By DMLF Team
The Federal Supreme Court is asserting the fact that appellate courts and cassation courts have a duty to state reason for dismissal. The trend has been to dismiss and close files with a form without any reason stated. According to the Federal Supreme Court, such procedures have created so many disappointments and distrust on appellants and applicants. To reverse these procedures, the Federal Supreme Court has introduced a directive and a letter that orders cassation divisions and appellate courts to provide reasons when dismissing cases, respectively.
The Cassation Division Procedure Directive No 17/2023 (effective as of April 27/2023) obliges the Cassation division to provide reasons for dismissal of application of the applicant. The Cassation Division to which three judges of the Federal Supreme Courts sit, when it concludes upon examination of the application that there is no basic or fundamental error of law, it shall order the dismissal of the application. Article 7 of the Directive provides that upon such dismissal, the Cassation Division is required to state the reasons for rejection of the application. By law, the cassation division to which three judges of the Federal Supreme court sit, is required to provide a reason or reasons why the application is dismissed.
Likewise, in a letter dated June 7,2023 Ref.No M/1-29/4308, the Federal Supreme Court has directed all appellate courts to state reasons for dismissal of an appeal under Article 337 of the Civil Procedure Code. The letter covers the advantages of stating reasons for dismissal from the perspective of natural justice, Civil Procedure Articles 3 and Article 182 and maintaining the trustworthiness of the judiciary to the public. The implementation of this procedure is effective as of June 14,2023.(Credit to Daniel Fikadu Law Office)
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By Dagnachew Tesfaye, Managing Partner at DMLF
The Federal Courts Proclamation No 1234/2021 on Article 53 provides for the establishment of the external judiciary advisory council and the details shall be provided by a directive issued by the Federal Supreme Court. As a result, the Federal Supreme Court enacted the Federal Supreme Court External Judicial Advisory Council Directive No 16/2023, effective as of April 12,2023. We shall briefly see the contents of the Directive from its scope, objective, powers and responsibilities, membership, tenure and accountability.
The Federal Supreme Court by this directive has established a 9 members external advisory council composed of ex-judges of the federal courts, highly experienced and qualified legal professionals, university Professors who serve in the council for free.The members shall be handpicked by the president of the Federal Supreme Court. The president, vice president of the Council and secretary shall be appointed by the President of the Federal Supreme Court.
The guiding principles shall be that the Advisory Council shall support administration of the court by providing non-binding recommendations and perform such other functions assigned to it by the Federal Supreme Court. The Advisory Council shall perform its functions by complying with the principle of judicial independence and undertake its function with strict discipline.
The Advisory council shall conduct researches, workshops, conferences with the aim of making the judiciary accessible, transparent, efficient, accommodative, modern and accountable, and recommend new methods and ideas. In general the Council shall work in the advancement of the judiciary to accomplish what has been assigned to the judiciary by the Constitution.
The Advisory Council shall be accountable to the President of the Federal Supreme Court. The tenure of the Advisory Council shall be 3 years. Depending on the performance, by the decision of the Federal Supreme Court President, the length of service of the Advisory Board can extend to another 3 years.
The Directive also incorporates the working procedure of the Advisory Council, the powers and duties of the President, vice president and secretary of the Council, dismissal of member/s of the council and how plans and reports of the Council are presented. The working language of the court shall be the working language of the Council. Nevertheless, the Council may also use English as a medium of communication.
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By DMLF Team
Home work contract is a special type of contract of employment. There are two types of special contract of employment identified by the Labour Proclamation No 1156/2019. These are home work contacts and contracts of apprenticeship. The focus of the article shall be on home work contracts. A brief look on what home work contracts are in terms of agreement, supervision by employer, wage, duration of work shall be discussed together with record keeping obligation on the employer.
Definitions
The Labour Proclamation defines home work contracts as follows: ‘There shall be a home work contract when a natural person habitually performs work, for an employer, in his own home or any other place freely chosen by him in return for wages without any direct supervision or direction by the employer’(Article 46(1) of the Labour Proclamation No 1156/2019).
In agreement for the sale of raw materials or tools by an employer to a home worker and the sale of the products to the employer or any other similar arrangements made between the employer and the home worker shall be deemed a home work contract. ((Article 46(2) of the Labour Proclamation No 1156/2019). For a stark comparison let’s look into the definition of employment of contract on the Labour Proclamation Article 4(1)-A contract of employment shall be deemed formed where a natural person agrees directly or indirectly to perform work for and under the authority of an employer for a definite or indefinite period or piece of work in consideration for wage. Lets see the elements of the definition of contract of employment.
a)Agreement
The formation of home work contract assumes the existence of an agreement. Home work contract is a willful engagement. Provision of service from the side of the employee for the benefit of the employer exists. The place of work of the employee is freely chosen by the employee. The place of work could be the employee’s abode or any other convenient palace for the performance of the work.
b)No need of Supervision by the employer
In a normal employer-employee relationship, the service to be rendered by the employee will be under the supervision or authority of the employer.(Article 4(1) of the Labour Proclamation No 1156/2019). Contrary to this provision, in the case of home work contract, there is no direct supervision or the employee is not under the authority of the employer. The employee performs home work services under his own responsibility. The employee is not under strict guidance or control of the employer.
c)Wage
As the employee provides home work services for the employer’s benefit, the corresponding obligation of the employer is to discharge by paying wage. The amount of wage shall be an agreed sum by the parties. Wage is defined as ‘regular payment to which an employee is entitled in return for the performance of the work that he performs under the contract of employment(Article 53(1).
d)Contract for specific period or piece-work
Home work contract of employment is made for a definite duration or piece work. The home work contract can state the contract shall remain valid for three months or six months or one year or till such work in numbers or in kind are completed etc. On the end of the duration or piece work, the contract shall come to an end. Home work contract is an addition to the exhaustive list of fixed term contracts under Article 10 of the Labour Proclamation.
Record Keeping
A written contract of employment may not be mandatory for a home work contract. The law does not impose the form of the contract of employment for home work contracts. If the parties go the road of agreeing in writing, fantastic. Nevertheless, the law requires the employer to keep records. The records the employer has to keep is required to contain Full name, age, marital status and address of the worker; The address where the work is to be carried out; The type, price, quality and quantity of material supplied by the employer to the worker;The type of work, quality and quantity ordered; The time and place of delivery of the product or material; Amount and manner of payment (Article 47 of the Labour Proclamation).
Conclusion
A home work contract is a special contract that is dealt on the Labour Proclamation. What makes a home work contract special is the fact that the employee is free to choose where he performs his duties and the employee is free from the supervision or control of the employer. The Minister may, in consultation with the concerned organs, prescribe by directive the provisions of the Labour Proclamation that shall apply to home workers and manner of their application.
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By Mahlet Mesganaw, Partner at DMLF
Ethiopia adopted a new set of arbitration rules to the standard level of international experience. Arbitration and Conciliation Working Procedure Proclamation No 1237/2021 was signed into law by the President as of 2nd April,2021(the Proclamation here after). The Proclamation applies to international arbitration whose seat is in Ethiopia. Where the international arbitration is situated outside of Ethiopia, then eight of the provisions of the Proclamation shall apply. In this article the definition of international arbitration on the Proclamation and the scope of application shall be discussed.
International Arbitration
An arbitration shall be deemed to be International arbitration for one of the following three grounds. Article 4 of the Proclamation defines the conditions that make an arbitration international in the following manner: a) Where the principal business place of the contracting parties are in two different countries at the time of the conclusion of the agreement; b) Where the legal place of the arbitration chosen in accordance with the arbitration agreement or the place of the principal business where the substantial part of the obligations of the commercial or contractual relationship is to be performed or the place of business with which the subject-matter of the dispute is arised and most closely connected is located in a foreign country; c) Where the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one country. For the purpose of identifying whether the arbitration is international or not, if a party has more than one place of business, the place of business shall be that which has the closest to the arbitration agreement. Also where there is no place of business, it will be the principal residence of the contracting parties.
Scope of Application
The Proclamation is applicable to commercial related national arbitration, international arbitration whose seat is in Ethiopia and national conciliation proceedings. However, when Ethiopia is not the seat of Arbitration, 8 provisions of the Proclamation will apply to International arbitration situated outside of Ethiopia. The provisions that apply to international arbitration situated outside of Ethiopia are the following: Article 8 Arbitration Agreement and Suits to be Submitted to Court; Article 9. Arbitration Agreement and Provisional Interim Measure taken by Courts; Article 25. Recognition and Enforcement of an Order of Interim Measure; Article 26. Refusal of the Request for Recognition or Enforcement of Interim Measure by the Court; Article 27. Interim Measures Granted by Court; Article 51. Execution of Arbitral Awards; Article 52. Objection to Enforcement of Arbitral Award and Article 53. Recognition and Enforcement of Foreign Arbitral Awards.
To sum up, Ethiopia has developed arbitration laws and endorsed international treaties for being a favorable hub for international arbitration whose seats will be in Ethiopia. In addition to the legal regime, favorable climate,Ethiopian airlines and hospitality of the people make Ethiopia the desired international arbitration destination.
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By DMLF Team
The Addis Ababa City Revised Charter Proclamation No 361/2003( as amended) lays the basis for the establishment of the Addis Ababa City Government. Based on this federal proclamation, the Addis Ababa City Council enacted ‘ The Addis Ababa City Government to Specify the Powers and Duties of the Executive Organ Proclamation No 74/2021’ on Addis Negari Gazeta. The focus of the article is to give a brief indication as to the executive organs of the Addis Ababa City government.
Proclamation No 74/2021 established the following executive organs: Office of the Mayor; Labour, Enterprise and Industry Development Bureau; Finance Bureau; Housing Development and Management Bureau; Public Service and Human Resource Development Bureau; Peace and Security Administration Bureau; Culture, Art and Tourism Bureau; Justice Bureau; Land Development and Management Bureau; Transport Bureau; Design and Construction Works Bureau; Technical and Vocational Training and Technology Development Bureau; Health Bureau; Trade Bureau; Education Bureau; Women, Children and Social Affairs Bureau; Revenue Bureau; Youth and Sport Bureau; Communication Bureau; Urban Beautification and Green Development Bureau; Plan and Development Commission; Investment Commission; Public Property Administration Authority; Farmers and Urban Farming Development Commission; Public Participation and Voluntarism Coordination Commission; Fire and Disaster Risk Management Commission; Housing Development Commission; Construction Permit and Regulatory Authority; Education and Training Quality Regulatory Authority; Food and Pharmaceutical Administration and Regulatory Authority; Drivers’ and Vehicles Licencing and Regulatory Authority; Code Enforcement Authority; Environmental Protection Authority; Roads Authority; Water and Sewerage Authority; Traffic Management Agency; Land Holdings Registration and Information Agency; Sanitary Management Agency; Cooperatives Agency; Vital Events Registration and Information Agency; Feeding Agency; Public Procurement and Property Disposal Service; Social Trust Fund; Gullele Botanical Garden; Addis Ababa Leadership Academy; and Kotebe Metropolitan University.
Each executive organ shall be organized having a head, a deputy head/s and other relevant departments as necessary. The Proclamation goes further in giving each executive organ detailed powers and functions. For instance the Labour, Enterprise and Industry Development Bureau among several other powers, has the power to ‘cause the presence of workplace peace between the employees and employers; make sure that collective labour disputes and differences on cooperative agreement bargains are resolved through consensus; carry out city-wide continuous awareness creation activities on foreign employment and human trafficking’. The Women, Children and Social Affairs Bureau, for instance, is given power, among others, to ‘provide care and support for children who are not included in the community-based support and care program, who are involved in criminal activities and are vulnerable for drug addiction, homeless people’. ‘Prevention of illegal construction, occupying a land illegally, land grabbing and illegal expansion of landholdings in collaboration with concerned organs; control thereof; take or cause the taking of legal measures’ is one of the powers and duties of the Code Enforcement Authority.
The executive organs are hierarchically organized in sub-city and woreda structures. Executive organs that are not included in this Proclamation shall continue to exercise their power as per their establishment laws in a way not contrary to this Proclamation. The Addis Ababa City Government executive organs re-establishment Proclamation No 64/2019 and its amendments are repealed. In addition to this, the Addis Ababa City Government School Feeding Agency Establishment Proclamation No 68/2020, Community Engagement Coordination Agency Establishment Regulation No 118/2021 and Communication Office Establishment Regulation No 120/2021 are repealed.
Proclamation 74/2021 has entered into force as of 29th September 2021.
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