Haramaya Law Review

Crystallizing The Right to Development Discourse Into The Ethiopian Human Rights System: Towards a Full-belly Free Person

Negese Gela Weyessa — 2023-10-08

The FDRE Constitution recognizes the right to development. In so doing, it integrates “development” and “human rights”. Employing doctrinal legal research method and guided by an interpretivist paradigm, the article appraises the status of the discourse on the right to development in the Ethiopian Human Rights System from the perspective of the United Nations Declaration on the Right to Development (DRD), Vienna Declaration and Program of Action (VDPA) and the Banjul Charter. It relies on primary sources such as the FDRE Constitution, the DRD, the VDPA and the Banjul Charter. It also uses relevant literatures as secondary sources. The finding indicates that even though the Constitution recognizes the right to development and some policy steps were undertaken for its realization, the discourse on this right is not adequately crystallized into the country’s human rights system as compared to the degree of the depth and breadth it gained under the DRD and in the African Human Rights System. As such, this right has not been conceptualized and put into practice in a way that enable individuals both to fill their belly and to be free to live with dignity. Rather, the human rights system of the country has been predominantly in a “full-belly thesis” or “Lee thesis” condition. It is recommended that re-conceptualizing this right in a composite manner that embraces civil, political, economic, social, cultural and environmental rights altogether and respecting, protecting and fulfilling it in practice is essential to enable the Ethiopian People to live a life of dignity.

Change of Circumstances Under Ethiopian Contract Laws: A Comparative Analysis With The Approaches of Other Jurisdictions

Wakgari Kabeta Djigsa — 2023-10-08

The famous legal maxim- pacta sunt servanda represents the principle of the binding force of a contract, which dictates that the contracting parties are fully bound by the terms and conditions of their contract. In most jurisdictions, less controversial exceptions to the principle of the binding force of a contract have been allowed, such as where the performance of the obligation by a party becomes impossible because of objective circumstances. However, there are ongoing debates as to the measures to be taken where the unforeseen change of circumstances only renders the performance by a party more onerous or cumbersome without making it objectively impossible. This article seeks to examine the varying approaches that the Ethiopian legal system and some selected foreign jurisdictions have adopted to address the controversy. Drawn on comparative doctrinal research methodology, it finds, among others, that the Ethiopian laws unqualifiedly subscribe to the classic thinking of strict enforcements of contracts. With this, the law implies that the effects of a change of circumstances should be regulated by the contracting parties and not by the courts.

Perspective on Permanent Establishment: Appraisal of Artificial Avoidance of Permanent Establishment Status Under the Ethiopian Income Tax system

Alemu Balcha Adugna — 2023-10-08

The allocation of taxing rights between states concerning business profits of Multinational Enterprises (MNEs) is a very complex activity. The central notion of the allocation rules is that the host state is competent to impose an income tax on the profits of non-resident enterprises if and only if the concerned enterprises have the Permanent Establishment (PE). However, owing to the gaps in the definition of PE as envisaged under bilateral double taxation agreements and national tax laws, the artificial avoidance of PE status has become an international agenda. In response to this, the OECD and G-20 countries have adopted 15 points action plans to address Base Erosion and Profit Shifting (BEPS) and Action Plan 7 has laid out a path to prevent the artificial avoidance of PE status. Coming to Ethiopia, the way the definition of PE is articulated has room for MNEs to artificially avoid PE status, which results in the loss of revenue for the government. The aim of this article is to examine the room for artificial avoidance of PE status under the Ethiopian income tax system and explores opportunities for further regulation. To this end, it employed doctrinal research methodology to investigate the pertinent provisions of the Income Tax law and double taxation agreements. Accordingly, the paper's finding shows that Ethiopian income tax law has not adequately tackled artificial avoidance of PE status through commissionaire arrangement and splitting up of the contract. Concerning double taxation agreements of Ethiopia, saving for artificial avoidance of PE status through the independent agent that incidentally tackled, no countermeasures has taken against artificial avoidance of PE status through specific activity exemption, splitting up of the contract, and dependent agency commissionaire arrangement. Hence, it is recommended for Ethiopia to integrate countermeasures for artificial avoidance of PE status into domestic law and double taxation agreements.

Biniam Ahmed Endris, Revealing Developmental Objectives In The Extractive Governance of Ethiopia: An Assessment of Policy and Law

Biniam Ahmed Endris — 2023-10-08

Extractive Industry's operation can boost a nation's economy and positively contribute to the welfare of a nation. Contrary to this, they can become sources of corruption, political unrest, civil war, and many more difficulties coined in the terms of the sector as 'resource curse.' One major consensus in the sector is that to benefit from the resource gain and the operation of the sector, the primary importance must be laid on identifying how the sector is governed. In this regard, laws and policies designed to govern the extractive sector take paramount importance. Ethiopia's Extractive resource sector is at its infant stage compared to the available and potential natural resources, which can fuel the development of the sector. Recently, a visible improvement is being made, especially in the mining sector while the petroleum sector is starting to showcase its potential. This Article argues that the past and present Ethiopian National Development Plans have coined an economic and social development objective that emphasizes the role the extractive sector will play. However, this is not in denial of the variation in the degree of emphasis the plans provide from time to time. The paper also argues the major policy and legal frameworks governing the extractive sector, starting from the FDRE constitution, which serves as a supreme document in governance norm-setting, have incorporated the same economic and social development objective and it is the responsibility of the parties responsible for the governance to identify, capitalize and develop these objectives into reality.

Assessing Law Making Process, Law Makers and The Value of Laws in Gadaa Democracy

Solomon Emru Gutema — 2023-10-08

Africa in general has been known for centuries by its repressive governance system in the history of world politics, whereas the origin of democracy, human rights, constitutionalism and rule of law is considered as the western political culture, and therefore, many political scientists believe that these concepts are totally un-African. The assumption is that the law makers and law-making process in Africa in particular and the system of governance in general is undemocratic. Factually, the prevailing practices also prove this position in many ways. However, the Gadaa oriented system of governance disproves this position. Thus, this Article argues that the Gadaa system contains the principles of constitutionalism and democracy in its classical platforms. Accordingly, the main objective of this Article is to examine the form of constitutionalism and legitimacy of law-making and law makers in the Gadaa system. It assesses the legitimacy of law making-process, the law makers and the value of laws in the Oromo Gadaa system in comparison with the modern principles of constitutionalism. To achieve its objectives, this Article has used mainly a doctrinal method. Additionally, this Article follows descriptive and analytical research method; thus, it has analyzed how one can utilize the principles of the Gadaa system as a modern constitutional principle. For this reason, its methodology is a qualitative one. Thus, in conclusion this Article argus that the principles of Gadaa governance will be utilized as stepping stone for redeeming the modern Ethiopian constitutionalism and democracy.