• Mizan Law Review

Publisher:
St. Mary's University College
Publication date:
2012-03-15
ISBN:
1998-9881

Description:

Mizan Law Review publishes peer reviewed scholarly articles that identify, examine, explore and analyze legal and related principles, stipulations and concepts based on research findings. Mizan’s articles aim at interpretation, description, exploration and diagnosis towards the solution of problems (or legal issues) including proactive critique and projection that assist the development of laws.

Latest documents

  • Comment: Mandatory Compensation to Commercial Agents upon Termination of Agency under Ethiopian Law

    The Ethiopian Commercial Code recognizes mandatory compensation if agency agreement for an indefinite period of time is terminated due to the fault of the principal; and the Draft Commercial Code is likely to maintain this approach. This comment examines the status and functions of a commercial agent as well as the compensation due to the agent upon the termination of the commercial agency. I argue that there should be mandatory compensation upon the termination of agency relations for both definite and indefinite period of time unless the agency relation is terminated due to the fault of the agent that justifies termination of a contract. This is justified by comparative experience in the legal regimes of Germany, France, Britain, the European Union, Turkey and some international conventions on agency relations.

  • Sovereignty, Legitimacy and Fundamental Rights as Limitations to Criminalisation Power of the State

    Sovereignty is a doctrine of power that constitutes and vests supreme political power in the state, including criminal lawmaking power. However, this supreme power of exercising coercive state power through the criminal law is not unlimited. Because the justifications for sovereignty are also justifications for criminal lawmaking power of the state, they are discussed together. After presenting the justification and legitimacy of sovereignty and the criminal lawmaking power of the sovereign, this article discusses criminalization power of the state in three parts: the limitation inherent in the notion of sovereignty, in constitutionalism and the bill of rights. Finally, it reviews the practice of criminalisation in Ethiopia.

  • Comment: Risk Allocation Norms of Civil Construction Contracts in Ethiopia

    Risk is any uncertainty in an industry including the construction sector. Claims and disputes arise when risks occur in construction projects. This comment discusses risk allocation under Ethiopian construction law and examines risks in civil construction contracts. The comment highlights the gaps in risk allocation norms under the standard format of construction contract that was issued by the Ethiopian Ministry of Work and Urban Development (MoWUD) in 1994. I argue that MoWUD’s principles of risk allocation should be updated so that they can include employer insurance and embody provisions that adequately regulate legal risks which can arise from amendment of laws.

  • Legal and Practical Aspects of Child Custody, Visitation and Maintenance: A Case Study in SNNP Regional State

    Although divorce disrupts the marital bond thereby terminating marital rights and obligations, each parent’s obligations to the wellbeing and upbringing of children (custody, visitation rights, and maintenance) persists. This article examines the practice of courts with regard to child custody, visitation rights and obligation to supply maintenance in the Southern Nations, Nationalities and Peoples (SNNP) Regional State. The experience of various court decisions in SNNP Regional State with respect to these matters is explored. Since the laws do not have detailed provisions that regulate the various issues of child custody, visitation and child support, there is inconsistency in judicial decisions. Many decisions do not distinguish between physical and legal custody. As a result, the legal and physical custody of the child usually rest on the same person. With regard to visitation, there is variation in court decisions although the conventional arrangement seems standard visitation. In some cases, courts specify the duration and form of visitation. However, in many cases, courts do not indicate how and when visitation shall be allowed. There are cases where courts overlook the issue of visitation. There is also inconsistency in court decisions with regard to child support. These problems call for detail provisions to ensure consistency and predictability in child custody, visitation and child support decisions.

  • Public Interest Environmental Litigation in Ethiopia: Factors for its Dormant and Stunted Features

    Public interest environmental litigation (PIEL) has been introduced into the Ethiopian legal system since 2002 with the prime purpose of facilitating and complementing the environmental protection efforts of the country. However, little progress has been recorded in utilizing this innovative litigation tool. The purpose of this article is to examine the legal and policy frameworks for PIEL and investigate some of the main factors impeding its effective use for the promotion and protection of the environment rights in Ethiopia. Laws related to PIEL are examined and interviews and discussions with the relevant stakeholders are conducted with regard to environmental management in Ethiopia. I argue that even though the legal and policy framework for PIEL, with all its limitations, is in place, gaps in judicial activism, legal culture, political will, public perception towards law, judicial process and justice, the type of legal system, the perception and behavior of the government towards civil society, and inadequate environmental information have adversely affected the development of PIEL.

  • Globalization of Patent Laws through Trade Agreements, and Pressures on Ethiopia's Patent Regime: The Passenger behind the Wheel

    Given that patent law emerged in domestic systems, there was an obvious diversity of patent regimes. With the advent of cross-border movement of resources, including inventions, there was a need for a harmonized patent regime. The issue went to another level with the entry into force of the WTO/TRIPS Agreement, which requires WTO members to enact new patent laws or amend existing ones to make them TRIPS compliant. The Ethiopian Patent Law, which was enacted in 1995, is strangely TRIPS compliant, tempting many to think that it had Ethiopia‟s forthcoming accession in mind. However, with Ethiopia yet to complete the accession process, there are further pressures from industrialized countries to ensure that stringent patent rules are complied with in developing countries. This article examines TRIPS, the Cotonou Agreement and AGOA as effective instruments of ensuring compliance. It is argued that the Ethiopian patent system will continue to observe TRIPS and other standards as dictated by the Global North.

  • The Right to Political Party Membership in Ethiopia: On the Freedom to Join and Resign

    The FDRE Constitution acknowledges the right to freedom of political party membership. Similarly, the Political Parties Registration Proclamation, which regulates the details of political party membership, allows a political party member to withdraw from his/her membership at any time. The form of withdrawal, however, has become contentious. In Unity for Justice and Democracy Party -versus- Blue Party (a case finally adjudicated by the Cassation Bench of the Federal Supreme Court), the petitioner, claimed that a person cannot be member of another political party without a written withdrawal notice to his/her former political party. The respondent political party, on its part, argued that withdrawal from membership and taking membership in another political party is possible at any time. The points of controversy and the legal framework thereof are examined in this article. An attempt is made to assess relevant principles, international human rights instruments and the experience of other jurisdictions.

  • Constitutional Adjudication by Parliaments: Lessons from Comparative Experience

    This article explores historical experiences in France and Brazil and the contemporary constitutional set-up in China where parliaments are empowered to adjudicate constitutional issues. It also identifies the lessons thereof for the constitutional design in Ethiopia. Comparison among three legal regimes has been made with regard to the rationales and contexts under which legislative or non-legislative parliaments were entrusted with the power of interpreting constitutions. The experience in France (1799 to 1946), Brazil (1824-1891) and China‟s current practice in constitutional interpretation are examined. The experiences across time in different jurisdictions are used to analyze the extent to which (non-)legislative assemblies are appropriate organs to adjudicate constitutional issues. The Constitution of Ethiopia is expected to take lessons from the difficulties encountered from the experiences of France, Brazil and China and resort to other institutional choices for constitutional adjudication.

  • Res Nullius vs. Res Communis in Matters of Communal Lands of Smallholder Farmers in Ethiopia

    Communal land is among the key factors in the enhancement of rural livelihood because it enables mixed farming practices. Although communal lands are prime sources of livelihood in rural farming communities, empirical evidence shows gaps in their legal recognition and protection in Ethiopia. There are encroachments which include government intrusion, informal land sale, distribution, and handing out land (selling communal land in informal markets) as Kebele’s contribution for development projects. These factors entrench poverty by sidelining the rural poor at the grassroots whose life is anchored on these lands. These problems also entail violation of human rights of the rural population. This article interrogates the misconception which tends to consider communal lands (customary land tenure) as res nullius (ownerless property) while such lands are in fact res communis (community property). The article uses the Hadiya Zone as a case study. It is argued that there is the need for the effective implementation and amendment of land laws which require political will to ensure tenure security of communal lands thereby securing and diversifying the livelihoods of poor smallholder rural farmers and ensuring human rights.

  • The Influence of the UN Watercourses Convention on the Development of the Nile River Basin Cooperative Framework Agreement (CFA)

    The 1997 UN Watercourses Convention has influenced the development of many bilateral and multilateral international water agreements. There is ongoing debate on the extent to which the Watercourses Convention has influenced the Nile River Basin Cooperative Framework Agreement (CFA). In this article, the author examines the interface between Watercourses Convention and CFA on some of the most contentious issues therein. It is argued that the Watercourses Convention has (in spite of various criticisms) greatly influenced the development of CFA in terms of the substantive and procedural contents of the agreement. The influence of the Watercourses Convention is more visible in shaping some of the major substantive principles such as the general obligation to cooperate, the principle of equitable and reasonable utilization, and the duty not to cause significant harm. The Watercourses Convention has also influenced the CFA‟s procedural rules such as the duty to exchange information, settlement of disputes and institutionalization of cooperation. In the era of increasing water security tension among the Nile River riparian states, the Watercourses Convention is set to dominate emerging new developments toward regulating the utilization, conservation, and management of the Nile River.

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