By Dagnachew Tesfaye, Partner at DMLF The Alternative Child Care and Support Directive Number 976/2023 by Ministry of Women and Social Affairs, October 2023, incorporates a section namely Responding to Child Abuse and Neglect. The State is given the responsibility to respond to child abuse and neglect. The procedure of …
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 The Directive repealed the previous Directive No 48/2020 on Foster care and Domestic Adoption Services and June 2009 guidelines on community -based childcare, reunification and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
By Dagnachew Tesfaye, Partner at DMLF The Alternative Child Care and Support Directive Number 976/2023 by Ministry of Women and Social Affairs, October 2023, incorporates a section namely Responding to Child Abuse and Neglect. The State is given the responsibility to respond to child abuse and neglect. The procedure of reporting, assessment, court approval, emergency…
By DMLF The National Bank of Ethiopia has introduced an amendment Directive namely NBE Amendment Procedure on Price of Gold Purchase No 1/2024, effective as of June 17/2024. This Directive is an amendment to a similar Directive number 3/2023. The amendment Directive encompasses price adjustment for provision of gold in terms of its weight and…
By DMLF The House of Peoples’ Representative in its session on June 11/2024 enacted the Proclamation to Determine Public Holidays and Celebration of Public Holiday Proclamation Number 1334/2024. The Proclamation identifies 12 celebrated public holidays that governmental and non-governmental institutions shall be closed for public services. These public holidays and rest days are salaried days.…
Partners to DMLF namely Mr.Dagnachew Tesfaye Abetew and Mrs.Mahlet Mesganaw Getu are proud to announce the membership to the American Bar Association (ABA). We hope the ABA membership will provide us with professional advantages in building networks for rendering life changing legal services for our communities.
By DMLF The Madrid System for the International Registration of Marks is a centralized system that simplifies the process of registering trademarks in multiple countries. It’s administered by the World Intellectual Property Organization (WIPO). Under this system, trademark owners can file a single application with WIPO to protect their mark in multiple member countries. This…
By DMLF The Ethiopian National Dialogue Commission (hereafter the Commission) was established by Proclamation 1265 /2021( hereafter the Proclamation). The Proclamation was done as of 13th of January 2022. The term of office of the Commission is three (3) years.The term of the Commission shall begin from the time Commissioners have been appointed in accordance…
Losing access to the sea is generally a great loss to a nation, politically, militarily, and economically. The independence of Eritrea caused Ethiopia to become landlocked in 1991. The Ethiopian navy operated from foreign ports for several more years. Ethiopia is a neighbor to five or six coastal countries namely Djibouti, Eritrea, Kenya, Somalia, Somaliland and Sudan. Among the landlocked countries of the world, Ethiopia is the largest populous nation to be a landlocked country.
The international community has attempted to come up with few rules about the rights of land-locked states. The Barcelona Convention and Statute on Freedom of Transit (1921), the Geneva Convention and Statute on the International Regime of Maritime Ports (1923), the Geneva Conventions on the Law of the Sea (1958), the New York Convention on the Transit Trade of Land-locked States (1965) and the United Nations Convention on the Law of the Sea (UNCLOS, 1982).
The UNCLOS substituted the four Geneva Conventions. UNCLOS provides land-locked states with the right of access to and from the seas and freedom of transit. However, UNCLOS makes such rights subject to the agreements to be made by land-locked and coastal states. This, in turn, relies on the prevailing relations between the concerned states. If the land-locked and transit states are not in a good relation, the transit states may be unhappy to negotiate such an agreement and thereby put hurdles on the land-locked states’ free transit. The rights of land-locked states rely on the political will and commitment of transit states. The denial of free transit, affects the rights of land-locked states on the different maritime regimes. Land-locked states have no absolute right of access to and from the seas. Therefore though there are international conventions on the matter, negotiating bilateral and multilateral agreements with the transit states has a crucial and irreplaceable role. Being a land-locked developing country Ethiopia has been facing geographical, political, trade, transit, and other challenges. Ethiopia depends on Djibouti for its access to and from the sea. From the international to continental and bilateral agreements on access to the sea affecting Ethiopia shall be the focus of the article. The article is intended to give brief knowledge on the existing laws and programme of actions for land-locked states like Ethiopia.
1958 Convention on the High Seas
The Convention on the High Seas is a global treaty which codifies the rules of international law relating to the high seas, otherwise known as international waters. Article 2 of the 1958 Convention on the High Seas makes clear that the high sea is open to all nations, and both coastal and non coastal states enjoy freedom of navigation. Article 4 of the Convention clearly provides that : ‘Every State, whether coastal or not, has the right to sail ships under its flag on the high sea.’ Furthermore, Article 14(1) of the Convention on the territorial Sea and the Contiguous Zone stipulates that ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea. The convention on the High Seas was superseded by the 1982 UNCLOS III, which introduced several new concepts to the law of maritime boundaries including Exclusive Economic Zone. Except Kenya, none of the neighboring coastal states of Ethiopia are signatories of the convention including Ethiopia.
UN Convention on Transit Trade of Land-locked States, 1965
The1965 New York Convention has been noted as the first international agreement to recognize the special disadvantaged position of land-locked states. The convention has essentially been superseded by the UNCLOS III, which contains similar provisions for transit arrangements to be made between coastal and land-locked states. Nevertheless, the Convention for the first time gave recognition that land-locked states enjoy a legal right of free transit. Article 2 stipulates that freedom of transit is to be granted to traffic in transit and means of transport on routes in use mutually accepted for transit. No discrimination is to be exercised on the basis of the place of origin, departure, entry, exit or destination or on any circumstances relating to the ownership of the goods or the ownership, place of registration of flag of vessels, land vehicles or other means of transport used. A notable weakness of the New York Convention is its lack of universal ratification. It currently has 43 signatories and unfortunately to date Ethiopia is not a party to the Convention. Except Sudan, being a signatory, none of the neighboring states of Ethiopia are parties to the convention. The 1965 New York Convention was the foundation for negotiations at UNCLOS III on the question of rights of transit for land-locked states.
UNCLOS III
The United Nations Convention on the Law of the Sea (UNCLOS III) was adopted with one chapter dedicated to the rights and freedoms of landlocked states. Although the provisions are brief, one can consider them as an achievement as some measure of success. The adoption of Article 69 and Part X (Articles 124 – 132) UNCLOS depicted some recognition of what landlocked states had struggled to achieve. There are some supplementary Articles throughout UNCLOS which highlight further recognition of landlocked states’ rights in the seas carried over from previous treaties and conferences.
Landlocked states strive to gain access to global resources in line with the minimum standards as set out by the United Nations Convention on the Law of the Sea (UNCLOS III).It is a known fact that securing a cost effective transit arrangement with minimum rights or freedoms of transit and access is highly dependent on diplomatic relations between the landlocked state and its transit or coastal neighbor. UNCLOS emphasizes cooperation at regional, sub-regional or bilateral levels. The Convention does not stipulate penalties where there lacks any cooperation arrangements in place between landlocked states and their coastal neighbors. Even to the extent there is an arrangement in place UNCLOS does not insist that the arrangement be equitable. Landlocked states are vulnerable to any disturbance their transit neighbors may experience. Landlocked states rely on political stability and the will of their coastal neighbors. Landlocked states remain dependent on their transit neighbors’ infrastructure and administrative processes. All these dependencies which might contribute to delay in transit for landlocked states.
These rights and freedoms of landlocked states under UNCLOS are not absolute nor self-executing. The ability of landlocked states to exercise these rights remains at the will and discretion of their coastal and transit neighbors. Landlocked states are required to negotiate bilateral and multilateral agreements in this regard and take what they can get, if anything at all. UNCLOS III became the new constitution of the seas and oceans, and yet UNCLOS upheld coastal states’ superiority to landlocked states. Ethiopia is a signatory to UNCLOS III. Djibouti, Kenya, Somalia and Sudan are also signed and ratified or acceded to the Convention.
Almaty Declaration and Plan of Action
In 2003, a conference was held in Almaty, Kazakhstan to adopt a programme of action to address the unique challenges that LLDCs face. The United Nations Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and the Small Island Developing States adopted the Almaty Programme. The Almaty Declaration and Plan of Action was adopted in 2003. The main purpose being to minimize the effect of dependency of landlocked states on their transit and coastal neighbors.Landlocked states and their transit neighbors seem to have found middle ground through Almaty Programme.
Almaty Programme of Action was adopted as an initiative to address the special needs and problems of landlocked states. This was attempted to be done by bringing together all relevant stakeholders that could assist in overcoming specific and peculiar challenges that put obstacles to international trade for landlocked states. General Assembly Resolution 66/214 recognized the Almaty Programme of Action as a fundamental framework for true relationship between landlocked and transit developing countries and their development partners at all levels including national and sub-regional levels. The Resolution further recognizes, among others, that international trade and trade facilitation is one of the priorities of the Almaty Declaration and Program of Action as a means to guarantee that landlocked developing countries get a more swift flow of goods and services through trans-border trade.
The Vienna Programme of Action
The Vienna Programme of Action for Landlocked Developing Countries(LLDCs) for the Decade 2014–2024 is focused upon addressing the challenges faced by LLDCs. The Vienna Programme of Action aims to contribute to the eradication of poverty stemming from countries’ landlockedness. The aim is to implement specific actions related to six priority areas: transit policy; infrastructure development; trade and trade facilitation; regional integration and cooperation; structural economic transformation; and means of implementation. The plan advises for additional investment in infrastructure, including roads, railways, and ports, to improve connectivity and reduce transportation costs. The plan also focuses on the need for greater trade liberalization and facilitation, including the removal of trade barriers and the promotion of trade diversification. The VPoA addresses the unique challenges faced by LLDCs and provides a comprehensive plan to address those challenges. The plan recognizes the importance of partnerships and cooperation between LLDCs, transit countries, and development partners, and the plan calls for increased financial and technical assistance to help LLDCs implement the plan.
The 2050 Africa’s Integrated Maritime Strategy (AIMS)
The 2050 Africa’s Integrated Maritime Strategy was adopted in January 2014. The Strategy focuses on ensuring that the African continent is a key player in maritime affairs. The Strategy recognizes the need for ratification and domestication of all binding instruments. The Strategy promotes intra-Africa trade, with wealth creation for all of Africa as the ultimate goal, through increased development and integration. The Strategy provides a specific mention of the need to ‘protect’ the right of access to the sea and freedom of transit of goods of landlocked states. The Strategy, nonetheless, refers to landlocked states as “landly-connected” states. The strategy anticipates creation of a Combined Exclusive Maritime Zone of Africa. The Strategy calls for the need for interpretation consistent with existing instruments such as the UN Convention on Transit Trade for landlocked States (New York Convention) and the Convention on the Facilitation of International Maritime Transport which have specific provisions on equal treatment of landlocked states. The Strategy is primarily focused towards promoting intra-Africa maritime trade. It calls for improved transit routes to ensure the smooth flow of trade within Africa. The Strategy does not have provisions dedicated solely to addressing the plight of transit for landlocked states but rather calls for an assessment of bottlenecks on transit of goods generally. Without negotiating and entering into effective, mutually beneficial bilateral, sub-regional or regional agreements, the rights and duties of Africa’s ‘landly-connected’ states in relation to the maritime domain would have very limited practical value.
Africa Continent Free Trade Area(AfCFTA)
Among the Agenda 2063 flagship projects, AfCFTA is one of the significant ones. AfCFTA aims for increased trade agreements, geared towards intra-africa trade by eliminating barriers. African Continental Free Trade Area (AfCFTA) as at August 2023, 47 of the 54 signatories (87%) have deposited their instruments of AfCFTA . Ethiopia and Djibouti have ratified AfCFTA whereas Eritrea, Somalia and Sudan’s membership is pending. AfCFTA contributes to the peculiar needs faced by Africa’s Landlocked Developing Countries (LLDCs) and Small Island Developing States (SIDS). AfCFTA promises to contribute towards addressing some of these challenges.15 of the 16 African LLDCs have ratified the AfCFTA, as a symbol of their readiness to leverage the opportunities offered by the AfCFTA. Discussions are taking place in leveraging the AfCFTA towards addressing the peculiar trade and development challenges of Africa’s LLDCs and SIDS.
Agreement Between Ethiopia and Djibouti
Political will and mutual benefits are two key drivers of a successful agreement between a landlocked and a transit state. As a result, Ethiopia and Djibouti signed an agreement on port utilization and transit of goods towards Ethiopia in 2002. Relying on the UNCLOS principles, the agreement stresses the success of the Djibouti–Addis Ababa transport corridor and includes various terms and modalities of transit transport. Moreover, the agreement adds an institutional planning framework with a joint expert committee, which meets every three months, and a ministerial committee, which meets biannually. Ethiopia and Djibouti recognized the mutual benefits of the agreement. Ethiopia’s key interest is safe and competitive access to the sea, and for Djibouti the traffic in transit is a source of income, contributing 70% of the port’s income.
Conclusion
While landlocked states have a general right in terms of UNCLOS to access the sea and its living resources, the practical application thereof is left to bilateral agreements to be entered into between the landlocked state and the transit states involved. In accordance with the relevant UNCLOS articles, states shall enter into these agreements to determine the ‘how to’ of these rights. Though there are some considerations provided by UNCLOS, there is no guarantee that the rights of landlocked states are protected. The actual terms to be included in the agreements are left up to the landlocked states to deliberate with their counterparts during the negotiations. In practice, therefore, the implementation of UNCLOS provisions related to the rights of landlocked states still relies to a significant degree on political will and existing favorable relations between the relevant states. Ethiopia’s need to have sea port access also depends on bilateral agreements entered with its coastal neighbors of Eritrea, Somalia, Somaliland, Kenya, or Sudan based upon international principles and plan of actions.
For inquiries, you may contact us at info@dmethiolawyers.com
By Dagnachew Tesfaye, Partner at DMLF The Alternative Child Care and Support Directive Number 976/2023 by Ministry of Women and Social Affairs, October 2023, incorporates a section namely Responding to Child Abuse and Neglect. The State is given the responsibility to respond to child abuse and neglect. The procedure of reporting, assessment, court approval, emergency…
By DMLF The National Bank of Ethiopia has introduced an amendment Directive namely NBE Amendment Procedure on Price of Gold Purchase No 1/2024, effective as of June 17/2024. This Directive is an amendment to a similar Directive number 3/2023. The amendment Directive encompasses price adjustment for provision of gold in terms of its weight and…
By DMLF The House of Peoples’ Representative in its session on June 11/2024 enacted the Proclamation to Determine Public Holidays and Celebration of Public Holiday Proclamation Number 1334/2024. The Proclamation identifies 12 celebrated public holidays that governmental and non-governmental institutions shall be closed for public services. These public holidays and rest days are salaried days.…
Partners to DMLF namely Mr.Dagnachew Tesfaye Abetew and Mrs.Mahlet Mesganaw Getu are proud to announce the membership to the American Bar Association (ABA). We hope the ABA membership will provide us with professional advantages in building networks for rendering life changing legal services for our communities.
By DMLF The Madrid System for the International Registration of Marks is a centralized system that simplifies the process of registering trademarks in multiple countries. It’s administered by the World Intellectual Property Organization (WIPO). Under this system, trademark owners can file a single application with WIPO to protect their mark in multiple member countries. This…
By DMLF The Ethiopian National Dialogue Commission (hereafter the Commission) was established by Proclamation 1265 /2021( hereafter the Proclamation). The Proclamation was done as of 13th of January 2022. The term of office of the Commission is three (3) years.The term of the Commission shall begin from the time Commissioners have been appointed in accordance…
The Federal Supreme Court Cassation Division on Cassations File Number 241752 on July 03,2023 rendered a binding decision on the issue of when a bonus will be paid even after the employment contract of an employee is terminated. The case has been between the applicant Ato Melaku Kasaw Alemu versus respondent Ethiopian Electric Power. The case was first brought by the current applicant in the Federal First Instance Court as a plaintiff. Then still the applicant appealed to the Federal High Court. Finally the applicant filed an application to the Federal Supreme Court Cassation Division. The argument in each level of the court and the final judgment of the Cassation Division shall be looked into in brief.
Federal First Instance Court
The applicant argued in the FFIC that the applicant has worked for the respondent since 1988 in different positions. The applicant’s employment was terminated on August 7,2022 due to retirement. The applicant claimed that the applicant has to be paid in cash accumulated annual leave from 2011-2020 of 462 days. Moreover the respondent has paid a bonus for the budget year 2021/2022(2014EC) of one month and half month salary to those employees of the organization. The applicant argued that the applicant has served for the full year of the budget year of 2021/2022 but the respondent refused to disperse and pay the bonus payment to the applicant. Hence the respondent be ordered to pay the bonus pay even if the applicant’s employment is terminated having served and contributed to the profitability of the respondent that led to the payment of bonus.
The respondent on the other hand argued that annual leave of 462 days is barred by a period of limitation of two years as per Article 79(4) of the Labor Proclamation 1156/2019. The respondent further argued that the accumulated annual leave claim is barred by 6 month period of limitation as per Article 163(3). Regarding bonus, eligible employees according to the internal directive on bonus payments of the respondent goes to employees that are still working in the organization and their employment is not terminated. The employment contract of the applicant has been terminated. Thus the respondent argued this will inhibit the payment of bonus to the applicant. On the other hand, the respondent mentioned an argument on penalty stating the fact that there are no legitimate delayed payments to the applicant. As a result the request for three months salary for delay is unjustified.
The Federal First Instance Court gave a decree stating that the unused annual leave cannot be postponed for more than two years. Hence the request of the unused and accumulated annual leave by the applicant is barred by 2 years period of limitation as per Article 79 of the Labour Proclamation No 1156/2019.
On the merit of the case, exhausting the hearing of the arguments of the partties, the court rendered a judgment on the bonus payment claim. The court ruled that the employer’s directive state bonus payment is for employees working in the employer and whose employment is not terminated. The employment contract of the applicant is terminated due to retirement. Thus the court ruled that the applicant is not entitled to bonus payment.
Federal High Court
The applicant lodged an appeal to the Federal High Court. The appellate court affirmed the ruling of the lower court and dismissed the appeal of the applicant.
Federal Supreme Court Cassation Division
The applicant filed an application to the cassation division. The content of the application is as follows: the right to get unused annual leave materialize when the employment contract is terminated; the applicant filed a claim of accumulated annual leave within 6 months from the date of termination; the labour proclamation forbids annual leave not to be postponed for more than 2 years; however the law doesn’t state the consequences of postponement for more than two years; the annual leave has been postponed due to the employer; hence the 462 days of accumulated annual leave should be considered in light of Article 1845 and be paid to the applicant. Regarding bonus payment, the applicant argued that he has contributed for the profitability of the respondent for the full year bonus has been paid. When bonus is paid, the applicant should have been entitled to get the bonus payment even if the employment is terminated. On C/F/No 20869, the applicant argued, the cassation division gave an interpretation that the bonus payment should be paid to an employee who has contributed to the profitability of an organization even when the employee left the job. Thus the 2021/2022(2014 E.C) bonus payment has to be paid to the applicant together with penalty for delay of payment.
The cassation division accepted the issue of bonus for further look. Hence the respondent was ordered to respond and the applicant as well gave a reply.
The respondent’s response briefly is as follows: bonus has to be paid based on agreement of employer and employee and bonus is not obligatory claim as stated in C/F/No 64758; as per September 7/2022 directive of the organization, bonus for the year of 2021/2022(2014E.C) is paid for an employee who is still working and his employment is not terminated. The employment contract of the employee is terminated before the enactment of this directive. For the mere fact that the employee served on the budget year doesn’t justify the payment of bonus. The employer has not delayed any justified payment of the employee. As a result, the penalty request is unacceptable. Therefore the lower courts’ decisions need to be confirmed.
The applicant gave a reply on April 11,2023. The applicant reaffirmed the argument presented on the application.
The cassation division examined the case. The issue to be resolved is whether a rejection of bonus payment of the 2014 E.C year due to the fact that the employee’s employment contract is terminated due to retirement is appropriate or not?
The Cassation Division first stated the facts of the case. Then the cassation division looked into different cassation bench interpretation on Article 53(2)(c) of the Labour Proclamation on bonus. The cassation decisions were C/F/No 20669, 101825 and 202839.
The conclusion reached by the cassastion division is that if there is no precondition for disbursement of bonus by a directive or collective agreement, the employee is entitled to get bonus payment even when the employment is terminated. However when there are clear preconditions for payment of onus in collective agreement or work rules or directives of the employer, the employer may not be obliged to pay bonus to an employee who doesn’t meet those requirements.
Though after termination of employment of the applicant, the respondent has enacted a directive on September 7,2022 stating the fact that 2021/2022(2014E.C) year bonus shall be paid to employees whose employment is not terminated and still working in the organization. The applicant does not meet the conditions for payment of bonus as the applicant’s employment is terminated and no longer serving the organization. Therefore, the cassation ruled that the respondent is not obliged to pay bonus to the applicant as the latter does not meet the condition of the directive of the organization that entitles payment of bonus.
The cassation division further ruled regarding the 462 unused annual leave. The Labour Proclamation Article 79(4) prohibits the postponement of annual leave for more than 2 years, and as such the applicant’s claim is unacceptable. To sum up, the cassation bench confirmed the lower court’s decsion.
Conclusion
The request for the payment of bonus by an employee depends upon meeting pre-conditions provided by the employer in the form of collective agreements, directives or work rules. In the absence of any pre-condition, even an employee whose employment is terminated could seek the payment of bonus given the employee had been working for the profitability of the organization that resulted in bonus payment. However, when there are conditions for example that bonus shall be paid to employees who still work in the organization and their employment is not terminated, those employees whose employment is terminated cannot request for the payment of bonus.
Regarding unused annual leave, see the issue in the article dealt here.
For any employment related issues, you may send your inquiry to info@dmethiolayers.com
By Dagnachew Tesfaye, Partner at DMLF The Alternative Child Care and Support Directive Number 976/2023 by Ministry of Women and Social Affairs, October 2023, incorporates a section namely Responding to Child Abuse and Neglect. The State is given the responsibility to respond to child abuse and neglect. The procedure of reporting, assessment, court approval, emergency…
By DMLF The National Bank of Ethiopia has introduced an amendment Directive namely NBE Amendment Procedure on Price of Gold Purchase No 1/2024, effective as of June 17/2024. This Directive is an amendment to a similar Directive number 3/2023. The amendment Directive encompasses price adjustment for provision of gold in terms of its weight and…
By DMLF The House of Peoples’ Representative in its session on June 11/2024 enacted the Proclamation to Determine Public Holidays and Celebration of Public Holiday Proclamation Number 1334/2024. The Proclamation identifies 12 celebrated public holidays that governmental and non-governmental institutions shall be closed for public services. These public holidays and rest days are salaried days.…
Partners to DMLF namely Mr.Dagnachew Tesfaye Abetew and Mrs.Mahlet Mesganaw Getu are proud to announce the membership to the American Bar Association (ABA). We hope the ABA membership will provide us with professional advantages in building networks for rendering life changing legal services for our communities.
By DMLF The Madrid System for the International Registration of Marks is a centralized system that simplifies the process of registering trademarks in multiple countries. It’s administered by the World Intellectual Property Organization (WIPO). Under this system, trademark owners can file a single application with WIPO to protect their mark in multiple member countries. This…
By DMLF The Ethiopian National Dialogue Commission (hereafter the Commission) was established by Proclamation 1265 /2021( hereafter the Proclamation). The Proclamation was done as of 13th of January 2022. The term of office of the Commission is three (3) years.The term of the Commission shall begin from the time Commissioners have been appointed in accordance…
The Federal Courts announced officially the commencement of the calendar year 2016 E.C(2023/2024) as of October 12,2023. Article 38 of the Federal Courts Proclamation No 1234/2021 reiterate that federal courts shall be closed from July 08 to October 11 of every year. During the recess of the courts, emergency cases were tried by judges who work overtime voluntarily.
The Transaction of Minerals Ratification Proclamation No1144/2019 governs the transaction of Minerals resources after production. The Proclamation covers all transactions of minerals produced from all mining operations conducted in Ethiopia. We shall briefly look into the competency requirements, Licenses required, eligibility and duration of Licenses obtained.
Certificate of Competence
To transact minerals, a person has to qualify to carry out the trade. The following certificates of competence(CoC) may be requested and upon fulfillment of the requirements, issued : a) mineral supplier coc, b) mineral crafting coc, c) mineral refining coc, d) mineral smelting coc, d) mineral transaction coc and f) mineral export coc.
Licenses
Any person who wishes to trade in minerals shall present a coc and shall be issued with the following License : a) mineral supplier licenses b) mineral crafting license,c) mineral refining license,d) mineral smelting license, d) mineral trade license and e) mineral export license.
Eligibility
Among the Licenses referred above, mineral supplier license or gold and silver smelting license shall not be issued to foreign investors. A holder of a mining license shall not be issued with a supplier licence. Similarly for coc, mineral transaction or export certificate of competence shall not be issued to foreign investors.
Duration and Renewal
Any license or coc shall be valid for one year from the date of issuance subject to renewal upon fulfillment of the requirements.
For any Mining related inquiries, you may contact us at info@dmethiolawyers.com
By Dagnachew Tesfaye, Partner at DMLF The Alternative Child Care and Support Directive Number 976/2023 by Ministry of Women and Social Affairs, October 2023, incorporates a section namely Responding to Child Abuse and Neglect. The State is given the responsibility to respond to child abuse and neglect. The procedure of reporting, assessment, court approval, emergency…
By DMLF The National Bank of Ethiopia has introduced an amendment Directive namely NBE Amendment Procedure on Price of Gold Purchase No 1/2024, effective as of June 17/2024. This Directive is an amendment to a similar Directive number 3/2023. The amendment Directive encompasses price adjustment for provision of gold in terms of its weight and…
By DMLF The House of Peoples’ Representative in its session on June 11/2024 enacted the Proclamation to Determine Public Holidays and Celebration of Public Holiday Proclamation Number 1334/2024. The Proclamation identifies 12 celebrated public holidays that governmental and non-governmental institutions shall be closed for public services. These public holidays and rest days are salaried days.…
Partners to DMLF namely Mr.Dagnachew Tesfaye Abetew and Mrs.Mahlet Mesganaw Getu are proud to announce the membership to the American Bar Association (ABA). We hope the ABA membership will provide us with professional advantages in building networks for rendering life changing legal services for our communities.
By DMLF The Madrid System for the International Registration of Marks is a centralized system that simplifies the process of registering trademarks in multiple countries. It’s administered by the World Intellectual Property Organization (WIPO). Under this system, trademark owners can file a single application with WIPO to protect their mark in multiple member countries. This…
By DMLF The Ethiopian National Dialogue Commission (hereafter the Commission) was established by Proclamation 1265 /2021( hereafter the Proclamation). The Proclamation was done as of 13th of January 2022. The term of office of the Commission is three (3) years.The term of the Commission shall begin from the time Commissioners have been appointed in accordance…
The answer is YES. A foreign national advocate or foreign registered law firm can practice law in Ethiopia under two conditions. The first condition is that the case the foreign national advocate or foreign registered law firm seeks to engage involves the application of the law of the country that issued the advocacy license of the foreign national advocate or foreign law firm. The second condition is that the practice shall be done only in collaboration with a local advocate or law firm licensed under Ethiopian law.
The Federal Advocacy Service Licencing and Administration Proclamation No 1249/2021, done as of 5th day of August 2021, is the one that was revolutionary in the context of allowing foreign nationals advocates or foreign registered law firms to practice law in Ethiopia in the above two conditions. This proclamation repealed the previous Proclamation No 199/2000 that restricted the practice of law to only Ethiopian Nationals. The existing proclamation not only opens the door for foreign national advocates or foreign registered law firms to practice law in Ethiopia but also with equal footing to Ethiopian nationals, foreign nationals of Ethiopian origin are given the green light to practice law in Ethiopia.
The scope of the existing proclamation on Article 3 provides that the proclamation shall be applicable not only to federal advocates and law firms licensed under the proclamation but also foreign national advocates and law firms working within Ethiopia.
Hence the grounds for denial of an advocacy license or imposition of disciplinary measures shall also apply,as appropriate, to advocacy service providers holding a foreign license.
Therefore a foreign national advocate or foreign registered law firm with a valid advocacy license granted to the foreign national or foreign registered law firm in a foreign country may use their foreign license to render advocacy service to clients in Ethiopia on cases involving the application of the foreign law the advocacy license is issued on and in collaboration with a local advocate or law firm licensed under the Proclamation.
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Arbitration and Conciliation Working Procedure Proclamation No 1237/2021 done as of April 2021 encompasses the procedures for recognition and enforcement of arbitral awards and the court that has jurisdiction to do so. In this brief article we shall look into the procedures of recognition and enforcement of foreign arbitral awards and the assigned court to recognize and enforce foreign arbitral awards.
There are two ways of recognizing and enforcing foreign arbitral awards. The first is when a foreign arbitral award falls under international treaties ratified by Ethiopia. The award that falls under the ratified treaty shall be recognized and enforced based on the procedures indicated in such treaty.
The second way of recognition and enforcement of foreign arbitral awards is as per Article 53(2) of the Proclamation. The Proclamation encompasses 6 procedures an Ethiopian court has to evaluate before recognizing or enforcing foreign arbitral awards. These are:
There is reciprocity;
The arbitration award bases itself on valid arbitration agreement or rendered by a tribunal that is established in accordance with the laws of the country in which such award is rendered;
The arbitral award can be enforced in accordance with Ethiopian law;
The parties to the arbitration award had equal rights in appointing the arbitrators or had in presenting their evidence and getting heard in the course of the proceedings;
The matter in which the award is rendered is also arbitrable under Ethiopian law and
The arbitral award does not contravene public policy, moral and security.
The court that has the jurisdiction to accept and hear recognition and enforcement of foreign arbitral awards is the Federal High Court. The jurisdiction of the Federal High Court is for both cases of where the foreign arbitral award falls under international treaties ratified by Ethiopia or in ordinary circumstances whereby recognition and enforcement is requested.
To conclude, foreign arbitral awards presented for recognition and enforcement in Ethiopia shall be presented at the Federal High Court. The court shall ascertain that the foreign arbitral award is in line with the requirements of the Ethiopian law before recognizing or enforcing such awards.
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Annual leave is a minimum working condition that cannot be limited by work rules or collective agreement. The FDRE Constitution on Article 42(2) gave recognition to annual leave. Workers have the right to reasonable limitations of working hours, to rest, to leisure, to periodic leave with pay, to remuneration for public holidays as well as a healthy and safe work environment. Similarly, the governing labour proclamation at this time for private organization employees is Labour Proclamation No 1156/2019. Articles 76-80 of the Labour Proclamation cover annual leave. In this article what annual leave is all about, dividing and interruption of annual leave, carry over, and payment of wage in lieu of annual leave shall be discussed briefly.
Amount of Annual Leave and Related Rights
According to Labour Proclamation 1156/2019, the amount of annual leave for the first year of service shall be uninterrupted 16(Sixteen) working days. Then for every additional two years of service, one working day annual leave is added. Therefore, for the 1st year of service, 16 working days, for the 2nd year of service, 16 working days, for the 3rd year of service 17 working days, for the 4th year of service 17 working days, for the 5th year of service 18 working days, and it continues like this.
Annual leave is taken with a full salary. The wage a worker receives during his annual leave shall be equal to what he would have received if he had continued to work. What about allowance, bonus, commission or other incentives including service charges from customers? Article 53(2) of the Labour Proclamation provides lists of payments that are excluded from being considered as wages: a) Over-time pay b) Amount received by way of per-diems, hardship allowances, transport allowance, relocation expenses, and similar allowance payable to the worker on the occasion of travel or change of his residence; c) Bonus d) Commission e) Other incentives paid for additional work results and f) Service charge received from customers. Thus the law seems to restrict the employee to receive only his wage/salary and not those listed items that are by law from the definition of wages.
Who is entitled to get annual leave: of a worker under probation or a worker that has completed his probation? For the purpose of annual leave, the labour law doesn’t differentiate between a worker within probation period to a worker that completed his probation period (60 working days). In contrast to annual leave, sick leave is available only for a worker who has completed his probation period. Where a worker, after having completed his probation, is rendered incapable of working due to sickness other than employment injury, he shall be entitled to a sick leave. However, for annual leave, such a distinction has not been made. Thus there is no law that prohibits a worker who is in his probation period to request annual leave and be granted one. The law is silent as to enabling the employer to deduct annual leave balance from a worker that terminated his employment contract before expiry of the probation period or terminated by the employer while under probation.
The employer is granted the right to come up with a schedule of time in which employees can take annual leave. This right of the employer is based upon two conditions namely the interest of the employee and the need for maintaining the normal operation of the undertaking.
Dividing Annual Leave
Dividing annual leave is possible only in two parts. To apportion annual leave in to two parts, the agreement of the worker and the employer is required. This means annual leave cannot be taken each month for instance 2 days per month. It is the position of the labour law that annual leave be taken in bulk. Annual leave has to be taken consecutively for the full amount or if the worker and the employer agrees, the annual leave can be divided into two equal or unequal parts. Thus there is no flexibility of annual leave to be apportioned multiple times save only two parts.
Interruption of Annual Leave
When a worker on annual leave falls sick and requires medical treatment as an inpatient, his annual leave shall be suspended and his sick leave shall commence. The Labour Proclamation on Article 79(5) restricts sick leave as a reason for suspension of annual leave only to inpatients who happen to be admitted to hospitals. An employee who could present a valid medical certificate attesting he/she needs rest by a duly recognized medical institution without being an inpatient, may not enjoy the suspension of the annual leave. On the other hand, the law is silent as to indicate public holidays falling on the annual leave resulting in suspension of the annual leave.
Carry Over
Annual leave may be postponed for two reasons. One is when the worker requests and the employer agrees. Second is when the employer has to postpone due to operational requirements of the business. However, the Labour Proclamation on Article 79(4) allows postponement for not more than two years. In other words, annual leave postponed for two years has to be taken and put into use in full and total before the third year commences. The understanding circulating with the public that the annual leave not taken above two years expires, is legally unwarranted. The law is clear in the manner that annual leave cannot be taken in wages but has to be taken as a leave, even if there is an agreement between an employee and employer. An agreement by a worker to waive in any manner his right to annual leave shall be null and void. Payment of wages in lieu of annual leave is allowed in restricted circumstances which we will see next. Annual leave not taken for two years is not included as exceptional circumstances that are allowed by law to be paid in wages in lieu of the leave.
Payment of Wages in Lieu of Annual Leave
In principle it is prohibited to pay wages in lieu of annual leave. The two exceptions recognized by the Labour Proclamation are termination of employment and recall of employees on leave. Where a contract of employment is terminated, then the employee has the right to receive pay for the annual leave not taken. The other scenario is when a worker who is on annual leave is recalled back to work. As per Article 80(2) the worker who is recalled from leave shall be entitled to a payment covering the reminder of his leave excluding the time lost for the trip. On recall of employees on leave, the law could have granted postponement of the leave to another time and be used as a leave rather than exchanging the leave for payment. The principle the law propounded has been that leave has to be taken and should not be substituted by payment. In non-conformity to this principle, the law allowed the employer to pay in cash the remainder of the annual leave of the worker who has been recalled while on annual leave.
In conclusion the main objective of annual leave is to give an employee the right to rest his body and mind from work and be back to work more rested and energetic. The employer has to respect this minimum working condition of the employee to enjoy leave with pay. That’s why the labour law sets the amount of time annual leave has to take and the related rights of the employee on leave. The law attempts to strike the balance between the mandatory exercise of leave for the employee with the business needs of the undertaking. Thus the employer is given the right to frame a schedule for the employees to take annual leave and in dire circumstances where the undertaking is facing unforeseen hurdles, to recall an employee on leave.
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A person less than 18 years of age( including conceived child) and under guardianship can be adopted. The parties to the adoption agreement are the adopter and the guardian of the adopted child. The guardians of the adopted child being his both biological parents, can the child still be adopted? The answer is found in the Revised Family Code Proclamation No 213/2000 and Directive No 48/2020 on Foster Care and Domestic Adoption Services (Directive).
The Revised Family Proclamation on Article 191(1) requires the consent of both the father and mother of the adopted child to be given where both biological parents are alive and known. Then it is up to the court to decide whether or not the adoption is for the best interest of the child. The considerations the court shall take into account include the opinion of the child himself, the capability of the adopter to raise and take care of the child and the availability of information which will enable the court to know that the adopter will handle the adopted child as his own child and will not abuse him.
On the other hand the Directive on Article 28 state that children that have both parents who are eligible for adoption in the following conditions : a) If both parents are living with terminal illness provided that this is medically proven; and b) Upon the submission of a legal evidence issued from the relevant government body that confirms they are economically inefficient to properly care for the child and due to the failure to observe the safety of the child in addition to other mandatory causes. Therefore, the above two conditions have to be fulfilled and evidence has to be submitted in order for the adoption of a child with both parents.
To sum up, a child that has a father and a mother can be given in adoption to an adopter as long as either the biological parents have provided proof that they are affected by terminal illness or the biological parents have no sufficient economic means to raise their child in a proper way. The court shall ascertain the existence of the conditions from the side of the adoption givers and also confirm that the adopter is also capable of raising the child in a manner that enhances the adopted child’s life. Hence the answer to the question is YES, a child that has a father and mother can still be adopted.
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A claimant or judgment creditor in a civil case can request for the opposite party in the suit not to leave Ethiopia either before the case is resolved or executed. The request for injunctive order for travel ban has to be made with an oath and affidavit that there is an imminent danger that the defendant or counter defendant or judgment debtor may abscond the country making the claimant or judgment creditor to lose money.
This request has to be made in accordance with Ethiopian Civil Code Article 147 entitled security for appearance. Where the court is satisfied that the defendant or a plaintiff against whom a counter claim has been lodged is about to leave the jurisdiction of Ethiopia, the court may issue a warrant on arrest of the defendant and bring him before court to show cause why he should not furnish security for his appearance. The law goes beyond travel ban and order the arrest of the defendant or debtors.
If the request is for a travel ban of the defendant or debtor, then the claimants has to request the judge to order the immigration office to execute the order.
The request for travel ban or for that matter arrests has to be made by an affidavit under oath. The request has to satisfy the court that there is a reasonable probability that can result in obstruction or delayance in the execution of any decree that may be passed against the defendant in the suit.
The request for travel ban or arrest can be requested at any stage of the suit. However if the suit is regarding immovable property, security of appearance under Article 147 of the Civil Procedure Code can not be requested.
The claimant is not required by law to furnish a security or guarantee to compensate the defendant or judgment debtor for unwarranted injunction.
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