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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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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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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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By Dagnachew Tesfaye, Managing Partner at DMLF

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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By Mahlet Mesganaw, Partner at DMLF

The Ministry of Women and Social Affairs Directive on Alternative Child Care and Support, Directive No 976/2023 was issued in October 2023. The Directive shall enter into force as of the date the Directive has been registered by the Ministry of Justice and posted on the website of the Ministry of Justice and the Ministry of Women and Social Affairs.

As part of family based care systems, foster care is a temporary form of care where a child is placed by foster care provider to foster carer. The latter shall make an application to be registered as a foster carer by submitting an application to the relevant bureau. The foster care provider shall select, train and approve the foster carer. The foster carer cannot be the child’s parent(s), relative or guardian. Rather the foster carer is an outsider who is interested in undertaking care and maintenance of a child.

Foster care bases itself on a contract agreement. The foster care contract has to specify the rights and obligations of the child, the foster family, the biological parents(if alive) and of the foster family care service provider organization.

The foster care grants the foster parent the parental responsibilities of maintaining and caring for the child. However, a foster carer cannot take the foster child outside of the jurisdiction of Ethiopia without the approval of leave from a court of law. Such leave shall only be granted upon exceptional circumstances being shown. Which court has jurisdiction to hear such cases  i.e. the regional court or federal court is not mentioned. Principles and details of what constitutes an ‘exceptional circumstances’ to grant or disregard leave to travel  outside of the jurisdiction of Ethiopia have not been provided by the Directive.

The foster care applicants have to fulfill the following conditions: they should be Ethiopian nationals and solely resident in Ethiopia permanently. If they are foreign nationals of Ethiopian origin, they have lived in Ethiopia for at least two years preceding the foster care placement. The minimum age for a foster carer is 25 and above. If married, the spouse has to give full consent.The consent of any other member of the household may also be necessary, including that of the prospective foster parent’s children. In addition to these, documents such as Identification card or passport, marriage certificate, proof of income, police clearance certificate, medical certificate, two references of good character, photograph are required to be attached.

Long-term foster care is the placement of a child in foster care, potentially until the foster child reaches the age of 18 years.A short-term foster care, on the other hand, is a placement of a child in foster care for up to twelve months, upon which the placement can be renewed on an annual basis by relevant bureau or Child Protection Expert for up to three (3) years. Another form of foster care is emergency foster care. In emergency foster care, the emergency foster carers are willing to provide care and protection for the child with short advance notice or on the same day or less than 24 hours. Emergency placement is established for up to ten (10) to fifteen (15) days prior to review by a Child Protection Expert, after which the placement may be converted into short-term foster care as suitable and necessary.

Hence, foster care has been recognized as one form of family based care services. However due to foster care’s temporary nature, at least long term foster care  is a recommended form of family care  after reunification with birth parents, or placement in extended family or adoption.   Community based care or residential care is treated as a  last resort. 

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By Dagnachew Tesfaye, Managing Partner at DMLF

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

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

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

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

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By DMLF Team

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

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

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

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

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

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

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

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

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

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

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

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

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

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By Dagnachew Tesfaye, Managing Director at DMLF

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

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

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

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

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

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

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

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

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

By Mahlet Mesganaw, Partner at DMLF

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

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

Family Preservation and Strengthening 

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

Reunification and Reintegration

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

Kinship Care

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

Foster Care

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

Adoption

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

Community Based Care: Supported Independent Living

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

Residential care

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

Summary

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

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