UPDATE: Introduction to Eritrean Legal System and Research

Luwam Dirar received her LL.B. degree from University of Asmara in 2006 and her LL.M. & J.S.D. from Cornell Law School in 2009 and 2016 respectively.

Kibrom Tesfagabir Teweldebirhan received his LL.B. degree from University of Asmara in 2006 and his LL.M. degrees from Wuhan University and Harvard Law School in 2010 and 2013 respectively. He is SJD Candidate at Harvard Law School.

1. Introduction

Sitting on the eastern edge of Africa, Eritrea is home to nine ethnic groups. The Afar, Bilen, Hidareb, Kunama, Nara, Rashaida, Saho, Tigre and Tigrinya make a heterogeneous society. Each ethnic group has rich history, culture, religion, and law, to name a few. The nine ethnic groups live over a landmass of 125,000 km2 – continental and archipelagoes and fringe of islands on the Red Sea – stretching from the southern tip of the Sudanese border in the North all the way down to the Bab-el-Mandeb facing the Arabian Peninsula in the South East.

Politically, Eritrea went through different faces and phases of colonialism – where each, as correctly described by the historians Favali and Pateman[1], had different bearings over the course of Eritrean legal history. Egypt and the Ottoman Empire were the premiers. Although there is no well-documented ethnographic work on the impact of Ottoman and Egyptian rule on the Eritrean legal history, the Egyptians and Ottomans asserted strong sovereign influence on Eritrea, especially along the Red Sea coast. The Italians came to Eritrea during the European colonial rush to Africa. In 1890, the Italian Government consolidated political power over Eritrea and formally recognized Eritrea as its African colony. The Italian Government, among other things, constituted a colonial legal system notable, among other things, for subjecting locals and Italians to different laws and institutions. The Italian colonial government similarly commissioned ethnographic studies and codification of most Eritrean customary laws. In 1945, Italy lost to British forces in East Africa, including in Eritrea. Italy lost its colonial status in Eritrea and handed over Eritrea to the British Government, which soon established a Military Administration in Eritrea until the United Nations federated Eritrea with Ethiopia in 1952. A federal constitution established a government in Eritrea, and the Government issued laws on areas that fall within its prerogative under the federal framework. The Government of Ethiopia abolished the federal arrangement in 1962. Eritrea lost the minimal political autonomy that it had under the federal regime and became a province of Ethiopia. After thirty years of war, Eritrea reached its independence in 1991 and became a member of the United Nations in 1993 after holding national referendum to determine Eritrean independence by popular vote.

Eritrean legal history is associated with the advent of western colonization. Although the Italian colonial administration had significant influence on Eritrean legal history the truth remains, however, that Eritrean ethnic groups have legal history that precedes western colonization and its colonial normative experiment in Eritrea. Most – if not all – of the Eritrean ethnic groups have indigenous laws applied by customary institutions governing all aspects of their constituencies. The laws of Adkeme Melega, Logo-Chewa, Scioatte Anseba, Serat Karnesem, Adgena Tegleba, Serat Atsmi Harmaz, the customary laws of the Saho, Fetha Mahari, and Fethesh Mogaresh are some of the major customary laws which make a body of one of the oldest customary laws in Africa.

This article provides a snapshot of the Eritrean legal system, which may be helpful to researchers and practitioners. Most of the information provided relates to the current normative content and structure of the legal system with a brief sojourn to history when appropriate. This paper, in Part I, elaborates constitution and constitutionalism in Eritrea. Part II elaborates on the structure of the Eritrean Government. Part III provides a synopsis of the Eritrean judiciary. Part IV briefly substantiates regimes, institutions and processes that are ancillary to the Eritrean legal system.

2. Constitution and Constitutionalism

In March 1994, the Transitional Government of Eritrea established a Constitutional Commission pursuant to Proclamation 55/1994. The Government of Eritrea mandated the Commission to draft constitution, which would be ratified by a Constituent Assembly. A Council and an Executive Committee created the Commission. The Council was composed of fifty experts appointed by the National Assembly while a Chairman, Vice Chairman, a Secretary and seven other members made the Executive Council.[2] Bereket Habte Selassie [3] – Chairperson of the Commission– argues that the Constitutional Commission earned public legitimacy because it represented the religious and ethnic diversity of Eritrean society. [4] The constitution making process, according to Habte Selassie, ensured public participation while many have criticized the process as being less exclusive and overshadowed by the political clout of the Eritrean Government. [5]

The Constitutional Commission submitted a draft constitution to a Constituent Assembly for ratification. Proclamation 92/1996 established the Constituent Assembly – consisting of members of the National Assembly, members of the six Regional Assemblies, and 75 representatives of the Eritrean Diaspora - to ratify the draft constitution. The Proclamation mandated the Assembly to take necessary legal measures to bring the Constitution into effect. The Constituent Assembly ratified the Draft Constitution on May 23, 1997. The Ratified Constitution (“the Constitution”) has not come into effect thus far. [6]

The 1997 Constitution establishes a unitary state and a government established according to democratic procedures.[7] The Constitution outlines the structure and powers of three branches of government –legislature, judiciary, and executive and four constitutional bodies – an Auditor General, a National Bank, a Civil Service Administration, and an Electoral Commission.[8] The Constitution provides a separate chapter on fundamental rights and freedoms.[9] It incorporates most of the rights and duties adopted in the International Bill of Rights. The Constitution furthermore requires the state to promote the social welfare of its citizens and provides instances and modalities of limiting rights.[10] The Constitution likewise provides duties of citizens, which include the duty to respect rights of others and to look after older members of the society, among others.[11]

The 1997 Constitution has not come into effect. Courts hardly rely on the provisions of the Constitution, and the structure of the government does not squarely fit with the one that the Constitution envisages. A culture of checks and balances is not there yet. Issues of fundamental rights, as enshrined in the Constitution, are hardly litigated in Eritrean Courts. Habeas corpus is an exception. The High Court, which had exclusive jurisdiction over petitions of habeas corpus under the now repealed Transitional Civil Procedure Code of Eritrea, has heard a sizeable number of habeas corpus petitions. Due to the political situation in Eritrea, the High Court has been unable to enforce orders of habeas corpus.

Several rights and freedoms enshrined in the Constitution are likewise not enforced. Former cabinet members have been in detention for almost eighteen years without trial. The government without legal recourse constantly violates basic freedoms of religion, press and movement. Several religious leaders and followers have been in detention for over fifteen years. Similarly, in 2001, the Government of Eritrea closed private press and arrested most of their editorial staff.

The Constitution requires domestic laws to be consistent with its provisions – in letter and spirit.[12] Cases – either test or contentious – on constitutional validity of laws barely exist. There is no established practice of judicial review either. Courts can, however, review administrative actions of local governments for their statutory and not constitutional validity. Eritrean Courts resort to teleological interpretation should they have to interpret statutes, proclamations, and regulations that make the corpus of the Eritrean legal system – again for their statutory and not constitutional consistency at this moment.

It should be mentioned that the 2015 civil and criminal procedure codes refer to the ‘constitution’.[13] Article 362 of the Civil Procedure Code for example states “… the Supreme Court may grant leave to hear an appeal from final judgment by any party to a case in which an issue concerning the constitutionality of any law is raised, or in which an interpretation of a significant constitutional or legal principle is required for making a decision in the case.” The Criminal Procedure Code requires individuals involved in the investigation and interrogation of offences to follow the ‘constitution of Eritrea’.[14] Article 191 of the same code likewise empowers any person to petition any court for her release if her detention violates ‘the laws and Constitution of Eritrea’. It is not clear if these references to ‘constitution’ and ‘supreme court’ are to the 1997 Constitution and the Supreme Court, which is mentioned in it or to the new constitution, which is yet to be drafted. In an interview with the national media, President Afeworki dealing with the status of the 1997 Constitution stated, “everyone knows the constitution does not exist” and that a new constitution is being drafted.[15] Four years have passed since President Afeworki’s statement about a new constitution. Until today, the government hasn’t updated the public on the commencement of the drafting process or the status decision itself.

3. Government

In 1991, the Eritrean People’s Liberation Front (EPLF) – the armed revolutionary front, which fought and won Eritrean independence from Ethiopia, filled the political void left by the Ethiopian Government in Eritrea. After a year, in 1992, the EPLF established a Provisional Government – the Provisional Government of Eritrea (“PGE”) pursuant to Proclamation 23/1992.[16] The Proclamation – in its preamble – provides that the EPLF has historic responsibility to form a transitional political structure until the establishment of a constitutional government in Eritrea.[17] Proclamation 23/1992 defines the organization, powers, and duties of the PGE. The Proclamation establishes three branches of the Provisional Government – legislative, executive, and judicial and outlines the function of each. The Proclamation provides that the Central Committee of the EPLF would work as the legislative branch of the PGE until a constitutional government is established.[18] The Central Committee, as such, assumed law-making powers.[19] The Council of the Government of Eritrea became the executive branch of the PGE.[20] Twenty-one Secretaries of the Provisional Government – tzehafti kefletat, Regional Administrators, Heads of four military divisions, Head of the Naval Forces and chaired by the General Secretary of the EPLF make the Council and the executive branch. [21] Besides the twenty-one Secretaries whose mandate is detailed in the Proclamation, the Proclamation creates two Commissions, three Authorities, and three Offices as part of the executive. The Proclamation, pursuant to article 6 of the Proclamation, designates an independent judiciary as the third branch of the Provisional Government.[22]

In 1993, Eritrea, pursuant to Proclamation 22/1992, administered a national referendum to determine Eritrea’s independence. After a resounding vote for independence, the PGE amended, to a limited degree, the structure and composition of what then became the Government of Eritrea. [23] Proclamation 37/93, as amended by Proclamation 52/94 and repealing Proclamation 23/92, provided public participation in the Eritrean political processes by giving sixty seats in the Eritrean National Assembly – initially exclusive to members of the EPLF Central Committee – to members of the public. The Council of the Government of Eritrea changed its name (into “the Cabinet of the Government of Eritrea”) and its composition (composed of Government Ministers only) retained its executive power now chaired by the President of the State.

Eritrean Courts, according to the Proclamation, make the Judiciary – independent from the legislature and the executive. A significant reiteration of Proclamation 37/1993 is that it limited the tenure of the Government. The Proclamation gave a political life of four years to the Government. [24] The four years period expired in 1997 without meaningful change. A Constitution, which was supposed to transition the Eritrean political landscape into a constitutional system through domestic political processes, has been shelved since. [25] Roughly resembling a presidential type of government, political power lies with the central government in Eritrea. Regional administrations – divided into Zobas - exercise powers of local government, mostly on social and economic aspects of their constituencies. In terms of structure, the current structure of the Government of Eritrea retains, largely, the structure provided by Proclamation 37/1993 as amended. The Government has, however, trimmed several structures – notably the legislative branch - along the way.

3.1. National Assembly

During its less-than-a-decade lifespan, the Eritrean National Assembly had a unicameral structure.[26] Proclamation 37/93 reserves fifty percent of the total 150 seats of the National Assembly to members of the Central Committee of the People’s Front for Democracy and Justice (PFDJ) – formerly EPLF.[27] The remaining half of the seats went to popularly elected representatives.[28] Possessing fifty percent of the parliamentary seats, the PFDJ could easily secure votes that would enable it to pass or block any legislative bill. Although the role of the EPLF/PFDJ in liberating Eritrea and spearhead a transitional political process is understandable controlling half of the legislative seats seems far-fetched.

Speaking of its powers, the National Assembly, according to Proclamation 37/93 had the authority to elect the President of the State.[29] The President served as a Chairperson of the National Assembly and the Cabinet of Ministers.[30] The Assembly, during the supposedly transitional period, had the power to issue laws, prepare and approve domestic and foreign policies, ratify international agreements, approve national budget and development plan, and the establishment of ministries and other government agencies, among others.[31] Proclamation 37/93 rather ironically does not provide voting procedure or how a bill would be adopted to be a law in Eritrea. Neither does the Proclamation mandate the National Assembly to adopt rules and regulations pertaining to lawmaking processes.[32] As the preceding paragraphs show, there is no legislation that regulates law-making procedures in Eritrea, including at the time when the National Assembly was effective.[33]

The National Assembly has been conspicuously absent from the Eritrean legal and political landscape since 2001. There is no legislation that abolishes the National Assembly or suspends its legislative functions. The National Assembly’s absence is, however, noticeable by its physical and formal disappearance since then. The National Assembly worked on draft political parties and election laws in its last days.

3.2. Executive

The executive has been an embodiment of political power in Eritrea since 1991. Proclamation 23/92, as mentioned in the forgoing, established the Council of the Government of Eritrea – composed of Heads of the executive portfolios, regional administrators, and army commanders. Proclamation 37/93 – as amended by Proclamation 52/94 – downsized the size of the Council by shedding regional administrators and army commanders from the Council.[34] Pursuant to Proclamation 52/94 the Council changed its name into the Cabinet of the Government of Eritrea, and the Cabinet has been at the tip point of the executive establishment headed by the President of the State since then. The Executive branch, according to Proclamation 16/94 is composed of ministries, authorities, and commissions.[35] These are: Ministry of Regional Administration, Ministry of Defense, Ministry of Internal Affairs (status unknown at this time), Ministry of Justice, Ministry of Foreign Affairs, Ministry of Information and Culture (now Ministry of Information), Ministry of Finance and Development (now Ministry of Finance), Ministry of Trade and Industry, Ministry of Agriculture, Ministry of Marine Resources (now Ministry of Fisheries), Ministry of Construction (now Ministry of Public Works), Ministry of Energy, Mines and Water Resources (now Ministry of Energy and Mines), Ministry of Education, Ministry of Health, Ministry of Transport (now Ministry of Transport and Communications), Ministry of Tourism, the Social Affairs Authority (now the Ministry of Labor and Human Welfare), the Postal and Communications Authority (now Postal Authority), Ports Authority, Housing Commission, and Refugees Commission (now part of the Ministry of Labor and Human Welfare). The Ministry of Land, Water and Environment and Ministry of National Development later became part of the executive and their Ministers members of the Cabinet. [36]

In terms of authority, ministries, according to Proclamation 37/93 as amended, have the mandate to develop policies relevant to their domain, and they oversee its execution. Ministries also have regulatory power over issues that fall within their preview. Ministries and other members of the executive have issued several regulations on diverse issues.

Another segment of the executive is local government. Proclamation 86/96 – repealing Proclamation 26/92, divides Eritrea into 6 regional administrations – Zobas. These are Zoba Debubawi Keih Bahri, Zoba Semenawi Keih Bahri, Zoba Anseba, Zoba Gash Barka, Zoba Debub, and Zoba Ma’aekl. Each Zoba administration, according to article 6 of Proclamation 86/96, has three tiers of administration – Zoba (Zone) Administration, Neus-Zoba (sub zone) Administration and Adi/Kebabi (village or area – usually composed of cluster of villages) Administration. These tiers of local government have an assembly – Baito, administration and courts each. Zoba administrator has ultimate administrative power in his/her Zoba. Zoba administrator heads the Zoba administration offices, directs and supervises the work of Neus-Zoba, and executes policies and regulations of the central government, among others. Baito Zoba has the authority to propose laws and regulations, which are consistent with the policies and laws of the Central Government, to the Minister of Regional Administration and collect, study and submit public demands and opinions to Zoba Administrator. Proclamation 140/2004 regulates the election of members of Baito Zoba. The Proclamation provides that one electoral unit must have between 12,000-17,000 constituencies. Every electoral unit should elect one woman to the Baito Zoba, where they have a reserved of 30% from the total Baito seats.

3.3. Judiciary

Proclamation 1/91 established institutions that would administer a transitional legal system in Eritrea. Subsequent legislations issued in the last twenty years have further constituted the Eritrean judiciary. In terms of local jurisdiction, the judiciary’s structure follows the structure of the local government.[37] Material jurisdiction – authority of courts to hear particular cases – often depends on the amount of money involved in a case Community Courts lie at the bottom of the jurisdictional structure. [38] Zoba Courts, which parallel with Zoba administration of local government, are at the second tier of judicial hierarchy.[39] The High Court at the third tier of judicial hierarchy. The Supreme Court, according to the 2015 Civil and Criminal Procedure Codes sits at the top as the court of last resort.

Speaking of separation of powers, article 7 of Proclamation 37/93 safeguards the independence of the judiciary.[40] Although the President of the High Court oversees the administration of courts, the Ministry of Justice provides budgets and human resources to the judiciary.[41] Teame Beyene – the former President of the High Court – explains the challenges of judicial independence in Eritrea.[42]

Statutes are the major sources of law in Eritrea. The Government of Eritrea adopted a big corpus of the 1960s Ethiopian Codes in 1991 on transitional bases. The codes are: the Transitional Civil Code of Eritrea (2/91), the Transitional Civil Procedure Code of Eritrea (3/91), the Transitional Penal Code of Eritrea (4/91), the Transitional Criminal Procedure of Eritrea (5/91), the Transitional Commercial Code of Eritrea (5/91) and the Transitional Maritime Code of Eritrea (7/91). These transitional codes have been the main source of law in Eritrea. Proclamations and legal notices are other sources of law. Since 1991, the Government of Eritrea has issued more than proclamations and legal notices.

In May 2015, the Ministry of Justice of Eritrea announced the enactment of new Civil, Civil Procedure, Penal, and Criminal Procedure Codes.[43] The Ministry of Justice is working to finalize new commercial code. It is not clear if a new maritime code will be issued. The codes, according to a 2009 report of the Government of Eritrea to Human Rights Council, “largely coincide with the 1997 Eritrean Constitution.”[44] Article 5 of the 2015 Criminal Procedure Code for example requires individuals involved in the investigation and prosecution of crime to follow ‘the Constitution of Eritrea’. It is not clear if the code is referring to the to the 1997 Constitution. The preamble of the Penal Code also mentions the drafting of an Evidence Code. The Evidence Code was not part of the initial codification process. It is not clear how the draft Evidence Code relates to the major codes enacted by the Ministry of Justice. The Criminal and Civil Procedure Codes, for instance, have several provisions that govern the collection, value and handling of evidence.

4. Court Structure

The Eritrean judiciary can be divided into three groups: Civil, Military and Special Courts. The jurisdictional paths of these Courts do cross each other, but each is subject to different administrative structure. The Courts also differ in the type of law they use.

Eritrean judiciary and court structures are complex and several scholars have addressed its pros and cons. Daniel R. Mekonnen explains the post-independence political situation in Eritrea as the source of irregularity in the Eritrean judiciary.[45] The formation of the Special Court for example, Mekonnen asserts, is due to a lack of democratic governance in the country.[46] Elobaid and Senai in the other hand argue that the formation of Community Courts – one of the Special Courts – is a positive effort by the Government to introduce customary practices to the judicial system.[47] In May 2015, the Ministry of Justice established the Supreme Court of Eritrea as the highest court. The role of the Supreme Court in the development of Eritrean Court structure is yet to be seen. The following paragraphs explain the composition and material jurisdiction of Courts in Eritrea.

4.1. Civil Regular Courts

Zoba Courts, High Courts and Supreme Court are civil regular courts in Eritrea.

4.1.1. Supreme Court

The Supreme Court is the highest of civil courts in Eritrea. It has powers to review constitutionality of laws. The Supreme Court, according to article 362 of the Civil Code and article 177 of the Criminal Procedure Code, has ‘Special Appellate Jurisdiction’ upon which “it may grant leave to hear an appeal from final judgment by any party to a case in which an issue concerning the constitutionality of any law is raised, or in which an interpretation of a significant constitutional or legal principle is required for making a decision in the case.”

The Supreme Court has jurisdiction to review interlocutory decisions based on article 394 of the Civil Procedure Code.

The Supreme Court has appellate jurisdiction over civil and criminal cases decided by the High Court. In addition, the Supreme Court, according to article 157 of the Criminal Procedure Code, has the jurisdiction to confirm the conviction and sentence of death.

4.1.2. High Court

The High Court has first instance material jurisdiction to adjudicate cases of movable property worth more than 500,000 Nakfa and immovable property worth more than 1,000,000 Nakfa. [48] The High Court has exclusive first instance jurisdiction over the following cases; formation and liquidation of business organizations, bankruptcy, negotiable instruments, maritime, insurance policies, intellectual property rights, expropriation, nationality, liability of public servants for acts done in the discharge of their official duties, and application or the enforcement of foreign judgments and arbitral awards. [49] In criminal cases, the High Court has jurisdiction over class 1 through class 7 offences. [50]

The High Court has appellate jurisdiction over criminal and civil cases decided by Zoba courts.

4.1.3. Zoba Courts

Zoba Courts have first instance material jurisdiction over cases that involve movable property worth 100,001 to 500,000 Nakfa and immovable property where the amount involved is between 150, 001 to 1,000,000 Nakfa. Zoba Courts also have first instance jurisdiction over all cases – except those that are specifically assigned to the jurisdiction of other courts – whose value cannot be determined in material value. [51]

In criminal cases, Zoba Courts have jurisdiction over class 8 and class 9 offences. [52] Zoba Courts have appellate jurisdiction over civil and criminal cases decided by community courts. It should be pointed out that Community Courts share the lowest echelon of material jurisdiction – civil and criminal – with civil regular courts. The Special Court likewise has jurisdiction to retry cases decided by civil regular Courts. [53] The next section discusses the composition and jurisdiction of the Special and Community Courts.

4.2. Special Courts

4.2.1. The Special Court

Proclamation 85/1996 established the Special Court. The Proclamation, in its preamble, provides that the objective of the Court is to deter corruption by bringing perpetrators to justice. [54] the Special Court has jurisdiction criminal jurisdiction only over offences related to theft, embezzlement, corruption, abuse of power, among others. [55] What is special about the Court is its structural affiliation and the law – substantive and procedural – that it uses. Although performing judicial functions, the Special Court is not part of the judiciary for all purposes. Judges of the Special Court are military officials. They are members of the Ministry of Defense, and the Court reports to the Ministry of Defense and the Office of the President. In terms of substantive law, the Special Court may and may not apply and follow the Penal Code or any law for that matter. [56] The Court, pursuant to article 4(2) of the Special Court’s Proclamation, has the power to re-open cases – cases related to its jurisdiction – decided by other courts before its establishment. [57] Procedurally, the Proclamation empowers the Court to use any procedure or method of investigation that it deems fit. [58] Even though the proclamation does not necessarily bar the right to representation, legal representation is not allowed. Mekonnen explains that through executive orders it has abrogated the right to an attorney of the accused. [59] Trials are held in closed session as well. Furthermore, the Courts decisions are final. [60] The Special Court, so far, has developed several internal working methods within– like internal review process. Little is, however, know about the Special Court and its modus operandi as trials are not open to the Public, and it is difficult – if not impossible – to get official documents that bespeak about the same.

The broad endowment of jurisdiction to try cases dealing with theft, embezzlement and corruption without actually defining the specifics of the jurisdiction gives the court jurisdiction over cases that are beyond the purpose of its establishment. The manning and budget source of the Court is another concern. As mentioned in the foregoing, judges of the Special Court are senior military officers with no formal legal training. [61] In addition, the Office of the President allocates budget for the Court – making it an executive branch performing judicial functions in essence. Moreover, article 7 of the Special Court Proclamation empowers the Ministry of Defense to enforce the provisions of the Proclamation.

The new Civil and Criminal Procedure Codes of Eritrea do not address the status of the Special Court and the Special Court proclamation. However, the Special Court is still functional. It is yet to be seen if the statement in Article 1 of the 2015 Criminal Procedure Code, which states ‘any other laws concerning procedure in penal matters are repealed and replaced by this Code’, includes dismantling the Special Court in Eritrea.

4.2.2. Community Courts

Community Courts have first instance material jurisdiction over civil cases of movable property where the amount involved does not exceed 100,000 Nakfa and immovable property if the amount involved does not exceed 150,000 Nakfa.[62] Community Courts have jurisdiction over petty offences.[63]

According to Proclamation 167/2012, Community Courts had similar jurisdiction over cases dealing with movable and immovable property. Community Court also have jurisdiction over land related cases, lost and found property and animals, servitude, rain and drainage, marriage related cases, succession, and tenant and landlord cases.

One of the main distinguishing attributes of Community Courts from Civil Regular Courts is that Community Courts use local norms and custom of the society in resolving disputes. Lack of formality and procedure in the court proceedings puts disputants at ease and allows them to present their case in a language and manner customary to their vicinity.[64] However, Zoba Courts, using statutory law, hear cases decided by Community Courts in the form of appeal. Hence, Zoba Courts, apply statutory laws while adjudicating cases decided by Community Courts on bases of customary law in appeal. The problem becomes more complicated at High Court level, where High Court judges have to determine the validity of statute-based decisions of Zoba Court on custom-based decisions of Community Courts using statutory laws. Scrutinizing judgments of Community Court in light of statutory law seems to contradict with the very aim that Community Courts are established for.

Knowledge of law or legal career is not a requirement for Community Court judges – as judges are elected by their communities.[65] The Ministry of Justice, which is responsible for management and budget of Community Courts has, however, provided different skill and capacity building programs to Community Court judges.[66] The training includes basic literacy programs, file keeping and basic legal training.[67] Irrespective of the positive impact of legal training in the activities of the Court in particular and its impact on civic education in general, it seems to contradict with the purpose of Community Courts – that they have to take stock from local custom and values. This also potentially inhibits the continuous evolution of customary law as Community Court judges have to be cognizant of statutory laws while they decide cases.

Unlike judges of the regular courts, the community within the local jurisdiction of a Community Court elects judges of Community Courts.[68] Subject to reelection, the tenure of the judges is limited to a period of four years.[69] After the first cohort of judges were elected, there haven’t been national elections of community court judges. Occasionally, local elections will be conducted to replace a particular community court judge who has left the post. Despite the expiry of their term most of the first cohort of judges are still serving their communities. Speaking of some of the benefits of Community Court, the public has been able to get access without difficulty. The public has also been able to present cases using their mother tongue. This is on top of empowering the community not to reelect judges who do not serve the community’s interest. Furthermore, even though there is no empirical data to show the impact of the Court on gender equality, the election of women judges –who have reserved seat - is a positive impact in changing the traditional role of women in Eritrea.[70]

On Jan. 15, 2019 the government of Eritrea announced plans to restructure composition of community courts. The announcement stated (on EastAfro.com – Eritrea Eri-TV News Jan 15, 2019) that community courts will be composed of a judge, 3-5 mediators, and a legal expert. What this means to gender parity, informality of court proceedings/laws, and dispensation of justice is yet to be seen.

4.2.3. Sharia Courts

Sharia Courts assumed judicial functions during the Italian colonialism in Eritrea. [71] After independence, there is no legislation that specifically details the structure and jurisdiction of Sharia Courts in Eritrea. Sharia Courts, at this time, entertain cases dealing with family – notably marriage and inheritance related cases of Muslims. The status of mixed marriages – marriages concluded between individuals from different background – is not clear, however. The same goes for the right of children born – both within and out of wedlock – from parents of different religious background in case of succession, for example.

4.2.4. Military Courts

Military Courts have personal jurisdiction over members of the Eritrean Defense Forces, members of National service during the execution of their national service, members of the Eritrean Police Force, members of militia units, members of the national reserve army, prison wardens and former combatants discharging governmental functions.[72]

Military Courts had jurisdiction over offences listed in articles 296-353 of the Transitional Penal Code of Eritrea. Military Courts have two levels of jurisdiction: Lower and High Military Courts. The Lower Military Court has jurisdiction, according to Proclamation 25/1992, over offences that are punishable with simple imprisonment from ten days to three years. The High Military Court has jurisdiction over offences that are punishable with rigorous imprisonment from one year to twenty-five years, life imprisonment, and with capital punishment. The High Military Court hears cases appealed from decisions of the Lower Military Court while the High Court panel of five judges (the Last Appeal Panel) decides cases appealed from decisions of the High Military Court.

The newly enacted Criminal Procedure Code is silent with regard to the status of Military Courts. It is yet to be seen if the statement in Article 1 of the 2015 Criminal Procedure Code which states ‘any other laws concerning procedure in penal matters are repealed and replaced by this Code’ includes dismantling of Military Courts in Eritrea.

4.2.5. Administrative Tribunals

Besides the regular and special courts mentioned above, there are quasi-judicial tribunals in Eritrea. These are: the First Instance Labor Court, the Labor Relations Board and the Tax Appeal Commission. The First Instance Labor Court has jurisdiction on cases related to employment contracts. During employment dispute, the Eritrean Labor law (Proclamation 118/2001) requires individuals to settle their disputes by conciliation or arbitration at the industry level. Should these mechanisms fail, a party may apply to the Labor Tribunal. Labor tribunals usually follow the regular courts procedure. Decisions of the First Instance Labor Court are appealable to Zoba Courts. The Labor Relations Board decides on cases related to unfair labor practices and collective labor disputes among others.

The Tax Appeal Commission is another quasi-judicial tribunal with jurisdiction to hear cases appealed from tax assessment of the Eritrean Inland Revenue Services. Decisions of the Commission are appealable to the High Court.

4.2.6. ADR

With the exception of marriage (divorce) and labor related cases, alternative dispute resolution mechanisms are not normatively constituted. In marriage related cases, Community Courts require parties to a dispute to elect four Council Members and a Chairperson who would hear the case and decide on merits of the case. Decision is by consensus. In case of lack of consensus, majority adopts decision.

In other cases, Courts encourage parties to a case – especially if it involves family members – to solve their differences amicably.

5. Crosscutting Issues

The following section discusses some of the institutions, regimes and processes that in one way or the other affect the development and operation of the Eritrean Legal System. These are: legal education, lawyers and the legal profession, law-making process, the status of international law in the Eritrean legal system, and legal research.

5.1. Legal Education

Legal education has a fairly short history in Eritrea. The University of Asmara started to provide legal education in post-independence Eritrea. Founded in 1958 as the Catholic College of Santa Famiglia, the College was renamed as the University of Asmara in 1964. The University was further reorganized in order to expand its student population, course offerings and facilities in 1979. After independence, in August 1992, the University of Asmara initialed a five- year LL.B. but it did not get into effect due to shortage of staff. The University, however, adopted the curriculum for a three-year open-ended diploma program. The diploma program was a temporary program intended to transition students in the diploma program once the University gets enough resources. Two diploma classes graduated in 1994/95 and 1995/96 academic years.

In 1996, the University of Asmara started LL.B. program. The first class included diploma graduate students and students who finished one year of humanities. [73] In 1998, the University of Asmara graduated its first LL.B. students – all of them diploma students who later transferred to the LL.B. program. Between 1997-2003, the University of Asmara offered certificate courses to civil servants mostly from the judiciary and the Attorney General’s Office.

In 2003, to increase the LL.B. program’s autonomy, thereby increase its research and budget, the University of Asmara upgraded the Law Program – which was under the College of Arts and Social Sciences until then – to an independent Faculty – Faculty of Law.[74] From 2003 to 2009, the Faculty of Law (late department of law) did not admit new students as the Government of Eritrea closed the University of Asmara in 2006. The Government opened small colleges instead, and the former Faculty of Law became a Department under the Adi Keih College of Arts and Social Sciences housed in a building formerly under the now closed University of Asmara. After seven years, the Department, in 2010, admitted around thirty students who finished one -year program in humanities. The LL.B. program requires a total of five years academic training and a one-year internship in the judiciary or other government offices. In 2003, the Law School had about 166 LL.B. candidates in addition to the 155 alumni.[75] Most of these graduates work as judges and prosecutors while some work as legal advisors in government offices.[76] Assuming that all the candidates graduated the ratio of LL.B. holder to the total population size of Eritrea is one LL.B. graduate to 1745 members of the public.[77] This shows that there is demand for legal personnel from both the private and public sector.

Resources – human and material – are a problem to Eritrean legal education.[78] There is lack of up to date printed and online resources.[79] Although steadily improving, there is lack of permanent faculty.[80]

With the publication of new major codes there will be need for scholarship and legal commentaries, casebooks, and supplementary educational materials. The once that have been in use in the law department were mostly published in the 60s as commentary and supplements to the Transitional Codes.

5.2. Lawyers and Legal Profession

Proclamation 88/96 regulates law practice in Eritrea. The Advocates Proclamation regulates, among others, admission, professional responsibility and disciplinary matters of advocates in Eritrea. The Proclamation provides two tracks for admission to the bar. First, a person who holds or has become eligible for conferment of a degree in law, and who has passed examination prepared by the Legal Committee of the Ministry of Justice is eligible for the bar. Second, the Legal Committee of the Ministry of Justice may waive the requirement of degree in law for one on account of his experience as a judge, registrar or prosecutor in Eritrean Courts. In both tracks, one has to have at least two years of experience, among others. The Legal Committee of the Ministry of Justice – chaired by the Minster of Justice – decides on admission applications, among others; while a Disciplinary Committee decides on disciplinary issues.

Accordingly, there are two layers of law practice in Eritrea: attorneys who can present clients in Zoba Court, High Court, and the last Appellate Court and those who can represent in Zoba Courts only.

Proclamation 88/96 or other domestic laws do not prohibit the formation of an independent bar association. There is no bar association in Eritrea, however. As mentioned in the above, admission to the bar is the responsibility of the Legal Committee of the Ministry of Justice. [81] The Legal Committee has jurisdiction on disciplinary issues of lawyers. In theory, the requirements to practice as an advocate are lax. [82] That is to say, the Legal Committee can exempt the qualitative requirements to practice law. In practice getting a license to practice law is complicated and tied to plethora of bureaucracy, conditions and unending national service.

There is no fully-fledged system of public defense – an institutionalized system that runs in public – private partnership. Defendants who are indigent, deaf and dump, juvenile and those charged with offense punishable with more than ten years rigorous imprisonment and more have legal right to public defense. Accordingly, the Court assigns a lawyer – a private practitioner- to represent an individual charged with offenses mentioned above. The representation lasts till judgment and may extend to appeal. The Ministry of Justice has assigned public defenders – from its personnel – to represent individuals who are eligible for public defense in High Courts that are situated outside Asmara – the Eritrean capital. There is an institutionalized public defense in the Military Courts. Military lawyers defend members of the armed forces in the Lower, High Military Courts, and in the Last Appellate Court.

There is no law that governs how non-Eritrean attorneys or foreign law firms can operate in Eritrea. When there is a need for representation, non-Eritrean attorneys or foreign law firms contract Eritrean attorneys to represent them or their clients in Eritrea.

Most lawyers practice law solo. The Ministry of Justice has not issued new license to recent law graduates for a while. The number of lawyers in private practice is dwindling due to old age and health, among others.

5.3. Law-Making Process

As mentioned in the forgoing, there is no legislation that governs lawmaking in Eritrea. In 1991, the PGE adopted the 1960 Ethiopian codes on transitional bases. Since then, the Government of Eritrea has issued around 200 proclamations and legal notices in the Eritrean Gazette – the official law reporter according to Proclamation 9/91. Some of these laws were issued when the National Assembly was operational and others after its suspension. Despite the lack of clarity on the law-making process, one can sense a general pattern in the nature of laws so issued. Laws issued between 1991 and 1998 are mostly structural legislations dealing, among other things, the structure of the government – its main branches and branches of the executive. Laws, issued between 19991-1998, include economy related legislations with a fairly liberal rhetoric. There was not much legislation between 1999-2001. In 2002, the Government started to issue welfare related laws, laws that regulate market and state intervention in the national economy demonstrated by foreign currency control, import permits and state intervention in private contracts – especially in construction and tenancy contracts. The Government also issued resource related laws and laws establishing state enterprises. Between 2009 and 2011, there was another legislative recess. In 2012, the Government of Eritrea issued laws that deregulate some aspects of the economy – particularly foreign currency and laws that transformed some state enterprises to share companies. Except for the major codes, the period between 2015-2018 was another legislative recess. A few acts dealing with environmental law, taxation and rent control were among the notable promulgations.

The Ministry of Justice, in 1997 started drafting major codes.[83] The Ministry established a Drafting Committee, which was composed of local and expatriate experts. The Ministry promulgated Civil, Penal, Civil Procedure and Criminal Procedure codes in May 2015.[84] The drafting process and history of these codes shows that the codes were intended to coincide with the ratified constitution of 1997. With the 1997 Constitution on hold the delay of enacting the major codes is expected. The Ministry of Justice provides several reasons for delay in enactment of those codes. The most recent rationale was that the drafters needed to incorporate and harmonize modern laws with customary norms. In a project evaluation conducted by UNDP it is reasoned that lack of resources to translate the codes into the Eritrean languages is considered a cause for the delay.[85]

5.4. Status of International Law

The status of international, conventional and customary, as a source of law is not clear in the Eritrean legal system. With the exception of the 1997 Constitution, there is no law or policy that clarifies the status or mechanics of domesticating international law into the Eritrean legal system. Courts do not cite rules of international law and parties hardly base their arguments on the same. Few legislations domesticate international agreements – agreements related to loan agreements and regional economic zones. Others contain substance that resemble to a content that one can easily find in international agreements but existent proclamations do not contain language intended to give domestic effect to international agreements.

There is also no law pertaining private international law or conflict of laws either, The Civil Procedure Code, however, contains few articles on the enforcement and execution of foreign judgments. There is also a practice related to Eritrean Courts either recognizing marriage concluded by Eritrean Diaspora and nullifying the same.

Eritrea is signatory to numerous international conventions. It submits country report to different treaty bodies and participates in Universal Periodic Review. In October 2018, Eritrea was elected to join the Human Rights Council.

5.5. Resources for Researchers

The newly enacted codes are the primary source of research on the Eritrean legal system. [86] The 200 or so proclamations and legal notices contain a dearth of legislation on a range of issues in Eritrea. The Gazette of Eritrean Laws is, however, limited to domestic circulation. There is no case reporter and one has to get official permission to access court judgments. The archives of the High Court of Eritrea have a wealth of cases – cases to date back to colonial era, which may be of interest to researchers who are interested in legal history.

Inside Eritrea, the Ministry of Justice Library and the Research and Documentation Center of the PFDJ have collection of these laws in print. The Law Library of the Department of Law has a fair collection of codes, proclamations, legal notices and commentaries. The former University of Asmara Research Library – now under the Eritrean National Board of Higher Institutes - has a collection of customary laws and other archaic resources. Outside Eritrea, the Library of Congress and Harvard Law School Library have good collection of Eritrean laws.

Online EriLaws provides comprehensive database of Eritrean laws along with short summary of each collection. Its collection includes laws that are repealed, amended, and laws that are in effect NATLEX, Refworld and LEXADIN: Ethiopia provide helpful information. [87] There is also a fair amount of scholarship written on the theoretical and empirical aspects of the Eritrean legal system.

6. Conclusion

The Eritrean legal system is in transition in many ways. Constitutional legal order is yet to be established. The government lacks a complete set of structures that is typical to the ordinary model of government. It was established on transitional bases in the first place. The status of legal education and legal profession likewise leaves a lot to be desired. Building a vibrant, critical and competitive mass of legal professionals depends, in part, on resource and independence, structural and political, of legal education in a legal system. Legal education in Eritrea needs genuine commitment to the advancement of legal thought, free expression of ideas, and assertive allocation of resources. The number of legal professionals in private practice is shrinking – limiting the supply and quality of legal service to the public. The legal market has to be liberalized. The Government of Eritrea has to allow members of the legal profession – those in different sectors of the legal system – to establish a professional association which would be a platform upon which they can hold debate on the state of law and its institutions in Eritrea and devise effective ways to assist the public in general and those in need in particular. That being said, courts – at all levels and sides of the judicial structure – are deciding cases and the Government of Eritrea is issuing laws on a range of issues. There is also a dearth of archaic legal resources, customary and colonial, in Eritrea. These all promise to be interesting resources for researchers who are interested in the challenges of post-colonial states in the formidable project of state building.

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[1] Lidia Favali & Roy Pateman, Blood Land, and Sex: Legal and Political Pluralism in Eritrea41-42 (Indiana University Press) (2003).

[2] Bereket Habte Selassie, Creating a Constitution for Eritrea, 9.2 J. Democracy, 165 (1998).

[3] Bereket Habte Selassie was the head of the Constitutional Commission from 1994-1997.

[4] Selassie, supra note 2, at 169.

[5] Id.

[6] Id. at 173.

[7] Article 6 and 7 of the Ratified Constitution of Eritrea.

[8] Ratified Constitution of Eritrea Chapters IV-VI.

[9] Ratified Constitution of Eritrea chapter III.

[10] Articles 8 and 21 of the Ratified Constitution of Eritrea.

[11] Articles 21 and 22 of the Ratified Constitution of Eritrea.

[12] Article 2 of the Ratified Constitution of Eritrea.

[13] Civil Procedure Code of Eritrea, Article 361-362.

[14] Criminal Procedure Code of Eritrea, Article 5.

[15] Haddas Ertra interview with President Isaias Afeworki, President of the State of Eritrea, January 2, 2015.

[16] Proclamation No. 23/1992 (as amended), Proclamation issued to determine the Structure and Authority of the Transitional Government of Eritrea, Gazeta Awagiat Eritra, Vol. 2/1992, No. 5.

[17] Id. The preamble of the mentioned proclamation states that “until the Eritrean people decides it’s right to self-determination through a plebiscites and until a constitutional government is established … the EPLF, in this transitional period, has the responsibility to proclaim and establish a transitional government so as to take its fight for Eritrean independence to its final destination”.

[18] Id., Art. 3.

[19] Id., Art. 3 (2).

[20] Id., Art. 4.

[21] Id.

[22] Id., Art. 6.

[23] The preamble of Proclamation No. 37/1993 incorporates similar language as Proclamation No. 23/1992. It states that the life span of the Government would be until the establishment of a constitutional government. Similarly, it reaffirms EPLF’s role in the new political set up while emphasizing the need to provide space for broader participation.

[24] Proclamation 37/1993, Art. 3(2).

[25] Under proclamation 55/1994 the Transitional Government of Eritrea established the Constitutional Commission. The Commission was entrusted with drafting the constitution of the Country that was ratified in 1997. However, it has not yet been implemented.

[26] Proclamation 37/1993, supra note 23, Art. 4.

[27] In its third congress, held in February 1994, EPLF changed its name to Peoples’ Front for Democracy and Justice. Currently, the PFDJ is the sole and governing party in Eritrea. Dan Connel, Inside the EPLF: The Origins of the ‘People’s Party’ & its Role in the Liberation of Eritrea, 28 ROAPE 345, (2001).

[28] Supra note 23.

[29] Supra note 23, Art. 4(3).

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id. at Art. 5. See also Legal Notice No. 16/1994.

[35] Legal Notice 16/

[36] Supra note 23.

[37] For instance, article 3(1) of Proclamation 132/2003 specifies how court establishment is supposed to correspond to local government structure.

[38] See article 5(6) of Proclamation 132/2003.

[39] Id.

[40] Supra note 23, at Art. 7.

[41] Teame Beyene, The Eritrean Judiciary: Struggling for Independence 11 (Eritrean Law Society Occassional Papers, Paper No. 7, 2010).

[42] Id., at 5-7.

[43] Eritrean Profile Interview with Minister Fawzia Hashim, Minister of Justice of Eritrea, May 16, 2015.

[44] Eritrea’s submission to the HRC (last visited on 01/15/2019).

[45] Daniel R. Meknonen, Transitional Justice: Framing a Model for Eritrea, 54 (May 30, 2008) (unpublished LL.D. dissertation, University of Free State).

[46] Id., at 55.

[47] Elobaid A. Elobaid and Senai W. Andemariam, Evaluation Report – Capacity Building in Justice Sector 12 (April 2007) (UNDP Report, UNDP Eritrea).

[48] Article 46 of Civil Procedure Code of Eritrea.

[49] Article 46 of Civil Procedure Code of Eritrea.

[50] Article 17 of Criminal Procedure Code of Eritrea.

[51] Article 45 of Civil Procedure Code of Eritrea.

[52] Article 17 of Criminal Procedure Code of Eritrea.

[53] Proclamation 85/1996 article 4.

[54] Preamble of the proclamation 85/1996.

[55] Id., Art. 85/1996.

[56] Id., Art, 6.

[57] Article 4(2) of proclamations 85/1996.

[58] Id., Art. 3 of proclamation 85/1996.

[59] Mekonnen supra note 48, at 56, 130.

[60] Proclamation 85/1996, Art. 5(1).

[61] Id. at 131.

[62] Article 44 of Civil Procedure Code of Eritrea.

[63] Article 17 of Criminal Procedure Code of Eritrea.

[64] Proclamation 167/2012, Art. 2(C).

The Government of Eritrea established community courts in 2003. There are 683 community courts in the country today. See Interview by Meron Abraha with Alem Gebru former Head of the Community Courts Monitoring Office of the Ministry of Justice, in Asmara, Eritrea (Nov. 23, 2005).

[65] Id.

[66] Elobaid supra note 50, at 10.

[67] Id. at 14-15.

[68] Article 3(1) of Proclamation 132/2003.

[69] Proclamation 167/2012. Art. 2(a)

[70] Elobaid supra note 50, at 15.

[71] FAVALI et al, supra note 1, at 47.

[72] Proclamation No. 4/1991, Proclamation to Establish the Eritrean Military Court.

[73] Favali et al. supra note 1, at 67.

[74] Yoftahe Kibrom, Law Program elevated to a Faculty, University of Asmara Bulletin, Nov. 2003, at 1.

[75] Id.

[76] Id.

[77] State Department estimates the population of Eritrea in 2010 to be 5.6 million.

[78] See supra note 88.

[79] See supra note 88.

[80] See supra note 88.

[81] Article 5 of Advocates Proclamation

[82] Art 4 and 5 of Advocates Proclamation.

[83] See supra note 47.

[84] Eritrean Profile Interview with Minister Fawzia Hashim, Minister of Justice of Eritrea, May 16, 2015.

[85] Elobaid supra note 50, at 17.

[86] Civil Code, Penal Code, Criminal Procedure Code, Civil Procedure Code, Transitional Commercial Code and the Transitional Maritime Code.

[87] Note that the major transitional codes of Eritrea were the once enacted by Ethiopia in 1960s.