The Role of Cassation and Constitutional Interpretation

In order to navigate the nebulousness of state-recognised legal pluralism, i.e. to keep it as a framework in which the different normative concepts are de­fined in negotiation, the fdre Constitution underwrites various institutional mechanisms to handle conflicts of interest arising within the interdependent spheres of state, groups and group members on a case-to-case basis.

5.1 The Cassation Benches of the Supreme Courts

The power to review judicial decisions “[...] containing a basic error of law”,^{[584] [585] [586] [587] [588] [589]} or [an error] of basic nature that may have the unfortunate consequence of shaking the constitutional or legal order,^ω7 rests with the cassation divisions of the state Supreme Courts at federal and regional levels. However, Proclamation 188/1999 states that, “[u]nder no circumstance shall a case brought before the courts of Shari^ta, thejurisdiction of which has been consented to, be trans­ferred to a regular court^,,.ιo⁸ One difficult issue is reviewing Shari^ta courts' de­cisions in light of internal pluralism of Islamic law visible in the four Sunni legal schools of thought applied across Ethiopia. Another problematic area is having a non-codified, or non-ascertained Islamic family law. A generally con­troversial question is whether a final decision of a Supreme Court of Shari^ca can be reviewed by any regular State court^ω9 since it challenges the autonomy of the established Shari^ta courts and their constitutional status. According to the Vice President of the Federal Supreme Court,

[.] if a party is not satisfied with the final judgement of the FSSC [Federal Shari^ta Supreme Court] they cannot come after exhausting the judiciary to the cassation division of the Federal Supreme Court challenging the decision of Shari^ta courts regarding their applied substantive law, but only regarding any basic error of procedural law.™

The presiding Kadi of the Federal Shari^ca Supreme Court Addis Ababa ex­plains the cassation practice as follows:

The cassation bench of the regular Supreme Court is only looking how the procedure is rendered based on the fundamental laws.

Thus the cassation is limited to reviewing the application of the civil procedur­al law or whether fundamental principles of law have been violated. However, in most cases the parties claim a ‘fundamental error of Islamic law’,^{[590] [591] [592] [593] a claim that is usually denied, since the judges of the regular Supreme Courts pro­nounce themselves unqualified due to their lack of knowledge of Islamic law. In addition to the power of cassation, the Ethiopian legal system has incorpo­rated another control mechanism for guaranteeing the appropriate applica­tion of constitutional principles.}

5.2 The House ofFederation (HoF) and the Council of Constitutional Inquiry (CCI)

The power to interpret the fdre Constitution has been given to the House of Federation in conjunction with the Council of Constitutional Inquiry.ⁿ³ The HoF is a political organ composed of elected representatives from the feder­al states of Ethiopia and is equivalent to a chamber of parliament in other countries. The CIC is composed of various members, the majority of whom are legal experts.ⁿ⁴ A reason for transferring the highest authority of constitu­tional interpretation to a rather political organ was the current governmental actors’ unwillingness to allow certain conflicts between federal and regional governments to be settled by a judicial panel. The political organ is expected to safeguard the interests of the various regional states. This might indicate why the boundaries of legal concepts are negotiated on a case-to-case basis and why they are kept fluid on the general constitutional level. However, since constitutional interpretation also becomes relevant in individual complaints against the violation of basic rights, the question remains of whether this func­tion should not instead be given to a judicial organ.

When looking at the constitutional review of Shari^ta court decisions, the HoF/cic seems to limit the scope of its review to procedural questions such as securing the constitutionally enshrined mutual consent requirement of par­ties, or to cases in which Shari^ta courts exceed their constitutionally granted mandate. The consensus requirement protects Muslims who do not wish to be adjudicated by Shari^ta courts. These contentious issues have led to the revi­sion of some final decisions of the Shari^ta courts by the Cassation bench of the Federal Supreme Court and by the House of Federation. When reviewing, for instance, the landmark case ‘Kedija’,^{[594] [595] [596] the HoF emphasised that Article 34(5) fdre Constitution enshrines the requirement that parties to a dispute consent to be adjudicated by Islamic law. Previously, the lower as well as the appeal Sharita courts had passed similar decisions to the initial Sharita court that were not compatible with the aforementioned constitutional provision. Moreover, the applicant had appealed to the Federal Supreme Court, which also decided against him.117}

However, the question remains how it can be ensured that people do not surrender their fundamental constitutional rights by giving their consent to be adjudicated by Shari^ta courts. How should a case be resolved if the ‘right to equality’ and ‘women’s rights’ collide with the ‘right to freedom of religion’? The Shari^ta court practice reveals that even though the Kadis mostly decide in favour of the women and their offspring, some aspects of their rulings show a clear gender bias that can be attributed to a different understanding of women’s rights. Furthermore, different concepts of gender equality are not only evident in secular and Islamic law, but also and especially in the various local practices.

In an attempt at mutual recognition, conflict resolution approaches should not be categorised into strictly dichotomous notions of constitutionally guar­anteed individual and collective rights. Accordingly, “[...] not all individual rights always trump all collective rights, for much depends on the relative importance of the rights in question and their context and consequences^,,.ⁿ⁸ Any judgement about constitutionality must take into account that the indi­vidual actors are forming the groups, just as they are formed by the groups. Thus, subordination under religious normativities should not necessarily eliminate an individual’s option to revoke his or her decision at a later time. Arguably, ‘freedom of choice’ is both a collective and an individual right. To curtail this right, and thus place the individual within a collective entity, would dissolve this individual right completely in favour of the collective freedom of religion. In taking an a priori decision in favour of local or religious rights, including regarding decisions of Shari^ta courts as extra-constitutional, the in­dividual rights enshrined in a constitution would ultimately be reduced to ab­surdity as well.

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