02 March 2012 Written by  Alem Abraha and Tafesse Habte

Rules of Procedure Vis-à-vis Modes of Proceedings

 

To reiterate what has already been said, rules of procedure are commonly termed as means to an end and not end in themselves. They are there to ensure that legal disputes are handled as fairly and expeditiously as possible. In the process of arriving at the truth about the relevant facts and the pertinent laws applied thereto, the laws of procedural rules in any country chiefly adopt either the ‘Adversarial’ or the ‘Inquisitorial’ modes of fact- finding to the total, or, partial exclusion of the other; or, at times, an interplay of the two, where, of-course, one may flagrantly take over the upper hand. Given the difference in the degree of the roles played both by the actual parties to a case and the presiding judge are the distinguishing factors between the two modes of litigations, a brief explanation of their functional outline would be in order.


The Adversarial Procedure

The adversarial method, whose roots are traced to the early Anglo-Saxon court proceedings, is alleged to be the typical feature of English judicial process or the major proponent of the system (other countries as such as the USA, Australia and New Zealand do also belong to this category).

The prominent characteristics of an adversarial court proceeding, seen from the procedural point of view, is that the parties themselves (or represented by their advocates) shoulder the burden of initiating, shaping and fixing the scope of the litigation. The process is termed as the core of what might be called the ‘factual methodology’ of the system- in contrast to the other style of adjudication, which employs some purely theoretical reasoning to reach at a conclusion. The underlying proposition of the system is that truth is most likely to emerge as a bi-product of the vigorous combat between intensely partisan advocates. The advocates are not supposed, at least as a matter of fact; to see the resolution of the case as a question of what might be best for the society as a whole. Rather, their ultimate goal is to see the possible disposition of the controversy in terms of their clients’ best interest-taking a “win-at-all-costs” attitude.

Hence, due to such a ‘litigant-driven’ fact-finding process, the system has often been likened to a battle or sporting event on which the players and the players alone are responsible for the determination of the (nature and effect) outcome of the contest. Thus, an adversarial court proceedings judges play a relatively passive role. Their function is limited to regulating the proper conduct (smooth flow) of process. This restrictive mandate of the courts potentially circumscribes the intervention of the judges in the substance of the litigation. Thus, the judge is merely there as an impartial umpire to see to it that the rules of the game are evenly and properly observed by the players.


The Inquisitorial Procedure

This mode of investigative procedure is originally tied to the traditional function of a strong and absolute government, namely the maintenance of public order and the suppression of crimes. It is chiefly employed in the judicial proceedings of the Continent Europe (France and Germany being the representative ones). ‘Inquisitorial’ procedure is self-expressive in that the judges can inquire deep into the merits of the case so as to be able to decide on what the real issues between the parties are. They can, for instance, order the parties to produce further evidence and critically examine the witnesses of either side, if and when they are of the opinion that a fair decision cannot otherwise be reached.

Yet, true to this system, the real parties do have active role to play in initiating, shaping and fixing the scope of the litigation. However, relatively speaking the system envisages, , a more active role for the judges to play instead of being a mere ‘pronouncer’ of the bi-product of the activities of fierce partisan advocates-as is the case with the adversarial proceeding. Judges are basically thereto ensure public control over the management of the individual cases by enforcing the law. They thus occupy a centerpiece in the ‘fact-finding’ process as opposed in contrast to the neutral umpire of the adversarial judge. Hence, from the above discussions , one may conclude that the prime difference between the two modes of litigations lies mainly on the degree of the roles played by the judge vis-à-vis the actual parties to the case.

Before winding up the brief description of the two modes of litigations, it is be imperative to say few words about the mode of Ethiopian court proceedings. Formally and theoretically speaking, identifying the primary source material of the Code is undoubtedly the determinant element for this purpose. Accordingly, irrespective of certain arguments in the contrary, the basic material source of the Code is observed to be the 1908 Indian Code of Civil Procedure-which itself was taken as a model procedure in some British colonies in Africa-such as the Sudan.

Hence, one may plausibly propound that the Code was extensively influenced by and originated from the Common Law Tradition-to which the UK  was (and still is) the typical representative.

Rules of Civil Procedure in Ethiopia: Historical Development

The historical development of rules of civil procedure in Ethiopia could well be studied by dividing it, for the sake of convenience, into two unequal periods taking 1965, the year, when the current Civil Procedure Code of Ethiopia was promulgated, as a point of departure.  Accordingly, briefly, in an attempt to provide a comfortable basis for subsequent discussions while the first sub-section explores, the historical scenarios attending procedural rules in Ethiopia; the second sub-section substantially deals with the attributive features of the Civil Procedure Code.


Rules of Civil Procedure in Ethiopia: A Brief Historical Overview

It is a common truism of legal history that the present legal rules and concepts do not stand in isolation from the past legal traditions. Rather they have their roots in and are fruits of long historical precipitations. In view of such premise, it would thus be instructive and beneficial to make preliminary historical considerations of certain customary and informal procedural rules. Hence, tracing back into their historical antecedents; briefly exploring into the nature and application of procedural rules; identifying the key issues attending them; and, assessing the way outs forwarded thereto would supposedly throw some light on the proper appreciation of the distinguishing features of the present procedural order.

Historically speaking, for the substantial portion of its legal tradition, Ethiopia was identified with the absence of a systematically organized judicial process or uniformly applied procedural laws. This was primarily associated, among others, with the absence of competent expertise- which, the implementation of modern procedural laws indispensably demands. Up until the end of the 19th century, there was no adequately articulated and/or formally institutionalized system of administration of justice. Yet, the practice of dispensing justice was widely believed to be the duty of each and every peace-loving citizen as it had aptly been manifested through the voluntary and spontaneous establishment and operation of an informal road side adjudicatory tribunals by any passers- by or family friends-when and wherever a dispute arose.

Moreover, seen from procedural point of view, once engaged in argumentative proceedings, disputants were observed to be notoriously litigious in practice-as could well be illustrated through such customary adversarial contentions as the “Tattayaq-muget”.

They would furiously go through, at all costs, interminably repeated appellate procedures so as to have their case determined to the best of their interests. A contention which began, for instance, before the very humblest village elder, would go, more often than not, all along every available avenue, culminating in the royal institution of the emperor: known as the “Zufan Chilot” which is literally interpreted as the ‘Crown-Court’.

Sequentially stated, if, for instance, a litigant could not get his case resolved to the best of his satisfaction at the informal village tribunal, or, for that matter, for any reason what-so-ever, he would go to the lowest level official adjudicator- known as the “Chiqa-Shum”- wherein, the taking of an oath was an important part of the procedure. Besides, those personnel who assumed such adjudicatory status at that position were expected to be honest, sympathetic with the poor and endowed with the knowledge of the law.

A grievance by the discontented party could also be petitioned against the decision of the ‘Chiqa-Shum’ to the next higher official-the ‘Deputy- Governor’. A further appeal, from the decision of the Deputy-Governor, would go to the Governor of the district whose decision could, in turn, be reviewed upon by other higher officials called “Womber Rases” each representing the then provinces in the country-and presiding in the central court situated in Addis Ababa.

The litigation process could also be extended as far and high as the “Afe-Negus”, literally translated as the “Mouth” of the king. The marathon appellate procedure would however come to an end only after having reached, the apex of the judicial structure; i.e., a litigant who had exhausted his right of appeal was once more entitled, as a final resort, to request a review by the Imperial Majesty’s Bench which was presided by the Emperor himself. The decision of the Emperor, which would usually be made on the basis of a concise summary report of the ‘Afe-Negus’, was, however, final and binding.

Besides, the Emperor was not bound to decide cases on the basis of the provisions of the formal laws. Rrather, the authority and legitimacy of the ‘Zufan- Chilot’ lied both in the sovereign prerogative of the Emperor- to see to it that justice was done; and in the historically popular conception of the kings as the ‘ultimate source (fountain) of justice’- a thinking which found its way even in the country’s procedural laws (Art 138 of the Cr. Pr. Cd. and Art.322 of the CV. Pr. Cd could well be cited to this effect).

It was thus Proc.No.2/1942 (formally called the ‘Administration of Justice Proclamation’) which attempted to curtail the number of appellate rights to, only, one: whereby each court would hear an appeal from the next lower court. In practice, however, not only were multiple appeals taken in each case, the High Court would often hear appeals without even having the proper jurisdiction in that particular instance. Despite the legal prescription and the aspirations ingrained therein, the customary practices persisted with substantial resistance; even worse, the judges themselves showed tendency to cling to them.

In view of the deep rooted practice of repeated appeals, it may have supposedly been found difficult for the judges to accept a single appellate procedure; and, hence, may have believed that they should not refuse to hear the appeals irrespective of the restrictive stipulation of the law. To make matters worse, it was also possible for a defendant to obtain a transfer of his case from the lowest to the High Courts- a legal rule, which was occasionally misused- for the sole fact of entailing unbearable burden on the plaintiff (respondent) who would often have to travel all the way to Addis Ababa. Such improper usage of the legal rule, coupled with the absence of an effective and efficient procedural law, not only had the negative repercussion of substantially increasing case congestions, but also precipitated in an absurdly costly and lengthy litigation processes.

Be that as it may, it has, in the final analysis, been observed that procedural rules in the country were relatively more developed than their counterpart substantive ones.  For all intents and purposes, therefore, Proc No 2/1942 (which primarily was enacted to establish the country’s judicial structure) could safely be considered as the law that had laid down the very foundation for the development of procedural laws in Ethiopia.

The Proclamation, in addition to constituting the ever modern court structure in the judicial history of this country, also entrusted the judiciary to issue regulation that would be employed in court proceedings, subject, of course, to the approval of the then Ministry of Justice.

Subsequently, a number of procedural rules were issued. A year later, in 1943, the first ever written procedural law (called, ‘Court Procedure Rules’) was promulgated as ‘Leg. Not. No .33/1943’. Nonetheless, the ‘Rule’, which encompassed 99 articles of both civil and criminal procedures, was far from being comprehensive. The material source of the law is said to have been the Indian procedural laws, which could be attributed to the then British judges who were working in the judicial structure and rendered assistance in the drafting of the law. Afterwards, a rule relating to appeals to the Imperial Supreme Court was issued as ‘Leg. Not. No 155/1951’. It consisted of, 45 articles of both civil and criminal procedures out of which 36 articles were rules of civil procedure. Even though it is said to have incorporated certain rules of customary practices of the country, the substantial material source was still that of the Indian procedural laws.

Moreover, up until the promulgation of the 1965 Civil Procedure Code, a number of other laws of procedural nature were also made. These include:

  • Proc. No. 130/1953 (and the amending Proc. No. 135/1954) for the establishment of judicial power;
  • Leg. Not. No. 177/1953, on the enforcement of judicial relief;
  • Leg. Not. No. 176/1953 (and the amending Leg. Not. No. 179/1954) on the execution of judicial decrees;
  • State Leg. Not. No. 176/1954, on Insolvency and Advocates’ fees; and,
  • Leg. Not. No. 195/1963, for the Determination of Material Jurisdiction of Courts.

However, these procedural laws were, on the whole, not sufficiently detailed and a number of areas of procedural matters were also left uncovered. Soon, it was found out that the absence of a systematically organized and all encompassing procedural law had potentially jeopardized the administration of justice in general. The critical problem in this regard was the indefinitely extended delays that existed in the resolution of cases. It was not uncommon, for instance, for some litigation to take a number of years to be finally disposed of.

Consequently, with the prime purpose of resolving those procedural irregularities, and for the sake of proper application of the existing rules, the then Ministry of Justice, started working on a comprehensive procedural law. Accordingly, the incumbent Civil Procedural Code, the basic text of which was drafted by the Codification Department of the Ministry of Justice, was issued as a Decree in 1965. Moreover, upon its effectiveness, with a view to encoding every rules relating to civil matters under one and single document, all procedural rules concerning matters now covered by the Code, that were previously in force were totally repealed-irrespective of the inconsistencies with the Code.

With respect to the drafting process, and the material source of the Code, R. A. Seddler, the author of the original credible text of reference on the Ethiopian Civil Procedure, claims that neither a foreign code was incorporated as such, nor it was entirely modeled after one; rather, he argues, it was remarkably of Ethiopian origin.

However, some scholars do not agree with the assertion of the author. They contend that a close scrutiny of the provisions of the Code does indicate that the overwhelming majority of its provisions, if not all, are, in a similar fashion to the earlier procedural laws, were verbatim copies of the 1908 Indian Civil Procedure Code. Hence, they conclude that the latter could safely be considered as the basic material source of our Code of Procedure.

Last modified on Wednesday, 02 May 2012 13:05