Eritrean Judicial System
The legal systems of Eritrea go as far back as the 14th century. Before gaining independence, Eritrea was an Italian, then later a British colony, and thus they were subjugated to their legal codes. In the aftermath of such colonization, the United Nations gave Ethiopia power and responsibility for Eritrea, and thus its legal system mirrored that of Ethiopia. Throughout all legal systems, customary law remained the most prevalent law in the lives of most Eritreans. After gaining its independence from Ethiopia in 1993, Eritrea wrote and enacted the 1954 Constitution, which established a judiciary system and a variety of rights for citizens. In 1997, the previous Constitution was discarded for a new one. Eritrea's Judiciary system derives its current power from this Constitution. The Eritrean Judicial System is fully defined through the constitution, court structure, and present legal systems.
History
Customary laws within Eritrea can be traced back to the 14th century. These laws were written with the intention of enforcing cultural norms in the country.There are five main periods of legal history within Eritrea:
- Civil law period based on Italian colonial implementations.
- Common law system during British rule over Eritrea.
- The years of federation, the annexation.
- The implementation of Ethiopian law over Eritrea.
- The post-independence era. However, even during these different legal periods, customary law was always recognized and respected.
The British expelled the Italians in 1941, though Eritrea was recognized as an Italian colony until 1950. The British military administration implemented new legislation, especially for criminal law and evidence procedures. The administration did not repeal the Italian Penal Code, which in effect disenfranchised Eritrea in any criminal proceedings. Customary law was still used to govern any other matters including civil law.
Under the Federation of Ethiopia and Eritrea, the National Assembly created a commission to codify customary law. However, because of extreme tension and fighting between the groups attempting to draft the new code, the project was scrapped, and the commission remains inactive today.
By 1958, the movement for Eritrean independence gave rise to the Eritrean Liberation Front, which turned into an armed struggle in 1961. The ensuing Eritrean War of Independence would last until 1991 when a coup toppled the Ethiopian regime. The new administration could no longer maintain power over Eritrea, leaving a vacuum of legislation and judicial proceedings that were needed to monitor life in Eritrea. This began the redrafting of the legal system in its entirety within Eritrea. Legal scholars began working on a new constitution, penal, civil, labor, commercial, criminal codes and civil and criminal procedure under Proclamation No. 1/1991. Much of the legislation adopted Ethiopian legislation to Eritrean culture and needs. This included an expansion of women's rights, limits on time in detention centers, and a presumption of innocence within judicial systems. Moreover, private law mirrored international legislation. This culminated in the expansion of the justice system. With the number of courts growing from 38 to 110 and reaching rural populations, and a subsequent emphasis not only on customary law but civil law, Eritrea transitioned from a country mainly governed by local legal practices to a unified legal system.
In 1994, the transitional government established the Constitutional Commission. This included a group of fifty experts from a variety of religious and ethnic backgrounds appointed by the National Assembly to create the next Constitution. Headed by Bereket Habte Selassie, the assembly aimed to create a fair, just Constitution. The Constitution contained democratic ideals, separation of power, guaranteed rights for all based on human rights and more.
Since 1997, major codes within Eritrean legislation were proposed and discussed amongst experts. For a variety of reasons, including the inability to translate these laws into vernacular languages, and they have not been put in place to this day. There are; however, about 150 proclamations and legal notices that have gone into effect across the country. These are only available for viewing in the Ministry of Justice Library.
Constitutional Basis of Judiciary
1952 Constitution
Although Eritrea was under Ethiopia control at the time, a federal act in Ethiopia establish an Eritrean constitution. Under this Constitution, not only is deference is given to local customary law systems, but it creates a legal pluralism structure by empowering the judicial systems currently in place, and mandating that judges be familiar with local cultural customs and legal practices. Moreover, the 1952 Constitution's inclusion of "Special Rights of the Various Population Groups in Eritrea" article enables protections for minorities including those surrounding, land, languages, local administration, and political participation.The government states that customary law before 1952 was changed by this civil law declaration, which enabled the maintenance of traditional, cultural values. Unfortunately, the mandatory requirement for officials to learn local customs and legalized what was previously customary law along with other expectations was removed in the creation of the 1997 Constitution.
1997 Constitution
The Judiciary System is laid out in Article 48-54 of the 1997 Constitution.Article 48 is the first act to establish judiciary power within the court system. This article explicitly references that legal systems will be vested in the Supreme Court and lower courts, which will be created as necessitated by law. Similar to the United States, this Article builds a responsibility of the courts to the Constitution and subsequent laws in following the desires of the Eritrean people.
Moreover, this article details specific protection and guidelines for the judges working in this legal system. First, it frees judges from answering to any other authority. Judge's sole focus should be the Constitution and cases presented to them, and sole guidance being the judicial code of conduct and the law. Second, this Article safeguards judges in legal suits against their actions taken in according to their position as judges. Finally, this Article mandates that other state institutions cooperate with and support the judicial system in any way asked of them.
Article 49 highlights The Supreme Court and its processes. This article establishes the Supreme Court as the court of last resort and creates order within it by ordaining the Chief Justice in control of the said court. Moreover, the Supreme Court oversees its internal operations, including forms of decision-making, and the process of choosing cases. However, the number of justices and terms of the justices within the Supreme Court will be determined by law. In terms of jurisdiction, the Supreme Court controls all impeachment charges against the Presidency and has the legal authority to hear appellate cases from lower courts.
Article 50 expands on the operation of the lower courts. Similar to the Supreme Court, lower courts justices and terms will be determined legislatively. Unlike the Supreme Court, lower courts organization is also bound by law.
Article 51 highlights the oath taken by every Eritrean judge. The oath goes as follows: "I, _____________, swear in _____________ that I will adjudicate in accordance with the provisions of the Constitution and laws enacted thereunder and I will exercise the judicial authority vested in me, subject only to the law and my conscience".
Article 52 discusses the process of removing judges from office. It states that the sole person able to remove judges before the end of their term is the President. The Judicial Service Commission is responsible for investigating judges, making certain that they are mentally and physically capable, and continue to adhere to the judicial code of conduct. In the case that a judge is found to not fulfill these requirements the Judicial Service Commission is obligated to recommend removal to the President. Based on their evaluation, the President then decides to either remove the judge or allow them to remain.
Article 53 delves into The Judicial Service Commission more. The Judicial Service Commission submits recommendations for individuals well-suited for judiciary power and for justice that are unfit for office. Other responsibilities, influence, and institutional management of the commission will be decided by law.
Article 54 establishes the position of The Advocate General, whose obligations will be determined by subsequent law.
Unlike the 1952 Constitution, 1997, the Constitution does not protect customary law and instead replaces it with a centralized legal system. Also, the 1997 Constitution does not include any sections specifically discussing minority rights, and thus undoes the 1952 prior acknowledgment of different minority groups within Eritrea
Courts
In the current operation, there are two Eritrean Judicial Court systems. Within the Regular Court system, consisting of the High Court and Zonal Courts, the legislation and codes created by Eritrea are enforced. Within the Special Court System, generally composed of community courts, sharia courts, and military courts, the court is not guided by legal legislation that governs the country. Instead, this system places its standards on those who participate. Moreover, although there is supposed to be some separation of branches, in practice the judiciary system is highly entangled with the executive branch. The Special Court is generally operated by the military or executive personnel. Moreover, the budget of the judicial system comes from the executive branch, and in practice, this power has created a lack of public confidence within the decisions of the court system. Instead, people bring their issues to the executive branch.Regular Court System
Composed of Zonal and High Courts, the Regular Court System are both courts of the first instance and appellate courts. Within civil cases, jurisdiction is split between Zonal and High Courts depending on the disputed amount. Using a measure of movable or unmovable property, cases are divided up in a small claim - large claims format. About criminal cases, the severity of the crime determines the jurisdiction of the court.High Court">High Court of Eritrea">High Court
High Court is the appellate courts for zonal decisions. Moreover, in certain instances, the High Court does have original jurisdiction. Although the creation of a Supreme Court is within the Constitution, in practice, this has not occurred. Thus the highest appellate court within this system acts like a Court of Last Resort, which is the High Court. This specific court entertains appeals from within the grouping of high courts. In terms of civil cases, High Court acts as a large claims courts by governing over cases with amounts higher than 250,000 Nafka in movable property and 500,000 Nafka in immovable property. Moreover, other civil cases such as "bankruptcy, negotiable instruments, insurance, intellectual property rights, habeas corpus, nationality, filiation, expropriation, and communal exploitation of property" fall under the purview of the High Courts. Concerning criminal cases, those with serious injuries are within article 538 of the Transitional Penal Code are under the jurisdiction of the High Court, including most cases of murder, rape, and other felonies. Those that do not meet this bar go to the lower courts, including Zonal and Community court.Zonal Court
Zonal Courts, also known as Regional Courts, is the second-lowest structure within the judicial system, right above Community Court. Within civil cases, the Zonal Court is responsible for cases regarding assets from 50,000 to 250,000 Nafka if it is movable and 100,000 to 500,000 Nafka if it's immovable. The Zonal courts are generally used for this type of civil case, however, cases such as divorce or other minor claims not already in the purview of the high court, do fall under the Zonal Court's jurisdiction. In terms of criminal cases, the Zonal Court deals with instances of a minor injury. Moreover, any appeals to Community Court do fall under the jurisdiction of Zonal Courts.Special Court System
Special Court">Special Court of Eritrea">Special Court
The Special Court varies from all other court systems present within the Eritrean Judicial System. By Article 7 of the Special Court Proclamation, the key connection this court has is not to other court systems, but the Ministry of Defense. Because it is not under the Ministry of Justice, it is essentially controlled by the Executive Branch. The officials operating within this system are generally senior military officers without any legal experience or knowledge. Moreover, the budget for this court is delegated directly from the President. Due to these parameters, the permissions of this court also various from a typical court. It is the option of the court if the Transitional Penal Code will be put into play, which includes the rights one has in going to court. Combined with an executive order, the right to an attorney, fair trial, etc. has annulled within this system. In fact attorneys are not known to practice in the Special Court. The point of the Special Court is to deter corruption by convicting crimes of theft, embezzlement, and corruption. The limits of what this entails, however, is not clearly defined. Moreover, the Special Court system has special jurisdiction. It can retry cases that have already been decided by the Regular Courts as stated in Article 4 in the Special Court Proclamation. Judges can ask the defendant to state their case, but there is no defense counsel or right of appeal. Many of the decisions are made based on "conscience". Moreover, the Special Court is known to issue orders to the other courts regarding administrative duties.Sharia Court
Sharia Courts have jurisdiction over family, inheritance, and marriage matters within Islamic families and communities. They determine the verdict by applying Islamic law principals. This was originally established under Italian colonization and was a political decision to maintain certain power structures.Military Court
Within the military court, there is a limited personal jurisdiction. They govern over the Eritrean Defense Force, Eritrean police, the National Reserve Army, Prison Wardens, the National Service, while people are active in those group and former combatants who may have discharged government actions.Community Court">Community Courts of Eritrea">Community Court
Community Court is referred to as court by name but follows a legal arbitration manner. Magistrates preside over this court and are elected by community members to two-year terms. In this court, judges hope to mitigate issues and come to a resolution based on local customs. This is the lowest structural level within the judicial system, but remains the most recent and accessible court system to the average Eritrean. Legal positions within these Courts do not require legal training and are regulated by the risk of not being reelected. Moreover, the Ministry of Justice is creating a capacity development program for Community Court judges to increase their literacy and ability to lead this system through basic legal training skills. In fact in a little over a year, over 30,000 cases have been presented to Community Courts. According to a government website, about 58% were resolved through reconciliation, 33.5 % were resolved through a judgment, 8.5% were being processed and 2.9% had been appealed.Judiciary Studies and the Legal Profession
Legal Education
In 1994, at the beginning of the foundation of Eritrea many judicial systems and legislation being created were based on Ethiopian, US, or other international systems. Meanwhile, as a formation of experts from the National Assembly, Ministry of Justice, and foreign advisers work to create a new Constitution and governing legal system, an adjusted version of the Ethiopian legal system was followed in Eritrea. In 1996, scholars of legal studies at University of Asmara's Law school were still taught using Ethiopian, American and European structures.The professors themselves were regularly educated in Ethiopian institutions. As the Ministry of Justice works to put out more legal text, students were taught various courses with Ethiopian treaties as the main text of a course, or a comparative study. With the lack of textbooks specifically regulated to Eritrean legal systems, this became the primary method of teaching. However, University of Asmara was lacking in other areas as well including research facilities and maintaining permanent faculty.
Over time, the Constitution of 1997 was built and taught as a fundamental legal document as well as proclamations by the Ministry of Justice on the legality of various subjects such as press, banking, taxes, investments, communication, mining, business, provisional codes, and the regulation of the legal field.
In 2003, the University of Asmara in an attempt to empower and provide the law school with its autonomy changed the Law department to the Faculty of Law. At the time there were 166 law candidates and 155 alumni from the program. Comparatively, with Eritrean's population, the ratio becomes 1:1745, exhibiting the intense need for legal personnel. In 2007, the University of Asmara's regard for their Law department changed once again, and it was demoted to the College of Arts and Social Science.
Eritrean Bar Association
The Eritrean Bar Association is not strict on who can or cannot be a lawyer. Although the University of Asmara does have a legal program and creates a variety of judges, prosecutors, and legal advisers within governmental offices, there is no prohibition on either the creation of an independent bar association or are requirements impossible to circumvent. The Legal Committee of the Ministry of Justice is in charge of empowering or regulating the legal industry, and thus can make exceptions for conditions needed to practice law.Court's Effectiveness
In the 1997 Constitution, Article 43 grants the President immunity from all civil and criminal cases during their time in the Presidency. It states that cases brought against the President in civil court will instead, fall under the responsibility of the State, and it is Eritrea as a country that will be sued. Besides, once out of office, the President is no longer legally liable in civil courts for acts done in the duration of their presidency. In a criminal proceeding, cases against the President is nullified in any cases outside of impeachment.Also, the existence of a secondary, executive-run judicial system within the Special Court system enables judiciary control by the executive office. The lack of guaranteed rights and ability to reopen any case creates a paradox of order within the judiciary while stripping it of authenticity.
Moreover, although the Constitution guarantees a variety of rights within the judicial system, in practice things tend to be different. A fair, public, prompt trial is not respected. Defendants do not have the right of self-incrimination and will only have an attorney if they can provide one themselves. Also, there is no civil court preceding for human rights violations, and the criminal avenues are regulated by courts especially influenced by the executive branch. In fact, the government is holding politicians, journalist, certain religious leaders, and persons evading conscription for an unknown amount of time without trial or formal legal charges, and do not allow any outside access to them.
The existence of community courts and regulations via local customs and rules enables relaxation and accessibility to the court that was not previously available. Community courts enable participants to speak in their language, fully explain their situation, and resolve it among themselves. Moreover, with the election of women judges, there is hope that they will slowly change the traditional roles of women in Eritrea.