Commentary :: Ethiopia’s 1999 Federal Courts of Sharia

Consolidation Proclamation: The Function of the Sharīʿa

Courts
 islamiclawblog and Michael Kebede

1 year ago

By Michael Kebede

Introduction

The Federal Courts of Sharia Consolidation Proclamation, enacted

in 1999 by the House of People’s Representatives, reorganizes
Ethiopia’s official sharīʿacourts to conform with the country’s newly
established federal court system.[1]Before Ethiopia’s current
regime came to power in 1991, a de jure centralized court system
run by a unitary state carried out judicial functions throughout the
country. The new regime established an ethno-federalist system of
nine states, with each state designed to recognize one or more
ethnolinguistic groups.[2] In addition to the judiciaries of each
state, the federal government established a judiciary of federal
courts located in Addis Ababa, the country’s capital, and Dire
Dawa, a small city-state in the country’s southeast. Islamic law is
the only religious source of law that Ethiopia’s otherwise secular
judiciary has constitutionally recognized and established official
courts to apply and enforce.

Brief History

In 1991, the Tigre People’s Liberation Front, after fighting the

Ethiopian army for a decade, seized power and inaugurated a new
government, renaming the country the Federal Democratic
Republic of Ethiopia. The Provisional Military Administrative
Council (“Derg”), a Soviet-aligned group of military officers, has
ruled Ethiopia since 1974. The Derg’s seventeen-year reign saw
radical changes to the economy and state. Among these changes
were the expansion of Muslims’ religious liberties, the allowance of
public prayer, and celebration of holy days.[3]The Derg recognized
three Muslim holidays and presided over the establishment of the
Ethiopian Islamic Affairs Supreme Council or federal Majlis, which
the current government legally recognized in 1992.[4] To advance
the principle that each ethno-linguistic group has a right to self-
determination, Article 39of the Federal Constitution grants all nine
ethno-states the right to secede from the federation at any time and
without cause by a two-thirds vote of legislative council members
and a majority vote in a state referendum.[5]

The oldest official sharīʿa courts in the territory that now

constitutes Ethiopia date back to the northern and eastern
sultanates of the tenth century.[6] In the early twentieth century,
Emperor Menelik II, the last of Ethiopia’s nineteenth-century
monarchs, established what one scholar called “special courts to
resolve the conflicts of the Muslim population.”[7]Sharīʿa courts
received even wider recognition and support during Italy’s military
occupation of Ethiopia from 1935 to 1941.[8] The Italians under
Benito Mussolini founded schools for Muslims where Arabic was
taught, built mosques throughout the country, and appointed
official qāḍīs in various districts to “deal with matters coming
under the sharīʿa.”[9]Responding to the Muslim population’s
politically strengthened position after Italian occupation, Emperor
Haile Selassie recognized these sharīʿa courts in 1942. In these
courts, government-appointed qāḍīsadjudicated issues of family law
(including inheritance matters) between litigants who had
expressly consented to the court’s jurisdiction.[10] These courts
have de facto persisted through a century of radical political
changes, modified only slightly under the current regime.

Constitutional Structure

Although ethnolinguistic identity is the Constitution’s foremost

basis for recognition, the Constitution also recognizes customary
forms of dispute resolution and religious courts.[11] Article 78 of
the Constitution establishes federal and state courts that operate
concurrently.[12] There are thus technically ten court systems in
Ethiopia: nine state court systems and one federal judiciary, all
subordinate to the Federal Constitution in matters of basic rights.
Article 5(4) of the aforementioned Proclamation explicitly precludes
cases that meet its procedural requirement of parties’ consent from
being reviewed by secular federal courts.[13] Although the Federal
Constitution is silent about whether it may hear appeals from the
Federal Courts of Sharia, at least one commentator has argued that
the Constitution and Proclamation, read together, implicitly
preclude the secular federal courts from reviewing decisions of the
Federal Courts of Sharia.[14]

The Structure of Federal Courts of Sharia

Article 34 of the Constitution permits “the adjudication of disputes

relating to personal and family laws in accordance with religious or
customary laws, with the consent of the parties to the
dispute.”[15]This proclamation established sharīʿacourts for Addis
Ababa and Dire Dawa, the two cities under federal jurisdiction.
[16]Pursuant to this constitutional provision and the Federal Courts
of Sharia Consolidation Proclamation promulgated in 1999, the
Federal Courts of Sharia have the same three-tier structure of
Imperial- and Derg-era sharīʿa courts.[17] The first tier, the Federal
First Instance Court of Sharia, is where cases are first heard unless
they involve disputed sums totaling more than 200,000 ETB
(approximately 8,000 USD).[18] The second is the Federal High
Court of Sharia and has jurisdiction over matters appealed from the
First Instance Court of Sharia, and original jurisdiction over cases
where more than 200,000 ETB is in dispute.[19] The third is the
Federal Supreme Court of Sharia and has jurisdiction over matters
appealed from the Federal High Court of Sharia.[20]
Federal Courts of Sharia are federally funded[21] and
administered, and its qāḍīsare selected by the Judicial
Administration Commission, which comprises three federal
legislators, five federal judges (including the president and vice
president of the Federal Supreme Court), the federal Minister of
Justice, a federally-selected judge, a federal lawyer, a legal
academic, and a “distinguished citizen.”[22] The Commission
appoints qāḍīs based on recommendations from the federal Majlis,
a semi-official institution intended to represent Muslims in state
processes.[23] Any Ethiopian may be a federal qāḍī if she[24] or he
has 1) studied sharīʿa in an Islamic school or has adequate
experience and knowledge in sharīʿa, 2) is reputed to be diligent
and upstanding, and 3) is older than twenty-five.

Federal Courts of Sharia have jurisdiction over:

 any question regarding marriage, divorce, maintenance,

guardianship of minors and family relationships; provided
that the marriage to which the question relates was
concluded, or the parties have consented to be adjudicated
in accordance with sharīʿa;
 any question regarding awqāf, gifts/hibā, succession of wills;
provided that the endower or donor is a Muslim or the
deceased was a Muslim at the time of his death;
 any question regarding payment of costs incurred in any suit
relating to the aforementioned matters.

For a Federal Court of Sharia to hear a case, all parties to a dispute

must “have expressly consented” to the Court’s jurisdiction over
that case.[25] Where consent is ambiguous, cases must be
transferred to a secular federal court.[26]However, cases that
started in the Federal Courts of Sharia and have not ended may not
be transferred to a secular court or vice versa.[27] The
Proclamation requires federal qāḍīs to apply the procedural rules of
civil courts and the substantive doctrine of “Islamic law,” but it
does not specify a particular school.[28]

Conclusion

Ethiopia is one of several countries in Africa, and around the world,

with official sharīʿa courts that adjudicate issues of family law, and
whose litigants must expressly consent to the sharīʿa courts’
jurisdiction. The establishment of sharīʿacourts in otherwise secular
judiciaries has generated much research in anthropology, law,
sociology, and still more disciplines. The work of scholars writing
on these subjects provides a rich starting place for further
research.[29]

[1] Federal Courts of Sharia Consolidation Proclamation, No.

188/1999. See Katrin Seidel, “State-Recognised Legal Pluralism in
Ethiopia: The Relationship Between Islamic Family Law and State
Law,” Recht in Afrika 15 (2012): 223–37; Mohammad Abdo, “Legal
Pluralism, Sharia Courts, and Constitutional Issues in
Ethiopia,” Mizan Law Review 5 (2011): 78–9; Norman J. Singer,
“Islamic Law and the Development of the Ethiopian Legal
System,” Howard Law Journal 17 (1971): 136.

[2] FDRE Const. art. 1, Preamble. The Preamble opens, “We, the
nations, nationalities and peoples of Ethiopia.” The Constitution
came into force on August 21, 1995. See David Turton, ed., Ethnic
Federalism: The Ethiopian Experience in Comparative
Perspective (Athens, OH: Ohio University Press, 2006).

[3] Rashid Moten, “Islam in Ethiopia: An Analytical Survey” in Nura

Alkali, Adamu Adamu, Awwal Yadudu, Rashid Moten, and Haruna
Salihi, eds., Islam in Africa: Proceedings of the Islam in Africa
Conference (Ibadan, Nigeria: Spectrum Books, 1993), 224–25;
Patrick Desplat and Terje Østebø, “Introduction,” in Muslim
Ethiopia: The Christian Legacy, Identity Politics, and Islamic
Reformism, ed. Patrick Desplat and Terje Østebø (New York:
Palgrave Macmillan, 2013), 7.

[4] Desplat and Østebø, “Introduction,” 7.

[5] See FDRE Const. art. 39. In 1993, Eritrea followed these
procedures and seceded from Ethiopia. Derege Demissie, “Self-
Determination Including Secession vs. the Territorial Integrity of
Nation-States: A Prima Facie Case for Secession,” Suffolk
Translational Law Review 20 (1996): 176.

[6] Ibrahim Idris, “Freedom of Religion and Secularization of State:

The Legal Status of Islamic Law and Sharia Courts in Ethiopia,” in
Harold G. Marcus, ed., New Trends in Ethiopian Studies: Papers of
the 12th International Conference of Ethiopian
Studies (Lawrenceville, NJ: Red Sea Press, 1994), 2:151–56.

[7] Éloi Ficquet, “The Ethiopian Muslims: Historical Processes and

Ongoing Controversies,” in Understanding Contemporary Ethiopia:
Monarchy, Revolution and the Legacy of Meles Zenawi, ed. Gerard
Prunier and Éloi Ficquet (London: Hurst, 2015), 99, 101–2; Abdo,
“Legal Pluralism,” 78–9; Singer, “Ethiopian Legal System,” 136.

[8] J. Spencer Trimingham, Islam in Ethiopia (Oxford: Oxford

University Press, 1952): 136–7.

[9] Ibid., 137.

[10] Kadis Court Proclamation No. 12/1942. See also Follow-up

Naiba and Kadis Council Proclamation No. 62/1944 (introduced a
three-layered judicial sharīʿacourt structure).

[11] FDRE Const. art. 34, 47. See Alula Pankhurst and Getachew
Assefa, eds., Grass-roots Justice in Ethiopia: The Contribution of
Customary Dispute Resolution (Addis Ababa: United Printers,
2008), 268.

[12] FDRE Const. art. 78. Federal matters include cases between
parties of different states, cases involving matters of nationality, a
host of corporate and finance cases, and cases involving federal
actors. Proclamation No. 25/1996.

[13] Proclamation No. 188/1999 art. 5(4).

[14] Abdo, “Legal Pluralism,” 93–102.

[15] FDRE Const. art. 34.

[16] Similarly, several State Councils have officially

recognized sharīʿa courts while others have not gone further than
adopting a verbal copy of the above-mentioned Article 34(5) of the
Federal Constitution. As a result, parallel to the official court
structure, the federal and regional sharīʿa courts have a three-tier
structure: First Instance Court of Sharia, High Court of Sharia, and
Supreme Court of Sharia, each staffed with its own qāḍīs.
[17] Proclamation No. 188/1999 art. 2–3; the 1999 Proclamation
overtly repeals Haile Selassie’s 1944 recognition of sharīʿacourts.

[18] Proclamation No. 188/1999 art. 10.

[19] Proclamation No. 188/1999 art. 9.

[20] Proclamation No. 188/1999 art. 8.

[21] The Proclamation provides that the courts may receive

“assistance from other sources.” Proclamation No. 188/1999 art.
19. This provision has a basis in the long-running practice of
Muslim communities supporting qāḍīs. Trimingham, Islam in
Ethiopia, 67.

[22] Proclamation No. 188/1999 art. 2–3, 17–18; Federal Judicial

Administration Council Establishment Proclamation No. 684/2010
art. 5 (repealed Federal Judicial Administration Council
Establishment Proclamation No. 24/1996).

[23] Proclamation No. 188/1999 art. 17.

[24] Although the Federal Courts of Sharia have no female qāḍīs,

according to the chief qāḍī of the Federal Sharia Supreme Court,
one of Tigray’s federal qāḍīs is a woman.

[25] Proclamation No. 188/1999 art. 4.

[26] Proclamation No. 188/1999 art. 5.

[27] Proclamation No. 188/1999 art. 5(4).

[28] Proclamation No. 188/1999 art. 6. Federal qāḍīs told me they

draw almost exclusively from the Ḥanafī school.

[29] See Adam Possamai, James T. Richardson, and Bryan S.

Turner, eds., The Sociology of Shari’a: Case Studies from Around
the World (Cham: Springer: 2015); Ido Shahar, “Legal Pluralism
and the Study of Shariʿa Courts,” Islamic Law and Society15
(2008): 112, 117.