College of Law and Governance
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The College of Law and Governance is dedicated to education, research, and public service
in law, governance, public policy, and institutional development.
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Item INVESTOR-STATE ARBITRATION UNDER ETHIOPIAN BILATERAL INVESTMENT TREATIES(2018-06) GIDEY BELAY ASSEFAInvestor-state arbitration is quasi-judicial means of settling investment disputes which was considered as neutral, flexible, cost effective and specialized form of dispute settlement. Currently, however, the overall system of investor-state arbitration is criticized for it gives protection to investors while undermining host state’s interests. Almost all Ethiopian BITs contain investor- state arbitration. It is not known, however, if investor-state arbitration under these BITs balances the interests of investors and host states. Hence, the objective of this study is to examine whether investor-state arbitration provisions of Ethiopian BITs balance the interests of the country and investors. In doing so, text analysis of 28 Ethiopian BITs is made. A semi-structured interview with purposively selected individuals, who are academicians, practitioners and government officials, is also employed. Literatures and reports are also used. Consequently, it has been found that most investor-state arbitration provisions are framed broadly and leave many procedural issues to external rules of arbitration thereby give unfettered discretion to tribunals. They are inconsistent and open to abuse of MFN. Host states are not guaranteed to submit claims or counter claims and the types of relief that the tribunal may render is not addressed within the BITs. These findings take us to the conclusion that investor-state arbitration under Ethiopian BITs guarantee the rights of investor, and not the host state. These provisions can have a devastating effect on the host country once a case arises. An analysis on the compatibility of the recent global developments of rectifying the problems have been conducted that revealed that abandoning investor-state arbitration is not a good choice for Ethiopia. The study finally recommended that investor-state arbitration must continue to exist in the Ethiopian BITs but with major reform.Item CERTIFICATION OVER CERTIFICATION AS URBAN LAND TENURE CHALLENGE: THE CASE OF HADIYYA ZONE(2018-05) GETISO DETAMO MEKEBOGiven the lack of a formal urban registration system in Ethiopia, registration and certification in urban centers are normally linked to the provision of land for new holdings or transfer of use rights for existing landholdings. It also relates to regularization process of informal settlements and current pilot works on urban land re-registration towards securing urban land rights. The purpose of registration and certification in urban land administration is aimed at securing urban lands for the landholders because secured tenure is a precondition to reap all the benefits accrued from urban land rights. In relation to registration of urban lands, this research considers COC as one of the major challenge of good urban land governance. COC is a scenario in which the same urban plots are entitled and certified for more than one person. In answering the research questions, the thesis involved a combination of doctrinal legal research and largely supported by qualitative data. To this end, the findings of this study uncovered hosts of problems such as; legal double or multiple allocations through earlier permit systems, issuance of forged receipts or titles and concluding illegal oral contracts. Further, regularization process of illegal settlements and existence of informal legal settlements without due documentation and serious corruption in urban land sector are also among the hosts. As a result, urban landholdings are insecure which has compromised all synergy of lease/use rights of the holders. Thus, some are beneficiaries and some others like vulnerable persons are victims. In a nutshell, this study identified that the urban land- to-landholders relationship is in a vicious circle and hence, COC is one of the manifestations of weak urban land administration.It recommends the enhancement of good governance in urban land administration and unreserved political commitment thereof towards ensuring secure urban land lease/use rights.Item AN ASSESSMENT OF THE CAUSES AND EFFECTS OF HUMAN TRAFFICKING: THE CASE OF SAESIE TSAEDA EMBA WEREDA, TIGRAY REGIONAL STATE, ETHIOPIA.(2019-11) DESALEGN TEKA GIDEYThese days, trafficking is a worldwide concern that affects the whole world. Every nation in the world, including Ethiopia, has been impacted by human trafficking regardless of socio-economic status, history or political situation. Thousands of Ethiopians trafficked irregularly through the facilitation of brokers and traffickers and face several horrible challenges and perils in the desert and sea routes, transit as well as in the destination countries. Thus, this thesis aims to explore the causes, actors and physical and socio-economic effect of trafficking in persons on victim migrants in Sa’esi’e Tsa’eda Emba wereda, Tigray regional state. This study employed exploratory research design relying on a qualitative research approach and non-probability sampling technique. The total number of research participants were 41 (15 returnees, 5 key informant and 21 individuals for Focus group discussions). The research participants were selected based on snowball and purposeful sampling methods. Data were collected from primary and secondary sources through in-depth interview with returnees, key informants, FGDs and reviewing relevant literature. In general, the research findings show that economic and socio- cultural factors are the major causes of trafficking in persons in the study area. Besides, lack of good governance, corruption, and denial of justice are also other triggering factors of human trafficking in Saesie Tsaeda Emba wereda. Further, the findings indicate that the trafficked individuals have faced multifaceted economic, physical and psychological perils during the journey in transit countries as well as after reaching the intended destination countries. The study recommended that the government should reduce poverty, controls its borders, and promote awareness to all levels of the community in the wereda.Item Analyzing the Legal and Institutional Functions of Copyright Collective Management Society in Ethiopia: A Comparative Analysis.(2019-03) Berhanu MulugetaCopyright collective management society is very important for managing copyright since individual management is impossible for right holders to exercise their rights by dealing with all potential users. Accordingly, the objective of this thesis is to examine the adequacy of the legal and institutional function of collective management society in Ethiopia and go through the legal loopholes of the new amended copyright law and difficulties of Ethiopian collective management society. The research is predominantly doctrinal and qualitative data is used to test the validity of the research .Also, Comparative study was conducted with foreign laws of other countries namely Canada, Germany, India and Nigeria since these countries have a sound copyright policy, well developed collective management society, and comprehensive copyright law. The researcher found that certain ambiguities on the legal provisions on the formation of collective management society are obstacles for the formation of collective management society. The provisions of Ethiopian collective management society are not compatible with digital technology. Also, the study found out in addition to the legal gaps, there are other challenges that affect the establishment of a strong and functional collective management society in Ethiopia; for instance, lack of trust of copyright owners on collective management society, lack of unity among the copyright owners and cooperation between the government agencies. Therefore, it is concluded that collective management society has not been effectively functioning in Ethiopia due to loopholes of the provisions of copyright law and unable to keep the interest of copyright owners. Accordingly, the researcher recommends amendments in the provisions of the copyright and neighboring right law to make it comprehensive law and to provide viable solutions for the legal gaps and problems that affect the formation of vibrant collective management society. Moreover, Ethiopia should adopt the experiences of the countries like German, Canada, India and Nigeria in managing copyright in protecting the rights of copyright owners and users and set up a well-developed collective management society.Item The Legal and Institutional Framework of Public Construction Works Procurement in Ethiopia(2019-04) Yohanan YokamoEthiopia has adopted its own legal and institutional framework of public procurements consisting of modern public procurement rules, principles and regulatory set ups so as to overhaul the weak and corrupt public procurement systems. Although there are changes in the Ethiopian legal and institutional framework following the enactment of the 2009 Public procurement proclamation, it is argued with regard to its application to different type of public procurements. Accordingly, this paper particularly deals the legal and institutional framework of public construction works procurement in Ethiopia. Crucially, the public procurement regime in a market economy is, inter alia, determined by the quality of the consistency and inclusion of the modern guiding principles for public procurement laws. In this respect, the Public procurement regime has markedly developed considerable guiding principles of public procurement. Accordingly, this work assessed those principles in legal and institutional framework of public construction works procurement in Ethiopia and through discussion; it has found contravening the guiding principles. Accordingly, based on the legal research qualitative methodology and primary data, cases and looking into the existing literature, the paper basically identified that inadequate emphasis given to the methods and procedures of public construction works procurement and lack of specific regulatory framework that adopt e-procurement methods of procurement and Performance- Based Contracting (PBC) in government construction works procurement, and nonetheless, the failure of regulatory framework to effectively address procurement made between two and more public bodies and the fragmented nature of public construction works procurement regulatory framework are crucially affecting the effectiveness of the public construction works procurement in Ethiopia. In addition, the thesis further argues, absence of comprehensive regulatory framework that allows public bodies to check the reasonable performance, require regulatory reforms in Ethiopia to introduce new approach and tools like Performance Based Contracting (PBC) that enable public bodies to reasonably check „cost of procurements effectiveness‟. As regards institutional setups for the competitive public construction works in Ethiopia, the study identified the absence of coordination and overlap of mandates among government organs charged to check and balance the activity of procuring organs in public construction works in Ethiopia.Item BALANCING RIGHTS AND OBLIGATIONS IN ETHIO-CHINA BIT(2019-06) HASHIM TUNAThank you Lord ,you are Unmoved mover of globe, for making this possible and for all the blessings. May your name always be praised because it is only through you Lord that your creation can live a more fulfilled and purposeful life. This thesis would have remained an idea without the constant encouragement, unwavering dedication and outstanding supervision from my supervisor ,Associate Professor Daniel Behailu. At a personal level, he is generous, friendly and easily gets along. At a professional level, he creates the perfect environment for personal growth, reflection, focused research and offers meticulously insightful comments. I am deeply indebted for the invaluable time we spent discussing numerous general international laws during investment course and while conducting my thesis. Thank you so much for your patience and for your intellectual curiosity. I would like to thank my parents ,especially my Mom, who always encouraged me to seek new challenges and opportunities for my personal development. Additional thanks are due to my colleagues in Justice Office, thank you for the steadfast friendship and the moral support above all for the, constant inspiration. All of you , thank you for the friendship and for the motivation. I would like to thank my son, Singtan, who provided me with a very peaceful pregnancy, which made it possible that I continued to pursue my Master’s degree and write my thesis while working full time. Lastly, Special thanks are due to my wife ,Emu, for all the love and support, constant encouragement, generosity and for keeping me grounded and who followed with a lot of enthusiasm the development of this thesis. Thank you very much for your love, understanding and for enduring little bear’s kicks during my absence. I hope when little bear ,Singtan, is of age the thesis will inspire her to pursue an education beyond this level. I would never be able to make this dream come true without your support and assistance. From preparing our meals and organizing the house, to listening to all my ideas for the thesis, my wife was undoubtedly the strongest boost that I had to make this thesis a reality.Item EXPROPRIATION OF PERI-URBAN LANDS IN SNNPRS: EXPERIENCE FROM HADIYYA ZONE(HAWASSA UNIVERSTY, 2018-06) ASHENAFI ABREHAM JORGEThis paper critically examines the laws applicable for expropriation of peri-urban lands in SNNPRS and the adequacy and fairness of the amount of compensation and the existence of public purpose. The paper also tried show the process of expropriation in existing laws and regulations in SNNPRS such as regulation No. 123/2015 and Directive No.08/2015, both laws were issued to implement the federal Lease holding proclamation No.721/2011. In conducting this empirical research, the author has utilized both case study and qualitative legal research, where one particular expropriation case is studied carefully. Among primary sources interviews, focus group discussions, and laws were utilized. And also relevant literatures were used as secondary sources. This paper also reveals the existence of great discontent by the evicted landholders due to payment of inadequate amount of compensation because of improper and unreasonable methods of calculating compensation. However, the FDRE Constitution and its counterpart of SNNPRS constitution provided for secured and lifetime use right over rural landholdings and also provides for payment of ‘commensurate’ amount of compensation in advance. In addition to this, this study has also revealed the circumstances in which public purposes are not implemented in harmony with time and manner agreed. The peri-urban farmers who were evicted of expropriation were unable to be reinstated to their former economic as well as social positions due to delay and inadequacy of compensation and absence of dedication by the expropriating authorities to help them rehabilitated. Moreover, the basis of calculation provided under the expropriation proclamation is unreasonable and could not be a basis for ‘commensurate’ amount of compensation. The author suggested the regional state to issue implementing directive for the federal expropriation proclamation and require the government to pay interest for the evictees based on the delay in cases where possession is taken before compensation is paid.Item ANALYSIS ON THE INCIDENCE AND DETERMINANTS OF URBAN HOUSEHOLD POVERTY: THE CASE OF DURAME TOWN, KAMBATA TAMBARO ZONE, SNNPRS, ETHIOPIA(2019-02) DESALEGN LIRANSO DAEMOPoverty is a complex and multidimensional social problem in the world including Ethiopia. It has been a long time that the attention of the international community is drawn to alleviate it. However, poverty is still continued to be a challenge for global community. Recently, poverty is becoming a typical urban phenomenon due to rapid urbanization particularly in developing countries. Various factors could determine the incidence and extent of household poverty in urban areas. Studies that identified factors that determine the level and extent of urban household poverty particularly in small and medium towns were not adequate. The objective of this study, therefore, was to analyze the incidence and determinants of urban household poverty in Durame town with the specific objectives of measuring the incidence and extent of urban poverty using consumption expenditure approach, analyzing the determinants of urban household poverty, assessing the role of GOs and NGOs in reducing urban poverty and identifying the possible opportunities that enable reduce poverty in the study area. In order to attain these objectives, 227 sample households were selected using systematic random sampling method from two kebeles of the study town. Primary data was collected from the sample households using survey questionnaire. Key informant interview and FGD were also conducted as planned and these data were used qualitatively to substantiate the findings. Poor and non-poor households were identified by using preset poverty line of birr 5142.16 for the study area. Consumption expenditure per adult equivalent per year was computed against the predetermined poverty line to categorize poor and non-poor households. FGT method was employed to identify indices of incidence, gap and severity of poverty. The results revealed that about 29.9 % of the sample households’ fall below poverty line with 5.9% and 2% poverty gap and severity respectively. Econometric results of binary logistic regression model demonstrated that sex and household size were found to be statistically significant determinants of poverty and have strong positive association with poverty status of urban household whereas education, income, access to safe water and electric energy were associated negatively with poverty status of the urban household at statistically significant level at 1 percent. The remaining predictor variables revealed as positively associated except credit which is negatively associated with poverty status of the household at statistically insignificant level. The findings of the study confirmed that the role of GOs and NGOs is not significant except providing some school materials for few poor households by some religious institutions. The GOs projects were mainly focused on upgrading urban infrastructure and social protection activities were not yet practical. As it was common elsewhere, the focus of NGOs is mainly rural than urban in the study area. As poverty incidence is higher in the study area, it requires greater attention to design pro poor projects to improve the living condition of poor urban households. Emphasis should be given to family planning strategies as the average household size is larger in the study area. In addition, adequate effort should be needed to improve the accessibility of safe drinking water and electric energy to poor households without which escaping poverty is difficult for urban households.Item COMMERCIAL AGENT IN ETHIOPIA: A COMPARATIVE STUDY(2019-02) MULUGETA TEKLEHAYMANOTThis is a comparative research work on the legal frame work of “Commercial Agent” in Ethiopia with an objective of exploring the various available legal frameworks there for and the associated problems therein. In this LLM thesis, it has been tried to overview the various legal protections on Commercial Agent in different jurisdictions and to also compare and contrast these ‘Commercial Agent’ frameworks with that “Commercial Agent” Legal frame work in Ethiopia. The paper finally comes up with some conclusions drawn from the legal loopholes and problems observed in the Laws which bestowed protection to Commercial Agent and the findings of the research show that there are inadequate legal frameworks to regulate the Commercial agency, part icularly Commercial Agent in Ethiopia. As a result under the Commercial Code of Ethiopia regarding the scope of a commercial agent’s activities , the exclusionary rule from Commercial agent businesses , the effect of Continued performance after the ex piry of fixed period, the consequences of non - observance of mandatory notice for termination, duty to cooperation of the commercial agent and principal, issue of remuneration post termination, the entitlement of Commercial Agent up on termination for de finite period of time, the entitlement of Compensation/indemnity if the agency relation is terminated due to death, illness, age and infirmity of the agent ,obligation not to compete post termination and the time - barred(period of limitation) for entitleme nt of compensation up on termination of the agency agreement are not properly addressed in a manner that attracts Commercial agency business investment.Item COMMUNAL LAND TENURE AND LIVELIHOOD IN SMALLHOLDERS FARMING COMMUNITY REFERENCE FROM KEMBATA-TEMBARO ZONE, SNNPR(2019-05) BIRUK TADESSE ADEGOThe thesis examines the inter-connection between communal land tenure and livelihood, factors making it insecure and led to its extinction including its legal status, among smallholders in Kembata-Tembaro Zone, SNNPR. Since the early 1980s, there has been a resurgence of research activity in the area of common property resources and growing recognition of the importance of common pool resources for rural livelihoods. Lands for grazing and wildlife, forests and woodlands, mountaintops, sacred localities, lakes and streams within the community lands are usually retained purposely as collective property in which all members have use rights and communal land is essential to the community as a source of livelihood. Theoretically, Hardin’s tragedy of commons lies in the expectation that a resource will be overused when it is part of a “commons” and points out the hazards of open access (res nullius), rights or duties have not been defined and lack of property right.He argued for the privatization of the commons for effective use. Ostrom’s new common pool resource theory, justifies protecting the commons by underlining its significance for their needs and future generations. Practically, Communal land tenure is a typical feature of many developing countries. Lands held customarily in many parts of the world have always been vulnerable to involuntary loss, particularly those that are unsettled or unfarmed; that is, lands normally held collectively by individual communities. Nonetheless, concerns are repeatedly voiced by different civil society organizations and human rights advocates that state and private interests are increasingly infringing on poor people’s rights and access to the commons. There is growing international acknowledgment of the importance of communal land and there are soft laws in the form of guidelines and declarations were set in place for the recognition and protection of communal land tenure. In addition, there are many countries legal framework that safeguard communal land tenure for the sake of the rural poor. In Ethiopia, communal land rights are largely discussed in terms of pastoral society or semi-pastoral society. However there are communal lands among the smallholder farmers as well and play a major role in diversifying the livelihoods. In addition to their individual farmlands for crop production, smallholders are highly dependent on communal land and resources such as timber, firewood, fodder and most essentially, a place for ritual ceremonies. The empirical data obtained from the study area indicates that due to a number of unregulated practices and considering it as (res nullius) ownerless property, communal lands remain insecure. It is at the verge of extinction, led to poverty and human right violation. Thus, the writer argues for amendment of land laws and effective implementation to ensure tenure security of communal lands thereby securing and diversifying the livelihoods of poor smallholder rural farmers and ensuring human rights.