BAUD, SITTIE RAINNIE M.

1ST YEAR SECTION FERNANDO

INTRODUCTION TO ERITREAN LEGAL SYSTEM

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 yet each similarly endowed with a rich history of culture, religion,
and law, to name a few. The nine ethnic groups live over a landmass of 125,000 km2
continental and over 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 bearing 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 till the UN 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 after ten years. Eritrea lost the minimal
political autonomy that it had under the federal framework and became a province of
Ethiopia. After thirty years of war, Eritrea got its independence in 1991 and became a
member of the UN in 1993 after holding national referendum to determine Eritrean
independence by popular vote.

Eritrean legal history is usually associated with the advent of western colonization
to Eritrea. Although the Italian colonial administration had significant influence on
Eritrean legal history the truth remains, however, that the 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, the customary
laws of the Saho, Fetha Mahari, 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. The paper, in Part I, elaborates constitution and constitutionalism in Eritrea.
Part II elaborates the structure of the Eritrean Government while 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.

Part I. 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 prepare a draft constitution, which would be ratified
by a Constituent Assembly. A Council and an Executive Committee made 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 the society. [ [4] ] The
constitution making process, according to Habte Selassie, ensured public participation
through public debate while many has criticized the process as being less exclusive and
over shadowed 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 Constitution, as it stands today, establishes a unitary State and a government

established according to democratic procedures. [ [7] ] The Constitution outlines the
structure and powers of the three branches of government the 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, to its
credit, 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 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 Constitution, as mentioned in the foregoing, has not come into effect. Courts
hardly relay 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 which is an exclusive jurisdiction
of the High Court - is an exception. The High Court has heard a sizeable number of
habeas corps petitions. Enforcing orders of habeas corpus is often a problem, however.
Proclamation 90/96 provides freedom of expression, press, and private media print
media ownership in Eritrea, The Government of Eritrea, however, closed private media
in 2001, and arrested most of their editorial staff then. The Constitution requires all
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. In lieu of
a Constitution and constitutionalism, Eritrean Courts resort to teleological interpretation
should they have to interpret statutes, proclamations, and regulations laws that make the
corpse of the Eritrean legal system - again for their statutory and not constitutional
consistency at this moment.

Part- II Government

In 1991, the Eritrean Peoples 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. [ [13] ] 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. [ [14] ] 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. [ [15] ] The Central Committee, as such, assumed law-making
powers [ [16] ]. The Council of the Government of Eritrea became the executive branch
of the PGE. [ [17] ] 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 the executive
branch. [ [18] ] 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. [ [19] ]

In 1993, Eritrea, pursuant to Proclamation 22/1992, administered a national

referendum to determine Eritreas 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. [ [20] ] 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 Minsters
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. [ [21] ] 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.[ [22] ] . 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.

2.1 National Assembly

During its less than a decade life span, the Eritrean National Assembly had a
unicameral structure. [ [23] ] Proclamation 37/93 reserves fifty percent of the total 150
seats of the National Assembly to members of the Central Committee of the Peoples
Front for Democracy and Justice (PFDJ) formerly EPLF. [ [24] ] The remaining half of
the seats went to popularly elected representatives. [ [25] ] 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. [ [26] ] The President served as a
Chairperson of the National Assembly and the Cabinet of Ministers. [ [27] ] 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. [ [28] ] 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 lawmaking process. [29] ] 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. [ [30] ]
 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 Assemblys 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.

2.2 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. [ [31] ] 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. [ [32] ] These, are: the Ministry
of Regional Administration, Ministry of Defense, Ministry of Internal Affairs, Ministry of
Justice, Ministry of Foreign Affairs, Ministry of Information and Culture (now Ministry
of Information), Ministry of Finance and Development (now of 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), the Ports Authority, the Housing Commission, and the 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. [ [33] ]

In terms of authority, bodies of the executive according to Proclamation 37/93

as amended have the mandate to develop policies relevant to their domain, and they
oversee its execution. They have also regulatory power over issues that fall within their
preview. Ministries and the 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 Maaekl. Each Zoba administration, according to
article 6 of Proclamation 86/96, has three tiers of administration Zoba 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 not 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 women to the Baito Zoba, where they have a reserved of 30% from the
total Baito seats.

2.3 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 judiciarys
structure follows the structure of the local government. [ [34] ] 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.
[ [35] ] Zoba Courts, which parallel with Zoba administration of local government are at
the second tier of judicial hierarchy. [ [36] ] The High Court is the highest judicial
structure with has the ultimate jurisdiction all over Eritrea. [ [37] ] Without a Supreme
Court, the Highest Appellate Court takes the role of court of last resort. [ [38] ]
Proclamation 25/92 establishes a Panel of five judges composed of the President of the
High Court and other four High Court Judges - within the High Court to serve to hear
cases decided by the High court in the form of appeal.. [ [39] ]

Speaking of separation of powers, article 7 of Proclamation 37/93 safeguards the

judiciarys independence. [ [40] ] Although the President of the High Court oversees the
administration of courts, the Ministry of Justice provides budget and human resource to
the judiciary. [ [41] ] Teame Beyene the former President of the High Court explains
the executives interference in the independence of the judiciary at length.[ [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 codes embody big if not
the biggest - body of laws in Eritrea. Subsequently issued proclamations and legal notices
have amended most of the codes. Since 1991 the Government of Eritrea has issued more
than 150 laws proclamations and legal notices - dealing on a range of issues.

The Eritrean legal system relates more to the civil law tradition. The procedural
codes have elements of adversarial system, however. Parties to a dispute have an active
role during the process of trial, and the codes allow chief-examination, cross-
examination, and in-chief examination, which are typical to the common law legal
system.

Part III Court Structure

The Eritrean judiciary can be divided into three: 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.

Daniel R. Mekonnen explains the post-independence political situation in Eritrea

as the source of irregularity in the Eritrean judiciary. [ [43] ] The formation of the Special
Court for example, Mekonnen asserts, is due to as a lack of democratic governance in the
country. [ [44] ] 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. [ [45] ] The following paragraphs
explain the composition and material jurisdiction of Courts in Eritrea.

3.1. Civil Regular Courts

Zoba and High Courts make civil regular courts in Eritrea . Both Courts serve as
first instance and appellate courts. According to Proclamation 167/2012 Zoba Courts
have first instance material jurisdiction over cases that involve movable property worth
100,000 to 500, 000 Nakfa [ [46] ] and 150,000 to 1,o00,000 Nakfa in cases related to
immovable property. [ [47] ] Zoba Courts have also first instance jurisdiction over all
cases except those that are specifically assigned to the jurisdiction of other courts
whose value cannot be determined in money including filiation cases. [ [48] ] The High
Court has first instance jurisdiction to adjudicate movable property related cases worth
more than Nakfa 500,000 and immovable property related cases worth more than Nakfa
1,000,000 [ [49] ]

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, habeas corpus, expropriation of
property, nationality, , expropriation, and communal exploitation of property. [ [50] ]

With regard to criminal jurisdiction, gravity of a particular offence determines

material jurisdiction of courts. Grave offenses, generally, fall to the jurisdiction of the
High Court. [ [51] ] Grave willful injury(article 538 of the Transitional Penal Code), for
example, falls within the jurisdiction of the High Court while common willful injury
(article 539 of the Transitional Penal Code) falls within the jurisdiction of Zoba Courts.
[ [52] ]

The Zoba and High Court also serve as appellate courts in civil and criminal
cases. Zoba Courts adjudicate cases decided by Community Courts in the form of
appeal. [ [53] ] Zoba Courts have also appellate jurisdiction over cases decided by the
First Instance Labor Court. The High Court hears cases decided by Zoba Courts first
instance cases and appeal cases from decisions of Community Courts- in the form of
appeal, and appeals from decisions of the Tax Appeal Commission and the Labor
Relations Board.. A Panel of five High court (including the President of the High Court)
judges commonly referred to as the Last Appellate Court has appellate jurisdiction
over cases decided by the High Court first instance cases and cases decided by the High
Court in the form of appeal from Zoba Courts. The Panel has appellate jurisdiction over
criminal cases decided by the Military High Court.

It should be pointed out that Communal 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. [ [54] ] The next
section discusses the composition and jurisdiction of the Special and Communal Courts.

3.2. Special Courts

3.2.1. 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. [ [55] ] the Special Court has jurisdiction criminal jurisdiction only
on offences related to theft, embezzlement, corruption, abuse of power, among others.
[ [56] ] 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 Transitional Penal Code or any law
for that matter. [ [57] ] The Court, pursuant to article 4(2) of the Special Courts
Proclamation, has the power to re-open cases cases related to its jurisdiction- decided
by other courts.[ [58] ] Procedurally, the Proclamation empowers the Court to use any
procedure or method of investigation that it deems fit. [ [59] ] . 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. [ [60] ] Trials are held in closed session as well.
Furthermore, the Courts decisions are final. [ [61] ] The Special Court, so far, has
developed several internal working methods within like internal review process . Little
is, however, know about the nitty gritty of 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. [ [62] ] 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.

3.2.2. Community Courts

Community Courts are the most recent addition to the Eritrean judicial structure.
Community Courts, according to Proclamation 167/2012, have material jurisdiction on
civil cases related to movable property worth up to Nakfa 100,000 and Nakfa 150,000 in
immovable property. They also have jurisdiction over land related cases, lost and found
property and animals, servitude, rain and drainage, marriage related issues, succession,
and tenant and landlord related cases. In criminal cases, Community Courts have
jurisdiction on cases related to forestry and wildlife development, physical assault,
intimidation, defamation and maintenance and alimony cases among others [ [63] ]

One of the main distinguishing factor of Community Courts from Civil Regular
Courts is that Community Courts use local norms and custom of the society in resolving
disputes. Moreover, the 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 Court, using statutory law, hear cases
decided by Community Courts in the form of appeal. This is also to say that regular
courts cannot apply customary laws as, at least in civil cases, the Transitional Civil Code
of Eritrea article 3347 repealed the application of customary law unless otherwise
specified. [ [65] ] 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 Community Courts as

judges are elected by their communities. [ [66] ] The Ministry of Justice, which is
responsible for management and budget of Community Courts has, however, provided
different skill and expertise building programs to judges of Community Courts judges.
[ [67] ] The training includes basic literacy programs, file keeping and basic legal
training. [ [68] ] 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 laws as
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 magistrates of Community Courts.. [ [69] ] Subject to reelection, the tenure of the
judges is limited to a period of four years. [ [70] ] Speaking 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 case using a language they mother tongue. This is on top of
empowering the community not to reelect judges who does not serve the communitys
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 has a reserved seat - is a
positive impact in changing the traditional role of women in Eritrea. [ [71] ]

3.2.3. Sharia Courts

Sharia Courts assumed judicial functions during the Italian period in Eritrea.
[ [72] ] After independence there is no legislation that specifically details the structure
and jurisdiction of Sharia Courts in Eritrea. Proclamation 2/1991, however, provides that
the marriage and succession related provisions of the Transitional Civil Code of Eritrea
do not apply to marriages concluded according to Sharia Law. [ [73] ] 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, for example in terms of succession.

3.2.4. 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
reserved army, prison wardens and former combatants discharging governmental
functions. [ [74] ]

Military Courts have 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.

3.2.5. Administrative Tribunals

Besides the regular and special courts mentioned in the above, there are quais-
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 have
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 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.

3.3.6 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 the merit of the case. Decision is
expected to reach by consensus. In case of lack of consensus, decision is adopted by
majority.

In other cases, Courts encourage parties to a case especially if it involves family

members to solve their differences amicably.

Part IV Crosscutting Issues

The Eritrean legal system has other components besides laws and institutions.
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.
4.1. Legal Education

Legal education has a fairly short history in Eritrea. The University of Asmara
first started to provide legal education in 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
offering and facilities in 1979. After independence, in August 1992, the University of
Asmara prepared 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 to the LL.B. program. The first class
included diploma graduate students and students who finished one year of humanities. .
[ [75] ] 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. From 1997-2003, the
University of Asmara offered diploma education to students who were mostly from the
judiciary and the Attorney Generals Office.

In 2003, to increase the LL.B. programs autonomy, thereby increase its research,
and budget the University Asmara upgraded the Law Program which was under the
College of Arts and Social Sciences until then as an independent Faculty- Faculty of Law.
[ [76] ] In 2003, the Faculty of Law stopped admitting new students and 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. Students do a one year internship in the judiciary and in other
government offices. In 2003, the Law School had about 166 LL.B. candidates in addition
to the 155 alumni. [ [77] ] Most of these graduates work as judges and prosecutors while
some work as legal advisors in government offices. [ [78] ] 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. [ [79] ] This shows that the demand
for legal personnel from both the private and public sector is huge.

Resources human and material is a major problem to Eritrean legal education .

[ [80] ] There is lack of up to date printed and online resources. [ [81] ] Although steadily
improving, there is lack of local permanent faculty . [ [82] ]

4.2. 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. [ [83] ] The Legal Committee has jurisdiction on disciplinary
issues of lawyers. In theory, the requirements to practice as an advocate are lax. [ [84] ]
That is to say, the Legal Committee can exempt the qualitative requirements to practice
law.

There is no fully-fledged system of public defense an institutionalized system

that runs in public - private partnership. Lawyers rarely take cases on pro bono cases.
Defendants who are indigent, deaf and dump, juvenile and those charged with offense
punishable with more than ten years rigorous imprisonment and more the right to public
defense. Accordingly, the High Court assigns a lawyer a private practitioner- to
represent an individual charged with offenses mentioned in the 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 assign Eritrean attorneys to represent them or their clients in Eritrea.

Most lawyers practice law in solo in Eritrea. 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 old age and health, among others.

4.3. Law-Making Process

As mentioned in the forgoing, there is no legislation that governs law-making in

Eritrea. In 1991, the PGE adopted most part of the 1960 Ethiopian codes. Since then, the
Government of Eritrea has issued around 150 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 1991and 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
no much legislation between 1999-2001. The law-making machinery of the Government
rebounded in 2002 when 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.
 The Ministry of Justice, in 1997 started drafting major codes . [ [85] ] The
Ministry established a Drafting Committee, which was composed of local and expatriate
experts. The Ministry has not promulgated the codes so far. . [ [86] ] Lack of resources to
translate the codes into the Eritrean languages is considered a cause for the delay. .
[ [87] ]

4.4. 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 in the Ratified 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 the proclamations do not contain language that its purpose is
to give domestic effect to the convention.

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

4.4. Resources for Researchers

The transitional codes are the primary source of research on the Eritrean legal
system, [ [88] ] The 150 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. There is no database of
Eritrean laws that is accessible online. One can, however, find helpful information in
NATLEX , Refworld and LEXADIN: Ethiopia . [ [89] ]. There is also a fair amount of
scholarship written on the theoretical and empirical aspects of the Eritrean legal system.
Conclusion

The Eritrean legal system is in transition in many ways. The Eritrean legal system
has extra miles to go in terms of constitution and constitutionalism. There is no
constitutional legal order even in the loose sense of the concept and the Ratified
Constitution is in a middle of the road awaiting implementation or replacement by a
new political process. 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 major codes, which make the bulk of the Eritrean laws, are similarly
transitional. In terms of judicial structure, the Government of Eritrea has been
experimenting with different models regular, special, communal and so forth - each
drawing unique attributes and challenges to judicial process. Although one can rightfully
argue that there is hardly a singular judicial blueprint and a multitude of judicial
structures draw efficiency and legitimacy to the administration of justice, having a
sensible, coherent, and rights-based adjudicative structure should be elements of any
judicial structure. The Eritrean legal system has to yet embrace these attributes. The
status of legal education and legal profession similarly leaves a lot to be desired. Building
a vibrant, critical and competitive mass of legal professionals depends, in part, on the
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 aggressive 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.