Sometimes ago I posted the first volume of the consolidated laws. Here is the last and second volume.
“The provisions relating to the law on a given subject matter are often found in a series of Acts. As a consequence, investigation of the law on a given subject requires simultaneous reference to a number of separate Acts. This problem can be solved by a re-enactment of the scattered provisions into one Act Consolidation is thus the process whereby several Acts of Parliament are brought together in a single, comprehensive Act.
Consolidation is a process of combining the legislative provisions on a single topic into one coherent enactment. The earlier Acts of Parliament are repealed. In their place is substituted a single Act which embraces the subject matter of the earlier Acts. The aim of consolidation is to allow for easy access to a particular subject matter on which there would have been numerous amendments to the law at different times.”
(V. C. R. A. C. CRABBE, Legislative Drafting, P185)
“….important development in the history of legislations in Ethiopia is the Consolidated Laws of Ethiopia. The purpose of the project of the Consolidated Laws “is to provide a useful source and reference work on the laws of Ethiopia”. The Consolidated Laws of Ethiopia initially contained laws which were, in effect, included at the end of the Ethiopian year 1961 (September 10, 1969). A supplement was issued in 1975 in which were included as laws which were, in effect, proclaimed at the end of the Ethiopian year 1965 (September 10, 1973). Since then, no supplement has been issued. Besides, the Consolidated Laws “contains numerous tables. And other means of assisting the user to find the legal provisions he is searching for”.17 This important work was begun by the former Institute of Public Administration of the Ethiopian Government but was later on turned over to the Faculty of Law of the Haile Selassie I University (now the Addis Ababa University). The work was completed in October by Mr. William H. Ewing, who was a member of the staff of the Faculty of Law and the project’s head. The other laws and regulations relating to Addis Ababa appeared in the Consolidated Legislations of Addis Ababa”
(Sileshi Zeyohannes and Fanaye G/Hiwot, Legislative Drafting Teaching Material [Sponsored by the Justice and Legal System Research Institute] P25-26)
Volume I and II of the consolidated laws are now available. (Unfortunately only the Amharic version is available)
Due to the size of the file, I split up Volume one in to five parts.
I will upload Volume two in my next post.
PROCLAMATION No. 759/2012 DOWNLOAD (.pdf)
A PROCLAMATION ON ADVERTISEMENT
WHEREAS, advertisement plays a significant role in the economic, social and political development of the country, by influencing the activities of the public in commodity exchange or service rendering;
WHEREAS, advertisement makes a significant contribution in establishing healthy market competition in the market-led economic system of the country;
WHEREAS, advertisement, if not regulated, may harm the rights and interest of the people and the image of the country;
WHEREAS, it is necessary to clearly define the rights and obligations of advertising agents,
advertisement disseminators and advertisers;
NOW, THEREFORE, in accordance with Article 55(1) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby proclaimed as follows: Continue reading “Advertisement Proclamation No. 759/2012”
“this Proclamation does not apply to contracts a public body enters into with another public body for the provision of goods, works, consultancy or other services at cost.”
The Ethiopian Federal Government Procurement and Property administration Proclamation No.649/2009 Article 3(2) (b)
In developing countries like Ethiopia, the provision of services to the citizen is one of the central functions of government. To fully realize it’s in providing services which meet the standard of the best quality, but at the same time with the minimum cost, the government in Ethiopia, uses the best mechanisms available, which may generally be categorized in to two. First, in areas where the private sector is considered to be at an infant stage, the government directly involves itself in the management and operation of the provision of services. The provision of electricity, telecommunication and water for instance, is under the exclusive control of government. Second, in areas which do not require direct involvement of the government, the provision of public services will be realized by involving the private sector for carrying out works and providing goods and services. Even in the second case, the government is not totally out of the picture. Public enterprises and other government business organizations equally participate in this process. Similarly, the direct provision of services by the government, to some extent allows the participation of the private sector. To a certain degree, the private sector plays a role in carrying out public works and providing goods and services in areas under the exclusive control of the government
Irrespective of the role played and the level of participation of the government or the private sector, the provision of the best quality of services with a minimum cost, requires an efficient and effective system of public procurement. “Public procurement is a central instrument to ensure an efficient management of public resources. Promoting good governance in public acquisition system aims at providing best value to its citizens through processes that are transparent and results-oriented”
Irrespective of variations in the existing political, economic and legal environment peculiar to a specific country, an efficient and effective system of public procurement is ultimately built upon four basic pillars: procurement laws and regulations, procurement workforce, procurement process and methods, and procurement organizational structure. Ideally, procurement laws and regulations should be clear, consistent, comprehensive, and flexible. (Khi V. Thai, procurement: concepts and practices, in International handbook of public procurement ed. Khi V. Thai p6-9)
Generally speaking, the regulatory framework of public procurement as tool in the formulation and implementation of an effective and efficient system of public procurement should be guide by some internationally accepted basic principles. These principles are: transparency, accountability, objectivity, fairness and non-discrimination.
The principle of transparency helps to attract a greater number of participation, thereby encouraging competitiveness. It also makes the whole procurement process open and fair, thus avoiding the possibility of favoritism and discrimination. Transparency also makes it easy for procuring entities and officials to be accountable. Most importantly, it is an effective tool to curb corruption.
The Ethiopian procurement law is still at an infant stage. In recent years, the Federal government has taken measures to revise the existing law, so as to make it responsive to the growth and expansion of the quantity and quality of provision of public services. Each year, a significant portion of public money is allocated as a result of award of contracts for the construction of public works, supply of goods and provision of services.
Until 2005, there was no comprehensive procurement law at a national level. There were only few articles in the civil code regulating the procurement procedure. In 2005, the Federal government enacted a law providing a detailed procedure of Public Procurement (providing the procedures of Public Procurement and establishing its Supervisory Agency Proclamation No. 430/2005.) This law also establishes a federal agency empowered with regulating the procurement of works, goods and services by Federal agencies. Another significant change introduced by this law was that it tried to embrace the basic principles of transparency, accountability, fairness and non-discrimination as its guiding principles.
After four years of the issuance of this law, it was revised and replaced by a new law (The Ethiopian Federal Government Procurement and Property administration Proclamation No.649/2009.) This second proclamation comes with more detailed and clear procedures. It has also widened its scope by providing for the regulation of public property, which was not dealt by the previous proclamation.
In addition to the legislative reforms taken by the legislative organ, the issuance of secondary legislation by the executive organ is also another significant development in the process of creating an efficient and effective legal framework. As a supplement to proclamation no. 649/2009, the Ministry of Finance and Economic Development issued a Federal Procurement Directive in June 2010. A month later, in July 2010, the Council of Ministers issued a regulation providing for public procurement and property disposal services establishment (regulation no. 181/2010)
Since procurement is not an exclusively federal matter, some regional states (e.g. Amhara regional state) including the Addis Ababa and Dire Dawa administrations have followed the footsteps of the federal government in devising their own procurement laws.
So far so good!
From the above brief assessment, you see only the positive side of Ethiopian procurement law. Yes it is true; efforts have been made to make the law clear, comprehensive and flexible. It is also true that the current law embraces basic principles of public procurement. But, it seems, something big, something fundamental went wrong!
Just look into the scope of this law. According to article 3 of The Ethiopian Federal Government Procurement and Property administration Proclamation No.649/2009, the law is exclusively a federal law and its applicability is limited to Federal Government procurement and property administration. By way of exception article 3(2) (a) excludes procurement affecting national security or national defence. This is acceptable taking in to consideration the sensitive nature of such type of procurement and similar form of exclusions also exist in most jurisdictions. The exclusion also is not absolute because the type of procurement procedure is still to be decided by the Ministry of Finance and Economic development through consultation with relevant authorities.
Then comes article 3(2) (b). This article reads: “this Proclamation does not apply to contracts a public body enters into with another public body for the provision of goods, works, consultancy or other services at cost.” According to article 2 of sub article 6 of the proclamation, Public Body means any public body, which is partly or wholly financed by the Federal Government budget, higher education institutions and public institutions of like nature. So, public bodies are not subject to procurement procedures if they intend to participate in the provision of goods, works, consultancy or other services at cost. They will simply get awarded of a contract without competing with the private sector. In effect, they will get preferential treatment. Doesn’t this then destroy the principle of fairness and non-discrimination? What is worse, no alternative procedure which ensures transparency and accountability, is devised for contract of public works, goods and services if it is between two public bodies.
As a result, the procurement proclamation which professes to be rooted in the basic principles of transparency, accountability, fairness and non-discrimination, almost destroys itself by including such ‘suicidal provision.’ Remember, the government widely participates in every activity of undertakings related to carrying out public works, supply of goods and provision of services. When a public body gets a preferential treatment, it surely will not be competitive. This makes achieving the basic objectives of the procurement proclamation unattainable. The ultimate objective of any procurement legislation is the provision of the best quality of service with a minimum cost or to use the statement in the preamble of the proclamation, it is “the utilization of the large sum of public money spent on procurement in a manner that ensures greater economy and efficiency.” In the absence of competition, this is doomed to fail.
The proclamation seems to advance competition, but, as article 3(2)(b) of the proclamation has made it clear, public bodies are an exception to competition. Not only that, they are an exception to the principle of transparency, accountability, fairness and non-discrimination.
2011 was the busiest year for the Council of Ministers. During this year more regulations have been issued by the Council than proclamations issued by the House of People’s Representatives. One of the factors contributing for the growth of legislation by the Council is the delegation of vast powers of law making power provided in article 34 of Definition of Powers and Duties of the Executive Organs of the Federal Democratic Republic of Ethiopia Proclamation No. 691/2010. According to this provision, The Council of Ministers is empowered, where it finds it necessary, to reorganize the federal government executive organs by issuing regulations for the closure, merger or division of an existing executive organ or for change of its accountability or mandates or for the establishment of a new one. The power of establishing new agencies through regulation has significantly increased the legislative role of the Council of Ministers.
Most of the regulations issued in 2011 are regulations for the establishment of Agencies, public enterprises and universities. These regulations mainly give legal personality for the newly established universities. There are also regulations for the re-establishment of the existing universities. The contents of each of the regulations are almost similar and contain four or five articles. Here is a brief summary of the content of university establishment or re-establishment regulations.
- All Universities are accountable to the Ministry of Education
- They are governed by Higher Education Proclamation No. 650/2009 and Federal Universities Council of Ministers Regulation No.211/2011
The respective regulations establishing or re-establishing a university is listed below:
Reg no.221/2011 Wollo University
Reg no.222/2011 Wachamo University
Reg no.223/2011 Adigrat University
Reg no.224/2011 Mizan Tepi University
Reg no.225/2011 Axum University
Reg no.226/2011 Jigjiga University
Reg no.227/2011 Debre Markos University
Reg no.228/2011 Debre Birhan University
Reg no.229/2011 Debre Tabor University
Reg no.230/2011 Dire Dawa University
Reg no.231/2011 Hawassa University
Reg no.232/2011 Haramaya University (Re-establishment)
Reg no.233/2011 Bahir Dar University (Re-establishment)
Reg no.237/2011 Adama Science and Technology University
Reg no.238/2011 Dilla University (Re-establishment)
Reg no.239/2011 Metu University
Reg no.240/2011 Jimma University (Re-establishment)
Reg no.241/2011 Gondar University