Constitutional Recognition of Islamic Family Law and Sharita Courts

3.1 The ‘Supremacy Clause’

In general, one might ask whether and how state power can be imposed on each normative order without offending their underlying socio-legal log­ics.

3.2 State-Funding and Secularism

The relationship between constitutionally recognised Islamic law including its judicial administration and the claim to be a secular state is a contentious issue: The fdre Constitution guarantees individual and collective religious freedom as a fundamental right, and, moreover, reflects the concept of a secu­lar state aiming to ensure equal rights and justice including the recognition of minority rights. According to Article 11 fdre Constitution, state and religion are separated; there shall be no state religion and the state shall not interfere in religious matters and vice versa. If one takes a closer look at the constitutional history of Ethiopia, it becomes obvious that the idea of secularism is a relatively recent development, since a strong bond between the Ethiopian Orthodox Tewahedo Church and the state existed under monarchic rule. Even though the Imperial Revised Constitution of 1955 (irc) already recognised the freedom of exercise of one's religious rites,^[531] the Ethiopian Orthodox Tewahedo Church was “the established church of the empire and was, as such, supported by the state. The Emperor shall always profess the Ethiopian Orthodox Faith”^[532] This intertwined bond has been summarised by Perham:

Constitutionally, [...] the Emperor was the unchallenged head of the church and the fortunes of the Solomonic Dynasty were interwoven by historical associations with those of the church and initial interests.

In contrast to the IRC, the Constitution of the People’s Democratic Republic of Ethiopia of 1987 (pdre Constitution) explicitly declared the separation of state and church/ religion, which was a novelty in the history of the country^[534] The PDRE Constitution de Jure ended the symbiotic interdependency between the state and Ethiopian Orthodox Tewahedo Church that had lasted for more than a century. This trend was generally welcomed by the marginalised Muslim authorities. However, state attempts to push religion out of the public sphere were accompanied by systematically undermining and defaming religious sen­timents. Neither the influential religious authorities nor the religious popula­tion welcomed this approach to religion on the part of the government. Despite attempts to establish secular values instead, “the only significant change from the draft to the final text [of the pdre Constitution] which was debated prior to the approval by referendum was a minor concession to religious interests in the removal of the monogamy clause”.^[535] Ever since, secularism is the preferred stance of the state. One may ask whether the concept of secularism and the acknowledgement of religious courts is actually a contradiction. Regarding the relation between state and religion as well as the question of state intervention in multicultural and multi-religious contexts, Rajeev Bhargava's perspective, which has been derived largely from Indian experiences, might be applicable to the Ethiopian context. He pleads for a flexible secularist approach that may be characterised as a ‘principled distance' of politics from religion: On the one hand, this approach maintains a ‘principled distance' of the state from religious institutions in order to secure a form of minimum consensus on the standard of living for all citizens and may contribute to a more peaceful co­existence of different religions. According to Bhargava, secularism should be understood as a strategy which embraces both state intervention as well as restraint towards religious practices. Moreover, he emphasises that the rela­tionship between religion and politics might if anything be guided by non­sectarian principles consistent with a set of values to guarantee a dignified life for all, prevent discrimination on grounds of religious sentiments, and keep an eye on the often totalitarian claim of religion.^[536] On the other hand, state inter­vention displays a certain interference of religion in politics and politicisation of religion. Accordingly, the Ethiopian governmental decision to constitution­ally recognise Shari^ta courts corresponds with the idea of ‘principled distance' of politics from religion.

However, regarding the degree of mutual interference of religion and poli­tics, the governmental decision to finance the Shari^ta courts remains a contest­ed feature of the legal plural arrangement. The federal Proclamation 188/1999 states that the budget of the Shari^ta Courts shall be drawn from budgetary sub­sidies to be allocated by the Federal Government as well as from assistance from other sources.5^[537] State funding certainly implies involvement in religious affairs. From a different viewpoint, the provision of financial resources could be regarded as consistent, given the state's guarantee of ensuring collective freedom of religion. According to the President of the Federal Supreme Court, the financial support should be rather viewed as beneficial, since the Shari^ta courts require budgetary assistance in order to provide proper legal services. Ultimately, however, “the intention of the government is for the Shari^ta courts to stand on their own’.^{[538] [539] Moreover, the federal Proclamation regulates the administrative co-operation of the Sharita courts with governmental institu­tions with regard to the general operation and accountability of the religious courts.54 In practice, the state courts and the Sharita courts cooperate primar­ily on the level of administration, both formally and informally: The regular courts support the Sharita courts not only regarding the recruitment of staff but also regarding the provision of basic facilities. On an administrative basis there are regular meetings where challenges which have arisen are discussed and where conflict resolution strategies arejointly found. Even though the state has to refrain from interfering, the Federal Supreme Court (fsc) is involved in disciplinary matters and examines complaints against Kadis of the Sharita courts.[540] [541] [542] Moreover, the established FederalJudlclal Commission is involved in both the appointment processes of the state judges and of Kadis. So far, this commission has accepted all nominations that have been suggested by the re­ligious institutions. The co-operation at regional level, in the Harari People’s National Regional State (hpnrs), seems to follow similar pattern. According to one informant:}

The relationship between the regular courts and the Shari^ta courts is only an administrative relationship, not a legal relationship. [A]s long as we are Muslims we have some kind of knowledge about the Shari^ta law but we are not responsible for the application of the Shari^ta law.5⁶

Representatives of the Ministry of Justice mentioned a few changes with re­gard to the cooperation. One informant stated that:

Some years ago there was accusation of mismanagement of the filing of cases at the Shari^ta courts. And there was a decision to have the registrar of the Federal Supreme Court to administer the files of the Shari^ta courts in order to have the similar file system. In the past the Shari^ta courts used to have their own registrars^⁷

This demonstrates that the frame of cooperation is set by the respective proc­lamations, but is shaped and reshaped by the respective actors of the involved institutions. Regular dialogue and the establishment of consultative conflict resolution strategies support the exchange of knowledge of the governmental courts and the Shari^ta courts which may contribute to a better mutual under­standing. Ethiopian governmental actors regulate the scope and extent of ju­risdiction of Shari^ta courts de jure, even though some of the main features of Shari^ta court practice are highly contested, as will be shown in the following paragraphs.

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