Bitcoin in Ethiopia and the Legal Regime

   By Geda Yoseph, Associate at DMLF

Introduction 

Bitcoin is the first decentralized digital currency that allows peer-to-peer transfers without any intermediaries such as banks, governments, agents, or brokers, using the underlying technology of blockchain. Anyone around the world on the network can transfer Bitcoins to someone else on the network regardless of geographic location; you just need to just open an account on the Bitcoin network and have some Bitcoins in it, and then you can transfer those Bitcoins. Bitcoin can be used for online purchases and or as an investment instrument. Primarily it’s used to buy goods and services. On the other hand, Bitcoin mining refers to the process of validating and recording transactions on the Bitcoin network. The primary purpose of Bitcoin mining is twofold: validating transactions to prevent fraud and adding new blocks to the blockchain, thereby creating new Bitcoins in a decentralized manner. 

Trading of Bitcoins and other cryptocurrencies remains mostly as an unregulated activity. Cryptocurrencies have three core characteristics: decentralized, unregulated, and quasi-anonymity. However, this does not mean that cryptocurrencies do not have self-regulation protocols. Cryptocurrencies such as Bitcoin have their own self-regulating protocol. Bitcoin is an internet-based cryptocurrency. Individuals can earn Bitcoin by trading, mining,and payment for services. As of January 2020, over 160 international branded companies accept Bitcoin for their services and products. This indicates that cryptocurrencies are becoming the payment system of future generations. Bitcoin was launched in 2009, for Bitcoin’s first five years, mostly large entrepreneurs and investors had sole control, similar to a monopoly. The mining machines placed in mining farms are powerful computing equipment with unique software that uses a minimum of about 60 megawatts, enough to power a modern, mid-sized city. Five years of Bitcoin’s monopoly ended with the creation of the Bitclub Network, modeled similar to a public shareholder company.

                                  Advantages of Bitcoin 

Both Bitcoin and traditional currency are similar in that both are a store of value, they differ in many ways. First things first, Bitcoin is the first and most recognized cryptocurrency, a digital currency that is secured by cryptography. Bitcoin has several advantages as compared to traditional fiat currencies, assets can be transferred faster on the bitcoin network. The system also has lower transaction fees, because it’s decentralized and there are no intermediaries, and it is cryptographically secure; the identities of the sender and the receiver are kept hidden, and it is impossible to counterfeit or hack the transactions. Plus, all the information is available on a public ledger, so anyone can view the transactions. Hence, Bitcoin plays a significant role in attracting investors from different countries by facilitating financial transactions.

                                            Bitcoin in Ethiopia 

Bitcoin is a simple and secure way to enter crypto mining. Ethiopia has now seen Bitcoin networks and clubs, such as Bit Club and AWS Mining, across the country, and more and more people are investing in them. Recently the Ethiopian Government’s investment arm, Ethiopia Investment Holding (EIH) signed a memorandum of understanding with Honk-Kong-based West Data Group’s Center Service PLC to commence mining bitcoin. The partnership is under a general agreement for a groundbreaking $250 million data mining project “that is dedicated to establishing cutting-edge infrastructure for data mining and artificial intelligence training operations in Ethiopia,” according to the EIH. This general agreement will serve as the groundwork for expansion and development of bitcoin in Ethiopia.                             

   Ethiopia to Become the First African Country to Start Bitcoin Mining

The Ethiopian government is working effectively on bitcoin mining; according to data from Bitcoin mining services company Luxor Technologies, in 2023, Ethiopia ranked fourth behind the USA, Hong Kong, and Asia as one of the top destinations for Bitcoin mining rigs. Russian bitcoin mining company Bitcluster has already built the first 120 MW bitcoin mining facility, and companies such as Hashlabs Mining have started building bitcoin mines in Ethiopia for their global clients. Ethiopia is positioning itself as a leader in the data center space in Africa, which is estimated to grow to $5.4 billion by 2027, according to Aritzon Advisory and Intelligence. This development aims to drive economic growth by leveraging technology and energy sources to attract foreign investments. Despite the ban on crypto trading in the country, 2022 saw the ratification of favorable data mining laws that permit “high-performance computing” and “data mining,” which is where bitcoin mining falls under. In the last two years, this has opened the floodgates to miners seeking its comparatively positive reception to bitcoin mining, coupled with its abundance of energy sources chiefly hydro to its optimal weather and cheap energy costs. The economic benefits of Ethiopia strategically leveraging its abundant energy resources for Bitcoin mining are vast and far-reaching. It is only a matter of time before other African nations join the bandwagon. Bitcoin mining will ultimately be a pivotal tool in addressing the economic challenges in Ethiopia.

                  Regulation of Bitcoins in Ethiopia 

Regulation of bitcoin  is very essential unless it can be exposed to several risks. According to Ethiopia’s national payment legal norms, the use of currency, not issued and authorized by the National Bank of Ethiopia, is not  allowed. However, the nature of Bitcoin is decentralized antithetical to the existing centralized structure of monetary and financial regulations. As cryptocurrencies are not issued and governed by any central authority, it could be argued that bitcoins are outlawed in Ethiopia.  However, recent developments do not seem to support this conclusion because the Minutes of Understanding (MoU) signed between the Minister of Science and Technology and IOHK implies the interest of the government of Ethiopia to introduce the payment system of cryptocurrencies.  In May 2018, (EMoST) Ethiopian Ministry of Science and Technology’s chief declared a partnership with one of the world’s foremost cryptocurrencies suppliers. A Memorandum of Understanding (MoU) with Input Output Hong Kong, a company based in Hong Kong, China, for the utilization of a blockchain application platform called Cardano, a type of blockchain record management platform used in Ada cryptocurrency. In this case, blockchain will be used to trace Ethiopian coffee along the value chain, applying genetic sampling to classify species, origin, and identify pesticides and exposure to any chemicals leading to the authentication of the coffee. Ethiopian Investment Holding (EIH) also signed a memorandum of understanding with Honk-Kong-based West Data Group’s Center Service PLC to commence mining bitcoin.

             The current legal framework in Ethiopia with regard to Bitcoin                       

In order to determine the legal status of bitcoin under the current Ethiopian legal framework, it is important to review the proclamation that establish the national bank ,the national payment system proclamation and proclamation that establish Information Network Security Administration (INSA).According to the National Bank of Ethiopia Establishment Proclamation, Proclamation No. 591/2008, Article 5(1), the National Bank  have the power and duties to coin, print, or cause to be coined, printed, and circulated the legal tender currency. This provision does not talk about bitcoin and other cryptocurrencies .The national bank of Ethiopia also made a statement regarding cryptocurrencies in 2022, which states that the use of Bitcoin and other digital currencies for transactions is illegal in Ethiopia, warning that violators will face strict action. The National Bank of Ethiopia (NBE) also added that it will take “legal measures” against anyone found to be using cryptocurrencies for transactions in the country. “Birr is the only legal currency in Ethiopia, and all financial transactions shall be effected through it’’. The NBE stressed that there is still no officially recognized cryptocurrency exchange in Ethiopia. Following the National Bank’s announcement in 2022 that cryptocurrencies are unlawful, Ethiopia has started registering cryptocurrency businesses with its national cyber security agency. The Information Network Security Administration (INSA) stated on August 24, 2022, that “individuals and entities” involved in “crypto operations” must register with the authority within 10 days. The “urgent notice” comes after parliament amended INSA’s mandate to “regulate and control cryptographic products and their transactions. Proclamation No. 808/2013, which established the Information Network Security Administration (INSA), under Article 6(9), provides that the agency shall have the powers and duties to regulate cryptographic products and their transactions, set necessary criteria and develop operating procedures, and develop and implement cryptography infrastructure. INSA invokes Article 6 (9) of its establishment Proclamation (Proclamation No. 808/2013). This provision gives it the power to “regulate cryptographic products and their transactions, set necessary criteria for establishing operating procedures, and develop and implement cryptographic infrastructure

The status of bitcoin under the current Ethiopian legal framework is unclear, and it is impossible to govern bitcoin and other cryptocurrency by the current existing laws. The current Ethiopian national bank establishment proclamation does not recognize bitcoin. Hence, it is important to amend the law to recognize and determine the status of bitcoin under Ethiopian law.

The other legal framework is the Ethiopian National Payment System Proclamation (Amendment) Proclamation No. 1282/2022, which, under Article 2(20), defines a payment instrument as any instrument, whether tangible or intangible, that is issued against the receipt of a fund equivalent in Ethiopian Birr that enables a person to obtain money, goods, or services or to otherwise make payments, which include electronic money and cards. This definition is based on traditional currencies rather than emerging cryptocurrencies like bitcoin. The status of bitcoin is unclear under the current Ethiopian national payment system. Article 5 of this proclamation also states that no person except the National Bank may be an operator or issuer of payment instruments unless such person is licensed or authorized by the National Bank. It’s impossible to consider bitcoin as a national payment instrument under the current legal framework of Ethiopia. Under the current existing legal framework, the national bank of Ethiopia also has no system for the registration and licensing of crypto-asset service providers. Hence, it is important to revisit and amend our laws in order to be compliant with new emerging technologies and trends with regard to bitcoin.

Cryptocurrency payment in general, specifically the bitcoin, system is growing in Ethiopia. However, the legal regime on the national payment system has deficiencies to govern it. The prevailing experience reveals that individuals and groups are engaged in the business/payment system of cryptocurrencies without registration and securing license from the National Bank of Ethiopia.

                    Conclusion and Recommendation 

The government of Ethiopia is taking several institutional and regulatory measures to attract foreign investors. Ethiopian Investment Holdings signed a memorandum of understanding with Hong Kong-based West Data Group’s Center Service PLC to commence mining bitcoin. This general agreement will serve as the groundwork for expansion and development of bitcoin in Ethiopia. This will be a good move for attracting foreign investors and bringing economic development to the country.  In this area, huge economic transactions can be transacted, and investors from different countries can also invest and generate profit. However, effective regulatory as well as other institutional measurements are essential. The measurement that has recently been taken by Ethiopian Investment Holding is very important in the development of bitcoin. Generally, the laws enacted to govern the national payment system and to suppress and prevent money laundering and terrorist financing are aimed at regulating fiat money. There are strategic deficiencies in the country’s legal norms to govern Bitcoin. Ethiopia has not enacted a law that allows the use of cryptocurrencies. Nor has it conducted a risk assessment with regard to the problems that can emanate from cryptocurrencies. However, Bitcoiners are engaged in expanding the business in the country. They inspire Ethiopians to partake in the Bitcoin business either by buying Bitcoin or through engagement in mining. Signing a memorandum of understanding with different organs is not enough; providing an effective, efficient, and adequate legal and institutional framework for the implementation and regulation of the agreement is very important. There is thus the need for caveats because Bitcoiners are engaged in the business without a license or in the absence of an established mechanism for the licensing and registration of virtual asset service providers. The National Bank of Ethiopia has to establish a system of registration and licensing of crypto-asset service providers. Thus, the Ethiopian government should consider enacting a law that comprehensively governs bitcoin.  Along with this, improving the capabilities of financial institutions, law enforcement agencies, and regulatory authorities is crucial to deal with the bitcoin system.

Credit for Vartan, from Pan Consultium Cyprus for initiating the idea.

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Ethiopia’s Health Sector Legal Framework 

    By Geda Yosheph,  Associate at DMLF                     

                         Introduction

The Ethiopian health sector is one of the areas that has shown good progress in the recent past. Following the change of government in 1991, the new Government of Ethiopia put in place many political and socio-economic transformation measures. Among these, it developed a first national health policy, which was followed by the formulation of four consecutive phases of comprehensive Health Sector Development Plans (HSDPs), starting from 1996/97. The policy and the first HSDP were based on critical reviews of prevailing national health problems and a broader awareness of newly emerging health problems in the country. At the core of the health policy are democratization and decentralization of the health care system; developing preventive, promotive and curative components of health care; assurance of accessibility of health care for all parts of the Population; and encouraging private and NGO participation in the health sector. During the past fifteen years, the Federal Ministry of Health has built an impressive framework for improving the health for all, including maternal and neonatal health.

Providing an effective and adequate legal framework for the health sector plays a crucial role in enhancing the development of the health sector by advancing the quality of service and its coverage.

There are only a few scattered laws and regulations enacted to govern and regulate the health sector.

                                Legal Framework of Health Sector

FDRE Constitution 1995 

The legal framework plays an important role in promoting, developing, and regulating the health sector. The health sector deals with the life of a human being; it’s all about the protection of the health of citizens; hence, strict and effective regulation is very important. The purpose of laws is not only regulation; they also play a significant role in promoting the development of the health sector by encouraging the participation of the private sector and all other stakeholders in the health sector. The EFDRE Constitution provides a general framework for the state structure, rights, and duties of citizens and government. The 1995 FDRE Constitution also provides a general framework with regard to public health and the right to a clean and healthy environment. The Constitution, under Article 41(4), imposes an obligation on the state to allocate ever-increasing resources to provide public health, education, and other social services. States play an important role in providing good public health in developing countries like Ethiopia, where the private sector is not strong enough to provide effective health services to the public. The health sector also deals with citizen’s health rights. The EFDRE Constitution, also under Article 44, recognizes citizen’s right to a clean environment, and it provides that all persons have the right to a clean and healthy environment. This right is also among the rights that obtain international recognition through different treaties and conventions. Ethiopia also enacted a proclamation that regulates environmental issues. The Constitution also imposes an obligation on the state to establish and implement basic policies for public health, which is provided under Article 51 of the Constitution. The government also has a duty to protect and promote the health, welfare, and living standards of the working population of the countries. Ensuring access to public health and a clean environment are also among the duties of government provided under the constitution. This general framework provided in the constitution is implemented by proclamations, regulations, and directives issued by the representatives of the House of Representatives, the Council of Ministers, and Health Minister, respectively.

                    Proclamations governing the health sector

In order to encourage the expansion of health services, the government enacted Social Health Insurance Proclamation No. 690/2010. Social health insurance is one of the sustainable health care financing mechanisms that enhance equitable access to improved health services through cross-subsidization. The main objective of this proclamation is to ensure the expansion of health service coverage, which plays a significant role in the accelerated socio-economic development of the country. The other objective of social health insurance is to provide quality and sustainable universal health care coverage to the beneficiary through the pooling of risks and reducing financial barriers at the point of service delivery. This social health insurance ensures the expansion of health services through cost sharing between beneficiaries and the government in the health sector. This social health insurance is playing a crucial role in ensuring health service coverage, especially in rural areas. The health service package given to beneficiaries of this social health insurance includes all essential health services and other critical curative services, which are determined by regulations.

The health sector is one of the areas that needs strict and effective regulation.. Unless  regulated, unsafe, inefficacious, and of poor quality modern and traditional medicines can cause serious health problems in the society. To prevent such risk Food, Medicine and Health Care Administration and Control Proclamation, PROCLAMATION NO. 661/2009 is issued. Primary objective of this proclamation are:  

  • To protect the public health from unsafe, inefficacious and poor quality modern and traditional medicines;
  • To protect the public from health risks emerging out of unsafe and poor quality food;
  • To avert health problems due to substandard health institutions, incompetent and unethical health professionals, poor environmental health and communicable disease;
  • To control and deter illicit production, trafficking and use of narcotic drugs, psychotropic substances, and precursor chemicals;
  • To make the fragmented and poor quality administrative and regulatory system in the health sector efficient and effective, it is found necessary to establish a new and coordinated food, medicines and health care regulatory system.

Unlike Proclamation No. 690/2010, which focuses on encouraging the expansion of health services, Proclamation No. 661/2009 is concerned with the regulation of the health sector, especially with regard to medicine, food quality, drugs, and chemicals, and providing an effective and efficient legal framework for the health sector.

                                                     Entry Regulation  

Health professionals to engage in this activity of providing health services, first of all, they have to obtain a license or certificate issued for a health professional to provide medical or other health-related services. Proclamation No. 661/2009, under Article 33, provides that no person shall practice as a health professional without having obtained a professional practice license issued by the appropriate organ.

Proclamation No. 661/2009 has regulatory purpose. Hence executive organs play significant role in this regulatory activity by: 

  • prepare and submit to appropriate organ health regulatory standards for safety and quality of food, safety, efficacy, quality and proper use of medicines, competence and practice of health professionals, hygiene and environmental health, competence of health and controllable health related institutions; 
  •  Issue, renew, suspend and revoke certificate of competence for specialized health institutions, food and medicine processing plants, quality control laboratories, bioequivalence centers, importers, exporters, storages and distributors and trans-regional health service institutions. The other power and duties of the executive are provided under Article 4 of Proclamation No. 661/2009

                      Regulation after entry

The law regulates not only at the point of entry or license, but even after health professionals obtain a license to provide health services, they are subject to regulation and inspection. The executive organ appoints inspectors to implement the provisions of the Proclamation and other laws and directives related with food, medicine and healthcare administration and control.

The other proclamation is Drug Fund and Pharmaceuticals Supply Agency Establishment Proclamation, PROCLAMATION NO.553/2007.Primary objective of this proclamation are:  

  • to supply quality assured essential pharmaceuticals at affordable prices in a sustainable manner to the public;
  • to design a system of mobilizing funds from different sources to ensure uninterrupted and sustainable supply of pharmaceuticals to all public health facilities and thereby serve the public in an equitable manner

This proclamation establishes the Pharmaceutical Supply Agency (hereinafter referred to as “the Agency”) as an autonomous federal organ having its own legal personality. The objectives of the agency include:

  • to enable public health institutions to supply quality assured essential pharmaceuticals at affordable prices in a sustainable manner to the public;
  • to play a complementary role in developmental efforts for health service expansion and strengthening by ensuring enhanced and sustainable supply of pharmaceuticals
  • to create enabling conditions for enhancing the accumulation of the Fund in its revolving and cost recovery process

The other legal framework is the Proclamation on Public Health, Proclamation No. 200/2000. This proclamation is issued to promote the health of society and the creation of a healthy environment for future generations by enhancing the active participation of society in the health sector. This Proclamation imposes a duty on the Public Health Authority to appoint qualified inspectors to implement the provisions of Proclamation No. 200/2000 and other laws and directives related to public health. Public health proclamations regulate food quality, food standard, water quality, waste handling and disposal, the availability of toilet facilities, the disposal of dead bodies, control at entry and exit ports, communicable diseases, etc. The primary concern of this proclamation is to protect public health by regulating and setting standards in order to protect society from any health issues. This Proclamation is also one way by which the government implements its constitutional duty to protect public health as stated under Article 90 of the EFDRE Constitution.

                                                   Conclusion 

The health sector is one area that is showing good progress in terms of quality of services and coverage. Legal frameworks also play an important role in regulating and promoting the health sector. In this short brief on the legal framework of the Ethiopian health sector, we try to discuss constitutional frameworks and different proclamations enacted by the House of Representatives to govern the health sector and promote the development of this area. The legal framework governing the health sector in Ethiopia is more scattered and disorganized, and the number of articles and commentary written on this area is also very few. We recommend that an effective, efficient, and organized legal framework is very essential to the development of the health sector and protecting public health.

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Brief Overview on Bankruptcy Proceeding

By Geda Yoseph, Associate at DMLF

                                      Introduction   

Bankruptcy is the death of a business organization. Just like a human being, business organizations pass through different stages from establishment through registration, development, and bankruptcy due to losses. Like entry, exits from businesses or activities for which they are licensed are also subject to rules and regulations. When a business organization suffers losses or is declared bankrupt, the law regulates how such an organization exits from the business. Bankruptcy law under the Commercial Code provides the rules and procedures through which business organizations go when they are declared bankrupt. A business organization is established by registration upon their exit from business due to bankruptcy or any other reason registration of that business organization is canceled. This material (Brief) is prepared to give a brief on bankruptcy law under the new commercial code, which was adopted on March 25, 2021, by the Ethiopian Parliament. This brief also gives an overview of existing rules, and regulations under the new commercial code.  

                                                  Bankruptcy

Bankruptcy is the judicial process by which the debtor is found not able to meet his commitments towards his creditor. On the other hand, the Black‟s Law Dictionary defines winding up as: “process of settling the accounts and liquidating the assets of a partnership or corporation, for the purpose of making distribution of net assets to shareholders or partners and dissolving the concern.” What one can infer from this definition is that winding up presupposes a company or another business organization where there are shareholders or partners. The Commercial Code did not define the concept of bankruptcy. It simply dealt with the conditions of bankruptcy. There are two important conditions that need to be fulfilled for the existence of bankruptcy. The two conditions are suspension of payments and declaration of bankruptcy. In the absence of any of these two conditions there is no bankruptcy. In other words, the two conditions are cumulative rather than alternative. The objective of bankruptcy proceedings is to timely, efficiently and effectively organize the liquidation of the debtor’s business, whether by piecemeal liquidation or by a sale of business as a going-concern, in order to maximize the value of the assets available for recovery by creditors, to ensure for honest debtors a fresh start after a full discharge of their debts and to provide for sanctions against debtors and their management as well as creditors that are responsible for its bankruptcy.

                                          Conditions of bankruptcy

Any trader who has suspended payments and has been declared bankrupt shall be deemed to be bankrupt. Suspension of payments shall result from any fact, act, or document showing that the debtor is no longer able to meet the commitments related to his commercial activities.

                                           Opening of Bankruptcy Proceedings

Bankruptcy proceedings shall be opened upon the application of a debtor who has been in cessation of Payments. Debtors who have been in cessation of payments shall at the latest within forty-five days apply to court for the opening of bankruptcy proceedings unless the debtor has already applied for the opening of reorganization proceedings. Bankruptcy proceedings may also be opened upon the application of: a) persons who are jointly and severally liable with the debtor; b) one or more creditors whose claim against the debtor is due and payable; c) a liquidator appointed to liquidate the debtor’s business outside bankruptcy proceedings. In addition to his application, debtors shall submit documents listed under Article 637(1) of commercial Code. These documents are:

  • The last three balance sheets or financial statements of the business organization;
  • A profit and loss account;
  • A cash flow statement in order to demonstrate that the debtor is able to finance the observation period.
  • A list of commercial credits and debts to be collected, with the names and address of the Creditors and debtors.

Where the debtor is not in a position to provide the Court for a complete set of documents, the debtor shall explain the reasons in the petition. The Court may ask the debtor to submit any further relevant documents and may ask any third party to provide such documents, in particular banks and public administrations. The court may also initiate bankruptcy proceedings on its own motion where, as a result of proceedings against the debtor, it is apparent that the debtor is in cessation of payments. The court which has ascertained the debtor’s cessation of payments shall refer the case to the court that has jurisdiction to order judgment of bankruptcy, which is the Federal High Court, in light of Article 11 Sub Article (2) of Federal Court Proclamation No. 1234/2021. In addition to their application, creditors shall submit documents listed under Article 637 Sub-Article (4) of commercial code and may suggest the name of the person to be appointed as trustee in bankruptcy. These documents are: 

  • Evidence that creditors have a due and payable claim that has not been paid;
  • Evidence showing why the debtor was unable to effect payments;
  • Evidence showing the reasons why the creditor, using ordinary civil procedures could not or was no longer in a position to enforce his claims against the debtor;
  • Evidence showing that the debtor is in a situation of cessation of payments.

                                       Judgment of Bankruptcy

At first hearing, or, where appropriate, on receiving the report from the investigator the Court shall:

  1. declare the debtor bankrupt;
  2. appoint the supervisory judge
  3. appoint the trustee in bankruptcy for the conduct of the bankruptcy proceedings
  4. fix the date of cessation of payments, where the date has not been fixed in the context of reorganization proceedings

A judgment of bankruptcy against a business organization comprising joint and several liability partners shall result in the bankruptcy of partners; the assets of the firm and of the partners shall be dealt with separately and the bankruptcy proceedings shall be conducted separately.

                                   Notice to Creditors

Where an application for bankruptcy is filed by creditors, partners with joint and several liabilities or a public prosecutor, the Court shall notify the debtor of the application within seven days from the application. The debtor shall, within twenty days from the receipt of the application, submit his reply indicating his agreement with or opposition to the application of bankruptcy. The debtor shall submit the documents listed above and other supporting documents indicating whether he is in cessation of payments. Where the debtor admits the cessation of payments, the debtor shall indicate whether his business can still be eligible for reorganization proceedings or should go to bankruptcy proceedings.

                      Opening of Bankruptcy Proceedings after Death

A debtor, whose registration has been struck off the commercial register may be declared bankrupt where such trader has been in cessation of payments within one year from the date he was struck off from the register. Where the trader was not registered in the commercial register, he may be declared bankrupt at any time after the cessation of payments.

                                    Publication of Judgments

Bankruptcy judgments shall be publicized according to Article 648 of the commercial code. The judgments rendered on bankruptcy shall be publicized by the registrar of the court by means of notices posted at the entrance of the Court and by an exact publication in a newspaper of wide circulation in Ethiopia. The court’s registrar shall ensure that the judgment rendered for opening reorganization proceedings is entered in the commercial register in accordance with the relevant laws.

                                                Conclusion 

Ethiopian Bankruptcy Law is the least known and hence the least practiced in Ethiopia. There have been relatively few bankruptcy cases since the Commercial Code went into effect in I960. This brief provided a general overview of Ethiopian bankruptcy law under the new commercial code. Bankruptcy, as a judicial process, passes through several stages and processes until the final process is finalized. Different parties and bodies also participate in and conduct this judicial process; each of these parties has their own respective duties and responsibilities in this process. This brief highlights the duties and responsibilities of these different parties and bodies during this judicial process under the new commercial code. Like entry, exit from business is also subject to regulation because, unless it is strictly regulated, the interests of different parties may be affected; hence the law provides strict regulation. This brief also provides a general overview of this regulation, procedure, procedure and material required, and duties of each party during this judicial process of bankruptcy.

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Residential Care Facility: A Temporary Shelter for Children in Need

By DMLF

The Ethiopian Ministry of Women and Social Affairs(MoWSA), introduced in October 2023 “Alternative Childcare and Support Directive Number 976/2023” (hereafter the Directive). The Directive adds a new form of child care support service, namely residential care. The preamble of the Directive stresses the increasing number of children in Ethiopia facing natural and man-made disasters. As a result there is the need for alternative childcare and support systems. Therefore it became necessary to provide standardized and comprehensive childcare and support for these children. Identifying current alternative support and care mechanisms are found scattered in different documents and legally not binding making implementation difficult. Hence this Directive attempts to gather up scattered child support and care systems into one document and developed a comprehensive directive that encompasses all alternative childcare services in this Directive.

The  Directive sets out and recognizes three sorts of alternative care. The first are family based care namely family preservation and strengthening, reintegration and reunification, kinship care, foster care and adoption. The second type of child care is categorized under community-based care. Last but not least is residential care. Our focus shall be on residential care.

Residential Care is defined as  an establishment founded by a governmental, a non-governmental organization or individuals according to appropriate procedures that provides care in any non-family-based group setting but does not include boarding schools.

All residential care facilities including community integrated childcare facilities must be registered in accordance with government directives contained in the Organizations of Civil Societies Proclamation 1113/2019. The Directive prohibits any organization not to operate as a residential care facility unless it has received prior approval from the MoWSA or the relevant licensing authority to operate a residential care facility.

The objective of residential care is to provide short-term alternative care. The short term support includes catering  for the basic and psychosocial needs (food, shelter clothing, education, sanitation, and health, play and recreation, counseling, emotional needs as well as social interaction) of children in the residential care institutions for their holistic growth and development. In addition to this the residential caregiver shall opt for the child’s reintegration within their family or, where this is not possible or in the best interests of the child, to secure their safe, stable, and nurturing care in an alternative, family-based care arrangement. Residential care shall in no way, irrespective of size, be viewed as a way to fulfill a child’s right to live in a family environment.

Where the reunification of a child with his parent(s) or placement in kinship care is not possible or suitable and in the best interests of the child, another form of alternative family-based care shall be sought. Where appropriate and desirable, such alternatives include foster care, or facilitating local adoption services for children who cannot be raised by their own families. Children aged below three (3) years should not be admitted to residential care facilities in line with international best practice, unless this is strictly temporary with the view to foster care placement or another community-based placement as soon as possible

Moreover, should there be any need, children and young people who have left the residential home should have the opportunity to receive assistance and support after they have left care for up to three years. The residential home must designate a staff member to contact the care leaver at least quarterly to establish whether advice or support is required. The frequency, however, will be determined by the case worker based on the individual needs of a child.The residential home should have an open-door policy. Children and young people who have lived there can always return to the residential home for advice and support, provided it remains operative.

The scope of the Directive extends to apply to all appropriate Federal and city administration Government institutions, charitable organizations, relevant stakeholders, and alternative childcare service providers authorized to provide childcare services as per the requirements of the Federal Government. It is advised based on this Directive, that regions and city administrations adopt or prepare their own contextualized Directive. However, the Directive shall not apply to institutions for child juvenile offenders.

In conclusion, residential care is introduced as a temporary alternative child care and support mechanism. Residential care objectives coincides to certain extent with private or government orphanages. The  Revised Family Code Proclamation No 213/2000 on Article 192 provides that government or private orphanages may give any child under their custody to adopters. In addition to this the orphanage before giving the child for adoption, provides sufficient information to the government organ having authority to follow up the well being of children as to the identity of the child, how the orphanage received him and about the personal, social and economic position of the adopter. Residential care does the same. The Directive seems to purposely ignore the word ‘orphanage’ and also opted to come up with a different term that partly encompasses the task of ‘orphanages’ namely ‘residential care’.

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Capital Market Service Providers Licensing and Supervision

By Dagnachew Tesfaye, Managing Partner at DMLF

Introduction

The Ethiopian Capital Market Authority (ECMA) has been authorized by Capital Market Proclamation Number 1248/2021 to regulate the capital market in Ethiopia. Accordingly ECMA issued a directive namely Capital Market Service Providers Licencing and Supervision Directive No 980/2024(hereafter the Directive). The Directive became effective in January 2024, as the Directive is registered by the Ministry of Justice and posted on the website of ECMA. The Directive contains 21 Parts with 183 Articles and three schedules. This article shall provide a general view of each Part of the Directive and the schedules attached to the Directive. A brief conclusion shall follow.

The 1st Part of the Directive is about definition of words and terms as well as scope of the Directive. Part 2 covers Licencing of Capital Market Service Providers. There are 15 designated capital market service licenses. These include Service Brokers; Securities Dealers; Security Digital Sub-brokers; Investment Banks; Securities Investment Advisers; Securities Shariah Advisors; Securities Robo Advisers; Collective Investment Scheme Operators; Crowdfunding Intermediaries; Securities Market Makers; Security Custodians; Securities Portfolio Managers; Credit Rating Agencies; Securities Appraisal Firms and Appointed Representatives. When the applicant is a share company or private limited company, such companies need to have a Board of Directors that will be responsible for its governance. There is a fee to be paid to acquire the license as determined by the Fee Directive of ECMA.

Part 3 deals with General Obligations and Responsibilities of the capital market service providers. Among the several obligations and responsibilities, one obligation is to maintain minimum net liquid capital to meet its base and risk requirements.

To deal with contravention of the provisions of the Directive, Part 4 outlined Enforcement and Administrative Measures. Part 5 covers Voluntary Exit from the Market by relinquishing the service license.

Part 6-16  lists eligibility requirements for each  type of  capital market service licenses. Some licenses are open for individuals, limited liability partnerships, limited partnerships, general partnerships, private limited companies or share companies and few others are restricted for only share companies and private limited companies.

Part 17 deals with Minimum Capital Requirements for capital market service providers. To obtain the license to operate as a capital market service provider, the minimum capital in cash has to be deposited in a licensed commercial bank in Ethiopia. The net shareholders’ fund or partners’ fund or net worth has to comply with Schedule 1 of the Directive.

Corporate Governance for Capital Market Service Providers, Competency Framework for Capital Market Service Providers  and Code of Conduct are covered in Part 18-120 respectively. 

Finally Part 21 namely Miscellaneous Provisions contain principles about circulars and notices, inapplicable laws and effective date of the Directive. Schedule 1 is about Minimum Capital Requirements. Schedule 2 deals with Capital Market Service Providers Functions and Competency Requirements and Schedule 3 covers Penalties, Fines and other Enforcement Actions.

Conclusion

The Directive identifies 15 different types of capital market services licenses. The Directive has stipulated the functions, authorized activities, related governance and ethical principles in regulating capital market service providers. The Directive embodies detailed rules on how to obtain a license and responsibilities and obligations of licensed service providers. As the Director General of ECMA said ‘ this Directive is a significant milestone in the development of the capital market in Ethiopia’.

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Revisiting the Maritime Code of Ethiopia

By Mahlet Mesganaw, Partner at DMLF

The Maritime Code of Ethiopia was promulgated on the 5th of May 1960 by Proclamation No 164/1960. The Preamble of the Maritime Code provides the following: ‘ whereas the development of the ports of our Empire and the expansion of our merchant navy requires a comprehensive maritime code be enacted’ therefore this Maritime Code is proclaimed.

The Maritime Code is divided into 371 Articles in total apportioned into 9 Titles namely: Ships (I); Shipowners, managers and the master (II); Regulation of maritime employment (III). Contracts relating to the use of the ship (IV); Maritime collisions, assistance, and salvage (V); Participation in general average (VI); Insurance (VII); Penal provisions and (VIII); Miscellaneous. 

Under Title I, Ships, there are 7 chapters that deal with Nationality of Ships, Ownership of Ships, Maritime Liens and Mortgage of a Ship, Registration of Ships and of Rights of Rem relating to the Ship and Arrest of a Ship.

Title II is about Shipowners, Managers and the Master. There are two chapters that deal with Liability of Shipowners and Managers, and the Appointment and Duties of the Master.

Title III provides Regulation of Maritime Employment. The seaman includes persons employed or engaged in any capacity on board any ship (except masters, pilots and apprentices duly indentured and registered).

Title IV deals with Contracts Relating to the Use of the Ship. One party may undertake to procure to the other party the possession of a ship for a definite period subject to payment of a rent. So this title deals with the rent, contract of affreightment  and carriage of passengers. 

Title V is focused on Maritime Collisions, Assistance and Salvage at sea. Any collision between ships, the compensation due for damage caused to the ships, or to any property or persons on board thereof, shall be settled in accordance with this Maritime code provisions. Every act of assistance or salvage which has been successful shall give a right to equitable remuneration which shall not exceed the value of the property salvaged.

The next title, Title VI deals with Participation in General Average. There is a general average act when and only when any extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure.

Title VII is about Insurance. Any policy of insurance having its principal object to guarantee a maritime risk, including collateral risk, shall be subject to the provisions of this title. This Title is divided into four chapters that deal with contracts of insurance, rights and obligations of the assured and the Underwriter, settlement of damage and period of limitation.

Title VIII focuses on penal provisions. Any person who contravenes the provisions of this code or regulation made there under shall be subject to penalty in the form of fines ranging from Eth $2000-500.

The final Title IX deals with miscellaneous provisions concerning definitions and regulation making power.

Thus, the Maritime Code of Ethiopia with 371 articles, 9 titles still governs the maritime legal relationships of the persons, properties, rights and obligations involved in maritime trade.

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Classified Information in Ethiopia

By Dagnachew Tesfaye, Managing Partner at DMLF

There was a legislative need for classification, declassification and handling of national security information generated by the Ethiopian government and its employees and contractors as well as information received from other governments. Hence the Council of Ministers on September 6,2023 has issued ‘Government Secret Information Classification and Protection Regulation No 539/2023 (hereafter the Regulation). The National Intelligence and Security Service (NISS) is entrusted with oversight of the implementation of classification and protection of information carried out by government bodies.

Ethiopia has four levels of classification: Top Secret, Secret, Confidential and Restricted. Each level of classification indicates a decrease in degree of sensitivity. 

The classification of information shall be done by the government body whom the information generates or obtained in the course of performing its duty. However NISS may classify top secret information.

Classified information shall be accessible only to persons with security clearance to the extent necessary to perform their duties.

Declassification or revision of classified information shall be done by the government body that classified the information. As an exception, declassification for top secret information shall be done by NISS. As a rule any information cannot be kept classified for more than 30 years. However the government may request non-declassification with reasonable grounds and make the information remain classified. On the other hand classified information shall be reviewed every 10 years with a possible extension for force majeure up to a period not exceeding two years.

Thus Ethiopia has embarked up on a system that enables the classification of government secret information with clear, uniform and accountable legislative rules. Such measures shall ensure the country to be protected from threats posed on national security and interest.

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Few Highlights on Defense Forces 

By Mahlet Mesganaw, Partner at DMLF

The FDRE Defense Force Proclamation No 1286/2023 ( the Proclamation), done as of September 19, 2023, repealed Defense Force Proclamation Nos. 1100/2019 and 1232/2021, for the purpose of consolidating laws on retirement age, rights, benefits and incentives for defense forces, national recall and medals and certification.

The Proclamation embodies seven parts and 87 articles. 

The FDRE Defense Force is organized to fight in 5 domains namely on land, air,  naval, cyber and space. The mission includes to defend the sovereignty of the nation, the constitution and constitutional system against any threats and attacks by foreign invaders as well as internal anti-peace elements. The defense forces have also the obligation to defend and protect the lives of the people, public and governmental institutions and developmental infrastructures from man made and natural disasters.

Depending on the rank from private to field marshal, the retirement age ranges from 45-60 years. There is a possibility of extension for further two years twice, with the possibility of unlimited extension for field marshals.

When the sovereignty and integrity of the nation is threatened, any member of the defense forces who has been discharged honorably may be recalled to return to active duty.

Any assignment to a military position or promotion to a higher military rank shall be on the basis of competitiveness and merit. Promotion shall ensure equitable representation of all the nations, nationalities and peoples and women.

The Proclamation has established military justice organs. These are the military police, the military investigators, the military prosecutors, military courts, military defense council and military prisons. On Article 42, the Federal Supreme Court is granted power of cassation over any final decision of the military court which contains basic errors of law.

There are medals and certificates awarded to those members of the defense forces for outstanding heroism. Amongst the medals, the Distinguished Medal of the Black Lion and the Medal of the Victory of Adwa are the highest awards given by the government.

Finally the Ethiopian Army Day shall be celebrated annually on October 25 as a National holiday.

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Agricultural Production Contracts

By Dagnachew Tesfaye, Managing Partner at DMLF

Handshake. Two farmer standing and shaking hands in a wheat field. Agricultural business.

Agricultural Production Contract Proclamation No 1289/2023(the Proclamation) done as of July 6,2023 governs the particular nature of agricultural produce including processed feed, seed, breed; of plant(cereals, pulses, oil crops, vegetables, fruits, root crops, spices, forage, non banned stimulants, industrial crops, forest and forest products and other cultivated crops), animal (cattle, sheep, goat, draft animals, camel, chicken, bee, silkworm, pig, and any others that can be domesticated in the future) and fish and their products in a raw or produced and processed form between a producer and a contractor with a comprehensive legal framework. Agricultural Production Contracts(APC’s) are defined as  agreements between agricultural produce contractor and producer that is registered by an appropriate body to register contracts. Within APC, there are four types of contracts. These are out-grower contracts, centralized contracts, multiparty contracts and intermediary contracts.

The Proclamation covers the contractual journey of producer and contractor from the start to the end. APC’s can start through written or oral offer and acceptance. Once the offer and acceptance are known, the APC’s shall be made in writing attested by 3 witnesses and shall be registered.

The content of the APC’s should reflect among others the names and addresses of the parties, the rights and obligations of the parties, type, quality and quantity of the agricultural produce and description of units of measurement, price and term of payment, system of transportation and related costs, the duration and validity date of the contracts, dispute resolution mechanisms.

Force majeure circumstances are redefined taking into consideration the particular relationship of the producer and contractor. Serious illness of producer, if he himself is responsible to perform, extreme high or low temperature, fire accident, earthquake or landslide, man made accident affecting more people including the producer and extreme animal or crop disease or pest outbreaks are the force majeure conditions included in the Proclamation.

Producer and contractor can agree on specific conditions that entitles them to terminate the contract. However, the party that terminates without mutual consent shall be liable to compensate the other party for the damage arising from termination of the contract. Council of Ministers shall determine the calculation of the compensation for damage due to termination by a regulation.

Disputes shall be first settled amicably. When amicable settlement fails to produce result, then the parties may agree to resort to mediation by a 3rd party or settle the matter by arbitration. Where the parties fail to resolve the dispute through mediation or arbitration, they may take the matter to court of law with relevant jurisdiction.

To sum up, APC Proclamation aims to modernize transactions in agricultural produce and bring the agricultural sector intertwined with customary practices to a level of standard laws and procedures of transaction. Due to this, the Proclamation declares that  no law or customary practice shall insofar as the laws are inconsistent with the Proclamation shall have no effect on matters provided in the Proclamation. The aim of the Proclamation is to bring the agricultural sector to a modern level of contractual agreement, ensuring  the sector benefiting itself and the agro processing transformation of the country.  

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