Tag: repeal

Some unusual facts about repeal in Ethiopia (Part II)

Double Repeal and repeal after indefinite period of time

It is difficult even for law makers to remember each and every law they have amended and repealed. With the ever increasing quantity of legislations issued by the law maker and subordinate organs, sometimes it may happen that a provision of the law be repealed twice. Here are two instances:

A.)  Proclamation No. 287/2002 (Tax on Coffee Exported from Ethiopia (Amendment) Proclamation) is an amendment to Proclamation No.99/1998 (Tax on Coffee Exported from Ethiopia.) One of the provisions of the previous law which was amended by Proclamation No. 287/2002 is Article 4. This Article provides that the rate of Tax payable on Coffee exported from Ethiopia shall be 6.5% (six and point five per cent) of the FOB price. FOB is defined in the proclamation as selling price of coffee quoted at the port of loading, agreed between the Coffee exporter and his customer and approved by the National Bank of Ethiopia, from which freight and insurance costs are excluded.

Article 2(1) of Proclamation No. 287/2002 mainly amends the tax rate lowering  it to zero. It reads:

Article 4 of the proclamation is deleted and replaced by the following new Article 4.

“4. The rate of the Tax which has been 6.5% (six and point five per cent) shall be zero”

However, the deletion and replacement to article 4 of Proclamation No.99/1998 is a double repeal as it has already been deleted by Council of Ministers Regulations No.73/2001(Tax Amendment on Exported Coffee Council of Ministers Regulations.)

Article 2 of the regulation reads:

2. Amendment

Article 4 of the Tax on Coffee Exported from Ethiopia Proclamation No.99/1998 is deleted and replaced by the following new Article 4:

4. Rate of the Tax

1) The Rate of the Tax shall be 6.5% (six and point five per cent) of the FOB price.

2) Notwithstanding the provisions of Sub-Article (1) above, no tax shall be levied if the FOB price of the coffee exported is:

(a) Below 105 cents (one hundred five cents) per pound for washed coffee;

(b) Below 70 cents (seventy cents) per pound for unwashed coffee.

By way conclusion, it means that article 4 of Proclamation No.99/1998 was repealed by Proclamation No. 287/2002 after it [Proclamation No.99/1998] was repealed by Regulations No.73/2001.

B.)  Article 17(1) of the Census Commission Establishment proclamation No. 84/1997 states that the Population and Housing Census Commission Establishment Proclamation No.32/1992 is repealed. However, Proclamation No.32/1992 was again repealed for the second time by article 18(1) of Proclamation No. 180/1999 (Census Commission Establishment Proclamation)

The problem seems to have been created due to failure of parliament to set exact expiry date for Proclamation No.32/1992. Even though it [Proclamation No.32/1992] was expressly repealed by Proclamation No. 180/1999, its applicability was extended for indefinite period of time. According to article 19 of proclamation No. 84/1997, the previous proclamation (32/1992) will remain applicable with respect to census undertakings not completed and until such time that the Secretariat (of the Census Commission) is properly organized. Hence, someone has to wait until he/she is told that the Secretariat (of the Census Commission) is properly organized to verify whether the proclamation is active or not. It is a subjective condition and no one could for sure know that it is actually repealed. When I say no one, it includes the House of People’s Representatives. That is why it repealed the same law twice.

What is more interesting is article 20 of Proclamation No. 180/1999. It reads:

“Notwithstanding the provisions of Article 18 (l) of this proclamation, Proclamation No. 32/1992 shall remain applicable until such time that the Secretariat is properly organized.”

It may be confusing, but this article seems to suggest that Proclamation No. 32/1992 which was repealed twice is still active for some unknown time in the future… until such time that the Secretariat is properly organized! By the way, why was it so difficult to organize the secretariat of the Census Commission? [It took more than two years!]

Repeal for the unusual ground

Why is a law repealed? There may be so many convincing justifications to repeal a law, but definitely the following two cases are wrong [I mean may be unusual] answers to the question.

·         National Lottery Administration Re-establishment Proclamation No.535/2007

[Article] 22 Repealed and Inapplicable Laws

1/ The National Lottery Administration Re-establishment Proclamation No. 510/2007 .having not been published as endorsed by the House, is hereby repealed

·         Addis Ababa City Government Revised Charter Proclamation No. 361/2003

[Article] 67. Repealed Laws

1) The Addis Ababa City Government Revised Charter Proclamation No. 311/2003, having been published with its contents changed without following the Legislative Procedure, is hereby deleted and replaced by this Charter

Some unusual facts about repeal in Ethiopia

I was writing an article under a general title ‘Some unusual facts about repeal in Ethiopia’ After writing the first topic I found it good to break it down in to a series of posts. Here is the first part

Repeal of a court decision by law (Legislative review of Court Decisions?)

According to the 1995 Ethiopian Constitution, the House of Federation has a power to interpret the constitution. Although the meaning and scope of the ‘constitutional adjudication’ in general is subject to controversy among some legal scholars, practically we all agree that ordinary courts do not have any power over questions of constitutionality of a proclamation  issued by the House of People’s Representatives. The courts are even reluctant to exercise their power of review over the legality of subordinate legislations (regulations and directives) and administrative decisions.

So, as I have said there is no such thing as judicial review of legislation in Ethiopia. What about legislative review of judicial decisions? I mean what about giving power to the House of People’s Representatives to repeal or invalidate those court decisions which are manifestly erroneous or contrary to public interest. I guess most of you will strongly object to this odd ‘concept.’ Yes it is odd, but there is proof that parliament has repealed or invalidated existing court decisions after they were pronounced.

If you have doubt over the validity of this fact, just read Article 3 sub 2 of Civil Code As Amended Proclamation No. 639/2009. This law was issued in response to the position of courts (including the cassation bench) in giving meaning to article 1723 of the 1960 Ethiopian Civil Code. Sub article 1 of article 1723 provides that a contract creating or assigning rights of ownership or bare ownership on an immovable or an usufruct, servitude or mortgage on an immovable shall be  writing and registered  with a court or notary. To be honest this article is clear and does not need any interpretation. The problem is that it is applicable to mortgage contracts concluded with banks. In practice almost all bank mortgage contracts were not registered with a court or notary. Hence, the fate of such contracts were invalidation by court. This posed a great danger to banks, especially to the commercial Bank of Ethiopia as it results in the loss of huge amount of money not collected from borrowers.

Actually, it was a problem created by the banks, (as they have failed to comply with the requirement of registration) not by the courts. Any ways parliament thought it necessary to act immediately, to reverse the situation. Then it issued Civil Code As Amended Proclamation No. 639/2009. The title of the proclamation seems to suggest that it is amendment to article 1723 of the Civil Code. However, its content clearly goes beyond amendment.

The proclamation contains three important provisions.

1.      Article 2 Amendment

The title of Article 2 talks about amendment, but practically it partially repeals article 1723 sub article 1 of the civil code. Article 2 of the proclamation makes the registration requirement of contract of mortgage concluded to provide security to a loan extended by a bank or a micro-financing institution unnecessary. In effect it makes mortgage contracts concluded with banks and micro-financing institutions valid even though not registered with a court or a public notary. This applies to mortgage contracts concluded after the proclamation became effective.

2.      Article 3(1)  Transitory Provisions (Retroactive measure to previous contracts)

Clearly Article 2 of the proclamation was not sufficient to avert the then existing danger posed to banks. What about mortgage contracts concluded before the issuance of the proclamation? This was dealt in Article 3 sub 1 which reads:

“The validity  of  any  contract  of  mortgage concluded,  prior  to  the  effective  date  of  this Proclamation,  to  provide  security  to  a  loan extended  by  a  bank  or  a  micro-financing institution,  may  not  be  challenged  for  not being  registered  by  a  court  or  notary  in accordance  with  Article  1723  of  the  Civil Code.”

This will force courts to give effect to unregistered mortgage contracts concluded not only after the effective date of the proclamation, but also to those mortgage contracts concluded before the proclamation. You may say this is against the principle of non-retroactivity of laws, but thanks to the F.D.R.E. Constitution, it only provides for non-retroactivity of criminal laws not civil laws.

3.      Article 3(2)  Transitory Provisions (Retroactive measure to court decisions)

Even after amending article 1723 (1) and providing a solution to previous contracts, Parliament did not stop there. Before the issuance of the proclamation, courts have already started invalidating mortgage contracts for lack of registration. No one denies the decision of courts severely affected the interest of banks. So, what should be done? (if anything is possible to be done) What about invalidating (I mean repealing) the existing court decisions? That is too extreme and violation of the constitutional principle of separation of powers. However, principle gave way to saving the banks and the House of People’s Representatives invalidated the existing court decisions, rendered prior to the effective date of this Proclamation.

Here is the full text of the article

Article 3(2) of Civil Code As Amended Proclamation No. 639/200

Any court decision, rendered prior to the effective date of this Proclamation, to invalidate a contract of mortgage concluded to provide security to a loan extended by a bank or a micro-financing institution, for not being registered by a court or notary in accordance with Article 1723 of the Civil Code shall have no effect.

Repealed Ethiopian Laws 1997

Repealed text


Repealing Text
(a)    Customs and Export Duties Proclamation No.39/1943;

(b)   The Proclamation to Consolidate and Amend the Law Relating to Customs Proclamation No. 145/1955;

(c)    Customs and Export Duties Measurement Regulations No. 48/1944;

(d)   Customs Working Hours Regulation No. 169/1952.

 

Proclamation No. 60/1997 The Re-Establishment and Modernization of Customs Authority Proclamation
(a)    The Business Enterprises Registration

Proclamation No. 184/1961;

(b) The Industrial Licence Proclamation No. 292/1971;

(c) The Foreign Trade Proclamation No. 293/1971;

(d) The Industrial Licence Regulations No. 423/1972;

(e) The Foreign Trade Regulations No. 424/1972;

(t) The Regulation of Domestic Trade Proclamation No. 335/1987;

(g) The Domestic Trade Regulations No.109/1987;

(h) The Industrial License Council of Ministers Regulations No. 8/1990;

Proclamation No. 67/1997

Commercial Registration and Business Licensing Proclamation

The Institute of Agricultural Research establishment order, ordered No. 42/66 and part of Article 12(5), of the definition of powers and duties of the executive organs of the Federal Democratic Republic of Ethiopia, proclamation No. 4/1995, which refers to the establishment of research centers Proclamation No. 79/1997 Ethiopian Agricultural Research Organization Proclamation
The Scrap Iron Board Charter (General Notice No. 168/1953) Proclamation No. 47/1996 Basic Metals and Engineering Industry Agency Establishment
(a) the Declaration of telephones Proclamation No. 55/1944;

(b) The Maintenance of Telephone Services Proclamation No. 114/1950;

(c) the Imperial Board of Telecommunications establishment Pro61amation No. 131/1952.

Proclamation No. 49/1996 Telecommunication Proclamation
The Proclamation to Establish the Office of the Auditor General Proclamation No. 13/1987 Proclamation No. 68/l997 Office of the Federal Auditor General Establishment Proclamation
The Ethiopian Roads Authority Re-establishment Proclamation No. 63/1993 as amended

 

 

Proclamation No. 80/1997 Ethiopian Roads Authority Re establishment Proclamation