Historical Development of the Official Legal Status of Sharita Courts
Islamic jurisdiction with its own judicial mechanisms of dispute has existed within the territory of contemporary Ethiopia for centuries, long before becoming recognised in state law by Emperor Haile Selassie I in 1942.
Historical accounts show that Kadis courts were established in different Muslim sultanates within the Northern and Eastern territories of contemporary Ethiopia as well as in Ifat, Dawaro, Bali, Mara, Jimma and Harar from the 10th century.[505] [506] [507] Ethiopia’s history was characterised by recurrent power struggles between Muslim and Christian political actors. However, a modus vivendi of practices of coexistence, exchange and cooperation developed over time as well, mainly based on joint economic activities and on common cultural elements which have shaped the Ethiopian societal structure?1 However, despite the manifold interlinkages: Islam in Ethiopia has always been a religion with secondary and, in the eyes of many Ethiopian leaders, inferior status; it emerged in the shadow of Christianity and often suffered from suppression and discrimination. This has had its impact on social opportunities, religious and civil rights and the patterns of self-organisation of the Muslims.22 Changing global political constellations during World War II and its aftermath led to a strengthening of Islam within the Horn of Africa region between 1930 and 1974.2[508] Particularly, the Ethiopian Muslims’ legal status changed tremendously during the brief Italian occupation (1935-1941). In the course of Italy’s colonial divide et im- pera strategies, Muslim political demands were actively promoted since the European invaders depended on local support and local institutions in order to break the resistance of the former ruling elites. Political as well as military interests motivated the Italian governors in Ethiopia to become ‘protectors of Islam’. 2[509] Accordingly, Benito Mussolini proclaimed in Tripoli in 1937 that “Fascist Italy intends to guarantee to Muslim people of [...] Ethiopia peace, justice, prosperity, and respect for the laws of the Prophet [.]”.[510] Thus, the Italian administration constructed, for instance, mosques, established Sharita courts and appointed Kadis throughout the country.[511] In response to the politically strengthened position of the Muslim population during Italian occupation, Sharita courts became officially recognised by Haile Selassie I through the Kadis Proclamation of 1942, followed by the Naiba and Kadis Council Proclamation of 1944. The Proclamations reduced the wide jurisdiction of the former Muslim councils to family and personal law. They established a two- or three-tiered court structure running parallel to the state courts. The Sharita courts were empowered to adjudicate family law and inheritance for Muslims. However, this legal status was challenged by the emperor's codification of state family law in i960 under the political banner of ‘modernisation'. Art. 3347 of the Civil Code of Ethiopia of i960 (CC) stipulates, “[u]nless 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”.Even though the integration of a specific clause for Islamic law had been discussed during the drafting process of the CC, the final provisions of the CC made no exception for Muslims?[512] Thus, dejure the Sharita courts were deprived of their legal basis. However, instead of being abolished, they remained administratively integrated into the state judicial system since the Sharita courts in Addis Ababa were de facto established as a branch of the Supreme Imperial Court. Over time even more Kadis were appointed?[513] After the ousting of Haile Selassie I in 1974, the policy under the Provisional Military Administrative Council (Derg) was not different from that of its predecessor.
Despite constant requests from the Ethiopian Supreme Islamic Council, the Derg opted for keeping the status quo2[514] and for not changing the legal status of the Sharita courts.[515] Ibrahim Idris summarises the development of the de jure legal status of the Sharita jurisdiction during that time:[...] the process of westernization of the Ethiopian legal system that resulted in the codification of the country's law has had no substantial effect on their [the Muslim's] traditional family practices. In view of this circumstance, it may be difficult and even dangerous to repudiate with a stroke of the pen an institution or practice deeply rooted in religion in order to build a uniform system. [...] It is advisable to look into the factual situations in deciding on the status of Islamic law and Sharita Courts.[516]
Thus, the Sharita courts continued to operate for more than forty years without a de jure legal basis. Against the backdrop of these conditions, the fdre Constitution of 1995 has introduced tremendous changes regarding the legal status and function of the Sharita courts that will be discussed in the following section.
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