Month: February 2022

By Luwam Chalachew

Ethiopian Investment Holding is a strategic development wealth fund which aims to maximize the value of state owned assets through professional management leveraging international best practice.

The Ethiopian Council of Ministers approved the creation of Ethiopian Investment Holding on December, 29, 2021. Accordingly the Council of Ministers issued Regulation no. 487/2022 in accordance with Article 103 of the Definition of Powers and Duties of the Executive Organ Proclamation no.1263/2021. The main point incorporated under the definition of objective and function of the Ethiopian Investment Holdings Council of Ministers Regulation will be discussed herein under.

Overview of the Ethiopian Investment Holding

The Ethiopian Investment Holding is accountable to the Office of Prime Minister. Regardless of the holding percentage of the government, Ethiopian Investment Holding as well as sub-funds and companies set up by Ethiopian Investment Holdings or participants in setting up thereof shall be considered private business organizations as per Article 3(3) of the Regulation.  Its authorized capital is Birr Twenty-Five Billion of which Birr Twenty Five Billion is paid up in cash and in-kind with the possibility of increase or reduction by the board of directors. Head office of the Ethiopian Investment Holding will be Addis Ababa with branch offices in and outside the country.   

Objective of the Ethiopian Investment Holdings

The main objective of Ethiopian Investment Holdings is to serve as a strategic investment arm of the government of Ethiopia. It will also contribute to sustainable economic development, through professional management of its funds and assets achieving the optimal use thereof in accordance with international best practice and corporate governance principles. It will also maximize the value for the benefit of current and future generations. In addition to that it will provide a strategic vehicle for foreign investment.

Duties and Responsibilities of the Ethiopian Investment Holding

 The Ethiopian Investment Holdings shall have the following duties and responsibilities;

• Operate and carry on a business of a holding company according to the Ethiopian Commercial Code; 
• Hold shares, debentures, bonds and securities which are in its ownership;
• Invest in any business and investment opportunities as it sees profitable;
• Take part in capital market, money market and similar other sectors through purchase sell or other investment undertakings;
• Takeover and manage state-owned assets that may be assigned to it by the board of directors;

• Transform property of state owned enterprises and other assets transferred to it into optimal income generating ventures through structure and system change;
• Establish, control, manage and administer sub-funds;
• Acquire share in existing entities or funds solely or in association with local or foreign entities;
• Manage, supervise and exercise control of the subsidiaries under its pool;
• Hire appropriate  staff
• Decide on matters of incorporation of any of its subsidiaries in any part of the world;
• Undertake all preparatory works and decide on the dissolution, amalgamation, division, sale, privatization, spin-off of subsidiaries it calls into its pool.

Generally the Ethiopian Investment Holding will perform any other tasks that are necessary for the attainment of its objectives as it is stipulated under Article 9 of the Regulation.

Organization of the Ethiopian Investment Holdings

The Ethiopian investment holding shall have the following governance structure;

1. Board of directors
2. A chief executive officer and executive management
3. Necessary staff and
4. An independent international advisory board

According to the structure, the powers and responsibilities of each organ are also specified under the Regulation.

Tax Exemption 

According to Article 16 of the Regulation, dividends of the Ethiopian Investment Holding from its organizations shall be exempted from all taxes and duties. Such exemptions shall not apply to the sub-funds and companies in which Ethiopian Investment Holdings is a shareholder without prejudice to any exemption stipulated in other law.

Conclusion 

Generally Ethiopian Investment Holding aims to bring together government resources under one company so that the resource will be properly managed and contribute to the overall economy of Ethiopia. This allows the government to exert strong corporate governance principles to instill commercial and investment discipline in the management of state-owned assets and resources. Thus this enables the government to provide strategic oversight, attract sizable foreign investment and technology.

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By Luwam Chalachew and Dagnachew Tesfaye

Introduction 

This article summarizes the decision of the Federal Supreme Court Cassation Division regarding who has the right to file an opposition to a judgment before execution as per Article 358 of the Civil Procedure Code. The case has been between applicant Yeka Sub-city Public Prosecutor vs. respondents Mr. Abebe Bekele et al (8 people) on Cassation file no. 190307 decided on 8/12/2021. This decision of the Cassation Division is given by seven judges. The decision is a reversal of the previous decision of the Cassation Division File No 37502 Volume 8.

Federal High Court and Federal Supreme Court

The case was first brought to the Federal High Court by the respondents against Yeka Sub-city Woreda 01 Administration Office. The respondents claim that the Yeka Sub city Woreda 01 Administration destroyed and displaced the respondents from their possession unlawfully. Hence the respondents request for compensation. The Federal High Court examined the case in the absence of the defendant. The court ordered the defendant to pay to the plaintiff the value of the different property destroyed and taken away in the amount of  Birr 443,215.00 with legal interest calculated from the date the property was taken away. 

The respondent i.e Yeka Sub-city Public Prosecutor Office brought an opposition claim to the judgment  based on Article 358 of the Civil Procedure Code to the Federal High Court. But the court rejected the opposition to judgment stating that the main idea of Article 358 of Civil Procedure Code is in order to protect the interest of a party which was not party to a suit. The defendant was summoned to appear before the court but refused to appear. The reason that the defendant did not notify the respondent cannot be a sufficient ground to accept the opposition claim. Accordingly, the court decided that the opposition is not presented fulfilling the intention of the law on Article 358 of the Civil Procedure Code and dismissed the claim of the opponent, now applicant.

An appeal was filed to the Federal Supreme Court by the applicant. But the Federal Supreme Court confirmed the Federal High Court’s decision.  Then an application  for Cassation was filed in protest of the decision of the Federal High Court and Federal Supreme Court decisions.

Review by the Federal Supreme Court Cassation Bench

The applicant filed an application to the Cassation Bench stating that the applicant has the power to file opposition to any judicial organ in order to protect the rights and interests of residents. The applicant mentioned Addis Ababa City Administration Execution and Municipality Service Proclamation no.35/2004 and Proclamation no.64/2011to back up its claim. The applicant and the defendant, though found in the same administration structure, each of us represent different interests. The Cassation Bench on File No 37502 has given a similar interpretation. Therefore the applicant requested the Cassation bench to dismiss the  conclusion reached by the lower courts as a basic error of law. 

The three judges at the Cassation bench who heard the applicant. These judges accepted his argument and framed an issue to be seen by the seven judges. The issue is whether it is appropriate to dismiss the opposition  despite the fact that the applicant is given by law the right to file opposition to protect the interest of the city administration.

The applicant’s application has been served to the respondents. The latter gave their response stating that there is no basic error of law committed by the Federal High Court and Federal Supreme courts.

The Cassation Bench examined the case after hearing both sides. The Cassation Bench started its reasoning by stating  the basic purpose of the Civil Procedure Code. Courts need a system in place to examine written arguments, listen to oral arguments, weigh evidence and interpret basic rules and reach a conclusion. In order to achieve this goal, the Civil Procedure Code sets out various rules and principles which plays an important role in ensuring that the proceeding and outcome of the proceeding are fair and eliminates unnecessary constraints. In this regard one of the provisions of the Civil Procedure Code is the regulation of the participation of interested third parties who were outside the parties named as  plaintiff and defendant. This is regulated under Article 40 and 41 of the Civil Procedure Code. According to these provisions any interested third party can join a proceeding before judgment either upon application of the parties or by the initiation of the court. In case a decision or judgment is rendered by a court in the absence of these parties and the interest of such a third party is at stake, the remedy is provided under Article 358 of the Civil Procedure Code. 

In order to make an opposition in accordance with Article 358, the opponent should not be party to the suit either in person or through a representative.  Making an opposition to a judgment before execution is possible only if the opponent didn’t know about the existence of the litigation and he/she should show that its interest is affected by a judgment that is given without its knowledge. 

When one comes to the case at hand both the defendant and the applicant have the responsibility of protecting the interests of the residents of their constituency. The defendant and applicant aspire to protect  the same goal. It is upto the administrative bodies to determine when receiving court summons to identify who should defend. And the Public Prosecutor could have come to court to defend the statement of claim in the first stage of the proceeding. The defendant (Yeka Sub city Woreda 1 Administration) didn’t appear before the court while it was summoned to appear. The public prosecutor who is representative of the Sub city also didn’t appear. The Public Prosecutor could have used Article 78 of the Civil Procedure Code if the summons were not duly served. So the Cassation concluded that the applicant’s right to represent and defend the interests of the Woreda has already been represented by the defendant itself. Therefore the applicant cannot be termed as a third party that was not given the chance to participate in the proceeding that led to the judgment. The judgment cannot be opposed by the applicant as per Article 358 of the Civil Procedure Code.

The previous Cassation Bench decision on File No 37502 on Volume 8 of interpretation of Article 358 has been abandoned as the interpretation does not reflect the intention contained in Article 358. The interpretation  that one government body has the right to present opposition to judgment rendered without its knowledge, even if another government body under the same administration has been party to the case, has been revoked.  

Conclusion   

Generally, the applicant and the defendant have stood for the same interest i.e. securing the interests of their residents. The defendant has participated in the court proceedings. When a judgment disfavoring the defendant is given, the applicant cannot come to repeat the same process using Article 358 of the Civil Procedure Code. Article 358 is there to protect those parties whose interests are affected by the judgment whereby they were not parties to the case either in person or through a representative. Therefore, government bodies that represent similar interests cannot use Article 358 to oppose the judgment given against one body under their administration by another body or the public prosecutor. 

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 By Luwam Chalachew and Dagnachew Tesfaye

Introduction 

Ethiopia aspires to be the manufacturing hub of Africa by 2025. The Ethiopian government has planned to achieve this vision through industrial park development and expansion. According to Article 2(1), of the Industrial Park  Proclamation No 886/2015 ‘’industrial park’’ is an area which includes, special economic zones, technology parks, export processing zones, export processing zones, agro-processing zone, free trade zones and the like designated by Investment Board.

The major laws governing industrial parks in Ethiopia are Industrial Parks Proclamation No 886/2015, Industrial Parks Regulation no.417/2017, Industrial Parks Development Corporation Establishment Regulation No 326/2014 and Ethiopian Investment Board Industrial Parks Directive No 06/2017. The Industrial Parks Proclamation No 886/2015 is the foundation of the legal regime on the subject of industrial parks. It has been issued with the objective of regulating the designation, development and operation of industrial parks. The proclamation identifies three principal players in the context of industrial parks. These are the industrial parks developer, industrial park operator and industrial parks enterprise. Ethiopia so far has constructed and put to work 20 state of the art industrial parks in different parts of the country. The key players and the government of Ethiopia’s objective in developing industrial parks will be discussed briefly herein under.

Government and Private Owned Industrial Parks

Not only the government of Ethiopia but also private entities own industrial parks. These industrial parks engage in specialized industries including textile and apparel, leather and leather products, pharmaceutical, agro-processing and mixed use. From the government owned industrial parks, Bole Lemi I Industrial Park located in Addis Ababa, Adama Industrial Park located in Oromia Region, Bahir Dar Industrial Park located in Amhara Region and Kilinto Industrial Park located in Addis Ababa can be mentioned. Three private owned industrial parks include Huajian Industrial Park that engage in textile and apparel, leather and leather production, Vogue Industrial Park that is engaged in textile and apparel production and CCECC Dire Dawa Industrial park that has mixed use services.

Industrial Park Facilities

The industrial parks are filled with possibly all sorts of required services in one place. The industry parks do accomodate power substation, waste treatment, commercial and housing facilities, health stations, fire brigade and security services. The aim is to serve the needs of the clients in the industry parks in a one-stop service. Such services include processing and issuance of  permits and licenses, tax identification number, notarization of formation documents, custom clearances, and banking services. 

Industrial Park Investment Incentives

Industrial Park developers and enterprises benefit from fiscal incentives that include income tax exemption for up to 8-15 years, export tax exemptions, exemption from customs duty, export credit guarantee scheme, franco valuta and loss carry forward. Guarantee against expropriation, repatriation of profits and dividends, foreign currency retention, no export price control, right to own immovable property and fast track services in licencing , permits, custom clearances and other services can be termed as non-fiscal incentives forwarded to industrial park developers and enterprises.

Industrial Park Investment Application Procedure

Any foreing or domestic investor that seeks to engage in the industrial park as a developer, operator or enterprise need to bring company profile, filled investment application, draft memorandum of association, project proposal, export or import substitution plan depending on the type of the project, declaration of financial standing and a ten-year forecast and impact assessment. The person signing and completing the application form must have an investment/business visa. Special Investment process for a developer, operator and enterprise shall be dealt here below.

Industrial Park Developer 

According to Article 2(10), an industrial park developer is a profit making entity that develops a park. It could be an enterprise, public or private partnership entity.  According to Article 5 the Industrial Park Proclamation, industrial park developers have the right to design, construct, develop and exploit industrial parks and provide service. It may also sell separately the different sheds and factories that it constructed; it may also participate in the financial markets to secure loans, guarantees and similar resources. Industrial park developers may provide service to industrial park enterprises engaged within the industrial park. The industrial park developer has the primary obligation to construct the park. The investment process for the industrial park developer begins with the application to Ethiopian Investment Commission(EIC) and the Board at EIC has to approve the application. Once approved, a memorandum of understanding is signed with EIC. Then the developer goes to registration and licensing.

Industrial Park Operator 

According to Article 2(11) of the Industrial Park Proclamation, an industrial park operator is a profit making entity that operates and maintains a park. An industrial park operator manages and operates a park on behalf of the developer. It enters into agreement with the developer of the park and its obligation mainly emanates from the agreement. And it has the right to transfer on sub lease developed industrial park land and let or sublet immovable assets, provide utilities and other service on behalf of the industrial park developer. The investment process as an operator starts with application to EIC. The application needs to incorporate detailed declarations demonstrating the availability of professionals and possession of experience in rendering similar or related services. Then comes signing of a tripartite memorandum of understanding with the Industrial Park Developer and EIC. Once the operator registers and acquires its license from EIC, the operator can sign operations management agreement with Industrial Park Developer.

Industrial Park Enterprise 

As per Article 2(12) of the Industrial Park Proclamation, an industrial park enterprise is a profit making entity that engages in manufacturing or rendering service in a building rented from the developer or erected within the industrial park.  According to Article 9 of the Industrial Park Proclamation, an industrial park enterprise may obtain an industrial park permit in order to carry out investment activities within industrial parks. It will obtain tax, customs duty and other incentives. It has the mandate to carry out investment activities in compliance with the terms of the investment permit. The investment process begins with application to EIC and then signing a memorandum of understanding with EIC. Then a deposit of commitment fee of USD 200K in the industrial developers account has to be made. The commitment fee shall be considered as part of the initial capital requirement. Registration and licensing at EIC will be made. Then a shed rental or sub-lease agreement with the industrial park developer will be entered. The rented shed will be handed over to the enterprise by the developer finalizing the investment registration process.

Human Resource Management Guideline

The industrial parks will hire huge numbers of employees. Uniform guidelines to manage human resources to the standard and laws of Ethiopia is necessary. Thus the EIC has commissioned a guideline for human resource management. The guide line is founded on Ethiopian labor law and international best practices. The guideline  establishes a uniform system to manage all human resources matters. The manual sets up a fair, transparent, ethical and effective recruitment and selection practices. The guideline establishes effective, legistmate, transparent and safe grievance handling procedures to address employee concerns before they lead to more serious employee relations issues.

Conclusion  

Generally the operation of industrial parks is structured based on the three principal players which are industrial park developer, operator and enterprise. Industrial Parks are necessary to accelerate the economic transformation and development of the country. The establishment of Industrial Parks in strategic locations will promote and attract productive domestic and foreign direct investment. The industrial park investment will upgrade industries and generate employment opportunities. All these aspirations and practical implementations will put Ethiopia as the manufacturing hub of Africa in the near future.

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By Luwam Chalachew, Legal Assistant at DMLO

Introduction 

Ethiopia has a huge potential of various mineral resources which are not yet exploited. This natural resource includes but is not limited to gold, potash, gemstones, platinum, opal, iron, marble, granite, limestone and tantalum. In Ethiopia the government is the custodian of natural resources on behalf of the people and has the responsibility of ensuring that they are used for the benefit of people. In order to do that the appropriate government organ has the responsibility to approve mining activities. The governing laws in the mining area in Ethiopia are the Mining Operation Proclamation No 678/2010, the Mining Operation (amendment) Proclamation No 816/2013, the Mining Operation (amendment) Proclamation No 1213/2020 and Mining Operation Council of Ministers Regulation No 423/2018.   

Requirement of License 

Any person who wishes to engage in the mining operation should obtain the relevant license from the licensing authority according to Mining Operation Proclamation no. 678/2010. 

Types of Mining Licenses in Ethiopia

According to the Mining Operation Proclamation No 678/2010 as well as the amendment Proclamation No 816/2013, there are different types of mining licenses. These include artisan mining license, small scale mining license,  special small scale mining license and large scale mining license.

 Artisanal Mining License

No financial resource or technical or professional competence is required to acquire an artisanal mining license. Artisanal mining license can be obtained from the regional state governments (at Zonal or Woreda level). Artisanal mining license provides an exclusive right to explore and mine for minerals within the license area. This type of license is valid for the period of up to two years and shall not be renewed.

Small Scale Mining;

An applicant shall be granted an exclusive small scale mining license where, the proposed work program is approved, the applicant has an access to financial resource and technical ability to conduct the proposed mining operation optimally and in a safe manner. The environmental impact assessment has to be approved and the applicant is not in contravention of any obligations of the exploration license if any.  

A small scale mining license shall be valid for a period specified in the license. However such period shall not exceed 10 years. A small scale mining may be renewed for a period not exceeding 5 years in each subject.

 Special Small Scale Mining License

The licensing authority shall grant an exclusive special small scale mining license where the proposed work program and environment impact assessment are approved. The applicant proves that he has financial capacity to conduct the proposed mining operation. The applicant was holder of artisanal mining license that engages in the mining of gemstones or placer gold, silver, platinum or titanium and is not in contravention of any obligations related to it.

Special small scale license shall be valid for the period specified in the license. However such period may not exceed 10 years and it may be renewed for a period not exceeding 5 years.

As per the Mining Operation Proclamation No 816/2013, the holders of special small scale and holders of artisanal mining licenses that engaged in gold or silver mining shall sell minerals produced to the National Bank of Ethiopia. 

Large Scale Mining License

According to the Mining Operation Proclamation an applicant shall be granted an exclusive large scale mining license where, the work program and environmental impact assessment are approved. The applicant has an access to financial resource and technical ability to conduct the proposed mining operation optimally and in a safe manner. The applicant is not in contravention of any obligations of the exploration license if any.   A large-scale mining shall be valid for a period specified in the license. However such a period shall not exceed 20 years. Large scale mining may be renewed for a period of not exceeding 10 years. In this case, the holders of the mining license shall be entitled to export free of customs duty and taxes minerals produced according to the license.

Rights and Obligations Small and Large Scale License Holders

Small and large scale mining license holders have the right to market and sell minerals produced. Both small and large scale mining license holders shall commence mining operation within one year from the date on which the license becomes effective and should comply with terms and conditions of the license. 

Conclusion 

The minerals and geo- energy resources of Ethiopia are yet untouched.  Ethiopia has huge potential to accommodate the interest of so many investors. In order to promote and facilitate the mining sector, different types of incentives including customs duty, tax free import of equipment, machinery, vehicle, small aircraft or helicopter having seats of 6 persons for the purpose of collecting data and consumables are granted under the Regulation. 

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