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Published online by Cambridge University Press: 07 August 2019
The practice of cassation over cassation and its consequent rule of precedent have resulted in a legal quagmire. The impact is evident in the pecuniary disposition of a bigamous marriage with far-reaching legal ramifications for a valid marriage in Ethiopia. In fact, the pecuniary consequences of a bigamous marriage have remained a perplexing challenge in Ethiopia due to, inter alia, the debatable precedential practice of the Federal Supreme Court. Given the constitutionally guaranteed regional autonomy of the regional states to regulate family matters in Ethiopia, the practice has constitutional implications for the application of the Oromia Family Code. This article argues that the federal doctrine of precedent and its enabling legislation not only lack a concrete constitutional basis, but also encroach upon the constitutional autonomy of regional states and the constitutional rights of legitimate spouses. Exploring the constitutional dimensions of the practice and its legal ramifications, the article suggests possible options to change the practice at a regional level.
PhD candidate, Faculty of Graduate Studies in Law, Common Law Section, University of Ottawa, Ontario, Canada. Former assistant professor of law, Haramaya University, Ethiopia. The author would like to thank the anonymous reviewers and editors for their comments.
1 See Hirko, S “The liquidation of pecuniary effects of bigamous marriage in Ethiopia: A critical review of the precedents of the Federal Supreme Court and rule of equity under the Oromia Regional Family Code” (2016) 30/1 International Journal of Law, Policy and the Family 32 at 32–33CrossRefGoogle Scholar.
2 Ibid.
3 The Criminal Code of the Federal Democratic Republic of Ethiopia, Proc No 414/2004 Federal Negarit Gazeta year no 9 (May 2005).
4 Oromia Regional State Family Code, Proc No 83/2004.
5 See M Ashenafi and Z Taddesse “Women, HIV/AIDS, Property and Inheritance Rights: The Case of Ethiopia” (2005), available at: <https://www.undp.org/content/dam/aplaws/publication/en/publications/hiv-aids/women-hiv-aids-property-and-inheritance-rights-the-case-of-ethiopia/23.pdf> (last accessed 29 June 2019).
6 Ibid.
7 The appropriate law that regulates family matters and ensures implementation of the constitutional guarantee is the relevant family law. In fact, the pertinent provisions of most family laws in Ethiopia explicitly prohibit bigamy. For instance, the OFC, art 30 categorically proscribes bigamous marriage. See also The Revised Family Code, Proc No 213/2000 Federal Negarit Gazeta 6th year, extraordinary issue no 1, Addis Ababa, 4 July 2000 (Revised Family Code), art 11.
8 See Chewaka, J “Bigamous marriage and the division of common property under the Ethiopian law: Regulatory challenges and options” (2013) 3 Oromia Law Journal 77Google Scholar at 91.
9 The possible adjudication of family matters in accordance with shari'a law before shari'a courts can be an example of the religious laws envisaged by art 34(4) of the Federal Constitution. See generally Abdo, M “Legal pluralism, Sharia courts and constitutional issues in Ethiopia” (2011) 5/1 Mizan Law Review 72CrossRefGoogle Scholar.
10 OFC, arts 21 and 22. The procedures for celebrating religious or customary marriages are left to be governed by the relevant religion or custom, while the substantive requirements for all forms of a marriage are indiscriminately regulated by the code.
11 See Rehman, J “The Sharia, Islamic family laws and international human rights law: Examining the theory and practice of polygamy and Talaq” (2007) 21 International Journal of Law, Policy and the Family Law 108Google Scholar at 116. See generally Ameenah, A, Philips, B and Jones, J Polygamy in Islam (2nd ed, 2005, International Islamic Publishing House)Google Scholar.
12 See Criminal Code, art 650(2).
13 Proc No 80/2008 Harari Negarit Gazeta extraordinary issue no 1/2008, Harar, 13 July 2008, art 11(2). The code expressly recognizes the exceptional conclusion of a bigamous marriage where there is a religious justification.
14 See Chewaka “Bigamous marriage”, above at note 8 at 92.
15 Ibid.
16 See Redai, M Some Points for Understanding the Revised Family Law, vol 1 (2nd ed, 2010, Commercial Printing Press) at 43Google Scholar.
17 Ethiopian Penal Code of 1957.
18 Id, art 611.
19 Criminal Code, art 650.
20 See OFC, art 30.
21 Civil Code of the Empire of Ethiopia, Proc No 165/1960 Negarit Gazeta Gazette Extraordinary, 19th year, no 2, Addis Ababa, 5 May 1960 (Civil Code), art 163(1).
22 See Revised Family Code, art 75(a) and (c) and OFC, art 97(a) and (c).
23 Revised Family Code, art 75(b) and OFC, art 97(b).
24 See Redai Some Points for Understanding, above at note 16 at 43.
25 Revised Family Code, art 85.
26 OFC, art 123.
27 Hirko “The liquidation of pecuniary effects”, above at note 1 at 34–35.
28 Id at 35.
29 OFC, art 117.
30 Id, art 111(1) and (2); Revised Family Code, art 84.
31 Ibid.
32 In principle, liquidation of common property is intended to be based on the spouses’ agreement. Thus, the derogation is quite possible as long as it remains reasonable and is not against the interests of the children. See OFC, arts 103(3), 110(2), 112(1) and 117.
33 Hirko “The liquidation of pecuniary effects”, above at note 1 at 37.
34 Ibid.
35 See generally Megarry, R Snell's Principle of Equity 2 (23rd ed, 1947, Sweet & Maxwell)Google Scholar.
36 Ibid. See also Krzeczunowicz, “The present role of equity in Ethiopian civil law” (1969) 13/3 Journal of African Law 145CrossRefGoogle Scholar at 145.
37 Id at 145–47.
38 Hirko “The liquidation of pecuniary effects”, above at note 1 at 37.
39 SNNP Family Code, art 124(2). The list appears to be exhaustive. However, it should be considered illustrative as, given the nature of the rule, it cannot be confined to a limited list. Indeed, this is evident from the corresponding provision of the Civil Code.
40 It seems fair to treat a guilty spouse in a punitive manner when his / her illegal conduct misleads the other spouse in good faith to engage in illegal marital relations.
41 Hirko “The liquidation of pecuniary effects”, above at note 1 at 38.
42 The OFC is closer in its approach to the very purpose of the public policy behind the legal prohibition of bigamy under the criminal law. In so doing, the law attempts to deter the practice of bigamy between spouses while it contributes to the stability of the valid marriage.
43 See Federal Courts Proc No 454/2005.
44 It should also be noted that FSC cassation decisions before the formal adoption of the doctrine of precedent can still constitute jurisprudence as obiter dicta, such that regional courts’ decisions may be informed by those decisions.
45 See Federal Courts Proc No 454/2005, art 2(1) (as amended).
46 Id, art 4.
47 Cassation file no 24625/2007 Federal Supreme Court Cassation Decisions, vol 5 (2009) at 195–97.
48 Indeed, no such a requirement exists in the Amhara Regional Family Code. Instead, under art 73 the code clearly stipulates that all incomes acquired through the personal efforts of the spouses shall be considered common property. There is no indication that a joint effort is a necessary condition for the existence of common property. In this regard, the provision is copied verbatim from art 62(1) of the Revised Family Code, which is similar to art 78(1) of the OFC.
49 Amhara Family Code, art 101.
50 See Aminat Ali v Fatuma Wubet cassation file no 45548/2010 Federal Supreme Court Cassation Decisions, vol 13 (2012) at 167–70.
51 Amhara Family Code, art 74. See also Revised Family Code, art 63 and OFC, art 79.
52 Zeynaba Khalifa v Kedija Siraj cassation decision file no 50489/2010 Federal Supreme Court Cassation Decisions, vol 11 (2011) at 2–5.
53 Federal Constitution, art 34(1). See Ashagre, A “The effect of bigamous marriage on distribution of marital property in Ethiopia: A case comment” (2012) 25/2 Journal of Ethiopian Law 236 at 244–50Google Scholar, making a detailed account of the principle of equality as enshrined in the Federal Constitution and relevant international human right instruments.
54 OFC, art 117. See also Revised Family Code, art 90.
55 Federal Constitution, art 34(1). See also Oromia Regional State Constitution, art 4(1). In addition to equal rights of men and women upon the conclusion of and during a marriage, both constitutions guarantee equal enjoyment of marital rights up until the time of divorce. As such, the framers of the constitutions preferred (with intent or not) the word “divorce” to “dissolution” of a marriage.
56 Federal Constitution, art (4).
57 The use of the term “divorce” appears to exclude the required applicability of the principle of equality for invalid marriages. Nevertheless, it may be argued that the term should be understood in its broader sense to include other grounds for the dissolution of a valid marriage.
58 Some writers however argue that bigamy is not prohibited by the Federal Constitution. Hence, they hold the view that the equality principle applicable for a valid marriage should be enjoyed by bigamists. See Chewaka “Bigamous marriage”, above at note 8 at 92.
59 See Aminat v Fatuma, above at note 50 and Zeynaba v Kedija, above at note 52.
60 See Sadiya v Rahima, above at note 47.
61 See Aminat v Fatuma, above at note 50 and Zeynaba v Kedija, above at note 52.
62 See Aminat v Fatuma, ibid. As regards the rule of partition practiced by Oromia state courts, the author had an opportunity to learn the stance of the courts from an informal discussion with some regional court judges. From this, it seems that the courts oscillate between the precedents developed in Aminat v Fatuma and Zeynaba v Kedija (above at note 52), although both precedents run contrary to the application of the rule of equity dictated by the OFC. See also Mame Tullu v Urjitu Kaksa, below at note 64.
63 In fact, a recent FSC ruling confirms the continued operation of this precedent to govern similar cases originating from the SNNP regional state, in which the bigamous wife of the bigamist husband was entitled to an equal share in the common property acquired in the bigamous marriage although the period overlapped with the first marriage. In effect, the legitimate wife's share was limited to the properties in her possession with the bigamist husband, and few others, while the bigamist wife was entitled to an almost equal share (with all the spouses) in all the properties acquired during the bigamous marriage, except for a pre-existing piece of land in which she was given a 25% share. See Andogba Shikur v Alemite Hibrahim cassation decision file no 120844/2016 Federal Supreme Court Cassation Decisions, vol 20 (2017) at 279–83. Compare with Zeynaba v Kedija, above at note 52.
64 Mame Tullu v Urjitu Kaksa et al Oromia Regional Supreme Court, file no 131585/2011 (unpublished). This case initially came before Tikur Inchinni Woreda Court and was later transferred to Ambo Woreda Court. The case essentially concerned the partition of common property among three wives and the heirs of the deceased bigamist. The lower court partitioned the entire common property into two, with the wives made to share 50% of the property based on the property acquired in their respective marriages. The ruling was upheld by the regional appellate court. The decisions of the lower regional courts were eventually affirmed by the regional Supreme Court, which inappropriately rejected a petition for a cassation review despite the existence of a fundamental error of law. To the dismay of the petitioner, the FSC subsequently rejected the petition for a similar review at the federal level.
65 Abdo, M “Review of decisions of state courts over state matters by the Federal Supreme Court” (2007) 1/1 Mizan Law Review 60 at 71Google Scholar. See also, Abera, K “Precedent in the Ethiopian legal system” (2009) 2/1 Ethiopian Journal of Legal Education 23Google Scholar at 29. However, this author tends to concede (ibid) that such a practice is likely to contradict with the principle of division of power in the federal set-up.
66 Abdo, id at 68.
67 Ibid.
68 Id at 71. Abdo believes that the framers of the Federal Constitution, in designing cassation over cassation, opted for the larger societal goal instead of the judicial autonomy of the regional states.
69 Id at 69. Abdo points out (id at 69–71) the three reasons indicated in the MCA for the double cassation: uniform interpretation of laws; efficiency (reduction of workload); and correct disposition of cases. See minutes of the Constitutional Assembly of the Federal Constitution No 26–29, 1993 (unpublished) at 34–36 and 43. See minutes of the Council of Representatives of the Transitional Government of Ethiopia, 4–25 May 1993 (unpublished) at 253–56. In fact, the minutes of the Constitutional Commission caution against a judicial structure that may contradict with the principles of federalism, as related to the division of powers. See minutes of the Constitutional Commission, 78th session, 13 March 1994 (unpublished) at 6.
70 Ibid. As one might note from a closer reading of the minutes of the Constitutional Commission, the issue of a uniform interpretation of laws was raised in relation to the exercise of the judicial power delegated to state Supreme and High Courts. In particular, the Federal Supreme Court would entertain state-related matters that lie beyond the judicial power of state courts (such as inter-state matters that arise within states and issues arising from international treaties the implementation of which may be integral to state matters). In this respect, the relevant part of the minutes roughly reads (at 6): “the Federal Supreme Court will entertain state matters that are above the judicial powers of state courts … to bring about a uniform interpretation of laws in the country” (author's translation and emphasis). As regards cassation power, what is explicit from the minutes is the power of both federal and state courts to organize their respective cassation benches. See minutes of the Constitutional Commission, above at note 69 at 6.
71 Abdo “Review of decisions”, above at note 65 at 73.
72 Id at 70. The intended goal of ensuring the uniform interpretation of laws across the country may be achieved for federal laws with nationwide application. In this regard, the exclusive material jurisdiction of federal courts has been explicitly provided in art 6 of Federal Court Proc No 25/96 with regard to federal laws and international treaties. Further, the federal courts may apply regional laws in disputes that involve parties who are the permanent residents of different regional states. See Federal Courts Proc 25/96, arts 5(2) and 6(1)(b).
73 See Abdo “Review of decisions”, id at 70 and 73.
74 Redai, M “Uncovering the source of the power of federal cassation over cassation: A critical comment based on federal cassation cases” (2010) 24/2 Journal of Ethiopian Law 201Google Scholar at 212.
75 Ibid.
76 Ibid.
77 Ibid.
78 Federal Constitution, art 80(2).
79 See Abdo “Review of decisions”, above at note 65 at 68.
80 Id at 67–71.
81 See Federal Constitution, art 50(3) and (7).
82 Id at art 50(8). See Hessenbon, G and Idris, A “The Supreme Court of Ethiopia: Federalism's bystander” in Aroney, N and Kincaid, J (eds) Courts in Federal Countries (2017, University of Toronto Press) 165Google Scholar at 177.
83 Fiseha, A “Federalism and the adjudication of constitutional issues: The Ethiopian experience” (2005) 52/1 Netherlands International Law Review 1CrossRefGoogle Scholar at 10.
84 See Krzeczunowicz, G An Introductory Theory of Laws in the Context of the Ethiopian Legal System (1971, AAU Law Library)Google Scholar at 5.
85 Redai “Uncovering the source of the power”, above at note 74 at 209.
86 Ibid.
87 See Oromia State Constitution, art 64, defining the judicial power of the regional courts.
88 Federal Constitution, arts 50(5) and 52(2)(b).
89 Oromia State Constitution, art 64(3)–(5).
90 See Abdo “Review of decisions”, above at note 65 at 71–72.
91 The author is not denying the existence of cases where the federal states may opt for the convergence of parallel structures at apex if so desired. Countries such as Germany and Canada can be cited in this regard. See Morris, D Judicial Process (1992, Pitman Publishing Co)Google Scholar at 50. Yet, those countries have expressly designed their federal structure along these lines. This is not the case in Ethiopia. If so desired, that should have been done unequivocally by the framers of the Federal Constitution.
92 See Oromia State Constitution, art 64(3)–(5). See also Federal Courts Proc No 25/96, art 10(3).
93 This is true, as any legal rule under the state laws is supposed to be made in accordance with the binding interpretation given by the FSC in its cassation division. The application of regional laws must conform to the federal rule of precedent. In effect, the regional law that relates to the rule of precedent remains inferior to the rule in its application through interpretation.
94 See Abdo “Review of decisions”, above at note 65 at 70–71. For detailed discussion on the purpose of the rule of precedent, see generally H Tura “Uniform application of law in Ethiopia: Effects of cassation decisions of the Federal Supreme Court” (2014) 7/2 African Journal of Legal Studies 203.
95 For instance, the OFC differs from the Revised Family Code in matters such as the degree of consanguinity, affinity and the rule of partition in cases of annulment.
96 Federal Courts Proc No 454/2005, art 4.
97 Otherwise, laws that are enacted without a constitutional basis themselves will be contrary to the constitution. Thus, their compliance can never be demanded so they shall be of no effect. As such, laws or practices that are inconsistent with the state constitution shall have no effect on state matters. See Oromia State Constitution, art 9(1).
98 This can be noted from the rule of mutual respect under art 50(8) of the Federal Constitution that dictates that the federal and state governments must act within the confines of their respective powers as defined by the Constitution. In the event that the federal law oversteps the limit to demand compliance from the state, the rule of mutual respect or non-interference will be undermined. See also Oromia Regional State Constitution, art 9.
99 See Federal Constitution, art 9(1).
100 See Oromia State Constitution, art 49(3)(a).
101 The legislation that provides for the jurisdiction of the regional courts can be amended to clarify this matter.
102 Federal Constitution, art 50(8).
103 Id, art 50(3).
104 See generally Abdo “Review of decisions”, above at note 65.
105 Oromia State Constitution, art 69. Although the SCCI is legally established in the region, its operation as such may be limited compared to the Federal Council of Constitutional Inquiry, which has dealt with a handful of cases so far. However, it is the appropriate organ to entertain the request for submission to the SCIC.
106 Id, art 67. The SCIC is a non-judicial body consisting of representatives of woredas in the state. See Ararsa, T “Sub-national constitutions in Ethiopia: Towards entrenching constitutionalism at state level” (2009) 3/1 Mizan Law Review 33Google Scholar at 57.
107 See Oromia State Constitution, art 69(2).
108 Id, art 9(1).
109 Id, art 69(3)(a).
110 Id, art 69(3)(b).
111 Federal Constitution, art 84(2); Proc No 798/2013, arts 4 and 5(3).
112 Federal Constitution, art 84(2); Proc No 798/2013, art 5(3).
113 Proc No 798/2013, art 3(c). It is however arguable if this can be considered an “unjusticeable matter” to which the state council's referral power is limited. Under art 23(4) of Proc No 250/2001, any constitutional dispute arising outside the court can be referred to the FCCI by one-third of the members of the state council. As the matter pertains to the very division of power between the federal and the state government and may not be asserted as such by an individual before a court of law, the matter should be considered to fall under art 3(c) of Proc No 798/2013.
114 Proc No 798/2013, art 3(c).
115 See Fiseha, A “Constitutional adjudication in Ethiopia: Exploring the experience of the House of Federation (HOF)” (2007) 1/1 Mizan Law Review 1Google Scholar at 20.
116 Id at 14.
117 Federal Constitution, art 83.