Greater Ethiopia†: The Evolution of a Pluralist Politico-Legal System in

a Pluralist Polity
Alemayehu Fentaw

Introduction
Looking at its multiethnic nature, Carlo Conti-Rossini, the eminent Ethiopianist,
described Ethiopia aptly as a museum of peoples- un museo di popoli. In
what seemed a clean break with its constitutional past, Ethiopia embarked on
a bold and unique experiment in federalism, since the demise of the Derg,
the military dictatorship, in 1991, in “an attempt to translate iniquity of political
history and demands, into equity of future provision.”(Vaughn, 2003:85). Bold,
because it has resulted in the restructuring of a highly centralized unitary state
hitherto based on the principle of national self-determination and unique,
because it has no parallel in any other African state and any state in today‟s
world “in using ethnicity as its fundamental organizing principle”. (Turton,
2006:)

So the preliminary question one should raise at this point is why the Ethiopian
state, as opposed to the society, remained unitarist, as opposed to pluralist, for

†
So titled after Donald N. Levine‟s second book, Greater Ethiopia: The Evolution of a
Multiethnic Society (1974), which, has now become a classic, has long been considered a
substantial contribution to understanding the phenomena of ethnic diversity and national
unity in Ethiopia and is meant to be his Festschrift for his work in Ethiopian Studies, albeit his
work in Sociology and Social Theory has been duly acknowledged and disseminated widely
in a Festschrift written by great sociologists including Shmuel N. Eisenstadt, whose scholarship
is already in his debt, and edited by Charles Camic and Hans Joas.

The present article is drawn from a larger work-in-progress, which in turn is drawn from my
book (2010) and doctoral proposal submitted to and accepted by the PhD Programme in
Diversity Management and Governance at the University of Bologna, Italy. I‟m, as always,
indebted immensely to Prof Andreas Eshete and Prof Donald N. Levine, the preeminent
American Ethiopianist scholar, the world‟s foremost Simmel scholar, and one probably of the
two last surviving great sociologists, besides Robert N. Bellah, of his generation of grand
intellectual figures. I also owe a debt of gratitude to my former teacher and colleague, Prof
Muradu Abdo of AAU Law School, for drawing my attention to the salience of the center-
periphery analysis, as an approach to Ethiopian political and legal development, as found in
my earlier work, by reproducing in full the two sections of chapter 1 of my LLB thesis that
made up the core of the present essay in his Legal History and Traditions, a course-book, in
two volumes, commissioned by the Justice and Legal Systems Research Institute (2007), Addis
Ababa.

Alemayehu Fentaw, (LLB, MA summa cum laude), is an independent consultant on regional
and national peace and security based in Addis Ababa, Ethiopia.
most of its history despite its mosaic diversity and what prompted the adoption of
ethnic federalism? The aim of this short essay is thus to throw light on why it
remained unitarist for most of its history, how political history conspired with legal
history in the making of a unitarist politico-legal order, and what prompted the
emergence of a pluralist politico-legal order recently. This I shall do by telling two
distinct, but not unrelated, accounts regarding Ethiopia‟s politics and law with a
focus on the center-periphery cleavage.

In what follows, the political history of Ethiopia will be analyzed through the
evolution of the center-periphery cleavage. A great source of attraction of
the center-periphery framework, as an alternative approach to political
development, is its emphasis on the dominant role of elites and its ability to
transcend ethnic and geographic limitations. According to Edward
Shils(1961, 117-30), the center constitutes that part of society “in which
authority is possessed,” while the periphery is constituted by “the hinterland…
over which authority is exercised.” In the words of Lijphart (1989), “[t]he
implications of this model for plural societies is that there must be political
domination by a center.”

The center-periphery cleavage, manifesting itself in various forms, has

affected the political landscape of Ethiopia with variable intensity since the
ascension to the throne of Emperor Menelik II. Mapping the history of this
cleavage helps to identify the factors that prompted the emergence of
ethnic federalism in Ethiopia. During the imperial era, the primary source of
conflict was the endless rivalry between the monarchy in the center and the
regional nobility. With the overthrow of the monarchy in 1974, the nationalist
liberation movements came to replace the nobility as regional forces.
Following the demise of the Derg in 1991, the ethno-nationalist liberation
movements conquered the center. This cleavage, in effect, has historically
translated itself into two alternative models of state restructuring: unitarist-
authoritarian and federalist-democratic. The focus, however, of the analysis
that follows is formal-historical, rather than substantive-political, and thus
remains silent about either the content or modus operandi of the multination
federation in place in Ethiopia today.

A Brief Account of Ethiopian Political History

Center-Periphery in the Era of Emperor Minelik II

With the ascent to the imperial throne of Menelik II following the death of
Johannes IV at Matama fighting against the Mahdists in 1889, the center of
the Ethiopian Empire-state moved to Shoa.1

Emperor Menelik II, emboldened by his national and international prestige

owing to his triumph over Italians at the Battle of Adwa in 1896 and spurred on

1 I‟ve dispensed myself with transliteration, a formality common amongst academic historians,
not because I find it to be unhelpful, but because it‟s unnecessarily cumbersome and waste
of precious time, and hence does not add anything to our stock of knowledge. Menelik II is
the Emperor who ruled Ethiopia between 1889-1913. Besides, I‟ve avoided deliberately the
use of the term „nation-state‟ in reference to Ethiopia qua body politic insofar as it
presupposes the existence of a coherent geographic entity whose borders were usually
defined by natural boundaries and homogenous populations with shared cultural, linguistic,
and religious values and norms. Instead, I use the term „Empire-state‟ that refers to a political
community (or, body politic) with an emperor at its head, as opposed to a president or prime
minister as in the case of a republic. In this connection, I consider Adhana Haile‟s abortive
attempt at coinage of and hair-splitting distinction between a „state-nation‟, state-nation-
state, and „state-nation-empire-state‟ discombobulating. What Adhana Haile wished to get
across seems the idea that the nation-state is far from being a universal political
phenomenon; that the historic Ethiopian state (or Abyssinia) was not a nation-state, unlike
England and France; that it rather was multi-ethnic or multi-national. He writes, “The historic
Ethiopian state(or Abyssinia), as it consolidated itself during the medieval period, had the
Tigray (speaking Tigrigna), the Christian Agaw (speaking Agawigna) and the Amhara
(speaking Amharic) as its core and as the components of its nationhood, although the Tigray
and the Amhara were preponderant. … [T]he historic Ethiopian state also embraced peoples
outside the nation-state. The state was thus not only a state-nation-state, but also an empire-
state. The historic Ethiopian state must be characterized therefore as a state-nation-empire-
state.” This is not only unheard-of in social science, but also is based on a false trichotomy. It
would suffice to say that the historic Ethiopian state was a multi-ethnic or multi-nation-empire-
state. See Adhana Haile Adhana, Mutation of Statehood and Contemporary Politics, in
Ethiopia in Change: Peasantry, Nationalism and Democracy, Abebe Zegeye and Siegfried
Pausewang(ed.), British Academic Press: London and New York, 1994, pp. 19-21.
by a fierce ambition of empire-building, embarked on a campaign of
expanding and consolidating his rule from the central highlands to the South,
West and East of the country in the decade following Adwa and established
the current map of Ethiopia, a country housing more than eighty different
ethnic groups.2 Bahru Zewde(1991, 60) writes that:
Menlik… pushed the frontier of the Ethiopian state to areas
beyond the reach even of such renowned medieval empire-
builders… as Amda Tseyon … In the process, the Ethiopia of
today was born, its shape consecrated by the boundary
agreements made after the Battle of Adwa in 1896 with the
adjoining colonial powers.

Put differently, the nineteenth century witnessed the radical shift of the
country from an “outpost of Semitic civilization” to what Carlo Conti-Rossini
called “un museo di popoli”. (Andreas, 150)

Following his successful campaigns of expansion, if not conquest, to the

periphery, Menelik sent governors from the center to administer the periphery.
They were sent with contingents of their own so that they would install

2 I‟ve argued elsewhere that though Adwa could be construed to be a formative moment in
the evolution of Ethiopia‟s multi-ethnic society, its legacy as symbol of nationhood remains
ambiguous for different reasons. Commenting on the interpretive subjectivity and
consequent ambiguous legacy of Adwa, Andreas Eshete writes, “Even events and symbols
commanding wide collective pride are not equally or similarly prized by all peoples of
Ethiopia. Victory at Adwa earned international recognition and prestige for Menilik‟s Ethiopia,
an accomplishment about which conquered peoples of imperial Ethiopia, including those
that fought valiantly at Adwa, are bound to be ambivalent.” In the words of Gebru Tareke,
“paradoxically Adwa was both a negation and an affirmation of Wichale.” (Gebru, 41). For
instance, What explains the ambivalence of Tigreans towards Adwa is first Menelik‟s decision
to sign the Treaty of Wichale, despite the fact that Article III of which gave away Ethiopia‟s
coastal territory to Italy, and then his failure to capitalize on the Adwa Victory to drive the
Italians out of Mereb Mellash and reunite the Tigrigna-speaking part of the Ethiopian Empire.
In this connection, Harold Marcus, the eminent biographer and historian of the times of
Menelik, writes: “We do not know why Menilek made this historic cession of territory—the first
for an Ethiopian ruler. The decision may have stemmed from Menilek's political anxiety about
the north and the empire's continuing economic crisis. Since he believed his army's shortage
of supplies and draft animals precluded an expedition to Tigray, he might have concluded
that he had to rely on the Italians to control Rases Mengesha and Alula.” (Italics mine)
Besides, most, if not all, historians of modern Ethiopia, including Bahru Zewde, Sven Rubenson
and Harold Marcus concede it was the dispute over the discrepancy between the Italian
and Amharic versions of Article XVII, rather than the establishment of the Italian colony of
Eritrea by virtue of Article III of the Wichale Treaty, that purported to create an Italian
protectorate over all of Ethiopia that brought about the 1st Italo-Ethiopian war in 1896 at
Adwa. Sven Rubenson refers to Article III as “the legal birth certificate of the Italian colony of
Eritrea.”Commenting on the success in negotiating this particular treaty and its significance to
his government, Antonelli described Article III as “the most important article.” See my 2011
paper on Adwa.
themselves in the vicinity for their respective administrations. Having been
unsalaried, the administrators along with their soldiers were maintained by a
system which in lieu of wages allotted each man the overlordship of certain
number of tenants. In the words of Dame Margery Perham(1969, 295-296), “the
land was regarded … as confiscated to the crown, a varying proportion
being allotted to the conquered chief and people and the rest used to
reward or maintain Amhara, and especially Shoa soldiers, officials and
notables.” As a result, the subject people were literally reduced to tenants
and become victims of national oppression.

Center and Periphery in the Era of Emperor Haile Sellassie I

Haile Sellassie‟s rule (r.1930-1974) was marked by a ceaseless rivalry between

the monarchy and the nobility. The promulgation of the first constitution in
1931 was seen as the first move towards settling the center-periphery rivalry by
affirming the absolute power of the crown. Andreas(2004, 152) remarks that
“[t]he political triumph of the center over the regions, initiated and
legitimated by the constitution, was practically demonstrated when the
Emperor prevailed over Abba Jiffar II of Jimma and Ras Hailu of Gojjam in
1932." Apart from a brief interlude during the Ethio-Italy war (1935-1941),
Emperor Haile Sellassie resumed the historic task of centralizing the state
which he had begun in the first half of the decade following his ascension to
the throne. In connection with this, Bahru Zewde(1991, 201), the eminent
historiographer of modern Ethiopia, has the following to say:
The period after 1941 witnessed the apogee of absolutism. The
tentative beginnings in this direction of the pre-1935 years
matured into untrammeled autocracy. The power of the state
reached a limit unprecedented in Ethiopian history.

Donald Levine, the preeminent Ethiopianist and sociologist, in the preface to

the second edition of Greater Ethiopia, his magisterial book, has pointed out
the tension that existed between the center and periphery for most of
Ethiopia‟s history. In the words of Levine (2000, xiv), “Throughout Ethiopian
history there have been tensions between the national center and diverse
regional and ethnic groups. Yet the bureaucratic centralization of the
postwar years was bound to exacerbate these tensions.”

Although the 1955 revised constitution granted basic freedoms to speak, to

assemble and to vote, essentially it was, to use Bahru‟s words, “a legal charter
for the consolidation of absolutism.”(1991, 206)Article 5 of the revised
constitution expressly spells out the absolute powers of the emperor: “By virtue
of His Imperial Blood, as well as by the anointing which he has received, the
person of the Emperor is sacred, His dignity… inviolable and His power…
indisputable.” Therefore, the 1955 constitution served as little more than a
screen behind which conservative positions could be entrenched.
Furthermore, Amharic was made the official language, and what is worse, it
alone was used in all the newly established institutions. The Ethiopian
Orthodox Church was accorded the official status of national religion.

Now let us turn to a brief discussion of the resistance that Haile Sellassie‟s rule
faced from the periphery. First, his autocratic rule was met with peasant
rebellions, and latter with nationalist resistance in Eritrea, in Tigray, in the
Oromo areas, in Sidamo, and in Ogaden. Andreas(2004,152) writes succinctly
that:
Nationalist struggle was a reaction against the suppression of
national and regional identity as well as the encroachment on
land often by people from other nationalities. Peasant revolts
were directed against the growing burdens of taxation and
tenancy, highhandedly administered by officials appointed or
backed by central government.

It is very important at this juncture to note that there has been a shift of
emphasis from an all-inclusive national identity to a particularist ethno-
national identity. In the words of Donald Levine(2000, xv), “primordial
assertions germinated during the last years of Haile Sellassie and sprouted
under the Derg.”

In view of the foregoing, it should be clear that both Menelik II and Haile
Sellassie I pursued three distinct but interrelated goals, namely, centralization,
modernization and integration. Although all of them had a lasting effect on
the legal and political culture of the country, I would like to, by de-
emphasizing modernization, draw attention to centralization and integration,
and try to make a general remark about unity and diversity in contemporary
Ethiopia.

In an effort to bring about national integration, emperors Menelik and Haile

Sellassie embarked upon cultural and religious homogenization by way of
Amharization3 and Orthodox Christianization. First, Menelik‟s conquest of the
southern areas resulted in the suppression of local customary law by
Abyssinian (Amhara-Tigre) traditional laws and practices. The southern
conquest had the same effect on the indigenous laws as colonialism in most
the third world countries. (Brietzke, 1982:31) Next, the legal transplants of the
1950‟s and 1960‟s , on which I shall dwell later, had a detrimental effect on
customary laws of the country in general. Paul H. Brietzke(Id, 32), commenting
on the integration attempts, writes that:

Strong disintegrative forces exist in most societies, but Ethiopia is

nonintegrated even in comparison with most other Third World
states; internal armed combat has been a constant feature …
Traditional integrative devices such as conquest, the
charismatic authority of an emperor, and the progressive
Amharization of an Ethiopian national culture and legal
system… failed to secure a high degree of national unity- the
ultimate prize of social integration.

Center-Periphery in the Era of the Derg

As Lovise Aalen(2001, 5-6), commenting on the tendency to describe the

events of 1974 as a revolution, points out: “Although the events in 1974 are
most commonly described as a revolution, implying fundamental changes to
the society the continuities from the imperial regime to the new military
regime became more apparent as the years went by after the coup.” (Italics
mine) Andreas (2004, 154) is clear on this point:

3
Amharization refers to the process of converting non-Amharas into quasi-Amharas through
religious and secular education, language, fellowship in the Ethiopian Orthodox Church, and
the adoption of Amhara personal names. Amharized peoples enjoyed better chances in
public life, as they are in effect so far removed from the periphery so as to be integrated into
the center.
 The government that supplanted Haile Sellassie perpetuated his
quest for centralization (italics mine). The overthrow of the
monarchy offered an opportunity to reconsider Ethiopia‟s
imperial status and to redress the plight of aggrieved cultural
communities, who increasingly saw themselves as captives of
the empire. Despite declarations of cultural equality and
occasional gestures in the direction of cultural autonomy, the
successor regime showed little sign of political will to seize this
opportunity. Instead, the commitment was to a unitary state in
order to uphold what was called the “indivisibility of Ethiopian
Unity”.

The military government‟s initial program, Ityopia Tikdem or Ethiopia First, was
a telling example of, to use Andreas‟s words, “the priority accorded to an
inclusive national identity”. (Id) The new regime did not only refuse to give
recognition to Eritrean nationalism, but also outlawed any conduct
challenging the state‟s integrity. Derg‟s conception of national unity
eventually degenerated into an obsessive dogma which brooked no cultural
or ethnic diversity among the peoples of Ethiopia. In fine, Mengistu‟s linguistic
and cultural oppression, actually, ended up stimulating regionalism and
peripheral nationalism in Ethiopia.

Another program, which was meant as a socialist gesture, constitutes a range

of radical policies. The most important and comprehensive was probably the
land reform whose significance lies not only in demolishing the economic
foundation of feudalism, but also in removing a major cause of national
discord in some parts of the country. (Id; see also Brietzke, 291-294)
Commenting on the land question alongside the nationality question,
Pausewang(1994, 219) writes:
“In 1974, the key to legitimacy of the new government of the Derg
lay in solving the land question. The land reform of 1975 was clearly a
response to a compelling political demand of necessity. In 1991 no
new government could have hoped to win legitimacy without
solving the nationality issue. A far reaching decentralization was, at
that moment, the only chance to keep Ethiopia together. It would be
denying realities to ignore this need.” (Italics in the original )

In the following years, the regime focused on the consolidation of its power.
Meanwhile, urban opposition forces led by the Ethiopian Peoples‟
Revolutionary Party (EPRP) gathered momentum and engaged the military
government in urban guerrilla warfare. And the military‟s reaction to EPRP‟s
challenge was fatal. The Red Terror was declared in 1977, where the Derg
and its supporters hunted EPRP members, imprisoning 30,000 and killing over
several thousand of them. (Brietzke, 196-197)

From 1976 onward, demands for regional autonomy became significantly

more intense. After 1976, Mengistu emerged as the unchallenged leader,
“the continuities from the imperial era became more prevailing.”(Aalen, 15)
Like Haile Sellassie, Mengistu who was under the illusion that his regime was
that of Ethiopian state, perpetuated the despotic centralization and deprived
other regional opposition forces of legitimacy. Under his rule, the nationalist
liberation movements replaced the role of the nobility as centrifugal forces.
Despite the regime‟s appeal to a socialist ideology, the Derg was identified
with an „Amhara suppresser‟ by the nationalist liberation movements. Siegfried
Pausewang (Id), a close observer of the Ethiopian politico–legal order, has this
to say:

Mengistu‟s regime increasingly reverted to the Pan-Ethiopian

ideology of national development, abandoning the initial
libratory promise of the revolution to allow all ethnic groups their
freedom of cultural development and ethnic self-
determination. Instead, the ideology of „nation building‟ with
Amharic as the common language and Amhara as the leading
nationality was becoming official policy again.

Center-Periphery in the Era of EPRDF: the Periphery as the Center

A coalition of three ethnic insurgent groups, namely, the Eritrean People‟s

Liberation Front (EPLF), Tigray peoples Liberation Front (TPLF), and Oromo
Liberation Front (OLF) overthrew the Derg and set up a civilian government in
1991. With the demise of the Derg in 1991, Ethiopia‟s borders returned to
where it was nearly a century ago. In July 1991, the National conference on
peace and reconciliation was held in Addis Ababa which was meant to lay
foundations for a transitional period. In this conference, Eritrea, represented
by EPLF, was an observer, as it became a de facto independent state.
Commenting on the 1991 Ethiopian revolution Christopher Clapham( 1994, 37)
writes that:

The overthrow of the Mengistu government in May 1991

amounted to more than the collapse of a particular regime. It
effectively marked the failure of a project, dating back to
Menelik‟s accession in 1989 of creating a „modern‟ and
centralized Ethiopian state around a Shoan core. This project,
which provided theme for Haile Sellasie‟s long reign, was tested
to self-destruction by a revolutionary regime which provoked a
level of resistance that eventually culminated in the
appearance of Tigrean guerrillas on the streets of Addis Ababa
– a dramatic reversal of the process which, over the previous
century, had seen central armies moving out to incorporate
and subdue the periphery.

This assembly, as it appears from its composition, made it crystal-clear that

state restructuring, henceforth in Ethiopia, will scrupulously follow ethnic lines.
Donald Levine thus remarks that “[W]hen … these ethnic insurgent groups
overthrew the Derg it was not surprising that ethnic allegiances and identities
became politicized in consequence”. (Levine, 2000: xiv)This was evident when
the right to self-determination, including and up to secession made its way to
the National Charter. Furthermore, Proclamation No. 1/1992 delimited the
boundaries of the self-governing ethnically based regions. As Andreas(2004,
158) notes, "The history and identity of the protagonists that emerged in the
wake of the victory over tyranny thus explains why ethnic federalism proved
to be a decisive political instrument in Ethiopia‟s transition to democracy."

In this manner the ideology of national self-determination made its way into
Ethiopian democratic political consciousness. In sum, the development of
regionalism and subsequent ethno-nationalism can be regarded as an
unintended outcome of the extreme centralization pursued by Menelik II,
Haile Sellassie I, and Mengistu Hailemariam. The rise of regional self-
government during the Transitional Period was thus largely due to a desire to
establish democratic institutions which would guarantee the right of national
self-determination. Since then democratization has been inextricably linked to
the protection of the sovereignty of Ethiopia‟s cultural communities. Such a
generalization has its support in the works of several historiographers. A case in
point is the following statement by Harold Marcus and Kevin Brown(1997,
156):

The Mengistu regime never understood that the insurgencies in

Eritrea and Tigray were political in nature and required a political
solution. The leadership in Addis Ababa saw Ethiopia in highly
centralized terms and believed that any success by provincial
movements would undermine the state‟s character. Though the
struggle was couched invariably in Marxist terms of class and
dialectic the fight was between conceptualizations of Ethiopia as a
unitary nation or as a federal, even ethnically based, state.(Italics
mine)

II

A Brief Account of Ethiopian Legal History

Let us now turn to a brief discussion of Ethiopia‟s legal history, with an eye to
unfolding the political salience of diversity, and the various ways in which
diversity was subjected to uniformity by the law. This in a way helps to make
out a case for legal pluralism under Ethiopia's new constitutional dispensation.

Center-Periphery in the Pre-Codes Era

Adopting the periodization suggested by Getachew Assefa(2001), Ethiopian

legal history may be divided into two periods, taking the year 1957 as a
watershed. Until 1957, Ethiopia did not have a distinct formal legal system.
Rather, it had, to use the words of Paul Brietzke(1982, 31) , “numerous and
overlapping systems of laws” According to Brietzke(Id), there are, on the one
hand, "customary rules", which were used to regulate the day-to-day activities
of individual members of the numerous ethnic groups. On the other hand,
there are "traditional rules", which were used to regulate various relations
within the Amhara-Tigre Empire and the Orthodox Church from the 14th
onwards. Therefore, during the pre 1957 period, except for the 1923 law of
loans, the 1930 Nationality Act and the 1948 statute of limitations. Ethiopian
normative orders were informal, unsystematized, undifferentiated, and
particularistic customary laws. In this connection John H. Beckstrom(1973)
writes that:
Until 1950s the “laws” of Ethiopia was a rather amorphous mix.
There were some legislation in the form of statutes and decrees,
primarily in the public law sphere, as well as a Penal code that
had been promulgated in 1930. But taking Ethiopia as a
geographic whole, by far the major de facto source of rules
governing social relations was found in the customs and
traditions of the various tribal and ethnic and religious
groupings. (Italics mine)

Center-Periphery in the Era of the Codes

Since 1957, however, a comprehensive process of codification, which mainly

drew upon European sources, took place in Ethiopia. A Penal Code (1957),
Civil Code (1960), Commercial Code (1960), Maritime Code (1960),Criminal
Procedure Code (1961) , Civil Procedure (1965). This codification process was
guided by the modernization ambition of the Emperor. The Emperor, in the
preface to the Civil Code, has pointed out:

The progress achieved by Ethiopia requires the modernization

of the legal framework of our empire‟s social structure… in
order to consolidate the progress already achieved and to
facilitate further growth and development; precise and
detailed rules must be laid down.
Thus a comprehensive legal transplant was carried out throughout this period.
In other words, the legal rules and principles found in the newly enacted
codes had been taken in the main from European sources. Professor Rene
David(1963,188-189), the draftsman of the Civil Code, commenting on it writes
that:

The development and modernization of Ethiopia necessitate

the adoption of a “ready-made” system…while safeguarding
certain traditional values to which she remains profoundly
attached Ethiopia wishes to modify her structures completely,
even to the way of life the people. They wish it to be a
programme envisaging a total transformation of society and
they demand that for the most part, it set out new rules
appropriate for the society they wish to create.
For David, therefore, once Ethiopia had opted for the path of legal
modernization, it could not have settled for anything less than adopting a
foreign legal system. He maintained the view that it would not have been
practical to wait for a law to emerge from within the indigenous culture. This
appears starker nowhere than in his statement that Ethiopia could not afford
to wait 300 years to have a modern system of private law. The adoption of a
Civil Code based on the French model, would according to David (Id),
“assure as quick as possible a minimal security of social relations.” However,
the rationale for these western imports cannot be modernization. It must lie
elsewhere. Lawrence Friedman(1975, 222) is helpful in unmasking the real
motivation: "a single, uniform system of law should act as a tool of unification;
like a common language, a common law should help wield a single nation
out of the jumble of classes or tribes. ... The new nation will have to be built
from the center. The center will have to grow at the expense of
provinces...and outlying culture..."

Julio Faundez(1997, 4) points to a major flaw in David‟s thought as well as the

ill-founded project of adopting a Civil Code based on the French model.
Because of its centrality to my critique of the premises and orientations of the
past law projects I wish to make throughout this paper, I set it out in its entirety.

David‟s remarks on Ethiopia‟s Civil Code could be seen simply as

a legal consultant‟s rationalization of the assignment that he had
undertaken. It could be argued that David misrepresents the
choice confronting an external legal consultant; for in the
statement quoted above he appears to suggest that the choice
was between either waiting for a modern indigenous legal
culture to emerge or introducing an imported Civil Code. An
alternative course of action would have been to ensure that the
new legislation was as far as possible consistent with local
practices.

Furthermore, Faundez(Id) points to an important problem raised by legal

transplantation namely, the question of whether the role of an external legal
adviser amounts to policy making. This raises the problem of legitimacy of the
enacted laws. Brietzke(1982, 267) joins tune with us in saying that “the 1960
codes represent an almost complete break with the past. They also illustrate
virtually all of the pitfalls that attend legal transplantations.” He goes on to say
that:
Notwithstanding the eclectic approach claimed by the French
draftsmen [R. David & Jean Escarra], the predominant flavor of
the Ethiopian codes is French. The draftsmen displayed an
interest in the internal logic of abstract concepts rather than
their social effect, and, above an ethnocentrism. (Id)
Although it was claimed that a very eclectic approach was deployed, I
dismiss such claims as disingenuous. For the bulk of the legal system,
procedures and structures introduced tended to impose western patterns
upon a non-western polity. In so doing, much of value in the traditional
systems such as informal dispute resolution and group rights tended to be
ignored. In short, despite claims that allowances were made for pockets of
native jurisculture, the legal system introduced by these codes worked to the
detriment of the customary laws of the various ethnic groups in Ethiopia. It‟s
this manifest lack of innovation in the codification process that forced Donald
Levine (1974, 23) to write as follows:
With respect to innovative procedures and policies, moreover,
it sometimes leads to artificially imposed forms which do not
relate successfully to Ethiopia as a living system. A notable case
in point has been the establishment of a supermodern set of
civil and penal codes which do not take into account the
existing forms of customary.

According to John Beckstrom, in order for transplants to bring about the

desired result, the economic and cultural gaps between the importing and
exporting states should be the least. He points out that: “[….] no greater
distance has existed between the receiving country and the places of origin
of the transplanted laws than in the Ethiopian experience.”55

In fact, as Rene David explains, he actually tried to incorporate elements of

customary laws into the code. Yet, in the words of Beckstrom(1973), “explicit
incorporation was ... minimal.” Because of diversity of local customs and lack
of systematic survey of the same in Ethiopia, “there was little for the drafts
men to draw upon except fragmentary and largely impressionistic reports.”
Beckstrom makes a further point:

Some additional “Ethiopianization” of the codes occurred in

the Codification Commission and Parliament before
enactment, but this appears to have been as much a reflection
of the personal preferences of the elite, urbanized individuals in
those bodies as of the customary practices of the Ethiopian
masses. 58(Italics mine) (Id)
Following the tack taken by Getachew, I contend that the codification process
failed to understand that the formal legal system only reaches a small section
of the population as in most developing countries. Thus, by focusing largely on
the formal legal system the codification process went astray, as it ignored
customary laws and other informal systems of law. The legitimacy crisis of the
formal legal system was further deepened where the application of the
codified laws, both in the civil and criminal jurisdiction, has actually been
displaced by indigenous norms and practices. As Brietzke(1982, 34) points out
“Many centuries of legal history and social relations are not transformed into a
tabula rasa by simply legislating custom out of existence”. That is what Arthur
Schiller meant by an Ethiopian “fantasy law”(Cited in Brietzke, Id) embodied in
Civil Code Article 3347(1): “Unless otherwise expressly provided all rules
whether written or customary previously in force, concerning matters provided
for in this code shall be replaced by this code and are hereby repealed.”

Ethnic Federalism and Legal Pluralism: The Periphery as the Center

In view of the foregoing, I therefore suggest that one way to think about the
1960 Civil Code is as a politically salient legal process that has gone on for over
40 years and has been continually challenged from the periphery. For much of
that period, the tendency appeared to be in the direction of greater
homogeneity. Since 1991, forces of difference appear to have strengthened
the heterogeneity of personal law, culminating in adopting varied family laws
by the regional states. Unity, if not better, homogeneity was served powerfully
in law by the processes of codification, like it was served powerfully in politics
by centralization. The homogenization of personal law was effected through an
express repeal of the ethnically as well as religiously based personal laws.
Besides the great wave of legal codification by the continental European
drafter in the mid-twentieth century swept away the particularities of criminal
law (Via the penal code of 1957), preserving neither religious nor customary
penalties.
Getachew Assefa(2001, 18-27) has recently suggested that the adoption of a
multination federal system could give latitude for legal pluralism:
… The existence of the traditional mechanism of undertaking
legal affairs in the various Ethiopian communities is one…
aspect of the problem of legitimacy crisis of formal legal
system. To do away with this problem, mechanisms of
harmonizing the modern legal norms and the traditional ones
must be designed. With the adoption of the federal form of
government in Ethiopia, the system of allowing the play of
traditional norms in various parts of the country (the states)
could be easily done.

Conclusion
The great upshot of this is that if we understand the codification project as a
historical process, instead of a one-shot experience, this is the story as much
of the centralization as is the homogenization process. Seen in this light, it
forms part of the country's political history; that there‟s common thread
running through modern Ethiopian political and legal history, which is that
politics and law, as manifested themselves in the country‟s recent history of
centralization and homogenization, conspired with each other to change the
country‟s political and legal landscape.

What accounts for the rise of ethno-nationalism in Ethiopia in the final analysis,
in my contention, is the failure of the centralization project, bent on bloody
cultural homogenization, rather than democratic reformation. The failure to
incorporate the masses of the population that lived in the periphery into the
center of the society engendered a sense of alienation from the society with
which they would otherwise have difficulty identifying themselves with a high
degree of civic solidarity and civic duty to comply with its laws, and without
the legitimacy crisis implicit in the politico-legal system. In other words, the rise
of ethno-national movements in the last years of Emperor Haile Selassie I
signaled the end only of the beginning, whilst the demise of the Derg in 1991
marked the displacement of the center by the periphery, so to speak,
changed the politico-legal landscape for good.
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