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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

OATH IN OROMIA COURTROOMS: ACRITICAL DISCOURSE

ANALYSIS
Adugna Barkessa*

ABSTRACT

This article analyzes the oath currently in use in the Oromia courtrooms. The
analysis mainly aims at examining the oath from the language as a social
practice view point which depicts what users do with their language, and what
language use does for its users. Its specific objectives include describing the
linguistic devices the oath employs, exploring the discursive strategies it
comprises, and explaining the nexus between oath, ideology and power in the
attempt to boost the presentation of facts about cases. To attain these objectives,
descriptive-interpretive design and qualitative methods which are social
constructivism in orientation were employed to collect and analyze oath used in
the study. Non-participant observation was the sole instrument employed to
attend and record the oath judges prescribed to witnesses before the specific
provision of testimony about the cases they saw or heard. The data recorded
were changed into written Afaan Oromoo, translated into the English language
and analyzed thematically. Fairclough’s (1992) model of discourse analysis was
used in the analysis. The findings show that abstract and concrete words,
antonyms, repetitions, pronouns, conjunctions, parallel expressions, metaphors
and speech acts (promising and self-cursing) are the dominant linguistic devices
used in the oath. The main discursive strategies employed in the oath include
authoring, associating, intensifying, self-mentioning and total submission. The
devices and strategies used in the oath aims at impacting the mental spaces of
witnesses by magnifying the negative consequences of perjury crime supposed to
be happened on their livelihood source, offspring, dwelling and peace. They try
to make witnesses accountable for the information they provide about cases.
They also attached the values of telling truth and lie to the customary spiritual
ideology and authority to which the witnesses are socialized their culture to
provide truthful testimony.

Key words: Courtroom Discourse, Critical Discourse Analysis, Language and

Law, Oath, Witness Oath

____________________
*BA (Jimma University); MA (AAU); PhD (AAU); Asst. Professor of Applied Linguistics
and Development at AAU; Email address: barkiikoo2011@[Link]

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1. INTRODUCTION

This article examines the oath-swearing practice currently in use in the

Oromia courts dealing with civil and criminal cases. Oath-swearing, the main
focus of this article is religious by its very character. The development of its
religious character flashes back on the pre-constitutional and the
constitutional eras where supernatural being was supposed to have a magic
power and principle that govern the whole life of people.1The development
of oath-swearing is interlocked with religion which in turn is closely linked
to law. 2 According to Currie and de Waal3, religion played significant roles
in the development of law. In the courtroom of many countries, oath-
swearing practices mainly take place for legal purpose as part of the
procedure of trials to take actions.4It is believed that for the fear of divine
retribution, swearers may refrain themselves from deigning to lie.5

However, the legal system of constitutional era is mostly non-

accommodative to the diversified practices of religious faiths among the
societies across the world. Unlike the pre-constitutional era where customary
religious tradition, rules and principles govern customary system, the legal
system is exclusive due to the religious ideology of the group occupying
socio-political power in different nations.6Thus, the constitutionally
implanted religious ideologies into the legal systems excluded the customary
religious practices of the respective societies. Oath-swearing is one of the
customary religious practices of social groups influenced by the ideologies of
the selected religions fixed into the legal systems of nations. 7 The oath-
swearing practices allowed in the legal systems of Ethiopia are not
exceptional. The ideologies of Christianity and Islam implanted into the legal
system of Ethiopia during the imperial regime, have dominated the
customary oath-swearing practices of the people in the country. As a result,
1
Bothama, F., A legal History of Oath-swearing (Unpublished MA Thesis, 2017).
2
Ibid.
3
Currie and de Waal the Bill of Rights Handbook 3; Devenish 2012 Fundamina 3.
4
See Bathama, supra note 1.
5
Milhizer, E. R., ‘So Help Me Allah: An Historical and Prudential Analysis of Oaths as
Applied to the Current Controversy of the Bible and Quran in Oath Practices in
America,Ohio State Law Journal(2009), Vol.70, No.1, Pp1-71.
6
Ngong L. Studies in World Christianity; World Religions: African Traditional Religion
(2009), Pp 46-63.
7
Ibid.

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the swearing practice in the courtrooms of the country references only to the
faiths of the two religions using Amharic disregards the religious, linguistic,
cultural and social diversities prevailing in Ethiopia.8 The Gada System of
Oromo, though egalitarian by its character to protect justice9, is one of the
customary practices excluded from functioning in the formal situations of
decision-making by the religious ideologies fixed in the oath-swearing
practice of the Ethiopian legal system.

Following the change in political system from the socialist to the federal era
of Ethiopia, Nation, Nationalities and Peoples to the country are allowed to
exercise their languages in their respective courtrooms. However, the
ideologies of Christianity and Islam implanted in the assertory oath-swearing
practice to administer justice system in the courtrooms are continued to the
current judicial practices of the people. Until 2016, it was common for all the
regions in Ethiopia to practice oath-swearing in the names of God holding
Bible or Allah holding Quran. From that year on wards, oath-swearing
practices in the names of both religions in some of the Oromia courtrooms
were replaced by cultural oath of the Oromo people. Courtrooms judges of
the region have started ordering witnesses to practice the selected customary
oath as a solemn pledge to attest statement of truth about the case they see,
hear or know.

This study analyzes the oath from the language use view point in which a
Critical Discourse Analysis (henceforth CDA) is the approach employed to
describe the oath text and interpret the context in which it is consumed, and
unmask the ideology and power relations embedded in it. The approach
opens room to disclose the power relations fixed in the production,
regulation and consumption of the oath-swearing practices in the legal
milieu10. It explains the ideology guiding the discursive repercussions of
realities presented in and through the oath.11According to Van Dijk, “CDA is

8
Kumsa, A., The Oromo National Memories in RUDN Journal of Sociology (2019), Vol.19,
No.3, Pp 503-516.
9
Asafa J., The Oromo Struggle: Knowledge and Oromo Agency in the Age of Globalization,
Journal of Oromo Studies (2018), Vol. 25 (1and 2), Pp 25-61.
10
Gee, J. How to Do Discourse Analysis. A Toolkit (New York and London: Rutledge,
2011).
11
For example, see Hyland, K., Meta-discourse. Continuum Guides to Discourse (London,
2005).

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a type of discourse analytical research that studies the way ideology and
identity are produced and (re)enacted in social and political, legal texts and
contexts”.12 He also states that CDA is a problem-oriented approach which
systematically explores the interconnection between events and texts of
wider socio-political structures, and uncovers the opaque as well as
transparent relationships of dominance and discrimination used through
discourses.13

2. OBJECTIVES AND METHODS

The general objective of this study is to examine the assertory oath-swearing

practice currently used in Oromia courtrooms when dealing both civil and
criminal cases The specific objectives include describing the linguistic
devices employed in the oath, exploring the discursive strategies it
comprises, and explaining the nexus between oath, ideology and power in
the presentation of facts about cases in the legal proceeding. To attain these
objectives, descriptive-interpretive design and qualitative methods which is
constructivist in orientation14 are used to frame the data collected and
analyzed in the study.

In 2019, I and two of my colloquies had been called to Sululta court to

witness for a civil case. In the meantime, the courtroom judge had prescribed
us the oath under this study which we had never practiced before in such a
legal context before uttering what we knew about the case. That was the time
when the oath attracted my attention to analyze it from the language use
perspective. To identify weather or not the oath is used for other case
(criminal, labor, etc.) in the courtroom and in the other courtrooms of the
region, the researcher selected three courts, namely Sululta, Sabata and
Burayu using a purposive sampling technique. The oath was collected in
between 14 December – 4 March 2019 from these courts using a non-
participant observation.

12
Ibid.
13
Fairclough, N., Critical Discourse Analysis: The Critical Study of Language (London:
Longman, 1995)
14
Creswell, J. W., Research Design: Qualitative, Quantitative and Mixed Methods
Approaches (London: Sage Publication, 3rd ed., 2007).

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

In consultation with judges of the courts selected, the dates arranged for
witnesses to give evidence about cases were identified to attend the oath. On
the dates identified, the oath prescribed by the judges and repeated by
witnesses was recorded based on permission of the judges. The oath recorded
was changed into written Afaan Oromoo using line based transcription
system15. The transcribed script was translated into the English language and
analyzed thematically. Fairclough’s tri-dimensional model of CDA was
employed in the analysis16. The analysis begins with describing the linguistic
devices identified from the oath. The description was amalgamated with their
context of use for interpretation. Finally, the analysis ends with explanation
of the oath to uncover the ideology and power relations embedded in the
oath.

Systemic Functional Linguistics (SFL)17 and Speech Act Theory (SAT)18 are
the theories adapted to frame this study. According SFL, language use is
neither neutral nor innocent; but it is ideologically (re)charged. In this
regard, the theory enables me examine what the judges intend to do with the
oath they administer to witnesses, and how the use of the oath to ensure the
provision of truthful testimony about cases on trial. The use of SAT gives
room to examine what judges and witnesses do with the words and
expressions of the oath in connection the information required to give
decision. Both theories frame the formal description, the contextual
interpretations and the social explanations of the oath this study attempted to
do.

3. COURTROOM DISCOURSE AND DISCURSIVE PRACTICES

Courtroom is an institution where defendants and claimants present their

conflicting sets of ideas, witnesses testify about the cases they witnessed, and
judges make decisions based on the evidence they collect from different

15
Chafe, W., The Analysis of Discourse Flow in Schiffrin, D. Tannen, D. and Hamilton H.
E. (eds.),The Handbook of Discourse Analysis (2001), Pp.673–687.
16
See Fairclough, Tridimensional Model (Description, Interpretation and Explanation) of
CDA to systematically reveal ideological and power relations embedded in textual,
discursive and social practices of a given group(1992).
17
Ibid.
18
Ibid.

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sources. It is the place where justice is central for decision making.19

According to Finnegan, courtroom is the stage for observing contesting
discourses about criminal and civil trials that enable judges identify facts
about cases to give decision.20

The comprehensive definition of discourse involves form and function of

both the verbal and non-verbal practices. This is because, in a real context,
one cannot communicate with form devoid of function, and function devoid
of form. In connection with this interlocking nature of form-meaning,
discourse is defined as “…the way of behaving, interacting, valuing,
believing, speaking, reading and writing that is accepted as instantiations of
particular identities by individuals or groups.”21 Gee argues that discourse
encompasses both the forms and functions of textual and non-textual means
people use in their lives. This study sees discourse as the way we produce,
comprehend and reflect realities in a legal system. It refracts and reflects the
meanings courtroom actors intend to communicate in and through oath-
swearing practice. All the interactions between actors and their intentions
can be concluded as courtroom discourse.

Courtroom discourse, as a subgenre of discourse, is used in the process of

fact finding and decision making about cases individuals and/or groups
brought to courtroom for legal resolution.22 It comprises both the verbal and
the non-verbal actions and interactions between the claimants, defendants,
witnesses and judges involved in the process of decision making about cases
on trial.23Oath-swearing is one of the courtroom genres practiced in legal
decision-making system. It is usually prescribed courtroom judges and
applied by witnesses of the cases on trial, from the legal point of view, oath-
swearing is seen as an assertory action takes place in the procedure of

19
Milhizer, supra note 5.
20
For further details, see Finnegan, R. African Oral Literature: World Oral Literature
Series,’United Kingdom: Open Book Publisher, 2012), Retrieved from http:// creative
[Link]/licenses/by/3.0 /
21
See Gee, J. P., A Sociocultural Perspective on Opportunity to Learn (2008, p.3) for the
comprehensive definition and typology of discourse.
22
Van Dijk, T., Discourse as Social Interaction: A Multidisciplinary Introduction Discourse
Studies (London: Sage Publication, 1997).
23
See Rigney, A., The Pragmatics of Question/Answer Structures in A Bilingual Courtroom
(Paper presented at the Conference of the National Association of Judiciary Interpreters and
Translators, Seattle, USA, 1997).

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courtroom trial to obtain facts about cases.24 In this case, assertory oath-
swearing constitutes the crime of perjury, which can be seen as common law
and statutory perjury.25 Fom the view point of language use, oath swearing is
seen as language in the context of use, where it is considered as language as
a social practice. This view point, which this study mainly used to analyze
the oath text presented in the appendix, mostly focuses on what people do
with oath, and what the oath-swearing practice does for the users.

In courtrooms, the legal context is largely dependent on the discursive

practices (the courtroom drama) between the plaintiffs, defenders, witnesses
and judges. Discursive practice refers to the production, distribution and
consumption of a text (in this case, oath). It mainly shows what people do
with their language use and what language use does for its users in myriad
contexts.26 In both cases, language use is neither neutral nor innocent, but
ideologically (re)charged. Discourse constitutes and is constituted by
contexts where ideology is the guiding principle.27 Ideology determines the
power relations between discourse participants and the discursive strategies
they employed in their interactions with each other and with the contexts in
which the interaction takes place.28Discursive strategies are perceived as a

24
See Bathama,supra note1.
25
Common law perjury was the breaking of an assertory oath prescribed to be taken during
the course of civil and criminal cases. The statutory crime of perjury was the breaking of an
assertory oath prescribed by legislation which also prescribed the consequences of such
breaking (See Bothama, 2017).
26
In the late 1970s, following the paradigm shift from the objective to subjective view in
language study, considering language as a social practice is becoming more prominent than
considering it as a formal system and a neutral medium of communication that reflects the
social world. It is argued that language is an activity that people do in context where words
do not merely say but do something. This argument mainly opposes the disconnected and
decontextualized view of language as a system. Since language is its context of use, the
difference in the context is inevitably resulted in different ways people employ it to perform,
and the different roles the language performs for its users. Thus, language is seen as a part
of society; a form of social practice, and a socially conditioned process which is entirely tied
up with identity. See Austin, J.L., How to Do Things with Words (Oxford: Clarendon Press,
1962); Janks, H., ‘Critical Discourse Analysis As A Research Tool.’ Journal of Cultural
Politics of Education(1997), 18(3), Pp 329-342.;Fairclough, N., ‘Critical Discourse Analysis
and the Marketization of Public Discourse: The Universities in Discourse and Socity,
(1993), 4(2), Pp 133-66.
27
See Van Dijk, T. ‘Critical Discourse Analysis’, in Schiffrin, D. (eds.) Handbook of
Discourse Analysis (2001, p. 352), Pp.352-371. Oxford: Blackwell.
28
See Dettenwanger, S., ‘Witnesses on Trial: Address and Referring Terms in US Cases;
Cao, D., ‘Power of and to Language in Law,’ in Wagner, A. and Cheng, L.(edt.), Exploring

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

more or less intentional plans designed to achieve certain goals.29 They are
planned and used in both written and spoken text in accordance with the
functions intended to be achieved. In a courtroom, defendants and
prosecutors can use dissociative discursive strategy in their written and/or
spoken discourses to protect themselves from the potentially damaging
implications judges and their rivals may be raised. At the same time, they
can use an associative strategy which relates them to the potentially helpful
ideas for their arguments.30 Similarly, plaintiff and prosecutor in both civil
and criminal cases may use claiming and blaming strategies to win their
rivals and protect their rights respectively.31

The discursive strategy of presupposition also allows actors use the ideas and
practices as a springboard for their argument. There might be self-
mentioning strategy in a given text so that claimants, defendants and
witnesses show their explicit presence in cases a courtroom is
investigating.32 Judges also use cross-examining and relabeling strategies to
focus, conform and affirm admissibility of information about cases.33 Thus,
the discursive strategies and the corresponding functions and their linguistic
realizations the courtroom participants use are based on the existing contexts
of the legal system.

Linguistic devices realize the discursive practices and discursive strategies

employed in a communicative context, in this case courtroom. They are ways

Courtroom Discourse: The Language of Power and Control, (Ashgate Publishing Company,
USA, 2011).
29
Blackledge, A., Discourse and Power in A Multilingual World (Amsterdam: John
Benjamin, 2005).
30
Komter, M., Accusations and Defense in Courtroom Interaction, Journal of Discourse
and Society (1994), Vol 5(2), Pp 165-187; Dettenwanger, S., ‘Witnesses on Trial: Address
and Referring Terms in US Cases” in Wagner, A. and Cheng, L. (eds.) Exploring Courtroom
Discourse:The Language of Power and Control (2011).
31
Wodak, R. Rudolf, de C., Martin, R. and Karin, L., The Discursive Construction of
National Identity (Edinburgh: Edinburgh University Press, [Link]., 2009).
32
Kiguru, G., ‘A Critical Discourse Analysis of Language Use in Selected Court of Law in
Kenyan (Unpublished PhD dissertation, 2014)
33
O’Barr, W., Linguistics Evidence: Language, Power, and Strategy in the Courtroom (New
York:Academic Press, 1982); Roy, C., ‘Interpreters, Their Role and Metaphorical Language
Use’ in Looking a head: Proceedings of the 31st Annual Conference of the American
Translators Association, A. [Link] (ed), Medford, NJ: Learned Information (1990),
Pp.77–86.

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of using language to realize social, cultural and psychological realities that

frame and manfest the context.34 The devices include vocabularies,
grammatical features and rhetorical device. Vocabularies are the word forms
such as wording, collocation, synonyms, metonyms, etc. that discourse
participants use in their utterances to communicate their intended meanings.
Grammatical features realize the discursive practices and strategies used in a
discursive context. The devices comprise cohesive devices35, activation,
passivation, etc.36 Rhetorical devices, on the other hand, are linguistic mean
of persuading people to take specified actions which realize the intended and
used discursive practices and strategies people used in relation to the context
which they interact with.37 They realize experiential and relational values
and mostly used as art of speaking.38 Therefore, rhetorical devices are the
productive and alternative ways of using language to describe, construct and
argue circumstances in which people live. Circumstances that are the focus
of rhetorical devices include political, social, legal, etc. that individuals or
groups prefer to explicitly and/or implicitly compare arguments based on
similarities and differences of ideas and actions, and replace personal entity
with impersonal entity based on their relations. Thus, the oath encompass
these rhetorical elements to present arguments for and against the cases on
trial.

The literature reviewed on the courtroom interaction so far shows the

interlocking nature of forms and meanings of texts and contexts of legal
decision making. It indicates the discursive practices, strategies and
linguistic devices produced and used by courtroom actors in the discourses
of dispute and its resolution mechanisms to valuate, devaluate and revaluate
arguments about cases for legal jurisdiction. This article describes, interprets

34
See, Kwon, W, Clarke, I. and Wodak, R., Micro-level Discursive Strategies for
Constructing Shared Views around Strategic Issues in Team Meetings,Journalof
Management Studies(2013), DOI:10.1111/joms.12036.
35
Cohesive devices are discourse markers that establish connection through backward,
forward and outward tiesto express certain meanings which presuppose and /or entail the
presence of other components in a text.
36
McCarthy, M. J., Discourse Analysis for Language Teachers (Cambridge: Cambridge
University press, 1991);Halliday, M.A.K. and Hasan, R., Language, Context and Text:
Aspect of Language in a Social Semiotic Perspective (Oxford: Oxford University
Press,1989).
37
Zaleska, M.,Rhetoric and Politic (Cambridge: Cambridge Scholars Publishing, 2012).
38
Fairclough, N, Supra note 13.

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and explains the discursive strategies and linguistic devices used in the oath-
swearing practice serving in Oromia courtrooms since 2016

4. RESULTS AND DISCUSSIONS

This section discusses findings of the study. The discussion was made on the
major themes identified from the oath in connection with the objectives set in
section 2. One of the themes is the linguistic devices employed in the oath.
The oath contains abstract and concrete words, antonyms, repetitions,
pronouns, conjunctions, parallel expressions, metaphors and speech acts.
These devices advocate the provision of desirable information about cases in
the courtrooms. The next subtopics discussed these linguistic devices using
illustrative examples taken from the oath presented in the appendix.

4.1. CONCRETE AND ABSTRACT WORDS

Concrete and abstract words build both semantic and pragmatic meanings of
a text. Semantically, concrete words refer to something that we can have
immediate experience of them through our senses and the actions we do. It
signifies all the tangible qualities of things we can experience directly
through our senses or actions. Abstract words refer to intangible qualities,
ideas, and concepts which we know only through our intellect.39
Pragmatically, text producers and users employ concrete and abstract words
to communicate both transparent and obscured textual, contextual and social
meanings.40 The abstract words identified from the oath employed in Oromia
courtroom presents concepts like truth and its relations with the beliefs in
supernatural being. The concrete words used in the oath refer to objects and
actions which concretize the beliefs about truth in the Oromo people. Both
the abstract and concrete words used in the oath show the beliefs and
practices of telling truth among the society. In what follows, the words
extracted from the oath text presented in the appendix refer to this point.

39
Pollock, L. ‘Concepts and Concreteness in Psycholinguistics (Unpublished PhD
Dissertation, 2017); Brysbaert,M., Warriner, A.B., Kuperman V., Concreteness Ratings for
40 thousand generally known English word lemmas. Behav. Res. Methods (2013), 46, 904–
911.[Link]
40
Fowler R.., Language in the News (Discourse and ideology in the Press, London:
Rutledge, 1991).

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(1)

Abstract words Gloss Concrete words Gloss

(1) dhugaa … soba … ‘truth…lie’ (9) … guddate … ‘…grew…’
(5) Waaqa… ‘God’…’ (11) … mul’ate … ‘…visible…’
(17) …[Link] … bofa … ‘… home, snake…’
(19) … booyyee ‘…pig….’
(21) … dhala …. ‘…offspring…’
(28) …faca’e … ‘…sown….’
(30) … marge …. ‘…germinate….’
(34) …ija …. ‘…seed….’
(48) … mana … ‘…house…’

The abstract nouns dhugaa ‘truth’and soba ‘lie’ present the desirability of
telling the truth by contrasting it with the undesirability of telling a lie. The
use of the noun Waaqa at the beginning of the oath intimidates witnesses in
the name supernatural being not to give false information about a case.
Witnesses are expected to declare their integrity to truth before testifying
about a case under investigation in the name of God wrath. The concrete
nouns denoting the properties believed to be influenced by God’s
punishment, in case witnesses tell lie, include qe’ee ‘home, dhala
‘offspring’, ija ‘seed/product’ and mana ‘house’. These nouns denote the
basic foundations of life of the Oromo society. The choice of these nouns
over the other words is to declare commitment to tell truth by reference to
the foundation to witness’s life. The Oromo use the expressions qe’ee
abbaabayyuu koo‘my ancestor’s home’, dhala koo ‘my offspring’, ija godhu
‘bear a seed/offspring’ and mana koo ‘my house’ to demonstrate their
attachment to the entities the nouns denote. For the people, the loss of these
entities is as painful as the loss of life. Thus, for the Oromo swearing in the
names of these entities is an assumption that their statement would amount to
tell truth. Likewise, using concrete nouns which denote bofa ‘snake’ and
booyyee ‘pig’ (17 and 19) which have enmity and gluttonous behaviors is to
control witnesses to tell fact about cases. Witnesses call God’s action to
bring these impersonal characters on themselves if they perjury.

The verbs faca’e ‘sow’, marge ‘germinated’, guddate ‘grew’ and mul’ate
‘became visible’ used in (9, 11, 28 and 30) of the text represent concrete

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actions. The actions are related to human and non-human growths which
overtly show the bad future wished for the offspring and seed of a witness
who tell a lie, conversely demonstrate a good future wished for he/she who
tell the truth a case on trial in the courtroom. Specifically, the use of the
verbs seems to whish self-perpetuation and sufficient subsistence for a
person who tells truth, and the reverse for those who speak a lie about a case.
In the perspective of functional grammar, such lexical items are also names
‘active words for they are triggering physical actions, and mainly emphasize
on what words do rather than on the traditional grammatical descriptors.41

4.2. ANTONYMS

Antonyms are the other lexical units identified from the oath used in Oromia
courtrooms as an alternative way of discursively enforcing witnesses to give
truthful testimony. Antonyms are words that are opposite with respect to
some components of their meanings. It is argued that antonyms show
disagreement with or present contradicting argument to a presupposed
context.42 Semantically, antonyms show linguistic opposition, whereas,
pragmatically, they indicate context opposition as presented in the example
below.
(2)

(1) Dhugaa … soba …. ‘…truth; … lie’

(23) Dhugaa … soba …. ‘… truth; … lie’
(39) Dhugaa … soba …. ‘… truth; … lie’
(51) Dhugaa …. soba …. ‘… truth; … lie’

The paired words dhugaa vs. soba reiterated in the lines are opposite in
meanings. The reiteration shows the emphasis to telling truth and lie – the
socially and legally desirable and undesirable verbal practices respectively.
The use of the words (true vs. false) with textually and contextually
contradicting meanings has direct influence on witnesses to agree with the
socially accepted and disagree with the unaccepted beliefs and practices.
Consistent with this discursive argument, Clancy states that the pragmatic

41
Blackledge, A., Discourse and Power in A Multilingual World (Amsterdam:John
Benjamins, 2005).
42
McCarthy, M.J., Spoken language and Applied Linguistics(Cambridge: Cambridge
University Press, 1998).

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use of words with opposite meanings challenge unacceptable and favoring

acceptable notions and practices in a given society.43 Thus, the antonyms
used in the oath encourages witnesses telling truth and discourages them
telling lie about cases.

4.3. REPETITION

Repetition refers to the reoccurrences of words, phrases and clauses which

mean the same things. In the literature on discourse study, repetition is seen
as one of the pragmatic devices which keep text coherence and yield effects
on social actors and actions through text.44The repetitions range from sounds
to sentences to mainly focus on the necessity of telling truth, and the beliefs
about the repercussions of speaking a lie. In what follows, repetition of the
sounds comprised in the lines of the oath text was discussed.
(3)

(33) kan daraare ija hingodhatin

(35) kan ija godhate hinyaatamin
(37) kan nyaatame naaf hinsifaa’in
(44) nagaan mana kootti na hingalchin
(45) yoo na galche, nagaana hinbulchin

The forms made bold in the lines of text (3) show repetitions of both
consonant and vowel sounds. The repetitions include consonance, alliteration
and assonance.45 In the case of consonance, /n/ is reiteratively used at the
end of each line of the text. The sound is also reiterated at the beginning of
some words of the text (44 and 45). Similarly, the vowel sounds /a and aa/
are repeatedly used in the text. Our main concern here is not what but why

43
See Clancy, B., ‘From Language as A System to Language As A Discourse (2018)
available on:[Link] .
44
Fayyadha, H. M., A discourse Analysis of the Linguistic Strategies in the Debate between
Moses and Pharaoh, Journal of Language and Literature (2014) No.13 [Link]
[Link]/publication/323704171; see also Jackson, R. C., The Pragmatics of
Repetition, Emphasis, and Intensification (Salford University: Unpublished PhD
Dissertation, 2016).
45
Consonance and alliteration refer to the recurrence of final and initial consonant sounds
respectively. Assonance is the recurrence of a vowel sound in two and more words in a
sentence (See Albashir, E. H. and Alfaki, I. M., An Exploration of the Rhetorical Devices in
Leila Aboulela’s Novel,American International Journal of Contemporary Research (2015),
Vol.5, No.1, Pp 29-38.

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the repetitions are used in that ways. The recursive use of these phonemes at
the beginning and end of the words creates rhythmic sound which can attract
attentions of audience towards the harmful effects of giving wrong factual
information about cases brought to courtroom. This agrees with Robert’s
observations in which the recursive use of both consonant and vowel sounds
in words create musical effect that can hold listeners’ attentions towards the
messages intended to be conveyed.46

The other repetitions observed in the oath include words and phrases. The
following fragments show the repetitions.
(4)

Repetitions Frequency Gloss

yoo…. x18 ‘if….’
… naaf … x15 ‘…to me..
…qe’ee … x8 ‘…home, ...’
…qe’ee koo... x6 ‘…my home…’
…dhala … x4 ‘…offspring,...’
…dhala koo … x2 ‘…my offspring…’
… ija …. x2 ‘…seed/product….’

The maximal repetitions of the conjunction yoo ‘if’ at the beginning of the
phrases and clauses used in the oath is to give emphasize to the supposed
negative consequences of telling lie and positive impact of telling truth about
a cases. Furthermore, on the repercussions, the nouns qe’ee ‘home’, ija ‘seed
and dhala ‘offspring’ which refer to the basic foundations and self-
perpetuation of someone are iteratively employed in the oath. Repetition of
the noun phrases such qe’ee koo ‘my home’, ija koo ‘my seed’ and dhala koo
‘my offspring’ demonstrates one’s own reference and attachment to his/her
properties. More importantly, repetition of the prepositional phrase naaf ‘to
me’ accentuates the agreement witnesses should make to the actions God
will take on their properties if they deny telling truth.

46
Robert L., Rhetorical Devices for Speechwriters (Washington, DC: CQ Press, 2010).

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Yet, if-clause is the other repeatedly presented form of the sentences in oath
text to warn the witnesses about the potential danger of denying facts about
cases they witnessed. The following text demonstrates this point.
(5)
(2) yoon soba dubbadhe…. ‘if I speak a lie….’
(4) yoon soba dubbadhe…. ‘if I speak a lie….’
(26) yoon soba dubbadhe…. ‘if I speak a lie….’
(40) yoon soba dubbadhe…. ‘if I speak a lie….’
(50) yoon soba dubbadhe ‘if I speak a lie….’
(52) yoon soba dubbadhe…. ‘if I speak a lie….’

The form ‘If I speak a lie...’ is subordinate to the main clauses omitted from
the text. The subordination is made by yoo, the conjunction productive in the
syntactic constructions of if-clause in Afaan Oromo. The clauses are
presented in first person singular point of view to enforce witnesses to self-
curse not to lie about cases. It is reiterated in the oath to give emphasis to the
cause, i.e., ‘If I speak lie...’ of the effect presented in the main clauses. With
this, a witness confirms that he understood the effects of the curse presented
in the main clauses of the sentences in the oath if he/she speaks lie. This
leads us to see the sentence level repetitions identified from the witness oath.
Actually, sentence repetition subsumes the sounds, words, phrases and the if-
clauses level repetitions discussed so far. The text presented here under
shows the case.
(6)
(1) dhugaa malee soba hindubbadhu (x10) ‘except truth, I don’t speak a lie’
(7) yoo naaf kenne hinguddatin (x4) ‘in case he gave me, let it doesn’t grow’
(17) qe’ee koo bofti haa dhaalu (x4) ‘let snake inherits my compound’
(19) qo’een koo qe’ee booyyee haa ta’u (x4) ‘let my home is that of pig’
(27) kan faca’e naaf hinmargin (x4) ‘let what I sow does not germinate’
(33) kan daraare ija hingodhatin (x2) ‘in case it flowered, let doesn’t give seed’
(45) Yoo nan galche, nagaan na (x2) ‘in case He returned me in peace, let Him
hinbulchin not allow me stay the night in peace’

As shown in the text, a sentence in the oath texts is repeated a maximum of

ten and a minimum of two times. The maximal repetition, as in the first line
of the text, emphasizes the major theme, i.e., a promise/declaration to tell
truth. The rest of the lines iterated two to four times in the oath text confirm

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that witnesses have already declared their loyalty to tell the truth by overtly
cursing their offspring (self-perpetuation), germ (livelihood) , dwelling
(ancestral home) and peace in the name of God.

4.4. PRONOUNS AND CONJUNCTIONS

Pronouns and conjunctions link the presupposed and/or entailed forms and
meanings of the oath by referring back and forth to the texts. This contributes
to organization of the text and coherence of its intended meanings. Pronouns
can serve for self-reference. Conjunctions can refer to cause and effects of an
action. They both refer to subjects, object, possessions, effects, etc. by
pointing to forward, backward, and even going out of a text to form and
establish connection to certain presupposed and/or entailed meanings of
other components in a discourse.47 Thus, pronouns and conjunctions can
refer and infer to the intended messages of a text. Consider this example.
(7)
Conjunctions and pronouns Gloss
…malee… ‘…except…’
yoo … ‘if …’
…koo … ‘…my…’
kan … ‘that…’
… na … ‘…me…’

As shown in text (7),koo‘mine’kan ‘that’ and na ‘me’ are pronouns recapped

in the oath. The first two are possessive pronouns; the last one, i.e., na is
personal pronoun used as an object. These pronouns refer to a witness and
his/her possessions. The conjunctions malee ‘except’ in conjunction with the
word dhugaa, together dhugaa malee ‘except truth’ shows an ultimate and
sole preference of witness to tell truth. The clause depicts that the decision a
witness makes to speak truth can ultimately avoid speaking soba ‘lie’. The
conjunction yoo links dependent and independent clauses which show a
promise to tell truth, and the consequences of dishonoring the promise, i.e.,
telling lie.

47
Adugna Barkessa, The Discursive Construction and Representation of the Waata Identity
(Addis Ababa University, Unpublished PhD Dissertation, 2017).

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[Link] SENTENCES

Almost all of the sentences employed in the text of the oath are negative both
in forms and meanings. This is reflected by the verbs of the sentences.
Sample of the negative sentences taken from the oath are presented below.
(8)

(3) Waaqni dhala naaf hinkennin ‘let God doesn’t give me offspring’
(7) yoo naaf kenne hinguddatin ‘in case He gave me, let it doesn’t grow’
(27) kan faca’e naaf hinmargin ‘let what I sow doesn’t germinate’
(33) kan daraare ija hingodhatin ‘in case it flowered, let doesn’t give seed’
(43) nagaan mana kootti na ‘let God doesn’t return me back to my home in
hingalchin peace’

Formally, the sentences in the text contain action verbs to which the
discontinuous morpheme {hin-….in} is attached as a circumfix to mark
negativity. The negative marker is productive in the verb morphology of
Afaan Oromoo. 48 Semantically, all the sentences show the culturally and
socially believed negative effects of the self-cursing a witness is expected to
perform to prove that he/she is going to give factual information about a case
on trial.49

4.6. PARALLELISM

Parallelism is one of the rhetorical devices used in the oath a witness is

expected to take in Oromia courtrooms. As an element of rhetorical device,
parallelism is a product of balanced arrangement achieved through repetition
of the same syntactic form. It creates a sense of symmetry and rhythm to
draw attention to a particular part of message.50 The use of parallel
expressions helps to absorb the intended messages more effectively, retain
and transmit them, and clarify the relationship between the messages. 51 The

48
Addunyaa Barkeessaa, Sanyiifi Caasaa Jechaa (Addis Ababa, Keyline Printing Press,
2011).
49
See subsection 5.8.2 for the negative effects of the self-cursing a witness who may lie has
believed to have been encountered.
50
Otieno, T.M., Linguistic Description of the Rhetoric: Barack Obama’s Political Speeches,
Journal of Humanities and Social Science (2015), Vol. 20, No.9, Pp 80-92.
51
Maadia, M, ModernPolitical Speech – Personal Style or Register?’ (MA thesis, 1985)
Ramat Gan: Bar-Ilan University. Kayam, O., Transformative Rhetoric: How ObamaBecame

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text below presents parallel expressions employed in the witness oath for
similar purposes to these sources.
(9)

(9) yoo guddate hinmul’atin ‘in case it grew, let it be invisible’

(11) yoo mul’ate hindubbatin ‘in case it is visible, let it be dumb’
(19) qe’een koo qe’ee booyyee ‘my compound is the compound of pig’
(21) dhalli koo dhala yuuyyee ‘met my offspring is the of spring of poor’

The paired parallel expressions presented in the text are composed of equal
linguistic forms: sentences, words and syllable. The expressions in (9) and
(11) are complex sentences containing dependent and independent clauses
which contradict each other. Each of the parallel sentences is composed of
three words and eight syllables. The sentences also contain similar repeated
forms such as {yoo…u…ate…hin…atin}. In short, the two sentences are
parallel because they are formed from the same number of words having the
same forms, and the same sentence type. Similarly, the parallel expressions
in (19) and (21) are simple and affirmative sentences. Each of the sentences
is formed from four words with similar forms and repetitions in the words.
The parallel forms reiterated in each sentences are {koo…-yyee}. The
parallel structures give more attention to the negative effects of telling lie a
witness believed to have encountered. According to Otieno52), parallel
structures used in any texts create an effect of balance, create rhythm,
reinforce impact of the message, and echo intensity of the message of a text.

4.7. METAPHOR

Metaphor is the other rhetorical device identified from the witness oath. It
associates non-human characters with that of human capitalizing on their
similarities. It also constructs realities by comparing things implicitly. 53In
everyday language practice, people choose metaphor to explain and reflect

the New Face of America:A Linguistic Analysis, Journal of Language and Cultural
Education (2014), Vol. 2(2), Pp179-198.
52
Otieno, T.M., Linguistic Description of the Rhetoric: Barack Obama’s Political Speeches,
Journal of Humanities And Social Science (2015),Vol. 20, No.9, Pp80- 92.
53
Adugna Barkessa, Discursive Strategies of Oromara Integration: A Critical Discourse
Analysis of Abiy Ahmed’s Political Rhetoric, Ethiopian Journal of the Social Sciences and
Humanities (2019), Vol. XV, No. 2; Van Dijk, T. A., Politics, Ideology and Discourse
(Spain: Elsevier Ltd, 2006).

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their attitudes and values to others, and to react to other’s attitudes towards
them in an implicit manner.54The metaphors identified from the witness oath
are presented and discussed as follow.
(10)

(18) qe’ee koo bofti haadhaalu, ‘let snake inherit my home’

(19) qo’een koo qe’ee booyyee haata’u ‘let my home be that of the pig’
(21) dhalli koo dhala yuuyyee haata’u ‘let my offspring be that of the poor’

As presented in the text, bofa ‘snake’ and booyyee ‘pig’ are entities expected
to perform humanly activities such as dhaaluu ‘inheriting’ and ta’uu ‘being’
in the oath. In the the Oromo culture, children have birthrights to inherit both
the tangible and the intangible heritages of their family. The witness oath we
are analyzing denies this cultural practice of inheritance among the people,
and wishes snake and pig occupy the rite of passage. In the culture, snake
symbolizes cruelty and enmity. Pig symbolizes gluttonous behavior. It is
believed in the oath that the inheritance of one’s home and properties by
these animals detach a witness from human beings. Thus, a witness is
expected to curse him/herself to be inherited by the behavior of these
animals, which are simple to understand in the culture of the people, if they
lie. Robert55 writes that analogy compares two things in which the more
complex one is explained in terms of the simpler one. The other
metaphorical expression used is dhala yuuyyee ‘the offspring of poor’. The
expression compares the offspring of a person required to give evidence for
the case brought to a court with the offspring of an impoverished person.
This is also wishing something bad to offspring if fails to tell truth.

4.8. SPEECH ACT

Speech act refers to speaker’s commitment towards the proposition of their

utterances. It is the act speakers or writers perform by words. Based on the
communicative contexts, participants ask questions, give commands, and ask

54
Zubair, S. Silent Birds: Metaphorical Constructions of Literacy and Gender Identity in
Women's Talk in Journal of Discourse Studies (2007), Vol. 9, No.6, Pp766–783.
55
Robert, supra note 46.

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for apology, etc.56 The speech acts employed in the witness oath include
Waadaa galuu ‘top promise’ and of abaaruu ‘to self-curse’. As clearly
presented in the oath text, a witness is expected to perform the speech acts
sequentially or one after the other. Thus, a person called to a courtroom
begins with a promise followed by self-cursing before providing information
about a courtroom trial. Both speech acts are presented in explicit
performative verbs which simultaneously name and perform the actions
denoted by the verb in a text. The speech acts are described using illustrative
examples in the next subtopics.

4.8.1. Waadaa Galuu ‘to promise’

Waadaa galuu is the speech act used in the witness oath to commit a witness
to provide truthful evidence about a case. A promise is a type of speech act
that a speaker employs to commit him/herself to some future actions. It
depends on speaker’s sincerity to confirm the intended action.57 The oath a
person required to give evidence about a case in Oromia courtroom take
begins with promising to give genuine information about the case he/she
knows. Let’s see this example.
(11)

(1) dhugaa malee soba hindubbadhu ‘except the truth, I don’t speak a lie’
(13) dhugaan dubbadha; dhugaa hinhaalu ‘except the truth, I don’t speak a lie’
(23) dhugaa malee soba hindubbadhu ‘except the truth, I don’t speak a lie’
(39) dhugaa malee soba hindubbadhu ‘except the truth, I don’t speak a lie’
(51) dhugaa malee soba hindubbadhu ‘except the truth, I don’t speak a lie’

The text promises not to tell lie about the case on trial in courtroom using the
clause soba hindubbadhuu ‘I don’t speak a lie’. The expression dhugaa
malee ‘except the truth’ demonstrates witnesses’ determination to provide
only admissible information about the case they know. This indicates their
understanding of the moral, social, psychological and legal benefits of telling
truth, and crises of telling lie. Repetition of the lines in the text declare
witnesses’ promise to telling truth, and their strong commitment to keep the

56
Jay, T. and Janschewitz, K., The Pragmatics of Swearing,Journal of Politeness Research,
(2008), Vol.4, No. 2, Pp267-288.
57
See Haung,Y., Prgmatics (Oxford: Oxford University Press, 2007).

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promise before providing the information they have about the issues they
observe.

4.8.2. Of Abaaruu ‘to self-curse’

Of Abaaruu is the main speech act a witness is expected to perform

immediately after he/she vowed or promised to tell [Link] illocutionary
forces of the self-cursing focus on four themes. One of the themes is dhala
ofii abaaruu ‘cursing one’s own offspring’. Consider the following text.
(12)

(4) yoon soba dubbadhe…, ‘if I speak a lie…,’

(6) waaqni dhala naaf hinkennin ‘let almighty God not give me a child’
(8) yoo naaf kenne hinguddatin ‘in case He gave me, let Him not grow it for me’
(10) yoo guddate hinmul’atin ‘in case it grew up, let it be invisible’
(12) yoo mul’ate hindubbatin ‘in case it became visible, let it be damb’

The self-cursing expressions presented in the text begin with cause and ends
with effects. The cause presented is speaking lie (4). As the line
demonstrates, speaking lie is resulted in the effects reiteratively appear in (6,
8, 10 and 12). With the cursing statements mentioned on these lines, a
witness is expected to show his/her commitment not to lie wishing negative
effects on their self-perpetuation. The independent clauses hinkennin ‘let
Him not give’, hinguddatin ‘let it not grow’, hinmul’atin ‘let it not visible’
and hindubbatin ‘let it not speak’ show agreement to the belief in which God
punish offspring of witnesses’ who tells lie. Like any other individual in the
world, an Oromo is may worry for his/her self-continuity. He/she wants to
have offspring for generation link or not to create generation gap. In the
culture of the people, offspring is a valuable asset. There is no mercy for
anyone who comes to an Oromo in the name of his/her children.

The other theme against which the self-cursing used is crop production. Crop
production is the main livelihood source of the Oromo and the Ethiopian
people in general. It is believed that witnesses give truthful testimony if they
swear against the livelihood source. The example below illustrates this point.

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(13)

(26) yoon soba dubbadhe ‘if I speak a lie,’

(27) kan faca’e naaf hinmargin ‘let what I sow does not germinate’
(29) yoo marge naaf hinguddatin ‘in case it germinate, let it doesn’t grow for me’
(31) yoo guddate naaf hindaraarin ‘in case it grew, let it doesn’t give flower’
(33) yoo daraare ija hingodhatin ‘in case it flowered, let it doesn’t give seed’

These statements curse the series of actions expected in the crop production.
The actions focused through the curse include geminating, growing,
flowering and producing seed. The performative verbs hinmargin ‘let it not
geminate’, hinguddatin ‘let it not grow’, hindaraarin ‘let it not flower’ and
ija hingodhatin ‘let it not give seed’ are cursing the steps at which crops are
produced. The curse wishes negative impact on the consumption and the
consumer as well. It is, therefore, one of the terrifying strategies courtroom
judges use against witnesses to boost acceptability of the information
witnesses tell to the judge about the disputable case in courtroom.

Yet, the other theme of the curse a witness is expected to perform refers to
dwelling. Cursing one’s own home is the strategy of frightening a person not
to tell lie. The next text presents lines of the curse.
(14)

(16) yoon dhugaa haale ‘if I deny truth’

(17) qe’ee koo bofti haadhaalu, ‘let snake inherits my compound’
(19) qo’een koo qe’ee booyyee ‘let my compound is that of pig’

In these lines, witnesses are expected to call snake and pig on their
dwellings. In the Oromo culture, both animals are presented negatively
because of their characters. Snake is a poisonous and potential enemy of
human being. Pig is a symbol of gluttonous behavior which is not acceptable
in the culture. Inviting the poisonous and gluttonous behaviors of the
animals using the expressions let snake inherit my dwelling and let my
dwelling is the home of a pig’ (17 and 19) symbolizes the inconvenient and
harmful residence wished to a witness who lies about a case he/she observes.

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In both expressions, associating dwelling of a witness who lies with the

residence of the animals is also dissociating him/her from human being.
Thus, it is believed that witnesses tell truth because they don’t want to face
the inconveniences mentioned in the curse.

Nagaa ‘peace’ is the other theme against which self-cursing is expected to be

performed by a witness. Self-cursing by referring to peace aims at widening
the probability of telling truth about cases on trial and narrowing the ways of
speaking a lie. Seemingly, peace is used as one of the themes of the oath due
its prioritized sociocultural values among the Oromo people. This inevitably
contributes to the reason why judges have chosen and brought the oath to
courtroom to enforce witnesses to tell truth. Let’s see the example below.
(15)
52 yoon soba dubbadhe, ‘if I speak a lie,’
53 nagaan mana kootti na ‘let Him not return me back to my home in
hingalchin peace’
55 yoo na galche nagaan na ‘in case He returned me in peace, let Him
hinbulchin. not allow me stay the night in peace,

The expressions on the lines (53 and 55) are used to wish a bad fortune for
the soul of a witness if he/she provides untruthful information. The bad
fortune wished to negatively impact peace includes not going back to home
and not stay the night in peace. This is emphasized by the phrase not in
peace used in the text. With the curse witnesses are expected to make against
their existence, the judge trust the evidence witnesses provide about cases.

In sum, promising and self-cursing are the main speech acts contained in the
witness oath employed in Oromia courtrooms. Before giving information
about cases on trial, a witness is expected to declare to tell only what he/she
knows. Witness first promises to give trustable information, and then curses
his/herself calling negative impact onto their children, germs, dwellings, and
peace, if they give wrong information about the case observed. The negative
impact of telling lie is extended from affecting offspring to germ, from germ
to dwelling, from dwelling to livelihood source and then to [Link] is
against the philosophy and livelihood sources of the Oromo people.
Philosophically, the Oromo are highly valued self-perpetuation that link

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generation. Germination is the main source of livelihood for them. Both self-
perpetuation and germination link with the environment where they live.
Above all, the Oromo value peace for existence. Therefore, it is believed that
witnesses can be trusted when they swear in the elements discussed so far.
The court judges seem to know such heart bit of the people and indigenized
the witness oath in the courtroom. They are very much conscious to use the
self-curse as a strategy of investigating truth. Unlike using Bible and Quran,
which the people have little evidence in their culture and even most of them
do not know the history and the examples given in the holly books, the
witness very much aware of the consequence of the curse they have in their
cultural memory.

4.9. DISCURSIVE STRATEGIES USED IN THE OATH

Discursive strategy is the other theme discussed in the section. The linguistic
devices discussed so far realize the different discursive strategies identified
from the witness oath employed in the courtrooms. The strategies identified
from the oath are mainly corresponding with boosting admissibility of the
information expected from witnesses. Among others,authorizing,
associating, intensifying,self-mentioning and total admission are the major
discursive strategies used in the witness oath.

Authorizing strategy allows involvement of the socio-culturally accepted

customary power of the Oromo people in the legal decision making system
in courtrooms. It is a legitimation by reference to tradition and law. It is also
vested in impersonal traditional authority to legitimize (if already exist) and
to constitute (if not exist) the beliefs and the custom people use for
socialization and confirmation of the socio-cultural values58. Interestingly,
the attempt began to involve customary practices in legal decision making
system in Oromia courtrooms seems legitimizing the role of traditional
authority to solve cases brought to the legal context. This, hopefully, creates
co-operation between courts and people to safeguard justice.

Associating the other discursive strategy identified from the courtroom oath,
brought customary practices and beliefs to the legal decision making system

58
Van Leeuwen, T., Discourse and Practice: New Tool for Critical Discourse Analysis
(Oxford: Oxford University Press, 2008).

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The strategy associates the behaviors witnesses are supposed to aquire as a

consequence of lying with the enmity and gluttorious of pig and snake. The
association shows the socially and culturally accepted beliefs about the
negative effects of telling lie on livelihood sources and generation link. This
may enforce witnesses to give reliable information about the cases they
know. Thus, it is reasonable to conclude that using culturally produced and
accustomed oath is near to the psychology of people to enable them tell
truth about cases.

Intensifying strategy magnifies power of the oath used in the courtroom to

impose witnesses to support legal decision making system. The strategies
magnify the illocutionary force of the speech act, for instance self-cursing,
focuses on creating generation discontinuity, subsistence scarcity, human
insecurity and residential crisis. It is believed that the self – cursing is
resulted in negative effects, if a witness gives wrong evidence, and positive
effects, in case he/she tells truth about the case under investigation. It is also
believed that telling truth nourishes and telling lie deserts one’s well-being.

Self-mentioning is the discursive strategy employed in the oath. Self-

mentioning shows explicit presence of a speaker by using the frequent use of
first person pronoun and possessive adjectives which show stance and a
contextually situated determination of a speaker59. The frequent use of first
person singular pronouns ani ‘I’, na ‘me’ and the possessive adjective koo
‘my’ used in the oath demonstrate the explicate presence of a witness in the
oath. This explicit presence of a witness and their verbal actions in the oath
discloses accountability for the information they provide about a case. It also
unveils a witness’s determination to agree with the effects of the self-cursing
believed to be happened for the information he/she gives to a courtroom trial.
Each lines of the oath text used first person singular pronoun to show
accountability of a witness for his /her words about a case under legal
jurisdiction.

Total admission, as the other discursive strategy used in the oath, obliged
witnesses to fully accept the belief about telling truth in a similar way to

59
On Self-mentioning Strategy, see Hyland, K, Meta-discourse (London: Continuum Guides
to Discourse, 2005).

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Komter’s observation in courtroom discourse where admission is taken as

supportive.60This in turn, insists them believe in the alleged consequences of
speaking a lie. The strategy blocks any alternatives of undesirable
information and attempts to engage them in providing only facts whether it
strengthen or weaken either of the disputed ideas. Unlike defenders and
accusers who may partially admit a case to support justice system, and/or
partially deny it to defend themselves based on their own intentions, the oath
limits witnesses to be one sided, i.e., supporting justice.

4.10. OATH, IDEOLOGY AND POWER IN THE PROVISION

OF TRUTHFUL TESTIMONY

The linguistic devices and discursive strategies discussed in the preceding

topics and subtopics reveal that oath, ideology and power are inextricably
linked to each other to boost the admissibility of information about cases.
The devices and strategies used in the oath are framed by the culturally and
socially constructed spiritual ideology that aimed at governing metal space of
the witnesses. The ideology magnifies the negative discursive representation
of untruthful testimony on self-perpetuation, livelihood source, dwelling and
peace which are powerful to influence witnesses to tell truth about the case
they observed. Involving such an oath with customary spiritual ideology in
the legal decision making process contributes to safeguard justice.61 This
provides substance to the institutional power vested in the courtrooms.
Following Althusser, it is learnt that the power relations, by their very
character, are always asymmetrical.62 The asymmetrical power relations,
which are part of its ideologies, are negotiated and perpetuated through the
oath-swearing practices in the courtroom. Therefore, it is argued that the
study of oath used in courtroom is part of the study of its ideology and
power.

60
Komter, M. L., Accusations and Defenses in Courtroom Interaction: Discourse and
Society (1994), Vol. 5, No.2, Pp165-187.
61
Milhizer, supra note 5.
62
Althusser, L., Ideology and Ideological State Apparatuses in Lenin and Philosophy and
Other Essays, (1971),Vol.34, No.5, Pp.121-173.

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The impersonal traditional authority and the power vested in the oath
influences the witnesses to give factual information about the cases they
know. Involving the cultural oath in the process of legal decision making is
making the traditional authority complement to the legal authority to give the
right decisions about cases on trial. Thus, analyzing the witness oath used in
Oromia courtrooms is analyzing the role of the traditional authority
embedded in the oath in the legal decision making process.

5. CONCLUSION

To conclude that the discussions made so far on the findings of the study
demonstrate the linguistic devices and discursive strategies employed in the
oath are powerful to impact witnesses to tell truth about cases they knew.
The devices and strategies communicate the traditional values about
speaking truth and lie already situated in the mental set-up of the Oromo
people. With this, they activate the values witnesses have in their mental
space and warn them not to lie by referring to the negative effects believed to
be happened in their life. More importantly, the oath magnifies the negative
effects of lying on livelihood source, offspring, dwelling and peace supposed
to be happened in witnesses’ life. Seemingly, the oath is incorporated into
the legal decision making context based on its convening power to provide
factual information to support justices. It can also be concluded that the
language employed in the oath provides substances to both customary
(religious) and legal authorities, and reflects the interlocking nature of
language, law and power which determine the asymmetrical power relations
between participants in courtrooms.

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Appendix

1 J : Dhugaa malee soba hindubbadhu

2 Yoon soba dubbadhe
3 W : Dhugaa malee soba hindubbadhu
4 Yoon soba dubbadhe
5 J: Waaqni dhala naaf hinkennin
6 W : Waaqni dhala naaf hinkennin
7 J : Yoo naaf kenne hinguddatin
8 W : Yoo naaf kenne hinguddatin
9 J : Yoo guddate hinmul’atin
10 W : Yoo guddate hinmul’atin
11 J : Yoo mul’ate hindubbatin
12 W : Yoo mul’ate hindubbatin.
13 J : Dhugaan dubbadha; dhugaa hinhaalu
14 Yoon dhugaa haale …
15 W : Dhugaan dubbadha; dhugaa hinhaalu
16 Yoon dhugaa hale
17 J : Qe’ee koo bofti haadhaalu
18 W : Qe’ee koo bofti haadhaalu
19 J: Qo’een koo qe’ee booyyee haata’u
20 W : Qo’een koo qe’ee booyyee haata’u
21 J : Dhalli koo dhala yuuyyee haata’u
22 : Dhalli koo dhala yuuyyee haata’u
23 J : Dhugaa malee soba hindubbadhu
24 Yoon soba dubbadhe
25 W : Dhugaa malee soba hindubbadhu
26 Yoon soba dubbadhe
27 J : Kan faca’e naaf hinmargin
28 W : Yoo faca’e naaf hinmargin
29 J : Yoo marge naaf hinguddatin
30 W : Yoo marge naaf hinguddatin
31 J : Yoo guddate naaf hindaraarin
32 W : Yoo guddate naaf hindaraarin
33 J : Yoo daraare ija hingodhatin
34 W : Yoo daraare ija hingodhatin

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35 J : Yoo ija godhate hinyaatamin

36 W : Yoo ija godhate hinyaatamin
37 J : Yoo nyaatame naaf hinsifaa’in
39 J : Dhugaa malee soba hindubbadhu
40 Yoon soba dubbadhe
41 W : Dhugaa malee soba hindubbadhu
42 : Yoon soba dubbadhe
43 J : Nagaan mana kootti na hingalchin
44 W : Nagaan mana kootti na hingalchin
45 J : Yoo na galche nagaan na hinbulchin
46 W : Yoo na galche nagaan na hinbulchin.
47 J : Dhugaa malee soba hindubbadhu
48 Yoon soba dubbadhe
49 W : Dhugaa malee soba hindubbadhu
50 Yoon soba dubbadhe
50 J : Kan dhalate naaf hinguddatin
52 W : Kan dhalate naaf hinguddatin
53 J : Kan faca’e naaf hinmargin
54 W : Kan faca’e naaf hinmargin
55 J : Qe’ee ko bofti haadhaalu
56 W : Qe’ee ko bofti haadhaalu
55 J Nagaan mana kootti na hingalchin
56 W Nagaan mana kootti na hingalchin

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THE QUEST FOR ETERNAL CLAUSES IN THE ETHIOPIAN

CONSTITUTIONAL AND DEMOCRATIC REFORMS

Solomon Emiru*

ABSTRACT

For continuity of states, some constitutions have eternal clauses, which are
immune from amendments forever. However, the concept of eternity has
never been recognized in any of Ethiopian constitutions despite long history
of constitution-making processes. Ethiopians have been tackling to establish
a viable, constitutional, and democratic government through making and
remaking many constitutions in their political history. Among the
constitutional reforms in Ethiopia are the 1931 and 1955 Monarchical
Constitutions, the 1987 Socialist Oriented Constitution and the 1995 Federal
Oriented Constitution. The chief challenge in the Ethiopian constitutional
and democratic reforms is that the previous reforms have never been utilized
as steppingstones for the new reforms. To this date, Ethiopians have neither
developed their common constitutional culture nor recognized the eternal
clauses on important political and constitutional matters. There is no
consensus on the issue of national identity, state structure, the form of
government, language policy, regional state formation and others.
Currently, Ethiopia has also been facing multiple challenges, including
ethnic tensions, sporadic border conflicts, massive internal displacement,
drought, poverty, and gross human rights violations. For this reason, this
Article argues that Ethiopia must introduce ‘eternal constitutional clauses’
on issues of common national interests.

Key words: Constitution, Eternal Clauses, Ethiopia, Federalism

________________

* LL.B (Haromaya University);LL.M (Addis Ababa University);Assistant Professor of Law

at Wollega University; email address: gutamasol@[Link]

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1. INTRODUCTION

Ethiopia introduced the first written constitution in 1931 in its constitutional

history. Since 1931 to 2020, Ethiopia has enacted three types of
constitutions. The first constitution was the Monarchical Constitution
enacted in 1931 and revised in 1955 during the kingship of Emperor
Hailesillasie I. Following the 1974 Revolution, Ethiopia introduced a new
system of government (Socialism). The Socialist Regime of Military Dictator
led by Mengistu Hailemariam, named as ‘the Derg’ was governing Ethiopia
without a constitution for around thirteen years. However, Derg enacted its
constitution in 1987 as the People’s Democratic Republic of the Ethiopian
Constitution (PDRE Constitution). Nevertheless, the fundamental freedoms
and democratic rights recognized under this constitution had not practiced
during the Derg era.1

Of course, the 1974 Ethiopian Revolution had completely eliminated the

feudal system and the emperor himself successfully. The slogan of the 1974
Revolution was ‘Land to the Tiller’; accordingly land was taken from the
Landlords and redistributed to the Ethiopian farmers free of any charges.
Nevertheless, the quest for ‘national identity’ or the right to self-
determination was not practised under the Derg government. Furthermore,
the right to a full measure of self-government was never guaranteed under
the 1987 Constitution although it recognizes regional autonomy.

Moreover, though it was expected to come in to effect starting from the 1974
Revolution, the Derg refused to recognize and implement the right to self-
determination of Nations, Nationalities, and Peoples of Ethiopia. This
encouraged the establishment of various liberation fronts during the Derg
Regime. For instance, the Eritrean People’s Liberation Front (EPLF), the
Tigray People’s liberation front (TPLF), and the Oromo Liberation Front
(OLF) were considered the major liberation fronts in Ethiopia during the
Derg era. After a disastrous civil war had been fought between these
liberation fronts and the Central Government, the Derg regime collapsed
completely in 1991.

1Girmachew Alemu, Apology and Trials: The Case of the Red Terror Trials in Ethiopia,
African Human Rights Law Journal (2006), Vol. 6, Pp 64-85.

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After the downfall of Derg Regime in May 1991, the Liberation Fronts
agreed to establish a Transitional Government irrespective of their
differences. Accordingly, the Peace and Democracy Conference took place
from 1-5 July 1991 in Addis Ababa with the attendance of some 27 political
parties, including the major political parties, the Ethiopian People’s
Revolutionary Democratic Front (EPRDF), the TPLF, the OLF, and others. 2
This Peace and Democracy Conference was resulted in the following
important agreements:

The points on which agreement was reached included: first,

establishing a Transitional Government made up of a
coalition of democratic forces, whose main task would be to
prepare the ground for National Election; second, convening
a popularly elected constituent assembly to draft and to ratify
a new constitution; third, prosecuting the members of the
Derg and their henchmen for the heinous crimes they had
committed against the people of Ethiopia; and fourth,
handing over power to a democratically elected government
after a transition of no longer than three years.3

Consequently, Ethiopia adopted the 1995 Federal Democratic Republic of

Ethiopian Constitution in 1994. This constitution has incorporated several
golden democratic and human rights principles in its contents. Additionally,
the Preamble of the same constitution claims that this constitution is

2 Assefa Fiseha, Emergence and Transformation of Territorially Based Cleavages and

Constitutional Responses in Ethiopia (Occasional Paper Series Number 28, Forum of
Federations, 2019), P8.
3 See, the Peace and Democracy Conference which took place 1-5 July 1991 in Addis
Ababa. And furthermore, the Peace and Democracy Conference attracted mass media and
published on various newspapers both nationally and internationally at that time. For
instance, a transitional programs of several opposition groups are published in special issue
of Imbylta (June 1991), an Ethiopian quarterly journal of political opinion, published in
Washington DC. Additionally, all the discussions during the Conference on Peace and
Democracy from 1-5 July 1991 can be listened from the following websites: https:// www.
[Link]/watch?v=5UkwtgBD8mw[Link]
[Link]
[Link]

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considered a covenant among the Nations, Nationalities, and Peoples of

Ethiopia, in holding the country perpetually.4

The problem is that in all these constitution-making processes; the previous

constitutions were completely repealed and replaced by the new constitution.
For instance, the monarchical constitution of 1955 was all in all repealed by
the 1987 People’s Democratic Republic of Ethiopia. Similarly, the 1987
Constitution was dropped and replaced by the 1995 Federal Democratic
Republic of Ethiopian Constitution [shortly the 1995 FDRE Constitution].
Therefore, the prior constitution cannot be used as a steppingstone for the
later one.

In addition, the concept of eternity has never been recognized under any of
these constitutions previously enacted in Ethiopia. Any laws including the
constitution are indeed subjected to amendments to cope with time,
technology, socio-political and economic conditions. Nevertheless, the
notion of ‘Eternal Clause’ is related to the unamendability of certain
important constitutional principles to ensure state’s perpetual existence. That
means, some clauses guarantee the immunity of certain parts of the
constitution from any constitutional amendment.5 In the context of eternity,
the amendment is a principle to update certain constitutions to cope with the
changing world; however, eternity is an exception in which few principles in
the constitution remain eternally unamendable.6 The reason why a certain
constitutional principles remain eternally unamendable is to entrench basic
human rights and to ensure democratic governance; and thereby to uphold
the unity of the state. Nevertheless, eternal clause cannot be incorporated and
justified for the sake of strengthening the power of the ruling government or

4 See the Preamble of the 1995 Federal Democratic Constitution of the Ethiopia: It says,
“We, the Nations, Nationalities and Peoples of Ethiopia.”
5 Preuss, Ulrich K, The Implication of Eternity Clauses: The German Experience, Isr. L.
Riv.44 (2011), P430.
6See Article 79(3) of the German Basic Law of 1949, “Amendments to this Basic Law
affecting the division of the Federation into Länder, their participation in principle in the
legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible’’.
Article 89 of 1958 France Constitution, “The Constitution of France provides that
amendments of the Constitution of France cannot affect the Republican form of government
or the territorial integrity of the country’’. These provisions show the eternity clauses both
under German and France Constitutions respectively.

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for any other purposes except for the sake of ensuring democracy and
nurturing human rights principles as constitutional literature reveals.

Hence, the key problem assessed in this Article is connected to the lack of
eternal constitutional clauses and its drawbacks in the Ethiopian constitution-
making history. Thus, this Article strongly argues that if the concept of
eternal constitutional clauses are recognized and accommodated in the
present constitutional reforms, it will be utilized as a grand norm for all
political parties and the ruling government to ensure a viable Ethiopian state
perpetually. The problem in Ethiopia is that, whenever, there is a change of
government, there is a change in all aspects: For instance, a change of
constitution, a change of state structure, a change of ideology; a change of
National Flag, a change of language policy, and others. Always there is a
paradigm shift frequently, whenever a government change occurs in
Ethiopia. Accordingly, lack of genuine democratic and constitutional culture,
and the non-availability of eternal constitutional clauses in the Ethiopian
constitutional and political history remains a serious challenge in present-day
Ethiopian political reforms.

Accordingly, this Article will answer the following main questions: what is
the purpose of recognizing eternal clauses under a certain constitution? Have
the concepts of eternal clauses been recognized in the Ethiopian constitution-
making history? If eternal constitutional clauses will be recognized or
incorporated in the present-day Ethiopian constitution, is it possible to ensure
common constitutional culture, and national consensus, especially, on the
issue of national identity, state structure, the form of government, language
policy, and regional state formation in the present-day Ethiopian federation?

However, Ethiopia has neither recognized eternal clauses nor utilized the
prior constitution as a source for the later constitution in its constitution-
making history. Ethiopia faced multiple problems as a state, which include
but not limited to lack of common constitutional culture/values; lack of
consensus on the issue of national identity/interest, state structure, the form
of government, language policy, regional state formation, and others.
Moreover, currently, Ethiopians are suffering from ethnic tensions, sporadic
border conflicts, massive internal displacement, impoverishment, and gross
human rights violations. Constitutional reform can be considered as an
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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

element in resolving the complex problems faced by Ethiopians. This Article

argues that incorporating eternal clauses on important and core constitutional
principles has paramount importance in resolving some constitutional
deficiencies in present- day federalist Ethiopia.

2. THE CONCEPT OF ‘ETERNAL CLAUSE’ IN A CONSTITUTION

Before delving into entertaining the concept of eternal constitutional clauses,

I would like to briefly describe the concept and types of constitutional
amendments. Simply, a constitutional amendment is a process of modifying
or altering, or changing certain constitutional provisions or principles.
However, there are different rules for amending the constitution which can
be either strict or flexible.7It is noted that most provisions require a simple
amendment procedure, whilst a minority of provisions are more difficult to
amend; they enjoy special protection as they are deemed to be more
fundamental.8

Furthermore, some countries have substantive limitations on the alteration or

amendment of the constitution which are explicitly included in the text of the
constitution (for example, the Constitutions of Germany, France, Romania,
Kosovo, Moldova, Turkey, Ukraine). Among provisions which contain
substantive limitations on the alteration of the constitution, there are explicit
eternity clauses, with which all constitutional amendments must comply.
Consequently, we may have amendable constitutional provisions that may be
amended easily or strictly; as well as, non-amendable or eternal clauses in
the constitutional amendment process.

On the other hand, the concept of ‘eternal clause’ is highly related to un-
amendability issues or immune constitutional provisions from amendment by

7 European Commission for Democracy through Law (Report on Constitutional

Amendment, Venice, 11-12 December 2009). Available at: [Link] [Link]/ web
forms/ documents/CDL-AD(2010)[Link]<accessed 16 June 2020> .
8 Roznal Y., Unamendability and the Genetic Code of the Constitution (New York
University Public Law and Legal Theory Working Papers, Paper 514). Available at:
[Link] <accessed 14 May 2020>.
For instance, see, Article 104 and 105 of the 1995 Federal Democratic Constitution of the
Ethiopia; amendments of human rights has strict procedures; it says, “All rights and
freedoms specified in Chapter Three of this Constitution, this very Article, and Article 104
can be amended only in the following manner:”

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any organs. Hence, some clauses guarantee the immunity of certain parts of
the constitution from any constitutional amendment.9 Therefore, these
clauses function as barriers or stop lines to constitutional amendment; any
amendment violating those clauses would be unconstitutional in itself and, as
such, would be invalid.10 Such unamendable or eternal clauses may be either
formal, that is, explicitly included in the text of the Constitution, or
implicit.11 Explicit eternity clauses are included in nearly 35 percent of the
world’s constitutions (that is, 71).12 However, it is also important to talk
about judicial eternity clauses, that is, implicit eternity clauses, which are
identified through the process of interpreting the Constitution by
Constitutional Courts or other institutions exercising constitutional review.13

The contents of unamendable provisions or principles in the constitutions of

different countries are almost similar though there may be slight differences.
The contents of explicit unamendable provisions in different states may vary;
but one can identify several common groups of components: For instance,
‘form and system of government; state’s political or governmental structure;
state’s fundamental ideology or “identity”; basic rights; state’s integrity; and
other provisions, unique constitutional subjects (for example, immunities,
amnesties, reconciliation and peace agreements, taxation or rules governing
nationality)’.14

2.1 THE SIGNIFICANCE OF ‘ETERNITY CLAUSES’ IN

A CONSTITUTION

As elaborated hereinabove, the eternity clause can be defined as

constitutional provisions or constitutional principles that are immune from
amendments. Hereunder, the importance of ‘eternal clause’ in a certain
constitution is assessed.

9 Preuss, Ulrich K, The Implication of Eternity Clauses: The German Experience, Isr. L.
Riv.44 (2011), P430.
10. Prof. Dr. Dainius Žalimas, Presentation to the XVIIth Congress of the Conference of
the European Constitutional Courts “Role of the Constitutional Courts in Upholding and
Applying the Constitutional Principles”, June 28-July 1st, 2017, Batumi, P3.
11 Ibid.
12 Id,P3.
13 Id,P6.
14 RoznalY, Unamendability and the Genetic Code of the Constitution,supra note 8, P4.

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2.1.1. To Mould Constitutional Identity

The concept of ‘Constitutional Identity’ is related to a certain nation’s

history, values, and aspirations.15 That is, certain nation’s history, values,
national interests, symbols, and aspirations should be protected by eternity
clauses in the constitution. Hence, eternity clauses should be understood as
protecting the core of fundamental constitutional principles and therefore
leaving space for evaluative interpretation of these principles.16

As the Venice Commission has noted, concepts like “sovereignty”,

“democracy”, “republicanism”, “federalism” or “fundamental rights”, that is,
principles, most often protected by un-amendability, over the years have
been subject to continuous evolution, both at the international and national
level, and should properly continue to be so in the years to come. 17
Therefore, eternity clauses, properly understood, should be seen not as
imposing “dead hand constitutionalism”, but as ruling out amendments that
would violate the very substance of relevant constitutional principles.18

2.1.2 Safeguarding the Basic Values of Substantive Democracy

Truly speaking, a constitution should not become an instrument for

democratic suicide by inserting eternity clauses without a justifiable cause.
Nevertheless, rarely it is necessary to make some fundamental democratic
and human rights principles unamendable forever under certain constitutions.
For instance, some constitutions, like the German or Czech Constitution,
comprise clauses, explicitly declaring the unamendable nature of the
democratic form of government.19 Other constitutions, like that of Kosovo,

15Dainius Žalimas,Eternity Clauses: A Safeguard of Democratic Order and Constitutional

Identity (President of the Constitutional Court of Lithuania), P1.
16Ibid.
17Ibid.
18Ibid.
19See Article 9 (2) of the Czech Republic's Constitution of 1993 with amendments through
2002.
1) This Constitution may be supplemented or amended only by constitutional acts.’
2) Any changes in the essential requirements for a democratic state governed by the rule
of law are impermissible.
3) Legal norms may not be interpreted so as to authorize anyone to do away with or
jeopardize the democratic foundations of the state.

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prohibit [albeit indirectly] amendments diminishing the constitutional rights

and freedoms.20 Obviously, democracy and respect for human rights and
fundamental freedoms are interdependent and mutually reinforcing. These
democratic rights and human rights are universally applicable and becoming
parts and particles of international customary laws.21

Consequently, independence, democracy, and the inherent nature of human

rights and freedoms are associated with the highest constitutional protection
through the consolidation of their absolute un-amendability.22 In the light of
the notion of the Constitution as integrity, this inviolability means not only
the prohibition on altering or revoking constitutional provisions
consolidating these values, but also the prohibition on adopting amendments
to the other articles of the Constitution that would deny any of such values. 23
Accordingly, eternity clauses are very useful in upholding and protecting
democratic governments across the globe. Thus, the eternal clauses in a
certain constitution have paramount importance in strengthening the essence
of rule of law, inalienable human rights, and safeguarding democratic order
in a certain country.

20See the 2008 Constitution of the Republic of Kosovo, Art.144 (3).

‘The President of the Assembly of Kosovo refers proposed Constitutional amendments
before approval by the Assembly to confirm that the proposed amendment does not diminish
the rights and freedoms guaranteed by Chapter II of the Constitution.’
21 For example, the Preamble to The North Atlantic Treaty states that “the Parties to this
Treaty are determined to safeguard the freedom, common heritage and civilization of their
peoples, founded on the principles of democracy, individual liberty and the rule of law.” The
well-established dictum of the European Court of Human Rights is stating that “democracy
is without doubt a fundamental feature of the European public order’’. Similarly, Article 10
of the 1995 FDRE Constitution of Ethiopia says, ‘‘Human rights and freedoms, emanating
from the nature of mankind, are inviolable and inalienable.”
22 Prof. Dr. Dainius Žalimas, Presentation to the XVII th Congress of the Conference of the
European Constitutional Courts, Cited at supra note 10, P4.
23Ibid.

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3. THE PLACE OF ETERNAL CLAUSES IN THE ETHIOPIAN

CONSTITUTION-MAKING HISTORY

[Link] CONSTITUTION-MAKING HISTORY IN ETHIOPIA:

GENERAL OVERVIEW

Constitution-making is the most important event in the political life of a

country. A constitutional moment is a revolutionary event. It is a moment of
constitutional festivity and it is a moment of negotiating national identity too.
Unfortunately, very few nations are blessed with a constitutional moment.
Since in the history of the constitution-making process, very few nations are
successful in freely participating in its making and unmaking process.
Accordingly, from history, we have witnessed that most of the world
constitutions were imposed by monarchies or dictators. Even in modern
times, though the name of the world government incorporates the
nomenclature ‘Democratic Republic’; their nations have never conferred on
people the chance of freely participating in the making and unmaking of their
national constitutions. Consequently, most of the the world states’
constitutions have been enacted as per the interest of the dominant political
parties in their respective countries, not as per the interests of their people.

The constitution-making and unmaking process in Ethiopia is also like the

above illustrations. Hence, the Ethiopian history of the constitution-making
process has proven that the people of Ethiopia have never participated either
directly or indirectly in their constitution-making process. Ethiopians have
never been participated in making and re-making their constitution neither
directly nor through their representative in a democratic and transparent
manner. In its history, Ethiopia has seen three types of constitution, namely:
monarchical constitution [1931-1974]; socialist constitution [1974-1991] and
federal oriented constitution [since 1991].

Accordingly, Ethiopia had written constitutions since 1931; nevertheless, the

constitutional making had never been participatory, inclusive, and legitimate.
The making processes and the contents of both 1931 and 1955 monarchical
constitutions were not democratic. Thus, during the monarchical era [from
1931-1974], Ethiopia had nominal constitutions. The absolute power was

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

vested in the emperor himself. Consequently, the emperor himself was

considered the chief executive and commander-in-chief of the national army
forces; he was considered the lawgiver, the parliamentary legislation was
never enacted unless he signed; and furthermore, the emperor himself was
accepted as a fountain of justice; the final decider on legality and
constitutionality at his imperial Chilot [bench].24

In the aftermath of the 1974 Revolution, the Military Dictatorship called ‘the
Derg’ had introduced Socialism as a new system of government ideology in
Ethiopia. The Derg ruled Ethiopia without a constitution for thirteen years
[from 1974-1987]. The Derg government enacted its socialist-oriented
constitution in 1987 as the People’s Democratic Republic of the Ethiopian
Constitution [The 1987 PDRE Constitution]. This constitution introduced
many improvements on paper; like the Principle of Separation of Power,
Secularism, and others; however, it had never been practiced by the then
government. Nevertheless, political parties were banned; there was no right
to run for or contest elections.25The regime of military dictator led by
Mengistu Hailemariam refused to recognize the right to self-determination of
nations, nationalities, and peoples of Ethiopia. This encouraged the
establishment of multiple liberation fronts as explained hereinabove.

3.1.1 The History of the 1995 FDRE Constitution Making

The process of constitution-making is as important as its substance to
determine the acceptance of a certain constitution as democratic or not. The
strength of the participatory constitution-making process is that it secures the
consent of the majority elites and stakeholders.26 All have to be included
because, in divided societies, inclusion is a prerequisite to genuine consent. 27
More broadly, it is a process of constructing a political consensus around
constitutionalism in society as a whole.28 This means that not only the elites
but also the people at large consent to it.29 As a result of this process, people

24 Ethiopian Constitution of 1931 established in the Reign of Majesty Haile Sellassie I,

16th July 1931.
25 Kifle Wadajo, The Making of the Ethiopian Constitution (1991), P135.
26Kifle Wodajo, Id, P7.
27. Ibid.
28. Ibid.
29Ibid.

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will have a sense of ownership of the constitution.30 They identify with,

uphold, and safeguard it.31 The participation of all the political, ethnic, and
socio-economic groups in this democratic process fosters or strengthens in
all of them the awareness that they are part of the same polity. 32 Therefore, in
the process of constitution-making, the various stakeholders should be in the
dialogue and reach on an understanding or consensus to ensure the
legitimacy of the constitution.

However, the process of the 1995 FDRE Constitution making had

encountered many shortcomings: For instance, during its drafting stage, the
OLF-one of the principal actors during the Transitional Period had left the
transitional process. Despite the nominal coalition structure of the EPRDF,
from the beginning, the TPLF provided the leadership, ideological direction
to majority of the fighters of the movement.33 Regional elections were held
in most of Ethiopia on 20 June 1992 but, after alleged intimidation and other
irregularities, the OLF boycotted the election and withdrew from the
government.34 Its forces then launched an armed insurrection against the
government.35 So, as we see from these explanations at the drafting stage the
1995 FDRE Constitution was not participatory or all-inclusive.

A constituent Assembly was formed after a separate election was held on 5

June 1994 to complete and ratify a new constitution. In both elections (the
1992 regional elections and the 1994 election), there was evidence of human
rights violations and in the latter case 39 parties participating, most of them
were members or supporters of the government, while the major opposition
forces, including the OLF, the All Amhara People’s Organization (AAPO)
and a coalition of southern parties boycotted them.36The most important
opposition parties those representing the Oromo and the Amhara withdrew
from the electoral competition during the transition. The EPRDF and its

[Link].
[Link].
32. Id,P8.
[Link] Young: Regionalism and Democracy in Ethiopia (Vol.19,No.2) (1998) Stable
URL:[Link] P194.
34. Ibid.
35. Ibid.
[Link] Mattei: The New Ethiopian Constitution; First Thought on Ethnical Federalism and
the Reception of Western Institutions (1995), P6.

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

alliance won 539 seats, leaving 18 seats for other parties or independent
candidates; only in Addis Ababa, where independent candidates won 12 out
of 27 seats, indicative of semblance of competition.37 Though Ethiopia
experienced a disastrous civil war which led to the fall of the dictator (the
Derg) in 1991, yet Ethiopia failed in enacting a legitimate constitution in the
post-conflict era.

Nevertheless, during the making process of the 1995 FDRE Constitution,

many international principles were incorporated by its drafters to make it
more democratic. Especially, Chapter Three of the 1995 FDRE Constitution
guarantees most rights recognized in the Universal Declaration of Human
Rights (UDHR).38 Rights recognized in other international instruments like
International Convenient on Civil and Political Rights (ICCPR) were
incorporated into this constitution.

Also, the all-inclusive 1995 FDRE Constitutional making process was

contentious; hence, it was not all-inclusive in its drafting stage since most of
the political parties such as the OLF and AAPO have left the transition.
Additionally, its contents were criticized by some scholars such as Tsegaye
who have listed the major challenges of the Ethiopian federalism in
contemporary Ethiopia as follows : 39

The threat of secession and internal fragmentation, managing

extreme interstate imbalances, the task of state-building especially
in the economically impoverished and historically underserved
states, power-sharing in the executive office, the quest to have more
than one federal working language, choice of capital cities (both at
federal and state level) and the promotion of uniform human rights
standards in the face of the intensely polarized legal system.

However, the preamble of the Constitution talks about, living together based
on equality, building of common interest, and contribution to the emergence
of a common outlook, rectifying historically unjust relationships and by

37Ibid.
38 See, Chapter Three of the 1995 FDRE Constitution, Arts. 14-44.
39 Tsegaye Regassa, State Constitutions in Federal Ethiopia: A Preliminary Observation (A
Summery for the Bellagio Conference, March 22-27, 2004), P20.

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

further promoting our shared interests and to live as one economic

community.

Furthermore, the 1995 FDRE Constitution has incorporated some important

pillars of democracy such as, Sovereignty of the People, Supremacy of the
Constitution, Sanctity of Human and Democratic Rights, Secularism and
Accountability and Transparency of the government officials.40 But, the 1995
FDRE Constitution had failed in incorporating the so-called eternal
constitutional clause; even discussions had never been conducted on this
issue during its drafting phase. That is why, this Article strongly argues that
it is possible to build the Ethiopian constitutionalism and constitutional
culture on the 1995 FDRE Constitution for the future rather than dismissing
this constitution, and go for a completely new constitution in the present
Ethiopian constitutional reforms.

4. RETHINKING FOR ETERNAL CONSTITUTIONAL

CLAUSES, AND UMPIRING INSTITUTIONS IN ETHIOPIA
As assessed hereinabove, Ethiopia is neither successful in nurturing its
constitutional cultures; nor in utilizing earlier constitutions for developing
the later one. Always, the change of the government resulted in a radical
change in the constitution and constitutional culture in Ethiopia. Undeniably,
some changes happened in Ethiopia were supported by a revolution which
brought a paradigm shift in the overall political and constitutional aspects.
For instance, the 1974 Revolution, which dismantled the feudal system
drastically, shifted the ideology of the Ethiopian politics to socialism. The
change was from absolute monarchy to socialist government (from
monarchy to republic). The 1991 Ethiopian Revolution (May be Ethnic
Revolution or Multiculturalism) resulted in ideological change from
socialism to capitalism. When radical political and economic change occurs,
there may be a tendency of eradicating all legacies of previous regime. Still,
it was possible to consider eternal constitutional clauses on the area of
national identity, national interest, national symbol, and common national
consensus, especially, under the 1995 FDRE Constitution. Nevertheless, the
drafters of the 1995 FDRE Constitution had not been deliberated on the issue

40FDRE Constitution, Arts. 8-12.

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of eternal clauses, during their discussions on various constitutional

principles; consequently, it was not incorporated in the 1995 FDRE
Constitution.

Of course, incorporating the eternal clauses in a constitution is not an end by

itself since establishing genuine, independent, and functioning constitutional
institutions, to secure the values of eternal clauses is also necessary in
Ethiopia. As a result, impartial and independent umpiring constitutional
institutions those interpret and adjudicate constitutionality issues; both in
concrete and in abstract cases must be introduced to benefit from the values
of eternal clauses in the present Ethiopian federation. Therefore, to make the
concept of eternal constitutional clauses more workable; it is highly
necessary to introduce an independent constitutional adjudicatory organ, like
the Constitutional Courts, through removing politically sensitive institution,
like the House of Federation, in the current ongoing Ethiopian constitutional
and political reforms.

4.1 THE NEED TO INTRODUCE ‘ETERNAL CLAUSE’ IN THE

ETHIOPIAN CONSTITUTION

4.1.1. To Establish a Common Constitutional Identity/Value

As explained hereinabove, Ethiopia has never been blessed in adopting a

legitimate constitution since its creation. The previous constitutions have not
been utilized as a steppingstone for the new ones. Always a change in
government results in a change in the constitution and political ideology.
That means, there is a frequent paradigm shift in the Ethiopian political and
constitutional system. For instance, the monarchical system itself strived a
lot to imitate the monarchy of Japan through transplanting the Japanese
monarchical constitution. Nevertheless, the Japanese model was not
compatible with the Ethiopian circumstances, as Japan is a nation-state while
Ethiopia is a highly diversified one. Hence, Emperor Hailessilassie I was
forced to review his 1931 Constitution and enacted the 1955 Revised
Constitution of Ethiopia which was a direct replica of the West-Ministerial
Style at the time. Again, it had never worked at the time; then the 1955
revised monarchical constitution was completely changed to the Socialist
oriented constitution of 1987. Furthermore, the 1987 socialist constitution of

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Ethiopia was also replaced by the 1995 federal oriented constitution of

Ethiopia.

At this juncture, one can understand that Ethiopia has shifted from a
monarchical and unitary system to a socialist and unitary state structure; and
then transformed into a multinational federation. Amid all these political
turmoil’s, there has been no consensus on the issues of constitutional identity
or important national values and interests. For instance, there is no
agreement on several issues including, national identity, a national symbol
like National Flag and National Working Language, Structure of state
[federalism or unitary structure, multinational or geographical federation],
System of government [a parliamentary system of government or presidential
one]. Additionally, the establishments of regional states are also another
anomaly. Moreover, the status of the capital city, Addis Ababa and other
cities like Dire Dawa is also among the challenging issues in present-day
federalist Ethiopia.

Furthermore, Ethiopia has been disturbed by divergent political ideologies

and political parties. Firstly, there are political groups that strongly claim for
federation [Hence they put federalism as the best option for state structure
and government system in Ethiopia]. Secondly, unionist forces are claiming
to restore the old unitary state systems and thereby to ensure a nation-state in
Ethiopia. This group condemns federalism; specifically, ethnic federalism as
a dangerous system that will result in disintegration and civil war at the end
of the day. Thirdly, there are political groups that strongly claim for the right
to self-determination up to secession. These groups or political parties
comprise of Ethnic-based Liberation Fronts; and therefore, they are
struggling to make their ethnic group independent from domination or to
strengthen multicultural federation. These groups need to agree on common
constitutional value to introduce eternal clauses in the Ethiopian constitution.

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4.1.2 Strengthening Democracy and Rule of Law in Ethiopia

Of course, the term democracy and rule of law are omnipresent in the
modern political world. One may find these terms everywhere on the paper
even in the dictatorial regimes. Nevertheless, practising democracy and rule
of law in a certain country is a difficult task both for the government and the
opposition parties.

Ethiopia has been striving a lot to ensure rule of law and democracy for a
long period. Especially, upon the introduction of federalism in 1995 through
adopting the federal constitution in the same year; democracy and rule of law
were incorporated in the constitutional text, and repeatedly attempts have
been made by the Ethiopian government to implement the principles of rule
of law and democracy. For instance, the multiparty system was introduced
and elections were taken place many times in Ethiopia as a symbol of
democracy.41 However, still, even under the federal democratic republic-
oriented governance system, Ethiopia has failed to conduct a free, fair, and
democratic election since 1991. On the other hand, gross human rights
violations had taken place during these elections.42 Furthermore, Ethiopian
People’s Revolutionary Democratic Front (EPRDF) announced hundred
percent victories in the election that was conducted in 2015. Hence, these
acts of conducting undemocratic elections erode democracy and rule of law
in Ethiopia.

Beside this, ensuring rule of law is another difficult agenda in the Ethiopian
political and democratic reforms. Rule of law is directly related to
establishing a limited government in a certain country. It is a concept which

41 Ethiopia had conducted her first national wide multiparty oriented election in 1992. From
1992 onwards, Ethiopia had been conducting periodic elections per five years until today
[1992, 1995, 2000, 2005, 2010, and 2015]. Now, also there will be nationwide a multiparty
election in 2020 which is postponed into 2021 because of COVID_19.
42According to the European Union Election Observation Mission Final Report on the
Ethiopian Legislative Elections of 2005; in the post 2005 National Election of Ethiopia;
thousands of people were killed in the post-election throughout the nation. Especially,
hundreds of peoples were massacred in Addis Ababa [capital city] in the post-election
violent oriented demonstrations.

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

refers to a government based on principles of law and not of men.43 The

nature of limitations will vary with the society, culture, political and
economic arrangements; but the need for limitations on the government will
never be obsolete, where and when rule of law is respected.44 Today, rule of
law is the foundation of good governance. This requires adherence to
constitutional supremacy, recognition that government and the governed are
equal before the law, acknowledgment that government itself is limited by
the law and cannot engage in any arbitrary exercise of power, and
recognition that individuals are endowed with certain inalienable rights that
cannot be denied even by legitimately constituted governments.45

Certainly, rule of law depends upon the notion that claims powers of state
and government can be exercised legitimately only following the applicable
laws and according to laid down procedures; which are almost rare in the
Ethiopian scenario. Therefore, it is very important to introduce eternity
clauses under the Ethiopian constitution to ensure rule of law in Ethiopia.

4.1.3 To Entrench Human Rights and Fundamental Freedoms

in Ethiopia

In general, human rights are rights inherent to all human beings, whatever
our nationality, place of residence, sex, national or ethnic origin, colour,
religion, language, or any other status. We are all equally entitled to our
human rights without discrimination. These rights are all interrelated,
interdependent, and indivisible.46 The pertinent elements of human rights are
incorporated in international treaties, international customary laws,
covenants, declarations, national constitutions, laws like UDHR, ICCPR,
ICESCR, UN Charter, and others. The concept of human rights and
fundamental freedoms are also incorporated under the 1995 Federal
Democratic Republic of Ethiopian Constitution. Human rights and freedoms,

43 Alok Kumar Yadav, International Journal of Law and Legal Jurisprudence Studies Vol. 4
No.3), P6, available at: [Link] uploads/
2017/08/Rule_of_Law.pdf<accessed on 21 May 2020>.
44 Brian Z. Tamanaha, On the Rule of Law: History, Politics and Theory(Cambridge:
Cambridge University Press, 2004), P101.
45Alok Kumar Yadav, supra note 43, P3.
46Vienna Declaration and Programme of Action (1993, para.5).

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emanating from the nature of mankind, are inviolable and inalienable. 47 The
1995 FDRE Constitution has entrenched human rights and fundamental
freedoms broadly. Particularly, Chapter Three of the FDRE Constitution
guarantees human and democratic rights.48

5. PROPOSED ETERNAL CONSTITUTIONAL CLAUSES IN

ETHIOPIA (RESEARCHER’S PROPOSAL)
There is no concept of eternal clauses in any of the previous Ethiopian
constitutions including the current federal oriented constitution. However,
the 1995 Federal Democratic Republic of Ethiopian Constitution introduces
more stringent procedures on amending some specific constitutional
provisions.49Accordingly, there is a difference between the rules on the
amendment of constitution which can be strict or flexible ones as per the
1995 FDRE Constitution; but, the concept of eternal constitutional clauses
has never been recognized under this Constitution.

As per Article 104 of the 1995 FDRE Constitution, initiation of the

constitutional amendment follows the following procedures:

Any proposal for a constitutional amendment, if supported by

two-thirds majority vote in the House of Peoples’
Representatives, or by a two-thirds majority vote in the House
of the Federation or when one-third of the State Councils of
the member states of the Federation, by a majority vote in each
Council have supported it, shall be submitted for discussion
and decision to the general public and to those whom the
amendment of the Constitution concerns.

However, strict procedures are imposed to amend the human rights and
fundamental freedoms recognized under chapter three of the 1995 FDRE
Constitution as per its Article 105 as follows:

47 FDRE Constitution, Art. 10.

48 FDRE Constitution, Arts.13-44.
49 FDRE Constitution, Arts.104 and 105.

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1. All rights and freedoms specified in Chapter Three of this Constitution,

this very Article, and Article 104 can be amended only in the following
manner:
(a) When all State Councils, by a majority vote, approve the
proposed amendment;
(b) When the House of Peoples’ Representatives, by a two- thirds
majority vote, approves the proposed amendment; and
(c) When the House of the Federation, by a two-thirds majority vote,
approves the proposed amendment.
2. All provisions of this Constitution other than those specified in sub-Article
1 of this Article can be amended only in the following manner:
(a) When the House of Peoples’ Representatives and the House of the
Federation, in a joint session, approve a proposed amendment by a two-
thirds majority vote; and
(b) When two-thirds of the Councils of the member states of the
Federation approve the proposed amendment by majority votes.

However, the researcher strongly argues that imposing stringent amendment

procedures on core human and fundamental freedom is not enough to hold
Ethiopia as a single nation perpetually, and thereby to establish a
constitutional identity for the Nations, Nationalities, and Peoples in this
federation. Therefore, the researcher has proposed the following
constitutional provisions as an ‘eternal constitutional clauses’ in the ongoing
constitutional and democratic reforms in present-day Ethiopia:

5.1 FEDERAL AND DEMOCRATIC STATE STRUCTURE

Although there are different grounds to impose unamendable/eternal

constitutional clauses; many states recognize their structure of state or
system of government as an eternal clause. The best example is the German
scenario. According to the German Basic Law, the state of Germany remains
federal forever; or federalism remains state structure eternally or
unamendable constitutional provision in Germany.50

50 See the 1949 Basic Law of Germany, Art.79 (3):“Amendments to this Basic Law
affecting the division of the Federation into Länder, their participation in principle in the
legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.”

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In the same scenario, Ethiopia had been governed under absolute

th
monarchies since its establishment in the late 19 century. From Minilik II to
Hailesellasie I [from 1889-1974] absolute monarchies ruled Ethiopia.
Though the great revolution was conducted in 1974 and socialism was
introduced to Ethiopia; the quest for the national identity of numerous
Nations, Nationalities, and Peoples of Ethiopia had never been answered
until 1991. However, after disastrous civil wars were conducted between
various liberation fighters and the central government of Ethiopia51;
federalism was introduced to Ethiopia in 1991 upon the collapse of socialist-
oriented military dictator [the Derg regime] in post-1991.

Accordingly, federal oriented state structure has been recognized as a

response to the quest for national identity, right to self-determination and as
a rectification to the past historically unjust relationship among the Ethiopian
Nations, Nationalities, and Peoples. Of course, the federal-state structure is
recognized under the 1995 FDRE Constitution52; nevertheless, it is subjected
to amendment as per Article 104 and 105 of the same constitution.

Therefore, ‘a Federal and Democratic State structure’ shall be declared as

an eternal constitutional clause in Ethiopia, to guarantee the right of self-
determination for the Nations, Nationalities, and Peoples of Ethiopia. Hence,
the federal-state structure shall be recognized as unamendable constitutional
provisions in the ongoing constitutional and democratic reforms in present-
day federalist Ethiopia.

As this researcher argues, there may be two justifications for claiming ‘a

federal and democratic state structure’ as an eternal constitutional clause in
Ethiopia:

51The main liberation fighters during the regime of military dictator led by Mengistu
Hailemariam [the Derg regime] includes: The Eritrean People’s Liberation Front (EPLF),
The Tigreyan People’s Liberation Front (TPLF) and The Oromo Liberation Front (OLF) in
Ethiopia.
52 See Article 1 of the 1995 FDRE Constitution: “This Constitution establishes a Federal
and Democratic State structure. Accordingly, the Ethiopian state shall be known as the
Federal Democratic Republic of Ethiopia.”

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Firstly, Ethiopia was an empire established through war and conquest by

king Minilik II in the late 19th century. Minilik II had subjugated many
independent peoples like the Oromo, Wolaita, Sidama, Somalis, Hadiya, and
others after bloody wars were conducted. Since then, this empire has never
democratized. The victor and the vanquished people had been living together
for more than a century and a half in the Ethiopian Empire. Accordingly, the
1991 ethnic revolution [federalism] was introduced to mould a classless
society in Ethiopia in which all people are considered themselves as victors.
The Nations, Nationalities, and Peoples of Ethiopia also agreed to rectify
their historically distorted relationship in all aspects. Hence, a federal and
democratic state structure was introduced as a guarantee for the Nations,
Nationalities, and Peoples of Ethiopia, which bestows the right to self-
determination upon all the Nations, Nationalities, and Peoples of Ethiopia.
Consequently, federal and democratic state structures shall be declared an
eternal constitutional clause in Ethiopia.

Secondly, currently, unionist forces are claiming to restore the old unitary
state systems and thereby to ensure a nation-state. Especially, these groups
condemn federalism; specifically multicultural federalism as a dangerous
system that will result in disintegration and civil war at the end of the day.
Thus, the unionists and lovers of the monarchical systems are struggling to
dismiss the federal and democratic state structure in contemporary Ethiopian
politics. They are striving a lot to kick out the multicultural federation and to
restore the unitary state which propagates one language, one flag, and
probably one religion.53 Therefore, the suppressed Ethiopian Nations,
Nationalities, and Peoples shall struggle a lot to declare a federal and
democratic state structure as an eternal constitutional clause to save
themselves and the countries from disintegration.

5.2 HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

Human rights are rights related to the nature of mankind. Hence,democratic

governments must be based on the universally recognized human rights

53The unionist political forces claim Amharic as an Ethiopian language, Amhara culture as
an Ethiopian culture, most probably Orthodox Christianity as a state religion in Ethiopia
similar to the past monarchical governments of the Ethiopian Empire in the same manner
with their ancestors, the Amhara kings.

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frameworks. Also, the sanctity of human rights is recognized as one pillar of

the FDRE Constitution and human rights and freedoms, emanating from the
nature of mankind are inviolable and inalienable.54 Nevertheless, these
human rights and fundamental freedoms have not been respected and
enforced by the Ethiopian governments. Though human rights and
fundamental freedoms have been incorporated in the contents of the 1995
FDRE Constitution; these rights are not immune from the
amendment.55Therefore, it is very necessary to create Ethiopian
constitutional identity/basic constitutional values on these several elements
of human rights and freedoms. Accordingly, the protection of fundamental
rights, the protection of human dignity, the respect for the supreme federal
constitution, and the sovereignty of the people shall be governed under
eternal constitutional clauses.

6. CONCLUSION
Eternal constitutional clauses have paramount importance in ensuring a
certain country’s integrity, to entrench human and fundamental freedoms,
and thereby to create that country’s constitutional identity/values perpetually.
Accordingly, incorporating eternal constitutional clauses in a certain
constitution is very useful in establishing unshakable constitutional
guarantees which can be utilized as a ground norm in that specific state. With
slight differences, most constitutions contain eternal constitutional clauses on
the following constitutional topics: form and system of government; state’s
political or governmental structure; state’s fundamental ideology or identity;
basic rights; state’s integrity; and other provisions, unique constitutional
subjects (for example, immunities, amnesties, reconciliation and peace
agreements, taxation or rules governing nationality).56

Ethiopia as a country also has been suffering from several constitutional

challenges in its political history. The main challenge in the Ethiopian
constitution-making and remaking process is that the prior constitution has
never been utilized as a steppingstone for the later constitutions. As a result

54 FDRE Constitution, Art. 10.

55 See FDRE Constitution, Art.105.
56 Roznal Y, supra note 8.

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of this, Ethiopians have neither created their constitutional identity/values

nor recognized the eternal clauses on core constitutional and political
principles. Consequently, Ethiopians have not reached a consensus on
various constitutional and political issues, which include but not limited to
the issue of national identity, state structure, the form of government,
language policy, regional state formation and others to this date. Therefore,
Ethiopia has been facing multiple challenges as a result of these diverging
interests on basic constitutional and political values. Hence, this article
argues that Ethiopia should consider introducing ‘eternal constitutional
clauses’ on grand constitutional and political values during the ongoing
constitutional and democratic reforms currently.

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THE LEGAL STATUS OF COMMUNAL LAND TENURE SYSTEM

IN ETHIOPIA AND ITS CONGRUENCY WITH THE FDRE
CONSTITUTION

Nigatu Bekele 1

ABSTRACT

The article investigates the factors behind the dwindling condition of

communal lands and their legal status in Ethiopia in light of the country`s
international and regional commitments. As the nation is comprised of an
overwhelming proportion of agrarian community, who in addition to their
individual farmlands for crop production are highly dependent on communal
land and resources such as timber, firewood, traditional medicine, fodder
and thatching grass and places for ritual ceremonies. Currently, a
nationwide, communal land on which the life of the rural mass is based on is
admitted to be on the brink of literal disappearance. Even though a number
of factors ranging from climate change, population growth and others may
be ascribed to the dwindling of communal lands and landed resources, this
study argues, through a doctrinal analysis, that the denial of legislative
recognition on its part, categorically adds fuel to an unfettered extinction.
Thus, the writer urges government both at federal and regional (state) level
ought to accord sufficient legislative recognition of communal land tenure as
well as protection of legitimate tenure rights of the rural poor which has
survived for ages.

Key words: Communal Land, Land Tenure, Land Rights, Indigenous

Peoples, Rural Community, Livelihood

I. INTRODUCTION
Land is naturally limited resource whereas interests upon it are numerous.
Individuals desire to have land for personal purposes such as building
dwelling house, business premises and farming. The state on its part seeks to

1
LL.B (Mekelle University); LL.M (Hawassa University); Lecturer of Law at Wolaita Sodo
University, School of Law. Email: debbybekele@[Link] . As my first journal article, in
directing the how-to-write, a sheer part of the credit goes to Dr. MuraduAbdo, Associate
Professor of Law at Addis Ababa University.

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

establish public institutions under its private domain and roads, railways,
airports, recreation centers etc…falling under the public domain. Indigenous
agrarian and pastoral communities also desire to make use part of the same
parcel for pasture, source of water, timber, medicines, and the list goes on…
Based on a number of different rationales2, states across the world3 adopt one
form of land tenure system4 or another so as to successfully respond to the
differentiated interests over the land. Such land tenure systems (forms of
landholding) having been manifested in governmental policies, get blessings
of the lawmakers so that contrary activities will be effectively sanctioned.

Internationally, the rights of indigenous agricultural, pastoral and mixed

tenure holders have got recognition in major human rights instruments.
Among others, the United Nations Declaration on Rights of Indigenous
People5 (UNDRIP) affirms that indigenous people have the right to the full
enjoyment, collectively or individually, of all human rights and fundamental
freedoms as recognized in the Charter of the United Nations, the Universal
Declaration of Human Rights (UDHR), and International Human Rights
Law.

2
Parker Shipton, Mortgaging the Ancestors: Ideologies of Attachment in Africa (Yale
University Press, 2009), P2.
3
For example, Shipton claims that numerous African governments, with advice, support,
and some arm twisting from outside Africa, have been gearing up at the start of the
millennium to title farmland as private property in the hands of individual or group owners
to make it more marketable and able to be mortgaged.
4
Throughout the world, there are four very well-known land tenure systems. The first one is
a private land tenure which assigns rights over land to a private party who may be an
individual, a married couple, a group of people, or a corporate body such as a commercial
entity or non-profit organization. The second one is communal land in which a right of
commons may exist within a community where each member has a right to use
independently the holdings of the community. For example, members of a community may
have the right to graze cattle on a common pasture. The third one is open access land tenure
system, where specific rights are not assigned to anyone and no-one can be excluded. This
typically includes marine tenure where access to the high seas is generally open to anyone; it
may include rangelands, forests, etc… where there may be free access to the resources for
all. The last type, state land tenure, is a category in which property rights are assigned to
some authority in the public sector. For example, in some countries, forest lands may fall
under the mandate of the state, whether at a central or decentralized level of government.
5
Resolution adopted by the General Assembly on the 107 th plenary meeting 13 September
2007, which is not ratified by a few states, including Ethiopia.

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

The UNDRIP has included the rights of the indigenous people to self-
determination; freedom from discrimination; control over the development
that affects them; cultural rights in economic, social, and political including
education, art, and literature; recognition of their customary laws; and
redress rights in the event of takings of indigenous knowledge and property. 6
It confirms the right to traditional knowledge; collective rights; the right to
self-determination; the right to be consulted and as a state`s duty to consult;
rights to lands, territories, and resources, including to strengthen and
maintain their spiritual ties to the land traditionally owned, occupied, and
used; and recognition of their land tenure.7 In a related manner, the
International Convention on Civil and Political Rights (ICCPR), under article
1(2), prescribes that:

All peoples may, for their own ends, freely dispose of their
natural wealth and resources without prejudice to any
obligations arising out of international economic co-
operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its
own means of subsistence.

In contemporary Ethiopia, the issue of land tenure system hangs on the

private versus state land tenure dichotomy. Scholars have fiercely argued
against each other’s side usually ignoring or at least not prioritizing issues of
communal land tenure systems, which are practised in over 61% of the
nation’s total landmass by pastoralists and other indigenous communities.
Even though there is a meager provision in subordinate laws regarding
communal holdings8, these laws denied a concrete and practical basis which
the state and private holdings retained as such. In other words, communal

6
UNDRIP, Preamble.
7
Article 26 specifically provides that (1) Indigenous peoples have the right to the lands,
territories and resources which they have traditionally owned, occupied or otherwise used or
acquired. (2) Indigenous peoples have the right to own, use, develop and control the
lands, territories and resources that they possess by reason of traditional ownership or other
traditional occupation or use, as well as those which they have otherwise acquired. (3)States
shall give legal recognition and protection to these lands, territories and resources. Such
recognition shall be conducted with due respect to the customs, traditions and land tenure
systems of the indigenous peoples concerned
8
For example, Proc. No.456/2007, Art.2 (12); Proc. No. 110/2007(SNNPRS), Art. 2(14).

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land is both given by, and subject to conversion to private holding at the
prerogatives of the state.

As a distinct category, communal land tenure is a system which is

characterized by non-exclusive use in which a group of people have co-equal
rights.9 The resources falling in this category may include community
pastures, forests, wastelands, common dumping and threshing grounds,
watershed drainage, village ponds, rivers, as well as their banks and beds.10
Since access to such land is exclusive to the identified local community,
management would be carried out by the community by developing certain
locally crafted norms.

The writer contends that the neglect of the concept of communal land tenure
in the FDRE Constitution, the supreme law of the land and its subordinates
might result in a situation of communal land tenure insecurity, and thus
total/partial loss of livelihood in the rural society of Ethiopia. Against this
backdrop, the article intends to examine the existing legal framework in
addressing the problem and the kind of legislative mechanism so as to stop
the dwindling of communal lands.

This article is organized into four sections. Accordingly, the first section is
an introduction, aimed at showing the framework of the concept in general,
and acting as a blueprint to navigate through. The second section is devoted
to an investigation into the legal status of communal lands in Ethiopia, on the
one hand, and the driving forces behind the dwindling pace of the same
resources, on the other. At the end, conclusions and recommendations
follow.

II. NATURE AND FORM OF LIVELIHOOD PERSPECTIVES

VIS-À-VIS CLTS

Rural livelihood is almost completely based on agriculture, whether farming,

animal rearing or their combined form. Rural households often pursue
diverse livelihood strategies, including farming, herding, off-farm

9
Liz Alden Wily, The Tragedy of Public Lands: The Fate of the Commons under Global
Commercial Pressure (International Land Coalition, 2011) ILC 4.
10
Ibid.

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employment, and the exploitation of natural resources through hunting,

fishing, and gathering. According to Chambers and Conway, livelihood
comprises the capabilities, assets (stores, resources, claims and access), and
activities required for a means of living: a livelihood is sustainable which can
cope with and recover from stress and shocks, maintain or enhance its
capabilities and assets, and provide sustainable livelihood opportunities for
the next generation; and which contributes net benefits to other livelihoods at
the local and global levels and in the long and short term.11

Central to the framework is the understanding that the relative availability of

various “capital assets” shapes the livelihood options of rural households in
developing countries. These assets include financial, physical, human, social,
and natural capital.

Livelihood perspectives with regard to communal lands try to explain the

role of such lands as an alternative resort in easing the burden attached to the
lands of the peasant primarily used for crop farming.

III. THE LEGAL ASPECTS OF COMMUNAL LAND RIGHTS

IN ETHIOPIA

As far as the Ethiopian jurisprudence on land tenure in general is concerned,

countless critics were forwarded on matters such as the denial of the
government in loosening the awkward restrictions in the transfer of land
rights. This does not, however, connote that communal land rights are not
affected in a decisive manner. From top to bottom, almost all legislations
exhibit fundamental problems from the perspective of recognizing and
protecting communal lands on which a sheer number of the rural poor
depend on. Therefore, the FDRE Constitution and pertinent laws on rural
land will be the subject of rigorous scrutiny in the above context.

[Link] FDRE CONSTITUTION

The recent Constitution (unlike its predecessors which inculcated a tradition

of a highly centralized state structure) substantially brought about
decentralization of governmental power based on ethnic federalism, from

11
Chambers, R. and Conway, G.R., Sustainable Rural Livelihoods: Practical Concepts for
the 21st Century (Brighton: Institute for Development Studies, 1991, IDS Discussion paper
#296).

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

which local governance over resources can be assumed. A renowned

personality recited:

Since 1991, Ethiopia has embarked upon a bold experiment in

the conduct of public life. The hallmark of experiment is a
readiness to face the fact of ethnic diversity. New political
arrangements aim to shape the Ethiopian identity around the
country's constituent nations and nationalities . . . Even in this
era of politics of identity, Ethiopia's resolve to extend full
public recognition to her varied national communities is
unique. It [the right to self-determination including and up to
secession] is now a constitutional entitlement. All cultural
communities are entitled to fair representation in the
institutions of state and federal government. Territorially
based nationalities exercise wide powers of self-government
in political, economic, cultural and educational affairs. The
result is a political order open to cultural diversity, self-
expression and autonomy.12

The manner in which the principle of popular sovereignty is articulated

in the Constitution influences the rights of communities as reflected in
various provisions such as those related to federal structure as well as the
supremacy of the Constitution. Constitutional laws normally guarantee
rights and freedoms and are thus considered as 'rights documents'. In
this regard, the FDRE Constitution is no exception, and almost one-third
of its provisions are designated to 'Fundamental Rights and Freedoms‟ .
In light of the inclusion of group rights to which the Constitution
anticipated the rural farming and pastoral communities as the main
beneficiaries, they have the right to self-determination under the Constitution
which encompasses, among other things, the right to a full measure of self-
government. Such a right can be taken to mean that the Constitution is liberal
as far as the exercise of communal land rights is concerned.

12
Andreas Eshete, Ethnic Federalism: New Frontiers in Ethiopian Politics (In
Proceedings of the First National Conference on Federalism, Conflict and Peace
Building, Ministry of Federal Affairs of the Government of the FDRE, Addis Ababa,
2003), P142.

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Nonetheless, a critical look into the Constitutional provisions display that the
above assertion is not always true. In this regard, the definition of private
property in the FDRE Constitution is a crystal clear example:

Private property is any tangible or intangible product which

has value and is produced by the labor, creativity, enterprise
or capital of an individual citizen… Every Ethiopian shall
have the full right to the immovable property he builds and to
the permanent improvement he brings about on the land by his
capital. This right shall include the right to alienate, to
bequeath, and, where the right of use expires, to remove
his property, transfer his title, or claim compensation for
it.13

The gist of this sub-provision shows an emphasis on improvement. In other

words, unless an improvement is made on land which exists naturally, it
becomes hard to establish a legally enforceable right. In the words of
Muradu:

The Constitution has thus adopted the concept of improvement.

Under this Constitution, for any person to have a legal
claim over land, they must show that they have made an
improvement traceable to their labor and/or capital. One
cannot claim land without establishing improvements thereon.
Unimproved land in this sense belongs to the state. Those who
merely extract the bare natural fruits of communal land cannot
under this approach claim to have a right over those resources
for they have not met the requisite condition for claiming such
right.14

It is evident that one can arrive at a probability that the FDRE Constitution
recognizes communal land rights by way of positive interpretation of the
contents of Article 39 in a holistic approach. However, such an articulation
invites a heavy debate over the issue of communal land rights. In other
words, it may be argued that the collective rights mentioned under Article 39

13
The 1995 FDRE Constitution (hereafter the Constitution), Art.40 (2 & 7).
Muradu Abdo, State Policy and Law in Relation to Land Alienation in Ethiopia(University
14

of Warwick, 2014), P 204.

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can effectively be exercised only if the rights of NNP to own, possess and
manage their communal lands using their own system are also explicitly
recognized as a distinct tenure system.

Despite the fact that an abstract form of joint ownership of the people and the
state over land is proclaimed in the Constitution, it was also established in
black and white that the government is the only personality with the power to
administer the land.15 To put it in a nutshell, the concept of communal land
tenure has no constitutional recognition in the Ethiopian legal system. Many
other writers on this point stress that this kind of standing inculcates a
perpetual disregard for communal land tenure:

This perpetuates the perception that community land tenure is

less important and therefore, less secure form of tenure
relative to private and public land tenure which are already
provided for under the Land Act and Land Registration Act (of
Kenya). References to community land in these laws in a sense
pre-empts innovating landing of issues under the yet to be
enacted Community Land Bill. It is therefore likely that the
perception of community tenure as transient, and the parceling
out of community land into individually held pieces, ostensibly
as a defense against future land-grabbing, will persist. This
raises the possibility that constitutional recognition of
community land rights might eventually be inconsequential as
the subject matter itself is fast disappearing before the
necessary law can be enacted. 16

As will be seen immediately below in conjunction with the data obtained

from the field research, the few segments of communal lands and resources
for which legal scholars and other developmental partners are lobbying on
the brink of literal disappearance.

15
FDRE Constitution, Art.40 (3).
16
Constitution of the Republic of South Africa (No.108 of 1996), Art. 25 (5-8).

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3.2. SUBSIDIARY LEGISLATIONS: FEDERAL VS REGIONAL

DISCREPANCIES

3.2.1. The Federal Rural Land Law

On the contrary, it has been long since a handful of African17 and other states
have duly recognized the relevance of communal land tenure system into
their formal legal system with the view to move in tandem with international
and regional commitments pledged towards observing the rights of
indigenous pastoral and small-scale agricultural as well as forest dependent
communities. Concomitantly, framework legislation on land was
subsequently issued by the Ethiopian Federal Government which sets the
basic tenets for the regional governments to administer the land under their
respective jurisdiction.

In fact, despite the federal framework legislation governing the whole land of
the nation, regional states always enact a similar legislation with an equal
footing with that of the federal law. Some critics say that it is
unconstitutional for regions to enact law on land, which is reserved to the
federal government. The regional governments are supposed only to
administer land based on the federal laws for that matter. In the next sub-
section, the author tries to show whether the legislation on land endorsed the
concept of communal land tenure (which has long been practised by the rural
society)18.

This law is entitled as “FDRE Rural Land Administration and Land Use
Proclamation.” It was adopted in July, 2005 replacing its predecessor,
Proclamation No. 89/1997. The scope of application of the law is throughout
the country, as envisaged under Article 4 of the proclamation. Regional
governments are given the power to enact rural land administration and use
laws, which consists of the detailed provisions necessary to implement this

17
In this regard, the Communal Land Rights Act of the Republic of South Africa, the
Community Land Bill and 2010 Constitution of Kenya are the prominent ones.
18
Up to now, we have been concerned with norm changes initiated by the law to be followed
by behavioral changes. But, unless we define social change tautologically as identical with
norm changes, which seem unjustifiable, we must accept three possible types of change __
norm change followed be behavioral change, behavioral change followed by norm change or
law as response to change.

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

proclamation.19 The proclamation states “peasant farmers/pastoralists

engaged in agriculture for a living shall be given rural land free of charge”. 20
Any person who is a family member of a peasant farmer, semi pastoralist or
pastoralist having the right to use rural land may obtain rural land from his
family by donation, inheritance or from the competent authority.21

Thus, the means of acquisition of rural land is either through family

inheritance or donation, or through government provision. Since land is
owned by the State and the people, peasants’ title to the land is only of a
usufruct in nature. The proclamation defines “communal holding” as “a rural
land which is ‘given by the government’ to local residents for common
grazing, forestry and other social services”.22 It is a bare fact that human
community preceded government in its modern form. It follows
therefore, that such communities maintained certain identifiable plots of
land for common purpose. In the ancient and medieval times, kings have
accorded due regards for such communal possessions in different parts of the
world.23 For example, the Kawo (king) of Gofa ethnicity in Ethiopia
believed that communal land is sacred, as such. The book entitled yegamo-
gofa hizboch tarik has this to say:

There were also reported to be different kinds of lands in

addition to the family holdings. Basically, land is classified as
agricultural, grazing, settlement and other social services such
as fields for funeral (bale), (qaa’e) wedding (yaagano) fortress
(ola-mitha) and ritual ceremonies. Generally speaking, lands
of special relevance such as mentioned above are under the
supervision of the bitantte (landlord).24

The definition of communal land in the federal rural land proclamation is an

assertion that the government is the ‘giver’ of communal holding and thus, it

19
Federal Rural Land Use and Administration Proclamation No. 456/2006 (here in after
FRLUA), Art. 17(1).
20
FRLUA, Art.5 (1)(a).
21
FRLUA, Art.5 (2).
22
FRLUA, article 2(12)
23
Ye Gamo-Gofa hizboch tarikketinteske 1974 (Gamo-Gofa Zone Information Department,
2002), P75.
24
Ibid.

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is an act of putting the cart before the horse. A government which did not
exist when traditional communities came into being since time immemorial
can in no way claim of giving communal land. Rather, it would have better
recognized that there were lands long been possessed by communities for
various common purposes.

3.2.2. The SNNPRS Rural Land Use and Administration

Proclamation No.110/2007

Practically, to administer rural land, the regional states enact land law based
on the framework legislation of the federal government.25 However, the
wordings of the constitution in this regard does not entrust them to enact a
law, rather simply administer based on the federal law. 26 Be that as it may,
SNNPRS rural land use and administration proclamation seems a little bit
aware of the age old possession of communal lands and thus followed an
approach directed towards recognizing communal lands being used for long
time by a given community.27 In light of the age old trend of regional states
reflecting a carbon copy of federal laws, such a trend of clearly recognizing
communal land is highly commendable.

3.2.3. The Amhara National Regional State Rural Land

Administration and Use Proclamation of 2017

This Proclamation mandated rural land management and rights and use of
rural land in Amhara National Regional State. In principle, it applies to all
rural lands but provisions of special laws (relating to forestry, wildlife
protection, bio-diversity resources, natural resource and environmental
protection, mines developments etc.) shall continue to apply. The legislation
concerns, mainly; the right to acquire land; land re-distribution; the right to
hold land; land use; measurement of land and certification and registration of
landholding rights; expropriation of land for public use; dispute resolution;
transfer of a landholding right; obligations of the land user. Whereas the
right to ownership of land is vested in the state and the public,it is impossible
to transfer the land holding to other in sale or in exchange by another

25
See the FDRE Constitution, Art. 51 (5).
26
See the FDRE Constitution, Art.52(2).
27
SNNPRS Rural Land Use and Administration Proclamation No.110/2007, Art.2 (14).

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property. Any farmer residing in the region, regardless of gender or any other
reasons of difference, have equal right to landholding.

With regard to communal landholding, the vision of the law seems exactly
similar with that of the SNNPRS rural land use and administration
proclamation. As a result, a clear recognition of communal landholding can
be deduced from the definitional part of the legislation which goes:

“Communal Holding” means rural land which is out of the

ownership of the government or private holding and used by the local
people in common for grazing, forestry and other social services.”28

11/ “Communal landholding” means land which is neither state owned nor
individually held; and which is held and used by communities for grazing,
forestry, and other social services, etc.

3.2.4. Expropriation of Landholdings for Public Purposes, Payments

of Compensation and Resettlement Proclamation No. 1161/2019

This proclamation has also taken account of the existing realty of rural
livelihood which is supported by communal lands to greater extent. Like its
Amhara and SNNPRS counterparts, it explicitly recognizes communal land
tenure system. The proclamation reads:

“Communal landholding” means land which is neither state owned nor

individually held; and which is held and used by communities for
grazing, forestry, and other social services, etc;29

The proclamation further goes to the extent of awarding Displacement

Compensation for Communal Landholding. According to the proclamation,
the valuation method and manner of payment to permanent and temporary
expropriation of communal land holdings is determined in a directive to be
issued by Regional States, Addis Ababa, Dire Dawa City Administrations

28
See the Revised Rural Land Administration and Use Determination Proclamation
No.133/2006, Art. 2 (5).
29
Expropriation of Land Holdings for Public Purposes, Payments of Compensation and
Resettlement Proclamation No.1161/2019, Art. 2 (11).

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and take into consideration: a) Valuation of displacement compensation for

communal landholding based on the use of the communal land; or the lost
benefits and livelihood of the displaced People. b) based on the clearly
identified members of the community using the communal land c) based on
the clearly determined method of allocating the displacement compensation
money or the use of it in kind to all members of the communal landholding
community.

With respect to compensation for expropriation of communal land, the

intergenerational nature of the later makes it impossible to compensate the
future generation. Therefore, the lack of clarity of the law in this regard
deserves rethinking so that compensations are not oriented only to the
current generation.

3.2.5. The Revised Draft Federal Rural Land Legislation

The previous successive laws on rural land including the federal constitution,
to date, experienced blatant opposition by the advocates of private ownership
on accounts of lack of efficiency and refusing to release the people from
indefinite, involuntary attachment to the rural land.30 Unlike the traditional
expression of the law and practice, a critical look at the draft law will
uncover whether the quest of communal land tenure is satisfied or not. This
stems from the fact that the community is ahead of the statutory law in
maintaining communal land tenure as a third distinct type. Therefore, such
an incident forces one to analyze a certain empirical phenomenon in a vice-
versa, i.e, the practice and the law fashion. Put in a nutshell, statutory laws
are in a gradual process of endorsing the behavior of the rural community as
a norm deserving sanction.

IV. MAJOR ISSUES ADDRESSED

a) Abandonment of the one-size-fits-all approach.

The absurdity of governing the whole nation by a single, uniform legislation

is clearly felt by everyone. The referrals in the draft federal rural land law
that majority of the details of the rules governing the land shall be decided
based on laws to be enacted by regional states according to their specific

30
Draft Federal Rural Land Proclamation of 2014, Preamble, Paragraph 2.

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circumstances may be aimed to show the departure from the one-size-fits-all

approach pursued by the previous laws.

b) Dedication to observe international commitments on pastoral

land rights.

The draft land law, in its preamble reiterated that due emphasis will be
accorded to the customary land use and management practices of the pastoral
community. The duty imposed on regional land laws to accord due
recognition to customary institutions, land use, management and conflict
resolution mechanisms and the attendant tasks of support and follow up31 is a
good turn. This will in the future, put a tougher task on the government to
follow a hands-off approach as far as respecting the integrity of communal
lands on which the livelihood of the pastoralists is based.

c) Indications that land and other resources could be held

communally

Article 2(4) of the draft legislation; while defining government holding by

definition through exclusion implied that communal lands do in fact exist
irrespective of governmental provision.32 This positive tendency is
reinforced by a robust recognition of communal land per se in article 2(11)
as a land held by local people for social, economic and other purposes.
Accordingly, the phrase ‘given by’ is changed by the phrase ‘held by’. The
categories of land tenure as expressed in article 5 of the draft law are also
unequivocal indication that recognition of communal land tenure is
increasingly becoming an imperative.

d) Registration and certification of communal lands

The previous legislation simply provided that communal land is a land given
by the government to local residents for a number of purposes. It did not
provide for the registration and certification of communal lands per se. In the
draft legislation, however, in addition to the recognition of communal land

31
Draft Federal Rural Land Proclamation of 2014, chapter 7, Art.19.
32
The draft law defines government holding as a holding which is neither private nor
communal, but includes governmental holdings (which is a viscous definition resulting from
poor draftsmanship), forest lands, wildlife sanctuaries and protected areas, lakes, rivers and
others held in a similar nature.

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tenure as a distinct type of its own, registration and certification creates an

opportunity through which a wholesale appropriation or gradual contraction
in the size of communal lands will be abated.33 In this connection, security of
communal landholdings at the time of registration is taken to be the duty of
the registering organ.34

e) Conversion of communal land to private holding prohibited.

The previous legislations on land put the option of turning communal land
tenure at the will and whim of the government. In other words, the mere fact
that the government believes that it is feasible to do the conversion suffices
to make it a reality. However, the draft law has made an unequivocal
departure indicating that regional governments can dictate neither partition
nor conversion of communal land to private on their own. Conversion will
only be effected after having conducted sufficient research with affirmative
findings and concerted willingness on the part of pastoral and farming
community. However, in a situation where genuine progress of rule of law is
at a stake, the probability of manipulating the pure consent of the community
through elite capture is feared to materialize.

V. PENDING ISSUES

a) The concern of small-scale peasants and other communal land

dependent communities
The benefit that communal land yields to small-scale farmers and other
poorer sections of the rural community shall not be underestimated. Even
though expanding agriculture on communal lands is not as bad as such, it
benefits only the farmer and his/her family blocking the fortunes of the
greater multitude who lived on the resources of the communal holding. Their
issue needs to be clearly and unequivocally considered in the rural land laws
to be enacted in the future.

33
Draft Federal Rural Land Proclamation of 2014, Arts. 1 and 2.
34
Draft Federal Rural Land Proclamation of 2014, Art.32 (3) (c)).

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b) Rental of communal lands of pastoral and small-scale peasants

In a time when the existing communal lands are far less beyond the demands
of the rural population, the possibility of renting such resources may
facilitate manipulation of the interests of the mass by a few corrupt political
and economic elites.35 In addition to that, the draft legislation does not
clearly indicate the modality of sharing benefit gained from rental of
communal lands among the inhabitants surrounding a communal land. Even
though the presumption is that the local community, not the state is direct
beneficiary to that end, an unequivocal indication on the issue brings about
certainty at the time of enforcement.

c) Separate legislation on communal land tenure

The global, regional and local threats on communal land tenure system as
exercised by indigenous peoples in Sub-Saharan Africa in general and
Ethiopia in particular is of such a nature that a separate legislation capable of
addressing their concerns in a wholesale manner is of prime importance.
Therefore, a legislation addressing solely the subject matter of communal
land tenure and attendant problems need to stand on its own.

VI. CONCLUSIONS AND RECOMMENDATIONS

6.1. CONCLUSIONS
The Article has investigated the legal status of communal land rights in
Ethiopia from the point of view of livelihood perspective. Accordingly, the
article has investigated to test the doctrinal congruency between the
commitments the country has made while signing normative instruments to
observe at international and regional level on the one hand and the municipal
laws on the other. The bill of human rights and other soft laws of global and
regional origin require that the state should not intervene in certain people’s
link with what they have traditionally been attached for livelihood.

After a critical look into the Ethiopian laws, unfortunately, it can be said that
neither recognition nor protection is accorded to the concept of communal
land rights. Even though recent legislation on rural land tends to regard

35
Draft Federal Rural Land Proclamation of 2014, Art. 21.

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communal landholding as distinct in itself, the provisions carry with

themselves a number of pitfalls. Last but not least, without having the
wordings for the definition of private property in the FDRE Constitution
reshuffled in a way which gives full recognition to the lands to which local
communities have traditional attachment, land rights as a sub-category of
human rights cannot be free from obstruction.

6.2. RECOMMENDATIONS
Legal and policy documents dealing with land tenure in Ethiopia are based
more or less, on the theory of the tragedy of the commons. Consequently,
from the two alternatives offered by the proponents of this theory, i.e.,
privatization or state control of the commons, the latter approach (the
revisionist perspective) is opted for by the Ethiopian government.
Researchers such as Clarke and others have found that “theoretically sound
policies in sub-Saharan Africa have either been unworkable in practice or
have failed to achieve the intended objectives”. In this regard, the Ethiopian
legal and practical scenario is no exception. It has, therefore, prompted the
author to recommend the following:

First and foremost, there is a pressing need to make communal land rights
equal in weight and standing to the other two forms of tenure regimes. With
this conviction, the law should clearly define ‘community’ by making use of
parameters such as: how the community is organized; the rules that hold the
community together; and who holds the rights within that community. It is
important note that the definition adopted for ‘community’ is very flexibly so
as to be non-exclusionary and to allow for evolution, flexibility and
adaptability over time. Definitions simply based on culture or ethnicity alone
should be avoided as it can ignite inter-ethnic tensions, conflict or violence.
It is also important that membership to a community should be based on use
of land and not on family lineage or transfer of title. In this regard, legal
proof of claims on communal land should be aligned at least, by formalizing
landscape-based evidence.

Secondly, the law should clearly provide for demarcation of communal land
such as maps and boundaries, in order to protect community land from
encroachment. Special attention should be accorded to communal land in or
around urban areas in order to ensure that they are properly vested and used.

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Within the communal lands, communal areas, customary rights of way and
shared land use and access rights should be legally protected.

Third, the principles of protection should be clearly spelt out. These should
detail among other things, how the community rights are recognized and
protected; registration of rights to land; multiple land users including women
and children; land use planning and sustainability issues; processes of
compulsory acquisition of community land; rights of way and grazing rights;
and conversion of communal land to other uses. Of particular interest is the
urgent need to explicitly establish and protect women's and children’s right
to exercise a meaningful use right over communal land as this has
traditionally been opted out in many customary practices.

Fourth, the laws should clearly state who can transact the community
land on behalf of the community and the nature of permissible transactions.
Here, it is important that the ultimate land rights to community land be
vested in communities and not under the name of any individual members of
the community to avoid cases of misappropriation of community land by
group representatives as was the case in the past. The laws should also
provide for and encourage the creation of community bylaws and land and
natural resource management plans.

Fifth, the laws should provide on how rights are to be enforced including
rights and entitlements of individual members within communities.

Sixth, the laws should state clearly how the community land rights are to be
delivered i.e. registration of titles.

As a matter of practical intervention, the author recommends the following:

In a state where transformation from agriculture towards industry in its

infancy, the importance of land, especially rural land is a way out to meet the
needs of the ever expanding young population. Thus some portions of the
Communal lands may be granted for venturing into agriculture with careful
scrutiny. In other words, the government shall have the duty to protect the
Communal lands from being grabbed by individuals who are not in a
pressing need for land to meet basic items of livelihood.

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

The existing normative conflict between the federal and regional

governments in recognizing communal lands is also worth noting. In light of
the SNNPRS and ANRS rural land laws which boldly recognize communal
land laws, the federal counterpart is lagging behind. To be in tune with the
FDRE Constitution which claims to create a one economic community, it
becomes imperative to amend the land laws so that sufficient recognition is
accorded to communal lands per se.

To save communal lands both in size and quality, traditional institutions of

communal lands administration need to come back to their revival by the
assistance of the government. A strong traditional leadership in land
administration with effective and conclusive decision-making power needs to
be entrenched into the rural society.

Given the pressures of projected population growth, increased resource

demand and a trend towards privatization of communal land, the commons
are under increasing threat. Unclear and ineffective tenure arrangements only
exacerbate the situation. Practical solutions are therefore needed now more
than ever. This paper advocates for recognizing their legitimacy and
empowering communities to manage the commons through secure tenure
and mandating state agencies to build the effectiveness and accountability of
local institutions. If the implementation issues can be overcome, increasing
security of communal tenure can provide a basis for more sustainable
management of the commons and offers hope that the sustainable
development promised under international law can be more than rhetorical.

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CONTRACTUAL ACQUISITION AND TRANSFER OF

IMMOVABLE PROPERTY OWNERSHIP SYSTEM UNDER
ETHIOPIAN LAW

Kumela Firisa *

ABSTRACTS

This study aims to examine the immovable property ownership transfer system in general and
that of Ethiopia, as a civil law country, in particular. It attempts to bring forth the globally
recognized French casual consensual model, German Abstract tradio model and the mixed
systems of immovable property ownership transfer to the attention of readers. The article also
tries to locate the Ethiopian system of immovable property ownership transfer into the
perspective of the recognized models of immovable property ownership transfer for better
understanding. For the transfer of ownership of Immovable property under Ethiopian law, two
main cumulative conditions of valid underlying cause (contract) and Registration in the
Registry of Immovable property are required to be met. The registration requirement under
Article 2878 of the Ethiopian Civil Code along with some of the Supreme Court cassation
decisions leads to the conclusion that Ethiopia adopted the French Model of casual
consensual real property transfer system where ownership transfer upon consent only without
further requirement of title transfer registration. Consequently, the registration requirement
under these scenarios seems only for publicity purpose having only declarative effects with
third party protection in mind. Considering the property law provisions of the same code and
other legislations concerning real property registration, however, it appears that Ethiopia as a
system adopts the mixed system of immovable property ownership transfer where both the
valid contract, as a legal ground, and registration of title transfer as a mode of
acquirement(not only for publicity purpose) are requirements. The Ethiopian system of
immovable property transfer, being approached from the above seemingly contrasting views,
appears to be ambivalently oscillates between the systems of casual consensual and casual
tradition systems of immovable property ownership transfers. The paper, therefore, juxtaposes
the contract and real property law provisions of Ethiopian law, on the one hand, and the
Supreme Court Cassation Division decisions, on the other hand, in contending that Ethiopia
adopted mixed model of immovable property ownership transfer.

Key Words: Immovable Property, Ownership Transfer, Registration of Title Transfer; Mixed
System of Property Transfer, Legal Ground for Transfer, Manner of Acquisition

* LL.B (University of Gondar), LL. M Candidate (Bule Hora University). Currently serving
as Woreda public prosecutor;Email address: kumelafirisa@[Link] or
firrisaakumalaa@[Link]). The author would like to thank Husen [Link](LL.B, LL.M,
LL.D at the Law School of University of Eastern Finland) for his valuable comment and
suggestions on the first and early draft of this manuscript. My thanks go also to the
anonymous reviewers of this article for their constructive and encouraging comments.

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1. INTRODUCTION

The origin of private property remains a mystery. 1 After one discovers the
source of private property, one still must justify the rules governing its
transfer.2 Legal rules require owners to go through prescribed rituals, such as
transferring possession of the property or noting one’s interest in a public
filing system.3 The various rules governing the transfer of ownership rights
in property ensure that whoever owns a piece of property can dispose of it or
its incidences readily and that who acquires an interest can be confident he is
acquiring good title or rights to the property. 4 Admittedly, the legal
terminologies, “acquisition of ownership’’ and “transfer of ownership’’ carry
different connotations in legal parlance. Given the derivative mode of
acquisition of ownership, where the title of the transferee (new acquirer) is
dependent on the validity of the title of the transferor (former acquirer), it
can be said that the same rule regulates both acquisition and transfer modes.5
That means, the rule for one who transfers is the rule for one who acquires
ownership in case of derivative acquisition of immovable property.6 Thus, it
is in this context that this paper uses these terminologies throughout this
paper.

Systems of acquisition and transfer of property in general and that of

immovable property might be different across jurisdictions. Countries of
continental civil law system and common law system adopt different systems

1Baird, Douglas, Thomas Jackson., Information, Uncertainty, and the Transfer of Property
(Centre for the Economic Analysis of property Rights, Economics and Law Workshop
Papers, 83 – 05, London, ON: Department of Economics, University of Western Ontario,
1983).
2Ibid.
3Ibid.
4Ibid.
5 For example, the Ethiopian Civil Code recognized four modes of acquiring property (See
Arts.1151 – 1183). These are occupation, possession in good faith, accession and
Usacaption. Whilst these are original modes of acquiring property, only the latter two modes
apply in relation to immovable property. What is discernible from this is that the Ethiopian
Civil Code does not regulate the derivative acquisition of immovable property ownership
independently. Therefore, the same rules regulating transfer of ownership of immovable
property (Article 1184, 1185, 1189 and 1190) apply in the derivative acquisition of
immovable property.
6That is why transfer of ownership has been stipulated as a ground for extinguishment of
ownership for the transferor and a base for acquisition for the transferee under Art.1189 of
Civil Code of Ethiopia.

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of acquisition and transfer. Some of the states within the continental civil law
system, as will be seen here under, adopt French model of the casual
consensual system of immovable property ownership transfer where the
consent of the contracting parties is sufficient to transfer ownership without
the requirement of registration as a constitutive element.7 Other countries
follow the Germanic model of abstract tradition (formalism) system of
immovable property ownership transfer. In this latter system, the consent
only of the contracting parties at the time of conclusion of the contract does
not suffice to transfer the ownership of immovable property. In this system,
as will be explained latter, both the dispositive or obligatory agreements and
the real agreement are needed for immovable property to be transferred but
subject to the principle of abstraction and differentiation where the real
agreement has a separate existence. Besides, other civil law countries adopt a
mixed system of immovable property ownership transfer via contract. In this
system, both valid underlying cause as a legal ground for transfer and titulus
(mode of transfer) are requirements to transfer the ownership of immovable
property. The registration is mandatory as in the case of an abstract system.8
Contrasting to the abstraction model, however, this system does not
recognize the independent existence of the real agreement.

The contractual immovable property ownership transfer system that Ethiopia

adopted in this regard might be conceived to follow the French model of
transfer system considering the status quo public and scholastic perception.9.
Because; the Ethiopian Civil Code has been adapted from the law of those
nations (Egypt, France, Greece, Italy, and Switzerland, and countries with
modern codifications) with whom Ethiopia has "cultural, commercial and
maritime connections among which French law played a general and

7The registration requirement in this system serves only the purpose of publicity for
protection of third parties (for opposability purpose) as opposed to being constitutive
element, where transfer cannot be effected, even between the contracting parties themselves
without registration of transfer of title.
8This means that registration under this system serves not only the purpose of publication as
in the case of the casual consensual model, but also plays the constitutive role between the
transferor and the transferee.
9 Paul Brietzke, Private Law in Ethiopia,Journal of African Law (1974),Pp149 -167.
Brietzke contends that the predominant flavor of the Ethiopian Codes is French-in approach,
style and, to a large extent and substance.

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

pervasive role.10 The paper, relying on qualitative doctrinal method, has

argued, despite the above perception, that most of the Ethiopian Civil Code
and other property law provisions along with some practical court cases
(case laws) have shown some deviations from the French consensual model
of immovable property ownership transfer and registration system in its
approach towards the underlying issue.

The main purpose of this paper, therefore, is to search out where the
Ethiopian law on transferring immovable property lies from the two
recognized models of immovable property ownership transfer. In doing so,
comparative method has been adopted for better understanding of the
Ethiopian [Link], South African, Armenian, and German legal systems
as an abstract system, has been compared with the French legal system (also
Portugal, Belgian and Italy). These countries have been chosen for being an
example of a causal system, and the Netherlands, Serbia, Austria, Swiss,
Spain and Kosovo systems, which can be described as a mixed system. The
comparative method has been applied to help readers get better
understanding of the Ethiopian system of immovable property ownership
transfer.

This paper, therefore, is hoped to provide great help for property rights
institutions, legal practitioners, and the general public in increasing their
awareness as to the immovable property ownership transfer system that
Ethiopia adopted so that they can play their own respective roles. It can also
be used as a wakeup call for the Federal Supreme Court Cassation Bench and
lower-level courts in the proper application of the rules regulating the
transfer of real property ownership and the legal processes to that end in a
consistent manner.

Accordingly, the following research questions will be addressed in due

course. Firstly, what is the practical meaning and effect of the registration
requirement under Article 2878 of the Civil Code of Ethiopia considering the
system of contractual (derivative) transfer of immovable property
ownership? The paper will examine whether it serves only the purpose of

10 Norman J. Singer, Modernization of Law in Ethiopia: A Study in Process and Personal

Values, Harvard International Law Journal(1970), Vol. 11, Pp.73-125.

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publicity as it appears to be so and understood so far. Secondly, do decisions

of the Federal Supreme Court, as case laws, delivered so far regarding
transfer and acquisition of immovable property based on this provision
certainly discernible, predictable, and consistent? Thirdly, which
model/system of immovable property ownership transfer that Ethiopia, as a
civil law country, adopted? Fourthly, does the real property registration
system that the country adopted have effect on the determination of
immovable property ownership transfer system?

The paper is structured under four sections in order to address these research
questions. Section one, as described hereinabove, presents the introductory
discussion and the research questions to be addressed in this study. Section
two of the paper discusses relevant global continental immovable property
ownership transfer systems. It specifically, sheds light on the French and
French-influenced model of casual consensual property transfer system,
German and German-influenced abstract tradition (formalism) system of
property transfer system and the mixed model of immovable property
ownership transfer system. Section three discusses the immovable property
ownership acquisition and transfer system currently in existence under
Ethiopian law, by examining the provisions of the contract of sale of
immovable and real property laws, on the one hand, and practical court cases
dealing with immovable property ownership transfer on the other hand. It
particularly, describes the registration requirement under Article 2878 of the
Civil Code as one of the legal conditions that are required under Ethiopian
law in order to successfully transfer ownership of immovable property. This
section also touches upon the effect of the immovable registration system
adopted by a country. The fourth and last section of the paper recaps the
major issues discussed by the paper in the way of summary and
recommendations.

2. SYSTEMS OF ACQUISITION AND TRANSFER

OF OWNERSHIP OF IMMOVABLE PROPERTY
The rules of acquisition of ownership of immovable property differ in
various legal systems of civilian (continental) legal tradition.11

11Milos Zivkovic,Acquisition of Ownership of Real Property in Serbian Law: Departing

from the Titulus – Modus System? P.112

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Understanding these differences, which are quite significant from the

doctrinal point of view, is an excellent exercise for a better understanding of
each particular national system.12 A major manifestation of the distinction
between the law of obligation and the law of property in Civil Law systems
is the relationship between contract for sale and conveyance (property
transfer).13 Different scholars followed different paths in classifying basic
systems of property transfer in continental law system but with similar ends.
Shusei, for instance classified two ways of acquiring property in modern
continental law; consensualism and formalism.14 Lie also mentioned two
major groups within the world systems that deal with the relationship
between contract for sale and conveyance of property in civil law systems:
Consensual System VsTraditio system.15 Lie, further, divides the Traditio
approach into causal and an abstract system depending on whether the
property transfers is determined by the invalidity of the sale contract.16

Another categorization highly like that of Lie is the way Vliet classified the
world's property transfer systems. According to Vliet, many of the world's
legal systems for the transfer of property fit into one of the three types of
transfer systems. These are the causal consensual system, the causal tradition
system and the abstract tradition system.17According to Velencoso, however,
there are four basic systems of immovable property transfer especially in
continental legal systems. French and French - influenced systems of titulus
adquirendi system (purely causal consensual system), German and German -
influenced abstract system (abstract traditio), Titulus et modus system
(Titulus modus adquirendi(causal tradition system), and the common law
system which uses a complicated process known as ‘conveyance’ to transfer
ownership.18 This process consists of various stages, and in some countries

12Ibid.
13 Chen Lei, Land Registration System in China: Past Problems and Prospects, Pp 375 - 390
14 Ono Shusei, A comparative Study of Transfer of Property Rights in Japanese Civil Law,
Htotsubashi Journal of Law and Politics, Vol.31, Pp1-22.
15 Chen Lei, Supra note 13, Pp375 – 390.
16Ibid.
17 Lars Van Vliet, Transfer of Properties Inter Vivos (Maastircht University, Maastircht
European Private Law Institute, 2017), P7.
18Luz M. Martinez Velencoso, Transfer of Immovable and Systems of Publicity in the
Western World: An Economic Approach, 6J. Civ.L. Stud. (2013). Available at:
[Link] [Link]/JCLS/vol/6/iss1/5, Pp142 – 176;Chen Lei, Supra note
13.

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(such as England and Wales) the acquisition process is only achieved with
the inscription of title in the land registry.19

2.1. CASUAL CONSENSUAL SYSTEM OF

IMMOVABLE PROPERTY TRANSFER

In this system, it is basically contract that transfers ownership (also called

titulus adquirendi).According to Velencosso, in legal systems that are French
influenced such as Portugal, Belgian and Italy the agreement between the
parties’ transfers ownership.20 Under this system, it does not differentiate
the moment of conclusion of contract from the moment of conveying the
ownership.21 In this system, ownership is conveyed directly by a contract
which has an effect translatife meaning “to sale is to alienate’’, reads the
maxim in French, which is explained by the fact that the contract on
conveyance is executed now it is formed.22

According to the Code Napoleon, the property is acquired and transferred

upon mere declaration of consent in the contractual obligation without the
need of creating neither a system of registration of interest and delivery.23
What is indeed important under this system is the intention at the moment
the obligatory agreement comes in to being (at the time of conclusion of the
contract) since the mutual intention to transfer and to receive real rights is
already contained and is the essential stipulation in the obligatory
agreement.24 Since the party’s consensus at the time of conclusion of a valid
contract of sale itself is sufficient to pass ownership, intention at the stage
when the thing is delivered (the animus or mental disposition which delivery
is incidental to) is therefore irrelevant.25 Thus, this latter act of delivery is no
separate requirement for the transfer of real rights, and it is also no juridical

19M. Martinez Velencoso, Supra note 18.

20 Chen Lei, Supra note 13.
21 M. Zivkovich, Supra note 11.
22Ibid.
23 Andrea Pradi, Transfer of Immovable in a European Perspective. Andrea P.(eds.), From
Contracts to Registration, An Overview of the Transfer of Immovable Property in Europe
(Universita Degli Studi Di Trento(2015), Vol. 19. Pp1-13;see also O. Shusei, Supra note 14.
24 Pjw Schutte, The Characteristics of an Abstract System for the Transfer of Property in
South African Law as distinguished from A Causal System, PER/PELJ 2012(15)3.
Pp.121/183, See also, Vliet, supra note 17, P13.
25 Schutte, supra note 24; See also, Vliet, supra note 17, P13; Art.1138 of the Code
Napoleon of 1804; Lie, supra note 13.

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act that can be construed as an independent real agreement that is detached

from the obligatory agreement.26 It is nothing more than a mere physical act
utilizing which the transferee is placed in control of the thing so that he can
exercise his power as owner.27 The French causal consensual transfer system
does not require a transfer of possession.28 This system is derived from
Articles 71129 and Article 113830 of the French Civil Code of 1804.

In a consensual casual transfer system, it seems as if the transfer of

ownership necessarily depends on the validity of the obligatory contract. 31 It
is valid and enforceable obligatory agreement that transfers real rights.32
That means the invalidity of the underlying contract directly affects the
validity of the transfer. A valid cause (iusta causa/causa traditio) giving rise
to the transfer is a sine qua non for the transfer of ownership in such system.
The Causa is all-important; hence the term causal system and iusta causa is a
requirement for the transfer of property.33 It is this iusta causa in the sense of
valid and enforceable obligatory agreement or another juridical fact that
obliges the transferor to deliver the thing in a causal system. Should the
agreement be null and void or avoided with retrospective effect, for the non-
compliance of the formality requirements for instance, the transfer will be
invalid for there is no legal basis (causa) for delivery; no real right or
ownership will be transferred.34 The seller then would be said to have an

26 PJW Schutte, Supra note 24.

27Ibid.
28 Van Vliet, supra note 17, P7.
29Under Book iii which deals with the modes of acquiring property, Article 711 of the
French Civil Code Provides that'' Ownership in goods is acquired and transmitted by
succession, by donation between living parties, or by will, by the effect of obligations.''
30Ibid. Article 1138 reads '' The obligation to deliver the thing is perfect by the consent
merely of the contracting parties. It renders the creditor proprietor, and puts the thing up on
his risk from the instant at which it ought to have been delivered, although the delivery have
not been actually made unless the debtor should have delayed delivering it; in which case
the thing remains at the risk of the later. See also Article 1582 which provides that ' A sale is
an agreement by which one person is bound to deliver a thing, and another to pay for it. It
may be made by an authentic act, or under private signature. Article 1583 of the same
provides that '' It is complete between the parties, and the property is acquired in law by the
purchaser with regard to the seller, as soon as the thing and the price are agreed on , though
the thing have not been delivered nor the price paid.
31 Van Vliet, supra note 17, P7.
32 Pjw Schutte, Supra note 24.
33Ibid.
34Ibid.

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action of revindication (claiming back the property based on ownership). 35 In

a casual system, therefore, the transferor finds himself in a favourable
position in relation to other parties while bona fide third parties undoubtedly
get the worst of the deal since they have no protection against the
disadvantageous consequences of delivery owing to a void obligation.36
Legal system in which transfer system that needs a valid causa tradition
where the validity of the transfer does depend on the valid causa traditions
(the legal ground for the transfer, e.g. the contract of sale) is called a causal
transfer system.37

2.2. ABSTRACT (TRADITION) SYSTEM OF

IMMOVABLE PROPERTY TRANSFER

This category of rules on acquiring ownership by contract with the existing

owner, attached primarily to German Law, is the system upon which the
ownership is transferred by a special kind of legal act, so called legal act of
disposition, which comes as an act of fulfilment of the contract by which the
transferor undertook the obligation to convey ownership, the legal act of
obligation, irrespective of the validity of the latter.38 This system dictates that
although a contract creates obligations, the transfer of property requires an
additional element, delivery or act of conveyance to transfer a property
right.39 Attempting to translate this into the language of the titulus/modus
system, one could say that the modus, understood as a legal act (contract) of
disposition, transfers the ownership, irrespective of the validity of the
titulus.40 In an abstract system, the obligatory agreement is not sufficient for
the transfer of real rights as in consensual system, the thing should also be
delivered and there should be a valid real agreement which consists merely
of the mutual intention to transfer and to receive real rights. 41 German law
provides that a transfer of ownership requires the actual delivery and transfer
of a title and it also sees delivery itself as a contract (distinct legal act), based
upon which the ownership is conveyed (or in case of real property, which

35 Van Vliet, supra note 17, P7.

36Pjw Schutte, Supra note 24.
37 Van Vliet, supra note 17, P7. See also Lei, supra note 13. The Dutch, Swiss or Austrian
transfer systems are called causal.
38 Martinez Velencoso, supra note 18.
39 Lei, supra note 13.
40 Martinez Velencoso, supra note 18.
41 Pjw Schutte, Supra note 24.

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enables conveyance by registration).42 So, it can be said that there are two
separate contracts, the one that forms the legal ground for conveyance
(obligatory act), e.g. sale contract, and the other that conveys ownership (real
agreement/dispositive act) in the narrower sense, and that is delivery (for
movables) and registration (for immovable).43

The obligatory agreement creates only an obligation which obliges the

parties to perform, but it does not result in the transfer of real rights. 44Thus,
the buyer with the conclusion of the contract does not acquire ownership as a
result of the obligatory agreement as in the case of French Model of
consensual transfer system. Therefore, after the conclusion of this agreement,
no vindictive claims against the seller arises as the buyer is not yet the owner
of the property.45

Dispositive Legal Acts (real agreement), on the other hand, involve

extinguishing or encumbering rights.46 This means that this legal act results
in the acquisition of an existing right by another party.47 The transfer of the
title is defined as the mutual consent for the transfer of ownership at the time
of conveying ownership.48 It is not, therefore, a statement of intent, but an
intention to transfer occurring at the time of transfer that transfers ownership
in this system.49The essential elements of the real agreement, therefore, are
an intention on the part of the transferor to transfer ownership and the
intention of the transferee to become the owner of the property. To bring
about the transfer, the transferee also must take control of the thing through
act of delivery (traditio), or immovable need to be registered. 50 The principle
of traditionalism, as opposed to the principle of consensualism, applies in

42 Martinez Velencoso, supra note 18; See also Article 929 of BGB (German Civil Code).
43Ibid.
44 Pjw Schutte, Supra note 24.
45Kornel Sadowski, The Abstraction Principle and the Separation Principle in German
Law; Adam Mickiewicz University Law Review,Pp.238-243
46 Ibid.
47Ibid.
48Ibid.
49Ibid.
50 Pjw Schutte, Supra note 24.

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this system.51 Under the formalism (tradition) system, the transfer of

property is effective only after either delivery or registration of the interest. 52

Therefore, it can be said that this system of property transfer rests on two
basic principles; the principle of differentiation and separation and the
principle of abstraction.53

[Link] and Differentiation Principle

According to the separation principle, the contract creating obligation aiming

at conveying ownership and the contract or legal acts that conveys it are
differentiated and separated.54 This means that the transfer of ownership
requires not only sales, or donation agreement, but also an agreement on
actual property transfer which is real agreement.55Then, according to this
principle, a defect in an obligatory contract will not invalidate a contract on
ownership transfer. 56This means that the real agreement has an independent
existence from the dispositive agreement in the abstract system of
immovable property transfer.57

2.2.2. Abstraction Principle

The abstraction principle provides that the obligatory act is abstract in the
sense that its ineffectiveness does not affect the effectiveness of the
dispositive act.58 According to the abstraction principle, the validity of the
conveyance contract is independent of the validity of the obligatory
contract59 and ownership can be transferred in the absence of a valid
obligatory contract if there was a valid real agreement together with
registration as required in the tradition systems.60 It may therefore happen
that after the conclusion of the two agreements, the obligatory contract is not

51Ibid.
52 Ono Shusei, Supra note 14.
53 Martinez Velencoso, supra note 18.
54 Sadowski, supra note 45.
55 Ibid.
56Ibid.
57Ibid.
58 Ono Shusei, Supra note 14.
59Martinez Velencosso, supra note 18.
60 Chen Lei, supra note 13. See also Sadowski,Supra note 45. Although abstract theory
does not require a valid underlying contract (e.g. sale), ownership will not pass -despite
registration of transfer - if there is a defect in the real agreement.

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valid, but this does not affect the validity of the contract which transferred
the ownership and thus the purchaser becomes the owner of the property and
the property remains on his hand based on the abstract real agreement.61
According to Sadowski, this in turn ensures the effectiveness of contracts on
ownership transfer.62 This separation of the causal and real abstract
agreement also contributes to the stabilization of the position of the
purchaser.63

A characteristic of abstract system in general and that of the German law in

particular is that the contract on the actual transfer of ownership is
disconnected casually (causa regarding obligatory agreement is not a
substantive law requirement for the transfer of real rights) from the contract
that details the obligations of the parties, in such a way that nullity of the
contract detailing the contractual obligations does not affect the validity of
the transfer of ownership.64 The causa concept refers rather to the mutual
intention to transfer and to receive real rights, which is nothing less than the
real agreement.65 The real agreements can avoid contractual defects, such as
fraud, duress, or mistake since they are submitted to officials at the
registry.66

2.2.3. Requirements of Notarization and Registration

in Germany

The German Law, in addition to the requirement of the real agreement, needs
the contract of transfer of immovable property to be notarized. Under
German law, the contract of sale or any other contract requiring a transfer of
immovable property is in principle void if it is not laid down in a notarial
deed.67 Ownership of immovable property, however, cannot be acquired
directly as a result of a notarised contract of sale between the seller and the
buyer. A civil law notary is often required in the German model for a

61 Kornel Sadowski, Supra note 45.

62Ibid.
63 Ono Shusei, Supra note 14.
64 Martinez Velencosso, supra note 18, P157.
65 Schutte, Supra note 24.
66 Ono Shusei, Supra note 14.
67 Van Vliet, Supra note 17, P20.

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property right simply cannot exist without it being both notarized and
registered.68

If the title to the property effectively to transfer to the buyer, final

registration of the transfer of ownership in the land registers, in addition to
obligatory and real agreements, is a precondition for acquiring ownership of
immovable property in Germany.69 However, if such a contract is void only
for want of a notarial deed and the contract has been followed by a transfer
of ownership and registration in the land register, the contract will be
affirmed.70

Therefore, it can be concluded that, the conveyance, that is, the transfer of
ownership, consists of two elements: the real agreement about the transfer71
and the entry in the land registry.72 The property transfer systems of South
Africa73 and Armenia74 can be placed under this system.

2.3. CAUSAL TRADITION/MIXED SYSTEM OF

IMMOVABLE PROPERTY TRANSFER

This system of transfer is the concept that requires both iustus titulus (a
contract or other legal act aiming at transfer of ownership) and modus
acquirendi (mode of the transfer itself).75 In this system, the property
transfers as a result of the causal agreement and modus, i.e., formalism.76
The idea behind this system is that the contract itself is merely a legal
ground, iustus titulus, for the acquisition of ownership, and that ownership is
acquired, based on such contract, by a special act, called modus acquirendi
or mode of acquisition in the strict sense.77 The contract, as legal ground
creates merely an obligation to convey the ownership, but the conveyance
itself is carried out through a different act, modus acquirendi (delivery in

68 Lei, Supra note 13, P 379.

69 That means,it is also necessary for the two parties to conclude an agreement that
ownership is to be transferred and for that transfer to be registered in the land register.
70 Van Vliet, Supra note 17, P20.
71 See Arts.873 and 925 of BGB (German Civil Code).
72 German Civil Code, Art. 873.
73 Schutte, Supra note 24.
74 See Arts. 561 - 563 and Art. 568 of Civil Code of Republic of Armenia.
75 M. Zivkovich, Supra note 11.
76 Ono Shusei, Supra note 14.
77 M. Zivkovich, Supra note 11.

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respect of movables and registration in respect of immovable property).78

Both titulus and modus are required for the transfer of ownership in this
system.79 Otherwise, if the legal ground, e.g. a sale contract, is void or
avoided, there would be no valid acquisition despite registration since
registration without valid legal ground is itself invalid.80 Therefore, it can be
understood that the moment that the contract aiming at transfer of ownership
is formed is different from the moment of acquisition of ownership, by a
different act, the modus, which in case of real property is registration, where
the validity of the underlying contract is a condition for the acquisition based
on delivery, respectively registration.81 The purpose of the modus is making
the conveyance public (visible to others), therefore the modus is required
with third parties in mind.82

Immovable property transfer systems of Spain and Netherland83, Austria84,

Swiss85, Serbia86, Kosovo87 and Finland can be categorized under this mixed
system of the immovable property transfer system. The Spanish system
requires the conclusion of a contract (a title) and tradition (the delivery of
possession to pass the ownership, which is the modo or correct form).88 A
distinctive characteristic of the Spanish system is the causal relationship
between the contract and the transfer of title and thus, if the contract is
invalid, the transmission of ownership cannot be said to have taken place.89

Austrian and Swiss Law also admit formalism system, but not the necessity
of abstract real agreement unlike in Germany where formalism and necessity
of the abstract real agreement in the separation theory are combined. 90 Only

78 Ibid.
79 Ibid.
80 Ibid.
81 Ibid.
82 Id. P114.
83 Martinez Velencoso, Supra note 18, P157.
84 Ono Shusei, supra note 14. See also M. Zivkovic, Supra note 11.
85 Ono Shusei, Supra note 14.
86 Zivkovich,supranote 11, P119.
87 Haxhi Gashi, Acquisition and Loss of Ownership under the Law on Property and Other
Real Rights (LPORR): The influence of the BGB in Kosovo Law, Hanse Law Review ( 2013)

88 Martinez Velencoso, Supra note 18.

89 See Arts 605 - 608 of the Civil Code of Spain on the Registry of Property.
90 Ono Shusei, Supra note 14.

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a causal agreement is required for the agreement of sale and, thus, no

distinction is drawn between causal and abstract real agreements.91 This way
of transfer of property, called titulus et modus adquirendi theory, is adopted
also in Austrian Civil Code ABGB.92 The Austrian system is based upon
differentiating the moment the contract aiming at ownership transfer is
formed from the moment of acquisition of ownership by a different act, a
modus, which in case of real property is registration.93 The situation is the
same in Swiss law. In Swiss, the property transfers as a result of the causal
agreement and modus, i.e. formalism.94 In relation to real property, the Swiss
Civil Code requires registration to transfer property. 95

Serbia as a civil law country has also adopted this mixed system of the real
property transfer system. ZIVKOVICH, in this regard, provides the following
regarding the Serbian system of real property transfer.

In the area of regulation of matters of acquisition of ownership

on the ground of a contract with previous owner, the Serbian
law, traditionally, adopts a model the solution of the Austrian
law (section 380 of the 1811 Austrian Civil Code - AGBG),
providing that the right may be acquired from the predecessor,
who is the owner, if two requirements are fulfilled i.e, that there
exists a fully valid contract aimed at the conveyance of
ownership (iustus titulus), that there is the act of handing over
(delivery) for movable objects, and/or the act of filing the right
into land books or the transfer of a title deed, for immovable
property (modus acquirendi).96

On the ground of legal transaction, in Serbia, the right of ownership over

immovable object shall be acquired by means of filing it into a public book.97

91Ibid.
92 See Art.380 of the Austrian Civil Code (ABGB)
93 M. Zivkovich, Supra note 11.
94 Ono Shusei, Supra note 14.
95 Ibid; See also Art 656(1) of Swiss Civil Code (ZBG).
96 M. Zivkovich, Supra note 11, P119.
97 Ibid; See also Article 33 of ZOSPO (Law on Basic Ownership Relations).

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3. THE ETHIOPIAN SYSTEM OF ACQUISITION AND

TRANSFER OF OWNERSHIP OF IMMOVABLE PROPERTY
3.1. THE SOURCES OF PROPERTY RIGHTS UNDER
THE ETHIOPIAN LAWS

In Ethiopia, property rights get legal protection mainly under the FDRE
Constitution, the 1960 Civil Code, other Codes, some other pieces of
legislation and laws that establish and define the powers and functions of
judicial and administrative institutions.98 FDRE Constitution provides that
''every Ethiopian citizen has the right to the ownership of private property.99
It defines private property as any tangible or intangible product which has
value and is produced the labour, creativity, enterprise or capital of an
individual citizen, associations which enjoy juridical personality under the
law, or in appropriate circumstances specifically empowered by law to own
property in common.100 It further provides, regarding immovable property,
that every Ethiopian shall have full right to the immovable property he builds
and to the permanent improvements he brings about on the land by his labour
or capital. This right shall include the right to alienate, to bequeath, and,
where the right of use expires, to remove his property, transfer his title, or
claim compensation for it which of its is to be determined by law.101

3.2. ACQUISITION OF IMMOVABLE PROPERTY

RIGHTS UNDER ETHIOPIAN LAWS
The term immovable property includes parcels of land, and all things
connected permanently to the land, such as the houses, apartment buildings,
factories, stores, etc.102 Rights which people hold to the immovable property
include the right to use, the right to get economic benefits from it, the right to
subdivide it into smaller parcels or units and the right to transfer any of the

98 Elias N. Stebek, etal, Property Rights Protection and Private Sector Development in
Ethiopia (PSD Hub publication No. 23, Property Rights Development Hub, Ethiopian
Chamber of Commerce and Sectoral Associations, Addis Ababa, 2013), P14.
99 FDRE Constitution,Art.40(1).
100 FDRE Constitution,Art. 40 (2).
101 FDRE Constitution,Art. 40(7).
102 J. David Stanfield,Immovable Property Registration Systems: Hopes and Fears (For
Presentation to the Congreso Iberoa De Registro De Propiedad Lima, Peru, 3-7 November,
2003), P1.

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above rights to another person.103 Likely, in Ethiopia, immovable property is

defined both under the 1960 Civil Code and other legislations relating to
immovable property registrations. Under the Civil Code, Objects of property
or all goods in general have been defined as movable or immovable.104
Accordingly, immovable comprises lands and buildings.105 The Urban
landholding adjudication and Registration Regulation also defined the term
immovable property as ‘urban land and related properties and includes
buildings and permanently planted perennial crops.’106

In Ethiopia, land is owned by the state and the people of Ethiopia, and thus
individuals do not have a private right greater than transferrable possession
right for several years for a fee over land as opposed to other chattels and
immovable properties.107In addition, individuals can privately own
residential houses and apartments on the land (home ownership), albeit not
the land on which the buildings are situated.

According to the norms of Civil Code, the grounds for the origin or
acquisition of property rights in general and immovable are legal rights, or
legal relationships. For systematic purposes, a distinction is made in civil law
jurisdictions between original and derivative acquisition.108

103Ibid.
104 Civil Code of the Empire of Ethiopia, Proclamation Proc. No. 165/1960, Neg. Gaz.,
Extraordinary Issue, No.2,(hereinafter ‘ECC’). Art. 1126
105 BECC, Art.1130; See also the Addis Ababa City Government Immovable Property
Registration and Information Agency Establishment Proclamation, No. 22/2002, Art. 2 (4).
See also Federal Urban Real Property Registration and Information Agency Establishment
Council of Ministers Regulation, No. 251/203, Art. 2(4). This regulation uses the term real
property instead of immovable property. It provides that ‘’ real property" means a parcel of
·land or a parcel of land together with immovable property on the land.
106 Federal Urban Landholding and Registration Council of Ministers Regulation. No. 324/
2006, Art. 2 (9) (FURLR, hereinafter).
107Article 40(3) of the FDRE Constitution provides that ''The right to ownership of rural
and urban land, as well as of all natural resources , is exclusively vested in the state and
inthe peoples of Ethiopia. Land is common property of the Nations, Nations, Nationalities
and peoples of Ethiopia and shall not be subject to sale or to other means of exchange.
108Fassil Alemayehu, Law of Property Teaching Material (Prepared under the Sponsorship
of the Justice and Legal System Institute, 2009), P 63

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3.2.1. Original Acquisition

Original acquisition mode involves the creation of a new property right,

which is independent of any pre-existing rights over the same thing.109 This
mode of acquisition differs from the derivative acquisition of property rights
in which an existing property right is transferred from the transferor to the
transferee, and the latter's right depends on the right of the former.110 This
mode of acquisition of ownership includes occupation,111 possession in good
faith,112 accession113 and usucaption/acquisitive prescription.114 The first two
modes solely apply for movables while the latter two apply to immovable.115
That means, immovable property can originally be acquired only through
accession and usucaption under Ethiopian law.

3.2.2. Derivative Acquisition

Derivative acquisition refers to the mode of acquisition of right of ownership

through transfer from one person to another.116 It is a mode of acquisition in
which the right and title of the transferee (new acquirer) is dependent on the
validity of the right (title) of the transferor.117 According to Article 1184 of
the Ethiopian Civil Code, the title to derivative acquisition can be based up
on a contract, mortis causa disposition (will), a court decision or an order by
a law. However, the law requires the title being objectively valid. Hence, the
governing principle here is that no one can transfer a better title or right than
he himself has, and where the transferor is not an owner or of his right is
defective, the transferee will not acquire right of ownership or will acquire a
defective right.118 Given this, it can be said that the same rule regulates both
acquisition and transfer considering the meaning of derivative acquisition of
ownership of the real property as articulated in the preceding section of this

109 Ibid.
110 Ibid.
111 ECC, Arts 1151 and 1191.
112 ECC, Arts. 1161 - 1169.
113 ECC, Arts.1171 and 1183.
114 ECC, Arts. 1168 and 1150.
115Elias [Link], Conceptual Foundations of Property Rights: Rethinking De facto Rural
Open Access to Common - Pool Access in Ethiopia, Mizan Law Review (2011), Vol. 5,
No.1. P. 6 .
116 Fassil Alemayehu, Supra note 108.
117Ibid.
118Ibid.

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paper. The main purpose of this paper, therefore, is to critically examine the
Ethiopian system of transfer of ownership of immovable property within the
meaning of the derivative acquisition of ownership of immovable property.

3.3. TRANSFER OF OWNERSHIP OF IMMOVABLE

PROPERTY UNDER ETHIOPIAN LAW
Pursuant to Article 1184 of the Civil Code of Ethiopia, right of ownership
may be transferred from the owner to another person by a contract which
may be contract of sale119, contract of donation120 or contract of barter121and
will or by virtue of the law which may be through inheritance (intestate) or
by court order. The principle, of ''nemo dat quod non habate'' applies here
too. Therefore, for a person to transfer a perfect right of ownership, he/she
must have a perfect right to ownership.122 That is, one must have a legally
protected property right to transfer it to another person.123

3.3.1. Conditions Required for Contractual Transfer of

Immovable Property Ownership under Ethiopian Law

To have an accurate understanding regarding the conditions required for the

valid contractual transfer of ownership of immovable properties in Ethiopia,
one needs to have a comprehensive reading of the general and special parts
of contract law relating to contract in general, sale of immovable,124 the
federal law of authentication and registration of documents,125 property law
(both in the Civil Code and other legislations together).126 Accordingly, these
legal conditions can be summarized, being put into the perspective of global

119 ECC, Arts. 2266 and2875.

120 ECC, Arts. 2427ff.
121 ECC, Arts.2408 and 2409.
122 Alemayehu, supra note 108, P77.
123 See also FSCCD, Vol. 15, File No. 88084. The case between Wagayehu Tamiru Vs
Askale Wasane etal . Date - November 19, 2006; See also Volume 20, File Number 112190.
Amhara region, Aykal city Municipality Vs Shek Shamsu Mahammad, March 28,2008.
124 ECC, Art. 1723 and Arts.2877 & 2878.
125Authentication and Registration of Documents Proclamation No. 922/2008. Federal
Negarit Gazette No. 39 (Hereinafter, ARDP). Art. 9(1).
126 That means, one needs to have an accurate understanding of Articles 1184, 1185 and
1190 and Article 1553 - 1646 of the Civil Code on the one hand and Federal urban
Landholding and Registration Proclamation No. 818/2006 and Regulations and directives
subsequent to this proclamation on the other hand.

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continental immovable property ownership transfer system (casual

consensual Vs abstract tradition system of property transfer), into two main
ways of transfer of ownership. That is, for the acquisition of ownership of
immovable property under Ethiopian law, two main conditions are required
to be met. These are: valid underlying cause (valid contract/titulus) and
registration in the registry of immovable property (mode of acquisition).

[Link]. The Requirements of Valid Underlying Cause

This condition requires valid legal title (ius tutulus/iusta causa) in the
meaning of an obligatory contract as the reason of transfer(cause). That is,
there should be a cause, or legal ground for the transfer, meaning there must
be the justification for the transfer of ownership as exemplified by a contract
(contract of sale, donation, or a testament, or under law (an order made by a
court of law following court attachment or winding up of intestate succession
or an expropriation order).127 This requirement of valid underlying cause
(contract), under Ethiopian law, further, comprises two main validity
requirements under itself.

A) Written Formality Requirement of the Underlying Cause

The cause of the transfer of ownership shall be reduced into writing in

relation to immovable property under Ethiopian law.128 Contracts relating to
immovable properties and special movables, owing to their special nature
and contribution to the economy are required to be made in writing in
Ethiopia.129 Muradu Abdo supports this assertion in relation to special
movables albeit admitting that the requirement that contracts pertaining to
special movables must be reduced in to writing is made no patent nowhere in
the civil code.130 He provided the following;

127 Muradu Abdo,Transfer of Ownership over Motor Vehicles (Case Comment), Journal of
Ethiopian Law (2001), Vol.23, No. 1. Pp.27-35. Muradu praised the Federal Supreme
Court, in the case between Habtab Tekle Vs Esayas Leke and Bezabeh Kelele(delivered on
sene 22, 1980), for recognizing the rule that special movables are similar to immovable
property and that the rules designed to regulate the latter may apply, with the necessary
changes, to the transfer of the former for the purpose of transfer.
128 ECC, Arts.1723 (1) and 2877, 1719(2), 1720(1), 1727(2) and ARDP, Art. 17(1).
129 See for instance, ECC, Arts. 1723 and 1186 (2) and Art. 6(1-4) of Proclamation No.
682/2002.
130 Muradu Abdo, Supra note 127.

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In our contract law, form is an exception; written formality is required

only if the law or the parties require so. Yet, there are reasons to argue
that written contract is mandatory in relation to juridical acts
pertaining to transfer of motor vehicles. First, reducing the
transactions over motor vehicles among those who involve in such
transactions has become a settled practice in the sense that it is
followed by at least most of the community of car dealers and owners,
which has been observed repeatedly and regularly over a long period
of time. These features, I think, have elevated such practice to the
status of customary rule. If this is the case, the making of the contract
pertaining to transfer of motor vehicles in writing must be a term of
such contract dictated by custom by virtue of Article 1713 of the Civil
Code. In the second place, there is at least one occasion whereby
administrative authorities require parties to a contract in connection
with transfer of motor vehicles to produce a written contract.
Contracts in connection with motor vehicles are required to be
authenticated by law. Such act of authentication obviously requires the
production of written documents. Thus, special law and custom require
that the making of contracts conclude to transfer ownership over motor
vehicles must be made in a written form.131

The contracts to transfer ownership of special movables do not only required

to be made in writing but also need to be authenticated like that of
immovable. Transfer of ownership in respect of special movables requires a
cause, i.e. a contract of sale, or donation or a testament or a court order.132
The cause should be accompanied by registration and issuance of a
certificate of title by a proper authority.133 Possession of a special movable
alone does not make one an owner thereof.134 For the purpose of transfer,
special movables are elevated to the status of immovable property.135 This
position has also been upheld by the Federal Supreme Court cassation bench

131 Ibid.
132 Muradu Abdo, Subsidiary Classification of Goods under Ethiopian Property Law: A
commentary, Mizan Law Review (2008), Vol.2. No.1, Pp 53-91.
133Ibid.
134 Ibid.
135Ibid.

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in its decision of January 13, 2005.136 The Supreme Court in this case
decided that for one to claim a title transfer over special movables on the
basis of contract of sale, should produce an authenticated contract of sale of
the vehicle among other documents before the registering institution.137 The
court in this case particularly made clear that a transfer of title of an
ownership on special movable from the seller to the buyer can only be
validated if the contract is made in writing.

The formality requirement of written form can also be viewed in two aspects
under Ethiopian law. One aspect of the written form is the requirement of
attestation by two witnesses.138 The term “attestation’’ means affirming to be
true or genuine or certifying to the verity of a copy of a document formally
by signature.139 That means, it shall be signed before the relevant
authentication institution by two witnesses.140 Documents that are required to
be made in writing, such as contracts of transfer of ownership of
immovable properties by selling or donation; contracts of establishing
collateral or guarantee right on immovable properties; and public will shall
be signed before the relevant authentication and registration institution by
two witnesses.141 A contract of sale of immovable property, for instance, is
invalid unless it is signed by two witnesses despite its authentication with a
notary.142

The second aspect of the written formality requirement may be sought in

such a way that certain contracts and the contracts made required to be made
in a special form are required to be evidenced only in writing. 143 This aspect

136 FSCCD Vol.14. File No. 81406. The case between Ahmed Ibrahim Vs Said Hagerlawi,
Decision delivered on January 13, 2005.
137 ECC, Arts. 1723 and 1186 (2) and Art. 6 (1-4) of Proclamation No. 682/2002.
138 See ECC, Arts. 1727(2) and ARDP, Art.17(2).
139 Henry Cambell Black, Black's Law Dictionary(Revised Fourth Ed, 1968), P.780 cited in
Melkamu B. Moges and Alelegn W. Agneheu, issues on the Role of Formal Requirements
for validity of Immovable Transactions in Ethiopia: The case of Amhara Region (Bahirdar
University Journal of Law (2015),Vol. [Link].1, P.53.
140 ECC, Art. 1727(2) and ARDP, Art. 17(1)(a).
141 ARDP, Arts. 17(1)(A), (b), and (c).
142 FSCCDD Volume 12, File Number 57356, the case between Meseret Bekele Vs Elza
Somonella. Decision delivered on February 23, 2003.
143 See ECC, Arts 2472 & 2003. Article 2003 provides that '' Where the law requires
written form for the completion of contract, such a contract may not be proved by witnesses
or presumption unless it is established that the document evidencing the contract has been
destroyed, stolen or lost.

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of the written form is essential in the proving of the existence of the contract
required to be in the special form. That means, in Ethiopia, the writing
requirement performs an evidentiary and precautionary function.

In Ethiopia, unlike in France, the writing requirement is included in the Civil

Code along with the provisions on general contracts and different special
contracts. In France, the writing requirement is included along with the
provisions on proof of obligations.144 Contrarily, the writing requirement and
proof of contracts are dealt with separately under Ethiopian Civil Code.145
The provisions requiring authentic acts are placed with the provisions on
proof of contracts under the Ethiopian Civil Code.146 The writing formality
requirement, however, is found among the substantive provisions governing
various contracts. In contrast, in France, the provisions requiring authentic
acts are not placed with the provisions on proof of obligations, but are found
among the substantive provisions governing various contracts.147 The failure
to reduce a contract to writing where required by law renders the contract
void and reduces the status of the contract to mere draft in Ethiopia.148

B) Requirement of Authentication and Registration

(Notarization) as Validity Requirement

The written form is not the final part of the formation of the contract
pertaining to immovable property transaction under Ethiopian law.149
Writing a contract is the first phase of the processes and not the end of it in
relation to transferring the ownership of immovable property. Regarding
authentication, Article 1723(1) of the Civil Code provides that ‘a contract
creating or assigning rights in ownership or bare ownership on an immovable

144 French Civil Code, Arts.1322-48

145 See ECC, Articles 2001 - 2029 for proofs in relation to contracts.
146 See ECC, Arts.2007, 2010, 2011, 2014 & 2015.
147M. Thomas Arceneaux, Writing Requirements and the Authentic Act in Louisiana Law:
Civil Code Articles 2236, 2275, 2278, 35 La. L. Rev. (1975) Available at: https:// digital
[Link]/lalrev/vol35/iss4/4
148 See ECC, Art. 1720(1).
149 Both substantive laws and the Supreme Court Cassation Division decisions urge
contracts in relation to immovable must be in written form and authenticated to be valid and
effective. The Ethiopian Federal Supreme Court Cassation Division has delivered many
decisions which ought to be obeyed both by federal and regional courts of all levels as a law
regarding the formality requirement that the contracts regarding immovable property should
comply with to be valid.

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or a usufruct, servitude or mortgage of an immovable shall be in writing and

registered with a notary. Under this provision, authentication is provided as a
prerequisite for the validation of the contract. As we see from this provision,
authentication has equal binding force of law as writing does have; and as
per this provision, both writing and authentication requirements are essential
elements for the legal effects or validity of the contract pertaining to
immovable. But, this provision does not provide for the effect of
noncompliance with the requirement of authentication unlike in case of the
effect of the non-fulfilment of the writing requirement on contract of sale of
immovable under Article 2877 & 2878 of the Civil Code. This practically
triggers debates among legal professionals and within courts as to whether
the authentication requirement under article 1723(1) is for validity of the
transactions on immovable.

The FSCCD has also reached different rulings on the issue.150 Before the
Gorfe case,151 which was decided in 1999 E.C, the courts especially the
Federal Supreme Court held that authentication by notary was not necessary
to validate contracts on immovable property.152 The main relevant reasons
given for this were that Article 1723(1) does not put the consequence of
failure to authenticate the contract, that the Ethiopian Civil Code under
Article 2877 provides that failure to meet the written requirement invalidates
the contracts in relation to immovable property while it fails to provide the
same consequence for authentication and that Article 2877 which requires a
written form of requirement for validity prevails over Article 1723(1), a
provision that renders neither written form nor authentication a validity
requirement, according to the principle of legal interpretation the special
prevails over the general.153 In the Gorfe case, however, the FSCCD held
that a contract of sale of an immovable can only be valid if both
requirements of writing and authentication are fulfilled.154 This means
that a contract of sale of immovable property will be deemed

150 Melkamu B. Moges & Alelegn W. Agegneh, Issues on the Role of Formal
Requirements for Validity of Immovable Transactions in Ethiopia: the Case of Amhara
Region (Bahir Dar University Journal of Law, 2015), Vol. 6, No. 1. Pp 50 – 85.
151 FSCCDD, Volume 4, File No. 21448. The case between Gorfe Warqineh Vs Aberash
Debarge et al (hereinafter, the ‘Gorfe Case’) delivered on April 30, 1999.
152 Melkamu B. Moges & Alelegn W. Agegneh, Supra note 150.
153 Ibid.
154 Ibid. See also Supra note 151, Gorfe Case.

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inexistent or null and void failing to meet these requirements.155

According to the court, public policy demands that special protection be
given to contracts relating to immovable properties.156

The Federal Supreme Court Cassation Division, in its other decision157 has
modified its decision in Gorfe case. The court held in this decision that the
scope of interpretation given by the Court on Articles 1723 and 2878 in the
Gorfe case does not include the situation where the parties to the contract
admit the existence of the contract but provide objections on the basis of the
fact that the contract has not been authenticated before notary. The purpose
of authentication under Article 1723 according to the court in this volume is
to evidence the existence of the contract of sale between the contracting
parties. This means, the contract will not be invalidated for the mere fact that
it has not been authenticated where the parties at suit have not denied the
existence of the contract.

In another case, the FSCCD ruled that any objection regarding authentication
requirements under Art. 1723(1) of the ECC may not be raised by the court
but by the parties to the suit.158 The court in this case reasoned from the
perspective of the person who can invoke invalidity of the contract of
transfer of immovable property based on noncompliance with the formal
requirements. The court admits in this case, like in the Gorfe case, that the
contract to transfer ownership of immovable property is invalid if not
fulfilled the formal requirement under Article 1723(1). Therefore, it can be
considered as an affirmation of the stand of the decision of the same court in
the Gorfe case in relation to the validity requirement of authentication.

This author also argues that the authentication requirement under Article
1723(1) of the Civil Code is a validity requirement even between the
contracting parties. It is worthy of enquiring the provision of the federal
documents authentication and registration proclamation No. 922/2008 about
the underlying issue. The proclamation clearly provides that authentication is

155 Ibid.
156 Ibid.
157 See the FSCCDD, [Link]. 36887 delivered on October 18, 2001 E.C. The case between
Alganesh Abebe Vs Gebru ishete Gebre and Warqit Ishetu Husen.
158 See the FSCCDD, Vol.10. [Link].43825 delivered on December 6, 2002 [Link] case the
Guardian and Tutor of child Kokebe Tefera Vs Ato Ayalew Kasaye. Et al.

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a validity requirement in only three cases. These cases involve documents

that shall be authenticated and registered in accordance with the appropriate
law, a power of attorney or revocation of power of attorney, and
memorandum and articles of association of business organizations and other
associations, and amendments thereof.159 It is very important here to shed a
light on the scope of term ‘documents that shall be authenticated and
registered in accordance with the appropriate law. This author argues that
regarding the contracts on transfer of ownership on immovable therefore, it
can be said that Article 1723(1) which requires every contract pertaining to
immovable property to be authenticated and registered can be considered as
an appropriate law, within the meaning of Article 9(1) of the document
authentication and registration proclamation number 922/2008. Contrarily,
Melkamu B. Moges & Alelegn W. Agegneh did not consider Article 1723(1)
as appropriate law. They provided the following reasons:

Article 9 of the Authentication and Registration of Documents

Proclamation excludes transactions on immovable property from
the list of the transactions that require authentication for their
validity. In fact, these transactions are mentioned clearly but
they are deemed to be “documents submitted for authentication
and registration which places them under the transactions to be
authenticated’’ if requested by the concerned parties.160

Given the objective of authenticating documents is protecting citizens’ rights

of producing private property, use and transfer through legal means and
thereby supporting the justice system and ensuring the rule of law,161 the
author argues that documents pertaining to immovable property transactions
are included under the umbrella of the term “documents that shall be
authenticated and registered in accordance with the appropriate law’’ under
Article 9(1) (a) of the proclamation. Because the proclamation itself defines
the term “document’’ as any contract, will, document of power of
attorney or revocation, a document translated from one language into
another by a licensed translator, copy of a document, document of vital
event, education and professional certificate, memorandum or/and articles

159 See ARDP, Art. 9(1)(a, b, c).

160 Melkamu B. Moges & Alelegn W. Agegneh, Supra note 150, P.71.
161 See ARDP, Art.7(3).

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of association, minutes or any written matter submitted for authentication

and registration in accordance with this proclamation’162

Therefore, it can be concluded that the written contract which is intended to

transfer ownership of immovable property by sale or donation 163 shall be

162ARDP, Art. 2(1).

163There have been debates and controversies whether the contract of donation on
immovable is required to be made in writing and must be authenticated to be valid under
Ethiopian law. The Federal Supreme Court Cassation in the case between Makowanent
Warrede Vs Meskerem Dagnaw et. al., in volume 8, File No. 34803 delivered on october 27,
2001 , has decided that the contract of donation is not required to be made in writing and be
authenticated under Ethiopian Law. The main reason for the court to hold this position is
the fact that the special law in the Civil Code regulating the contract of donation of
immovable property does not clearly dictate the donation contract to be made in writing and
be authenticated. Rather, Article 2443 of the Civil Code orders the contract to be made in
the form governing the making of the public will (881_883) to be valid. The court goes on to
saying that the provision of Article 1723(1) is a general provision of the law and the
provisions of Article 2443 and 881 which deal with the form of the contract of donation are
special provisions. If there is a discrepancy between the general provision of the law and
special law, therefore, the provisions of the special law will prevail and applicable.
Admittedly, Article 1723 regulates only the formality requirements that the contracts on
immovable should follow without providing for the effect of non observance of the
formalities. This does not, however, mean that some contracts in relation to immovable
property can optionally avoid this formality requirement for the mere fact that the special
laws regulating these specific kinds of contracts have not provided for the formality
requirement of writing and authentication like in the case of contract of sale. The other
thing misleadingly understood in this respect is that Article 1723(1) and other provisions of
the special contracts like that of donation are contradictory and consequently applying the
‘’special law prevails over the general’’ principle of interpretation. This author contends,
however, that these provisions are not contradictory so that they can be applied without the
need to recourse to the principle of interpretation. Therefore, considering the cumulative
reading of Article, 1723(1) of the Civil Code, Article 9(1) (a) of proclamation number
922/2008 and Article 49(4) (b) of regulation number 324/2006, a contract of donation,
among many other contracts on transfer of ownership of immovable, is one of the contracts
that create rights of ownership over immovable property so that it is mandatory to be made
in writing and be authenticated. Particularly in relation to the writing requirement, it can
even be inferred from the cumulative readings of Article 2443 and 881 of the Civil Code that
the contract of donation is required to be made in written form. Because, though the
provision doesn’t order the written form clearly, the public will is not valid if not made in
writing. What is special with it is that it is only the testator who is allowed to write it. It can
be inferred from this provision also that the contract of donation must be made in writing. In
addition, it is provided in the federal urban landholding and registration regulation that the

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authenticated and registered in the notary offices.164 A document is notarized

to protect persons from signing unimportant document. It assures the parties
to an agreement that this document and no other is the authentic document
which is intended to be given full force and effect.

Some of the justifications to have authentic acts are that they perform both
evidentiary and cautionary functions.165 When the formality is required for a
particular act, it serves the cautionary purpose, and, if omitted, the act is null
and void. In most of the developed world, most transfers are by written legal
instrument.166 In Louisiana, for instance, transfers are generally by the
authentic act (i.e. signed and witnessed by a notary public and two witnesses)
and signed by the seller and buyer.167 Being in authentic form makes the
instrument self-proving as to the parties signatures, property transferred and
the consideration.168 The authentic acts are presumed to be genuine for that
they are conclusive of evidence of their contents. In Ethiopia too, properly
authenticated, and registered documents are presumed to be genuine and
conclusive evidence of their contents.169 Consequently, they may be
challenged only with the permission of the court, during proceedings, for
good cause.170 However, it has not been provided in the law explicitly
regarding on what points that one can challenge the presumption of the
conclusiveness of an authentic act. It is possible to imagine these points to be
related to the insufficiencies of forms which have been held to vitiate an

property registering institution effects transfer of title over immovable property in case the
cause of transfer is donation, if an authenticated donation contract is produced by the
[Link] also presupposes that the contract of donation to transfer ownership over
immovable property should be authenticated by a notary.
164See ECC, Art.1723 (1) & ARDP, Art. 9(1)(a). Art. 2(2) of the Proclamation defines
Authentication as 'to Authenticate a document' as an authorized public notary officer
witnesses the signining of a document by the person who has prepared such a document and
followed by signing of a document and affixing a seal by the same public notary officer
signs and affixes a seal on the document signed in his absence by ascertaining its
authenticity through an affidavit or specimen signature and/or seal.
165W. Riddick, Economic Development and Private Ownership of Immovable Property: A
Comparison of Louisiana and Haiti, Electronic Journal of Comparative Law, P.7.
166Ibid.
167Ibid.
168Ibid.
169See ARDP, Art. 23(1).
170ARDP, Art.23 (2).

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authentic act that are the failure of the notary and witnesses to sign the act,
the failure to sign in the presence of the notary and witnesses, authentication
by unauthorized organ and the failure to include the date of the act on its
face. Therefore, the notary institutions play scrupulous role in the process of
immovable property transfers in Ethiopia.

Therefore, it can be concluded from the holistic readings of Article 1723(1)

of Civil Code, Article 9(1) (a) & article 17(1) of proclamation number
922/2008 and other cassation decisions of the supreme court like in the Gorfe
case, which this author also adheres to, that contractual transfer of
immovable property ownership has not any legal effect unless authenticated
and registered in the notary public offices. That means, an authentication is a
validity requirement for contracts pertaining to transfer of ownership of
immovable under Article 1723(1) where non-observance of it results in
nullity of the contract for all intents and purposes.171 It is reaffirmed by the
cassation decision of the Federal Supreme Court that a contract to establish
or transfer the right of ownership, usufruct, servitude, or mortgage on
immovable property is not valid if not made in writing and be registered
before the notary.172

However, these requirements of writing and authentication formalities

stipulated under Article 1723(1) of ECC and Article 9(1) of ARDP do not

171Fekadu Petros, Effect of Formalities on the Enforcement of Insurance Contracts in

Ethiopia, Journal of Ethiopian Law (2008), Vol 1. , No.1, P7.
172 FSCDD Vol.19, File No. [Link] case between Seble Mamo, Dawit Girma Vs Heirs
of Tesfaye Bezabih and Tirunesh Hayilu, February 28, 2008. The court, in the belief of the
author, erroneously stated in this decision that the contracting parties can optionally use an
institution entrusted with the duty of registering (in the language of the court and article
1723) contracts on immovable property even after the coming into force of the proclamation
regulating the authentication and registration of federal documents. The courts in Ethiopia
have been believed to have a power of authentication along with the notary as alternative
authenticating institution so far being stipulated in the Civil Code. Pursuant to the new
Ethiopian Federal Documents Authentication and Registration Proclamation and
Regulation, however, they have been snatched such a power albeit not clearly. That is, the
courts cannot be taken as an alternative institution in charge of authentication of documents
along with notaries today as before at least after the coming into force of the Proclamation.
Now a day, the contracting parties cannot optionally go to the court therefore to get their
contract authenticated according to the later proclamation. This means, this proclamation,
in effect, has repealed Article 1723 of the Civil Code in relation to courts as an
authentication institution.

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have application in relation to ownership of immovable property emanating

from the law.173 What the law requires in this case is registration of rights
acquired by law in the immovable registry offices.174

The function of authentication is performed pursuant to the federal

document’s authentication and registration proclamation before federal
Document’s Authentication and Registration Agency at federal level175 and
before different organs of the regions of the Ethiopian Federation. This
proclamation dictates that regions constituting the Ethiopian federation
should also establish corollary organs with the authority of authenticating
documents in enforcing the proclamation.176 Yet, regional states in Ethiopia
haven’t established agencies carrying out the task of authenticating
documents up until now. In Oromia, this task is dispersed over different
executive organs and the prosecution offices.177 It is the justice office that
carries out the function of authenticating documents in Amhara region.178

3.3.2. THE REGISTRATION (MODUS ADQUIRENDI)

REQUIREMENT
This requirement is the acquisition form (modus adquirendi) which is
affected through the registration of title. Transfer of ownership right over

173FSCDD Volume 9, File No. 38666. The case between the Ethiopian Development Bank
Vs Balambaras Tasfaye G/yesus
174 Federal Urban Land Landholding Registration Proclamation No. 818/2006, Federal
Negarit [Link]. 25 (Hereinafter, ‘FULRP). Art. 30(2).
175Federal Authentication and Registration of Documents Agency Establishment Council of
Minister Regulation No.379/2008.
176 ARDP, Art.5(1).
177 In Oromia regional state, the prosecution offices at different levels carries out the
function of authentication of documents residually. That means, it conducts the task of
notarization only after exhausting that the power to authenticate that particular legal
act/document brought before it is not granted for other government organs. In Oromia, the
transport authority notarizes documents in relation to vehicles(the author have a doubt on
this([Link]. 213/20011 Art. 34(9)), Urban land administration offices, though legally
subjected to argument, are practically understood to have such power in relation to
immovable in towns( [Link]. 213/2011 Art. 20(17)), the offices of workers and social
affairs are empowered legally to authenticate the contract of employment between the
employer and employee(Proc. No. 213/2011 ,Art. 31(17), Rural land administration offices
are empowered to authenticate contracts in relation to rural land uses(Proc. No. 213/2011
Art. 26(7).
178 Melkamu B. Moges & Alelegn W. Agegneh, Supra note 150.

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immovable things and special movable things is effected by striking out the
name of the transferor and entering the name of the transferee in the registers
of immovable things and special movable things respectively and issuing a
new title deed in the name of the transferee179 as opposed to ordinary
corporeal chattels where the right of ownership is transferred by
possession.180 This is what the law calls the registration step in the processes
of acquiring and transferring immovable property rights in Ethiopia. In other
words, the physical delivery of the immovable sold with all documents
enabling the transfer of title to the transferee itself is not enough to transfer
ownership of immovable property. Therefore, it is an entry in the register of
an immovable property, where the property to be transferred is situated
which completes the transfer process. This practically means the issuance of
certificate of title by the relevant government property registering institution.
The previous title certificate issued in the name of the transferor should be
surrendered to the institution for cancellation by such institution and a new
title certificate in the name of the transferee shall be issued and the property
must subsequently be registered by the institution in the name of the
transferee.181 The registering institution does this upon the submission of the
appropriate documents with an application for registration.182 Notaries,

179Alemayehu, supra note 108, p 77; See also Arts 1185, 1189, 1190 of the Civil Code o
Ethiopia.
180See ECC, Arts. 1186(1) & 1143 - [Link] case of ordinary movable things, the Civil
Code provides for different alternatives of delivery of possession. Accordingly, possession
may be transferred by delivery or handing over of the thing, or by delivery of the documents
representing the thing or constructively by declaration of the possessor of a thing that from
that time on he will hold the thing in the name of the creditor who failed to refused to take
delivery. See also ECC Arts .2274 &2324.
181Muradu Abdo, Supra note 127.
182Urban Landholding Adjudication and Registration Council of Ministers Regulation No.
324/2006(Hereinafter,‘ULARR’), Federal Negarit Gazette No. 83. Art. 49(4)(a -
e).According to this provision, any person may transfer his rights on the registered
landholding through inheritance, donation, sale or other legal means when, inter alia, the
documents enabling the transfer of title, such as authenticated contractual agreement or sales
agreement if the transfer is made by a contract or as a contribution in a share company,
authenticated document of transfer if it is made by donation, authenticated contract of
assignment if the transfer is made by assigning one's rights and other evidences entitling
transfer of title given by appropriate organ, are submitted.

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courts, financial institutions and revenue collecting bodies have to cooperate

with the registering institution in this regard.183

From all the above conditions of transfer of ownership of immovable

properties in Ethiopia, one can conclude that, according to Ethiopian law, the
transfer of ownership of an immovable property requires both valid (written
and authenticated) contracts between the transferor and the transferee as a
legal ground (causa)184 and the registration of the change of ownership title
in the immovable property rights Registry where the property is situated
(Titulus /modus system).185 Consequently, the registration requirement under
Ethiopian law is a requirement not only to inform third parties (publicity) but
also a requirement to transfer real property and as such plays a constitutive
role.186 The establishment, modification, transfer and lapse of right in real
property, which is required to be registered, shall take effect upon being
registered.187 According to this requirement, third parties are made aware of
property rights registered and not only a deed of ownership under Ethiopian
law of immovable property registration. Regarding the seemingly confusing
interpretations on the effect of authentication (Article 1723) and registration
for publicity (Article 2878) of the Civil Code, Fekadu Petros says the
following:

Under the Ethiopian Civil Code, contracts relating to immovable property

are required to be written and registered. The effect of registration and
publicity have sometimes been misleadingly interpreted as though these

183 See FULRP, Art.53(2). This article provides that ''Courts, financial institutions and
revenue collecting bodies shall directly submit or allow access to the registering organ all
documents they generate that have to do with the rights, restrictions and responsibilities
subject to registration in connection with landholding.
184ECC, Art. 1723(1) & ARDP, Art. 9 (1).
185ECC, Art. 1185 and FURLP, Art. 30(2).
186 See ECC, Art.
187Urban Landholding Registration Proclamation, 2014, Proc. No.818/2014(hereinafter,
‘FULRP’). With regard to market transactions relating to immovable property, it is
proclaimed under Par.4 of the preamble of the proclamation, that the proclamation is
enacted to put in place legal framework which is up to date and efficient and to enhance the
contribution of land and immovable property to the development of free market economic
system and to certify land and immovable property right to the possessor, who develops on
the land, and to ensure his possession security. Furthermore, the proclamation in its
preamble paragraph 3 also appears to aspired to minimize disputes that may be arised in
relation to land and immovable property and establish transparent and accountable working
system and making government services efficient and enable the possessor to enjoy the
property he develops.

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requirements were intended for the protection of the third parties’

interest alone, as is often implied from Article 3089 (1) and 2878 of the
Civil Code. The debate in this regard has recently been settled by the
Cassation Panel of the Supreme Court in its decision of May 10, 2007.
The Court has thus laid down a binding precedent to the effect that there
are two registrations involved in the contracts for the transfer of
immovable properties. The first type of registration (Article 1723)
involves authentication of the contract at notary for the purpose of
validity, while the second phase involves registration (Article 2878) in
the registers of immovable properties for publicity and transfer of
ownership. Non observance of the second does not render the contract
ineffective as between the parties, while non observance of the first
results in nullity of the contract for all intents and purposes.188
The two terms ‘’authentication and registration’’ are often confused with one
another by lawyers and judges under Article 1723 on the one hand and the
registration under Article 2878 as well as under property right registration
legislations on the other hand in relation to contracts pertaining to
immovable189 The nature and legal effects of authentication and registration
in line with Article 1723(1) of the ECC and authentication and registration
law on the one hand and the registration pursuant to Article 2878 of the Civil
Code on the other hand has been clarified by the supreme court's
decisions.190 Accordingly, in both of the cases the court has made clear that,
the purpose of authentication (not registration in the strict sense of the term),
requirement under Art. 1723 is to make the contract valid between the
contracting parties while the purpose of the registration requirement under
Article 2878 is to raise the registration of the contract in the registry of
immovable against third parties as a defence.

Therefore, it is understandable that the acts of authentication and registration

are different in nature, purpose and as to the organ that carries out both tasks.
The acts of authentication and registration are conducted at different levels,
and institutions entrusted to perform the acts of registration and
authentication thus differs accordingly. The act of authentication is carried
out before notarial institutions empowered to do so. The act of registration,

188Fekadu Petros, Supra note 171.

189 Melkamu B. Moges & Alelegn W. Agegneh, Supra note 150.
190 See FSCCDD, Vol. 4; File No. 21448 (Gorfe Case). See also FSCCDD, Vol 8, File No.
34803.

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however, is carried out by the property registration institutions in the

immovable registry offices. The notarial institutions first authenticate the
written contracts produced by the contracting parties and file it by giving the
identification number in the institution. What the notary officer must do next
is registering (in the sense of filing) the document it authenticates and
deposit the copy of each document in the institution.191 Therefore,
registration in the notary offices can be considered as part of the task of
authentication. The public notary institution does not deposit the document it
authenticates only but also register and deposit other documents where the
law provides for the deposit of a document within the institution up on
submission.192 It can be understood from this that the notary institution
deposits these copies of documents for evidentiary purpose after
authenticating validity. It shall also give the requested copy or evidence up
on request by an interested person, or evidence about the document deposited
in the institution.193 The registration (not in the strict sense of the term) with
the notary institutions serves the legal certainty and security for the purpose
of the validity of the contract between the contracting parties.

The other type of registration is registration in the registry of immovable

property to be made in accordance with Articles 1185 and 2878 of the Civil
Code. This kind of registration is the registration of transfer of ownership for
the purpose of publicity (for the protection of third parties) and transfer of
the property from the former owner to the newer one. It is performed by the
relevant government administrative authority with the power of issuing
ownership title up on production of the relevant documents. This phase of
registration is the step which completes the process of transfer of ownership.

[Link]. The Effect of Registration System on the Transfer System

Understanding the immovable property registration system that one country

adopted has a great help to understand the nature and characteristics of the
transfer of immovable property ownership system that certain national
jurisdiction adopted. The Real Property Registration System differs in

191See ARDP, Art.18(1).

192 ARDP, Art. 18(2).One of such scenarios is the document of public or holographic will
which may be deposited with the notary offices in accordance with Article 89(1) of the Civil
Code of Ethiopia.
193ARDP, Art. 18(2).

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

contents of registration, in its organization, how registration is made,

substantial effects of registration, the protection (non-protection) of the good
faith and bad faith, and the effects towards third parties depending on the
country and the legal families. According to how the registers are organized
and the degree of the effectiveness attributed to them, it is possible to divide
them into two main categories.194 These are; the deeds registration system
and the title registration systems.

A deed registration system; means that the deed itself, being a document
which describes an isolated transaction, is registered.195 The defining
characteristic of this system is that documents are registered without the
identification of the latest genuine title holder, that is to say the documents
are not examined beforehand as part of a process to establish the identity of
the titleholder, but merely have to comply with certain formal requisites.196
This type of system is also termed the “opposability system’’ and is currently
used in France, Belgium,Portugal and Italy.197 Some scholars also call this
the French model of the registration system.198 The French Model, also
called the casual consensual system, is characterized by the fact that the
consent of the parties itself shall give effect to the sale contract in
transferring land without the need of creating a system of registration.199

In the so-called Latin legal systems believed to have been influenced by the
Code Napoleon such as French, the Italian and Belgium, inscription in the
land registry does not form the part of the mechanism of transfer, and the
function of the land registry in these countries is primarily to give publicity
to titles over the property.200 That is, the inscription of a right over an
immovable is therefore only useful when a subject wishes to invoke that
right against third party for the purpose of making the transaction effective
against third parties (declarative effect - registration declares only a transfer
that has already happened by the virtue of the contract) than against the

194Martinez Velencoso, Supra note 18.

195Jaap Zevenbergen,Systems of Land Registration Aspects and Effects (PhD Thesis,
University of Melbourne, 2002), Netherlands Geodetic Commission, Delft, the
Netherland,P.48.
196Martinez Velencoso, Supra note 18.
197Ibid.
198 Chen Lie, supra note 13,P379.
199 Ibid;See also Andrea Pradi, Supra note 23.
200Martinez Velencoso, Supra note 18.

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person whose property is encumbered.201 Therefore, it is fair to conclude

that, in French, the contract conveys the ownership only between the parties,
and that registration (inscription) is required for it to produce contra omnes
effect.202

The title registration system, on the other hand, means that not the deed,
describing e.g. the transfer of rights is registered, but the legal consequence
of that transaction, i.e., the right itself (title).203 That means, rights are
inscribed in the registry, and it does not consist of a collection of original
documentation on the property, as does the registration of deeds system.204
So, the right itself together with the name of the rightful claimant and the
object of that right with its restrictions and charges are registered.205 With
this registration, the title or the right is created and one can, therefore,
immediately see who the owner of certain property is.206 This system is
called German Model Registration System (also constitutive system)207
which is currently in place in Germany, Austria, Switzerland, Spain and
England.208 Each time a legal fact occurs that aims at changing the right
holder to a parcel, it is not the documentary evidence (‘deed’) of that fact as
such that is registered but a right.209 A deed or form saying who is giving up
rights and who is gaining them is presented to the registrar.210 The registrar
will, after thorough checks, change the name of the right holder listed with
the parcel, dispossessing the previous right holder.211 The title registration

201Martinez Velencoso, P164. See also Chen Lei, Supra note 13. See A. Pradi,supra note
23 (2015). Registration, according to this system, does not have a constitutive effect rather a
declarative effect, i.e, it declares the fact of transfer between the seller and the buyer and
nothing more.
202 M. Zivkovich, Supra note 11; See also Art.33 of ZOSPO (Law on Basic Ownership
Relations).
203J. Zevenbergen, Supra note 195.
204 Martinez Velencoso, Supra note 18.
205J. Zevenbergen,Supra note 165.
206 Ibid.
207 Chen Lie, Supra note 13, P.379.
208 Martinez Velencoso, Supra note 18.
209J. Zevenbergen, Supra note 195.
210 Ibid.
211 Ibid.

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system, therefore, plays constitutive role without which ownership of

immovable property cannot be passed successfully.212

Coming to Ethiopia, the Ethiopian immovable property registration system

appears to adopt constitutive (title registration) system on the fact that the
proclamation stipulates that a change of certain property rights will take
effect when they are duly registered.213 It seems that, like the German and
Torrens System, registration is of the essence for conveyance of a property
interest in [Link] is logical, therefore, to conclude that the type of land
registration system in Ethiopia is the title registration system in which parcel
based and unique identification code approaches have been adopted. The
preamble of the proclamation214 also bears a witness that the principles of
legal cadastre such as registration of possession, getting the consent of the
possessor during transaction, making registration of possession open to
public, clearly identifying the possession and the possessor through unique
identification codes, which are basic characteristics of the title registration
system, have been recognized under Ethiopian law.215

[Link].The Effect of Non-registration Requirement

under Ethiopian Law
The relation between registration requirements under Ethiopian contract law
and property law provisions need to be analysed to understand the effect that
the registration system has on the property transfer system under Ethiopian
law. In Ethiopia, the effect of non-registration under the proclamation216
compared with the effect of non-registration under the Civil Code provisions
of the contract law seems different.217 As to the effect of registration, Article
2878 of the Civil Code provides that ‘the sale of an immovable shall not
affect third parties unless it has been registered in the registers of immovable
property in the place where the immovable sold is situate.’ This means that a

212 In this system, the rights of the new buyer are interred in the registry of immovable not
only for the purpose of publicity, but also to practically generate an ownership right for the
new buyer.
213 FULRP, Art. 30.
[Link]. 818/2006.
215FULRP., Preamble Para 5
216FULRP.
217 ECC, Art.2878 Provides that ''the sale of an immovable shall not affect third parties
unless it has been registered in the registers of immovable property in the place where the
immovable property sold is situated.''

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

sale contract relating to immovable property can be raised against any third
person if the contract is already registered in the land registry. Non-
registration does not, however, affect validity of the contract of sale between
the parties to the contract. The effect of non-registration under urban land
registration laws deviates from that of the Civil Code. Under these laws, non-
registration can be raised as a defence against any person.218 Under the Civil
Code non-registration cannot be raised as a defence between the contracting
parties.

I) Article 2878 of Ethiopian Civil Code

The Ethiopian Civil Code, under the title regulating contract of sale of
immovable property, particularly Article 2878, does not seem to require
registration as a requirement to transfer ownership of immovable property.219
It rather, seems to require registration for publicity of the fact of the
transaction that took place in relation to certain immovable property to third
parties. It appears, under this provision, that registration is not a mandatory
and constitutive element as regards the contracting parties.220 Although some
of the provisions of the Code appear to provide for registration as a
requirement for transfer of ownership, these provisions do not dictate
mandatorily, albeit as publicity requirement, the registration as a constitutive
element of transfer of ownership of immovable property.221 What seems to
be registered under Article 2878, therefore, is only the contract deed without
effecting the title transfer. This means, simply, registering the contract deed
(as in the case of the French model with only declaratory effect) is thought to

218 See FULRP, Art. 47.

219 The provision reads ‘’the sale of an immovable shall not affect third parties unless it has
been registered in the registers of immovable property in the place where the immovable
sold is situate.’’
220 Because, under Art.2878 of the Civil Code, the requirement of registration seems only
for the purpose of publicity to make third parties know or aware that the transaction took
place on certain immovable property concerned
221ECC, Arts. 2879, 2875 & 2281. According to these provisions of the Code, the seller
has the duty to furnish to the buyer all the documents necessary to enable the buyer to cause
the transfer of the immovable to be registered in the registers of immovable property and
such obligation shall be deemed to be an essential stipulation of the contract of sale. It is
also provided under the Code that the seller shall take the necessary steps for transferring to
the buyer unassailable rights over the thing. See ECC, Article 2281. The provisions of the
title of the code regulating contracts relating to the assignment of rights are applicable on
contracts of sale of immovable as per Article 2875 of the same code.

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

be enough to publicize the fact that an owner of certain immovable property

has sold (transacted with) his property with another, to third parties.222

Some of the decisions of the Federal Supreme Court Cassation division also
affirm this position of the provision of the Civil Code. The Federal Supreme
Court in trying to explicate the difference between the registration
requirements under Article 1723 and that of Article 2878 held that the
purpose of registration requirement under Article 2878 is to raise the
registration of the contract in the registry of immovable against third parties
as a defence.223 The court also reaffirmed this in its other related decision.224
According to the court's decision, in this case, the contract of sale to transfer
ownership of immovable property from one person to another should be
registered under the law before the relevant body to have effects on third
parties. The court further held that it should be invalid in case of non-
compliance and the seller should repay what he has received because of the
contract. Furthermore, it is made clear in this decision that for one to raise
the contract of sale as a defence against third parties, he/she has the burden
of proving that the contract of sale is registered in accordance with the law.

The Supreme Court Cassation bench in the case between Kebede Arragaw
Vs Commercial Bank of Ethiopia upheld the above position too.225 The high
court, in this case, held the correct position that registration is not complete
without title transfer. According to high court, the contract of sale cannot be
raised against third parties unless title transfer is registered in the registry of
immovable. That means, the registration or attachment only of the contract
without transferring title is not enough to constitute the act of registration.
The author of this paper argues in support of the position of the high court in

222 It may happen most of the time that the possibility where the seller of immovable
property has already delivered the physical possession of an immovable property retaining
the title to the property with himself.
223 See FSCDD Vol. 8, File No. 34803 and Vol. 4 File No. 21448.
224 See FSCCDD Vol.23, File No. 153664; The case between Asha Farah Vs
Abdurrahaman Tahir et a, Decision delivered on September 29, 2011. Semantically, the
language that the court employed is ''registration of contract on the registry on which the
contract is registered'' in its reasoning as opposed to ''registration of transfer of title of
ownership''. The court has not differentiated which stage of registration renders the contract
invalid in that decision.
225See FSCCDD, Vol. 4, File No. 16109 The case between Kebede Arragaw Vs
Commercial Bank of Ethiopia. April 12, 1999.

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this [Link] cassation bench, however, reasoned that Article 2878 of the
Civil Code requires only the attachment of the deed of contract of sale to the
registry of immovable serves the purpose of publicity sought for the
protection of third parties without registration of title transfer being affected.
Thus, according to the Supreme Court in this case, the protection of third
parties commences from this date of attachment of the deed of contract to the
registry of immovable without the need to waiting for the title transfer.226
These decisions of the Supreme Court and Article 2878 of the Civil Code
leads to the conclusion that the Ethiopian system of immovable property
transfer is consensual, like in France, where ownership is transferred at the
moment of conclusion of valid contract and registration in the immovable
registry serves only the purpose of publicity.

Therefore, considering the stipulation of Article 2878 and the decisions of

the Supreme Court delivered so far buttressing this provision, which
stubbornly continued in limiting the application of the registration
requirement under Article 2878 only to the protection of third parties, one
may conclude that ownership of immovable property, under Ethiopian law,
can be passed by concluding only a valid contract of transfer of ownership
and registration of documents of contracts without registration of rights
acquired (registration of transfer of title) in the immovable registry which is
the characteristics of the causal consensual system of French model.

The author of this paper summits, however, that the court is wrong in
holding this position. The author strongly argues that the attachment only of
the contractual document to the registry of immovable property without
registration of title transfer does not constitute registration in its full and
practical meaning under Article 2878 of the ECC.227 In contrast to the above

226 It can be understood from this that the date of attachment of the contract and the date of
registration of title transfer may be different. Sometimes, the contract which must
accompany the application for registration of transfer of ownership may be attached to the
file of the seller without his title cancelled and replaced with the new buyer.
227 The court in the above decision cited Articles 1613 and 1614 of the Civil Code to
strengthen its position in its reasoning in the cases. The cited legal provisions, however, are
related to accompanying documents that an applicant should produce with his application
for the registration of transfer of rights. It is to support this that documents of deeds are to be
produced. The Registration under article 2878 also includes the attachment of the contract to
the registry of immovable.

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

decisions, it has been made clear, in another decision of the cassation bench,
that it is the registration of the right of ownership acquired as a result of the
contract of sale, not only of the contractual document, that has to be
registered so that it has the legal force of banning the first buyer to raise the
contract of sale against the third party who has registered his rights preceding
the first buyer in the case between Enani Tesema Vs .Gebramariam Demeqe
et al.228 Though the supreme court’s use of terminologies like registration of
sale, registration of contractual deed and registration of transfer of title,
seemingly confusing, the whole message of the decision in this case is that it
is the right acquired as a result of the contract that is to be registered in
accordance with Article 2878 of the Civil Code to be raised against third
parties as a defense. The author believes that further investigations need to
be made to suggest more clarity in the usage of the terminologies such as
registration of sale, registration of contractual deed and registration of
transfer of title in relation to transactions pertaining to immovable property.

228Federal Supreme Court Cassation Decision Vol. 22, File No. 12371. The case between
Enani Tesema Vs G/mariyam Demeqe et al p. 33, September 25, 2010. This case was about
contract of sale of a house concluded (on 01/06/2003) between the contracting parties. In
this contract, the sellers (spouses) has sold their residential house to the buyer and handed
over all documents relating to the house they sold as required by Article 2879(1) of the Civil
Code. This first contract, however, is not registered (transfer of title not effective). The
sellers resold the same house to another buyer (on 22/10/2003) and transferred the
ownership of the house to this new buyer (Ownership transfer is registered). This new buyer
precedes the first buyer in making his rights registered in the registry of immovable
property. The administrative authority that is in charge of power of registration of transfer
of ownership of the property is also sued, in the case, for not taking the necessary
precaution in effecting the transfer of ownership of the property in this case. The appellant
(the first buyer) took his claim to the court claiming that the second contract of sale of the
house should be made invalid and asked for the validity of the first contract of sale of the
house. The creditors of the second buyer bought this same house on auction and the transfer
in the name of this new buyer is effective, too. The court has reasoned in this decision citing
article 2878 that a contract of sale of an immovable property has to be registered in the
registry of immovable to be raised as a defense against third parties. Therefore, the first
buyer cannot challenge the legal transaction over the same house as far as he didn’t make
registration of contract of sale of the house which is transferred to another third party.
Therefore, the one who bought an immovable property by contract cannot raise the contract
of sale against third party who bought the same property and precedes in getting transfer of
title over the property.

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Therefore, given the above cases, the court’s decisions are not consistent
and predictable regarding the underlying issue of immovable property
ownership transfer. This lack of certainty, consistency and predictability in
the decisions of the Supreme Court indisputably creates a problem on lower
level courts and practitioner judges in light of taking of judicial notes when
they face similar legal cases.

II) Property Law Provisions of the Civil Code

and Other Legislations

The effect of registration under the provisions of property law, on the other
hand, seems to resemble German model and other Germany influenced civil
law countries where registration is the requirement as between the parties
themselves so that it has a constitutive effect to transfer ownership of
immovable, i.e, registration in the immovable registry serves not only for
third party protection, but actually transfer ownership title to the acquirer. In
other words, the transfer is not complete up until the right acquired as a
result of transaction is entered into the registry of immovable property. In
Ethiopia, to effectively transfer immovable, property law provisions of the
Civil Code229 and urban landholding registration laws230relating to property
rights need further requirement of registration which is traditional system of
titulus et modus adquirendi (mode of acquisition). According to these
provisions of the law, the sale of immovable property is only completed by
registration of the transfer of ownership in the registry of immovable
property.231 This, practically, means, to transfer title of the property to a new
owner, the former title must be cancelled and it is this act that constitutes
registration.232 According to the proclamation and the regulation, therefore, it

229 See ECC, Art. 1185, 1189, 1190, 1613 &1614.

230 FULRP & URLARR, Art.47 of this proclamation, for example, provides deviating from
the effect of non registration under the Civil Code, that non registration cannot be set up
against any person.
231 ECC, Art. 1185 provides that ''An entry in the registers of immovable property shall be
required for the purpose of transferring by contract or will the ownership of immovable
property.’’ This and urban landholding proclamation provisions require an entry into the
registry of immovable property as a requirement of transfer of ownership of immovable
property.
232Accordingly, an applicant for registration of rights that he has acquired has to produce
authenticated deeds among other things to be registered. See also Muradu Abdo, Supra note
127.

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is the right that is to be registered and the contracts are simply accompanying
documents. The registering institutions carry out the task of registration in
relation to transfer of ownership title over immovable up on production of
authenticated cause of transfer (contracts).233 This means, for the property
registering institution to register the transfer of title on immovable property,
authenticated cause (contract) of transfer is a requirement. Therefore, it can
be said that authentic acts are essential requirement for the registration of
property rights on immovable in immovable registries in Ethiopia.

Under the Ethiopian legislations, ownership right over immovable property

is transferred to the buyer now of registration of rights in the legal cadastres
in the name of the buyer upon payment of stamp duty and registration fee
unlike the French consensual model where the moment of conclusion of the
contract transfers the ownership.

Furthermore, it is provided under the law that, since ownership right can
only be represented by the certificate, any transfer or assignment of
ownership shall be effective only after registration.234Where, in default of
registration of an act in the registers of immovable property, the right of a
person may not be set up against third parties, no person may acquire from
such person a right which may be set up against third parties.235 The person,
who has acquired a right under such conditions, shall before entering in the
register, the act by which he holds his right, register the act by which his
transferor held his right.236

233 See also Article 49(4)(a,b,c) of Regulation No. 324/2006. Under these provisions any
person may transfer his rights on the registered landholding through inheritance, donation,
sale, or other legal means: when the documents enabling the transfer of title such as
authenticated contractual agreement or sales agreement if the transfer is made by contract or
as a contribution in a share company; authenticated document of transfer if it is made by
donation; authenticated contract of assignment, if the transfer is made by assigning one's
right; among other documents that must accompany the application for the transfer of title.
See also oromia urban land administration service directive number 06/2008. Which
provides that the property registering institution can only effect the title transfer on urban
landholding if the applicant produce an authenticated contract of sale and contract of
donation if the transfer is on the basis of sale and donation contracts under Article 18.3(1) .
It also adds that if the transfer is on the basis of will, the certificate of heir shsll be issued
from the court.
234 FULRP, Article 30.
235 ECC, Art. 1645(1).
236 ECC, Art. 1645(2).

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It seems, therefore, from the cumulative reading of Article 2878 and 1185 of
the Civil Code on the one hand and provisions of urban landholding
registration proclamation and regulation on the other hand, that an entry in
the immovable registry, is not merely a declaratory act which serves only the
purpose of publicity but also mandatory and an essential condition
(constitutive) for effectuating a change in a legal position in relation to
transfer of immovable property ownership under Ethiopian law though not of
validity.237 This reveals that the Ethiopian system of immovable property
transfer, being approached from the vantage point of the above court cases
and relevant provisions of the law, ambivalently switches and oscillates
between the systems of casual consensual and casual tradition systems of
immovable property ownership transfer. This in effect means that the
Ethiopian system of immovable property transfer resembles the
characteristics of both casual systems of property transfer and abstract
tradition system of property transfer.

It resembles the characteristics of the casual system of property transfer in

that the validity of the underlying contract is very important for the property
to be transferred. This means that the ownership transfer is effective as long
as there are no defects that can invalidate the effectiveness of the parties’
agreement. Consequently, in case the title is void or it becomes ineffective
due to enforcement of one of the causes of annulment provided by the Civil
Code, the transfer is deemed to have been invalid since the beginning. Any
delivery of the goods to the transferee would be ineffective and the return of
the property to the transferor would be required (revindication). The main
difference from the French model of transfer, however, is that unlike the
system in France and French-influenced causal consensual system (Belgium,
Italy and Greece) where the moment of transfer is the moment of conclusion
of the contract, the moment of transfer of ownership of immovable property
in Ethiopia is the moment of entry of rights into the registry of immovable
property (not the moment of physical delivery of the thing).

237 The effect of registration under article 2878 of the civil code dealing with Registration
requirement may be called opposability principle (with declaratory effect) whereas that of
under the proclamation and other property law provisions of the code are requiring a further
element of constituting.

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It can also be said that the Ethiopian system of immovable property transfer
displays the Germanic tradition model of immovable property transfer in
only some respects that in both systems, the registration has a constitutive
effect, i.e, transfer is complete only upon registration of the transfer in the
registry of immovable property. The basic difference, however, is that the
Ethiopian system does not differentiate the underlying contract/obligatory act
from the real agreement/dispositive agreement. The Ethiopian system does
not also recognize the principle of abstraction where the validity of the real
agreement is independent of the validity of the underlying contract. The real
agreement cannot exist independent of the underlying contract in Ethiopia. In
Ethiopia, like systems of immovable property transfer in Germany, Finland,
Austria, Dutch, Spain, Serbia and Kosovo, ownership of immovable property
cannot be acquired by virtue of contract only if there was no registration in
respect of the registered real property. Therefore, it can be concluded that
Ethiopia, at least, legislatively adopted a mixed system of property transfer
which combines elements and qualities of both systems selectively.

[Link]

This paper attempted to shed a light on the existing systems of immovable

property ownership transfer. In doing so, the paper has shown the readers the
existing global systems of property transfer in a comparative way. It has also
discussed that the property transfer system differs across jurisdictions and
even within the countries of same legal families. While some countries
adopted the French model of the casual consensual property transfer system,
in which the ownership transfer only by the contract without the need to the
registration of title transfer, some others have adopted the Germanic model
of abstract tradio property transfer system under which the abstraction and
differentiation principles have been recognized. The paper has also shown
that there are also still other countries adopting the mixed model of
immovable property ownership transfer system under which, both the valid
underlying cause for the transfer and registration, as a mode of transfer, are
required for the immovable property to be transferred effectively. The paper
has also attempted to decipher the main differences under the three models of
real property transfer. Under the French and French-influenced system of
property transfer, registration has only the declaratory effect and thus serves
only the purpose of publicizing the fact of property transfer since only the

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

consent of the contracting parties transfer ownership of the property. The real
agreement does not have a separate existence from the obligatory agreement
under this system and thus, the invalidity of the obligatory agreement has a
direct effect on the transfer of ownership.

In the Second and Germanic system of property transfer, however, the

obligatory/dispositive agreement only does not transfer ownership of
property in the absence of real agreement and registration in the land
registry. The real agreement has a separate existence so that the invalidity in
the obligatory agreement does not affect the real agreement. That is, the
property can be transferred successfully, in the absence of valid obligatory
agreement if the real agreement is valid.

Under the third and mixed model of immovable property transfer system, it
has been shown that both the underlying cause and registration are the
requirements for the property to be transferred but falling short of the
separate existence of the real agreement. The main difference of this system
from the above two systems is that registration under this system, unlike in
the consensual system, is the requirement for the property to be transferred.
That is, the registration plays not only the role of publicity but also transfers
ownership (constitutive element).

Regarding the immovable property transfer system that Ethiopia, as a civil

law country, adopted, the paper has tried to discuss the matter considering
the contract and property law provisions of the Civil Code and other relevant
legislation as well as the decisions of the Federal Supreme Court Cassation
Division decisions. Some of our Supreme Court case laws and practices, as
well as some provisions of the Civil Code, seem to be inspired by the French
consensual model of immovable property transfer system under which the
contract itself conveys ownership without further requirement of title
registration in the immovable registry offices. Under this system as discussed
in the preceding sections, ownership is transferred merely by the consent of
the contracting parties as soon as the contract is signed. The paper has
revealed that the reading of Article 2878 of the Civil Code of Ethiopia on the
one hand and the decisions of Federal Supreme Court Cassation decisions
delivered buttressing this provision, on the other hand, seem to suggest that
Ethiopia adopted the French model of consensual immovable property
transfer.
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The author strongly contended, considering other cassation decisions of the

Supreme Court and property law provisions of the Civil Code and the urban
landholding registration laws, that the Ethiopian system requires both valid
title(as a legal ground for transfer) and registration as a modus adquirendi (as
a mode of acquiring). That means, both valid underlying contract (ius titulus)
and registration, as a mode of transfer, are requirements under Ethiopia law
to transfer ownership of immovable property. This is to mean that
registration does not serve the purpose of publicity only as Article 2878 of
the Civil Code and some of the decisions of the Federal Supreme Court
cassation seem to suggest. The registration requirement under the Ethiopian
law, therefore, does have a constitutive effect without which effective
transfer of immovable property transfer cannot be completed successfully. It
has also been shown in this paper that the Ethiopian law does not recognize
the independent existence of the real agreement as in the case of Germanic
abstract system of immovable property transfer. As argued in this paper that
the practice of the Supreme Court in relation to the requirement of validity of
the underlying contract to transfer ownership is not consistent. It has also
been discussed that the immovable property registration system that a certain
country adopted can be considered as a determinant factor in the
determination of the immovable property ownership transfer system of that
legal system. Therefore, the paper has argued on this basis that Ethiopia
adopted the mixed system of immovable property ownership transfer.

Therefore, considering the acute practical problems with the court practices
and that the owners of immovable property are encountering in the
enjoyment of their constitutionally guaranteed property rights, the author
recommends swift legislative intervention to reconsider and clearly state the
rules regulating transfer of ownership of immovable properties by drawing
lessons, where relevant, from the systems of countries described in this
paper. Taking into account the fact that the decisions of the Federal Supreme
Court cassation decisions are laws that have to be complied with by the
lower level courts and the judges’ obligation to take judicial notice of them,
the author suggests Ethiopian courts in general and the Federal Supreme
Court Cassation bench, in particular, to make their decisions, predictable,
consistent and concordant with the existing rules on the transfer and
registration of immovable property.

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REVITILIZING INTELLECTUAL PROPERTY RIGHT

PROTECTION FOR TRADITIONAL KNOWLEDGE AND
CULTURAL EXPRESSION IN ETHIOPIA: A LESSON FROM
KENYA

Abiyot Mogos *

ABSTRACT

Ethiopia, being a country with multi-ethnic population is endowed with

plenty of traditional knowledge (TK) and traditional cultural expressions
(TCE). Nevertheless, the arrival of globalization has created fertile ground
for commercial exploitation and distortion of the TK and TCE of the country
by alien without any economic or moral incentive to their custodians or
preservers. Recently,efforts are being made to adopt sui-generis form of
intellectual property (IP) law to preserve, protect, and promote TK and TCE
at international, regional and national levels yet Ethiopia has no effective IP
law on TK and TCE. Hence, inspired by the inadequacy of the existing
Ethiopian IP laws in protecting, promoting, and commercializing TK and
TCE, this article proposes key forward to revitalize legal protection of TK
and TCE in the country. To this end, it utilized doctrinal and comparative
research that drawn lesson from a revolutionary experience of Kenya in this
regards. The paper advocates for enactment of a sui-generis law that rectify
deficiency of the existing IP law and adequately protect, preserve, promote,
and commercialize the TK and TCE. In so doing, it is suggested to follow the
Kenya’s footstep, ratify the Swakopmund protocol and adopt the sui-generis
law from Kenyan TK and TCE Act in line with relevant Model laws.

Keywords: Traditional Cultural Expression (TCE), Traditional Knowledge

(TK), Ethiopia, Kenya, Intellectual Property (IP)

________________
* LL.B (Wollega University), LL.M (Haramaya University); Lecturer of law at Selale
University, and can be reached at abiyot00@[Link]. The author is deeply indebted to the
Editor-in-Chief of the journal and the two anonymous reviewers.

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

1. INTRODUCTION

It is truism that Ethiopia is homeland of diverse Nations, Nationalities and

Peoples that are gifted with diverse IK and TCE. Traditional knowledge and
TCE are the integral part of the cultural heritage of a country and thus are an
essential means of social identity of each Nations, Nationalities and People
in the country. The cultural heritage of the country include but not limited to:
traditional literature, arts, music, visual arts, ceremonies, traditional
medicines and medical practices, traditional dispute settlement and system of
self-governance, agriculture, forest management and conservation and
sustainable use of biological diversity.1 These TK and TCE are a body of
knowledge vital to the day to day life of local communities derived through
generations of living in close contact with nature. TK and TCE have also
contributed significantly to the present body of knowledge possessed by
scientists, such as ethno botanists, ethno pharmacologists, and by
agriculturists, foresters, and food technologists.2 They may also contribute to
the welfare, sustainable development and cultural vitality of those
communities.

However, with the arrival of globalization, there has been an increase in the
commercial exploitation or appropriation of TK and TCE in Ethiopia by
entrepreneurs without any benefit and prior informed consent of the
communities to which the cultural expression/knowledge belong.3For
instance, it has been reported that “a researcher in Tennessee (US) has
obtained a US patent on four medicinal plants (known in Amharic
Damascisa, Tena Adam, Kosso and Birbira)4 those have been used by
Ethiopians for centuries.”5 Similarly, the Dutch company obtained EU patent
on the Ethiopian teff though later challenged and invalidated by court in
1
OSSREA, Indigenous Knowledge Systems in Ethiopia: Report of Ethiopia National
Workshop, available at : <[Link]
2
World Intellectual Property Office 2013, ‘Intellectual Property, Traditional Knowledge and
Traditional Cultural Expressions/Folklore: A Guide for Countries in Transition’
3
Sable Mulat, Property Rights Approach Towards Traditional Cultural Expressions in
Ethiopia: Challenges and Prospects (LL.M Thesis, Addis Ababa University,2015)
4
The US Patent 6,811.795 issued on 2 Nov 2004.
5
Jay Mcgown, Out of Africa: Mysteries of Access and Benefit Sharing, 2006, P7, available
at: [Link] 2015/02/ACB_
Out_of_Africa Mysteries_of_ access_and_benefit_sharing.pdf &sa=U&ved= 2ah UK
EwjCvIPq1I7uAhXTasAKHQOTDNgQFjAFegQIAxAB&usg=AOvVaw2qYuk2oVqTGM
K9tur7aGMW< last accessed January 2, 2021>.

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

Netherland.6What is more, the Oromo’s Gadaa7 system can also be

considered as the origin of democracy8yet the ancient Greek is often being
celebrated as the first creator of the system. That way, the indigenous
communities who were the custodians or preservers of their TK and TCE left
without enjoying the economic or moral benefit of their creation or share
returns from such unauthorized exploitation by person alien to the
community.9

Recently, the international attention has turned to IP laws to preserve,

protect, promote, and safeguards TK and TCE so as to enable the concerned
indigenous community to reap the expected benefit of their TK and TCE,
and prevent the distortion of the same. 10 The IP rights confer protection to
intangible creation of the human mind, namely, inventions, artistic and
literary works, and trademarks among others. The IP laws play an important
role to revitalize TK and TCE by providing legal protection for the custodian
and preservers. This is because legal protection enables, encourage and
protect tradition-based creation and innovation, prevent the misappropriation
and misuse/offensive and derogatory use/unauthorized use of TK and TCE,
and achieve the fair and equitable sharing of benefits arising from the use of
their TK and TCE.11 It also incentivizes the indigenous communities and

6
Dagnachew Mellese, Bio-piracy: International Perspective and the Case of Ethiopia (Legal
and Institutional Regime, LL.M Thesis, Addis Ababa University, July, 2013). P.59. See also
Kluwer Patent blogger, Teff Patent Declared Invalid, Great News for Ethiopia, available at
<[Link]
for-ethiopia/>
7
Gadaa System is traditional democratic system of governance created and used by the
Oromo people in Ethiopia and Kenya, and developed from knowledge gained by community
experience over generation.
8
Zelalem Tesfaye, Old Wine in New Bottles: Bridging the Peripheral Gadaa Rule to the
Mainstream Constitutional Order of the 21st C. Ethiopia, Oromia Law Journal (2015) ,
Vol.4, No.1
9
Jay Mcgown, supra note 5
10
Anurag Dwivedi and Monika Saroha, Copyright Law as a Means of Extending Protection
to Expression of Folklore, Journal of Intellectual Property Law (2005), Vol.10, P311.
11
See WIPOThe Protection of Traditional Knowledge: Draft Articles’, Rev. 2 (August 31,
2018) (hereinafter the WIPO Draft Articles on Traditional Knowledge), Preamble & Art. 2,
and WIPO,‘The Protection of Traditional Cultural Expressions: Draft Articles, Facilitators’
Rev. 2 (June 15, 2017) (Hereinafter WIPO Draft article on Traditional Cultural Expression),
preamble & Art 1

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

their members to protect, develop, promote, safeguard, and commercialize

their traditional creations.12

Against this backdrop, number of African countries have already legislated,

or are on the ways of legislating effective IP laws for TK and TCE.13 In this
regards, Kenya exemplifies a regional leader and introduced the ‘Protection
of Traditional Knowledge and Cultural Expressions Act’14 in 2016. In
Ethiopia, there is no separate IP law that protects TK and TCE, and it is also
subject of scrutiny as to whether the existing IP regime could extend
direct/indirect protection to TK and TCE. The absence of effective in IP law
that accommodates and confers IP right to communities has opened doors for
theft, misuse and bio-piracy of TK and TCE in the Country.15

This article appraised adequacy of the existing Ethiopian IP laws in

preserving, protecting, promoting, and commercializing TK and TCE and
proposed a key forward to revitalize legal protection of TK and TCE in the
country. In so doing, it employed a comparative and doctrinal research
approach that utilized both primary and secondary sources to draw lesson
from the experience of Kenya. Kenya is selected as model for she has taken
revolutionary steps in adopting the most celebrated sui generis law that
learns from existing international and African frameworks, and better
accommodates the special needs of TK and TCE, and that other African
nations including Ethiopia could learn from this exemplary experience of
Kenya. Besides, the selection is justified taking into account the fact that
both Ethiopian and Kenyan community share relatively similar traditional
view as African and neighboring countries.

The paper is organized as follows. Following this introductory section,

section two provides a basic conceptual frameworks and justification for
protection of TK and TCE in general. Section three reviews the international

12
Ibid.
13
Expressions/Traditional Knowledge/Kenyan Reform on Traditional Knowledge and
Traditional Cultural Expressions: Two Year on, available at [Link] blogspot. com/
2019/02/[Link]?m
14
The Republic of Kenya, Protection of Traditional Knowledge and Cultural Expressions
Act, NO. 33 of 2016 Revised Edition 2018 [2016] ( Kenyan Traditional Knowledge and
Cultural Expressions Act)
15
Abiy Hailu, Ethiopia: Absence of Special IP System Resulting in Indigenous Knowledge
Exploitation(2017); accessed from [Link]

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

and regional effort toward the protection of TK and TCE. Section four
appraises the adequacy of the existing Ethiopian IP laws in protecting TK
and TCE whereas section five proposes holistic sui generis law that learns
from the experience of Kenya to revitalize legal protection for the TK and
TCE in Ethiopia. Lastly, the paper ends with concluding remarks.

2. BASIC CONCEPTUAL FRAMEWORKS AND JUSTIFICATION FOR

PROTECTION OF INDIGENOUS KNOWLEDGE AND TRADITIONAL
CULTURAL EXPRESSION

The term traditional knowledge (TK) refers to ‘knowledge that is created,

maintained, and developed by indigenous [peoples], local communities,
[other beneficiaries], and that is linked with, or is an integral part of the
national or social identity and/or cultural heritage of indigenous [peoples],
local communities; that is transmitted between or from generation to
generation, whether consecutively or not; which subsists in codified, oral, or
other forms; and which may be dynamic and evolving, and may take the
form of know-how, skills, innovations, practices, teachings or learnings.16
TCE on the other hand refers to ‘any form of artistic and literary expression,
tangible and/or intangible, or a combination there of, in which traditional
culture and knowledge are embodied or which are indicative of traditional
culture and knowledge and pass from generation to generation and between
generations including, but not limited to: phonetic or verbal expressions,
expressions by action, tangible expressions, adaptations of the expressions
referred to in the above categories.’17

As can be inferred from these definitions, TK and TCE has certain common
characteristics. They are collectively held by a community, handed down
from generation to generation, either by verbal transmission or by imitation;
continuously utilized, circulated, evolved and developed within the
community for many years; reflect a community's cultural and social
identity; made by ‘author unknown’ or by communities or by individuals
within their communities, and often made for noncommercial purpose.18

16
See WIPO Draft Articles on Traditional Knowledge, Art.1
17
WIPO Draft Article on TCE, Art.2
18
WIPO, Consolidated Analysis of The Legal Protection of Traditional Cultural Expressions/
Expressions of Folklore (WIPO Background paper No.1, 2003), P26.

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

The legal protection of TK and TCE has ample justifications. The main
justifications include: recognition of value, empowering communities,
supporting customary practice of the community, safeguarding traditional
cultures, encouraging community innovation and creativity, contributing to
cultural diversity, precluding unauthorized IP rights, enhancing certainty,
transparency and mutual confidence etc.19 Accordingly, the legal IP right
protection of IK and TCE is justified by protection and preservation of
cultural integrity, prohibition of unjust enrichment, prevention of economic
and moral harm to the community. Hence, given her diverse Nations,
Nationalities and Peoples that are gifted with enormous TK and TCE, and
the government’s endeavor to promote, protect preserve, and commercialize
this cultural diversity for economic development and technological
advancement; it is also rationale to provide efficient IP protection regime for
TK and TCE in Ethiopia.

Such legal IP protection sought to incorporate in different legislative

framework could be of two types: defensive and positive protection.
Defensive protection is a mechanism that prevents the acquisition of IP
rights.20 Positive protection on the other hand enforces the rights of
indigenous communities over their TK or TCE by granting and recognizing
these rights legitimately.21 This enables them to control their knowledge and
further reap the benefits of their commercial exploitation. In furtherance of
this, indigenous groups are seeking protection for their IK and TCE and their
responses have affected legislation at national and international levels.

3. SELECTED INTERNATIONAL AND REGIONAL EFFORT TO PROTECT

INDIGENOUS KNOWLEDGE AND TRADITIONAL CULTURAL EXPRESSION

[Link] EFFORTS

At international level, various legal frameworks relevant for protection of

TK and TCE have been adopted under the auspicious of WIPO, UNESCO,
WTO and UN system. UNESCO adopted two conventions with respect to

19
The WIPO Draft Article on TCE, Preamble & Art 1 and The WIPO Draft Article on TK,
Preamble & Art 2
20
Lillian Makanga, Biopiracy and Case for Traditional Medicine in Kenya (L.L.B,
Strathmore University, 2017)
21
Id, P20

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

TCE, namely the Convention for the Safeguarding of the Intangible Cultural
Heritage (CICH) and Convention on the Protection and Promotion of the
Diversity of Cultural Expressions (CDCE) but none of them addresses IP
right over cultural expression.22 There event international legal frameworks
adopted under the auspicious of the WIPO include: Berne convention, Paris
convention, Rome convention and WIPO Performances and Phonograms
Treaty 1996. The WIPO-UNESCO “Model Provisions for National Laws on
the Protection of Expressions of Folklore against Illicit Exploitation and
Other Prejudicial Actions was also developed by joint effort of UNESCO
and WIPO. Under WTO system, trade related intellectual property system
(TRIPS) is relevant for protection of TK and TCE. Though mainly of the
biodiversity law than being IP law, the convention on biodiversity and its
protocol can also be considered relevant for protection of TK associated with
biodiversity and genetic resources under the UN system. These instruments
provide certain protection for TK and/TCE under copy right, performer’s
right, patent right and sui-generis laws.

3.1.1. PROTECTION UNDER COPYRIGHT SYSTEM

Berne Convention23 and the Agreement on Trade-Related Aspects of

Intellectual Property Rights (TRIPs)24 are relevant international frameworks
that accord legal protection to TCE under copyright. Copyright protection is
available for “literary and artistic works” as referred to in the Berne
Convention for the Protection of Literary and Artistic Works.25 The
Convention makes it clear that all productions in the literary, scientific and
artistic domains are covered, and no limitation by reason of the mode or form
of their expression is permitted. The Convention also provides an illustrative
list of the works protected. Accordingly, a numbers of TCE for which
protection is desired are productions in the literary, scientific and artistic
domain and therefore, in principle, constitute the actual or potential subject
matter of copyright protection.

22
WIPO, supra note 18,P38
23
Berne Convention for the Protection of Literary and Artistic Works ,1979 (hereinafter
Berne convention)
24
Agreement on Trade Related Aspects of Intellectual Property (TRIPs), 1994 (hereinafter
TRIPS)
25
The Berne Convention,Art 2.

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

Art 2 15(4) of the Berne Convention included works of folklore in the

enumeration of ‘literary and artistic works. The provision states that “in the
case of unpublished works where the identity of the author is unknown, but
where there is every ground to presume that he is a national of a country of
the Union, it shall be a matter for legislation in that country to designate the
competent authority which shall represent the author and shall be entitled to
protect and enforce his rights in the countries of the Union.”26 Hence, the
inclusion of this article in the convention implies the possibility of granting
protection for TCE. Furthermore, the provision of Berne convention is also
expressly accepted under Art 9 of TRIPs which states that all members shall
comply with Arts 1 through 21 of the Berne Convention (1971) and the
Appendix thereto.27The issue of TCE was also explicitly included in the
agenda of the TRIPS Council at Doha Conference 2001.28 However, the
protection of TCE under copyright system has its own limitation as some
requirements of copyright protection like originality and fixation are difficult
to satisfy for the bulk of the TCE.

[Link] PROTECTION UNDER PERFORMER’S RIGHT

The protection of performer’s right is regulated under Rome Convention29,
WIPO Performances and Phonograms Treaty (WPPT)30 and TRIPS
agreement. Performers’ rights, as recognized in the WPPT protect
performances of ‘literary and artistic works or expressions of folklore’. 31.
Article 2 of the WPPT provides that for the purpose of the treaty,
‘performers’ are defined as ‘actors, singers, musicians, dancers and other
persons who act, sing, deliver, declaim, play in, interpret, or otherwise
perform literary or artistic works or expressions of folklore’ 32 Thus, it can be
submitted that WPPT expressly recognizes the protection of performers of

26
The Berne Convention, Art 15.4(a)
27
The TRIPs Agreement, Art 9
28
WTO website:<[Link]
29
Rome, Convention for Protection of Performers, Producers of Phonograms and
Broadcasting Organization, done at Rome on October 26,1961(hereinafter, Rome
Convention )
30
WIPO Convention for the Protection of Producers of Phonograms against Unauthorized
Duplication of Their Phonograms of October 29, 1971
31
WIPO Convention for the Protection of Producers of Phonograms against Unauthorized
Duplication of Their Phonograms of October 29, 1971 (WPPT).
32
The WPPT, Art.2.

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the folklore which has an indirect33 relevance to protection of TCE that is

performed by certain performer.

Under TRIPs, though no definition is given to the term performer, article

14(1) of the TRIPs agreement which provides protection for performers in
respect of their performance on a phonogram, can be construed as wide
enough to cover performers of TCE and therefore capable of protecting TCE
indirectly. Whereas under Rome Convention, the word ‘performers’ is
defined as actors, singers, musicians, dancers, and other persons who act,
sing, deliver, declaim, play in, or otherwise perform literary or artistic
work.34 Here, it can be argued that the protection for performances of literary
and artistic works which is provided by the Rome Convention and the TRIPS
Agreement is not limited to works protected by copyright and include TCE.
However, the problem with the protection of TCEs through performers’ right
benefits only those who perform TCEs and not the indigenous people that
created it unless the indigenous people themselves or members thereof
perform or seek protection over the works as performers.

3.1.3. THE PROTECTION UNDER PATENT RIGHT

Paris Convention35 and the TRIPS are some of the internationals instrument
that may provide IP protection to [Link] Paris Convention is an
international legally binding agreement concerning property rights in patents,
utility models, industrial designs, service marks, indications of source or
appellations of origin and trademarks. Hence, it is possible for innovations
of the community to be protected under trademark, utility models, industrial
designs, service marks, and indications of source or appellations of origin
provisions of the Paris Convention. This Convention does not, however,
contain provisions for granting patents to TK per se, or any other kind of
knowledge for that matter, although it recognizes and would protect modern
industrial products and services generated from that knowledge. The TRIPs
agreement sets minimum standards for countries to follow in protecting

33
The protection accorded to the performed TCE at this juncture is merely indirect as the
performance rights are primarily intended to protect the interest of the performer itself than
that the owner of the performed TCE.
34
The Rome Convention, Art 3(a)
35
Paris Convention for the Protection of Industrial Property, 1883(Hereinafter' Paris
Convention)

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intellectual [Link] 1 of the TRIPS Agreement (on the nature and

scope of the obligations) provides some flexibility in the implementation of
the provisions of the Agreement. Hence, the parties to the TRIPS Agreement
can invoke this provision to enact legislation for protecting traditional
knowledge.

Though not IP regime in itself, the Convention on Biological Diversity

(CBD),36 also advocates for IP protection of TK on the assumption that
recognition of IP right in TK could generate incentives for indigenous
peoples to conserve the environment and manage biodiversity. Article 8(j)
of the Convention states “ the contracting party shall as far as possible and
as appropriate, subject to its national legislation respect, preserve and
maintain knowledge, innovations and practices of indigenous and local
communities embodying traditional lifestyles relevant for the conservation
and sustainable use of biodiversity and promote the wider application with
the approval and involvement of the holders of such knowledge and
encourage the equitable sharing of benefits arising from utilization of such
knowledge, innovations and practices”. The CBD also requires member
states to facilitate access to genetic resources and associated TK and
encourage equitable sharing of the benefit arising out of its utilization.37

To facilitate the implementation of these issues, the ‘Nagoya Protocol 38 was

adopted in [Link] protocol calls for the equitable sharing of benefits
arising from the utilization of genetic resources and associated TK.39 The
overall structure of the Protocol recognizes to communal nature of TK and
enshrines the need for fair access regime, prior informed consent, and
mutually agreed terms and fair and equitable sharing of benefit arising from
access to genetic resources and associated TK. In harmony with CBD, the

36
Convention on Biological Diversity, done at Brazil, Reo de Jenero on June 5, 1992
(hereinafter The CBD)
37
The CBD, Art.15
38
Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of
Benefits Arising from Their Utilization to the Convention on Biological Diversity, decision
X/III of COP- 10,(UN Doc. UNEP/CBD/COP/10/L.43/Rev.1 Annex I (here in after Nagoya
Protocol).
39
Nagoya Protocol, Art.4(4).

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International Treaty on Plant Genetic Resources for Food and Agriculture40

also recognizes the enormous contributions of farmers to the diversity of
crop that feeds the world, and entitled them with a right to protection of TK
relevant to plant genetic resources for food and agriculture; the right to
equitably participate in sharing benefits arising from the utilization of plant
genetic resources for food and agriculture; and the right to participate in
making decisions, on matters related to conservation and sustainable use of
plant genetic resources for food and agriculture.41 Yet, like CBD this
instrument being a biodiversity agreement is more concerned with
conservation of biological resources than the IP rights.

3.2. EFFORTS TOWARD SUI-GENERIS LAWS

A sui generis system is a system specifically designed to address the needs

and concerns of a particular issue.42 In context of TK and TCE, a sui generis
approach implies a system that modifies some of the features of existing IP
rights so as to accommodate the requirements of the IK and TCE. A number
of legislative models exist around the world that has incorporated a sui
generis model in the form of ‘collective/communal IP rights’ that is intended
to specifically govern TK and TCE. This includes WIPO-UNESCO ‘Model
Provisions for National Laws on the Protection of Expressions of Folklore
against Illicit Exploitation and Other Prejudicial Actions and the two Draft
articles prepared by the WIPO Intergovernmental Committee on Intellectual
Property Genetic Resources, Traditional Knowledge, and Folklore, i.e,
WIPO draft article on protection of TCE43 and WIPO draft article on
protection of TK.44

UNESCO-WIPO model Provisions protects TCE from illicit exploitation and

other prejudicial actions and requires acknowledgement of source when TCE

40
International Treaty on Plant Genetic Resources for Food and Agriculture, Food and
Agriculture Organization of the United Nations, 2009 (hereinafter International Treaty on
Plant Genetic Resources for Food and Agriculture).
41
International Treaty on Plant Genetic Resources for Food and Agriculture, Art.9
42
Anselm Kamperman Sanders, Incentives for and Protection of Cultural Expression: Art,
Trade and Geographical Indications, The Journal of World Intellectual Property (2010),
Vol. 13, No. 2, P20.
43
WIPO Draft Article on Protection of TCE, supra note 11
44
WIPO Draft Article on Protection of TK, supra note 11

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is used.45 It provided for rights that are adequate to protect the communities.
This influential document recommends a sui generis protection of
expressions of folklore and, amongst others, provides for: principles of
protection; the scope of subject matter; the manner of obtaining
authorization; the exceptions to and limitations on authorization; the moral
rights attached to copyright; civil and criminal sanctions; the designation of
the competent authority to administer copyright; and the protection of
expressions of folklore of foreign countries.

The two recent draft articles by WIPO on protection of TK and TCE also
aimed to adopt a multilateral convention that affords sui generis protection
for TK and TCE respectively. Under the preamble and objective provision,
both instruments incorporated policy objectives, general guiding principles,
specific substantive principles and justification for recognizing TK and TCE
as cultural intellectual creative assets of communities.46 Both Draft articles
provide a detail provisions that relates to definitions for technical terms,
subject matter of protection, the beneficiaries of protection, and scope and
conditions of protection. 47 Finally, both draft articles provides for provisions
dealing with sanctions, remedies and exercise of rights, application,
administration of rights and interests, exceptions and limitations, and terms
and formalities of protection, in their respective areas of protection.48 In
these Draft articles, WIPO has identified highlighted issues such as creation
of appropriate system to access TK or TCE, ensuring fair and equitable
benefit-sharing, promoting the development of indigenous peoples and local
communities; promotion, respect, preservation, wider application and
development of TK or TCE, provide a mechanism for the enforcement of
rights of TK/TCE holders as key objectives that would guide policy
formulation and eventual legislation of a sui generis form of IP rights for TK
or TCE. The two articles are yet to be adopted as convention but could still
serve as a guide for adopting sui generis laws on TK and TCE but national
level.

45
WIPO-UNESCO Model Convention, sections 4-5
46
See the WIPO Draft Article on TCE , Preamble & Art 1; WIPO Draft Article on TK,
Preamble and Article 2
47
The WIPO Draft Article on TCE, Arts 2 -5; WIPO Draft Article on TK, Arts. 1, 3-5.
48
The WIPO Draft Article on TCE, Arts 6 -10; WIPO Draft Article on TK, Arts 6-11.

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3.1. AFRICAN REGIONAL FRAMEWORKS

At regional level, Swakopmund Protocol on the Protection of Traditional

Knowledge and Expressions of Folklore49 intended to provide a framework
to provide sui generis protection for TK and expression of folklore Africa.
The Protocol is an initiative of member states of the ARIPO adopted on 9
August 2010.50 In its preamble, the protocol recognizes the intrinsic value of
TK, traditional cultures and folklore, and the urgent need for legal protection
tailored to the specific characteristics of TK and expressions of folklore. The
primary purpose of the Protocol is to protect TK holders against any
infringement of their rights and to prevent misappropriation, misuse and
unlawful exploitation beyond their traditional context.51 The Protocol grants
exclusive rights to communities to authorize the exploitation of their TK, and
to prevent exploitation without their prior informed consent. The protocol
resembles the Draft WIPO articles and contains detailed provisions on
criteria of protection, formality for protection, the beneficiaries of protection,
right conferred, assignment and licensing of the right, equitable benefit-
sharing, recognition of right holders, exceptions and limitations, compulsory
license, duration of protection, and administration and enforcement of
protection for both traditional knowledge and expression of folklore.52 It
requires the setting up of a National Competent Authority responsible for
implementing it.53Moreover, “the Contracting States shall ensure that
accessible and appropriate enforcement and dispute resolution mechanisms,
sanctions and remedies are available where there is a breach of the
provisions relating to the protection of traditional knowledge and expressions
of folklore”.54

Besides, there is African Model Legislation for Protection of the Rights of

Local Communities, Farmers and Breeders, and for the Regulation of Access

49
Swakopmund Protocol on Protection of Traditional Knowledge and Expressions of
Folklore within Framework of African Regional Intellectual Property Organization
(ARIPO), adopted on 9 August 2010 (Swakopmund Protocol)
50
Ibid.
51
The Swakopmund Protocol,Section 1.
52
The Swakopmund Protocol,Sections 4-23.
53
The Swakopmund Protocol,Section 3.
54
The Swakopmund Protocol,Section 23.

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to Biological Resources55 that is intended to serve as a basis for national

legislation on protections of TK associated with biological resources, and
plant and animal [Link] Model Legislation recognizes communities’
rights over their biological resources and TK, and the right to collectively
benefit from the utilization thereof. 56 It states that any access to a biological
resource, innovation, practice, knowledge or technology shall be subject to
the prior informed consent of the concerned community; shares benefits with
concerned community and recognition of IP rights of the community.57 As
regard farmer’s right, the model law entitled the farmers to the protection of
their TK relevant to plant and animal genetic resources and to obtain an
equitable share of benefits arising from the use of plant and animal genetic
resources.58 Nevertheless, this model law is more of bio-diversity legislation
and that do not fully accommodate the IP right over TK.

The Swakopmund Protocol along with aforementioned international and

regional sui-generis model laws has been used as basis for national policy
and legislative initiatives. Accordingly, some African countries like Egypt,
Botswana, Ghana, Malawi, Mozambique, Namibia, Uganda and Zambia59
adopted legislation with some components of the Swakopmund protocol and
the other model laws yet to date; Kenya remains the only country in Africa
with a specific policy and laws on TK and TCE adopted from the protocol
and these model laws.

55
African Model Legislation for the Protection of the Rights of Local Communities, Farmers
and Breeders, and for the Regulation of Access to Genetic Resources adopted by OAU,
2000(here in after Africa Model Law)
56
The Africa Model Law, Art 16 (1).
57
The Africa Model Law, Arts 18, 21, 22.
58
The Africa Model Law, Art 26
59
Paul K. Sena, Challenges in the African Region to Protecting Traditional Knowledge,
Genetic Resources and Folklore, available at <[Link] files.
[Link]/2014/04/challenges-in-the-african-region-to-protecting-traditional-
[Link]>

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4. REAPPRAISING THE ADEQUACY OF THE EXISTING ETHIOPIAN

INTELLECTUAL PROPERTY LAWS IN PROTECTING TK AND TCE

4.1. PROTECTION UNDER THE COPYRIGHTAND

NEIGHBORING RIGHTS
In Ethiopia, Copyright and neighboring right are governed by Copyright and
Neighboring Right Proclamation No.410/200460 and copyright and
neighboring right proclamation (amendment) proclamation No.
872/2014.61As can be inferred from its Preamble, the copy right
Proclamation is aspired by the assumption that protection of literary, artistic
and similar creative works has a major role to the cultural, social, economic,
scientific and technological development of a country. Art. 2(8) of the
proclamation defined copyright as “an economic right subsisting in a work
and in appropriate case moral right to an author”. Art 2(30) of proclamation
defined work as ‘production in literary, scientific and artistic fields’ and
provides illustrative list of what constitutes literary, artistic or scientific
works that are subject of copy right protection. Accordingly, copyright
protection is available for production in literary, artistic and scientific work
without any distinction as to mode or form of their expression. Hence, as
many of TCE are literary, artistic or scientific production, they, in principle,
constitutes literary, artistic or scientific work that is potential subject matter
of copyright protection. Besides, the amendment proclamation added one
lists dealing with ‘applied arts’ under art 2(30) (J). According to the draft
notes/explanation of the amendment proclamation, such inclusion of work of
applied arts under illustrative list of works protected by copyright was
arguably intended to cover TCE as copyrightable work.62

As regard, derivative work, translation, adaptations, arrangements and other,

transformations or modifications of works; collection of works such as
encyclopedia or anthologies or databases whether in machine readable or

60
Copyright and Neighboring Rights Protection, Proclamation No. 410/2004, l0th Year No.
55, Addis Ababa, 19th July, 2004(hereinafter Copy Right and Neighboring Right
Proclamation)
61
Copyright and Neighboring Rights Protection (Amendment), Proclamation No. 872/2014,
21st Year No. 20 Addis Ababa, 14th January,, 2015
62
Biruk Haile, Lecture on Advanced Intellectual Property Law Course (Unpublished),
Haramaya University,2017,taken from the lecture note that I have written down during his
lecture class.

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other form provided that such collections are original by reason of the
selection or arrangement of their contents are protected work63 , and hence,
if certain TCE has got protection as a work of applied art, sculpture,
engravings or other oral works illustrated under Article 2 (30) of the
proclamation, its derivatives have also a potential to be protected as
derivative works. Furthermore, the provisions of the proclamation governing
neighboring right have a potential of indirectly protecting TCE. Accordingly,
the performer of TCE is entitled to performance right over his performance,
and this will accord indirect protection for TCE but if the performance in
itself constitutes independent TCE, the performer’s right directly protects the
TCE.

4.1.1. Limitation of the Copyright System to Accommodate TCE

As has been discussed above, the existing Ethiopian copyright system
attempted to accord certain legal protection to TCE by considering TCE as a
literary, artistic or scientific work through the inclusion of the work of
applied arts or more generally by taking note of illustrative nature of the list
under Art 2(30). But, it is questionable as to whether copyright regimes are
adequate to protect TCE because of different reasons. As can be understood
from the overall reading of the proclamation, being qualified as artistic,
literary or scientific work is not by itself sufficient to attract protection under
copyright law and there are other necessary requirements that must be
fulfilled for the work to be protected as copy right. Besides, there are also a
number of provisions of the proclamation relating to copyright that are not
appropriate to the special nature of TCE and Ethiopia’s reality with respect
to TCE. Below, I will briefly explain the limitation and inadequacy of the
current Ethiopian copyright system in protecting TCE.

A) Requirement of Originality
Art 6 of the copyright and neighboring right proclamation imposes the
requirement of originality for the work to be protected under copyright.
Accordingly, a literary or artistic work which is an object of copyright and
which is created by a subject of copyright is not copyrightable if it lacks
originality. However, even if requirement of originality for purpose of copy
right is relative than being novelty, it is still difficult to satisfy in the bulk of

63
The Copyright and Neighboring Right Proclamation, Art.4

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TCE. It is known that, most of the TCE are created in ancient time and
drawn largely upon pre-existing tradition, custom and belief which have
evolved over the passage of time.64 As it passed from generation to
generation orally and reached the current generation through a gradual and
incremental process ,it is difficult to know even the time when they are
created let alone assessing its originality. In such cases, even the next
generations can add new improvements or knowledge during the incremental
process, their creativity was limited at least in respect of the pre-existing
knowledge and their role mainly imitate and recreation of what has been
handed over to them by the preexisting generation. Hence, it can be argued
that even if there is possibility that certain TCE to satisfy the originality
requirement, it is difficult for most of pre-existing TCE to qualify as original
work of subsequent generations as far as there are no improvements and new
creations added by the later.
B) Requirement of Fixation
The Ethiopian copyright system imposes the requirement of fixation for the
literary, artistic or scientific work to attract legal protection as copyrightable
work.65The proclamation defined ‘fixation’ as the embodiment of works or
images or sounds, or of the representations thereof, from which they can be
perceived, reproduced of communicated through a device prepared for the
purpose.66 It means that for the works to enjoy copyright protection, they
have to be reduced to a tangible medium or expressed in some external form
such as a manuscript, drawing, film, or mechanical recording or it can be
expressed in the form of speech. However, this requirement of fixation under
the proclamation is very difficult to satisfy for TCE. It is obvious that
Ethiopian people have no habit of reducing their cultural expression in
written form that their traditional expression is transferred from generation to
generation by oral means. As a result, the bulk of traditional expressions of

64
Kuek Chee Ying,Protection of Expressions of Folklore/Traditional Cultural Expressions:
To What Extent is Copyright Law the Solution?, Journal of Malaysian and Comparative
Law(2005), Vol.2
65
Art 6 of the proclamation states that the author of work shall, irrespective of the quality of
the work and the purpose for which the work may have been created, be entitled to
protection, for his work without any formality and upon creation where it is a) Original; and
b) Fixed
66
The Copyright and Neighboring Right Proclamation, Art.2(11)

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indigenous people in Ethiopia were not reduced in writing or other tangible

form that they rarely satisfy the requirement of fixation.67
C) Identifiable Author’s Requirement
Under Ethiopian legal system, the protection of copyright presupposes the
existence of identifiable author of the work be it is single or several authors.
This could be understood from the provisions of the proclamation that
defined copyright as economic right and whenever appropriate the moral
right of an author.68 The same idea could be understood from article 6 of the
proclamation which states irrespective of the quality of the work, the author
of the work is entitled to legal protection in his work provided that the work
is original and fixed.69 The proclamation defined author as a person who
intellectually created the work, and recognize the possibility of collective
author and joint author.70 In general the copy right is all about the right
accorded to the author that protection of the work as copyrightable is
unimaginable in absence of identifiable creator of the work. However, for the
most of TCE in Ethiopia, it is difficult to identify and trace their creators as
they are communally created and held and/or because the creators are simply
unknown.71Therefore, due to this identifiable author requirement72 that is
difficult to satisfy for bulk of the TCE, the Ethiopian copyright law is not
appropriate for TCE.

D) Different Conception of Ownership

The other limitation of Ethiopian copyright system in protecting TCE relates
to the conception of ownership which gives emphasis to individual
ownership right. The proclamation states that “owner of copyright” is the
author where the economic rights are vested in the author, where the
economic rights are originally vested in a natural person other than the

67
In this regard, Art 2.2 of the Berne Convention provides requirement of fixation is optional
and thaw there was an opportunity for Ethiopia to exclude fixation as a requirement of
copyright protection.
68
The Copyright and Neighboring Right Proclamation, Art.2(8)
69
The Copyright and Neighboring Right Proclamation, Art.6
70
The Copyright and Neighboring Right Proclamation, Art.2(2)
71
WIPO, Supra note.18, p.38
72
At this juncture, unidentifiable /unknown author shall be distinguished from anonymous
author indicated as indicated under art 20(5) of the proclamation. The author of anonymous
author is known and identified but the author preferred it to be published anonymously upon
his choice.

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author or in a legal entity, that person or entity, where the ownership of the
economic rights has been transferred to a natural person or legal entity, that
person or entity; and provide the brief rules on ownership.73 However, the
proclamation emphasis the notion of individual ownership, but this form of
ownership is incompatible with indigenous customs and traditions that
emphasize communal ownership. Hence, the notion of ownership advocated
by the proclamation is not suitable for TCE. As has been said, it is difficult
to trace individual author of TCE as they are communally created and held,
or owned by the past and present generations of that community. But, as the
provisions of the proclamation dealing with ownership emphasis on the
private ownership be it is individual, collective or joint ownership74; it lacks
sufficient room to accommodate room for communal ownership by
indigenous community.

Furthermore, even in situation where there possibility of communal

ownership, there is no detail rules on various issues75 like: how to identify
owning community? Which community own which creation? How shared
knowledge among various communities will be dealt with? What institution
will represent that community? How exploitation of such TCE be made?
There is also no rules that guides the use of proceed of exploitation, whether
it is to be invested for communal interest like research and promotion of
community culture or divisible among individual member of the
community.76In short, the rule of ownership provided under Ethiopian copy
right system is not only inappropriate but also inadequate to accommodate
the needs of TCE.

73
The Copyright and Neighboring Right Proclamation, Arts.2 (16) &21.
74
Note that the notion of communal ownership on the TCE should be distinguished from the
notion of collective ownership and joint ownership that allows two or more persons to be
the owner of a given work as envisaged under Art 2(5) and 2(29) of the proclamation . In
communal ownership, the owner is the community at large including the past and present
generation of that community and that they are not individually identified but in joint or
collective ownership, all individual members exist and/or individually identified.
75
Even if some of these issues are addressed under the Ethiopian Access to Genetic
Resources and Community Knowledge, and Community Rights Proclamation No. 482/2006;
the scope of proclamation is limited to TK associated with genetic resources, and that it has
no applicability to the TCE and the independent TK.
76
The Copyright and Neighboring Right Proclamation, Arts.2(16) &21

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E) Limited Duration of Copyright

Under Ethiopian copyright system, duration of copyright is limited to life of
the author plus fifty years.77. However, the limited duration of copyright will
lead to problematic question with regard to TCE. Firstly, the community has
perpetual existence that their cultural expression needs the perpetual
protection.78 As the duration of copyright is limited to certain time to be
counted from the death of the author, this will be awkward for TCE as
community never dies. On the other hand, if we are referring to ancient
generation of the community that have been claimed to create a TCE many
centuries ago, it could be claimed that the term of protection would have
long expired.79 Hence, concept of fixed duration of copyright does not meet
the need of the traditional communities who desire perpetual protection for
TCE.

F) Idea-Expression Dichotomy
The idea-expression dichotomy is a legal doctrine that limits scope of
copyright protection to only expressions of ideas and not ideas.80 Ideally, the
idea/expression dichotomy ought to regulate the public domain by seeking to
ensure that ideas are available for use by potential creators.81 The Ethiopian
Copyright right system protects the expression but not the underlying idea or
original thought of the author. This is clearly provided under art 5 of the
proclamation as “any idea, procedures, system, method of operation,
concept, formula, numerical tables and forms of general use, principle,
discovery or mere date, even if expressed, described, explained, illustrated or
embodied in a work.”82However, there could be situation certain style and
methods of creating TCE may be vulnerable to imitation.83 For instance,
person alien to the community in question may imitate such style and
methods of creating TCE for creating something for his own benefit. 84 In

77
The Copyright and Neighboring Right Proclamation, Art 20
78
Anurag Dwivedi and Monika, supra note 10, P312.
79
Ibid.
80
Leslie A. Kurtz, Speaking to the Ghost: Idea and Expression in Copyright’, University of
Miami Law Review (1993), Vol.47(5) 1221, P1224
81
Ibid.
82
The Copyright and Neighboring Right Proclamation, Art .5
83
Kuek Chee Ying , Supra note 64
84
Ibid

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such a situation, copyright protection might not be available since it involves

idea that is style or method, but not expression of the idea.

G) Failure to Provide Defensive Protection

In context of TCE, the defensive protection includes all mechanisms by
which access to the TCE is restricted, including access which may result in
the TCE becoming the IP rights of a third party. 85It also encompasses
mechanisms that enable the recognition of the interests of the communities
that produce the TCE.86 The existing Ethiopian copyright not only fails to
provide a positive protection to TCE but also to some extent incapacitate the
indigenous community from preventing unauthorized exploitation of their
TCE in different ways. As bulk of the TCE are traditionally considered a
common heritage of mankind that falls into the public domain, copyright
system indirectly enables non indigenous people to acquire copyright over
new TCE or on those TCE incorporated in derivative works.87 There are
enormous exceptions/limitations88 in which the author cannot prevent
exploitation of his work; however, such exceptions in ordinary copyright
system may be excessive in respect of TCE as exploitation of TCE under
guise of such exceptions may cause intolerable harm to community.

4.1.2. Limitation of the Neighboring Right

System to Accommodate TCE

As has been mentioned earlier, TCE could be accorded indirect protection

under the performer’s rights. It is also claimed that the provisions of
Ethiopian copyright and neighboring right proclamation dealing with right of
performer could extend indirect protection to TCE. Art 2(14) of the
Proclamation that defines neighboring rights as the rights performers,
producers of sound recordings, broadcasting organizations have over their
works.89However, Ethiopian neighboring right system is inadequate to
provide indirect protection to TCE for the following key reasons.

85
Enyinna S. Nwauche, The Sui Generis and Intellectual Property Protection of Expressions
of Folklore in Africa (PhD Dissertation, North-West University, 2016), P 53.
86
Ibid.
87
WIPO, Supra note 18, p.42
88
Copyright and Neighbouring Right Proclamation, Arts 9-19.
89
The Copy Right and Neighboring Right Proclamation, Art.2(14)

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A) The Limited Definition of Performer

Under Ethiopian neighboring right system, ‘Performer’ is defined as actor,

singer, musician, dancer, and other person who act, sing, deliver, declaim,
play in, or otherwise perform literary and artistic works.90 As can be inferred
from this definition, for a person to be regarded as a performer, he should
perform literary, artistic and scientific work that it is not expressly addressed
whether TCE is a work that can be performed in furtherance acquiring
neighboring right over it. In this regard, art 2(a) of WPPT defined
performers” as actors, singers, musicians, dancers, and other persons who
act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or
artistic works or expressions of folklore thereby explicitly recognizing
expression of folklore /TCE as a type of work that can be performed by
performer.91 To the contrary, Ethiopian neighboring right system does not
expressly included TCE as subject matter of performance, and hence, it
frustrates indirect protection of TCE under right of the performer.

B) No Direct Benefit to the Concerned Community

The other limitation of Ethiopian neighboring right system in according

indirect protection to TCE is that there is no economic benefit that will be
given to the developers and custodian of the TCE upon which performance
right is available. It is obvious that the right of performance provided under
the copyright and neighboring right proclamation is accorded to the
performer himself and not to the community that are original developer and
preservers of the underlying TCE performed by the performer. Of course in
some situation, the performer of the TCE may belongs to same community
that is the holder of that cultural expression, and in such cases, it can be
argued that a benefit of protection accorded to the performer who is the
member the community in question can be considered as a benefit for that
community. However, in situation where the performer is alien to that
community that are holder of the performed cultural expression, there is no
any benefits that will accrue to the relevant community.

90
The Copright and Neighboring Right Proclamation, Art.2(19)
91
The WPPT, Art.2(a)

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4.2. THE PROTECTION UNDER PATENT PROCLAMATION

In Ethiopia, patent and related right are regulated by the Proclamation on

'Inventions, Minor Inventions and Industrial Designs.92 Article 2(5) of the
proclamation defined patent as the title granted to protect inventions, and
invention is defined to mean an. idea of an inventor which permits in practice
the solution to specific problem in the filed of technology. Article 3 of the
same states an invention is patentable if it is new, involves an inventive step
and is industrially applicable. Hence, though there is rare possibility, TK
satisfying these requirements could potentially patentable. However, the bulk
of the TK as such cannot be patented and effectively protected under the
proclamation because of the following main challenges.

A) Identifiable Inventor Requirement

The proclamation requires a single individual to be identified as an

inventor.93However, TK is developed inter-generationally, where in most
cases it is difficult to trace the initial time of the first invention and inventors.
Hence, it is difficult to identify single individual as inventor of TK, and that
one cannot claim patent right over TK. Even more, to claim joint ownership
of patent, the law requires one or more persons to jointly involve in the
invention and to the same goal.94 However, the bulk of TK are created by the
past generation and the current generation could only make changes to and
develops the previous knowledge to adapt to the new environmental and
socio-economic changes, and in such situations, it is difficult to claim for
patent right over the TK unless it was claimed in respect of the new
improvements only.

B) Novelty

Novelty is assessed with reference to prior art or state of the art. Prior art in
the context of the patent proclamation implies the complete body of
knowledge which is available to the public before a patent application.95 This
is because article 3(2) of the proclamation requires absolute novelty of an
92
Inventions, Minor Inventions and Industrial Designs Proclamation, Proclamation No.
123/1995 (here in after Patent Proclamation).
93
The Patent Proclamation , Arts 2(3) & 8
94
The Patent Proclamation, Art 7(2)
95
The Patent Proclamation, Art.3

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invention in which every disclosure irrespective of its form and place

accounts prior art. Any invention which is made public before application is
fild would be considered prior art, and hence this requirement of novelty is
difficult to satisfy for bulk of the TK.

C) Inventive Steps

This standard requires that the claimed invention be non-obvious for a

person with ordinary skills in a given technical field, and this is known
through a comparison of the claimed invention and the prior art.96 Though
there might be certain TK that may involve some sort of inventive steps as in
the case of traditional herbal medicine, the bulk of the TKs are usually crude
materials that are processed simply and do not involve sophisticated
know-how. Hence, for most of TK, it is widely recognized that the difference
between the prior art and the claims at issue is difficult, and hence, rarely
satisfy this requirement of inventive step.

D) Limited Duration of Patents

Patents are made public on registration, but grant the owner an exclusive
monopoly over the invention for twenty years. In this regards, Art 16 of the
patent proclamation states “A patent shall be granted for an initial period of
fifteen years commencing from filling date of the application for protection.
Upon expiration of the duration, the invention becomes freely available to
use. Indigenous people, however, seek to hold rights in their TK in
perpetuity unless they are fairly compensated; and this makes the patent
registration unsuitable for TK protection.

4.3. PROTECTION UNDER THE BIO-DIVERSITY AND ABS

REGIME

In addition to the limited protections accorded to it under patent laws as

discussed above, certain categories of TK associated with biodiversity and
genetic resources can be protected under biodiversity laws of Ethiopia yet
this regimes have no place for TCE. The relevant biodiversity legislations of

96
Xuan Li, Novelty and Inventive Step: Obstacles to Traditional Knowledge Protection
under Patent Regimes: A Case Study in China, European Intellectual Property Review
(2007),Vol. 29, No(4) 134, P135.

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the country in this regard include Access to Genetic Resources and

Community Knowledge, and Community Rights Proclamation97 and Plant
Breeders' Right Proclamation.98 These legislations are primary bio-diversity
legislations dedicated to ensure access to and sustainable utilization,
protection, conservation and exploitation of biodiversity and genetic
resources but they are not IP regime for protection of TK and TCE. Even if
certain protections are accorded to TK associated with biodiversity and
genetic resources during access to these resources, these legislations have no
relevancy for protection of other TK that are independent of biodiversity and
genetic resources, and hence, are not full-fledged regime for TK.

As can be understood from its objective provision, the Genetic Resources

and Community Knowledge, and Community Rights Proclamation primary
aimed at ensuring that the country and its communities obtain fair and
equitable share from the benefits arising out of the use of genetic resources
so as to promote the conservation and sustainable utilization of the country’s
biodiversity resources.99 However, as has been reflected under the preamble
and its substantive provisions, the proclamation also accords legal protection
and recognition for TK associated with the genetic resources.100 Hence,
being inline with the CBD and the African model law, the proclamation
regulates access to genetic resources and related community knowledge, and
ensures protection of community right on the genetic resources and
community knowledge101in these courses. Accordingly, the proclamation
vested the ownership of community knowledge in the concerned local
community.102As per Art 6 of the proclamation, local communities are
entitled with (1) the right to regulate access to their community knowledge;

97
Access to Genetic Resources and Community Knowledge, and Community Rights
Proclamation No. 482/2006, Federal Negarit Gazeta 13th Year No. 13 ADDIS ABABA-
27th February, 2006 (Hereinafter Access to Genetic Resources and Community Knowledge
Proclamation)
98
Plant Breeders' Right Proclamation No. 481/2006, 12th Year No. 12 ADDIS ABABA –
27th February, 2006 (Hereinafter The Plant Breeders' Right Proclamation)
99
Access to Genetic Resources and Community Knowledge Proclamation, Art.3
100
Access to Genetic Resources and Community Knowledge Proclamation, Preamble, Para.
5-7
101
Community knowledge means knowledge, practices, innovations or technologies created
or developed over generations by local communities on the conservation and use of genetic
resources. See Art 2(14) of Access to Genetic Resources and Community Knowledge
Proclamation
102
Access to Genetic Resources and Community Knowledge Proclamation, Art.5.

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(2) right to use their community knowledge; (3) the right to share from the
benefit arising out of the utilization of community knowledge103and norms of
the concerned communities. What is more, the proclamation subjected
access to TK to the prior informed consent of the concerned local
community.104Under Article 10(1), it further mentions the protection of
community right over their TK as they are enshrined in the customary
practices. However, the main limitation of this proclamation to protect TK is
that it failed to cover that are not associated with genetic resources. There are
enormous TK that have no relation with genetic resources but the scope of
TK covered by the proclamation is not wide enough to address all TK in the
country. Even for those TK covered under the proclamation, it failed to
incorporate moral rights such as right of attribution and paternity that could
have been granted via IP regimes.

The plant breeder’s proclamation too is not primarily intended to grant the IP
right to the farmer but intended to consolidate the plant breeder’s rights over
the new plant variety created by him/her and put certain privileges given to
farmers in relation to the use of the plant variety as an exception to the
breeder’s rights.105 In respect of protected variety, farmer is entitled to use
protected varieties including material obtained from gene banks or plant
genetic resource centers to develop farmers’ varieties; and to save, use,
multiply, exchange and sell farm-saved seed or propagating material of
protected varieties. However, it would constitute infringement if the farmers
sell the farm-saved seed or propagating material of a protected variety in the
seed industry as a certified seed. Even in respect of the farmer’s variety
which constitute a community knowledge ,farmers are granted a few right
limited to use, save, exchange and sell farm-saved seed or propagating
material of that farmers’ varieties106but not a full-fledged communal IP rights

103
Access to Genetic Resources and Community Knowledge Proclamation, Art.6.
104
Access to Genetic Resources and Community Knowledge Proclamation, Art.12 (2).
105
It is highlighted in the preamble of the proclamation that granting certain privileges in
respect of the plant breed’s right will ensure that the farming and pastoral communities of
Ethiopia, who have been conserving and continue to do so in the future the agro-biodiversity
resource used to develop new plant varieties, continue to their centuries old customary
practice of use and exchange of seed.
106
Farmer’s variety means a plant variety having specific attributes and which has been
discovered, breeds, developed or nurtured by Ethiopian farming communities or a wild
relative of variety about which the Ethiopian farming communities have common
knowledge. see Art 2(9) of the plant variety proclamation

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as that of the plant breeder’s rights. Overall, these limited privileges/rights

mainly relate with right to use, save and exchange or sell have been reserved
for the farmers as a reward for the enormous contributions that they have
made and will continue to make in the conservation and sustainable use of
plant genetic resources but not as IP right for their creativity. 107 For this
reasons, the plant breeder’s proclamation is short of providing sufficient IP
protection for TK.

5. TOWARD SUI GENERIS LAW FOR TRADITIONAL KNOWLEDGE AND

CULTURAL EXPRESSION IN ETHIOPIA: DRAWING A LESSON FROM
KENYA

5.1. A SUI GENERIS PROTECTION OF TK AND

TCE IN KENYA

Like Ethiopia, Kenya is rich in TK and TCE. A popular example of TK and

TCE in Kenya includes the barefoot technology of the Maasai people which
spurred a successful shoe brand, the kikoi (woven cloth), the lesso
(decorative cloth or sash) and the akala (tyre sandals).108 Kenya has
approximately forty-two communities with unique languages, cultures,
experiences and ways of life making it easy to comprehend the rich
expressions of folklore and TK in that country.109 The Maasai community of
Kenya in particular has for centuries captivated the world with their
distinctive way of life, dances, dress, ornaments, and traditional medicines.
However, over the last two decades, there has been widespread exploitation
of Maasai culture by non-Maasai, in Kenya and Tanzania and abroad, often
without the consent of the Maasai peoples.110 As a result, the Maasai have
fought against the exploitation of their culture and the harms that occur
through improper cultural exploitation from the tourism sector. 111 As a
response to this pressing need to protect TK and TCE from the Maasai and
other community, the government of Kenya issued the National Policy on

107
See Art 27 of the plant breeders proclamation
108
supra note 13
109
Enyinna S. Nwauche, supra note 85, P88
110
Naomi L. Leleto, Maasai Resistance to Cultural Appropriation in Tourism, The
Indigenous Peoples’ Journal of Law, Culture & Resistance (2019),Vol.5 No.1, P22
111
Ibid.

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Traditional Knowledge, Genetic Resources and Traditional Cultural

Expressions in 2009.112

The policy intended to provide a national framework for recognition,

preservation, protection and promotion of sustainable use of TK, TCE and
genetic resources. It also outlines policy statement which requires the
government in collaboration with other stakeholders to create awareness on
the importance and the value of TK and Folklore, Document for preservation
and protection, Promote Research and Development in TK and Folklore, and
protect the various rights of holders of TK and Folklore.113 Moreover, the
policy recognizes inadequacy of the existing IP right regimes and the
increasing demand for sui generis systems to enhance, protect and honor TK
and TCE.114 The policy clearly suggests a reform process with a sui generis
legislation being implemented concurrently with other relevant laws,
building institutional capacity, and participation in decision making and its
implementation.115 The reform of Kenyan law was motivated by an edict of
Kenya’s Constitution116, which required the state to promote culture and
cultural heritage and to enact legislation in this regard.117 That reform
process has been kick-started by issuing of the Draft Bill on Protection of TK
and TCE in [Link] bill was put accessible for the public participation and
consultation118 for more than three years to solicit important comments and
suggestion and finally adopted as Knowledge and Traditional Cultural Act in
2016, and its revised version is released in 2018.

112
National Policy on Traditional Knowledge, Genetic Resources and Traditional Cultural
Expressions, Government of Kenya, July 2009 (The Kenyan Policy)
113
The Kenyan Policy, Policy 4.4
114
The Kenyan Policy, Policy 4.5
115
The Kenyan Policy, Policy 5
116
The Constitution of Kenya, 2010
117
Article 11 (1) of Kenyan Constitution recognizes culture as the foundation of the nation
and as the cumulative civilization of the Kenyan people and nation, and requires the
parliament shall enact legislation to (a) ensure that communities receive compensation or
royalties for the use of their cultures and cultural heritage; and (b) recognize and protect the
ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics
and their use by the communities of Kenya.
118
A meaningful participatory process was followed throughout the lawmaking process of
the Kenyan traditional knowledge and cultural expression law in light of Art 196 (1) of the
Kenyan Constitution which states that “ a county assembly shall conduct its business in an
open manner, and hold its sittings and those of its committees, in public; and (b) facilitate
public participation and involvement in the legislative and other business of the assembly
and its committees.

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The New Act is intended to provide a frame work for the protection and
promotion of TK and TCE and to give effect to Articles 11, 40 and 69(1) (c)
of the Kenyan Constitution which generally restates the government’s duty
to ensure community’s property right over their cultural heritage. The
structure of the act heavily drawn from and closely follows structure of the
Swakopmund protocol119 and the Draft WIPO articles, and organized in 8
parts. Part I provides for preliminary issues such as Interpretation of relevant
terms/phrases, guiding principles and responsibility of county and national
governments of Kenya towards protection of TK and TCE. Under this part,
the act provided interpretive definition for traditional knowledge 120and
cultural Expression121, and set out values and principles set out in the
Kenyan Constitution as guiding principles. Part II and III of the Act provide
separate rules for TK and TCE respectively addressing inter alia issues
relating to criteria of protection, formality for protection, right of protection,
right conferred, and duration of protection. The remaining parts of the Act
provide for detailed rules that is commonly applicable for both TCE and TK
including the content of right to protection along with its exceptions and
limitations, moral right of the community, right of assignment and licensing
and additional rights, right to equitable benefit sharing rights, and

119
Kenya is original member of ARIPO, and signatory of Swakopmund protocol
120
Art 2 of the Act defined "traditional knowledge" as any knowledge (a) originating from
an individual, local or traditional community that is the result of intellectual activity and
insight in a traditional context, including know-how, skills, innovations, practices and
learning, embodied in the traditional lifestyle of a community; or (b) contained in the
codified knowledge systems passed on from one generation to another including
agricultural, environmental or medical knowledge, knowledge associated with genetic
resources or other components of biodiversity, and know-how of traditional architecture,
construction technologies, designs, marks and indications
121
The act defined "cultural expressions" as “any forms, whether tangible or intangible, in
which traditional culture and knowledge are expressed, appear or are manifested, and
comprise of the following forms of expressions or combinations thereof— (a) verbal
expressions including stories, epics, legends, poetry, riddles; other narratives; words, signs,
names, and symbols; (b) musical expressions including songs and instrumental music; (c)
expressions by movement, including dances, plays, rituals or other performances, whether or
not reduced to a material form; (d) tangible expressions, including productions of art,
drawings, etchings, lithographs, engravings, prints, photographs, designs, paintings,
including body-painting, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal
ware, jewelry, basketry, pictorial woven tissues, needlework, textiles, glassware, carpets,
costumes; handicrafts; musical instruments, maps, plans, diagrams architectural buildings,
architectural models; and architectural forms”

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management of rights, issues of public consultation, authorized user

agreements, and sanctions and remedies.

The Act provides the criteria of protection that sufficiently accommodates

the unique nature of TK and TCE by setting aside the criteria of protection
under the conventional IP system. As regard criteria for protection of TK, art
6 of the act provides;

Protection shall be extended to traditional knowledge as long as it is

(a) generated, preserved and transmitted from one generation to
another, within a community, for economic, ritual, narrative,
decorative or recreational purposes; (b) individually or collectively
generated; (c) distinctively associated with or belongs to a
community; and (d) integral to the cultural identity of community that
is recognized as holding the knowledge through a form of
custodianship, guardianship or collective and cultural ownership or
responsibility, established formally or informally by customary
practices, laws or protocols.

As regard criteria for protection of traditional cultural expression, Art 14 of

the act sates that;

The protection of cultural expressions under this Act shall relate to

cultural expressions, of whatever mode or form, which are- (a) the
products of creative and cumulative intellectual activity, including
collective creativity or individual creativity where the identity of the
individual is unknown; (b) characteristic of a community's cultural
identity and cultural heritage and have been maintained, used or
developed by such community in accordance with the customary
laws and practices of that community; (c) generated, preserved and
transmitted from one generation to another, within a community, for
economic, ritual, narrative, decorative or recreational purposes; (d)
individually or collectively generated; (e) distinctively associated
with or belongs to a community; and (f) integral to the cultural
identity of community that is recognized as holding the knowledge
through a form of custodianship, guardianship or collective and
cultural ownership or responsibility, established formally or
informally by customary practices, laws or protocols.

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As regard, formalities, the Act states Protection of TK and TCE shall not be
subject to any formality122 as long as the aforementioned criteria for
protection are satisfied. What is more, the act extends the duration of
protection of both TK and TCE to be perpetual so long as their respective
criteria for protection provided in the Act are intact.123

The Act protects communities from exploitation and allows them to control
the use of culturally significant and economically valuable knowledge and
expression by creating a new form of IP right held by the community itself.
It provides the defensive and protective protection necessary for providing a
robust legal regime that protects TK and TCEs. The defensive protection
prevents people outside a traditional community from acquiring IP rights
over TK and TCEs requiring the government to establish a repository for the
documentation of such knowledge and maintain registers of TK and TCEs
that are collected and registered.124 In terms of positive protection, the Act
grants the rights that empower communities to promote their TK and TCEs,
control their uses and benefit from their commercial exploitation.

Accordingly, the community of TK or TCE owners shall have the right to

protection of that knowledge or cultural expression, which may include the
exclusive right to authorize exploitation of the TK and TCE, and prevent any
person from exploiting it without their prior informed consent, right to
recognition as owner of the TK and TCE, right to institute legal proceedings
and get remedies against violation of these right. 125 Art 18 of the Act further
states that ‘a person shall not, in any way, misappropriate, misuse, abuse,
unfairly, inequitably or unlawfully access and exploit traditional knowledge
and cultural expressions, and use the knowledge or expression without the
prior and informed consent of the owners, be used for reproduction,
publication, broadcasting, translation, derivation work , for sale…” Art 19 of
the Act; however, provides for exceptions and limitations in like normal
usage, development, exchange, dissemination and transmission of TK and
TCE or use for non-commercial purpose, or other exceptions as may be
necessary subject to a prior informed consent of the owner and in manner

122
The Kenyan Traditional Knowledge and Cultural Expressions Act , See Arts 7 & 15
123
The Kenyan Traditional Knowledge and Cultural Expressions Act , Arts 13 &17
124
The Kenyan Traditional Knowledge and Cultural Expressions Act, Art 8
125
The Kenyan Traditional Knowledge and Cultural Expressions Act, Art 10, 11,

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compatible with fair practice, relevant community's customary laws and

practices, acknowledging the community as source, and in ways that is not
offensive to the community.

Besides, the Act provides for moral rights that the owning community shall
have toward their TK and TCE. In this regard, Art 21 of the Act states that
‘the owners shall be holders of the moral rights in the traditional knowledge
or cultural expressions which include:

(a) right of attribution of ownership or paternity in relation to their

traditional knowledge and cultural expressions; (b) right not to have
ownership of traditional knowledge or cultural expressions falsely
attributed to them; and (c) right not to have their traditional
knowledge and cultural expressions subject to derogatory treatment
including any act or omission that results in a material distortion,
mutilation or alteration of the traditional knowledge or cultural
expressions that is prejudicial to the honor or reputation of the
traditional owners, or the integrity of the traditional knowledge or
cultural expressions; and (d) right to protection from false and
misleading claims to authenticity and origin

It is noted that these moral rights of traditional owners in their TK and TCE
shall exist perpetually, and independently of their cultural rights.126
Moreover, the Act recognizes additional right such as the cultural rights to
maintain, control, protect and develop cultural heritage, TK and TCE as well
their manifestations, and these cultural rights shall be in addition to any
rights that may subsist under the existing IP laws.127 The owners of TK and
TCE rights shall have also the right to assign and conclude licensing
agreements in relation to their TK or TCE 128 and the right to fair and
equitable sharing of benefits arising from commercial or industrial use of
their knowledge, to be determined by mutual agreement between the
parties.129

126
The Kenyan Traditional Knowledge and Cultural Expressions Act, Art 21 (3) & (4).
127
The Kenyan Traditional Knowledge and Cultural Expressions Act, Art 23.
128
The Kenyan Traditional Knowledge and Cultural Expressions Act, Art 22.
129
The Kenyan Traditional Knowledge and Cultural Expressions Act ,Art 24.

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What is more, the Act provides for provisions regarding participatory

management of the community right as well as remedies and sanctions for
violation of any of the rights. In this regard, Art 25 of the Act states that the
owners of TK or TCE may grant authorization for the exploitation and use of
their TK or TCE themselves; or after necessary consultations, authorize the
national government, county government or any other person to exploit their
TK or TCE, on their behalf. The owners of TCE or TK shall, before entering
into an authorized user agreement, consult the members of the community on
the proposed terms and conditions of the agreement. The authorized user
agreement shall provide for, in its terms and conditions on matters of (a) the
benefit sharing; compensation, fees, royalties or other payments for the use;
whether the use will be exclusive or non-exclusive; duration of the use and
rights of renewal; disclosure requirements ; possible sharing by the owners
of any IP rights arising from the use of the TCE or TK ; access
arrangements; applicable controls on publication; assignment of rights,
where appropriate; dispute resolution ; confidentiality and disclosure in
relation to secret TK and TCEs; and respect for moral rights of the
owners.130

Finally, the Act sets up a system to ensure that the rights are effectively
protected and criminalize any misuse of TK and TCEs.131 Communities
further have the power to stop misuse of their TK and TCEs by obtaining
civil remedies such as court injunctions and forcing companies to pay for
royalties for any commercialization of TK and TCEs that has not been
agreed to in advance.132 Overall, the Kenya’s Act represents a bold and
forward-thinking effort to improve and protect the TK and TCE in Kenya,
and this can be taken as model for other African countries wishing to protect
the TK and TCE.

5.2. WHAT KEY MESSAGE FOR ETHIOPIA?

Unlike Kenya, Ethiopia, as of yet, has no an enforceable, effective, and

binding protection regime for TK and TCE. The country does not have

130
The Kenyan Traditional Knowledge and Cultural Expressions Act, Art 34
131
The Kenyan Traditional Knowledge and Cultural Expressions Act, Art 37
132
The Kenyan Traditional Knowledge and Cultural Expressions Act , Art 39

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effective sui generis form133 of IP right system for TK and TCE, and the
existing IP laws of the country are also not adequate to protect TK and TCE.
As has been revealed under section 4 of this paper, the existing IP laws of the
country including the copyrights and neighboring right proclamation, and the
patent law are tainted by various limitations and are not adequate to protect,
preserve and promote TK and TCE in the country. Moreover, even if the
existing bio-diversity and ABS regimes of the country including the have
tried to accord certain protection for TK associated with biodiversity and
genetic resources during access to these resources; these legislations have no
relevancy for protection of TCE and TK that are independent of biodiversity
and genetic resources.134 Hence, both TCE and TK are not effectively
protected under the existing IP and biodiversity laws.

Nevertheless, the existing constitutional frameworks, and place given to

relevant international instruments ratified135 by the country could potentially
be harnessed for an optimal TK and TCE protection. In this regard, Article
39(2) of the FDRE Constitution entitled Every Nation, Nationality and
People in Ethiopia a right to express, to develop and to promote its culture;
and to preserve its history. Art 41(9) of the same imposes on the state the
responsibility to protect and preserve historical and cultural legacies, and to
contribute to the promotion of the arts and sports, and this could potentially
extend to a duty to protect and promote TK and TCE.136 Moreover, the
Constitution recognized right to property and private property is defined in
Art.40 (2) of the Constitution to include any intangible product having

133
Even though there is the ongoing steps by Ethiopian intellectual Property Office to
prepare laws of community knowledge, the efforts had not reached the legislative stage at
the time of writing this paper
134
See the discussion under section 4.3 above
135
For instance, Ethiopia ratified various human right instruments that recognized right to
culture and IP rights over TCE and TK, specific WIPO treaties like the Berne Convention,
and the CBD and related instruments. The country is also on the ways of acceding to WTO
and assumes the obligations incorporated under the TRIPS agreement.
136
The same duty is stipulated under Art 91 of the constitution dealing with cultural
objective of the country imposes government duty to support the growth and enrichment of
cultures and traditions that are compatible with fundamental rights, human dignity,
democratic norms and ideals, and the provisions of the Constitution, and to support the
development of the arts, science and technology.

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value137, and this could potentially include communal IP rights in the areas
of TK and TCE.

From now, given these constitutional frameworks that led foundation for
cultural rights of the community and the related duty of the Ethiopian
government to ensure fulfillments of the cultural right of the community and
promote, preserve and protect cultural heritage of the country, it is overdue
to ratify the Swakopmund protocol and legislate effective sui generis laws
that learns from the experience of Kenya as recapped in the preceding
subsection. The Sui generis legislation is a unique law complete unto itself
and often created when current and existing laws are inadequate. The
development of sui generis law offers an opportunity for indigenous peoples
to participate in developing frameworks that deal with knowledge control,
use and sharing, establish a bridge between customary law and national legal
systems in order to secure effective recognition and protection of TK and
TCE.138 As has been stated earlier, Kenya adopted effective sui generis law
that learns from the relevant international and regional framework, putting
Kenya at the forefront of states in the global south protecting national
resources and interests of local communities. It is recalled that being
determined to implement the constitutional duty that requires the Kenyan
government to enact law to ensure promotion, preservation and protection of
community’s TK and TCE with meaningful participation of the public and
concerned stakeholders, the Kenyan parliament adopted new Act that
sufficiently accommodate the nature and needs of TK and TCE.
Consequently, this will send important message to Ethiopian government
already in task to have law on TK and TCE from perspective of three key
points; a determination to enact law to protect, preserve, promote, and
commercialize TK and TCE in the interest of community, adopt participatory
approach in course of making this law, and driving content of the law itself
from the Kenyan TK and TCE Act.

Accordingly, the first thing that Ethiopian government should learn from
Kenya is determination to protect, promote, and preserve TK and TCE itself.
The Kenyan government appreciated the values of the cultural heritage of the

FDRE Constitution, Art.40 (2)

137

Wanjohi M. Mukuha, Protection of Folklore in Kenya: The Case of Maasai Handicrafts

138

(LL.M Thesis, University of Nairobi, 2013), P.65.

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community and pressing need for legislative intervention, and this was
clearly reflected in the Kenyan Constitution, Kenyan Policy on TK, TCE,
and Genetic resources, and her subsequent accomplishment in ratifying the
Swakopmund protocol as original member and adopting the Kenyan TK and
TCE Act inconformity with the protocol on top of many African Countries
and the world. To the contrary, the Ethiopian government remained reluctant
toward the legal protection of TCE and TK in the interest of traditional
community. Even if the Ethiopian Intellectual Property Office has recently
revitalized the need for the protection of TK and TCE and is undertaking
various measures, including drafting laws, this is not seriously considered;
and that it seems it is almost ignored as there is no news about its progress
even in the ongoing massive legal reform. Hence, Ethiopia should follow the
Kenya’s footstep in this regard, accede to the Swakopmund protocol/African
Regional intellectual property office (ARIPO) open for all African Union
members, and usher the already triggered initiation to adopt law on
protection and promotion of TK and TCE in the country.

In meantime, the other key message to Ethiopia from Kenyan experience is

that she should stick to public participation139 and consultation with
concerned stakeholders140 in all level law making process and incorporate
public comments and suggestion in the would be draft laws on protection and
promotion of TK and TCE. This is because public participation in
lawmaking process is an important tool for creating fair policies/laws
reflective of real needs of the community; ensuring that new legislation is
effective in achieving its goals, ensuring legitimacy of proposed regulation
and its compliance; increasing partnership, ownership and responsibility in
implementation of adopted legislations; strengthening democracy and human
rights and increasing confidence in public institutions.141 Thus, every
important law should undergo genuine and inclusive consultations with

139
Participation means a process of dealing with the citizens, civil society organizations
(CSOs) and other interested parties to influence the development of policies and laws which
affect them so as to reach at a better and acceptable decision; See National Assembly of
Kenya, Public participation in Legislative Process: Factsheet No.27.
140
The Stakeholders are those who will be affected by the draft law under consultation; or
will be involved in the implementation of the draft law under consultation; or have a stated
interest in the subject matter of the draft law.
141
The Institute for Social Accountability (TISA),Public participation Framework in County
Assembly, Kenya, April.2015

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every potentially affected group before it gets adopted, and such

consultations should take place at all key stages in the legislative process and
not only when there is already a fully drafted legislative text.142 Different
levels of participation in law making process includes (1) access to
information, including access to parliamentary information such as bills and
reports (2) consultation and (3) active engagement through dialogue and
partnership, and empowerment of the public.143

Hence, the full and effective participation of indigenous peoples should be

ensured in any developments of policies and laws on TK and TCE rights, and
such laws should particularly comply with the prior informed consent of the
community 144 Yet unlike in Kenya, the practice of legislative process in
Ethiopia does not adequately make public participation and consultation, and
the fate of the ongoing process to enact laws for TK and TCE may be
similar. In this regard, study has confirmed that the lawmaking process in
Ethiopia is initiated, formulated and adopted by the executive thereby
blocking not only public participation but also a meaningful participation by
Member of Parliament.145 This is because most of the time members of
parliaments are abided by their party discipline whether the issue is
concerned with policy or not even if they have significant reservations146,
and hence, they are passive to express the will of the people they represented
but the will of executive. Moreover, stakeholder’s participation in legislative
process is not only weak but also in a diminishing propensity.

Even if the principle of popular sovereignty, and right to access to

information and public participation147 is hinted under the Constitution, the
public do not have access to relevant information including to the draft law,
and these information are not released on media, website, and kept secret
until the law is finally adopted and published on negaritte gazette as a law;
and this is what we all are witnessing in the course the ongoing massive legal
reform. Moreover, unlike in Kenya, there is no procedural guideline that
142
Public Consultations on Draft Legislation ,Practical Guidelines for Public Officials who
are responsible for organizing public consultations in Ukraine, 2016
143
The Institute for Social Accountability (TISA),Supra note 141, P51
144
Paul K. Sena, Supra note 59, P16
145
Atsbeha Aregawi, Practice of Policy Making process in Ethiopia: Case of HPR, (MA
Thesis, AAU,2012), Pp.70-71
146
Ibid.
147
FDRE Constitution, Art.8.

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enables the public to participate in person; consulted and actively engage in

all level of law making process in Ethiopia. Whereas in Kenya, as stated
earlier, there is procedure to ensure meaningful public participation and
access to information in deed as well as in the constitution and other laws,
and even more the country has recently prepared the public participation
Bill148 that consolidates the earlier practices and provide guidelines to
ensure effective public participation . Thus, Ethiopia should take this good
experience from Kenya in the course of enacting laws, particularly laws on
TK and TCE, and put in place a system that will ensure grass root
participation and consultation of the public and all concerned stakeholders,
made relevant information accessible through media, website and all other
possible means, solicit public and stakeholder’s views at all level, and
incorporate such views in the would-be draft laws.

The last and most importantly, Ethiopia is advised to draw lesson from and
adapt content of her would-be sui-generis law for protection and promotion
of TK and TCE from Kenyan TK and TCE Act, of course ,while
incorporating different perspectives of Ethiopian community as can be
gathered through their meaningful public participation. This because as has
been discussed above, Kenyan TK and TCE Act is celebrated as the most
effective sui-generis law that is drawn from Swakopmund protocol, the
WIPO Draft articles and other relevant international framework and model
laws. And hence as both Ethiopian and Kenyan community shares relatively
similar traditional view as African and neighboring countries, it goes with
the assertion that there is no reason for Ethiopia to reinvent what is already
invented as long as transplantation fit to the actual needs of TK and TCE in
the country and approved by the community.

Accordingly, the would-be TK and TCE proclamation of Ethiopia should

inter alia provide clear definition of TK149 and TCE, and criteria for their
protection that can accommodate the unique needs of TK and TCE;

148
The Republic of Kenya, Public Participation Bill, 2018, Kenya Gazette Supplement No.
17 (Senate Bills No. 4).
149
Even if community knowledge is defined under Art 2(14) of the Access to Genetic
Resources and Community Knowledge Proclamation, this definition limited scope of TK to
those relating to the conservation and use of genetic resources only and hence not broad
enough to include all TK.

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recognize communal ownership150; avoid unnecessary formality for

protection; put perpetual duration of protection; elaborate content of
economic right to protection along with possible exceptions and limitations,
moral right, right of assignment and licensing. It should also contain
provisions that impose government’s duty to establish a repository for
documentation and maintenance registers of TK and TCEs ; provide
effective means to ensure participatory management of the community right;
ensure the prior informed consent and benefit sharing with concerned
community for exploitation; punish and repress all acts of misappropriation
and derogatory use or unauthorized use of TK and TCE, and incentivizes the
indigenous communities to protect, develop, and commercialize their TK and
TCE. Finally, the sui generis law should have provisions which recognize
and respect cultural rights over TK and TCE as recognized under the relevant
human right instruments and the FDRE Constitution, and make express link
to right protected under the conventional IP laws in this regards.151

[Link] REMARKS

Ethiopia is gifted with diverse TK and TCE that would have been potentially
exploited for sustainable development of the Ethiopian people yet; arrival of
globalization has created fertile ground for unjust exploitation and distortion
of the TK and TCE of the country. Recently, international attention have
been turned toward a sui-generis system to accord adequate protection to TK
and TCE, and Kenya stand at forefront of the global south in this regard. In
Ethiopia, there is no separate sui-generis IP law that protects TK and TCE,
and it is also confirmed in this paper that the existing IP regimes of the
country are inadequate to provide effective protection for TK and TCE. In
particular, it is found that the requirement of fixation and originality,
expression-idea dichotomy, limited duration of copyright, and absence of
defensive protection, and the provisions of the proclamation dealing with

150
The communal ownership of TK is recognized under Art 5 of the Access to Genetic
Resources and Community Knowledge Proclamation, but has been discussed above, the
scope of the proclamation is limited to TK associated with genetic resources and that it has
nor for communal ownership over TCE and independent TK
151
In this regards, Art 23 of the Kenyan TK and TCE Act recognizes additional right such as
the cultural rights to maintain, control, protect and develop TK and TCE as well their
manifestations, and states that these cultural rights shall be in addition to any rights that may
subsist under the existing IP laws.

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authorship and ownership made Ethiopian copyright system unsuitable to

TCE. The Ethiopian neighboring right system too is not adequate to protect
TCE for its limited definition of performer and obviously for its inability to
accord any benefits that accrues to concerned community especially when
performer is alien. Moreover, it is found that requirement of identifiable
inventor, novelty, inventive steps, and limited duration under the patent law
blocked/undermined patentability of TK in the country. Even if certain
protections that are short of IP rights are accorded to certain categories of TK
associated with genetic resources under the bio-diversity and the ABS
regimes of the country, these laws too are not broad enough to protect all
TCE and TK.

Therefore, it shall be the agenda of time for Ethiopian government to take

cognizance of the pressing need to protect TK and TCE in the country and
come up with a sui-generis law that rectify deficiency of the existing IP law
and adequately protect, preserve, promote, and commercialize the TK and
TCE. In so doing, it is suggested to follow the Kenya’s footstep, ratify the
Swakopmund protocol and adopt the sui-generis law from Kenyan TK and
TCE Act in line with relevant model laws. The would-be sui-generis law
shall be drafted and enacted through meaningful public participation, and
inter alia provide criteria for protection, duration and ownership that
accommodate unique needs of TK and TCE; provide means to ensure prior
informed consent of concerned community for exploitation and equitably
share benefits arising thereof, punish all acts of misappropriation/offensive
use/unauthorized use of TK and TCE, and incentivizes the communities to
protect, develop, and commercialize the TK and TCE.

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HUNDEEFFAMA MANA MURTII AADAA NAANNOO OROMIYAA

Azzanee Indaalammaa*
Abdii Tasfaa**
Askaalee Tarfaa****
ABSTRACT

Traditional justice systems are normally community-level dispute resolution

mechanisms with non-state origins, even if subsequently recognized and regulated by
the state. Some states retain a vertical structure, with the traditional system forming the
lowest levels of the court system while others have a parallel system, with the
traditional forum and the formal court serving alongside one another and providing the
parties with a choice of forum. The Federal Democratic Republic of Ethiopia’s
Constitution under Art.34 (5) stipulates that the House of Peoples’ Representatives and
State Councils can establish or give official recognition to religious and customary
courts. And added under the same provision that religious and customary courts that
had state recognition and functioned prior to the adoption of the Constitution shall be
organized on the basis of recognition accorded to them by this Constitution. The same
provision is enshrined under Art.62 of Oromia Regional National State Constitution.
Even though, it is about three decades since these Constitutions come to effect, there is
neither any customary court that is established, nor recognized by Oromia State
Council. This article is about to address the opportunities and challenges there for
establishment of customary court and the possible structure the customary court need to
have in case of establishment. Meanwhile, qualitative research method that includes
review of literature, about 67 in-depth interviews, about 36 focus group discussions and
about 80 open-ended questioners are employed. And it is found that as there is good
opportunity, Customary Court at kebele level and customary appellate court at Woreda
Level, with its decision to be reviewed at regular court, shall be established through out
the region.

Key Words: Customary Law, Customary Court, Customary Appeallate Court, Regular
Court, Justice.

* Barruun kun qorannoo ILOQHQSO tin bara 2012 gaggeeffame keessaa gabaabbatee kan
dhiyaate dha.
**LL.B (Yunivarsiitii Haaromayaa), LL.M (Yunivarsiitii Haaromayaa); duratti, Abbaa
Seeraa Mana Murtii Aanaa, amma Qorataa Seeraa ILOQHQSO
*** LL.B (Yunivarsiitii Baahir Daar), LL.M (Yunivarsiitii Arsii); Duratti, Abbaa Seeraa
Mana Murtii Aanaa, amma Qorataa Seeraa ILOQHQSO
**** BA (Yunivarsiitii Wallagaa), MA (Yunivarsiitii Addis Ababaa); Qindeessituu Garee
Afaanii BATO

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1. SEENSA

Dhaabbilee tajaajila abbaa seerummaa kennan amalaa fi kaayyoo adda addaa

qaban kan jran yoo ta’u dhaabbilee kunneen keessaa tokko Mana Murtii
Aadaa ti. Manni Murtii Aadaa tajaajila abbaa seerummaa jiraattoota ykn
hawaasaaf kennuu keessatti, keessumaa ardii Afrikaa keessatti gahee olaanaa
qaba.1Tajaajjilli abbaa seerummaa mana murtii kanaan kennamu seerota
mootummaadhaan tumamanii jiran irratti hundaa’ee otuu hin taane aadaa fi
duudhaalee hawaasa keessa jiran bu’uura godhachuunidha.
Tajaajila abbaa seerummaa Mana Murtii Aadaatin kennamu ilaalchisee
yaadota wal faalleessan lama gama hayyootaan yoo ka’an ni mul’ata. Inni
tokko yeroo sochiin siyaasa diinagdee addunyaa ammayyaa’ee jiru kanatti
Manni Murtii Aadaa tajaajila abbaa seerummaa kennuuf ga’umsa hin qabu
kan jedhu yoo ta’u, inni biroo ammoo yeroo ammayyaa kana keessatti
adeemsi salphaa wal dhabdee hiikuu danda’u kan akka Mana Murtii Aadaatu
hawaasa qaroomeef mala kan jedhani dha.2
Sababoota garagaraa eeruun Manni Murtii Aadaa biyyoota Afrikaa keessatti
jajjabaachuu akka qaban qaamoleen garagaraa ni ibsu. Sababni inni jalqabaa
maanguddoota Afrikaa fi hayyoota barnootaatin/ academician/ kan ka’u yoo
ta’u, isaanis Manni Murtii Aadaa qabeenya aadaa/ cultural heritage/ Afrikaan
qabduu fi Afrikaanoonni harka caalmaan jiran qabatamaan kan itti
gargaaraman waan ta’eef jajjabaachuu qaba kan jedhu dha.3 Tajaajilli abbaa
seerummaa Manni Murtii Aadaatin kennamu salphaa, baasii xiqqaa fi
dhaqqabamaa (accessibility) ta’uu isaatiin akkasumas sirna haqaa salphaa /
simple justice sytem/ ta’uu isaatiin jajjabeeffamuu qaba kan jedhu dha.4
Yaadni inni biroo tajaajjilli abbaa seerummaa Mana Murtii Aadaatiin
kennamu hanqinaalee kan qabu yoo ta’es, hanqinni kunneen kan sirrachuu
hin dandeenye /beyond repair/ waan hin taaneef; akkasumas, xinsammuu
qabatamaa hawaasaa fi sanada mirga namoomaa waliin foyyeessuun waan
danda’amuuf cimsuu ni danda’ama kan jedhu dha.5

1
South African Law Commission Act,Traditional Courts and the Judicial Function of
Traditional Leaders, 1999, F 1, [Link] /ipapers/ip12 prj108_ 1998.
pdf gaafa 11/03/2012kan ilaalame.
2
Akkuma lak. 1ffaa
3
Akkuma lak. 2ffaa
4
Akkuma lak. 3ffaa
5
Akkuma lak.4ffaa, F2.

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Falmii biroo Mana Murtii Aadaatiin wal qabatee ka’u manni murtii aadaa
akka Mana Murtii idileetti /courts of law/ ilaalamee kabajnii fi eegumsi
seeraa taasifamuufi qaba moo miti kan jedhu dha.6 Gareen tokko, kaayyoon
Mana Murtii Aadaa wal dhabdee wal falmiitootaa irratti murtii kennuun
tajaajila abbaa seerummaa laachuu hanga ta’ettii fi murtiin Mana Murtii
Aadaatin kenname oliyyannoodhaan mana murtii idileetti waan ilaalamuuf
Manni Murtii Aadaa akka mana murtii seeraa ykn idileetti ilaalamuu qaba
jechuudhaan dhiyeessu.7
Gareen kaanis, Manni Murtii Aadaa kun mana murtii seeraa ykn mana
murtii idilee otuu hin taane jarmiyaa aadaa irratti hundaa’ee wal dhabbii
hawaasa keessaatti uumamu bifa al-idilaa’aa ta’een /informal traditional
dispute resolution tribunals/ kan hiiku dha. Maanguddootni ykn jaarsoliin
biyyaa Mana Murtii Aadaa keessatti murtii kennan hojiin isaanii tajaajila
abbaa seerummaa qofa irratti kan daanga’e otuu hin taane hawaasa keessatti
seera aadaa kan tumanii fi kan raawwachiisani dha. Hojimaatni kun immoo
qajeeltoo heeraa qoodinsa aangoo /separation of power/: seera hiiktuu, seera
raawwachiiftuu fi seera tumtuu jedhu waliin kan wal faalleessu dha.
Dabalataan, Manni Murtii Aadaa tajaajila abbaa seerummaa kennuuf ragaa
kurfeessuun kan qabatu miti. Tajaajilli haqaa kenname /justice is done/ kan
jedhamu adeemsi seeraa fi murtiin kenname galmaa’ee kurfaa’ee kan jiruu
fi manni murtii oliyyannoo kana dhaga’u ragaa barruu ilaaluun kan dhaga’u
yoo ta’e dha. Mana Murtii Aadaadhaan wal qabatee garuu, manni murtii
idilee oliyyannoo dhaga’u falmii wal falmitootaa guutummaadhaan irra
deebi’ee dhaga’uu baatus ijoo falmii adda baasee hubachuuf falmii Mana
Murtii Aadaatti taasifame irra deebiin dhaga’a. Kun mana murtii idilee
keessatti kan baratame waan hin taaneef Manni Murtii Aadaa mana murtii
idileeti jechuun hin danda’amu jechuun kaasu.8Yaadota hayyoota garee
lamaan ka’u kana wal simsiisanii deemuun biyyootni Afrikaa baay’een
Mana Murtii Aadaatiif Heera isaanii keessatti beekamtii kennuun yoo itti
fayyadaman mul’ata.
Heerri Mootummaa Rippaabliika Dimokraatawaa Federaalaa Itiyoophiyaa
(kana booda, Heera Mootummaa RDFI jechuun ibsama) kew. 34 jalatti
dhimmoonni seera dhuunfaa fi seera maatiin /personal and family law/

6
Akkuma lak. 5ffaa,F11.
7
Akkuma lak. 6ffaa, FF.11-12
8
Akkuma lak. 7ffaa, F15

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

ilaalaman seera aadaatiin furmaata argachuu akka danda’an ni kaa’a.

Dabalataanis, heerumti kun kwt. 78 jalatti, Manni Maree Bakka Bu’oota
Uummataa Mootummaa Federaalaas ta’e kan Mootummaa Naannoo Mana
Murtii Aadaa hundeessuuf ykn hundaa’ee kan jiruuf beekamtii kennuu akka
danda’u aangeessee jira. Heerri Mootummaa Naannoo Oromiyaas (kana
boodaHeera MNO jedhamuun ibsama) bifuma Heera RFDIwal fakkaatuun
Mana Murtii Aadaatiif beekamtii kennee jira.9
2. SEERA AADAA FI SIRNA HAQAA ITIYOOPHIYAA

Itiyoophiyaa keessatti seerotni ammayyaa idileeffamuun duras ta’ee booda,

wal dhabdee hawaasa keessatti uumamuuf furmaata kennuun wal qabatee
sirna haqaa idilee /formal justice system/ caalatti aadaa fi duudhaa hawaasa
keessatti argamu gumaacha olaanaa taasisaa jiraachuu barreessitootni
baay’ee ni kaasu.10Keessummaa, baadiyyaa keessatti sirni jaarsummaa aadaa
sirna jalqabatti wal dhabbii hawaasaa furu ta’uudhaan tajaajila. 11 Duudhaan
wal dhabbii jaarsummaadhaan furuu kun nagaa fi tasgabbii mirkaneessuuf
akkasumas hawaasa gidduu hariiroon kabaja qabu akka jiraatu kan
taasisudha.
Itiyoophiyaan biyya uummata aadaa fi afaan tokko dubbatuun kan ijaaramte
otuu hin taane biyya mallattoon ishee sab-daneessummaa taatee dha.
Sabootni Itiyoophiyaa ijaaran kunneen aadaa fi afaan mataa isaanii saboota
biraa irraa adda isaan taasisu kan qabani dha. Kanaaf, Itiyoophiyaa keessatti
qorannoo fi qo’annoon seera aadaa irratti taasifamu kamiyyuu waa’ee seera
aadaa saboota Itiyoophiyaati jechuu dha. Fkf: Oromoo, Amaara, Tigeree,
Guraagee, Silxee fi kkf. Sabootni kun aadaa fi afaan mataa isaanii kan qaban
waan ta’eef, waa’een seera aadaa Itiyoophiyaa yoo qoratamu dhimma seera
aadaa saboota kanneeniti jechuu dha. Aadaa fi duudhaan hawaasummaa
uummatni Oromoo qabu kan uummatni Tigree ykn Guraagee qabu irraa adda
ta’uu mala.

9
Heera Mootummaa Naannoo Oromiyaa Fooyya’ee Bahe, Labsii Lak. 46/1994,Kwt. 62
10
Ayalewu Getachaw, Customary Law in Ethiopia: A Need for Better Recognition, Danish
Institute for Human Right, 2012, P9 available at [Link]
dokumenter/udgivelser/ayalew_report_ok.pdf.
11
World Bank: Legal Vice Presidency, Ethiopia Legal and Judicial Assessment, 2004, P16
available at [Link] INTLAWJUSTINST/ Resources/ Ethiopia
SA. pdf.

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

Ijaarsa biyya Itiyoophiyaatin wal qabatee walitti dhufeenyi seera aadaa fi

biyya ykn mootummaa Itiyoophiyaa gulantaa sadiitti hiruun ilaaluun ni
danda’ama jechuun hayyootni kaa’an ni jiru. Inni jalqabaa, bara
ammayyummaa dura /pre modern era/ kan jedhamu yoo ta’u, inni lamaffaa
bara ammayyummaa (modern era) ykn bara sirni seeraa amayyaa / formal
legal system/ diriirfamuu eegale ta’ee bara mootii Haayilasillaasee fi Dargii
kan hammatudha. Inni sadaffaan, bara ammayyummaa booda kan jedhamu
yoo ta’u, yeroo sirni federaalizimii sab-daneessaa hojiirra ooluu jalqabeen
booda yeroo jiru kan ilaallatu dha.12
Bara ammayyummaan dura/ pre-modern era/ sirni mootummaa amantaa
giddu galeessa taasifate iddoo muraasa bulchaa yoo tures hawaasni ykn sabni
baay’een garuu seera aadaatin jireenya hawaasummaa isaa gaggeessaa kan
ture dha.13 Yeroon kun yeroo mootiin Haayila Sillaasee Seerota garagaraa
ka’uumsa isaanii biyyoota Lixaa taasifatan biyya kanatti beeksiisuu eegaleen
dura yeroo jiru kan ilaallatuu dha. Bara kanatti, uummatnis aadaa mataa
isaatiin kan gaggeeffamu yoo ta’u, mootummaan giddu-galeessaa sirna
amantaa bu’ureeffateen hoogganamaa tureera. Dhibbaan sirni mootummaa
giddu galeessaas naannoo muraasa qofatti kan daanga’e ta’uu isaatin
waldhibdeen hawaasa keessatti uumamu baay’een isaa seeraa fi duudhaa
aadaa irratti hundaa’uun hawaasuma keessatti kan xumuramu dha.
Gulantaan inni lammaffaa bara ammayyummaa kan jedhamu yoo ta’u, bara
sirni seeraa idilee (formal legal system) sadarkaa guutummaa biyyatiitti
mootummaa giddu-galeessaan diriirfamuu jalqabe dha.14 Itiyoophiyaan sirna
seeraa ammayyatti of madaksuu kan eegalte heera biyyattii isa jalqabaa bara
1931 ALA raggaassisuun yoo ta’es, Heerri kunii fi Heera kana fooyyeessuun
Heerri bara 1955 ALA bahe waa’ee aadaa sabootaa ilaalchisee callisuu
dhaan bira darbeera.15Mootiin Haayilasillaasee sirna seeraa ammayyaa
biyyattii keessatti diriirsuuf Heera biyyattii isa jalqabaa beeksisuu bira
darbuun seerota dhimmota hariiroo hawaasaa, dhimmoota yakkaa fi
dhimmoota daldalaa hoogganaan bifa koodiitiin baasuun hojiirra

12
Muradu Abdo & etals, Customary law : Teaching Material, 2009, F111
13
Akkuma lak. 12ffaa
14
Akkuma lak. 13ffaa, F114
15
The Place of Customary and Religious Laws and Practices in Ethiopia: A Critical Review
of the Four Modern Constitutions, Social Sciences Journal (2015), Vol. 4, No. 4, P92

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

[Link] bifa koodiitiin yeroo sana bahan adda durummaan

amaloota seera biyyoota dhihaa kan giddu galeessa taasifatanii dha.
Sirna seeraa ammayyaa’aa diriirsuun wal qabatee seerota walakkeessa
jaarraa 20ffaa keessa tumaman keessaa Seerri Hariiroo Hawaasaa isa
[Link]’uura seera kanaatin seera aadaa irratti hundaa’uun waldhabbiin
akka hiikamuuf iddoon kennameef xiqqaa ture. Yaadni kun jiraachuu isaa
immoo Seera Hariiroo Hawaasaa keewwata 3347(1) irraa hubachuun ni
danda’ama.
Unless otherwise expressly provided, all rules whether written or
customary previously in force concerning matters provided for in this
Code shall be replaced by this Code and are hereby repealed.
Akka tumaa keewwata kanaatti, haala addaatiin seera kana keessatti yoo
ibsameen ala seerotni aadaa kanneen barreeffamanii fi hin barreeffamne
hojiirra jiran seera hariiroo hawaasaa kanaan akka geeddaraman ykn
haqaman (replaced and repealed) ni ibsa.
Tumaan keewwata kanaa seera aadaa dura waldhabbii hiikuuf tajaajilaa turan
Seera Hariiroo Hawaasaa waliin kan walfaallessanis ta’e wal siman
dhimmichi Seera Hariiroo Hawaasaatiin haguugameera taanaan dhimma ykn
wal dhabbii sana ilaalchisee kan hojiirra oolu seera aadaa otuu hin taane
Seera Hariiroo Hawaasaa ta’uu kan akeeke dha.
Hariiroo seera aadaa fi mootummaa ilaalchisee gulantaan inni sadaffaa yeroo
ammayyummaa booda jedhamuun kan ibsamuufi, diriirfamuu federaalizimii
sab-daneessa booda yeroo jiru dha.16 Gulantaan kun raggaasifamuu Heera
Mootummaa RDFI bara 1995 ALA kan jalqabu yoo ta’u, Heerri kunis seera
aadaa fi Mana Murtii Aadaatiif beekamtii kennuun kan eegale dha.17
Beekamtii seera aadaa fi Mana Murtii Aadaatiif gulantaa seenaa biyya kanaa
keessatti bu’uura Heera 1995 ALA baheen kenname mata dureewwan
armaan gadii keessatti kan ilaallu ta’a.
2.1. SEERA AADAA FI MANA MURTII AADAA: HEERA RDFI
FI HEERA NAANNOO OROMIYAA
Heera RDFI keewwata 9(1) jalatti, heerri kun seera olaanaa biyyitti akka ta’e
kaa’a. Seerri, barmaatileen aadaa kamiyyuu, hojii yookiin murteen qaama
16
Olitti yaadannoo lak 12ffaa, F116.
17
Akkuma lak. 16ffaa

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

mootummaa kaminiyyuu kennamu heera kanaan kan walfaallessu taanaan

raawwatiinsa akka hin qabne kaa’a.
Heerri RDFI kutaa garagaraa keessatti dhimma seera aadaa fi Mana Murtii
Aadaatiif haguuggii kennee jira. Bu’uura keewwata 39/2/ tin sabootni
hunduu afaan isaanii dubbachuu, barreessuu fi guddisuuf, akkasumas aadaa
isaanii guddisuu fi beeksisuuf mirga akka qaban Heerri kun ifaan ni kaa’a.
Heerri kun gaa’ila bu’uura aadaatiif raawwaramaniif keewwata 34 jalatti
beekamtii kennuu dabalatee dhimmootni martii seera idileetiin qofaan
ilaalamuu akka hin qabnee fi mana murtii aadaa fi mana murtii amantaa akka
filannoo birootti kan akeeku dha. Waldhabbiiwwan dhuunfaa fi maatii fedhii
gareewwanii giddu-galeessa godhachuun mana murtii aadaa yookiin mana
murtii amantaatiin ilaalamuu akka danda’an heerri mootummaa keewwata
34(5) jalatti akka filannoo birootti kaa’ee jira.18
Heera RDFI kw.78/5/ jalatti Manni Maree Bakka Bu’oota Uummataa
Federaalaas ta’e, Manni Maree Mootummaa Naannolee Manneen Murtii
Amantaa (Religious Court) fi Mana Murtii Aadaa (Customary Court)
hundeessuu ykn beekkamtii kennuu akka danda’aan ni kaa’a. Bu’uura kw.34
(5) tiin waldhabbiiwwan dhuunfaa fi maatii bu’uura aadaatiin ykn bu’uura
seera amantaatiin ilaalamuu akka danda’an kaa’ee jira.
Heerri Mootummaa Naannoo Oromiyaas yoo ilaalamu, bifuma Heera RDFI
tiin wal fakkaatuun seera aadaa fi Mana Murtii Aadaatiif beekamtii kennee
[Link] MNO Keewwata 62 jalattis Caffeen Mootummaa Naannoo
Oromiyaa Manneen Murtii Aadaa hundeessuu ykn beekamtii kennuufii akka
danda’u kaa’eera. Heerri MNO kwt.34 jalatti gaa’ila bu’uura aadaatiin
raawwatameeef beekamtii kennuu dabalatee dhimmootni seera maatii fi
seera dhuunfaadhaan ilaalaman bu’uura seera aadaatiin ilaalamuu akka
danda’an ni addeessa. Kunis kan ta’u wal falmitootni dhimma isaanii gama
seera aadaatiin xumurachuuf yoo walii galani dha.
2.2. SEERA AADAA FI SEERA HARIIROO
HAWAASAA ITOOPHIYAA
Sirna seeraa ammayyaa Itiyoophiyaa keessatti diriirsuun wal qabatee seerota
ykn koodii bahan keessaa Seerri Hariiroo Hawaasa Itiyoophiyaa bara 1960
ALA bahe isa tokkoo dha. Hariiroo seerri aadaa fi kuusaan seera hariiroo

18
Heera Mootummaa RDFI, Kwt. 34(5)

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

Hawaasaa qabu kallattii lamaan ilaaluun ni danda’ama. Inni jalqabaa

kuusaan or koodiin seera hariiroo hawaasaa hangam seerota aadaa kan
saboota Itiyoophiyaa of keessatti hammatee bahe kan jedhu yoo ta’u,
kallattiin inni biraa kuusaa seera hariiroo hawaasaa raawwatiinsa seera
aadaatiif hangam iddoo kenne kan jedhu dha. Qaphxii jalqabaa ilaalchisee
mormii wal falleessan lamatu mul’ata. Inni jalqabaa, Kuusaan ykn Koodii
Seera Hariiroo Hawaasaa seerota aadaa biyyattii keessa turanii
hammachuudhaan kan tumame otuu hin taane, aadaa fi dhuudaalee biyyoota
lixaa biyyattii keessatti kan madaksuuf diriirfamee dha kan jedhan dha.
Qaamoleen yaada kana kaasan yeroo seerri hariiroo hawaasaa
wixineeffamuus ta’e, sana dura seerotni aadaa qoratamanii barraa’anii
jiraachuu isaaniitin; akkasumas, kaayyoonumti seera haariiroo hawaasaa
qopheessuu seera ammayyaa beeksisuu waan tureef, seerri aadaa bakki
kennameefii hin jiru jechuun mormu.19 Yaadni inni biroo wixineessaa kuusaa
Seera Hariiroo Hawaasaa kan ta’an Piroofeesar Reenii Deeviidin kan
balbaloomsamu dha. Wixineessaan kun kuusaan Seera Hariiroo Hawaasaa
seerota aadaa hawaasa keessa jiran hammachuun /incorporate/ qophaa’e
jechuun falmu.20 Malootaa fi adeemsa kan akka: seerota aadaa hammachuu
(incorporation) gochuu, dhimmoota muraasa gara aadaatti qajeelchuu /explit
reference to custom/, dhimmoota seeraan hin haguugamne seerri aadaa akka
haguuguuf dhiisuu /gap-filling/ fi mala kanneen birootin seera aadaatiif
bakki kennamee jira jechuun kaasa.21
Kallattiin inni lamaffaa fi qorannoo kanaaf rogummaa qabu kuusaan Seera
Hariiroo Hawaasaa raawwatiinsa seera aadaatiif hangam bakka kennee jira
kan jedhu dha. Akkuma armaan dura kaafameetti seeraa aadaa ilaalchisee
Kuusaan Seera Haariiroo Hawaasaa kew.3347/1/ jalatti dhimmoota kuusaa
Seeraa Hariiroo Hawaasaatiin haguuggii argatan ilaalchisee, haala ifa ta’een
yoo kaa’ameen alatti, seerri kana dura barreeffamaniis ta’e seerri aadaa
dhimma wal fakkaataa bulchaa turan seera kanaan kan bakka bu’amanii fi
kan haqamani dha jechuun kaa’eera. Bu’uura tumaa seera kanaatiin
dhimmoota kuusaa Seera Hariiroo Hawaasaa keessatti haguuggii argatan
ilaalchisee seerri raawwatiinsa qabu seera hariiroo hawaasaa qofa ta’uu
isaati. Dhimmoota kunneen ilaalchisee seerri aadaa jiru seera hariiroo

19
Olitti yaadannoo lak.12ffaa, F122
20
Akkuma lak. 19ffaa , F 123
21
Akkuma lak.20ffaa, FF.123-124.

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

hawaasaa kana waliin wal simuu fi wal falleessuun akka ulaagaatti otuu hin
kaa’amiin dhimmoota haguuggiin kennameef ilaalchisee seerri hariiroo
hawaasaa guutummaadhaan seera aadaa bakka bu’ee jira. Dhimmoota
hariiroo hawaasaatin haguuggii hin arganneen wal qabatee yoo jiraateef ta’e
hojiirra oolmaa seera aadaa kuusaa seera hariiroo hawaasaa dhorkee kan hin
jirre ta’uu tumaa seeraa kana irraa kan hubatame dha. Haa ta’u malee, tumaa
seera kanaa qixa Heera RDFI tin yoo ilaalamu humni dirqisiisummaa isaa
haqameera. Heerri RDFI kw.34 jalatti dhimmoota seera dhuunfaa fi seera
maatiitin ilaalaman hanga wal falmitootni waliigalanii jiranitti bu’uura seera
aadaatin ilaalamuu akka danda’u ni kaa’a. Kanaaf, dhimma seera dhuunfaa fi
seera maatiin ilaalamu ilaalchisee tumaa Seera Hariiroo Hawaasaa armaan ol
caqasame humna raawwatiinsaa hin qabu.

2.3. SEERA AADAA FI SEERA MAATII

Seera aadaa ilaalchisee tumaawwan Seera Maatii Mootummaa Rippabliika
Dimookraatawaa Federaalaa Itiyoophiyaa (kana booda, Seera Maatii RDFI
jedhama) fi Seera Maatii Mootummaa Naannoo Oromiyaa (kana booda,
Seera Maatii MNO jedhama) keessatti ibsamanii [Link] kunneenis
agarsiiftuuf akka mijataniif armaan gaditti ibsamuuf yaalamee jira.
Akka Seera Maatii RDFItti fuudhaa fi heerumni bu’uura aadaa
walfuutotaatiin raawwatamuu akka danda’u ni kaa’a.22 Fuudhaaf heerumni
sirna aadaa irratti hundaa’e raawwatame kan jedhamus dhiiraa fi dubartiin
tokko akkaataa aadaa naannoo jiraataniitti yookiin akkaataa aadaa lamaan
keessa tokkootti sirna fuudhaafi heeruma fudhatama qabu yoo raawwatani
dha.23 Haalli raawwatiinsa gaa’ila sirna aadaatiin raawwatamus kan murtaa’u
bu’uura aadaa naannoo sanaatiin ta’a jechuu dha.24
Seerri Maatii MNO haala raawwatiinsa fuudhaaf heerumaaf beekkamtii
kenne keessaa tokko fuudhaaf heeruma aadaa walfuutotaa irratti hundaa’ee
raawwatamu dha.25 Fuudhaaf heerumni sirna aadaa irratti hundaa’e
raawwatame kan jedhamus dhiiraa fi dubartiin tokko akkaataa aadaa
naannoo jiraatanitti yookiin akkaataa aadaa lamaan keessa tokkootti sirna

22
Seera Maatii Rippabilika Dimookiraatawaa Federaalawaa Itiyoophiyaa, Labsii Lak.213/
2000, Kwt.1 (2).
23
Seera Maatii RDFI, Labsii Lak.213/200, Kwt.4
24
Seera Maatii RDFI, Labsii Lak.213/200, Kwt.27
25
Seera Maatii Mootummaa Naannoo Oromiyaa, Labsii Lak. 69/1995 & 83/1996, Kwt. 19

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fuudhaaf heeruma fudhatama qabu yoo raawwatani dha.26Haala raawwatiinsa

sirna walkaadhimmachuus ilaalchisee akkaataa baratama iddichaatiin
raawwatamuu akka danda’u Seerri Maatii MNO beekkamtii kennee jira.27
Bu’uura Seera RDFI fi Seera Maatii MNO tin adeemsa diiggaan gaa’ilaa
gaafatamu keessaa tokko iyyata garee tokkoon ykn wal falmitoota lamaaniin
dhiyaatuun yoo ta’u, Manni Murtii hanga danda’ametti wal falmitootni ykn
qaamni iyyata diiggaa gaa’ilaa dhiyeesse yaada isaa akka kaasuuf yaaluu
akka qabu tumu.28 Yaaliin gama Mana Murtiitin dhaddacha irratti taasifame
yoo hin milkoofne wal fuutootni wal dhabdee isaanii gama jaarsaatiin akka
ilaallaniif ni qajeelcha jechuun tumeera.29 Kunis wal dhabbiin maatii
keessatti uumame hiikuu keessatti hirmaannaa jaarsolii biyyaa fi sirna aadaa
kan akeekudha.
Akka waliigalaatti, tumaawwan kunnenii fi kanneen biroo kan agarsiisan
Seerri Maatii Mootummaa RDFI fi Seerri Maatii MNO seera aadaatiif
beekkamtii bifa kenneen bocamuu isaaniiti.
3. CAASSEEFFAMA MANA MURTII AADAA FI ITTI
FAYYADAMA SEERA AADAA: XIINXALA DAATAA
Manni murtii aadaa mana murtii idilee waliin yoo madaalamu dhaqqabamaa,
adeemsa salphaa fi filatamaa kan hordofu, duudhaa fi aadaa hawaasni
beekuun tajaajila haqaa kan kennu, wal falmitoota nagaan gara haariiroo
isaanii duraatti kan deebisuu fi hawaasa biratti miira abbummaadhaan kan
ilaalamu dha. Kanumarraan kan ka’e biyyoota baay’ee keessatti sadarkaa
Heeraatti beekamtii kennuun mana murtii idilee cinaatti tajaajila haqaa
idilaa’aa kennaa kan jiru dha.
Bu’uura tumaa Heera RDFI fi Heera Mootummaa Naannoo Oromiyaatiin
fedhii wal falmitootaa hanga ta’etti falmii seera maatii fi seera dhuunfaan
ilaalamuu danda’aan seera aadaatiin xumurachuu danda’u.30 Dabalataanis,
Heerronni lamaanuu qaamni seera baastu sadarkaa mootummaa
Federaalaattii fi sadarkaa naannootti argaman mana murtii aadaatiif

26
Seera Maatii Mootummaa Naannoo Oromiyaa, Kwt.22
27
Seera Maatii Mootummaa Naannoo Oromiyaa, Kwt.11
28
Seera Maatii Mootummaa Naannoo Oromiyaa, Kew.105(1) fi Seera Maatii Mootummaa
Naannoo Oromiyaa, Kwt.82
29
Seera Maatii RDFI, Kew.82 (2) fi Seera Maatii Mootummaa Naannoo Oromiyaa,
Kwt.105(2)
30
Heera Mootummaa RDFI, Kwt.34(5)fi Heera Mootummaa Naannoo Oromiyaa, Kwt.34(5)

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beekamtii kennuu ykn hundeessu akka danda’an ni ibsu.31 Kunis kan

agarsiisu, wal dhabdee hawaasa keessatti namoota gidduutti uumamuu malu
mana murtii idilee fi seera mootummaan tumamu qofaan furuuf itti deemuu
irra mana murtii aadaa fi seera aadaa akka filannoo dabalataatti kaa’amuu
dha.
Heerronni lameen armaan olitti caqasaman kunneen beekamtii ifa ta’e mana
murtii aadaa fi seera aadaatiif kan kennan yoo ta’ees sadarkaa naannoo
Oromiyaatti hundeeffama mana murtii aadaa fi itti fayyadama seeraa aadaa
dhugoomsuuf hojiin hojjatame hanga ammaatti hin jiru. Kana jechuun garuu
wal dhabdee hawaasa keessatti namoota dhuunfaas ta’e garee gidduuttii
uumamu marti gama mana murtii idileetiin furmaata argachaa jira jechuu
miti. Aadaan jaarsummaa fi sirni Gadaa hawaasa keessatti argamu wal
dhabdee namoota gidduu jiru furuun hariiroo namootaa fi gareewwan gidduu
jiru tasgabaa’aa gochuu fi tajaajila haqaa kennuu keessatti shoora olaanaa
taphataa akka jiru hubachuun ni danda’ama.
3.1. HUNDEEFFAMA MANA MURTII SEERA
AADAAF CARRAALEE JIRAN
Hundeeffama mana murtii seera aadaatiin wal qabatee carraawwan jiran
adda baasanii beekuun tarkaanfilee itti aanuun fudhatamuuf baay’ee
murteessaa [Link] hundeeffama mana murtii seera aadaa
hundeessuuf jiran hedduu ta’uu qorannoo kanaan adda bahuun yaalamee jira.
Manni murtii aadaa akka hundeeffamuu fi kanneen hundeeffamanii jiraniif
beekamtiin kennamuufii akka qabu heera mootummaan ibsamee jiraachuunii
fi sirnii fi aadaan waldhabdee hiikuu hawaasa keessa jiraachuun carraa
guddaa hundeeffama mana murtii aadaaf haala mijeessu [Link] fi
aanolee daataan irraa funaaname itti fayyadama isaa garaagarummaa
qabaatus iddoon sirna aadaatti tajaajilamuun waldhabdee isaanii itti hin
hiikanne hin jiru. Godina Booraa fi Gujii Bahaa guutummaatti, Godina
Shawaa Bahaa keessaa Aanaa Fantaallee (uummata Karrayyuu) fi Aanaa
Dugdaa, Godina Baalee keessaa Aanaa Sawweenaa fi Raayituu, Shawaa
Lixaa keessaa aanaa Tokkee Kuttaayee (sirna moyee bokkuu) keessatti
uummatni dhimma isaa sirna aadaatiin xumurataa kan jiru dha.32

Heera Mootummaa RDFI. Kwt.78(5) fi Heera Mootummaa Naannoo Oromiyaa, Kw.62(1)

31

Af-gaaffiiwwan Obbo Wandoosan Doonii, Perezidantii MMO Go/Booranaa, waliin gaafa

32

02/07/12, Obbo Sisaay Mul’ataa, Qindeessaa KTAS, MMO Go/Gujii, waliin gaafa 17/06/12,

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Fakkeenyaaf, dhimmoota Mana Murtii Aanaa Libaniin ilaalaman keessaa

kan jiraattoota baadiyyaa 5%-10% qofaa,33 Mana Murtii Olaanaatti immoo
10% kan hin caallee34 fi dhimmoota Mana Murtii Aanaa Yaabeellootti
dhiyaatan 70% - 80% ta’an kan jiraattoota magaalaa akka ta’eetti kaafama.35
Aanaa Fantaallees bifuma wal fakkaatuun manni murtii aanaa dhimmoota
jiraattota magaalaa kan ilaaluu fi uummatni baadiyyaa dhimma isaa aadaan
xumurachaa jiraachuu hooggansi mana murtii ibsaniiru.36 Godina Baalee
aanaa Sawweenaa fi Raayituu,37 fi Godina Shawaa Lixaa aanaa Tokkee
Kuttaaye fi Aanaa Amboo keessatti uummanni waldhabbii isaanii sirna
aadaatiin xumurachaa akka jirani dha.38Akka waliigalaatti heera
mootummaan beekkamtiin kennamuunii fi sirnii fi hojimaatni waldhabbii
aadaan hiikuu hawaasa keessa jiraachuun isaa hundeeffama mana murtii
aadaatiif haalawwaan mijatoo jiran keessaa jalqabatti ka’uu danda’u.
Hawaasni mana murtii aadaatiin tajaajilamuuf fedhiin jiraachuu carraa biroo
hundeeffama mana murtii aadaatiif haala mijeessu [Link] fedhii osoo
qabuu qaamni xiyyeeffannoo kennu dhabamuu fi dogongoraan gahee mana
murtii aadaa fi mana murtii hawaasummaa akka tokkotti ilaaluu hanga
ammaatti manni murtii aadaa hundeeffamuu dhabe kaafama.39Haa ta’u
malee, yeroo ammaa fedhiin gara aadaa ofiitti deebi’uu qabatamaan hawaasa

Obbo Joonii Bantii, Perezidaatii MMO G/Shawaa Bahaa, waliin gaafa 08/07/2012, Obbo
Kabbuu Mul’ataa, Pirezedaantii Mana murtii Aanaa Amboo,Obbo Sandaabaa Hordofaa,
Ogeessa Waajjira Aadaa fi Turiizimii A/T/Kuttaayee fi Obbo Caalaa Fayisaa, Dursaa Garee
A/T/A/T/Kuttaayee, waliin gaafa 20/06/2011 waliin taasifame. Akkasumas, marii garee
Obbo Musbahaa Abduwahaab, Du/Garee Misooma Sona Aadaa W/A/T/Go/Baalee, Aadde
Abbabachi Wandimmaaganyi (Dursaa garee M/Turizimii, W/A/T/Go/Baalee), Obbo Huseen
Sulxaan, Ogeessaa Afaanii W/A/T/Go/Baalee, waliin gaafa 24/06/12 taasifame.
33
Af gaffii Obbo Dhadacha Guuyyoo, Peresidantii MMA Liiban, waliin gaafa 17/06/12
taassifame
34
Af gaaffii Obbo Wandoosan Doonii, Pirezidantii MMO Go/Booranaa, waliin gaafa
02/07/12 taassifame
35
Afgaaffii Obbo Tokkummaa Caalaa, Pirezidantii Mana Murtii Aanaa Yaabelloo, waliin
gaafa 02/07/12 taassifame
36
Af gaaffii Obbo Mohaammad Sayiid, Pirezidantii MMA Fantaallee, waliin gaafa 09/07/12
taassifame
37
Marii Obbo Jeeylaan Kadir, Pirezidantii M/M/Aanaa Sinaanaa, fi Obbo Getaahuun
Baqqala, Gaggeessaa KTAS Mana Murtii A/Sinaanaa, waliin gaafa 24/06/12 taassifame
38
Af-gaaffiiwwan Obbo Geetuu Tolasaa, Itti Aanaa Dura-taa’aa Abbootii Gadaa Magaalaa
Amboo, waliin gaafa 20/06/2012; Injiguu Guutaa Abbaa Gadaa fi Abbaa Murtii Bokkuu
Cittuu Aanaa Tokkee Kuttaayee waliin gaafa 01/07/2012 taasifame
39
Af-gaaffii Obbo Isaa Boruu, Walitti Qabaa Koree Dhaabbii Bulchiinsaa fi Seeraa Caffee
Oromiyaa, waliin gaafa 16/08/12 taasifame

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keessa waan jiruuf manni murtii aadaa hundeeffamuu qaba jedhaniiru.40

Keessumaa, godinaalee Gujii fi Booranaatti uummatni jireenya
hawaasummaa isaa lolaa fi tola hundumaa aadaan xumurataa jiraachuu
kaasuun yeroo ammaatti uummatni seera idilee irra kan aadaa akka fedhu
kaasaniiru.41Abbootiin gadaa fi jaarsoliin biyyaa qorannoo kanaan
dubbifamanis yaada kaasaniin ilaalchi ‘otuu aadaatti deebinee waaqatu nutti
deebi’a’ jedhu uummata keessa jiraachuu ibsuun hundeeffamni mana murtii
aadaa fedhii fi gaaffii keenya jedhaniiru.42Keessumaa, diiggaa gaa’ilaan wal
qabatee rakkoo hawaasa keessatti uumamaa jiruuf seerrii fi sirni aadaa kufuu
isaati jechuun diriirfamuu sirnaa fi seeraa aadaatiif uummata bira fedhii
gaabbii irraa maddeetu jira jedhu.43
Jaarsooliin waldhabdee hiikan dandeettii fi fudhatamummaa qaban hawaasa
keessa jiraachuun carraa biroo hundeeffama mana murtii aadaaf haala
mijatoo uumani [Link] funaaname akka agarsiisutti jaarsoliin biyyaa fi
abbootiin gadaa akkasumas, ragoonnis jecha ragaa kennuuf dhaddachatti
dhiyaatan kaka’uumsa mataa isaaniitiin abbootii dhimmaa yeroo walitti

40
Afgaaffii Obbo Sandaabaa Hordofaa, Ogeessa Waajjira Aadaa fi Turiizimii
A/T/Kuttaayee fi Obbo Caalaa Fayisaa, Dursaa Garee A/T/A/T/Kuttaayee, waliin gaafa
20/06/2011; Marii garee, Dambii Turcee, Dursaa Garee So/Aadaa Go/Gujii, Baay’isaa
Bayyana, Ogeessa Afaanii W/A/T/Go/Gujii, Samarroo Waaree, Qorataa fi Qindeessaa Sirna
Gadaa Go/Gujii, Barrisoo Olaanaa, Dursaa Garee Aadaa fi Aartii Wa/A/T/Go/Gujii, Af
gaaffii Obboo Dirribaa Tarrafaa, Daayireektara Giddu Gala Aadaa Oromoo, Waliin gaafa
5/08/2012 taassifame, Afgaaffii Obbo Alamaayyoo Haayilee, Qorataa Aadaa fi Seenaa
G/Gala Aadaa Oromooo waliin gaafa 5/08/2012 taasifame
41
Marii garee, Dambii Turcee, Dursaa Garee So/Aadaa Go/Gujii, Baay’isaa Bayyana,
Ogeessa Afaanii W/A/T/Go/Gujii, Samarroo Waaree, Qorataa fi Qindeessaa Sirna Gadaa
Go/Gujii, Barrisoo Olaanaa, Dursaa Garee Aadaa fi Aartii Wa/A/T/Go/Gujii,
Mag/Nageellee Booranaatti, waliin gaafa 18/08/12 taassifame. Akkasumas, marii garee
Obbo Atilaabaachawu Aabbaabbuu, Pirezidantii MMA O/Shaakisoo fi Obbo Diiiqqaa
Abdii, Gaggeessaa KTAS MMA O/Shaakisoo waliin gaafa 19/06/12 taasifame
42
Marii garee Abbaa Gadaa Goobana Hoolaa, Walitti Qabaa Abbootii Gadaa Oromiyaa,
Abbaa Gadaa Warqinaa Tarreessaa, Abbaa Gadaa Maccaa fi miseensa Gumii Abbootii
Gadaa Oromiyaa fi jaarsa biyyaa Obbo Kadir Abdii Nuur, waliin magaalaa Finfinneetti
gaafa 16/08/12 taasifame. Marii: Obbo Jaarsoo Boonaa, Abbaa Gadaa Gujii duraanii fi
yeroo ammaatti Yuuba, fi Obbo Ejarsa Bulgee, Jaarsa biyyaa Aanaa Gooroo Doollaa, waliin
gaafa 18/06/12 taasifame. Akkasumas, marii garee Obbo Aloo Baalshoo, Miseensa Gumii
Odaa Roobaa fi Walitti Qabaa A/Gadaa fi Jaarsa biyyaa Aanaa Sinaanaa fi Addee Shukurii
Kadir, Haadha Siinqee, Aanaa Sinaanaa Magaalaa Roobee waliin gaafa 28/06/12 taassifame.
43
Mariiwwan garee Obbo Jaarsoo Boonaa, Abbaa Gadaa Gujii duraanii fi yeroo ammaatti
Yuuba, fi Obbo Ejarsa Bulgee, Jaarsa biyyaa Aanaa Gooroo Doollaa, waliin gaafa 18/06/12
taasifame. Akkasumas, marii garee Obbo Aloo Baalshoo, Miseensa Gumii Odaa Roobaa fi
Walitti Qabaa A/Gadaa fi Jaarsa biyyaa Aanaa Sinaanaa fi Addee Shukurii Kadir, Haadha
Siinqee, Aanaa Sinaanaa Magaalaa Roobee, waliin gaafa 28/06/12 taasifame.

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araarsan jiraachuu eeraniiru.44 Hooggansi mana murtii Godinaalee fi

aanaalee garagaraa yaada kennaniin abbootiin gadaa fi jaarsoliin biyyaa wal
dhabdee namoota gidduutti uumamu furuuf dandeettii fi miira tajaajiltummaa
akka qaban kaasuudhaan sirna haqaa keessatti otuu hammatamanii hojiitti
galan gaarii akka ta’etti kaasu.45Abbootiin Gadaa fi jaarsoliin biyyaa
dubbifamanis wal dhabdee hawaasa keessatti dhalatu hiikuun wal qabatee
ilaalchaa fi amantaa isaanii dubbii namaa jaarsummaadhaan ilaaluun daandii
waaqaati jechuun kaasuun akka dirqama rabbi irraa itti kennameetti ilaalu.46
Sirnii fi seerri aadaa waldhabdee hiiku hawaasa keessa jiraachuun akka
manni murtii aadaa hundeeffamuuf caarraa bal’aa kan uumu dha. Marii
Abbootii Gadaa fi jaarsolii biyyaa godina garagaraatti argaman waliin
taassifame irratti wal dhabdee jireenya hawaasummaa keessatti uumamuu
danda’u furuuf seerrii fi sirni aadaa gahaa tahe jiraachuu kaasu. Waan
maraaf: mukaaf, bineensaaf, margaaf, waaqaafii kkf hundaaf seerri
waldhabdee hiiku akka jiru eeru.47 Ogeessotni fi qorattootni aadaa Biiroo
Aadaa fi Turiziimii Oromiyaa sadarkaa Aanaa hanga Naannoo jiranis
yaaduma Abbootii Gadaa fi jaarsolii biyyaatiin kenname haala cimsuu
danda’uun seerri aadaa gahaa fi gabbataa tahe wal dhabdee gosa kamiyyuu
hiikuu danda’u hawaasa keessa kan jiru tahuu ibsaniiru.48

44
Af gaaffiiwwan Obbo Sisaay Mul’ataa, Qindeessaa KTAS, MMO Go/Gujii waliin gaafa
17/06/12, Obbo Abdurroo Aloo, Pirezidaantii MMA Diinshoo waliin gaafa 26/06/12
taasifame
45
Afgaaffiiwwan Obbo Badriitamaan Umar, Pirezidantii MMO Go/Gujii waliin gaafa
17/06/12; Obbo Maammoo Tusii, Piredaantii MMO G/Baalee waliin gaafa 28/06/12; Obbo
Wandoosan Doonii, Pirezidantii MMO Go/Booranaa waliin gaafa 02/07/12; Obbo
Maatiyoos Yiggazuu, KTAS Mana Murtii Olaanaa G/L/Shawaa waliin gaafa 19/06/2012
taasifame
46
Marii garee Obbo Jaarsoo Boonaa, Abbaa Gadaa Gujii duraanii fi yeroo ammaatti Yuuba,
fi Obbo Ejarsa Bulgee, Jaarsa biyyaa Aanaa Gooroo Doollaa waliin gaafa 18/06/12
taasifame; Af gaaffii obbo Aagaa Xiinxanoo, Abbaa Gadaa duraanii fi yeroo ammatti Yuuba
Magaalaa Shaakkisoo waliin gaafa 19/06/12 taasifame.
47
Af gaaffii Obbo Aagaa Xiinxanoo, Abbaa Gadaa duraanii fi yeroo ammatti Yuuba
Mag/Shaakkisoo, waliin gaafa 19/06/12; Marii garee Obbo Moonaa Godaanaa, Abbaa
Gadaa Gujii duraanii fi yeroo ammaatti Yuuba fi Obbo Saafee Dullachaa, Jaarsa biyyaa
Aanaa Wadarraa waliin gaafa 18/06/12; Marii garee Obbo Jaarsoo Boonaa, Abbaa Gadaa
Gujii duraanii fi yeroo ammaatti Yuuba, fi Obbo Ejarsa Bulgee, Jaarsa biyyaa Aanaa
Gooroo Doollaa waliin gaafa 18/06/12 taasifame.
48
Marii garee Dambii Turcee, Dursaa Garee So/Aadaa Go/Gujii;Baay’isaa Bayyana,
Ogeessa Afaanii W/A/T/Go/Gujii; Samarroo Waaree, Qorataa fi Qindeessaa Sirna Gadaa
Go/Gujii;Barisoo Olaanaa, Dursaa Garee Aadaa fi Aartii Wa/A/T/Go/Gujii waliin gaafa
18/08/12 taassifame. Af-gaaffiiwwan Obbo Abrahaam A/Macaa, Aadde Maari’am Abdo,

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Jijjiirrama hawaasummaa, diinagdee fi siyaasaa muudatu waliin deemuuf

seerotni mootummaan fooyya’uu ykn haqamuu danda’u. Seerrii fi sirni aadaa
amala isaatiin qaama tokkoon tumameen kan labsamu otuu hin taanee turtii
yeroo dheeraan hawaasa keessatti lafa qabataa kan dhufu dha. Kanaaf, seerri
aadaa haala salphaa taheen amala jijjiramuu qabaaachuu dhiisuu
[Link] kana ilaalchisee Abbootiin Gadaa fi Yubootni yaada
kennaniin sirna Gadaa keessatti seera boodatti hafaa ta’e Gumii Gaayyootti
ykn Me’ee Bokkuu irratti fooyyeessuu ykn haquudhaan seera haaraatiin
bakka buusuun akka danda’amu ibsaniiru.49 Abbaa Gadaa Gujii fi walitti
qabaa Abbootii Gadaa Oromiyaa kan turan Abbaa Gadaa Aagaa Xiinxanoo
yaada kennaniin bara aangoo isaanii seera digdamaa ol Yubaa fi haayyuu
walitti qabuun akka fooyyessan kaasaniiru.50 Duudhaa ykn aadaa haala
qabatamaa hawaasa keessa jiru waliin kan hin adeemne akkaataa haala yeroo
waliin deemuu danda’uun ni fooyya’a jedhaniiru.51Kunis, hundeeffamaa
Mana Murtii Aadaa fi itti fayyadama seera aadaatiif akka carraa ykn haala
mijaawaatti ka’uu mala.
Murtiin mana murtii idileetiin kennamu kan raawwatamu waliigaltee
araaraatiin yookiin manni murtii dirqisiisuun akka ta’e beekamaa dha.
Murtiin jaarsoleen ykn Abbootii Gadaatiin kennamu garuu, kanaan adda
[Link] Gadaa ykn jaarsoliin biyyaa murtii bu’uura seeraa fi sirna
aadaatin kennan raawwachiisuuf dandeettii fi sirni kan jiruu fi abbootiin

Ogeessa Induustirii Aadaa fi Aadde Ikiraam Ahmad Ogeeyyii Afaanii W/A/T/G/Jimmaa

waliin gaafa 26/06/2012; Aadde Nagaasee Shifarraa Ogeessa Misooma Sona Aadaa fi Obbo
Zarihun Baqqalaa Qindeessaa Garee Hojii Misoomaa A/T/G/W/Bahaa waliin gaafa
27/06/2012 taasifame
49
Af gaaffii Dr. Borbor Bulee, haayyuu seenaa fi sirna gadaa Booranaa, Magaalaa Dubulluq,
walii gaafa 02/07/12 fi marii garee Jaarsoo Boonaa, Abbaa Gadaa Gujii duraanii fi yeroo
ammaa Yuuba, fi Obbo Ejarsa Bulgee, Jaarsa biyyaa Aanaa Gooroo Doollaa waliin gaafa
18/06/12 taasifame.
50
Marii garee Wuddee Indashawuu, Dursituu Garee Sona Aadaa, Daani’eel Isheetuu,
Dursaa Garee Industirii Aadaa fi Aartii, Zawuddinash Baqqala, Ogeessaa Aadaa
Wa/Aad/Tu/Go/Sh/Bahaa, waliin gaafa 16/08/12 taasifame. Af-gaaffiiwwan Obbo
Abrahaam A/Macaa, Aadde Maari’am Abdo, Ogeessa Induustirii Aadaa fi Aadde Ikiraam
Ahmad Ogeessa Afaanii W/A/T/G/Jimmaa waliin gaafa 26/06/2012, Aadde Nagaasee
Shifarraa Ogeessa Misooma Sona Aadaa, Obbo Amsaaluu Tolasaa Qorataa seenaa fi sirna
Gadaa, Obbo Zarihun Baqqalaa Qindeessaa Garee Hojii Misoomaa A/T/G/W/Bahaa waliin
gaafa 27/06/2012 taasifame.
51
Marii garee Obbo Aloo Baalshoo, Miseensa Gumii Odaa Roobaa fi Walitti Qabaa
A/Gadaa fi jaarsa biyyaa Aanaa Sinaanaa fi Aaddee Shukurii Kadir, Haadha Siinqee Aanaa
Sinaanaa waliin gaafa 28/06/12 taasifame.

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dhimmaas fedhii isaaniitiin murtii raawwachaa kan jirani dha. Abbootiin

Gadaa Godina Gujii fi Booranaa yaada kennaniin namni biyyaan, namaa fi
uummataan bula yaada jedhu kaasuudhaan dhalataan Gujii fi Booranaa
murtii Abbaa Gadaa fi jaarsa Gujii ykn Booranaa fudhachuu fi raawwachuu
didu hin jiru jedhu.52 Duudhaa hawaasa bira jiruun nama murtii Abbaa
Gadaa dide qoqqobbiin waan irra kaa’amuuf Abbaa Gadaa kabaja guddaa
qabdi jedhu.53Marii jaarsolii biyyaa Godina Jimmaa, Baalee fi Wallagga
Bahaa waliin taassifameenis hawaasni duudhaa fi aadaa isaatiif kabaja
guddaa qabaachuu isaatiin namni dubbii jaarsatti erga kennatee murtiin
kenname raawwachuun wal qabatee rakkoon akka hin jirree kaasu.54
Haaluma wal fakkaatuun, jaarsolii fi abbootii Gadaa Godina Shawaa Lixaa
waliin taasifameen nama murtii jaarsoliin ykn Abbootiin Gadaa kennan
raawwachuu dide isaan quunnamee akka hin jirre ibsu. 55 Ogeessotnii fi
qorattootni aadaas yaada kennaniin duudhaan hawaasa keessa jiru waliin
jireenya irratti kan hundaa’e ta’uu isaatiin kabajni Abbootiin Gadaa fi
jaarsolii biyyaatiif kennamu olaanaa waan ta’eef, murtiileen kennaman
raawwachuutu qabatamaan hawaasa keessa jira jedhu.56 Murtii Abbootii
Gadaa fi jaarsolii biyyaatin kennamee jiru ofii raawwachiisuu sirni aadaa
isaan dandeessisu jiraachuu fi duudhaan murtii Abbootii Gadaa kabajuu
hawaasa keessa lafa qabatee jiraachuun isaa hundeeffama mana murtii
aadaaf haala mijataa kan uumu dha.

52
Mariiwwan garee Obbo Moonaa Godaanaa, Abbaa Gadaa Gujii duraanii fi yeroo ammaa
Yuuba fi Obbo Saafee Dullachaa, Jaarsa biyyaa Aanaa Wadarraa, waliin gaafa 18/06/12
Liiban Jaldeessaa, Yuuba Guuyyoo Gobbaa, Doorii Guyyoo Boruu, Doorii Jaarsoo Bokkoo,
Jaarsa biyyaa Kottool Gobbaa, Godina Booranaa Magaalaa Areeroo waliin gaafa 03/07/12
taasifame
53
Akkuma 52ffaa.
54
Marii Garee Jaarsoolee Magaalaa Jimmaa: Obbo Zaakir Abbaaboor, Obbo Nagaash
Nagawoo, waliin gaafa 24/06/2012 taasifame, Marii : Obbo Aloo Baalshoo, Miseensa Gumii
Odaa Roobaa fi walitti qabaa A/Gadaa fi jaarsa biyyaa Aanaa Sinaanaa fi Aaddee Shukurii
Kadir, Haadha Siinqee Aanaa Sinaanaa, waliin gaafa 28/06/12 taasifame.
55
Af-gaaffii Obbo Injiguu Guutaa, Abbaa Gadaa fi Abbaa Murtii Bokkuu Cittuu Aanaa
Tokkee Kutaayee waliin gaafa 01/07/2012 , Shuumee Tasammaa, Abbaa Gadaa A/Diggaa,
waliin gaafa 30/06/2012 taasifame
56
Afgaaffiiwwan Obbo Mallasa Masqalaa, W/A/T/Go/Baaleetti Du/Garee Mirkaneessa
Dh/Turizimii, Obbo Amaan Nashaa, W/A/T/Go/Baaleetti Du/Garee In/Aadaa fi Aartii,
Obbo Shibbiruu Abdoo, W/A/T/Go/Baaleetti Og/Misooma Turizimii, waliin gaafa 24/06/12
taasifame. Marii garee Dambii Turcee, Dursaa Garee So/Aadaa Go/Gujii, Obbo Baay’isaa
Bayyana, Ogeessa Afaanii W/A/T/Go/Gujii, Obbo Samarroo Waaree, Qorataa fi Qindeessaa
Sirna Gadaa Go/Gujii, Obbo Barrisoo Olaanaa, Dursaa Garee Aadaa fi Aartii
Wa/A/T/Go/Gujii, waliin gaafa 18/08/12 taassifame.

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Manni murtii idilee xiinxala ragaa fi seeraa irratti hundaa’uun murtii

[Link] seera deemsa falmii fi seera yakkaa keessaa tokko dhugummaa
jecha ragaa cimsuudhaaf jecha ragootni dhaddachatti sirna kakuu akka
raawwatan taasisuu dha.57Qaamni raga sobaa kennes adabbii akka
hordofsiisu seerri keenya ni kaa’a.58 Haa ta’u malee, tumaaleen seeraa
kunneenii fi kanneen biroo dhibbaa ragaa sobaa ittisuuf sadarkaa garagaraatti
bocamanis gabaasa raawwii Mana Murtii Waliigala Oromiyaa fi Mana Hojii
Abbaa Alangaa Waliigala Oromiyaa ragaan sobaa rakkoo sirna haqaa tahee
kan jiru tahuun ni himama.59 Dhimmoonni sirna aadaa giddugaleessa
godhachuun kennaman garuu haqa baasuu irratti murtii mana murtii idilee
akka caalu ni kaafama. Yaada Abbootiin Gadaa fi jaarsoliin biyyaa kaasaniin
aadaan keessatti dhugaan kan abbaa dhugaati, mana murtiitti garuu dhugaan
kan abbaa ragaati. Uummatni kakaa Abbootii Gadaa ykn jaarsolii biyyaatin
taasifame baay’ee sodaata jechuun kaasaniiru.60 Yaada hooggansi Mana
Murtii fi Biiroo Aadaa fi Turizimii kaasaniin keessuma dhimma ragaa hin
qabne gama Abbootii Gadaa fi jaarsoliitin xumurama akka jiruu 61 fi murtiin
sobaan mana murtii idileetti murtaa’e jaarsoliin deebi’anii nannoo isaaniitti
ilaalanii yoo murtii mana murtii idileetiin kenname diiguun dhugaa irratti
hundaa’aanii abbaa mana murtii idileetti itti murtaa’eetti yoo murteessan
akka jiru kaasaniiru.62Murtii mana murtii aadaatiin haqni argamuun carraa
hundeeffama isaatiif kanneen haala mijatoo uumani dha.

57
Seera Deemsa Falmii Haariiroo Hawaasaa Itiyoophiyaa, 1956, Kwt. 261
58
Seera Yakkaa Rippabilika DImokiraatawaa Federaalawaa Itoophiyaa Fooyya’ee bahe,
1996, Kwt. 453
59
Gabaasawwan Koree Fooyya’iinsa Sirna Haqaa, Gabaasa Mana Hojii Abbaa Alangaa
Waliigala Oromiyaa.
60
Af gaaffii Obbo Aagaa Xiinxanoo, Abbaa Gadaa duraanii fi yeroo ammaa Yuuba
Mag/Shaakkisoo, waliin gaafa 19/06/12; marii garee Obbo Dambii Turcee, Dursaa Garee
So/Aadaa Go/Gujii, Obbo Baay’isaa Bayyana, Ogeessa Afaanii W/A/T/Go/Gujii, Obbo
Samarroo Waaree, Qorataa fi Qindeessaa Sirna Gadaa Go/Gujii, Obbo Barrisoo Olaanaa,
Dursaa Garee Aadaa fi Aartii Wa/A/T/Go/Gujii Mag/Nageellee Booranaa waliin gaafa
18/08/12 taassifame
61
Marii Garee Obbo Dambii Turcee, Dursaa Garee So/Aadaa Go/Gujii, Obbo Baay’isaa
Bayyana, Ogeessa Afaanii W/A/T/Go/Gujii, Obbo Samarroo Waaree, Qorataa fi Qindeessaa
Sirna Gadaa Go/Gujii, Obbo Barrisoo Olaanaa, Dursaa Garee Aadaa fi Aartii Wa/A/T/Go/
Gujii Mag/Nageellee Booranaa waliin gaafa 18/08/12 taassifame
62
Marii garee, Akkuma lak. 61ffaa

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3.2. HUNDEEFFAMA MANA MURTII AADAATIIN WAL QABATEE

SODAAWWAN JIRAN
Uummatni Oromoo bara durii kaasee sirnaa fi seeraa Gadaatiin bulaa tureera.
Mootummaan giddu-galeessaa hanguma humni isaa dabalaa deemu itti
fayyadamni sirnaa fi seera aadaa sadarkaa garagaraatti ni hir’ata jedhameeti
tilmaamama. Bakka sirni gadaa hawaasa keessatti hanga ammaatti lafa
qabatee jirutti wal dhabdee sochii hawaasummaan wal qabatee namoota
gidduutti uumamu aadaa fi duudhaa naannoo irratti hundaa’uun haala
salphaa taheen furamuu [Link] sirni gadaa qabatamaan hawaasa keessa
hin jirreetti wal dhabdeen uumamu bifa idilaa’aa taheen aadaa fi duudhaa
irratti hundaa’uun hiikuun carraa bal’aa qabaachuu dhiisuu
[Link] mana murtii aadaa ilaalchisee sodaawwan jiran haala
armaan gadiitti xiinxalamanii jiru.
Hundeeffama mana murtii aadaatiin walqabatee sodaawwan jiran keessaa
bakka muraasatti seera aadaatiin tajaajilamuuf fedhiin gad-aanaa ta’uu
qorannoo kanan adda baheera. Fedhiin kunis haala sadiin ilaalamuu kan
danda’u dha. Innis sochii hawaasummaa magaalaa waliin dhufu, dhiibbbaa
amantaa fi fedhii dargaggoota sadarkaa barumsaa garagaraa keessa darbanii
jechuun [Link] magaalaatti hawaasa aadaa fi duudhaa garagaraa
keessaatti dhalatee fi guuddateetu jiraata waan taheef wal falmii jiraattoota
keessatti dhalatu aadaa irratti hundaa’uudhaan xumuruuf fedhiin jiru gadi
aanaa dha.63Haaluma walfakkaatuun, amantaa fi dargaggoonni sirna
barnoota idilee hordofan biratti fedhiin gad-bu’uu akka danda’u sodaa jiru
kaasu. Abbootiin Gadaa, ogeessotnii fi qorattootni aadaa rakkoon sirnaa fi
seera aadaatti fayyadamuu kan gadi bu’ee ta’uu kaasuun sirna cimaa
hojimaataa fi seera aadaa jajjabeessuu danda’u diriirsuun fedhiin hawaasaa
dhimma isaa aadaadhaan xumurachuu yeroo gabaabaatti hubannoo
uumuudhaan fooyyeessuun ni danda’ama jedhu.64

63
Afgaaffiiwwan Obbo Hajiib Abbaa Jabal, B/b Hoogganaa A/T/M/Jimmaa, Aadde
Hindiyaa Abbaa Foggee Dursaa Garee Misooma Aadaa waliin gaafa 26/06/2012 taasifame
64
Af-gaaffii Obbo Aagaa Xiinxanoo, Abbaa Gadaa duraanii fi yeroo ammaYuuba
Mag/Shaakkisoo waliin gaafa 19/06/12 taassifame, Marii garee Wuddee Indashawuu
Wa/Aad/Tu/Go/Sh/Bahaa, Dursituu Garee Sona Aadaa, Daani’eel Isheetuu Wa/ Aad/ Tu/
Go/ Sh/Bahaa, Dursaa Garee Industirii Aadaa fi aartii, Zawuddinash Baqqala Wa/Aad/Tu/
Go/ Sh/Bahaatti -Ogeessaa Aadaa, Shaambal Kaasuu, Wa/Aad/Tu/ Go/ Sh/ Bahaa, Ogeessa
Misooma Afaanii, Soofiyaa Mohaammad , Wa/ Aad/Tu/Go/Sh/Bahaa, Ogeettii Haambaa
Socho’anii, waliin taasifame.

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Abbootiin Gadaa fi jaarsoliin biyyaa naamusa gaarii qaban akkuma jiran

darbee darbee, kanneen gosaan, firoomaan, fayidaan hojjachuun danda’an
kan jiran ta’uu ogeessotni aadaa fi hoogansi mana murtii akka sodaatti
kaasu.65 Hooggantootni biroos yaada kennaniin Abbootii Gadaa olaanoo
biratti rakkoon naamusaa xiqqaa ta’us, jaarsolii biratti garuu bal’inaan ni
mul’ata jedhaniiru.66 Rakkoon naaamusaa kun jiraachuu Abbootiin Gadaa fi
jaarsoliin biyyaa illee ni kaasu.67 Dur Abbaa Gadaatu uummata sodaata,
amma uummatatu Abbaa Gadaa sodaata jechuun rakkoo naamusaa mul’atu
ibsu.68Ogeessootni fi qorattootni aadaa sadarkaa Aanaa fi Godinaa irratti
argaman yaada kennaniinis dur dubbii gaaddisa jalati fixuutu; amma garuu
hoteelatti jaarsummaaf taa’ama.69 Iddoo birootti Jaarsoliin waan gaaddisaa
jedhanii abbootii dhimmaa irraa waa barbaaduun ni jira.70 Baasiin kun yeroo
tokko, tokko dhimma isaanii gara mana murtii idileetti otuu fidan kan
baasanii ol ta’a jechuun rakkoo naamusaa jiru ibsaniiru.71 Rakkoon kun akka
sodaatti adda bahuu isaatiin irratti hojjatamuu kan malu dha.

65
Afgaaffiiwwan Obbo Badriitamaan Umar, Pirezidaantii MMO Go/Gujii waliin gaafa 17/
06/12; Obbo Sisaay Mul’ataa, Qindeessaa KTAS, MMO Go/Gujii waliin gaafa 17/06/12
Obbo Ismaa’eel Abbaa Boor B/b Prezidaantii MMO G/Jimmaa, waliin gaafa 24/06/2012
[Link] Garee Waajjira Aadaa fi Turiizimii G/Sh/Lixaa waliin gaafa 19/06/2012
taasifame.
66
Afgaffii Obbo Dhadacha Guuyyoo, Piresidaantii MM A Liiban, waliin gaafa 17/06/12
taasifame. Akkasumas, marii garee Obbo Mallasa Masqalaatti W/A/T/Go/Baaleetti
Du/Garee Mirkaneessa Dh/Turizimii, Amaan Nashaa, W/A/T/Go/Baaleetti Du/Garee
In/AAdaa fi Aartii, Obbo Shibbiruu Abdoo W/A/T/Go/Baaleetti Og/Misooma Turizimii
waliin gaafa 24/06/12 taasifame.
67
Afgaaffii Abbaa Gadaa Naahim Hasan, Walitti Qabaa Abbaa Gadaa Magaalaa Jimmaa,
waliin gaafa 26/06/2012 taasifame
68
Af-gaaffii Jaarsa biyyaa Dok. Kabajaa Borbor Bulee, Magaalaa Dubulliq, waliin gaafa
02/07/12 taasifame
69
Afgaaffii Obbo Musbahaa Abduwahaab, Du/Garee Misooma Sona Aadaa
W/A/T/Go/Baalee, Aaddee Abbabachi Wandimmaaganyi, Dursaa Garee M/Turizimii
W/A/T/Go/ Baalee, Obbo Huseen Sulxaan, Ogeessaa Afaanii W/A/T/Go/Baalee, waliin
gaafa 24/06/12 taasifame, Marii garee Obbo Biraanuu Wayyoo, Qorataa Seenaa
W/A/T/A/O/Shaakisoo fi Aadde Faanayee Lammaa, Ogeeesa Afaanii
W/A/T/A/O/Shaakkisoo waliin gaafa 19/06/11 taasifame.
70
Marii garee Obbo Jeeylaan Kadir, Pirezidantii MMA Sinaanaa fi Obbo Geetaahun
Baqqalaa, Gaggeessaa KTAS MMA Sinaanaa waliin gaafa 24/06/12 taasifame. Marii garee
Obbo Aloo Baalshoo, Miseensa Gumii Odaa Roobaa fi Walitti Qabaa A/Gadaa fi jaarsa
biyyaa Aanaa Sinaanaa fi Aaddee Shukurii Kadir, Haadha Siinqee Aanaa Sinaanaa, waliin
gaafa 28/06/12 taasifame.
71
Heera Mootummaa Naannoo Oromiyaa Fooyya’ee Bahe, Labsii Lak. 46/1994, Kwt.62

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3.3. MANA MURTII AADAA FI HAWAASA MAGAALAA

Uummata magaalaa ilaalcha, duudhaa fi afaan garaagaraa qaban irraa
ijaarame jiru keessaatti hundeeffamni mana murtii aadaa bu’a qabeessa ta’uu
danda’a kan jedhu sodaa dha. Bakka hawaasni waliigalaa namoota ilaalcha,
duudhaa fi afaan garagaraa qaban irraa ijaaramee jiruutti hundeeffamni mana
murtii aadaa haala kamiin tahuu qaba kan jedhu qaphxii qorannoon kanaan
xiyyeeffannaan itti kennamee dha. Marii hoggansa mana murtii, Biiroo
Aadaa fi Turizimii sadarkaa aanaa hanga naannoo jiran, ogeessota fi
qorattoota aadaa akkasumas Abbootii Gadaa fi jaarsolii biyyaa waliin tureen
ilaalchi sadii calaqqiseera. Manni murtii aadaa Heera Mootummaa
naannootiin beekkamtiin kennamee jira. Heerri kun jiraataa magaalaa fi
baadiyyaa jechuun addatti hin qoodne. Jiraataan magaalaas ta’e baadiyyaa
Heera kana kabajuuf ykn ittin buluu mirgaa fi dirqama wal fakkaataa qaba.
Manni murtii aadaa labsii Caffeen baasuun hundeeffame jiraattootni
magaalaas baadiyyaas ittiin buluu fi kabajuu qabu kan jedhu dha. Kanaaf,
addatti dhimma jiraattoota magaalaa ilaalamuu hin qabu ijannoo jedhu dha.72
Yaadni biroo Abbootii Gadaa fi jaarsolii biyyaa biratti kan calaqqisu dha.
Abbootiin Gadaa fi jaarsoliin, biyyaa keessumaa Godina Gujii fi Booranatti
argaman namni kamiyyuu iddoo barbaadee haa dhufu akka dhalataatti
mirgaa fi dirqama walqixa ta’e qaba. Jiraattootni magaalaa jiraniis iddoo
biraatillee kan dhufan yoo tahe akkuma Booranaatti ykn Gujiitti ofi ilaalanii
dhimma isaanii nutti kennatanii ilaalaafii jirra. Kanaaf, manni murtii aadaa
haala adda taheen fedhii hawaasa magaalaa haalli itti keessummeessu hin
jiraatu jedhu.73
Yaadni inni dhumaa kan calaqqisu hawaasni magaalaa namoota aadaa fi
duudhaa akkasumas ilaalcha garagaraa qaban irraa kan ijaarame tahuu
ibsuun tajaajila haqaa kennamuuf yaadame seeraa fi sirna aadaa kamiin
kennamuu mala gaaffi jedhu kaasuun manni murtii aadaa fedhii jiraattoota
magaalaa addatti hin keessummeessu taanaan jiraattootni magaalaa aadaa fi
duudhaa kan isaanii hin taaneen tajaajila haqaa akka argatan taassisuu taha.
Kun immoo gaaffii mirgaa kaasuu mala jedhu.74 Ogeessotni ijannoo kana
mormaniis yaada kaasaniin uummatni magaalaas tahe baadiyyaa mana murtii
72
Af-gaaffii Obbo Maammoo Tusii, Pirezidaantii MMO G/Baalee waliin gaafa 28/06/12
taasifame
73
Afgaaffii,Obbo Musbahaa Abduwahaab faa, Olitti yaadannoo lak.69ffaa
74
Af gaaffii Obbo Wandoosan Doonii, Olitti yaadannoo lak 34ffaa

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Joornaalii Seeraa Oromiyaa [Jiil. 10,Lak.1, 2013] Oromia Law Journal [Vol.10, No.1, 2021]

idileetti tajaajila haqaa argataa kan jiru seera aadaa fi duudhaa isaa irraa
maddeeen sababa hin taaneef qofaa hanga ammaatti komii tahee dhiyaatee
kan hin jirre tahuu caqasuun mana murtii aadaa sirnaa fi seera aadaa
uummata bal’aa keessaa maddeen tajaajila haqaa kennu hundeessuun komii
fida jedhamee hin tilmaamamu jedhu.75
Abbootiin Gadaa sadarkaa naannootti yeroo ammaa tajaajilaa turanii fi yeroo
tajaajila isaanii xumuran yaadota kan waliin madaaluun gaaffii dhiyaateefii
yoo yaada kennan aadaan dhugaa qofa irratti hundaa’ee hojjata; aadaa biratti
sobni hin jiru. Namni immoo kan sodaatu haqni yoo dabe dha. Fedhiin
uummata magaalaas fedhii dhugaa fi haqaati. Muuxannoo jiruunis falmii
guddaa wal falmitoota saba Oromoo hin taane gidduutti uumamee dhimma
isaanii ilaallee hiikne qabna. Kanaaf, uummatni magaalaa addatti fedhii qaba
jedhamee ilaalamuu hin qabu jedhaniiru.76Ogeessootni yaada kana cimsaniis
jiru.77Dabalataanis, ogeessootni biroo yaada kaasaniin magaalaa keessatti
manni murtii aadaa bifa abbootiin murtiii sabaaf sablammoota biroo
hirmaachisaa taheen haala ijaaramu irratti hojjachuu dha malee haala adda
taheen ilaaluun hin barbaachisu jedhu.78 Akka waliigalaatti, hawaasa
magaalaa ilaalchisee uummatni ijaarsaa sab-daneessa ta’e kan qabu tahuun
isaa qofti seeraa fi sirna aadaatiin wal dhabdee hiikachuu dhorkee kan hin
jirre yoo ta’u, gurmaa’iimsi mana murtii aadaa bifa sabaa fi sablamoota
magaalaa keessa jiran hirmaachisee fi haqummaa isaa kan mirkanaa’e yoo
ta’e caalatti komii ka’uu malu hambisuun amantaa uummataa kan dabaluu
tahuu qorannoo kanaan adda bahuu danda’eera.

75
Akkuma74ffaa.
76
Marii garee Abbaa Gadaa Goobana Hoolaa, Walitti Qabaa Abbootii Gadaa Oromiyaa,
Abbaa Gadaa Warqinaa Tarreessaa, Abbaa Gadaa Maccaa fi Miseensa Gumii Abbootii
Gadaa Oromiyaa fi jaarsa biyyaa Obbo Kadir Abdii Nuur, waliin magaalaa Finfinneetti
gaafa 16/08/12 taasifame. Akkasumas, afgaaffiiwwan Nuur A/Fiixaa Abbaa Gadaa fi Qaadii
Abbaa Boor, Jaarsa Biyyaa Aanaa Deedoo waliin gaafa 25/06/2012; Abbaa Gadaa Naahim
Hasan, Walitti Qabaa Abbaa Gadaa Magaalaa Jimmaa waliin gaafa 26/06/2012; Obbo
Xilahun Olaanii, Jaarsa biyyaa A/G/Giddaa waliin gaafa 30/06/2012 taasifame.
77
Afgaaffiiwwan Obbo Sandaabaa Hordofaa, Ogeessa Waajjira Aadaa fi Turiizimii
A/T/Kuttaayee fi Obbo Caalaa Fayisaa Dursaa Garee A/T/A/T/Kuttaayee waliin gaafa
20/06/2011 taasifame; marii garee ogeessota A/T/A/G/Giddaa waliin gaafa 30/06/2012
taasifame.
78
Marii garee Obbo Atilaabaachawu Aabbaabbuu, Pirezidaantii MMA O/Shaakisoo fi
Obbo Diiiqqaa Abdii, MMA O/Shaakisootti Gaggeessaa KTAS waliin gaafa 19/06/12
taasifame.

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3.4. MANA MURTII AADAA FI MIRGA DUBARTOOTAA

Seera aadaatiin wal qabatee hanqinni barruuleen tokko tokko kaasaan wal
qixxummaa koornayaatti ilaalchisee hanqina qaba kan jedhu dha. Kunis
ibsamuu kan danda’u murtii kennamu keessatti dhiiraaf looguu fi kenniinsa
murtii keessatti hirmaanna dubartootaa ti. Ogeeyyiin fi qorattootni aadaa
yaada kaasaniin dhimma koornayaa aadaa keessa jiru ilaalchaa fi aadaa
dhuma sana irratti hundaa’uun safaramuu qaba malee dhimma aadaa
qorachaa duudhaa fi hojimaata aadaa keessa jiru qixa aadaa ykn qaroomina
biyyoota lixaatin safaramuu hin qabu. Dhimmi kornayaas qixuma kanaan
ilaalamuu qaba. Sirna Gadaa keessatti falmii dhiiraa fi dubartii gidduutti
taasifamuus dubartiidhaaf yoo looge malee kan dubartii miidhu miti.79
Kenniinsa murtii keessattis dhimma hirmaannaa dubartootaa kan kaafnu yoo
ta’e kabaja dubartiitiif yaa’ii hin dhaabbatiin jedhamti. Dhiirri haadha siinqee
akkuma hin taane dubartiinis abbaa gadaa hin taatu. Kun immoo wal
qixxummaa mulquu otuu hin taane safuudhuma aadaa keessa jiruu dha
jedhu.80 Ogeessootni biroo garuu murtii kennuun hirmaannaan dubartootaa
sirna gadaa keessatti argamuu dhiisuu isaa wal qixxummaa dubartootaatti
kan hin amanne waan taheef mirga duabrtii miidha jechuun kaasanii jiru.81
Yaada Abbootiin Gadaa kaasaniin falmiidhaan wal qabatee sirni gadaa
dubartiif iddoo addaa kennee akka jiru [Link] dubartiin keessa jirtuu
hayyuu addaa cimina qabutu filatamee [Link] yaa’ii dhaabuu
dhiisuuf dhimma isaanii dursa [Link] mootummaa irra sirna gadaatu
dubartiif caalatti kabaja qaba.82Ragaa yoo taate dubbii dubartii dhugummaa

79
Marii garee Dambii Turcee, Dursaa Garee So/Aadaa Go/Gujii, Baay’isaa Bayyanaa,
Ogeessa Afaanii W/A/T/Go/Gujii, Samarroo Waaree, Qorataa fi Qindeessaa Sirna Gadaa
Go/Gujii, Barrisoo Olaanaa, Dursaa Garee Aadaa fi Aartii Wa/A/T/Go/Gujii waliin gaafa
18/08/12 taasifame. Akkasumas, af-gaaffii Obbo Abrahaam A/Macaa, Aadde Maari’am
Abdo, Ogeessa Induustririi Aadaa fi Aadde Ikiraam Ahmad Ogeessa Afaanii
W/A/T/G/Jimmaa waliin gaafa 26/06/2012 taasifame
80
Marii garee Dambii Turcee, Dursaa Garee So/Aadaa Go/Gujii, Obbo Baay’isaa Bayyana,
Ogeessa Afaanii W/A/T/Go/Gujii, Samarroo Waaree, Qorataa fi Qindeessaa Sirna Gadaa
Go/Gujii, Barrisoo Olaanaa, Dursaa Garee Aadaa fi Aartii Wa/A/T/Go/Gujii, waliin gaafa
18/08/12 taassifame. Akkasumas, af-gaaffiiwwan Aadde Nagaasee Shifarraa, Ogeessa
Misooma Sona Aadaa, Obbo Amsaaluu Tolasaa, Qorataa Seenaa fi Sirna Gadaa fi Obbo
Zarihun Baqqalaa, Qindeessaa Garee Hojii Misoomaa A/T/G/W/Bahaa waliin gaafa
27/06/2012 taasifame
81
Af-gaaffii Dr. Tashoomaa Egeree, Daarikteera Inistiitiyuutii Qorannoo Oromoo
Yunivarsiitii Jimmaa waliin gaafa 24/06/2012 taasifame
82
Mariiwwan garee, Olitti yaadannoo lak. 43ffaa

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qaba jedhameeti [Link] himattes dhugaa qabdi jedhameeti jalqabuma

tilmaamni fudhatama.83Hirmaannaa dubartootaa ilaalchisee bakka abbaan
gadaa yaa’iif yoo ta’e haati manaa biraa hin haftu. Akka murtiitti hin
hirmaanne kan taasifameef garaa lafti kan jedhuuf malee miidhuuf miti
jedhu. Dubartii kunuunsuuf malee miidhuuf akka hin taane kaafama.84
Haadholiin siinqee yaada kaasaniin dubartii kan miidhu seeraa fi sirna Gadaa
otuu hin taane ilaalcha duubatti hafaa Gadaan hin beekne akka ta’etti
kaasu.85
Gama biraatiin, bu’uura sirna gadaatin seera haaraa tumuun ykn labsuun
waan danda’aamuuf dubartiin keenniinsa murtii keessatti akka hirmaattu itti
amannaan yaa’ii waliigalaatti bakka hayyuun, luubnii fi Abbaan Gadaa
jiruutti labsamee hirmaachisummaa dubartootaa mirkaneessuun akka
danda’amu Abbootiin Gadaa ni kaasu.86 Kunis kan agarsiisu hirmaannaa fi
wal qixxummaa dubartootaa ilaalchisee komii sirnaa fi seera aadaa irratti
mul’atu hambisuun akka danda’amu dha.

3.5. CAASEFFAMAA FI GURMAA’IINSA MANA MURTII AADAA:

MUUXANNOO BIYYOOTA AMBAA FI YAADA OGEESSOTAA
Manni murtii aadaa sirnaa fi seera aadaa giddu-galeessa godhatee tajaajila
abbaa seerummaa kennuuf gurmaa’iinsaa fi caaseeffama sirnaan deeggarame
qabaachuu [Link]’iinsi fi caaseeffami mana murtii aadaa tajaajila
kennamu bifa ifaa, salphaa fi dhaqqabamaa taasisuun qindaa’uu
[Link]’iinsi fi caaseeffamni kunis duudhaa hawaasa keessaa madduu
irratti hundaa’uu qaba. Kanuma giddu-galeessa godhachuudhaan manni
murtii aadaa Naannoo Oromiyaatti hundeeffamu gurmaa’iinsaa fi
caaseeffama akkamii qabaachuu qaba kan jedhu mata-duree gara garaatti
qooduun daataa funaanamee fi muuxannoo biyyoota ambaa waliin akka
armaan gadiitti xiinxalameera.

83
Afgaaffiiwwan Abbaa Gadaa Nuur A/Fiixaa fi Qaadii Abbaa Boor, Jaarsa Biyyaa Aanaa
Deedoo, waliin gaafa 25/06/2012 taasifame
84
Mariiwwan garee, Olitti yaadannoo lak. 52ffaa
85
Af-gaaffii Addee Shukurii Kadri,Haadha Siinqee Aanaa Sinaanaa, waliin gaafa 28/06/12;
Aaddee Faaxumaa Maammaa Sheekaa, Aanaa Gobbaa, waliin gaafa 27/06/12 taasifame
86
Af-gaaffiiwwan [Link] Borbor Bulee, Jaarsa biyyaa Magaalaa Dubulliq, gaafa
02/07/12; Obbo Aagaa Xiinxanoo, Abbaa Gadaa duraanii fi yeroo ammaYuuba Mag/
Shaakkisoo waliin gaafa 19/06/12 taassifame.

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3.5.1. Filaannoo Abbootii Seeraa Mana Murtii Aadaa

Galma gahiinsa kaayyoo hundeeffama mana murtii aadaatiif shoorri
abbootiin seeraa aadaa taphatan olaanaa [Link], filannoo isaaniitiif
xiyyeeffannaa kennuun barbaachisaa [Link] garagaraa namoota
mana murtii aadaatti abbaa seeraa ta’anii tajaajilan filachuuf haala qabatama
naannoo isaanii giddugaleessa godhachuun ulaagaa garagaraa yeroo kaa’atan
mul’ata. Biyyi Maalaawwii nama umrii waggaa 35 fi isaa ol, waraqaa ragaa
barnootaa kan qabu, beekumsa aadaa bakka manni murtii itti hundaa’ee jiru
kan qabuu fi Afaan naannoo sanaa sirnaan beekuu akka ulaagaatti
kaa’ataniiru. Manni murtii aadaa kun dhimma hariiroo hawaasaa irratti akka
gorsaatti kan isaan gargaaru paanaalii ykn gumii qabu. Miseensoonni
paanaalii kanaa ulaagaadhuma filannoo abbootii seeraa mana murtii aadaa
ta’ee, sadarkaa barnootaa kan hin barbaachifnee fi umrii waggaa 50 ta’uu
qaba kan jedhu akka ulaagaatti teessifamee jira.
Biyya Naayijeeriyaa yoo ilaallu walitti qabaa abbootii seeraa mana murtii
aadaa ta’anii filamuuf ogummaa seeraan muuxannoo waggaa shanii kan
gaafatuu yoo ta’u, abbootiin seeraa hafan garuu miseensa hawaasaa ta’anii
namoota barnoota hin qabne illee ta’uu danda’u. Biyya Zimbaabuwee
keessatti immoo namoota aadaa uummataatti sirriitti hidhata qabanii fi
hawaasa baadiyaa waliin hariiroo qaban akka ulaagaatti kaa’uun filatu.
Muuxannoowwan biyyoota armaan olii irraa hubachuun kan danda’amu
ulaagaa dhaabbataan akka hin jirree fi haala qabatama naannoo isaanii giddu-
galeessa godhachuun abbootii seera manneen murtii aadaa filachaa akka
jirani dha. Garuu kan isaan walfakkeessu abbaa seeraa aadaa ta’ee filatamuuf
aadaa fi duudhaa naannoo sanaa beekuu akka qabu dha.
Mana murtii aadaa hundeeffamu keessatti abbootii seeraa tajaajilan filachuuf
ulaagaa barbaachisan adda baafachuuf odeeffannoon abbootii gadaa,
jaarsoolee biyyaa, qorattootaa fi hooggantoota manneen murtii irraa maloota
adda addaatti gargaaramuun funaanamee [Link] ijaarsi
hawaasummaa wal dhabdee hiiku ijaaramee jiru keessatti filannoon abbootii
seeraa mana murtii aadaa ijaarsa hawaasummaa fi aadaa dursa lafa qabatee
jiru irratti hundaa’uu akka qabu Abbootiin Gadaa fi ogeessootni aadaa
Godina Gujii Bahaa, Godina Booranaa fi Aanaa Fantaallee ni kaasu.
Jaarsoliin biyyaa, ogeessootni fi qorattootni aadaa, hooggansi manneen
murtii baay’inaan yaada kennaniin filannoon abbootii seeraa kallattiin

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sadarkaa gandaatti jiraattoota gandaatiin ta’ee namoota aadaa fi safuu

uummata Oromoo sirnaan beekan, abbootii amantaa walqixa hirmaachise,
hirmaannaa dubartootaa keessattuu haadha siinqee kan qabu87, umrii giddu-
galeessa kan godhate88, namoota hawaasa keessatti fudhatama qaban, jiraataa
gandaa, Abbootii Gadaa fi jaarsolee biyyaa keessaa abbootiin seeraa aadaa
filatamuu akka qabu kaasu.89
Hirmaannaa nama barnoota qabu ilaalchisee barbaachisummaa fi hirmaannaa
isaa hooggansi manneen murtii afgaaffiin taasifameef yeroo kaasan ni
mul’ata. Yeroo seera aadaan hojjetamu mirgoota namoomaa kanneen heera
mootummaa fi seerota idila addunyaatiin beekkamtiin kennamee fi biyyi
keenya mallatteessitee jirtu sarbamuu danda’a. Qaamoleen tajaajila gorsa
seeraa kennaan maamilli isaanii carraa xiqqaachuu waan jiraatuuf hanqina
dandeettii abbootii seeraa aadaa kanatti gargaaramuun kaayyoon isaanii akka
hin milkoofne gochuu danda’u.90Kanaaf, abbootii seeraa aadaa filataman
keessa namni barate jiraachuu akka qabu [Link] seeraa barnoota qabu
kunis murtii kennamu barreessuuf akka tajaajilu ibsu.91 Akkasumas, nama
aadaa naannoo sanaa beeku ta’ee eegumsa mirga namoomaa heera keessatti
taa’an akka kabajamaniif hubannoo barbaachisaa abbootii seeraa hafaniif kan
kennu ta’uu akka qabu kaasu.92

87
Marii garee Obbo Musbahaa Abduwahaab, Du/Garee Misooma Sona Aadaa
W/A/T/Go/Baalee, Aaddee Abbabachi Wandimmaaganyi, Dursaa Garee M/Turizimii,
W/A/T/Go/Baalee, Huseen Sulxaan, Ogeessaa Afaanii W/A/T/Go/Baalee, waliin gaafa
24/06/12 taasifame
88
Marii garee Obbo Dajanee Kabbadaa, Obbo Alamuu Kumalaa, Aadde Ayyalech
Maammoo Ogeessota Waajjira Aadaa fi Turiizimii M/Amboo waliin gaafa 19/06/2012
taasifame
89
Afgaaffiiwwan Obbo Rattaa Immaa, B/b Waajjira A/T/A/Deedoo, Aadde Natsannet
Malaakuu, Ogeessa Misooma Aadaa fi Obbo Taaddasee Baatuu, Ogeessa Misooma
Turiizimii Aanaa Deedee, Obbo Nuur A/Fiixaa, Abbaa Gadaa fi Qaadii Abbaa Boor, Jaarsa
Biyyaa Aanaa Deedoo,waliin gaafa 25/06/2012 ; Obbo Maatiyoos Yiggazuu, KTAS MMO
G/L/Shawaa ; Obbo Dirribaa Olii, Abbaa Seeraa Mana Murtii Olaanaa G/Sh/Lixaa waliin
gaafa 19/06/2012 taasifame
90
Afgaaffii Obbo Guyyoo Waariyoo, I/A/P/MMWO waliin gaafa 16/08/2012 taasifame
91
Afgaaffiiwwan Obbo Badriitamaan Umar, Pirezidantii MMO Go/Gujii, Obbo Dhadacha
Guuyyoo, Piresidaantii MMA Liiban waliin gaafa 17/06/12 taasifame.
92
Af-gaaffii Obbo Sisaay Mul’ataa, Qindeessaa KTAS MMO Go/Gujii, waliin gaafa
17/06/12 taassifame

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3.5.2. Itti Waamama Mana Murtii Aadaa

Manni Murtii Aadaa gahee hojii seeraan isaaniif kennamee qixa sirriin
hojjechuu isaanii mirkaneessuuf qaamni yeroo, yeroon madaaluun kallattii
kaa’u jiraachuu [Link] murtii aadaa qaama itti waamamuuf qabaachuu
qaba jechuu [Link] adda addaa itti waamama manneen murtii aadaaf
qaamolee garaa garaatiif kennanii jiru. Biyya Afrikaa Kibbaatti manneen
murtii aadaa sadarkaa baadiyaatti hundeessanii kan jiranii fi itti waamamni
isaanii immoo hayyu duree gandaa ykn bulchitoota gandaa jedhamaniifi.
Biyyoota akka Zaambiyaa fi Naayijeeriyaa keessatti immoo itti waamamni
isaanii mana murtii waliigala biyyittiifi.
Akka Naannoo Oromiyaattis, manni murtii aadaa osoo hundaa’ee, itti
waamamni isaanii qaama kamiif ta’uu akka qabu adda baafachuuf
odeeffannoon ogeessota fi qorattoota aadaa, Abbootii Gadaa fi jaarsolii
biyyaa, hooggansa mana murtii irraa funaanamee jira. Qaamoleen daataan
irraa funaaname kunis itti waamama manneen murtii aadaatiif yaadota adda
addaa kaasaniiru.
Manni Murtii Aadaa yeroo hundeeffamu akkuma sekteroota mootummaa
biroo of danda’ee ganda irraa hanga naannootti hundeeffamuu qaba
jedhu.93Ogeessonni yaada kana deeggaran akka sababaatti kanneen kaasan
uummanni Oromoo durii kaasee osoo dimokraasiin ammayyaa hin
hundeeffamiin sirna gadaatiin of bulchaa waan tureef sirnuma kana of
dandeessisuun gahaa dha jedhu. Manni Murtii Aadaa bu’uura sirna gadaatiin
hundaa’uu akka qabu dha. Kunis dhiibbaa qaamolee adda addaa irraa itti
dhiyaatu hambisuuf gargaara. Mana Murtii Aadaatiif beekkamtii kennuun

Mariiwwan garee Obbo Abbabaa Fiixaa, Obbo Faanaa Qajeelaa fi Obbo Darajjee
93

T/Maaram, Ogeessota Waajjira Aadaa fi Turiizimii G/Sh/Lixaa; Obbo Dajanee Kabbadaa,

Obbo Alamuu Kumalaa, Aadde Ayyalech Maammoo, Ogeessota Waajjira Aadaa fi
Turiizimii M/Amboo, waliin gaafa 19/06/2012 taasifame. Akkasumas, af-gaaffii Obbo
Biraanuu Alamuu, Misooma Sona Aadaa fi Aadde Baalayinesh Cammiruu, Ogeessa
Misooma Afaanii Waajjira A/T/A/Diggaa, waliin gaafa 30/06/2012; Obbo Sandaabaa
Hordofaa, Ogeessa Waajjira Aadaa fi Turiizimii A/T/Kuttaayee fi Obbo Caalaa Fayisaa,
Dursaa Garee A/T/A/T/Kuttaayee waliin gaafa 20/06/2011; Obbo Hajiib Abbaa Jabal, B/b
Hoogganaa A/T/M/Jimmaa, Aadde Hindiyaa Abbaa Foggee, Dursaa Garee Misooma Aadaa,
waliin gaafa 26/06/2012; Shuumee Tasammaa, Abbaa Gadaa A/Diggaa, waliin gaafa
30/06/2012; Af-gaaffii Obbo Injiguu Guutaa, Abbaa Gadaa fi Abbaa Murtii Bokkuu Cittii
Aanaa Tokkee kutaayee waliin gaafa 01/07/2012; Obbo Nuur A/Fiixaa, Abbaa Gadaa fi
Qaadii Abbaa Boor, Jaarsa Biyyaa Aanaa Deedoo, waliin gaafa 25/06/2012; Obbo Sisaay
Mul’ataa, Qindeessaa KTAS MMO Go/Gujii waliin gaafa 17/06/12; Obbo Tokkummaa
Caalaa, Pirezidantii Mana Murtii Aanaa Yaabelloo waliin gaafa 02/07/12 taassifame.

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aadaa uummata Oromootiif beekkamtii kennuu akka ta’etti kaasu. Mana

Murtii idilee jala galchuun kaayyoo kana akka galmaan hin geenye isa
taasisa [Link], Manni Murtii Aadaa caasaa Sirna Gadaa jalatti
hundaa’uu akka qabuu fi itti waamamni isaa immoo Gumii Abbootii
Gadaatiif ta’uu qaba [Link] murtii aadaa mana murtii idilee irraa
amala addaa waan qabuuf itti waamamni isaas mana murtii idilee jalatti ta’uu
akka hin qabne eeru. Ejjennoon kunis irra caalaa Abbootii Gadaa, jaarsoolee
biyyaa, Ogeessota Aadaa fi Turiizimii fi Qorattoota seenaa fi aadaa biratti
kan calaqqisu dha.
Mana murtii aadaa of dandeessisuun bu’uura Sirna Gadaatiin hundeessuun
itti waamamni isaa immoo Gumii Abbootii Gadaatiif taasisuuf haala
qabatama amma jiruun rakkoolee adda addaas qaba. Naannoo Oromiyaa
hunda keessatti haala walfakkaataa ta’een waldhabbiin Sirna Gadaatiin
hiikamaa akka hin jirre dha. Fakkeenyaaf, Godina Jimmaa keessatti Sirni
Gadaatiin waldhabbii hiikuun baay’ee baratamaa [Link]
jaarsummaa fi sirna amantaatiin kakuu raawwachuun furmaata argachaa
akka jiran eeru.94 Akkasumas, Godina Baalee, Godina Wallaga Bahaa fi
G/Shawaa Lixaa Aanolee hedduu fudhachuun ni danda’ama. Kanaaf,
bu’uura Sirna Gadaatiin of dandeessisuun ammatti baay’ee bu’a qabeessa
akka hin taane kaasu.
Qaamoleen biroo yaada kaasaniin, Manni Murtii Aadaa hundeeffamu itti
waamamni isaa mana murtii idilee jalatti ta’uu akka qabu kaasu.95 Kanaafis
akka sababaatti kan eeran Sirni Gadaa caaseffama ammayyaa Ganda, Aanaa,
Godinaa fi Naannoo kan hin qabne dha. Akkasumas, qabatama amma jiruun
Sirni Gadaa haala walfakkaataa ta’een naannoo Oromiyaa hunda keessatti
lafa qabatee waan hin jirreef of dandeessisanii hundeessuun itti waamama

94
Marii garee Obbo Getaachoo Gurmuu, Dursaa Garee W/A/T, Birhaanuu Ayyalaa, Qorataa
Seenaa fi Afaanii, Obbo Gammachuu Warquu, Dursaa Garee Misooma
Aadaa,W/A/T/Aanaa Guutoo Giddaa, Obboo Xilahuun Olaanii, Jaarsa biyyaa aanaa
G/Giddaaa waliin gaafa 30/06/12 taasifame.
95
Marii garee Aadde Wuddee Indaashawu, Aadde Soofiyaa Mohaammad, Obbo Daani’eel
Isheetuu, Ogeessota W/A/T/G/Shawaa Bahaa, waliin gaafa 08/07/2012 taasifame.
Akkasumas, afgaaffiiwwan Abbaa GadaaNaahim Hasan, Walitti Qabaa Abbaa Gadaa
Magaalaa Jimmaa, waliin gaafa 26/06/2012; Obbo Dirribaa Olii, Abbaa Seeraa Mana Murtii
Olaanaa G/Sh/Lixaa, waliin gaafa 19/06/2012; Obbo Taarikuu Abbabaa, Pirezidaantii Mana
Murtii A/T/Kuttaayee fi Obbo Tsasfaayee Guddisaa, Abbaa A/Dh/Yakkaa Mana Murtii
Aanaa T/Kuttaayee, waliin gaafa 20/06/2012 fi Obbo Kennaa Daammanaa, A/S MMA
Deedoo fi Obbo Yohaannis Yifiruu, A/S MMA Deedoo waliin gaafa 26/06/2012 taasifame.

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isaanii Gumii Abbootii Gadaatiif kennuun bu’a qabeessa akka hin taasifne,
to’annoo fi hordoffii isaanii irratti illee rakkoo mataa isaa qabaachuu akka
qabu kaasu. Kaayyoon Mana Murtii idilee fi mana murtii aadaa waldhabbii
uumamee jiruuf furmaata kennuun haqa argamsiisuu dha. Dhimmoonni
sirnaan mana murtii aadaatti keessummeeffamuun murtii haqa qabeessi
kennameera taanaan dhimmoonni mana murtii idileetti dhiyaatan ni
xiqqaatu. Hanga kaayyoo fi galmi isaanii tokko ta’ee jirutti mana murtii
aadaa hundeeffamu itti waamamni isaa mana murtii idileef ta’uu akka qabu
kaasu.
Itti waamama Mana Murtii Aadaa ilaalchisee yaadotni adda addaa eeramanii
kanaa fi muuxannoo biyyoota Mana Murtii Aadaatiin bu’a qabeessa ta’anii
walfaana ilaaluun barbaachisaa [Link] waamama Mana Murtii Aadaa
ilaalchisee muuxannoo biyya Naayijeeriyaa ilaaluun gaarii dha. Biyyi kun
mana murtii aadaa sadarkaa gadjallaatti kutaalee biyyittii hunda keessatti
maqaa adda addaa kennuun kan hundeessitee jirtu dha. Dabalataanis, Mana
Murtii Aadaa hundeessuun biyya bu’a qabeessa taatee jirtu [Link]
waamamni Mana Murtii Aadaa isaaniis seeraan Mana Murtii Waliigala
biyyittiif taasisuunii jiru. Kun immoo hordoffii fi deeggarsa adda addaa
kennuuf haala mijataa kan uume dha. Haala qabatama ammaa naannoo
keenyaas yoo ilaalle Manni Murtii Aadaa sirna Gadaatiin of danda’ee
hundaa’ee itti waamamni isaa Gumii Abbootii Gadaatiif taasisuun ammatti
bu’a qabeessa ta’uu dhiisuu danda’[Link], itti waamama Mana Murtii
Aadaa Gumii Abbootii Gadaatiif kennuun sirna cimaa ijaaruu fi itti
gaafatamummaa mirkaneessuu irratti hanqinni ga’uumsaa mul’achuu
danda’a waan ta’eef Mana Murtii Aanaatiif osoo ta’ee irra caalaa bu’a
qabeessa ta’a.

3.5.3. Faayidaa Abbootii Seeraa Mana Murtii Aadaa

Abbootii seeraa mana murtii aadaa yeroo fi humna isaanii aarsaa gochuun
tajaajila ummataaf kennan faayidaa isaanii eeguun barbaachisaa dha.
Muuxannoon biyya Zimbaabuwee fi Zaambiyaas kanuma agarsiisa.
Kaffaltiiwwan adda addaa kanneen abbootii seeraa mana murtii aadaatiif
kennamu akka qabu heerri biyya Zimbaabuwee ni dirqisiisa. Biyya
Zaambiyaa keessattis abbootiin seeraa kun miindeeffamaa dhaabbataa yoo
ta’u, baatanuu hanga hojjetaniin kaffalamuufii akka qabu seerri isaanii ni
ibsa.

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Akka Naannoo Oromiyaattis, abbootii seeraa Mana Murtii Aadaa ciccimoo

horachuuf, miira tajaajiltummaa uumuu fi itti gaafatamummaa
mirkaneessuuf Abbootii Seeraa Aadaatiif jajjabeessituun osoo kennameefii
caalaa bu’a qabeessa ta’uu danda’a.

3.5.4. Bara Hojii Abbootii Seeraa Mana Murtii Aadaa

Bara hojii abbootii seeraa Mana Murtii aadaa haalota adda addaa irratti
hundaa’uun yeroo daangessan mul’ata. Biyya Naayijeeriyaa keessatti yeroon
turtii waggaa shaniif yoo ta’u, sana booda illee irra deebiin muudamuu ni
danda’u. Biyyi Zimbaabuwees bara tajaajila abbootii seeraa Mana Murtii
Aadaa seera isaaniitiin daangessanii jiru. Akka naannoo keenyaattis, barri
hojii abbootii seeraa mana murtii aadaa daangeffamuu akka qabu
hooggantootni manneen murtii fi ogeessonni Waajjira Aadaa fi Turiizimii
afgaaffiin taasifameef ni kaasu. Daanga’uun bara hojii isaanii abbootiin
seeraa hojii isaanii sirnaan akka raawwatanii fi bara hojii isaaniin boodatti
maqaa badaa akka hin horanneef of eeggannoo akka taasisaniif isaan akka
gargaaru eeru.96
Haa ta’u malee, namoota hawaasa biratti fudhatamummaa olaanaa qabanii fi
tajaajila kennuuf fedhii qaban marsaa tokkoo ol haala tajaajiluu danda’aniis
kaa’amuu akka qabu dha.97 Barri tajaajila isaanii kunis haala ifaa ta’ee
seeraan kaa’amuu akka qabu namoonni af-gaaffiin taasifameef tokko, tokko
ni kaasu.98Haala addaatiin garuu, abbootiin seeraa miira tajaajiltummaa
qaban, naamusa gaarii agarsiisan, umriin isaanii hojii sirnaan akka hojjatan
isaan taasisu fi kanneen biroo tajaajila abbaa seerummaa kennisiisu danda’an
guutan marsaa biroof illee irra deebiin filatamuu danda’u.

96
Marii garee Obbo Musbahaa Abduwahaab, Du/Garee Misooma Sona Aadaa
W/A/T/Go/Baalee, Aaddee Abbabachi Wandimmaaganyi, Dursaa Garee M/Turizimii
W/A/T/Go/Baalee, Obbo Huseen Sulxaan, Ogeessaa Afaanii W/A/T/Go/Baalee, waliin
gaafa 24/06/12 [Link], af-gaaffiiwwan Obbo Kabbuu Mul’ataa,
Pirezedaantii MMA Amboo waliin gaafa 19/06/2012; Obboo Badriitamaan Umar,
Pirezidaantii MMO Go/Gujii, waliin gaafa 17/06/12; Obbo Dirribaa Olii, Abbaa Seeraa
MMO G/Sh/Lixaa waliin gaafa 19/06/2012 taasifame.
97
Marii garee Aaddee Maakiddaa Waaqoo, Dursituu Garee Aadaa, Wasanee Bajigaa,
Ogeettii Misooma Aadaa, Haabtaamuu Asfawuu fi Massalachi Tafarraa,Ogeessota Aadaa
Aanaa Gobbaa waliin gaafa 27/06/12 taasifame. Akkasumas, af-gaaffii Obbo Awwal
Amaan, Ogeessa Aadaa Aanaa Diinshoo waliin gaafa 28/06/12 taassifame
98
Afgaaffii Obbo Rattaa Immaa, B/b Waajjira A/T/A/Deedoo, Aadde Natsannet Malaakuu,
Ogeessa Misooma Aadaa fi Obbo Taaddasee Baatuu, Ogeessa Misooma Turiizimii Aanaa
Deedoo waliin gaafa 25/06/2012 taasifame

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3.5.5. Bilisummaa fi Itti gaafatamummaa Abbootii

Seeraa Mana Murtii Aadaa
Biyyoonni garaa, garaa abbootiin seeraa Mana Murtii Aadaa aangoo seeraan
isaaniif kennamee jiru qixa sirriin hojiirra yoo hin oolchine itti
gaafatamummaa akka hordofsiisuu danda’u seera isaanii keessatti ibsanii
jiru. Biyya Naayijeeriyaa keessatti abbootiin seeraa aadaa hojiirraa kan
gaggeeffaman tajaajila abbaa seerummaa kennuuf sammuudhaan yoo
dadhaban, dandeettii yoo dhaban, yakkaan balleessaa yoo jedhamanii fi badii
naamusaa yoo agarsiisani dha.
Biyya Zimbaabuwee keessatti immoo abbaan seeraa, seera aadaa giddu-
galeessa godhachuun dhimmoota akka ilaalu dirqamni itti kennamee jiru yoo
bahachuu baate hojiirraa [Link] itti hojii irraa gaggeeffamuu
qaban heeraa fi seera isaanii keessatti kanneen tarreeffamanii jiran qofaan
[Link] hojii isaanii raawwatan garee hundumaa walqixaa fi
haala sirnaawaa ta’een ilaaluu akka qaban seerri dirqama kaa’ee jira.
Abbootiin seeraa kun miseensa dhaaba siyaasaa kamuu ta’uu akka hin qabne
seerri ibseera. Yeroo dhimma isaanitti dhiyaate ilaalan wantoota akka sanyii,
bakka dhufaatii, gosaa, saala, ilaalcha yookiin siyaasa giddu galeessa
godhachuun garee addaan baasuu hin qaban. Kan heerrii fi seerri jedheen ala
bahuun looganii yoo argaman hojiirraa kan gaggeeffaman ta’u.
Naannoo keenya keessattis bilisummaa fi itti gaafatamummaan abbootii
seeraa mana murtii aadaa maal ta’uu akka qabu adda baafachuuf daataan
funaanamee jira. Dhimmi muudama irraa gaggeessuu sirna aadaa keessaa
madduu akka qabu hooggantootni manneen murtii afgaaffiin taasifameef ni
kaasu. Gochaawwan akka aadaa naannoo sanaatti safuu hawaasaa tuqu
dalagee argameera taanaan hojiirra gaggeeffamuu akka qabu kaasu.99
Muudama isaanii irraa gaggeessuun seeraan adda bahee kaa’amuu akka
qabus ogeessonni Waajjira Aadaa fi Turiizimii afgaaffiin taasifameef ni
kaasu.100 Haaluma kanaan, gochaawwan abbootii seeraa aadaa muudama

99
Af-gaaffiiwwan Obbo Sisaay Mul’ataa, Qindeessaa KTAS MMO Go/Gujii waliin gaafa 17
/06/12 taasifame. Akkasumas, marii gare Obbo Atilaabaachawu Aabbaabbu, Pirezidaantii
MMA O/Shaakisoo fi Obbo Diiiqqaa Abdii, KTAS MMA O/Shaakisoo waliin gaafa
19/06/12 taassifame.
100
Afgaaffiiwwan Obbo Rattaa Immaa, B/b Waajjira A/T/A/Deedoo, Aadde Natsannet
Malaakuu, Ogeessa Misooma Aadaa fi Obbo Taaddasee Baatuu, Ogeessa Misooma
Turiizimii Aanaa Deedoo, waliin gaafa 25/06/2012 taasifame.

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irraa kaasan bu’uura aadaatiin iddoo, iddootti garaagarummaa yoo

qabaateyyuu wantootni akka yakka raawwachuu, amanamummaa dhabuu,
fedhii hojii dhabuu, ganda gadhiisee bahuu, sababa dhibeetiin dirqama bahuu
dadhabuu fi kanneen biroo seeraan ifatti kaa’amaniin osoo bara hojii isaanii
hin xumuriin hojii isaanii irraa gaggeeffamuu qabu.

3.5.6. Caaseffama Sirna Oliyyannoo Mana Murtii Aadaa

Manni Murtii Aadaa akka naannoo keenyaatti hundeeffamu mana murtii
aadaa oliyyannoo dhagahu qabaachuu fi dhiisuu isaa irratti odeeffannoo
Abbootii Gadaa, jaarsoolee biyyaa, ogeessota, qorattootaa fi hooggantoota
mana murtii idilee irraa funaanamee jiru haala armaan gadiitiin muuxannoo
biyya hambaa waliin xiinxalamuu yaalameera. Kanaafis, yaadotni adda
addaa akka jiru kaasaniiru.
Qorattoota seenaa, ogeessota aadaa fi turiizimii akkasumas abbootii gadaatiif
afgaaffiin taasifameen manni murtii aadaa akka naannoo keenyaatti
hundeeffamuuf jiru caasaa oliyyannoo sadarkaa aanaa irratti qabaachuu akka
qabu eeru.101 Qaamni oliyyata dhaga’u of danda’ee mana murtii idilee irraa
adda kan ta’e hundaa’uu akka qabu kaasu.102Manni murtii idilee oliyyataan
dhimmicha ilaala taanaan aadummaan isaa hafuu akka danda’u soda qaban
kaasu.
Qabatamaanis, Godinoota tokko tokko keessatti murtiiwwan aadaan
kennaman oliyyata mata isaanii qabachuun yeroo ilaalaman mul’ata.
Fakkeenyaaf, Godina Baalee keessatti dhimmoonni bifa jaarsummaan kan
xumuramanii fi namni murtii jaarsoolee irraa komii qabuuf caasaan
oliyyannoo akka jiru kaasu. Dhimmoonni jalqaba irratti gara warraatti
[Link] warraan furmaata argachuu hin dandeenye gara
gosaatti geeffamu. Murtii gosaa fudhachuu kan dide irratti qoqqobbiin

101
Afgaaffiiwwan Jaarsa biyyaa Dok. Kabajaa Borbor Bulee, Magaalaa Dubulliqiitti gaafa
02/07/12; Aadde Nagaasee Shifarraa, Ogeessa Misooma Sona Aadaa, Obbo Amsaaluu
Tolasaa, Qorataa Seenaa fi Sirna Gadaa, Obbo Zarihun Baqqalaa, Qindeessaa Garee Hojii
Misoomaa A/T/G/W/Bahaa, waliin gaafa 27/06/2012; Obboo Badriitamaan Umar,
Pirezidantii MMO Go/Gujii waliin gaafa 17/06/12; Obbo Sisaay Mul’ataa, Qindeessaa
KTAS MMO Go/Gujii, waliin gaafa 17/06/12 taassifame.
102
Af-gaaffiiwwan Aadde Nagaasee Shifarraa, Ogeessa Misooma Sona Aadaa, Obbo
Amsaaluu Tolasaa, Qorataa Seenaa fi Sirna Gadaa, Obbo Zarihun Baqqalaa, Qindeessaa
Garee Hojii Misoomaa A/T/G/W/Bahaa waliin gaafa 27/06/2012; Obboo Badriitamaan
Umar, Pirezidantii MMO Go/Gujii; Obbo Sisaay Mul’ataa, Qindeessaa KTAS MMO
Go/Gujii waliin gaafa 17/06/12 taassifame

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hawaasummaa irratti akka dabarfamu kaasu.103 Dhimmi isaa gosatti kan

ulfaatu yoo ta’e immoo gara waayyuutti dabarfama. Dhimmoonni sadarkaa
kanatti furmaata hin arganne gara Abbaa Gadaatti dabarfamaa akka jiran
eeru.104
Boorana keessattis jalqaba irratti dhimmi jaarsa ollaatiin [Link] jaarsa
olla irra darbe hayyuun [Link] hayyuudhaan furmaata hin
arganne gara Abbaa Gadaatti [Link] dhimmicha ilaalee murtii
osoo hin kenniin garuu oliyyachuun hin danda’[Link] yakka
ciccimoo kanneen akka ajjeechaa yoo Abbaan Gadaa qajeelche malee ofii
isaa hin [Link] Abbaa Gadaatu ilaala.105Abbaa Gadaa irraa
gara Gumii Gaayyootti oliyyanni fudhatama. Murtiin dhumaa kan Gumii
Gaayyooti.106 Gumiin Gaayyoo waggaa saddeetitti kan raawwatu muudama
dha. Kanaan ala yaa’ii yeroo garagaraatti waan ta’uuf dubbii ilaalee murtii
kennuu danda’a.107
Karrayyuunis sirna oliyyannoo akka qaban [Link] ciccimoon
gosaan kanneen sasalphaa ta’an immoo jaarsaan [Link]
kamuu aadaan furmaata argachaa [Link] gosa [Link] immoo
bulchaa ykn gaggeessaa [Link] sasalphaan jaarsaan araara
[Link] sasalphaa ta’anii kanneen jaarsaan furmaata argachuu hin
dandeenye gara bulchaatti [Link] immoo yaa’ii gosaa walitti
qabee mariisisuun murtii [Link] namoota gosa adda addaa

103
Marii garee Obbo Musbahaa Abduwahaab, Du/Garee Misooma Sona Aadaa,
W/A/T/Go/Baalee, Aadde Abbabachi Wandimmaaganyi, Dursaa Garee M/Turizimii,
W/A/T/Go/Baalee, Obbo Huseen Sulxaan, Ogeessaa Afaanii, W/A/T/Go/Baalee waliin
gaafa 24/06 /12 taasifame
104
Marii garee Obbo Aloo Baalshoo, Miseensa Gumii Odaa Roobaa fi Walitti Qabaa
A/Gadaa fi Jaarsa Biyyaa Aanaa Sinaanaa fi Aaddee Shukurii Kadir, Haadha Siinqee Aanaa
Sinaanaa, waliin gaafa 28/06/12; Obbo H/Huseenii K/Husee fi Awwal Amaan, Jaarsa biyyaa
Magaalaa Diinshoo waliin gaafa 27/06/12 taassifame.
105
Af-gaaffii Injiguu Guutaa, Abbaa Gadaa fi Abbaa Murtii Bokkuu Cittuu Aanaa Tokkee
kutaayee waliin gaafa 01/07/2012. Akkasumas, marii garee Jaarsoolee Magaalaa Jimmaa:
Obbo Zaakir Abbaa Boor, Obbo Nagaash Nagawoo, Aadde Abbabech Amanee, waliin gaafa
24/06/2012 taasifame.
106
Afgaaffiiwwan Obbo Musbahaa Abduwahaab, Du/Garee Misooma Sona Aadaa
W/A/T/Go/Baalee, Aaddee Abbabachi Wandimmaaganyi, Dursaa Garee M/Turizimii
W/A/T/Go/Baalee, Obbo Huseen Sulxaan, Ogeessaa Afaanii, W/A/T/Go/Baalee, waliin
gaafa 24/06/12 taasifame. Akkasumas, marii garee Biraanuu Wayyoo, Qorataa Seenaa
W/A/T/A/O/Shaakisoo fi Faanayee Lammaa, Ogeeesa Afaanii W/A/T/A/O/Shaakkisoo,
waliin gaafa 19/06/11 taassifame.
107
Afgaaffiiwwaniifi marii garee, Akkuma106ffaa.

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lama gidduutti yoo ta’e immoo bulchaan gosa isa miidhee yookiin
himatamaa walitti qabuun mariisisee dhimmicha ilaalu. Jaarsa gosa sanaa hin
taanes ni waamamu. Gosti dhimma sana ilaalanii waan irra gahan jaarsoleef
ibsuun nuti gama keenyaan kana murteessinee isin immoo waan isinitti
fakkaate murteessaa jedhama. Badiin jiraannaan badii raawwateera jedhamee
itti murtaa’ee qaama waldhabe walitti araarfamaa kan jiru ta’uu isaa nuuf
kaasaniiru.108
Gujiittis haalli dhimmoonni itti ilaalaman sadarkaa kan qabani dha. Dursa
jaarsatu [Link] murtii jaarsoolee irraa komii qabu gara Abbaa Gadaa
Hookkuutti dhimma isaa [Link] Abbaa Gadaa Hokkuutti hin
quufne Abbaa Gadaa maatiitti geeffata. Qaamni murtii Abbaa Gadaa
Maatiitti walii hin galle Abbaa Gadaa Uraagaatti geeffata. Murtiin Abbaan
Gadaa Uraagaa isaa dhumaati. Namni murtii Abbaa Gadaa kana dide irratti
qoqqoobbiin hawaasummaa kan taasifamu dha.109Gareen yaada kana
deeggaran dhugaa hawaasa keessa jiru kana akka fakkeenyaatti kaasuun
manni murtii aadaa hundeeffamuuf jiru caasaa oliyyannoo dhaga’u yoo
xiqqaate sadarkaa aanaatti qabaachuu akka qabaatu kaasu.
Yaadni biroo manni murtii aadaa caaseffama oliyyannoo qabaachuu akka hin
qabne kaasu. Yaadni kun irra caalaa hooggantoota mana murtii fi abbootii
seeraatiin kan calaqqisaa jiru dha.110Murtii mana murtii aadaatiin kennamee
jiru irraa qaamni komii qabu oliyyataan gara mana murtii idileetti fudhachuu
akka qabu kaasu. Gama birootiin immoo Murtiin Mana Murtii aadaatiin
kennamee jiru bifa oliyyannoo osoo qabaachuu baatee yaadni jedhus kan jiru
dha. Dhimmoonni erga sirna aadaatiin ilaalamanii booda bifa oliyyannootiin
mana murtii idileetti dhiyaachuu akka hin qabne [Link] murtii
kennamee jiru irraa komii qabu bifa oliyyannootiin osoo hin taane
kallattiidhumaan himannaa isaa mana murtii idileetti dhiyeeffachuu akka

108
Marii garee, Olitti yaadannoo lak. 103ffaa
109
Afgaaffiiwwan Moonaa Godaanaa , Abbaa Gadaa Gujii duraanii fi yeroo ammaatti
Yuuba fi Obbo Saafee Dullachaa, Jaarsa biyyaa Aanaa Wadarraa waliin gaafa 18/06/12
taasifame
110
Af-gaaffiiwwan Obbo Maatiyoos Yiggazuu, KTAS MMO G/L/Shawaa; Obbo Dirribaa
Olii, Abbaa Seeraa MMO G/Sh/Lixaa waliin gaafa 19/06/2012; Obbo Ismaa’eel Abbaa
Boor, B/b Prezidaantii MMO G/Jimmaa waliin gaafa 24/06/2012; Obbo Kabbuu Mul’ataa
Pirezidaantii MMA Amboo waliin gaafa 19/06/2012; Obbo Taarikuu Abbabaa PMM
A/T/Kuttaayee fi Obbo Tasfaayee Guddisaa, Abbaa A/Dh/Yakkaa MMA T/Kuttaayee
waliin gaafa 20/06/2012 taasifame.

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qabu kaasu.111 Sodaan gama kanaan jiru immoo murtii mana murtii aadaa
firii dhabsiisuu danda’a kan jedhu dha. Dabalataan gareenis murtii mana
murtii aadaatiif iddoo kennuu dhiisuu danda’[Link] immoo Manni Murtii
Aadaa kaayyoo isaa galma akka hin geenye taasisuu danda’a.
Waliigalaatti, Manni Murtii Aadaa caasaa oliyyannoo mataa isaa qabaachuu
irratti garaagarummaan yoo jiraateyyuu muuxannoo biyya ambaa fi haala
qabatama jiru ilaaluun barbaachisaa dha. Akka fakkeenyaatti, muuxannoo
biyya Maalaawwii ilaaluun ni danda’ama. Yaadotni, keessattuu qorattoota
seenaa fi aadaa, ogeessota aadaa fi turiizimii fi Abbootii Gadaatiin
kennamanis Manni Murtii Aadaa caasaa oliyyannoo qabaachuu akka qabu
[Link], Manni Murtii Aadaa akka naannoo keenyaatti hundeeffamuuf
deemu caasaa oliyyannoo of danda’e sadarkaa Aanaatti qabaachuu akka
qabu dha.

3.6. MIRGA MURTII MANA MURTII AADAATIIN KENNAME

GARA MANA MURTII IDILEETTI DHIYEEFFACHUU
Hundeeffama Mana Murtii Aadaa ilaalchisee dhimmoota falmii kaasan
keessaa tokko murtii isaanii manni murtii idilee irra deebiin ilaaluu
danda’amoo hin danda’u kan jedhu dha. Dhimmoota kana ilaalchisees
muuxannoowwan biyyootaa kan sakatta’amee fi daataan qamolee adda addaa
irraa funaanamee jira. Biyya Zimbaabuwee keessatti murtiin mana murtii
aadaatiin kenname irraa qaamni komii qabu gara mana murtii idileetti
oliyyata fudhata. Murtiin Mana Murtii Aadaatiin kennamee jirus akka murtii
rikoordiitti hin ilaalamu. Kana jechuun, qaamni murtii kana irraa komii qabu
oliyyataan gara mana murtii idileetti yeroo fudhatu manni murtii oliyyata
ilaalu dhimmichi akka waan dura murtiin kennamee jiruutti hin ilaalu jechuu
dha. Dhimmicha akka haaraa mana murtii sanatti banameetti ilaala.
Biyya Maalaawiitti immoo murtii mana murtii aadaatiin kennamee jiru irraa
komii kan qabu oliyyata gara mana murtii aadaa oliyyata dhaga’uutti
fudhata. Garuu, dhuma irratti murtii manneen murtii aadaa kanaan kennaman
mirgi dhala namaa fi haqummaan uumamaa kan mulqan yoo ta’an mana
murtii idileen irra deebi’amee akka ilaalamuuf sirna diriirfatanii jiru. Biyya
Zaambiyaa keessatti immoo gareen murtii kennamee jiru irraa komii kan

Afgaaffiiwwan Obbo Jeeylaan Kadiir, Pirezidantii MMA Sinaanaa fi Obbo Geetaahuun

111

Baqqalaa, KTAS MMA Sinaanaa waliin gaafa 24/06/12 taasifame.

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qabu oliyyannoo isaa gara mana murtii idileetti fudhachuu ni danda’a. Manni
murtii idilee garuu, oliyyannoo kana ijoo seeraa qofaa akka ilaaluu qabu
seerri isaanii daangessee jira. Biyya Afrikaa Kibbaattis gareen murtii
kenname irraa qaamni komii qabu oliyyannoo gara mana murtii aanaa, mana
murtii aanaa gara mana murtii olaanaattii fi dhuma irratti gara mana murtii
waliigalaa oliyyannootti yookiin firiin dubbii dhimmicha gaaffii heeraa kan
kaasu yoo ta’e, gara mana murtii heeraatti fudhachuu ni danda’a.
Muuxannoowwan biyyoota armaan olii kana irraa hubachuun kan danda’amu
murtii mana murtii aadaatiin kennaman dhimmoota ofitti fuudhee
keessummeessu irratti garaagarummaa yoo qabaateyyuu akka waliigalaatti
garuu, carraa manni murtii idilee oliyyannoon ofitti fuudhee ilaalu jiraachuu
isaati.
Heera Mootummaa RDFI fi Heera naannoo Oromiyaa keessatti Manni
Murtii Aadaa akka hundeeffamu yookiin immoo beekamtiin akka kennamuuf
kaa’uun alatti hariiroon inni mana murtii idilee waliin qabaachuu qabu
ibsamee hin [Link], abbootiin dhimma hanga fedhii qabanitti
waldhabdee dhimmoota seera maatii fi seera dhuunfaatiin furmaataa
argachuu danda’an mana murtii aadaatiin furmaata argachuu akka qaban
mana murtii idilee cinaatti filannoo kaa’ee [Link] kana ilaalchisees
qaamni komii qabu eessatti oliyyata fudhachuu akka qabu waan ibsame hin
[Link] ilaalchisee ogeessonni aadaa fi seenaa, Abbootiin Gadaa fi
jaarsolee biyyaa; akkasumas, hooggantootni manneen murtii yaadota adda
addaa kennanii jiran haala armaan gadiitti xiinxalameera.
Murtii Mana Murtii Aadaatiin kennamee jiru mana murtii idileetiin
oliyyannoon ilaalamuu hin qabu yaada jedhu dha. Kanaafis, akka sababaatti
kan eeran kaayyoo hundeeffama mana murtii aadaa keessaa tokko hawaasni
naannoodhuma jirutti haqa akka argatan gochuu dabalataan aadaa saba sanaa
guddisuu dha. Hundeeffamni isaa ganda irraa ka’ee murtii kana irraa qaamni
oliyyata dhaga’us walumaan hundeeffamuu akka qabu kaasu. Qaamni
oliyyata dhaga’u of danda’ee mana murtii idilee irraa adda kan ta’e
hundaa’uu akka qabu dha.112Manni murtii idilee oliyyataan dhimmicha ilaala
taanaan aadummaan isaa hafuu danda’a jechuun sodaa jiru kaasu.113

112
Af-gaaffiiwwan Aadde Nagaasee Shifarraa, Ogeessa Misooma Sona Aadaa, Obbo
Amsaaluu Tolasaa Qorataa Seenaa fi Sirna Gadaa, Obbo Zarihun Baqqalaa, Qindeessaa
Garee Hojii Misoomaa A/T/G/W/Bahaa waliin gaafa 27/06/2012; Obboo Badriitamaan

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Qaamoleen biroo yaada kennaniin murtii manneen murtii aadaatiin kenname

carraa manni murtii idilee oliyyannoon ilaaluu qabu jiraachuu akka qabu
[Link] murtii idilee yeroo oliyyataan dhimmoota ilaalus akkuma
dhimmoota biroo osoo hin taane haala addaan ilaaluu akka qabu
[Link] yeroo gara mana murtii idileetti dhiyaatus dogongora
adeemsa kenniinsa murtii keessatti mul’ate qofaa irratti daanga’uu akka qabu
eeru.114Kanneen mirga namoomaa heera, seerota idila addunyaan biyyi
keenya malletteessitee fi qajeeltoowwan bu’uura haqaa sarban qofaa ilaaluu
akka qabu dha. Ulaagaan kunis qajeeltoo haqaa bu’uuraa kan akka mirgi
deebii dhiyeeffachuu, ragaa dhiyeeffachuu fi kkf kan mulqu yoo ta’e qofaa
ilaaluu akka qabutti daanga’uu qaba jedhu.115Kallattiin dhimmoota hunda
irratti oliyyannoon gara mana murtii idileetti fudhatama taanaan bu’a
qabeessummaa aadaa miidhuu danda’a.116Kanaaf, murtii manni murtii aadaa
kennee jiru oliyyataan manni murtii idilee ilaaluu akka qabu kaasu.
Akka waliigalaatti, muuxannoowwan biyyootaa armaan ol caqasaman
akkuma agarsiisuutti sadarkaan itti mana murtii idileetti dhiyaatu garaa
garummaa yoo qabaateyyuu, murtii mana murtii aadaatiin kennamee jiru
manni murtii idilee oliyyannoon ilaaluu akka qabu [Link], murtii mana

Umar, Pirezidaantii MMO Go/Gujii fi Obbo Sisaay Mul’ataa, Qindeessaa KTAS MMO
Go/Gujii waliin gaafa 17/06/12 waliin gaafa 17/06/12 taasifame.
113
Marii garee Obbo Dajanee Kabbadaa, Obbo Alamuu Kumalaa, Aadde Ayyalech
Maammoo, Ogeessota Waajjira Aadaa fi Turiizimii M/Amboo, waliin gaafa 19/06/2012;
Afgaaffiiwwan Obbo Sandaabaa Hordofaa, Ogeessa Waajjira Aadaa fi Turiizimii
A/T/Kuttaayee fi Obbo Caalaa Fayisaa, Dursaa Garee A/T/A/T/Kuttaayee, waliin gaafa
20/06/2011;Dr. Tashoomaa Egeree, Daarikteera Inistiitiyuutii Qorannoo Oromoo
Yunivarsiitii Jimmaa, waliin gaafa 24/06/2012; Obbo Hajiib Abbaa Jabal, B/b hoogganaa
A/T/M/Jimmaa, Aadde Hindiyaa Abbaa Foggee, Dursaa Garee Misooma Aadaa, waliin
gaafa 26/06/2012; Obbo Rattaa Immaa, B/b Waajjira A/T/A/Deedoo, Aadde Natsannet
Malaakuu, Ogeessa Misooma Aadaa fi Obbo Taaddasee Baatuu, Ogeessa Misooma
Turiizimii Aanaa Deedoo waliin gaafa 25/06/2012 taasifame.
114
Afgaaffiiwwan Obbo Guyyoo Waariyoo, I/A/P/MMWO waliin gaafa 16/08/2012; Obbo
Maatiyoos Yiggazuu, KTAS MMO G/L/Shawaa waliin gaafa 19/06/2012; Obbo Dirribaa
Olii, Abbaa Seeraa MMO G/Sh/Lixaa waliin gaafa 19/06/2012; Obbo Ismaa’eel Abbaa
Boor, B/b Prezidaantii MMO G/Jimmaa, waliin gaafa 24/06/2012 ; Obbo Kabbuu Mul’ataa,
Pirezedaantii MMA Amboo waliin gaafa 19/06/2012; Obbo Taarikuu Abbabaa, Pirezidaantii
MMA/T/Kuttaayee, fi Obbo Tasfaayee Guddisaa, Abbaa A/Dh/Yakkaa MMA T/Kuttaayee,
waliin gaafa 20/06/2012 taasifame.
115
Afgaaffiiwwan Obboo Badriitamaan Umar, Pirezidantii MMO Go/Gujii waliin gaafa 17/
06/12;Obbo Dhadacha Guuyyoo, Pirezidaantii MMA Liiban waliin gaafa 17/06/12; Obbo
Atilaabaachawu Aabbaabbuu, Pirezidaantii MMA O/Shaakisoo fi Obbo Diiqqaa Abdii,
Gaggeessaa KTAS MMA O/Shaakisoo waliin gaafa 19/06/12 taasifame.
116
Marii gareefi Afgaaffiiwwan, Olitti yaadannoo lak.97ffaa

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murtii aadaatiin kennamee jiru kanneen dogongora adeemsaa qabanii fi

qajeeltoo bu’uura haqaa faalleessan yoo ta’e qofa manni murtii idilee
oliyyannoon ofitti fuudhee ilaaluu qaba.

3.7. AANGOO MANA MURTII AADAA

Tumaan Heera RDFI Mana Murtii Aadaatiif ifatti haguuggii kenneefii jiru
kew.34 fi 78 dha. Keewwatni 34(5) fi 78(5) kaayyoon isaa daangaa aangoo
Mana Murtii Aadaa tarreessuudha moo dhimmoota falmiiwwaan dhimma
maatii fi gaa’ilaan wal qabatan hiikuuf sirna deemsa falmii seeraa idileen
alatti adeemsa filannoo biraa dhiyeessuu dha kan jedhu xiinxalamee adda
bahuun isaa aangoo Mana Murtii Aadaa tarreessuuf ykn akeekuuf
murteessaa dha.

Kutaa Heera RDFI kew.34’f mata dureen ykn maqeessi kenname ‘Mirga
Gaa’ilaa, Dhuunfaa fi Maatii’ jedha. Tumaa keewwata kanaa yoo ilaallu
dhiirrii fi dubartiin umurii gaa’ilaa seeraan kaa’ame irra gahaan
garaagarummaa gosaa, sabaa fi amantaa tokko malee wal fuudhanii maatii
hundeessuu akka danda’an,117 gaa’illi fedhii wal fuutotaa qofa irratti
hundaa’uun ijaaruu akka qabu, gaa’illi bu’uura hawaasummaa fi uumamaa
ta’uu isaatiin gama mootummaa fi hawaasaatiin eegumsi taasifamuufii akka
qabu kaa’a.118 Kanaan alatti, gaa’ilatti yeroo galanis ta’e gaa’ila keessatti,
akkasumas gaa’ila booddee yoo diiggaan gaa’ilaa kan jiru ta’e wal fuutootni
mirga wal qixa ta’e akka qaban ni kaa’a.119 Dabalataanis, gaa’ila bu’uura
amantaa ykn aadaatiin ijaaramaniif seerri beekamtii kennuuf akka tumamu
danda’us keewwatni kun ni kaa’a.120 Tumaa keewwata kana jalatti gaa’ilaaf
akka duudhaa hawaasummaatti, maatiif akka dhaabbata hawaasummaatti,
abbaa warraa, haadha warraa fi daa’immaniif immoo akka nama dhuunfaatti
mirgii fi eegumsi kennameefii jira. Jecha biraatin, duudhaa fi dhaabbileen
haawaasummaa akkasumas namoota dhuunfaa kunneeniin alatti dhaabbileen
ykn duudhaan hawaasummaa akkasumas namootni dhuunfaa biroo daangaa
xiyyeeffannaa keewwata kanaatiin ala dha.

117
Heera Mootummaa RDFI, Kwt.34(1)
118
Heera Mootummaa RDFI, Kwt. 34 (1)
119
Heera Mootummaa RDFI, Kwt. 34 (1)
120
Heera Mootummaa RDFI, Kwt. 34(4)

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Tumaan keewwata 34(5) wal dhabdeen sirna haqaa idilee keessatti bu’uura
seera dhuunfaa fi seera maatiitiin ilaalaman hanga fedhii wal falmitootaa
ta’eetti bu’uura seera amantaatiin ykn seera aadaatiin hiikamuu akka
danda’anii fi kanas Heerri kun dhorkee hin jiru jechuun ibsa.121 Tumaan
kew. 34(5) jalatti hammatame ilaalamuu kan qabu qixa kaayyoo waliigalaa
keewwata kanaa fi qixa dhaabbataa fi duudhaa hawaasummaa; akkasumas,
namoota dhuunfaa keewwata xiqqaa (1)-(4) caqasamaniitiin qofa tahuu qaba.
Tokkoon, tokkoo tumaalee keewwata kana keessatti hammataman irraa kan
hubatamu kaayyoon jalqabaa keewwata kanaa duudhaa fi dhaabbata
hawaasummaa kan ta’an gaa’ilaa fi maatiif akkasumas namoota dhuunfaa
dhaabbata kana keessatti hammataman abbaa warraa, haadha warraa fi
daa’immaniif beekamtii kennuu fi eegumsa gochuu dha. Yaadni keewwata
kana keessatti hammatame inni biraa dhimma gaa’ilaa, maatii, wal fuutotaa
fi daa’immaniin wal qabatee wal dhabbii uumamu furuuf adeemsa idilee fi
seera idileetiin alatti sirna hiikkaa wal diddaa filannoo dhiyeessuu dha.
Filannoon kunis amaluma wal dhabdee uumamu irraan kan ka’e seeraa fi
sirna seeraa idileen caalatti seera aadaa ykn seera amantaatin yoo ilaalaman
bu’a qabeessa taha amantaa jedhu irraa kan madde dha.

Dimshaashatti, tumaa Heera kanaa akka waliigalaattii fi sanada marii tumaa

Heera (constitutional minute)122 irraa akka hubatamuutti keewwatni
dhaabbataa fi duudhaa hawaasummaa akkasumas namoota dhuunfaa
dhaabbata kana keessatti hammatamaniif eegumsa malu kaa’uu fi wal
dhabdee uumameef hojiirra oolmaa seera aadaa fi seera amataa kaa’uun alatti
daangaa raawwatiinsa seera aadaa ykn seera amantaa kaa’uu miti.

Heerri RDFI keewwatni 78 waa’ee bilisummaa fi caasseeffama Manneen

Murtii Mootummaa Federaalaa fi Mootummaa Naannoo irratti kan
xiyyeefatee dha. Qaamni abbaa seerummaa bilisaawaa ta’e Heera kanaan
dhaabbachuu123, aangoon abbaa seerummaa inni olaanaan sadarkaa
Mootummaa Federaalaatti Mana Murtii Waliigalaatiif kennamuu124,
Mootummaan naannoolee Mana Murtii Waliigala, Olaanaa fi kan Sadarkaa
Jalqabaa hundeessuu akka qaban akeekuu akkasumas Manni Murtii Addaa

121
Heera Mootummaa RDFI, Kwt.34(5)
122
Sanada Marii Tumaa Heera RDFI jildii 3ffaa, sadaasa 8-13/1987 ALI, fuula 000024-
000038
123
Heera Mootummaa RDFI, Kwt.78(1).
124
Heera Mootummaa RDFI, Kwt.78(2).

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ykn kan Yeroo Manneen Murtii idilee ykn dhaabbilee biroo aangoon abbaa
seerummaa seeraan kennameef irraa kan aangoo abbaa seerummaa fudhatu
fi adeemsa abbaa seerummaa seeraan tumame hin hordofne hundeeffamuu
akka hin dandeenye tumee jira.125 Dhuma irrattis, keewwatni kun keewwata
xiqqaa (5) jalatti akkaataa tumaa Heera kew. 34(5)’tiin Manni Maree Bakka
Bu’oota Uummataa ykn Manni Maree Mootummaa Naannoo Mana Murtii
Aadaa ykn Mana Murtii Amantaa hundeessuu ykn dursa hundaa’ee kan
jiruuf beekamtii kennuu akka danda’u ibsa. Sanada marii tumaa Heera
mootummaa irraa akka hubatamutti yaadni ijoo kew.78(5) jalatti kaa’ame
wal dhabdee seera aadaa fi seera amantaatiin akka ilaalamaniif kew. 34(5)
akeekaman kunneen gama Mana Murtii kamiin hojiirra ooluu ykn ilaalamuu
qabu kan jedhu deebisuuf kan tumamee dha.126 Jecha biraatiin, keewwatni
kun waa’ee daangaa aangoo Mana Murtii Aadaa kan murteesse otuu hin
taane, falmiilee seera dhuunfaa fi seera maatiin ilaalamuu danda’an bu’uura
seera aadaatin akka ilaaluuf Mana Murtii Aadaa kan aangeessee fi Manni
Murtiii kun immoo qaama kamiin hundeeffamuu akka qabu ifatti kan kaa’ee
dha.

Waliigalaatti, tumaan Heeraa RDFI kew.34(5) fi 78(5) yaada daangaa

aangoo Mana Murtii Aadaa duguugee murteessee kan hin jirree ta’uu
xiinxala kanaan hubachuun ni danda’ama. Kanaaf, Manni Murtii Aadaa
dhimmoota akkamii irratti aangoo abbaa seerummaa qabaachuu akka
danda’u akka armaan gadiitti ibsamuuf yaalameera.

1ffaa falmii kallattiidhaan Mana Murtii Aadaatin akka ilaalamaniif Heera

Mootummaa kew.34 (5)tiin eeraman. Falmiiwwan seera dhuunfaa fi maatiin
fedhii wal falmitootaa giddugaleessa godhachuun dhiyaatan kanneen akka
falmii gaa’ilaa, qallabaa, guddistummaa, abbummaa fi dhaaltummaa ilaaluuf
manni murtii aadaa aangoo kan qabu dha.

2ffaa falmiiwwan Mana Murtii Aadaatiin ilaalamuu danda’an aangoo seera

tumuu Mana Maree Bakka Bu’oota Uummataa Mootummaa Naannoo
Oromiyaa ykn Caffeef kenname irraa kan maddu ta’a. Akkuma armaan dura
kaafne kaayyoon Kew.34 fi 78 aangoo Mana Murtii Aadaa duguuganii
tarreessuu otuu hin taane falmii gaa’ila fi maatii keessatti uumamu sirna

Heera Mootummaa RDFI, Kwt.78(4).

125

Sanada Marii Tumaa Heera RFDI jildii 5ffaa, Sadaasa 21-24/1987 ALI, Finfinnee,
126

FF 000043-000055

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seeraa idileen alatti akka ilaalamuuf deemsa filannoo kaa’uu dha. Jecha
biraatiin, Manni Murtii Aadaa falmii dhimma gaa’ilaa fi maatii waliin wal
qabatu qofa ilaaluu danda’a kan jedhu miti. Kanaaf, aangoon Mana Murtii
Aadaa gama Heeraatiin duguugamnee kaa’amee hanga hin jirreetti Caffeen
aangoo ofii qabu irratti hundaa’uun127 fedhii wal falmitootaa eeguu otuu hin
barbaachifne dhimmoota sadarkaa jalqabaatti ilaaluu danda’an aangessuu
danda’a. Muuxannoo biyyootaa irraa hubachuun kan danda’amu manni
murtii aadaa dhimmoota gaa’ilaa ala jiran illee ofitti fuudhee
keessummeessaa kan jiru ta’uu isaati. Muuxannoo biyya Zimbaabwee,
Afrikaa Kibbaa fi Maalaawwii fudhachuun ni danda’ama. Muuxannoon kun
kan agarsiisu, Manni Murtii Aadaa biyyoota kunneenii dhimma gaa’ilaa fi
maatiin alatti dhimmi lafaa, abbummaa qabeenyaa fi kaffaltii beenyaa hangi
isaa seeraan daanga’e ilaaluuf aangoo kan qabu ta’uu isaaniiti.

Xiinxala muuxannoo biyyoota hambaa fi bargaaffii irraa ka’uun Caffeen

Mootummaa Naannoo Oromiyaa fedhii wal falmitootaa mirkaneessuun otuu
hin barbaachifne falmii qabeenya socho’uus ta’e hin sochoone tilmaamni
isaa seeraan kaa’ame, falmii hidda fi damee mukaa ollaatti darbuu, falmii
dallaa fi mana haaromsuu, qabeenya bade lafa ormaa keessa seenanii ilaaluu,
falmii daandii irra deeman argachuu, falmii mirga abbaa qabeenyummaa gar-
malee fayyadamuu, falmii bishaan bokkaarratti ka’u fi falmii bishaan
lagaarratti ka’u akka ilaaluuf Mana Murtii Aadaa aangeessuu kan danda’u
ta’uu isaati.

3ffaa yakkaa ilaalchisee Manni Murtii Aadaa aangoo akkamii qabaachuu

danda’a kan jedhu qorannoo kanaan sakatta’[Link] yakkaa
Itoophiyaa kutaa 4.6.2 jalatti raawwii yakkaatiin wal qabatee hojiin itti
gaafatamummaa mirkaneessuu adeemsa idilee qofaan otuu hin taane
adeemsa al-idileetiinis filannoo dhiyeessee jira. Kunis faayidaa uummataa fi
mirga miidhamaa caalatti ni kabachiisa jedhamee yeroo amanameetti kan
raawwatamu dha.128Dabalataanis, sababoota himannaan yakkaa akka hin
hundeeffamne taasisanii fi gaalee ‘faayidaa uummataa’ jedhu hiikuuf akka
ulaagaatti kanneen imaammata kanaan tarreeffaman keessaa tokko yakkichi
hangam cimaa ta’uus, wal dhabbiin miidhamaa fi himatamaa gidduutti
uumame yakkichaaf ka’umsa ta’e gama adeemsa bulciinsa haqaa idileen

Heera Mootummaa Naannoo Oromiyaa, Kwt.49

127

Imaammata Haqa Yakkaa Mootummaa Federaalaa Bara 2003 Bahe, kutaa [Link] (2).
128

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caalatti gama seeraa fi dhaabbilee aadaatiin furmaata waarawaa kan

agarsiisu yoo ta’e dha jechuun tumeera.129 Tumaaleen Imaammata yakkaa
kun kan agarsiisan bu’uura seera aadaa fi dhaabbilee aadaatiin falmiiwwan
yakkaatiif furmaatni kennamuu akka qabu dha.

Seera Deemsa Falmii Yakkaa Itiyoophiyaa bara 1954 ALI tumameen

haalawwan jalqabbii deemsa haqa yakkan bakka sadiitti qooduun
kaa’a.130Kunis yakka eeruu, iyyannoo dhuunfaa fi yakka harkaaf
[Link] harkaaf harkaa gosa yakkaa eeruudhaan ykn iyyannoo
dhuunfaadhaan dhiyaatan tahuu dandaa’u. Yakkootni iyyannooo
dhuunfaadhaan akka dhiyaatan Seera Yakkaa kutaa addaa keessatti yeroo
ibsamee jirutti yakkoota kunneen ilaalchisee miidhamaa dhuunfaan ykn
bakka bu’aan isaa iyyata komii dhiyeessu malee kan hin himachiifne dha.131
Tumaa kana irraa kan hubatamu yakkoota kunneen ilaalchisee miidhamaa fi
shakkamaan dhimma isaanii araaraan xumuran yeroo ta’eetti Abbaan
Alangaa himannaa hundeessuu akka hin dandeenyee dha. Tumaa Seeraa
kana irraa ka’uun fedhii wal falmitootaa irratti hundaa’uudhaan Manni
Murtii Aadaa yakkoota iyyannoo dhuunfaadhaan dhiyaatan bifa jaarsummaa
qofaan akka ilaaluuf aangeessuun kan danda’aamu dha.132Muuxannoon
biyyoota akka Zimbaabuwee, Afriikaa Kibbaa fi Maalawwiis kanuma
agarsiisa.

129
Imaammata Haqa Yakkaa Mootummaa Federaalaa Bara 2003 Bahe, kutaa 3.12(c)
130
Seera Deemsa Falmii Yakkaa Itoophiyaa, 1956, Kwt.11-21
131
Seera Yakkaa Mootummaa RDFI, 1996, Kwt.212
132
Wixineen Seera Deemsa Falmii Yakkaa Mootummaa RDFI Haaraan yakkoota iyyannoo
dhuunfaadhaan dhiyaataniin alatti kanneen eeruudhaan dhiyaatan illee gama dhaabbilee
aadaatin xumuramuu akka danda’an ni kaa’a. Wixineen kun ragga’ee jiraachuu dhiisuu
isaatiin yeroo ammaatti yakkootuma iyyannoo dhuunfaa dhiyaatan qofa Manni Murtii Aadaa
Naannoo Oromiyaa ilaaluu qaba.

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4. YAADOTA GUDUUNFAA FI FURMAATAA

4.1. YAADOTA GUDUUNFAA

Heera RDFI fi Naannoo Oromiyaatiin Manni Maree Bakka Bu’oota
Uummataa ykn Caffeen Mootummaa Naannoo Oromiyaa Mana Murtii
Aadaa hundeessuuf ykn beekamtii kennuu akka danda’u ifatti
[Link] ta’u malee, sadarkaa Naannoo Oromiyaatti Manni Murtii
Aadaa sababa qaamni ykn seektarri mootummaa barbaachisummaa isaatti
amanee akka hundeeffamuuf dhabamuu fi dogongoraan hojii Manni Murtii
Hawaasummaa Gandaa fi Manni Murtii Aadaa akka tokkootti fudhachuu
dha.
Mana Murtii Aadaa yeroo ammaatti hundeessuuf carraalee fi sodaawwan
jiran qorannoo kanaan adda bahaaniiru. Hojimaatni wal dhabdee namoota
gidduutti dhalatu bu’uura aadaa naannootiin hiikuun qabatamaan hawaasa
keessa jiraachuu, yeroo ammaatti aadaa ofiitti fayyadamuuf fedhii fi
kaka’uumsi uummata bira jiraachuu, jaarsoliin ykn Abbootiin Gadaa wal
dhabbii hiikuuf dandeettii fi miira tajaajiltummaa qaban jiraachuu, seerrii fi
sirni aadaa gahaa tahe hawaasa keesssa jiraachuun, seerotaa fi sirna aadaa
duubatti hafoo ta’an haquuf ykn fooyyeessuuf sirni aadaa dandeessisu
jiraachuu, duudhaan murtii jaarsolii biyyaa ykn abbootii gadaa raawwachuu
hawaasa keessa jiraachuunii fi tajaajila haqaa bu’uura aadaatiin kennamu
biratti haqni argamuun hundeeffama Mana Murtii Aadaatiif akka carraatti
adda baheera. Sadarkaan itti fayyadamnii fi faca’iinsi aadaa wal fakkaataa
ta’uu dhabuu, darbee darbee jaarsolii biyyaa fi Abbootii Gadaa biratti
rakkoon naamusa jiraachuu fi kutaa hawaasaa tokko tokko biratti itti
fayyadama seera aadaatiif fedhiin gadi aanaa tahuun akka sodaatti adda
bahee jira.
Gama wal qixxummaa fi hirmaachisummaa dubartootaatiin hojmaataa fi
ilaalcha hawaasaa malee Sirna Gadaa keessatti duudhaan dubartii miidhuu fi
xiqqeessu kan hin jirre tahuu qorannoon kun agarsiisee jira. Haa ta’u malee,
rakkoon kun adeemsaa fi Sirna Gadaatiin fooyyeessuun tajaajila abbaa
seerummaa sirna aadaatiin kennamu keessatti wal qixxummaa fi
hirmaachisummaa dubartootaa mirkaneessuun kan danda’amu tahuun
hubatameera.

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Gurmaa’insaa fi caaseeffama Mana Murtii Aadaa ilaalchisee filannoon

abbootii seeraa kallattiidhaan jiraattoota gandaatiin ta’uu akka qabu
[Link] abbotii seeraa Mana Murtii Aadaa biratti namni tokko kan
barreessuu fi dubbisuu danda’u dabalataan jiraachuu qaba. Gaheen nama
kanaas hojiilee teeknikaa kan akka dhaddacha qindeessuu, oolmaa fi murtii
dhaddachaa barreessuu fi kanneen biroo qofa irratti daanga’uu qaba.
Abbootiin seeraa Mana Murtii Aadaatiif kaffaltiin kan barbaachisuu fi barri
hojii isaanii daanga’uun caalatti bu’a-qabeessa kan taasisu ta’a. Daangaan
yeroo tajaajilaa kaa’ame xumuramuun dura rakkoo naamusaa, rakkoo fayyaa
fi umuriin akkasumas dandeettii fi gahuumsa barbaachisu dhabuun aangoo
irraa gaggeeffamuuf akka sababaatti seeraan tumamuu akka qabu
muuxannoon biyyoota garagaraa fi fedhiin qaamolee daataan irraa
funaanamee ni agarsiisa.
Aangoo Mana Murtii Aadaa haalawwan adda addaa irraa kan maddu ta’a.
Fedhii wal falmitootaa irratti hundaa’uun dhimmoota gaa’ilaa fi maatii,
fedhii wal falmitootaa irratti hundaa’uu otuu hin barbaachisiin gama Caffee
Mootummaa Naannoo Oromiyaa kallattiidhaan seera bahuu fi dhimma
yakkaa iyyannoo dhuunfaan dhiyaatu irratti aangoo sadarkaa jalqabaa kan
qabaatu ta’a. Dhimmoota yakkaan ala kanneen biroo irratti manni murtii
aadaa murtii dirqisiisoo kan kennu dha.

Sirna oliyyannoo ilaalchisee Manni Murtii Aadaa caasaa oliyyannoo

dhagahu kan mataa isaa qabaachuu akka qabuu fi qaamni komii qabu gara
mana murtii idileetti oliyyachuu akka qabu muuxannoon biyyoota biroo fi
daataan funaaname kan agarsiisuu dha. Gama tokkoon tajaajilli abbaa
seerummaa Mana Murtii Aadaatti kennamu aadaa qofa irratti hundaa’uu
isaatiin, gama biraatin immoo manni murtii idilee aadaa irratti otuu hin taane
seera qaama mootummaatiin tumamee labsame qofa irratti hundaa’uun
tajaajila kan kennu ta’uu isaatiin oliyyannoon Mana Murtii Aadaa irraa gara
mana murtii idileetti taassifamu sababoota seeraan ifatti kaa’aman qofa irratti
hundaa’uu qaba.

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4.2. YAADOTA FURMAATAA

1. Carraawwaan hundeeffama Mana Murtii Aadaa jedhamuun adda
baafaman cimanii akka ittii fufanii fi sodaawwan adda bahaan hir’isuuf
Gumiin Abbootii Gadaa sadarkaa mara irratti argamuu fi Biiroo Aadaa fi
Turizimii Oromiyaa miidiyaa fi maloota birootti gargaaramuun irratti
hojjachuu qabu.
2. Gurmaa’insi Abbootii Seeraa Mana Murtii Aadaa wal qixxummaa fi
hirmaachisummaa saalaa fi amantaa bifa mirkaneesseen ulaagaa umrii,
naamuusaa fi jiraataa gandaa jedhu haammateen kallattiidhaan jiraattota
gandaatiin gaggeeffamuu qaba. Koreen filannoo kana qindeessu
miseensonni isaa Hooggansa Mana Murtii Aanaa, Bulchaa Gandaa fi Af-
yaa’ii Mana Maree Gandaa kan hammate ta’uu qaba. Manni Murtiis
qindeessaa koree kanaa ta’uu qaba.
3. Abbootiin seeraa baay’inaan sadii ta’anii dabalataan qindeessaa
dhaddachaa nama barreessuu fi dubbisuu danda’uu fi jiraataa gandaa kan
ta’e dabalamuu qaba. Namni kun murtii jaarsoliin ykn Abbootiin Gadaa
kennan barreessuu, dhaddacha qindeessuu fi hojiilee teeknikaa biroo
mijeessuun alatti murtii irratti hirmaachuu hin qabu.
4. Ammatti itti waamamni Mana Murtii Aadaa Mana Murtii Aanaatiif tahee
hojiilee gabaasa dhaga’uu, gamaggama raawwii hojii gaggeessuu, rakkoo
naamusaa qorachuu fi tarkaanfii fudhachuu gahee Mana Murtii Aanaa
tahuun kennamuu qaba. Gostii naamusaa fi tarkaanfiin naamusaa seeraan
kan bahu ta’a. Boodarra garuu, Manni Murtii Aadaa of danda’uun itti
waamamni isaa Gumii Abbootii Gadaatiif ta’uu qaba.
5. Itti gaafatamummaa abbootii seeraa mirkaneessuuf abbootii seeraa Mana
Murtii Aadaa irratti aangoon himannaa ykn iyyata komii dhiyeessuu
Bulchaa Gandaa ykn miidhamaa dhuunfaatiif kennamuu qaba. Haallii fi
daangaan yeroo komiin itti dhiyaatu seeraan kan tarraa’u ta’a.

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6. Dhiibbaa gama diinagdeetiin Abbootii Seeraa Aadaa irra gahu

xiqqeessuu, itti gaafatamummaa mirkaneessuu, miira tajaajiltummaa
akka horatan gochuu fi namoota ciccimoo horachuuf kaffaltiin Abbootii
Seeraa Aadaatiif bifa jajjabeessituutiin kaffalamuu qaba.
7. Barri tajaajila abbootii seeraa waggaa 4’tti daanga’ee abbootiin seeraa
miira tajaajiltummaa qaban, naamusa gaarii agarsiisan, umriin isaanii
hojii sirnaan akka hojjatan dandeessisu irra deebiin filatamuu danda’u.
8. Abbootii seeraa Mana Murtii Aadaa aadaa duudhaa naannoo irratti
hundaa’uun murtii kennaniif akka itti hin gaafatamneef seeraan eegumsi
kennuufii qaba.
9. Aangoo Mana Murtii Aadaa bu’uura sadii irratti hundaa’uun
kennamuufii mala.
i. Inni jalqabaa, fedhii wal falmitootaa irratti hundaa’uun wal dhabdee
gaa’ilaa fi maatii waliin wal qabatan kan akka falmii diiggaa gaa’ilaa,
qooddaa qabeenya gaa’ilaa keessatti argame, qallabaa, guddistummaa,
abbummaa fi falmii dhaalaati.
ii. Inni lammataa, fedhii wal falmitootaa irratti hundaa’uu otuu hin
barbaachisiin gama Caffee Mootummaa Naannoo Oromiyaa
kallattiidhaan kan aangeeffamu. Kunis dhimmoota falmii qabeenya
socho’uus ta’e hin sochoone tilmaamni isaa seeraan kaa’ame, falmii
hidda fi damee mukaa ollaatti darbuu, falmii dallaa fi mana
haaromsuu, qabeenya bade lafa ormaa keessa seenanii ilaaluu, falmii
daandii irra deeman argachuu, falmii mirga abbaa qabeenyummaa gar-
malee fayyadamuu, falmii bishaan bokkaarratti ka’u fi falmii bishaan
lagaarratti ka’u dha.
iii. Inni Sadaffaa, falmiiwwan yakkaa iyyannoo dhuunfaan dhiyaatan.
Yakka iyyannoo dhuunfaan dhiyaatu ilaalchisee aangoon Mana Murtii
Aadaa wal falmitoota walitti araarsuu qofa. Bakka wal falmitoota

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walitti araarsuu hin dandeenyeetti dhimmichi kallattiin gama sirna

idileetiin kan xumuramu taha. Qabiyyeen murtii araaraa beenyaa
dabalachuu danda’a. Murtiin araaraa murtii dhumaa ta’a.
10. Manni Murtii Aadaa akka naannoo keenyaatti hundeeffamuuf deemu
caasaa oliyyannoo Mana Murtii Aadaa Oliyyannoo sadarkaa aanaatti
qabaachuu qaba. Namni abbaa seeraa Mana Murtii Aadaa oliyyannoo
dhaga’uu kan filatamu kallattiidhaan Yaa’ii Abbootii Seeraa Mana Murtii
Aadaa sadarkaa gandaa tiin ta’uu qaba. Abbootiin seeraa kunneen yaa’ii
kanaan eeranii kaadhimamaan harka caalmaan filatame abbaa seeraa
Mana Murtii Aadaa oliyyannoo dhagahuu tahuun ramadama. Raawwiin
isaa seeraan kan bahu ta’a.
11. Murtii Mana Murtii Aadaa Oliyyannoo dhagahuun kennamee jiru
dogongora adeemsaa qabanii fi kanneen qajeeltoo bu’uura haqaa
faalleessan yoo ta’e qofa Manni Murtii Olaanaa oliyyannoon ofitti
fuudhee ilaaluu qaba. Qabiyyeen dogongora adeemsa seeraa fi qajeeltoo
bu’uura haqaa seeraan ifatti kan tarraa’ee ibsamu taha.
12. Manni Murtii Aadaa Murtii kenne kan ofii isaatii kan raawwachiisu ta’e
kanaan wal qabatee tarkaanfilee fudhatamuu malu seeraan kan bahu ta’a.

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List of Articles, Case Analysis and Reflections Published on the First

Ten Issues of Oromia Law Journal

No Article Title

Volume &
Contribut

Author/s

Publicati
ion Type

Number

on year
1 Gaa’ilaafi Gaa’ilaan Ala Akka Dhirsaa fi Niitiitti Article 1(1) Jemal Kumbi 2004/
Waliin Jiraachuu Adda Baasuu Keessatti Yeroo 2012
Waraqaan Ragaa Gaa’ilaa Hin Jirre Rakkoolee
Qabatamaan Mudatan

Corresponding Translation:

Distinguishing Marriage from Irregular Union:

Some Practical Challenges in Absence of Marriage
Certificate
2 The Degree of Court’s Control on Arbitration Article 1(1) Birhanu Beyene 2004/
under the Ethiopian Law: Is It to the Right 2012
Amount

3 Madaallii Raawwii Hojii Abbootii Seeraa Oromiyaa: Article 1(1) Teferi Bekele 2004/
Barbaachisummaa fi Sirna Raawwii Isaa 2012

Corresponding Translation:

Judges’ Performance Evaluation in the State of

Oromia: The Need and the How
4 Mediating Criminal Matters under Ethiopian Article 1(1) Jetu Edosa 2004/
Criminal Justice System: The Prospect of 2012
Restorative Justice

5 Sadarkaa Mirkaneessa Ragaa Dhimma Case 1(1) Milkii Mekuria 2004/

Yakkaa:Yaadrimeewwanii fi Xiinxala Dhimmaa Analysis 2012

Corresponding Translation:

Standard of Proof in Criminal Cases: The Concepts

and Case Analysis
6 Oromia Justice Sector Professionals Training and Reflection 1(1) Milkii Mekuria 2004/
Legal Research Institute: Major Activities and 2012
Achievements

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7 The Place of Environmental Protection in the Article 2(2) Dejene Girma 2005/
Growth and Transformation Plan of the Federal (PhD) 2013
Democratic Republic of Ethiopia

8 Derivation of Rights: Affording Protection to Article 2(2) Amsalu Darge 2005/

Latent Socio-economic Rights in the FDRE 20013
Constitution
9 Bu’a qabeessummaa Rifoormiiwwan Manneen Article 2(2) Teferi Bekele 2005/
Murtii Oromiyaa:Kallattii Si’oomina Abbaa 2013
Seerummaatiin Yoo Madaalamu

Corresponding Translation:

Assessing the Effectiveness of Judicial Reforms

from the Perspective of Efficiency: The Case of
the State of Oromia
10 Cassation Review of Arbitral Awards: Does the Article 2(2) Birhanu Beyene 2005/
Law Authorize It? 2013
11 Determination of Personal and Common Property Article 2(2) Silashi Bedasie 2005/
During Dissolution of Marriage under Ethiopian 2013
Law: An Overview of the Law and Practice
12 Perspectives on Common Property Regimes in Article 2(2) Jetu Edosa 2005/
Ethiopia: A Critical Reflection on Communal Land 2013
Holding Rights in Borana Oromo Pastoralists
Context

13 Federalism in Ethiopia and Foreign Relations: Article 3(1) Tesfaye Assefa 2006/2
Regional State Diplomacy 014
14 Dagannoon Nama Ajjeesuu Ilaalchisee Firiiwwan Article 3(1) Tolosa Dame 2006/
Dubbii Seerichaa Irratti Hundaa’uun Hojjechuun 2014
Walqabatee Rakkoowwan Qabatamaan Mul’atan

Corresponding Translation:
Negligent Homicide: Law and Practice
15 Bigamous Marriage and the Division of Common Article 3(1) Jetu Edosa 2006/2
Property under the Ethiopian Law: Regulatory 014
Challenges and Options
16 The Chance to Improve the System of EIA in Article 3(1) Dr. Dejene Girma 2006/2
Ethiopia: A Look at the New Investment 014
Proclamation

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17 Reforming Corporate Governance in Ethiopia: Article 3(1) Hussein Ahmed 2006/

Appraisal of Competing Approaches 2014
18 A Human Rights-based Approach to Counteract Article 3(1) Bahar Jibriel 2006/
Trafficking in Women: The Case of Ethiopia 2014
19 Same Sex Marriage: Nigeria at the Middle of Article 3(1) Dr.O. A Odiase- 2006/
Western Politics Alegimenlen & 20014
[Link]

20 Old Wine in New Bottles: Bridging the Peripheral Article 4(1) Zelalem Tesfaye 2007/
Gadaa Rule to the Mainstream Constitutional 2015
Order of the 21St C. Ethiopia
21 Qabiyyee Lafaa Faayidaa Uummataatiif Gadi- Article 4(1) Alemayehu W. 2007/
Lakkisiisuun Wal-qabatanii Rakkoowwan Jiran: 2015
Haala Qabatamaa Naannoo Oromiyaa

Corresponding translation
Expropriation in the State of Oromia: Some
Challenges
22 The Legal Regime of Corruption in Ethiopia: An Article 4 (1) Berihun Adugna 2007/
Assessment from International 2015
Law Perspective
23 Ethiopia’s Accession to the World Trade Article 4(1) Hussein Tura 2007/
Organisation: Lessons from Acceded 2015
Least Developing Countries
24 The Criminal Responsibility of a Person Who Article 4(1) Habtamu Bulti 2007/
Owns a Vehicle Apprehended Transporting Illegal 2015
Coffee
25 Yaadrimee Kasaaraa Al-Kallattii fi Raawwii Isaa: Article 4(1) Gemechis Dug. 2007/
Sirna Seeraa Itoophiyaa Keessatti 2015

26 All about Words on the Procedure of Case 4(1) Desalegn Birhanu 2007/
Constitutional Interpretation in Ethiopia: comment 2015
A Comment on Melaku Fanta’s Case

27 Criminal Adjudication by State Courts under the Article 5(1) Abdi Gurmesa 2008/
FDRE Constitution: The Quest for 2016
Compartmentalization of Jurisdiction
28 Human Rights Protection under the FDRE and the Article 5(1) Teferi Bekele 2008/
Oromia Constitutions: A Comparative Study 2016
29 Hariiroo Hojii fi Sirna Hiikkaa Waldhabbii Falmii Article 5(1) Milkii Mekuria 2008/2
Hojii Keessatti Rakkoolee Mul’atan Getachew Feyisa 016
Ayana Tolina

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Corresponding translation
Employment Relationship and Labor Disputes in
the State of Oromia: The Challenges
30 The Right to Counsel of Children in Conflict with Article 5(1) Milkii Mekuria 2008/
the Law: Case Study in Adama 2016

31 Reforming the Ethiopian Electoral System: Looking Article 6(1) G/meskel Hailu 2009/
for the Best Alternative 2017
32 Daldala Seeraa Alaa To’achuu: Rakkoowwan Article 6(1) Habtamu Bulti 2009/
Seeraafi Hojimaataa Qaamolee Haqaa Naannoo Abduselam Abe 2017
Oromiyaa Keessatti Mul’atan

Corresponding translation
Unlawful Trade Practices in the State of Oromia:
Law and the Practice
33 Voluntary Interest Arbitration in the Ethiopian Article 6(1) Birhanu Beyene 2009/
Labor Proclamation: The Problems in Its Design 2017
and the Way to Fix Them
34 Yakkoota Ulfa Irratti Raawwataman: Xiinxala Article 6(1) Muluken Kasahun 2009/
Seeraafi Raawwii Seera Yakkaa RDFI 2017

Corresponding Translation
Pregnancy Crimes: Analysis of Law and Practice
35 Ethiopian Witness Protection System: Comparative Article 6(1) Wekgari Dulume 2009/
Analysis with UNHCHR and Good Practices of 2017
Witness Protection Report
36 Producing in Compliance with Environmental Reflection 6(1) Mohammed I. 2009/
Obligation: Case of Bedele Brewery 2017

37 The Relationship between the Federal and Article 7(1) Muluken K. 2010/
Regional States’ Constitutional Review System in 2018
Ethiopia: The Case of Oromia Regional State
38 Allocation of Costs and Fees of Civil Litigation in Article 7(1) Kahsay Gidey 2010/
Federal Supreme Court Cassation Division: ‘Does 2018
One Approach Really Fit All’?
39 Kenninsaafi Barreessa Murtii Manneen Murtii Article 7(1) Teferi Bekele 2010/
Oromiyaa: Seeraafi Hojimaata Angessa Eticha 2018
Corresponding Translation:
Judgment Rendering and Writing in Oromia
Courts: Law and Practice
40 The Share of Women during Succession under Article 7(1) Mohammed Ib. 2010/
State Laws and Sharia Laws: Comparative Study 2018

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41 Land Governance in Ethiopia: Towards Evaluating Article 7(1) Dr. Daniel B.

Global Trends Adisu Kasa
42 Inistiitiyuutii Leenjii Ogeessota Qaamolee Haqaafi Reflection 7(1) 2010/
Qo’annoo Seeraa Oromiyaa: Hojiiwwan Gurguddoo 2018
Hanga Yoonaatti Hojjete

Corresponding translation:
Major Accomplishments of Oromia Justice Sector
Professionals Training and Legal Research Institute

43 Birth-Defects of A Constitution And Its Impacts on Article 8(1) Dr. Aberra D. 2011/
Outcome: Reflection on Ethiopian Constitution- 2019
Making Experience
44 The Funding of Political Parties in Ethiopia: A Article 8(1) G/meskel Hailu 2011/
Review of Problems 2019
45 Making Investment Work for Sustainable Article 8(1) Abiyot Moges 2011/
Development: A Pressing Need to Integrate 2019
Sustainable Development into Ethiopian
Investment Law
46 To’annoo Dambiilee fi Qajeelfamoota Aangoo Article 8(1) Teferi Bekele 2011/
Bakka Bu’insaan Ba’anii: Haala Qabatamaa Wekgari Dulume 2019
Oromiyaa

Corresponding Translation
Controlling Regulations and Directives Enacted by
Delegate Power: The Case of Oromia
47 Kenniinsa Korooraa fi Dhiifama Sirreefamtoota Article 8(1) Getachew Feyisa 2011/
seeraa Naannoo Oromiyaa: Seeraafi Hojimaata Abduselam Abe 2019

Corresponding translation
Parole and Pardon Granting in Oromia Regional
State: Law and Practice

48 Registration of Vital Events in Ethiopia: Gaps in Article 9(1) Serkalem Eshetie 2012/
the Laws on Registration of Marriage and Its 2020
Dissolution
49 The Emergence of Precedent over Precedent and Article 9(1) Fedesa Mengesha 2012/
Its Potential Conflict with the Principle of Self-rule 2020
in Ethiopian Judicial Federalism: The Case of
Oromia Courts
50 A Critical Assessment on Provisions of the Federal Article 9(1) Habib Jemal 2012/
Constitution of Ethiopia with Regard to Federal- 2020
Regional Governments Relationship on Land Law

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51 Review of Final Criminal Judgements in Ethiopia Article 9(1) Tesfaye Boresa 2012/
and the Quest for Remedies 2020
52 The Place of Multiparty Commercial Arbitration Article 9(1) Alemu Balcha 2012/
under Ethiopian Arbitration Law 2020
53 Bu’a qabeessummaa Mana Murtii Hawaasummaa Article 9(1) Azzanee E. 2012/
Gandaa Mootummaa Naannoo Oromiyaa & 2020
Abdi T.
Corresponding translation
The Effectiveness of Kebele Social Courts : The
Case of Oromia

54 Oath in Oromia Courtrooms: A Critical Article 10(1) Adugna B. 2013/

Discourse Analysis 2021
55 The Quest for Eternal Clauses in the Article 10(1) Solomon E 2013/
Ethiopian Constitutional and Democratic 2021
Reforms
56 Communal Land Tenure System in Ethiopia Article 10(1) Nigatu B 2013/
and Its Congruency with the FDRE 2011
Constitution
57 Contractual Acquisition and Transfer of Article 10(1) Kumala F 2013/
Immovable Property Ownership System under 2021
Ethiopian Law
58 Revitilizing Intellectual Property Right Article 10(1) Abiyot M 2013/
Protection for Traditional Knowledge and 2021
Cultural Expression in Ethiopia: A Lesson from
Kenya
59 Hundeeffama Mana Murtii Aadaa Naannoo Article 10(1) Azane E 2013/
Oromiyaa & 2021
Abdi T
Corresponding Translation
Establishment of Customary Courts in Oromia

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Ergama, Mul’ataa fi Duudhaalee Inistiitiyuutii Leenjii Ogeessota

Qaamolee Haqaa fi Qo’annoo Seeraa Oromiyaa

Ergama

Leenjii hojiin duraa fi hojiirraa mala leenjii hammayawwaa fayyadamuun

kennuun qaamolee haqaa ogeessota gahuumsa fi naamusa ogummaa olaanaa
qabaniin guutuu, qorannoo fi qo’annoo seeraa rakkoo hiikuu danda’u, mala
qorannoo seeraa fi kanneen biroo fayyadamuun gaggeessuun, tajaajila gorsaa
seeraa fedhi irratti hunda’ee kennuun itti fufiinsaan fooyya’iinsa sirna haqaa
fi seeraa naannichaatiif gumaacha taasisuudha.

Mul’ata

Bara 2022’tti hojii leenjii, qorannoo fi gorsa seeraatiin giddugala gahumsa

ogummaa seeraa ta’uudhaan akka biyyatti filatamaa, akka Bahaa Afriikaatti
dorgomaa fi sadarkaa ardii Afriikaatti beekamaa ta’uu dha.

Duudhaalee Ijoo

 Gahumsa
 Kalaqummaa
 Ogummaa’uu
 Fedhii maamila giddu-galeessa godhachuu
 Iftoomina
 Dhaqqabamummaa
 Qulqullina

________________________________________________________

Teessoo:

Tel:+251 22 110 05 15 Website:[Link]

Fax:+251 22 111 90 03 Email: ilqso@[Link]
[Link]
f:Oromia Justice Sectors Professionals Training and Legal Research Institute
Adama, Oromia, Ethiopia

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Vision, Mission and Core Values of Oromia Justice Sector Professionals

Training and Legal Research Institute

Vission

To contribute for continuous justice and legal reform of the region by

delivering pre-service and in-service training so as to fill the justice system
with competent and ethical professionals; by conducting problem solving
doctrinal and non-doctrinal legal research; and by giving need based
consultancy service on law.

Mission

To be center of excellencein legal training, legal research and legal

consultancy services;and become the best center in Ethiopia, competent in
East Africa and famous in African Continent by the year2032.

Core Values

 Excellence
 Innovativeness
 Professionalism
 Customer centric
 Transparency
 Accessibility
 Quality

_____________________________________________________________

Address:

Tel: +251 22 110 05 15 Website:[Link]

Fax:+251 22 111 90 03 Email: ilqso@[Link]
[Link]
f:Oromia Justice Sectors Professionals Training and Legal Research Institute
Adama, Oromia, Ethiopia
Submission Guidelines

213