By Dagnachew Tesfaye, Managing Partner at DMLF
The Federal Supreme Court Cassation Division on Cassation File Number 215383 on 30/05/2022 (Volume 26 pages 232-236) between Applicants 1. Mrs. Arsema Elias 2. Yergen Vandra Vade (rough translation from Amharic), Respondent-None, gave a binding decision on the fact that a foreigner spouse can adopt the child of his Ethiopian spouse, born before their marriage, who live together married under one roof in Ethiopia. As per Federal Court Proclamation Number 1234/2021, Article 10 sub-article 2, an interpretation by a Cassation Division where five judges of the Federal Supreme Court sit, is binding on all courts. A summary of the case is as follows.
The Federal First Instance Court
The case started at the Federal First Instance Court. The Applicants presented to the court for approval of an adoption contract. The first applicant is an Ethiopian national and married to the second applicant. The second applicant is a Dutch national. The Applicants live together in Ethiopia. The first applicant, the wife, has a child that is not born from her husband, the second applicant. The Applicants signed an adoption agreement to make the child of the 1st Applicant to be the adopted child of the 2nd Applicant, reserving the fact that the 1st Applicant remains the mother of the child. The child subject for adoption also uses the name of the second applicant as her father’s name. The Federal First Instance Court decided the case that adoption for foreigners is prohibited by Proclamation Number 1070/2018 and hence rejected the Applicants request.
Federal High Court
The Applicants, being dissatisfied with the decision, appealed at the Federal High Court. However, the appellate court approved the lower court’s position and dismissed the appeal of the Applicants.
Federal Supreme Court Cassation Division
The Applicants filed an application on the decisions of the lower courts mentioning fundamental error of law. The Cassation Division, wherein three judges of the Federal Supreme Court sit, accepted the application on the issue that whether Proclamation Number 1070/2018 is applicable to adoption of a child of one spouse by another spouse between married couples or not.
The Cassation Division where five Federal Supreme Court Judges sit entertained the case. The Cassation Division first stated the facts as mentioned in the application under the Federal First Instance Court. Based on the facts, the Cassation Division looked into the Revised Family Code Proclamation 213/2000, Article 186 sub-article 2 (mentioned wrongly as 187 in the Cassation decision )and Amendment to the Revised Family Code Proclamation Number 1070/2018. Revised Family Code Article 186 sub-article 2 allows the conduct of adoption of a child of one spouse by the other spouse. On the other hand, Proclamation Number 1070/2018 repealed the provisions of the Revised Family Code Articles 193, 194(3)(d) and (4) and not Article 187. The Cassation Division reasoned that there is no law that prohibits foreigners and Ethiopians from joining in matrimony and bearing children. If the married spouses had a child or children prior to the marriage, there is no law that stops them from adopting the child of the other spouse.
Therefore the Applicants request to process the adoption of the child of the Ethiopian wife by her Dutch husband, maintaining the motherhood status of the wife to her child, living in Ethiopia and upbringing the child together, cannot be denied by Proclamation Number 1070/2018. The lower courts’ decisions are therefore dismissed. The Cassation Division ordered the Federal First Instance Court to reopen the file and deal with the case as per the facts and the law.
Conclusion
This is a major shift in the adoption of children in Ethiopia after 2018. Government officials and government institutions give blank dismissal of adoption of an Ethiopian child when a foreigner is involved citing Proclamation Number 1070/2018. The Cassation Division proved such a dismissive assertion as wrong. Adoption of a child by a foreigner spouse of an Ethiopian national or Ethiopian origin spouse, of the child of the Ethiopian spouse existing prior to the marriage, is not prohibited by law. The blank dismissal of adoption requests when it involves foreigners by citing Proclamation 1070/2018 is considered wrong by the Cassation Division. The above Cassation Division interpretation upholds children, families, and married couples protection afforded by the FDRE Constitution Article 34.
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By Mahlet Mesganaw, Partner at DMLF
Immigration Proclamation No. 354/2003 has been governing the immigration procedures of the country since July 3rd,2003. Quite recently, the House of Peoples’ Representative of Ethiopia endorsed an amendment to the Immigration Proclamation No 354/2003. The new amendment proclamation can be referred to as Immigration Amendment Proclamation No.1339/2024. This new amendment proclamation shall be effective as of the date of publication on the Federal Negarit Gazette. An attempt shall be made to cover major amendment points to the Immigration Proclamation here below.
Institution Name
The government authority empowered to administer and regulate immigration in Ethiopia is now known as Immigration and Citizenship Service(ICS).
Travel Document Requirements
Under Proclamation No 354/2003, there were requirements for travel documentations for tourist and transit visa holders. Now the new amendment proclamation included not only tourist and transit visa holders but also short meetings, workshops, media work, religious and sport visa holders. Those individuals who possess visas for tourism, transit, short meeting, workshop, media work, religious or sport visas are required to have valid travel documents, valid entry visa or a valid permanent residence permit, health certificate as may be required and a ticket valid for travel from Ethiopia to another country including health certificate that enable the traveler to enter the country of destination.
Persons Prohibited not to Depart from Ethiopia
Proclamation No 354/2003 Article 7 used to say ‘ any person may only be prohibited not to depart from Ethiopia by an order of a court given in accordance with the law’. However the new amendment proclamation added another sub-article giving power to the Director General(DG) of the ICS to suspend any person from leaving the country based on information obtained from relevant security service and law enforcement organs or the information obtained by the ICS itself and the DG believes that there is a clear and substantial harm that cannot be reversed in the national interest and security. If a person has been detained by the order of the DG , ICS must ensure that the detainee is brought to court.
Registration
Proclamtion No.354/2003 used to require registration of the following persons: all foreigners residing in Ethiopia, immigrant visa holders, student or business visa holders or anybody who entered Ethiopia without visa and all intending to stay more than 90 days, are required to register within 30 days of their arrival. The new amendment proclamation added foreign persons entering on religious or medical visas also to undergo the same registration with ICS.
Obligation of Carriers
Article 17 of the Proclamation 354/2003 is replaced by a new one. The new replacement article attempts to be more specific and detailed on the obligations of the carrier. As a result any carrier bears a duty to notify or send to the ICS the advanced passenger’s information and name list three hours prior to the entry or departure of a passenger.
Foreign Workers or Representative Registration
The new amendment Proclamation added an article on responsibility of a person hiring or working with a foreigner to undergo registration. The obligation is laid upon the person hiring those foreign workers. Any person who wants to bring in a foreign person to the country for work or other services must complete the necessary information and register at ICS. The employer shall also notify the ICS within three working days of the termination of the relationship with the registered person. Any legal person shall register a representative at ICS in order to obtain the services required by a representative, and in the event of a change of representative, he shall notify the ICS. The detailed implementation of this registration of foreign workers and representatives shall be determined by the directives to be issued for the implementation of this Proclamation.
Therefore, the amendment to the Immigration Proclamation has included the above major additions. Few other additions are left uncovered here as the intention of this article is to shed light to the major additions only.
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By Dagnachew Tesfaye, Managing Partner at DMLF
Introduction
The Federal Supreme Court of Ethiopia issued a directive to determine the manner of calculation of maintenance allowance for children. The rough translation of the Amharic name for the Directive is Calculation of Maintenance Allowance for Children Directive Number 1/2024. ( hereafter the Directive). The Directive shall be effective as of August 08,2024 subject to a two month preparation time. The Directive is divided into six(6) parts and incorporates a total of 31 articles. In addition to this, an annex is attached that shows a table of percentage of maintenance calculation based on monthly income. This article focuses on the overall contents of the directive and a brief conclusion shall follow.
General
The Directive applies to all levels of the Federal Court. The Directive in principle is a guide for calculation of maintenance for children. However, the Directive could be used for majors who are unable to support themselves due to health, disability or other causes. The objective of the Directive is to provide for predictable and similar calculation of maintenance for Children across the Federal Courts.
Expenses
The expenses for food, shelter, clothing, health, education and special needs of children as the case may be, shall be considered in the calculation of the maintenance. When deciding on maintenance, judges have to evaluate the number of children, life situation, age, special needs and health issues of maintenance receivers vis-a vis the age, capacity, income and life circumstance of the provider of the maintenance. The judges should consider the expenses of parents before separation in determining the amount at post-separation. Maintenance shall be paid in cash. As an exceptional circumstance and if it fulfills the best interest of the child, maintenance can be made in kind. In addition to that whenever a special situation of the child demands, the court can enter into a decision for a specific additional amount. The additional support and maintenance allowance aims to cover the special circumstances emanating from recreation, sport activities, education needs, hiring of nannies, buying of special items or hiring of specialists, health and medication follow ups. When there are children living with each parent that were separated, the amount of maintenance shall be calculated based on the capacity of each parent’s income and the difference of what each parent spends.
Calculation
The judges should adhere to the calculation annex attached with the Directive, unless there are harsh circumstances on the child that are proved by evidence or the maintenance provider has faced harsh problems backed by evidence. The court, upon application by a party, can change the amount of maintenance, either increasing or decreasing, as the case may be, based upon evidence that is sufficient and convincing. The court shall investigate the amount of income and expense of the maintenance provider and receiver. In doing so the court shall give the chance for the maintenance provider and receiver to mutually agree and come up with a written statement of their income and expenses. However, if the parties cannot reach an agreement, the court can investigate the income of the maintenance provider from the employers, professionals or institutions or witnesses.
Obligations
The maintenance provider and maintenance receiver bear an obligation. The maintenance receiver has the obligation to present to court in his or her application the known income sources of the maintenance provider and list of expenses needed to raise the child. The maintenance provider has the obligation to provide accurate information under oath about his/her income and expenses. More so, the maintenance provider should pay on time and at an agreed place.
Conclusion
The Federal Supreme Court came up with the maintenance allowance calculation for Children directive in order to make the court procedure of decision on maintenance reasonable, predictable and similar from one court to another. Hence, at the time this Directive comes into effect, those pending cases in court of law could be seen under this Directive.
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By DMLF Team
The Federal Supreme Court Cassation Division on Cassation File No 249795 on August 1,2024 rendered a judgment between Applicant Compassion International Ethiopia and Respondent Ato Ayele Kefeni. The Cassation Division gave an interpretation on Labour Proclamation No. 1156/2019 Article 27(1)(b). Here is a brief summary of the Cassation Division Judgment.
Article 27(1)(b) is about unjustified absence from duty for a total of five days in a six month period resulting in termination of contract of employment without prior notice. One of the conditions to terminate an employment contract on such grounds is that the employee is given written warnings of his absence from duty. The wording of Article 27(1)(b) states as follows:
b)Absence from duty for a total five days in six months period while being warned in writing of such a problem; and where the absence cannot be classified in any of the leaves provided under the Proclamation;
Hence the Cassation Division on the above judgment concluded that an employer has the obligation to give warning letters in writing each time an employee is absent. The employer may initiate termination of the employment contract having written warnings for each time of unjustified absence from duty. When a question is raised about the evidence of the absence, then the employer is obliged to produce those written warning letters. Written warnings of each day of absence is a precondition and not meeting such precondition shall be conceived as unlawful termination.
Warning letters are different from final termination notices. Warning letters are given prior to termination notice letters. Warning written letters are given to the employee while the latter is on the job. The purpose of warning letters is to inform the employee of his actions, learn from it and not to repeat it. On the other hand, a termination letter is given to the employee to inform the employee that his actions have resulted in termination of his employment contract. The termination notice will state the reasons for termination and date of termination. Article 27(2) provides that ‘Where an employer terminates a contract of employment in accordance with this Article, he shall give a written statement specifying the reasons for and the date of termination’.
Therefore, as per the Cassation Bench interpretation, a precondition that has to be fulfilled to terminate an employment contract based on Article 27(1)(b) is the fact that the employer has given written warning letters for the employee on each date of the employee’s unjustified absence from work. Failure to back up the termination on Article 27(1)(b) by such writing warning letters may render the termination unlawful.
The interpretation of the law by the Federal Supreme Court Cassation Division is binding on all levels of the Federal and Regional Courts from the date the judgment is rendered( Article 10(2) of Proclamation 1234/2021).
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Find attached the FSC Cassation Division Judgment for additional details.
