connell Conversations with Eritrean Political Prisoners, above at note 61 at 181.

102 As far as Proc No 33/1993 is concerned. Moreover, the following information (narrated to the authors in confidence) clearly illustrates the inconsistent practice of the ratification of international treaties in Eritrea. At one time, a national committee was established to study some conventions of the International Labour Organization (ILO) that Eritrea wanted to ratify. While the national committee was still working on this issue, the state president happened to be at an event in Europe, where some ILO staff members approached his delegation and lobbied in favour of ratification of those treaties. The state president ratified seven major ILO conventions on the spot. The national committee was taken by surprise when the ILO sent a congratulatory letter to the state of Eritrea on account of the sudden ratification. See also DR Mekonnen Transitional Justice: Framing a Model for Eritrea (unpublished LLD thesis, University of the Free State, 2009).

103 Connell Conversations with Eritrean Political Prisoners, above at note 61 at 181.

104 Indeed, in its effort to consolidate an electronic database of all proclamations and legal notices, the Eritrean Ministry of Justice classified those proclamations passed by the president under the section of “government borrowing”. See Ministry of Justice “Consolidated electronic database of Eritrean proclamations and legal notices” (unpublished; copy on file with the authors).

105 See the status of ratification by Eritrea of international treaties at: <http://www.ohchr.org> and <http://www.achpr.org>.

106 MB Hagos “Eritrea” in C Heyns (ed) Human Rights Law in Africa (2004, PUPL) 1060 at 1064.

107 Ibid. See also sec 39 of the list of international agreements in the Ministry of Justice “Consolidated electronic database”, above at note 104. See also the status of Eritrean ratification at note 105 above.

108 See art 12.

109 See, for example, Proc No 347/2003.

110 See, for example, art 2 of Proc No 347/2003.

111 Gebremedhin The Challenges of a Society in Transition, above at note 30 at 136.

112 Connell Conversations with Eritrean Political Prisoners, above at note 61 at 2.

113 Ibid.

114 Ibid.

115 Ibid.

116 Id at 6; G-15 “An open letter”, above at note 61.

117 Connell Conversations with Eritrean Political Prisoners, above at note 61 at 6; Gebremedhin The Challenges of a Society in Transition, above at note 30 at 136.

118 Connell id at 11. See also Mekonnen, DR “The abolition of female circumcision in Eritrea: Inadequacies of new legislation” (2007) 7/2African Human Rights Law Journal 389 at 405Google Scholar.

119 Tesfagiorgis “In search of a normal Eritrea”, above at note 61.

120 Connell Conversations with Eritrean Political Prisoners, above at note 61 at 181; G-15 “An open letter”, above at note 61.

121 This was confirmed by the National Assembly in its fourth meeting, held on 2–4 March 1994.

122 Connell Conversations with Eritrean Political Prisoners, above at note 61 at 181.

123 Ibid.

124 Ibid. Up to now, there has been no budgetary law and so the government has operated without any budgetary constraints.

125 Connell Conversations with Eritrean Political Prisoners, above at note 61 at 182.

126 See generally Connell Conversations with Eritrean Political Prisoners, above at note 61; Liesbeth Zegveld v Eritrea (2003) AHRLR 84, comm no 250/2002 Seventeenth Annual Activity Report of the African Commission on Human and Peoples' Rights (African Commission) (2003–04, African Commission) annex VI, 116, available at: <http://www.achpr.org/english/activity_reports/activity17_en.pdf> (last accessed 18 June 2009).

127 Interview with Mesfin Hagos, the former chairperson of the Eritrean Democratic Party, for his party's website, available at: <http://www.selfi-democracy.com/?read=articles/editorials/1186507322Interview_Eng_P1_PDF_e.pdf> (last accessed 24 August 2007). See also “Joint meeting of Cabinet of Ministers and regional administrators concludes”, available at: <http://www.shabait.com/staging/publish/article_006894.html> (last accessed 12 July 2007).

128 See art 3(2) of Proc No 37/1993. See also G-15 “An open letter”, above at note 61.

129 Some of the proclamations and legal notices issued apparently suffer from a lack of legal expertise in their drafting. See, for example, Proc No 1/1991.

130 See Proc No 67/1995 and Proc No 143/2004. The entry into force of the first is pre-dated while the latter is post-dated.

131 A good example in this regard is Proc No 58/1994.