Month: March 2024

By Dagnachew Tesfaye, Managing Partner at DMLF

Farm-out agreements allow mining or petroleum companies (farmor or transferors) to transfer part of their rights and obligations to another entity (farmee or transferee) usually in exchange for consideration. In Ethiopia, such farm-out agreements need to be  approved and registered by the regulatory authority. The farm-out agreements need to adhere to Mining Operation Proclamation No 678/2010, as amended by Proclamation Nos 816/2013 and 1213/2020. For petroleum operation the Petroleum Operation Proclamation No 295/1986 shall govern.

The tax treatment of farm-out agreements were mentioned on Federal Income Tax Proclamation No 979/2016, Article 43. A farm-out arrangement exists if there is an agreement whereby a licensee or contractor( referred to as transferor)  has entered into an agreement ( known as farm-out agreement) with a person (referred to as transferee) for the transfer of part of the interest of the transferor in mining right or petroleum agreement. The consideration given by the transferee for the transferred interest wholly or partly includes the transferee agreeing to incur expenditure or undertaking some or all of the work commitments of the transferor in respect of the part of the interest retained by the transferor.

The business income tax rate applicable to a licensee in mining or petroleum agreement is 25%.

To sum up, farm-out agreements are important in enabling mining and petroleum companies to realize their production or exploration potential. Subject to the laws of the country, these farm-out agreements transfer rights and obligations between parties. For entities who wish to farm-out transactions in Ethiopia, it is essential to obtain legal counsel skilled in mining and petroleum agreements in line with the laws of Ethiopia. 

For any related inquiries, you may contact us at info@dmethiolawyers.com

By DMLF Team

The Federal Advocacy Service Licensing and Administration Proclamation Number 1249/2021 contains the requirements needed for obtaining an advocacy license.  

Any person who wishes to join the advocacy profession may obtain advocacy license by fulfilling the following requirements: a) to be an Ethiopian national or a foreign national of Ethiopian origin; b) have a minimum of first degree in law from a recognized Ethiopian Higher Education Institution; c) able to present a statement from his most recent employer indicating that, in his last two years of employment, he had not been subjected to measures for serious disciplinary infractions and can produce proof of good conduct; and d) meet the work experience required in the legal profession and e) pass any qualification examination that may be necessary to obtain advocacy license.

The requirement of being an Ethiopian national or a foreign national of Ethiopian origin is further extended to  foreign national advocates or law-firms under Article 8 of the Proclamation.  A foreign national advocate or law-firm with valid advocacy license granted in a foreign country may use his foreign license to render advocacy service to clients in Ethiopia under the following conditions: a) where the case involves the law of the Country that issued the advocacy license; and b) only in partnership with an advocate or law-firm licensed under this Proclamation.

The requirement of first degree in law from recognized Ethiopian Higher Education Institution is further extended to first degree in law from recognized higher education institution abroad. However, any person who received his first degree in law from a recognized higher education institution abroad may be granted advocacy license provided he fulfills the criteria set out under in the Proclamation. 

There are three  types of advocacy license namely: The Federal First Instance Court Advocacy License,  All Federal Courts Advocacy License and The Federal Special Advocacy License. To obtain each type of license, the requirement of work experience differs for those individuals having degrees or diplomas from higher education in Ethiopia or abroad. 

 A Federal First Instance Court Advocacy License may be granted to a person who graduated with first degree in law from a recognized foreign Higher Education Institution with a minimum of five years of professional experience in the field of law in Ethiopia. 

On the other hand any Ethiopian citizen or foreign national of Ethiopian origin who  has graduated with a first degree in law from a recognized Ethiopian Higher Education Institution is required to have  a minimum of three years of professional experience in the field of law; or has graduated with diploma in law and has a minimum of five years of professional experience in the field of law; 

All Federal Courts Advocacy License may be granted to a person who graduated with a first degree in law from a recognized foreign higher education institution if he has a minimum of seven years of professional experience in the field of law in Ethiopia.  

Any Ethiopian citizen or a foreign national of Ethiopian origin who  has graduated with first degree in law from a recognized Ethiopian Higher Education Institution is required to have  a minimum of five years of professional experience in the field of law; 

Any person who wishes to obtain the Federal Special Advocacy License shall have a first degree in law from a recognized Higher Education Institution and a minimum of five years of professional experience in the field of law. If it is an institution or organization, the institution or organization needs to have a lawyer graduated with first degree in law from a recognized Ethiopian Higher Education Institution and has a minimum of five years of professional experience in the field of law. Federal Special Advocacy Licence holder does not receive payment from his client or section of the society he represents.

For obtaining First Instance Advocacy Licence and All Federal Courts Advocacy Licence, those Ethiopians or foreign nationals of Ethiopian origin who presented higher education qualification from Ethiopia or abroad shall sit for a qualification exam. They have to pass the entrance qualification examination set for the particular type of advocacy license. 

Those advocates who fulfill the requirements of the Proclamation are allowed to engage in advocacy services. The Proclamation defined advocacy services as any kind of legal service provided by an advocate or a law firm for payment of a fee or in expectation of direct or indirect future benefit, or pro bono, including the following: a) providing consultation on legal issues; conducting negotiations except in criminal cases; b) drafting legal documents or submitting documents on behalf of a client; c) representing a client and litigating before courts of law; administrative tribunal; quasi-judicial institutions; arbitral bodies and other alternative dispute resolution forums.

Hence, the Proclamation Number 1249/2021 set out the requirements to obtain advocacy licenses for Ethiopians, foreign nationals of Ethiopian origin or foreign lawyers or foreign law firms. The requirements range from having the necessary higher education qualification to a minimum number of years of experience and passing a qualification exam.

For any inquiries you may contact us at info@dmethiolawyers.com

By Dagnachew Tesfaye, Managing Director at DMLF

Here are the 10 eligibility requirements to adopt an Ethiopian child as per Article 46 of the Directive Number 976/2023 Directive on Alternative Childcare and Support. The person requesting  to adopt an Ethiopian child:

1. Be an Ethiopian National;
2. Live in Ethiopia for at least two years prior to application being submitted to adopt.
3. Be aged 25 years and above if single, or if adoption is requested by spouses, at least one of spouses must be 25 years and above; 
4. Has the age difference between the adoptive family and the adopted child not be below 18 years as well as above 50 years of age;
5. Produce a document from the relevant authority of having an income that is sufficient to raise the child;
6. Produce a document from health authority attesting the adopter is free from health problems that can impede his/her qualification to provide care and custody for the child;
7. Produce evidence that shows he/she is free from criminal activities related to human rights violations;
8. Produce a marriage certificate or written consent of the applicant’s spouse.
9. Provide proof if you are not married;
10. Provide a character reference letter from a religious entity, the applicant’s employer and member of the immediate community who have known the applicant(s) for at least two years and
11.  Is given priority to adopt if he/she is extended family or in their absence of extended family shall be given to married couples. However, a child can be adopted by a widower/widow, unmarried person or divorced person.

Let’s compare the current Directive with the previous and repealed Directive Number 48/2020 on Foster Family and Domestic Adoption Services. The current Directive embodies an additional requirement of residing two years in Ethiopia prior to application to adopt. The repealed Directive doesn’t have such a requirement. When could the two years be counted is contentious. Is the immediate two years from application to adoption is the intention or could any other two years prior to application suffice? 

The second addition is  for the adoptive family to produce character reference letters from three places namely a religious entity, the applicant’s employer and member of the immediate community. The requirement of references is a new introduction which has not been there in the previous Directive. 

Home study has been there in the previous Directive as one of the requirements. In the current Directive home study is compiled by adoption service providers in their assessment through home visits or home study visits. 

Neither the previous nor the current Directives are clear about foreign nationals of Ethiopian origin ID holders. On Proclamation Number 270/2002, foreign nationals of Ethiopian Origin Id holders are considered Ethiopians for economic, social and administrative services. Restrictions imposed on foreign nationals shall not be applicable to such Id holders. So not mentioning foreign nationals of Ethiopian origin by the current Directive creates ambiguity and could be considered a contradiction with a Proclamation. 

Furthermore, the Directive lacks to deal with Ethiopian nationals married to foreigners. Can these types of married couples adopt an Ethiopian child? The Directive needs to be transparent in these areas.

To sum up, eleven requirements have been set in the Alternative Childcare and Support Directive for adoption of an Ethiopian child. Few of the requirements need clarity and few others require conformity with existing legislation. The majority of the requirements are those that are recognized in the practice of adoption namely marriage certificate or non-marital certificate or legal divorce certificate, birth certificate, police clearance or certificate of good conduct, income status evidence, and medical check up certificate.  

For any inquires on adoption related issues, you may contact us at info@dmethiolawyers.com

By Mahlet Mesganaw, Partner at DMLF

In October 2023, the Ministry of Women and Social Affairs enacted a directive on Alternative Childcare and Support Directive No 976/2023. The Directive repealed the previous Directive No 48/2020 on Foster care and Domestic Adoption Services and June 2009 guidelines on community -based childcare, reunification and reintegration programs, foster care, adoption and institutional care service. The Directive shall be in force as of the date the Directive is registered by the Ministry of Justice and posted on the website of the Ministry of Justice.

The new Directive incorporates a holistic approach towards rendering child care services for vulnerable children. Those guidelines which were serving as a stepping stone for child care services are now updated to a standardized binding law.

Family Preservation and Strengthening 

The objective of family preservation and strengthening is to enable family members caregivers to care and support their children effectively. Hence supporting families including parents, legal guardians or members of the extended families who act as primary caregivers is the aim. The objective of family preservation and strengthening is to reduce the risk of breaking down or separation and placement of the child into alternative care. 

Reunification and Reintegration

Reunification and reintegration aims at reuniting a separated child back to the child’s immediate or extended family. Reunification and reintegration guarantee the child or young adult to go back to where she belongs i.e. to family care. Case workers execute this procedure with prior assessment, monitoring and support.

Kinship Care

Kinship care is a form of care rendered for a child who is unable to live with his biological parents for any reason. The child shall be placed with the extended family such as grandparents, uncles, cousins and older siblings. The order for kinship care can be approved by a relevant officer, child protection expert or community care coalition but there is no need for a decision by an administrative or judicial authority.

Foster Care

Foster care bases itself on a contract of agreement entered between a foster family and foster family care service providing organization. Foster care is a temporary form of child care where a child is placed by a foster care service provider with pre-selected, trained and approved caregivers who are not the child’s parents, relatives, guardians and who are willing to undertake the care and maintenance of a child.

Adoption

Domestic adoption is the recognized form of adoption by the Directive. Domestic adoption is a form of child care service that requires the approval of a court of law in which a permanent family bond  will be created. Adoption is considered as an alternative solution only when reasonable effort has been made to determine that a child cannot remain within his family of origin or cannot be cared for by members of the extended family. One of the requirements to adopt is being an Ethiopian nationality and having lived in Ethiopia for at least two years prior to the application to adopt.

Community Based Care: Supported Independent Living

Community based care, as an alternative child care, incorporates a range of care options that place the child within the community and ensures that the child maintains links with the community. One recognized care service under community-based care is supported independent living. Supported independent living envisages children and young persons living independently under a supervised arrangement approved by the service provider.

Residential care

Residential care is a non-family based group setting established by a government or non-governmental organization or individuals according to appropriate procedures that provide care for children who lost parental care,but does not include boarding school. The residential care shall be provided until the children are reunited with their family or placed in another form of alternative family based care.

Summary

The Directive on Alternative Child Care and Support Services collects the scattered child alternative and child care mechanisms and brings them to a legally binding law. The Directive attempts to be comprehensive in bringing to the table detailed and standardized alternative child care and support services for the many children who need it. We shall in due course provide a more detailed analysis on the requirements of each provision. We note that the enactment of the new law clearly demonstrates the Ethiopian government continued commitment to provide alternative child care services for vulnerable children.

For any child related questions you may contact us at info@dmethiolawyers.com