Introduction
The Federal Courts of Sharia Consolidation Proclamation, enacted in 1999 by the House of People’s Representatives, reorganizes Ethiopia’s official sharīʿa courts 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 39 of 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 qāḍīs adjudicated 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 sharīʿa courts 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 qāḍīs are 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 sharīʿa courts 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 sharīʿa court 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 sharīʿa courts.
[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 Society 15 (2008): 112, 117.