The the federal systems, are expected to exercise

 

The essence of
federalism is allowing us to have a various levels of government; in which the
federal constitution has the task to distribute the powers and responsibilities
between different levels of government. The essential feature of federalism is the recognition of
the separateness and independence of each government that makes up the
Federation. When the Countries choose to adopt federalism in
their political system, they can structure the federal systems in a variety of
ways so as to disperse power between the levels of government. This
constitutional allocation mostly uses two models. On the one hand, there is the
technique where the powers of the federal government are enumerated by the
constitution. The remaining powers – the residual powers – are exercised by the
regions. This model is exercised by USA, Ethiopia and other federations. In
other federations the opposite model is used. In Canada, for instance, the
residual powers are allocated to the federal government; the provinces only
have listed powers.1
Thus, in a federation there is a constitutional distribution of powers over, at
least, two governments: the federal government and the federated governments
(regional states).

The constituent units
(regional states) of all federation, in the federal systems, are expected to
exercise the legislative, executive and judiciary power in accordance to
federal constitution that allocated the power and responsibility among them. In
realty however, “in many federations-for example, Austria, Canada, and
India-have not instituted complete sets of courts at both the federal and
component-unit levels. The United States, in contrast, has fifty-one court
systems, fifty states and one federal, each with the full panoply of trial and
appellate courts”.2

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Federal systems
typically divide up judicial power between the central government and the
member states of a federal system, but the nature of this division can and does vary significantly.
The allocation of judicial power between the central government and the member
states in the federal system is refers as judicial federalism.3
Hence judicial federalism is all about the separation of judicial authority
between federal courts and state courts. “The issues of judicial federalism
arise out of the structure of country’s judicial federalism which represents a
commitment to plural, yet interconnected systems of adjudication.”4 Judicial
federalism relies on the principle that the state and federal court together
comprise an integrated system for the delivery of justice in the federally
structured country’s political system.5

In Ethiopia, before the adoption of the transitional charter
in 1992, the judicial system is commonly distinguished by a fusion; there were
no separation between the administrative and judicial functions- it were under
one organ of executive. For instance, “adjudication of cases has formed part
and parcel of public administration. One finds a merger of functions, with the
adjudication of cases being considered a principal function of the executive.
For example, in Menelik’s (18891913) era, the Minister of Justice was also the
Chief Justice”.6 For
the first time, in 1942 the High Court and the Supreme Imperial Court became independent
from the influence of provincial administrators. But still, the Emperor was the
dispenser of justice in the Zufan Chilot.7
During the Derg regime the country’s judicial system was unitary and there was
only one Supreme Court sat in Addis Ababa-a capital city and with the fourteen
High Courts in each provinces of the country.8

However, after the dawn fall of the Derg regime, the Ethiopia’s
court structures started to have the form of dual judicial structure and the courts
established both in the central and regional governments following the approval
of transitional charter. A Proclamation No. 40/1993 was a first law that established
plural judicial organ both in the Central Transitional Government and regional
governments. “This
Proclamation created a three-tier judicial structure consisting of a Supreme
Court, High Court and First Instance Court….Furthermore, the Proclamation
provided for the establishment of regional courts by the National/Regional
Self-Governments. This seemed to initiate the development of a parallel
structure of courts at the federal and regional levels.”9

 The Federal
Democratic Republic of Ethiopian Constitution (herein after FDRE Constitution) of
1994 has also followed the footpath of the transitional government court
structure arrangements- the dual court structure, and this is fully elaborated
in the new Constitution. Nevertheless, FDRE Constitution is slightly diverted
from the approach that had used in the Proclamation No. 40/1993 on the
establishment of judicial structure in its new arrangements. “The arrangement
included in the constitution can best be described as an ‘incomplete’ parallel structure.”10
Overall, however, the Constitution draws a line of distinction between the
Judicial Powers of the Federal and the Judicial powers of a State. Accordingly,
“the supreme federal judicial authority is vested in the Federal Supreme Court”
and similarly, it stipulates that the Federal Supreme Court shall have the
highest and final judicial power over federal matters.11

Relating to the federal judicial structure, the constitution
only established the Federal Supreme Courts and without establishing the
Federal High and First Instant Courts by simply reserving the power to the
House of Peoples’ Representatives (herein after HPR) to decide by a
two-third-majority vote, to establish nationwide, or in some parts of the country only,
the lower level federal courts as it deems necessary.12
Thus, there is only one federal Supreme Court which is directly established by
the FDRE Constitution. The rest lower level of federal courts must need the
consent of the HPR for establishment, and until 2003, the federal High Court
and First Instance Courts were only limited to Addis Ababa and Dire Dawa.
In 2003, however, HPR by using the power endorsed to it under Article of 78(2) of
the constitution enacted the Proclamation
No. 322/2003 “to provide for the establishment of Federal High Court in some
Regions”.13
This Proclamation provided for the establishment of federal High Courts in five
of the nine regions (Afar, Somali, Benishangul/Gumuz, Gambella and the Southern
region).14

As
far as the State judicial matter is concerned, the constitution stated that the
regions shall have a three-tier judicial structure, which is composed of a
Supreme Court, High Courts and First Instance Courts.15
To this, the Constitution provides that the “State Supreme Courts shall have
the highest and final judicial power over State matters.16
The state courts shall also exercise the jurisdiction of the Federal High and
First Instance Courts by virtue of the principle of constitutional delegation until
HPR will establish the federal courts in the regions.17
Article 80(2 and 4) also stipulates that the “State Supreme Courts, in addition
to State Jurisdiction, exercise the jurisdiction of the Federal High Court and
similarly, the State High Courts exercise the jurisdiction of the Federal
First-Instance”. But here “the provisional character of the delegation is no
longer mentioned. The heading of Article 80 is “concurrent jurisdiction.”18

As
stated above, HPR already established the Federal High court in only five
regional governments and this mean that, constitutional speaking, the delegated
power given to State courts in concerning to jurisdictional matters are taken
over from those regional government where federal high court is already
established. But in contrary, in the remaining four regional governments the state
courts have a power to adjudicate any material jurisdiction that fall under the
federal high court and federal first instant court in accordance to
proclamation No.25/1996 with the Federal Courts (Amendment) Proclamation No.
321/2003, which enacted for determining the jurisdiction of the Federal Courts.

When
we look the institutional architecture of the Ethiopian judicial system; there
are two structural arrangements. The first one structure is that there is a Federal
Supreme Court at the apex with appellate jurisdiction even over state cases
that implicate the state interests and five federal high courts in the regional
state, in addition to those exist in Addis Ababa and Dire Dawa, which
administer federal law directly and in state level a State Supreme Court with
appellate jurisdiction over state cases and that implicate federal interests. In
the other one is the three-tier of state courts that administer State law
directly and Federal law under the guise of delegation. When it glanced from
the judiciary’s setting up, these two structures have created a unique judicial
federalism. It also appears that the parallel existence of the judicial organ
at the Federal and State levels gives the impression that there is judicial
federalism in the Ethiopian particularly under the 1994 Constitution. Unlike
the Legislature and the Executive which the constitution has been delimited the
competence area between the Federal and the State as they are supposes to
exercise in accordance to their jurisdiction that already stated under the
Constitution, but the judiciary does not get the clear advantage of demarcation
of jurisdiction of from such precision. A briefly looking at the Constitution
reveals that even as article 51 and 52 of the FDRE Constitution sets out in
precise terms, the scope of legislative and executive powers as between the
Federal and States, same cannot be said for the Judiciary. Article 51 and the
extension of this article, article 55 of the constitution is expressly provide
for the scope and extent of the federal legislative powers, and  Article 52, in similar way deals with
legislative powers of the State government.

The
same scenario is to be found in article 50(1) of the constitution where another
line of distinction is drawn between the Executive power of the Federation and
the Executive powers vested in a State. We can now compare the above with what
is obtainable under chapter nine of the Constitution, which deal with the
structure and Powers of the Courts. When both federal and states’
legislative are enacted laws on the same area like proclamation of Coffee, Forest,
Land,
Anti-corruption…etc and gave the power of adjudication power on the related
issues under that laws to their respected judicial jurisdiction other than
delegation on the federal matters to state courts, it further make country’s
judicial federalism a very complex and leads the adjudication process deadlock.

Currently the act of federal government make the
things more worse than before by enacting the law, which is federalizing criminal
matters and exclude the state courts from entertaining the law even by its delegated
authority without establishing the lower federal courts in the regional. Anti terrorism and other laws enacted by federal
legislative is good example that indicates the federal government has directly
encroached into the state jurisdiction including state judicial jurisdiction
power. Typically, I tend to scrutiny controversy over judicial federalism
through the lens of the principle of federalism that has introduced in the FDRE
constitution; in which federal jurisdiction functioned to consolidate the power
of national institutions against the rights and interest of states’ rights that
promoted the independence of state courts from federal oversight.

1 Ronald
L. Watts, Comparing Federal Systems 3rd Ed.pp.89

2 G.
Alan Tarr, JUDICIAL FEDERALISM IN THE UNITED STATES: STRUCTURE, JURISDICTION,
AND OPERATION http://portales.te.gob.mx/x_mesa/media/pdf/a74a262dca88ddc.pdf

3Ibid

4
Charlton C. Copeland,  Federal Law in
State Court : Judicial Federalism Through a Relational Lens, WILLIAM & MARY
BILL OF RIGHTS JOURNAL(2011) Volume 19 | Issue 3 Article 2.pp 514

5 https://famguardian.org/PublishedAuthors/Govt/JudConfOfUS/CH04.pdf

6
Assefa Fiseha, Separation of powers and its implications for the judiciary in
Ethiopia, Journal of Eastern African Studies. pp703

7
Ibid

8
Ibid

9 Christophe
Van der Beken. pp.211

10
Ibid pp. 211-12

11 Article
78(2) and Article 80(1) of the FDRE Constitution

12
Ibid,  article 78(2)

13
Federal High Court Establishment Proclamation No. 322/2003

14
Ibid, see article 2

15
Article 78(3) of FDRE constitution

16 Article
80(2) of FDRE constitution

17
Article of FDRE constitution

18
Supra note 9, Christophe Van der Beken.

x

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