Ethiopian judicial federalism: emphasis to judicial power of oromia courts on commercial disputes in line of fdre constitution

Abstract

Litigation is dominant mechanisms serving for solving commercial disputes in Ethiopia, where others such as negotiation, conciliation, commercial arbitration and similar are less developed and very limited to regulate disputes arising in domestic commercial business transactions. Such commercial litigations need to be regulated by establishing appropriate regal and institutional frameworks. Hence, having; accessible, effective, well organized and independent judiciary is very important in this regard. Governing procedural laws also need to be clear, comprehensive and consistent to relevant constitutional provisions. In the existing judicial federalism of Ethiopia, the judicial powers are constitutionally allocated to both federal and state governments on the matters related to their jurisdictions. The constitution provides that both federal and state governments are allocated powers to enact their respective laws that define the judicial jurisdiction of their respective federal and state matters without clearly demarcating their powers. However, the existing Ethiopia legal frameworks lack clarity and constitutional validity with respect to defining the elements of federal matters and state matters that underline the distinction of federal courts and state courts judicial powers, respectively. In particularly some provisions federal courts proclamations and some relevant binding cassation decisions of Federal Supreme Court defining elements of federal matters by unilaterally taking selective matters including commercial and company matters to establish exclusive original judicial jurisdiction of Federal Courts. In doing so, they indirectly restrict the original judicial jurisdiction of regional state courts. These on the other hand questions the constitutionality and validity of such legal provisions of federal laws or cassation decisions. In this doctrinal research, the paper critically examines the constitutionality of the provisions of such federal laws and relevant binding decisions. The study is conducted by analyzing relevant selected laws from the legal framework of the Federal and Oromia State governments that establish and define their respective original judicial powers over disputes involving commercial and company matters alongside with their constitutional validity and reasons justifying their impacts on the promotion of private sector commercial business activities for economic development. Findings show that the unilateral acts of federal government manifesting superiority of federal laws over state laws within certain provisions of federal laws with out constitutional grounds. Additionally legal effects of restricting the original judicial powers of States’ Lower (Woreda) Courts are also unjustifiable and inappropriate, in terms of encouraging the development of commercial business activities. Because such lower state courts are locally very accessible to provide speedy and effective justice services. Such indirect restrictions by federal laws are also not in line decentralizing powers to realize judicial federalism.