Short of Judgement Execution Predictability, Federal System becomes Unruly

Jul 18 , 2021
By Yehualashet Tamiru

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Ethiopia has opted for federalism to preserve unity and create a cohesive economic and political community. Without incorporating a full-faith and credit clause, this would be complicated, writes Yehualashet Tamiru Tegegn (yehuala5779@gmail.com), adjunct lecturer at Addis Abeba University and an associate at MTA.

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It is naive to assume that people’s lives and work could be restricted by geography in such a competitive world. This movement of people inevitably leads to a conflict of laws, one of which is the refusal to recognise and give effect to one state's decision to that of another.

Ethiopia has been a federal republic for nearly three decades now. In this form of government, power is decentralised, with regional states assuming autonomy. Much has been said – good and bad – about the political implications of such a system, but what has rarely received mention is the failure to incorporate the full-faith and credit clause.

The term – full-faith and credit clause – pertains to recognising, accepting, and enforcing the laws, orders, and judgments of another jurisdiction. It means that a judgment receives the same effect in another regional sister state as it was first entered. It empowers the party that obtains a judgment – judgment creditor – in one state to petition another state court to enforce that same judgment. The parties thus do not re-litigate that specific issue and the court in the second state is obliged to fully recognise and honour the judgment of the first court in determining its enforceability and the procedure of its execution.

Like many modern constitutions, that of Ethiopia’s divides power between the federal and state governments. Both tiers have executive, legislative and judiciary branches. The constitution goes further and stipulates the principle of federal comity, which dictates that the regional states respect its power and vice versa. This implies that there is no constitutional obligation between the regional units to recognise and enforce one another’s judgment.

In the absence of a full faith and credit clause, two non-legal measures are used to solve the problems of execution and recognition of judgment. One is a system where the regional state looks to the federal government for direction on whether or not it should adopt a judgment passed by a sister state. Another way is diplomatic, which comes easy when the political system is a de facto one-party.

This needs to change through the incorporation of an explicit legal provision. If there is a legally recognised principle, people’s rights will not be up to the fate of the goodwill of federating units. It will further help build up an assertive society willing to express their discontent and grievance when there is mistreatment and denial of justice by any federating unit.

Moreover, as clearly stipulated in the constitution, everyone has the right to choose the economic activity to pursue their livelihoods anywhere. This constitutional right cannot be fully exercised without a legally recognised and enforceable intra-state conflict of law. Access to justice is the first necessary step in guaranteeing people’s fundamental rights and freedoms. Indeed, the country recognises access to justice as one of the fundamental rights of every individual under the supreme law of the land.

Beyond the argument of political rights, it also makes the most sense economically. As the economy opens up and infrastructure projects are completed, foreign direct investment (FDI) is expected to grow. The attraction of FDI over the past decade has been impressive, no less over the last year when there have been several political and economic challenges.

It is paradoxical trying to further attract FDI without granting them full-fledged and predictable rights to execute judgments. Say a cement factory registers in one region but operates all over the country. If there is any court decision in the region of establishment against or for it, and if that is not adequately guaranteed and protected in other regions, the business will be restricted in its operations and investments.

Such obstacles could be addressed by incorporating a full faith and credit clause under the legal system.

As things stand, there is no legal obligation to recognise and execute decisions rendered in one of the regions to that of another. As it is envisaged in the constitution's preamble, Ethiopia has opted for federalism to preserve unity and create a cohesive economic and political community. It is like waiting for the raindrop in the drought to imagine the realisation of this objective while disregarding the applicability of the full-faith and credit clause.

As the old saying goes, identifying the problem is solving half of it. The problem is vividly clear, and legal resolution is the ultimate solution.

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PUBLISHED ON Jul 18,2021 [ VOL 22 , NO 1107]

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