Professional Documents
Culture Documents
Introduction
Sitting on the eastern edge of Africa, Eritrea is home to nine ethnic groups. The
Afar, Bilen, Hidareb, Kunama, Nara, Rashaida, Saho, Tigre and Tigrinya make a
heterogeneous society yet each similarly endowed with a rich history of culture, religion,
and law, to name a few. The nine ethnic groups live over a landmass of 125,000 km2
continental and over archipelagoes and fringe of islands on the Red Sea stretching from
the Southern tip of the Sudanese border in the North all the way down to the Bab-el-
Mandeb facing the Arabian Peninsula in the South East.
Eritrean legal history is usually associated with the advent of western colonization
to Eritrea. Although the Italian colonial administration had significant influence on
Eritrean legal history the truth remains, however, that the Eritrean ethnic groups have
legal history that precedes western colonization and its colonial normative experiment in
Eritrea. Most if not all of the Eritrean ethnic groups have indigenous laws applied by
customary institutions governing all aspects of their constituencies. The laws of Adkeme
Melega, Logo-Chewa, Scioatte Anseba, Serat Karnesem, Adgena Tegleba, the customary
laws of the Saho, Fetha Mahari, Fethesh Mogaresh are some of the major customary laws
which make a body of one of the oldest customary laws in Africa.
This article provides a snapshot of the Eritrean legal system, which may be helpful to
researchers and practitioners. Most of the information provided relates to the current
normative content and structure of the legal system with a brief sojourn to history when
appropriate. The paper, in Part I, elaborates constitution and constitutionalism in Eritrea.
Part II elaborates the structure of the Eritrean Government while Part III provides a
synopsis of the Eritrean judiciary. Part IV briefly substantiates regimes, institutions and
processes that are ancillary to the Eritrean legal system.
Part- II Government
In 1991, the Eritrean Peoples Liberation Front (EPLF) the armed revolutionary
front, which fought and won Eritrean independence from Ethiopia, filled the political
void left by the Ethiopian Government in Eritrea. After a year, in 1992, the EPLF
established a Provisional Government the Provisional Government of Eritrea (PGE)
pursuant to Proclamation 23/1992. [ [13] ] The Proclamation in its preamble provides
that the EPLF has historic responsibility to form a transitional political structure until the
establishment of a constitutional government in Eritrea. [ [14] ] Proclamation 23/1992
defines the organization, powers, and duties of the PGE. The Proclamation establishes
three branches of the Provisional Government legislative, executive, and judicial and
outlines the function of each. The Proclamation provides that the Central Committee of
the EPLF would work as the legislative branch of the PGE until a constitutional
government is established. [ [15] ] The Central Committee, as such, assumed law-making
powers [ [16] ]. The Council of the Government of Eritrea became the executive branch
of the PGE. [ [17] ] Twenty-one Secretaries of the Provisional Government tzehafti
kefletat , Regional Administrators, Heads of four military divisions, Head of the Naval
Forces and chaired by the General Secretary of the EPLF make the Council the executive
branch. [ [18] ] Besides the twenty-one Secretaries whose mandate is detailed in the
Proclamation, the Proclamation creates two Commissions, three Authorities, and three
Offices as part of the executive. The Proclamation, pursuant to article 6 of the
Proclamation, designates an independent judiciary as the third branch of the Provisional
Government. [ [19] ]
During its less than a decade life span, the Eritrean National Assembly had a
unicameral structure. [ [23] ] Proclamation 37/93 reserves fifty percent of the total 150
seats of the National Assembly to members of the Central Committee of the Peoples
Front for Democracy and Justice (PFDJ) formerly EPLF. [ [24] ] The remaining half of
the seats went to popularly elected representatives. [ [25] ] Possessing fifty percent of the
parliamentary seats, the PFDJ could easily secure votes that would enable it to pass or
block any legislative bill. Although the role of the EPLF/PFDJ in liberating Eritrea and
spearhead a transitional political process is understandable controlling half of the
legislative seats seems far-fetched.
2.2 Executive
The executive has been an embodiment of political power in Eritrea since 1991.
Proclamation 23/92, as mentioned in the forgoing, established the Council of the
Government of Eritrea composed of Heads of the executive portfolios, regional
administrators, and army commanders. Proclamation 37/93 as amended by
Proclamation 52/94 downsized the size of the Council by shedding regional
administrators and army commanders from the Council. [ [31] ] Pursuant to Proclamation
52/94 the Council changed its name into the Cabinet of the Government of Eritrea, and
the Cabinet has been at the tip point of the executive establishment headed by the
President of the State since then. The Executive branch, according to Proclamation 16/94
is composed of ministries, authorities, and commissions. [ [32] ] These, are: the Ministry
of Regional Administration, Ministry of Defense, Ministry of Internal Affairs, Ministry of
Justice, Ministry of Foreign Affairs, Ministry of Information and Culture (now Ministry
of Information), Ministry of Finance and Development (now of Ministry of Finance),
Ministry of Trade and Industry, Ministry of Agriculture, Ministry of Marine Resources
(now Ministry of Fisheries), Ministry of Construction (now Ministry of Public Works),
Ministry of Energy, Mines and Water Resources (now Ministry of Energy and Mines),
Ministry of Education, Ministry of Health, Ministry of Transport (now Ministry of
Transport and Communications), Ministry of Tourism, the Social Affairs Authority (now
the Ministry of Labor and Human Welfare), the Postal and Communications Authority
(now Postal Authority), the Ports Authority, the Housing Commission, and the Refugees
Commission (now part of the Ministry of Labor and Human Welfare). The Ministry of
Land, Water and Environment and Ministry of National Development later became part
of the executive and their Ministers members of the Cabinet. [ [33] ]
2.3 Judiciary
Statutes are the major sources of law in Eritrea. The Government of Eritrea
adopted a big corpus of the 1960s Ethiopian Codes in 1991 on transitional bases. The
codes are: the Transitional Civil Code of Eritrea (2/91), the Transitional Civil Procedure
Code of Eritrea (3/91), the Transitional Penal Code of Eritrea (4/91), the Transitional
Criminal Procedure of Eritrea (5/91), the Transitional Commercial Code of Eritrea (5/91)
and the Transitional Maritime Code of Eritrea (7/91). These codes embody big if not
the biggest - body of laws in Eritrea. Subsequently issued proclamations and legal notices
have amended most of the codes. Since 1991 the Government of Eritrea has issued more
than 150 laws proclamations and legal notices - dealing on a range of issues.
The Eritrean legal system relates more to the civil law tradition. The procedural
codes have elements of adversarial system, however. Parties to a dispute have an active
role during the process of trial, and the codes allow chief-examination, cross-
examination, and in-chief examination, which are typical to the common law legal
system.
The Eritrean judiciary can be divided into three: Civil, Military and Special
Courts. The jurisdictional paths of these Courts do cross each other, but each is subject to
different administrative structure. The Courts also differ in the type of law they use.
Zoba and High Courts make civil regular courts in Eritrea . Both Courts serve as
first instance and appellate courts. According to Proclamation 167/2012 Zoba Courts
have first instance material jurisdiction over cases that involve movable property worth
100,000 to 500, 000 Nakfa [ [46] ] and 150,000 to 1,o00,000 Nakfa in cases related to
immovable property. [ [47] ] Zoba Courts have also first instance jurisdiction over all
cases except those that are specifically assigned to the jurisdiction of other courts
whose value cannot be determined in money including filiation cases. [ [48] ] The High
Court has first instance jurisdiction to adjudicate movable property related cases worth
more than Nakfa 500,000 and immovable property related cases worth more than Nakfa
1,000,000 [ [49] ]
The High Court has exclusive first instance jurisdiction over the following cases;
formation and liquidation of business organizations, bankruptcy, negotiable instruments,
maritime, insurance policies, intellectual property rights, habeas corpus, expropriation of
property, nationality, , expropriation, and communal exploitation of property. [ [50] ]
The Zoba and High Court also serve as appellate courts in civil and criminal
cases. Zoba Courts adjudicate cases decided by Community Courts in the form of
appeal. [ [53] ] Zoba Courts have also appellate jurisdiction over cases decided by the
First Instance Labor Court. The High Court hears cases decided by Zoba Courts first
instance cases and appeal cases from decisions of Community Courts- in the form of
appeal, and appeals from decisions of the Tax Appeal Commission and the Labor
Relations Board.. A Panel of five High court (including the President of the High Court)
judges commonly referred to as the Last Appellate Court has appellate jurisdiction
over cases decided by the High Court first instance cases and cases decided by the High
Court in the form of appeal from Zoba Courts. The Panel has appellate jurisdiction over
criminal cases decided by the Military High Court.
It should be pointed out that Communal Courts share the lowest echelon of
material jurisdiction civil and criminal - with civil regular courts. The Special Court
likewise has jurisdiction to retry cases decided by civil regular Courts. [ [54] ] The next
section discusses the composition and jurisdiction of the Special and Communal Courts.
Community Courts are the most recent addition to the Eritrean judicial structure.
Community Courts, according to Proclamation 167/2012, have material jurisdiction on
civil cases related to movable property worth up to Nakfa 100,000 and Nakfa 150,000 in
immovable property. They also have jurisdiction over land related cases, lost and found
property and animals, servitude, rain and drainage, marriage related issues, succession,
and tenant and landlord related cases. In criminal cases, Community Courts have
jurisdiction on cases related to forestry and wildlife development, physical assault,
intimidation, defamation and maintenance and alimony cases among others [ [63] ]
One of the main distinguishing factor of Community Courts from Civil Regular
Courts is that Community Courts use local norms and custom of the society in resolving
disputes. Moreover, the lack of formality and procedure in the court proceedings puts
disputants at ease and allows them to present their case in a language and manner
customary to their vicinity. [ [64] ] However, Zoba Court, using statutory law, hear cases
decided by Community Courts in the form of appeal. This is also to say that regular
courts cannot apply customary laws as, at least in civil cases, the Transitional Civil Code
of Eritrea article 3347 repealed the application of customary law unless otherwise
specified. [ [65] ] Hence, Zoba Courts, apply statutory laws while adjudicating cases
decided by Community Courts on bases of customary law in appeal. The problem
becomes more complicated at High Court level, where High Court judges have to
determine the validity of statute-based decisions of Zoba Court on custom-based
decisions of Community Courts using statutory laws. Scrutinizing judgments of
Community Court in light of statutory law seems to contradict with the very aim that
Community Courts are established for.
Sharia Courts assumed judicial functions during the Italian period in Eritrea.
[ [72] ] After independence there is no legislation that specifically details the structure
and jurisdiction of Sharia Courts in Eritrea. Proclamation 2/1991, however, provides that
the marriage and succession related provisions of the Transitional Civil Code of Eritrea
do not apply to marriages concluded according to Sharia Law. [ [73] ] Sharia Courts, at
this time, entertain cases dealing with family notably marriage and inheritance related
cases of Muslims. The status of mixed marriages marriages concluded between
individuals from different background is not clear, however. The same goes for the right
of children born both within and out of wedlock from parents of different religious
background, for example in terms of succession.
Military Courts have personal jurisdiction over members of the Eritrean Defense
Forces, members of National service during the execution of their national service,
members of the Eritrean Police Force, members of militia units, members of the national
reserved army, prison wardens and former combatants discharging governmental
functions. [ [74] ]
Military Courts have jurisdiction over offences listed in articles 296-353 of the
Transitional Penal Code of Eritrea. Military Courts have two levels of jurisdiction: Lower
and High Military Courts. The Lower Military Court has jurisdiction, according to
Proclamation 25/1992, over offences that are punishable with simple imprisonment from
ten days to three years. The High Military Court has jurisdiction over offences that are
punishable with rigorous imprisonment from one year to twenty-five years, life
imprisonment, and with capital punishment. The High Military Court hears cases
appealed from decisions of the Lower Military Court while the High Court panel of five
judges (the Last Appeal Panel) decides cases appealed from decisions of the High
Military Court.
Besides the regular and special courts mentioned in the above, there are quais-
judicial tribunals in Eritrea. These are; the First Instance Labor Court, the Labor
Relations Board and the Tax Appeal Commission. The First Instance Labor Court have
jurisdiction on cases related to employment contracts. During employment dispute, the
Eritrean Labor law (Proclamation 118/2001) requires individuals to settle their disputes
by conciliation or arbitration at the industry level. Should these mechanisms fail, a party
may apply to the Labor Tribunal. Labor tribunals usually follow the regular courts
procedure. Decisions of the the First Instance Labor Court are appealable to Zoba Courts.
The Labor Relations Board decides on cases related to unfair labor practices and
collective labor disputes among others.
3.3.6 ADR
With the exception of marriage (divorce) and labor related cases, alternative
dispute resolution mechanisms are not normatively constituted. In marriage related cases,
Community Courts require parties to a dispute to elect four Council Members and a
Chairperson who would hear the case and decide on the merit of the case. Decision is
expected to reach by consensus. In case of lack of consensus, decision is adopted by
majority.
The Eritrean legal system has other components besides laws and institutions.
The following section discusses some of the institutions, regimes and processes that in
one way or the other affect the development and operation of the Eritrean Legal System.
These are: legal education, lawyers and the legal profession, law-making process, the
status of international law in the Eritrean legal system, and legal research.
4.1. Legal Education
Legal education has a fairly short history in Eritrea. The University of Asmara
first started to provide legal education in Eritrea. Founded in 1958 as the Catholic
College of Santa Famiglia, the College was renamed as the University of Asmara in 1964.
The University was further reorganized in order to expand its student population, course
offering and facilities in 1979. After independence, in August 1992, the University of
Asmara prepared a five year LL.B. but it did not get into effect due to shortage of staff.
The University, however, adopted the curriculum for a three-year open ended diploma
program. The diploma program was a temporary program intended to transition students
in the diploma program once the University gets enough resources. Two diploma classes
graduated in 1994/95 and 1995/96 academic years.
In 1996, the University of Asmara started to the LL.B. program. The first class
included diploma graduate students and students who finished one year of humanities. .
[ [75] ] In 1998, the University of Asmara graduated its first LL.B. students all of them
diploma students who later transferred to the LL.B. program. From 1997-2003, the
University of Asmara offered diploma education to students who were mostly from the
judiciary and the Attorney Generals Office.
In 2003, to increase the LL.B. programs autonomy, thereby increase its research,
and budget the University Asmara upgraded the Law Program which was under the
College of Arts and Social Sciences until then as an independent Faculty- Faculty of Law.
[ [76] ] In 2003, the Faculty of Law stopped admitting new students and the Government
of Eritrea closed the University of Asmara in 2006. The Government opened small
colleges instead, and the former Faculty of Law became a Department under the Adi Keih
College of Arts and Social Sciences housed in a building formerly under the now closed
University of Asmara. After seven years, the Department, in 2010, admitted around thirty
students who finished one year program in humanities. The LL.B. program requires a
total of five years. Students do a one year internship in the judiciary and in other
government offices. In 2003, the Law School had about 166 LL.B. candidates in addition
to the 155 alumni. [ [77] ] Most of these graduates work as judges and prosecutors while
some work as legal advisors in government offices. [ [78] ] Assuming that all the
candidates graduated the ratio of LL.B. holder to the total population size of Eritrea is
one LL.B. graduate to 1745 members of the public. [ [79] ] This shows that the demand
for legal personnel from both the private and public sector is huge.
Accordingly there are two layers of law practice in Eritrea: attorneys who can
present clients in Zoba Court, High Court, and the last Appellate Court and those who can
represent in Zoba Courts only.
There is no law that governs how non-Eritrean attorneys or foreign law firms can
operate in Eritrea. When there is a need for representation, non-Eritrean attorneys or
foreign law firms assign Eritrean attorneys to represent them or their clients in Eritrea.
Most lawyers practice law in solo in Eritrea. The Ministry of Justice has not
issued new license to recent law graduates for a while. The number of lawyers in private
practice is dwindling due old age and health, among others.
There is also no law pertaining private international law or conflict of laws either,
The Transitional Civil Procedure Code, however, contains few articles on the
enforcement and execution of foreign judgments. There is also a bit of practice related to
Eritrean Courts either recognizing marriage concluded by Eritrean Diaspora and
nullifying the same.
The transitional codes are the primary source of research on the Eritrean legal
system, [ [88] ] The 150 or so proclamations and legal notices contain a dearth of
legislation on a range of issues in Eritrea. The Gazette of Eritrean Laws is, however,
limited to domestic circulation. There is no case reporter and one has to get official
permission to access court judgments. The archives of the High Court of Eritrea have a
wealth of cases cases to date back to colonial era, which may be of interest to
researchers who are interested in legal history.
Inside Eritrea, the Ministry of Justice Library and the Research and
Documentation Center of the PFDJ have collection of these laws in print. The Law
Library of the Department of Law has a fair collection of codes, proclamations, legal
notices and commentaries. The former University of Asmara Research Library now
under the Eritrean National Board of Higher Institutes - has a collection of customary
laws and other archaic resources. Outside Eritrea, the Library of Congress and Harvard
Law School Library have good collection of Eritrean laws. There is no database of
Eritrean laws that is accessible online. One can, however, find helpful information in
NATLEX , Refworld and LEXADIN: Ethiopia . [ [89] ]. There is also a fair amount of
scholarship written on the theoretical and empirical aspects of the Eritrean legal system.
Conclusion
The Eritrean legal system is in transition in many ways. The Eritrean legal system
has extra miles to go in terms of constitution and constitutionalism. There is no
constitutional legal order even in the loose sense of the concept and the Ratified
Constitution is in a middle of the road awaiting implementation or replacement by a
new political process. The government lacks a complete set of structures that is typical to
the ordinary model of government. It was established on transitional bases in the first
place! The major codes, which make the bulk of the Eritrean laws, are similarly
transitional. In terms of judicial structure, the Government of Eritrea has been
experimenting with different models regular, special, communal and so forth - each
drawing unique attributes and challenges to judicial process. Although one can rightfully
argue that there is hardly a singular judicial blueprint and a multitude of judicial
structures draw efficiency and legitimacy to the administration of justice, having a
sensible, coherent, and rights-based adjudicative structure should be elements of any
judicial structure. The Eritrean legal system has to yet embrace these attributes. The
status of legal education and legal profession similarly leaves a lot to be desired. Building
a vibrant, critical and competitive mass of legal professionals depends, in part, on the
resource and independence structural and political of legal education in a legal
system. Legal education in Eritrea needs genuine commitment to the advancement of
legal thought, free expression of ideas, and aggressive allocation of resources. The
number of legal professionals in private practice is shrinking - limiting the supply and
quality of legal service to the public. The legal market has to be liberalized. The
Government of Eritrea has to allow members of the legal profession those in different
sectors of the legal system to establish a professional association which would be a
platform upon which they can hold debate on the state of law and its institutions in
Eritrea and devise effective ways to assist the public in general and those in need in
particular. That being said, courts at all levels and sides of the judicial structure are
deciding cases and the Government of Eritrea is issuing laws on a range of issues. There
is also a dearth of archaic legal resources customary and colonial in Eritrea. These all
promise to be interesting resources for researchers who are interested in the challenges of
post-colonial states in the formidable project of state building.