Bigamous marriage under the Oromia Family Code

In order to stop the widespread practice of bigamy in Oromia, the OFC categorically prohibits the conclusion of a bigamous marriage. Nevertheless, the legislature's initial stance was not against the bigamous practice as such. In other words, bigamous marriage was not explicitly prohibited by the original version of the OFC that was enacted in 2003. It is speculated that the initial legislative silence might have been due to the existence of a long tradition of bigamous marriage in the region. Yet, such a deliberate legislative oversight stood in stark contrast to the relevant provisions of the then Ethiopian Penal Code of 1957 (the Penal Code).Footnote ¹⁷ Both the Penal CodeFootnote ¹⁸ and the current Criminal CodeFootnote ¹⁹ prohibit bigamy. Nevertheless, a very narrow exception on the grounds of religious and customary practice was anticipated, the operation of which is subject to explicit recognition by the relevant family law. Thus, any implicit permission for a bigamous marriage would contradict the proscribed crime of bigamy under the criminal law. Following a swift change in the initial stance of the state legislature, the legal prohibition of a bigamous marriage was explicitly stipulated by way of an amendment to the OFC. As a result, the OFC now prohibits the conclusion of a second marriage by a person who is bound by a preceding bond of a valid marriage.Footnote ²⁰ In prescribing the legal prohibition of bigamy, the regional family law has left no room for the exception contemplated by the Criminal Code. This contrasts with the Harari Regional Family Code that has recognized the exception.

Dissolution of bigamous marriage under the Oromia Family Code

In principle, a bigamous marriage is subject to dissolution at any time. The dissolution of a bigamous marriage removes the purported bond of the created martial union between the spouses. The dissolution may be made on various grounds. As indicated in the preceding section, a regular court can annul an existing bigamous marriage. Indeed, annulment is the usual legal means prescribed for the dissolution of an invalid marriage. Nonetheless, it is possible that the dissolution of a bigamous marriage can be triggered by death or the declaration of a spouse's absence. The death of a bigamous spouse often entails the termination of both the valid and the bigamous marital unions. In fact, this is a consequence of a natural event and does not depend upon the contemplated legal action. Even so, the occurrence of the death (a triggering factor) does not change the underlying ground of invalidity. The same holds true for the effect of a declaration of absence. In a declaration of absence, one of the legal effects of the court's declaration is the dissolution of an existing marital bond.Footnote ²¹ The law provides that both divorce and declaration of absence can constitute an independent and sufficient legal ground for the dissolution of a valid marriage.Footnote ²² Further, a declaration of absence can also operate to prompt the dissolution of a bigamous marriage. As can be noted from the cases cited elsewhere in this article, the cause of the dissolution of a bigamous marriage may in practice be misconstrued as divorce.

Despite the triggering effect of these events, the sole and underpinning ground for the dissolution of a bigamous marriage remains the inherent invalidity of the marriage itself. That is to say, annulment is the only legal cause for the dissolution of an invalid marriage.Footnote ²³ It is essential to note this basic distinction. Irrespective of the form of the action invoked for the dissolution of a marriage, the substantive cause should not be defined by the mere designation of the action. Nevertheless, all the grounds entail the factual dissolution of a marriage. In this regard, there is no practical difference in their consequences: termination of a marital union. The issue that begs a question lies rather in the possible differences in the division of the marital property upon the dissolution of the marriage. As such, the answer depends upon whether a distinction is drawn between the dissolution of a bigamous marriage and that of a valid marriage, regardless of the causes of the dissolution. In most family codes in force at regional and federal levels in Ethiopia, there appears to be no such a distinction. For instance, the Federal Revised Family Code treats all invalid marriages as voidable marriages.Footnote ²⁴ In other words, the legal effects of an invalid marriage remain in place until its dissolution. The only difference is that the law requires the dissolution of the invalid marriage to be made through an action of annulment while a valid marriage is protected to subsist. Thus, the partition of common property acquired in a bigamous marriage is subject to the same rules of partition applicable for a valid marriage.Footnote ²⁵

In contrast, the OFC has opted for a different stance with regard to the division of common property upon the dissolution of a bigamous marriage: it draws a basic distinction between a valid and an invalid marriage. As the law stands, the rule of equity governs the liquidation of the pecuniary effects of an invalid marriage.Footnote ²⁶ Hence, in terms of its pecuniary effects, a bigamous marriage is neither void nor voidable under the OFC. In effect, the balance can tilt either way depending on the circumstances of the case. The application of the rule of equity should operate irrespective of the form of the action for the dissolution. The other common ground is the death of the spouse(s). In essence, the death of a bigamist signifies the termination of a bigamous marital union that remains invalid until its dissolution. In all cases, the dissolution of a bigamous marriage should therefore be subsumed into an annulment action.Footnote ²⁷ As such, the rule of equity should be applied consistently in all bigamous marriage cases, regardless of whether the action is filed as a divorce or an annulment. This would prevent bigamists from tactically evading an annulment action in order to designate the action a divorce and benefit from the rule of equal partition applicable for divorce.Footnote ²⁸

The rule of equitable division of common property under the Oromia Family Code

Following the dissolution of a marriage, the common property of the spouses is often identified and divided between them. As a rule, the existence of common property in a marriage and its ultimate partition upon the dissolution of the marriage are presumed. The most important rule in the process of the division is an equal partition of the common property.Footnote ²⁹ Nonetheless, there are two major exceptions, both of which are common to all the family laws currently in force in Ethiopia. The application of the first exception is subject to the reasonable discretion of a court where one of the spouses is awarded damages or an indemnity.Footnote ³⁰ This exception operates where the divorce results from the fault of the other spouse.Footnote ³¹ The second exception to the presumption of an equal partition stems from the agreement of the spouses themselves.Footnote ³²

While the presumption of an equal partition is indiscriminately applicable to all cases of the dissolution of a marriage under the Revised Family Code, the OFC deviates significantly from this basic rule. Accordingly, article 123 of the OFC stipulates that the pecuniary liquidation of an invalid marriage shall be made based on the rule of equity. To this effect, the OFC reinforces a significant distinction between the legal effects of valid and invalid marriages upon their dissolution.Footnote ³³ A bigamous marriage is a typical instance of an invalid marriage, due to its violation of the essential condition for a valid marriage. Thus, the division of the common property in a bigamous marriage is supposed to be determined on the basis of the rule of equity, not the rule of equal partition intended for a valid marriage.

As a result, at the forefront are the issues pertaining to the very notion and practical operation of the rule of equity under the OFC. Unfortunately, the rule of equity espoused by the OFC is devoid of any substantive content or a useful set of guidelines for its application. It is true that a comprehensive definition can never be given to fill the vacuum and substantiate such an elusive notion. Both academics and courts often grapple with the uneasy task of defining the notion of equity.Footnote ³⁴ At times, scholars have understood equity as a portion of natural justice that is more suitable to judicial enforcementFootnote ³⁵ or a sense of fairness as appreciated by a judge.Footnote ³⁶ Thus, the rule of equity may be understood as a sense of fairness to be applied by courts in their decisions, based on the circumstances of the specific case at hand.Footnote ³⁷

Despite the variance in the specific normative content of the rule of equity depending upon the practice prevalent in a given society or part thereof, a set of guiding parameters can be provided to guide the courts in their application of the rule to the partition of common property upon the dissolution of an invalid marriage.Footnote ³⁸ In particular, the rule is very significant with regard to the partition of common property, as personal property lies outside its ambit and a claim to personal property remains subject to the required proof. Relevant to the application of the rule of equity for the partition of common property under the OFC, are the guiding factors contemplated under the Family Code of the State of Southern Nations, Nationalities and Peoples (SNNP) and the Civil Code. It is worth mentioning that the SNNP Family Code has adopted the rule of equity from the corresponding provisions of the Civil Code verbatim. In so doing, the regional code provides that judges shall take into account the existence or non-existence of spouses’ good faith, the consummation of the marriage, the interest of children, if any, and that of third parties acting in good faith.Footnote ³⁹

Yet, the application of the rule of equity based on these factors should not be made to the detriment of the legitimate interests of the lawful spouse. That is, the rule of equal partition that underlies the liquidation of pecuniary effects of a valid marriage shall remain intact as regards the share of the monogamist. In other words, in the course of the partition of common property, 50 per cent of the total common property acquired in the marriage must constitute the share of the legitimate spouse, while the remaining half is shared between the spouses having regard to the rule of equity. For instance, where one of the bigamous spouses acts in bad faith, that spouse may be subject to a punitive reduction of his or her share in favour of the other who has acted in good faith.Footnote ⁴⁰ Indeed, such a mathematical rule is quite difficult to apply in practice where only a single set of common property is acquired during the overlapping occurrence of a valid and a bigamous marriage through the joint effort of all the spouses sharing a common abode. The existence of such a scenario is unavoidable in the rural parts of the Oromia region that are often dominated by a long history of bigamy and strong communal households. The wives in such a case cannot be treated discriminately in the process of the partition. Instead, the rule of equity may be invoked to justify less favourable treatment for the bigamist husband.Footnote ⁴¹ As a result, a careful application of the rule of equity by the court is important to safeguard the legitimate purpose of the law in protecting a valid marriage. A contract or practice that tends to defeat the application of the rule is likely to encroach upon the legitimate constitutional interests of the lawful spouse.

The proper application of the rule would also draw the OFC closer to the purpose envisaged under the criminal law. As opposed to the Revised Family Code and the FSC precedents that tend to treat the financial effect of a bigamous marriage quite liberally, the rule of equity under the OFC might also serve a punitive purpose as contemplated by the Criminal Code.Footnote ⁴² At least, a bigamist acting in bad faith with the full knowledge of the consequences of his or her criminal act would not be allowed to benefit from the crime. The suggested punitive financial measure would also serve as a deterrent against similar conduct.

Division of common property under the FSC precedents

Ever since the formal adoption of the current doctrine of judicial precedent,Footnote ⁴³ contentious issues regarding the liquidation of the pecuniary effects of a marriage have occurred frequently in family cases in the Cassation Division of the FSC.Footnote ⁴⁴ In particular, cases involving the contentious partition of common property upon the dissolution of bigamous marriages have repeatedly made their way to the federal Cassation Division. Yet, most of the cases have originated, and will continue to arise, from the regional states. Given the “binding” nature of the precedents, all regional courts are supposed to comply with the precedents when interpreting similar provisions under the respective regional laws.Footnote ⁴⁵ To this end, the precedents are intended to form part of the jurisprudence of the regional family laws to govern similar issues on the division of common property. In order to bind the regional and other federal lower courts, the legal interpretations set as precedents by the FSC are required to be published and distributed to the lower federal and all regional courts.Footnote ⁴⁶ Hence, the subsequent analysis of FSC decisions will be limited to the major precedents set in this regard since 2005.

In Sadiya Ahmed v Rahima Ali,Footnote ⁴⁷ the FSC ruled that half the common property should be partitioned between the spouses while the remaining half was considered to be an exclusive share of the deceased husband: the share that would eventually devolve upon his heir. Arising from Amhara regional state, the contention over the partition of common property was that the property acquired in one marriage by the “effort” of the spouses should not be shared by the spouse in another marriage with the same husband. Upholding the contention, the state Supreme Court dismissed the claim over the property in another marriage for want of any effort in its acquisition. As a closer reading of its reasoning shows, the Supreme Court's ruling was based on the so-called requirement of a joint contribution or effort.Footnote ⁴⁸

Rejecting the contention and reversing the ruling of the regional Supreme Court, the FSC held that the property in issue should be presumed to be the common property of the spouses in both marriages unless proved otherwise. That is, the acquisition of the property during the marriages would suffice to trigger the legal presumption of common property. The ruling was made despite the bigamous nature of the marriage. Moreover, a joint contribution was not considered necessary. In this case, it must be noted that the ultimate share of the lawful spouse was 25 per cent of the property, while half of the property was left to constitute the husband's share. Thus, the court derogated from the rule of equal partition between spouses in a valid marriage.Footnote ⁴⁹ Despite its origin outside Oromia, this case is worth exploring as it illuminates the jurisprudential practice of the FSC on similar legal issues that originate from Oromia Regional State.

In 2010, the FSC laid down another similar and important precedent, which emerged from the case of Aminat v Fatuma Footnote ⁵⁰ involving a husband with multiple wives. In this case, the appellate division of the Amhara State Supreme Court ruled for the partition of the common property between the spouses in the first marriage. The decision was affirmed by the court's Cassation Division. As a result, the second marriage was essentially rendered void of legal effect, regardless of its recognition as a voidable marriage under the pertinent regional law.

In the end, the FSC Cassation Division gave a ruling that has become a precedent. The essence of the precedent dictates the partition of common property acquired in the first marriage between the spouses, while common property acquired in the second marriage would be partitioned between the bigamists. Nonetheless, this arbitrary rule of division is at odds with the legal presumption of common property stipulated for a valid marriage under the relevant law. As long as the first valid marriage remains intact, all property acquired during its overlapping continuance must be presumed to be common property acquired within that marital union.Footnote ⁵¹ Besides, common property acquired during the first marriage and before the second marriage should remain the exclusive common property of the first two spouses.

The first wife is entitled to claim an equal share in common property acquired in the second marriage during an overlapping period with the first. It must be noted that the FSC did not make such a distinction. Instead, its decision was in favour of the bigamist. It is therefore argued that favourable treatment of the pecuniary effects of a bigamous marriage would tend to encourage the continued practice of bigamy. Even more, it would encroach upon the constitutional right of the monogamist over her pecuniary interests created during her valid marriage. In general, the precedent went too far in search of rather unwarranted “fairness” for the subsequent bigamist to the detriment of the legitimate interests of the first lawful spouse.

Zeynaba v Kedija Footnote ⁵² is another illuminating case that has given rise to a more contentious precedent of the FSC with regard to the division of common property upon the dissolution of a bigamous marriage. Originating in the SNNP regional state, this case ultimately made its way to the FSC. Concerned with the partition of common property among multiple spouses, this case will have similar implications for Oromia regional law, as it arose in a regional state that has a comparable legal provision to that in the OFC. In this respect, both regional codes share a striking similarity regarding the legal effects of an invalid marriage. Hence, the FSC precedent on a case based on the regional law would have profound implications for the application of the relevant OFC provision. In the case at hand, the dispute between the wives arose over a dwelling house that was constructed by the joint efforts of the respondent and her husband during the continuance of both marriages. The SNNP State Supreme Court, in affirming the decision of the lower courts, ruled in favour of an equal partition of the property between the bigamous spouses, excluding the first wife from having a share in the property. The first wife was thus denied a share in the common property for want of a contribution in its acquisition though the property was acquired during the monogamous marriage.

In contrast to the regional courts, the FSC's Cassation Division reached a slightly different decision from the regional Supreme Court by recognizing the first spouse's claim over her husband's share. Eventually, the bigamous spouse was entitled to 50 per cent of the property, while the lawful spouse and her husband were entitled to an equal share in the remaining half that constituted their common property during their marriage. The petitioner's claim of an equal share in the property as a whole with the other spouses was thus reduced to 25 per cent of the property. Looking at the precedent, one can note the FSC's blatant deviation from the underlying principle of equal shares in reducing the legitimate spouse's share to an amount far below that dictated under the principle. In their respective cassation decisions, neither the State Supreme Court nor the FSC made even a tangential reference to the rule of equity enshrined in the SNNP Family Code. This judicial oversight has a significant legal implication. It is worth noting that the favourable treatment of a bigamous spouse to the detriment of a legitimate spouse's interest in a valid marriage would undermine the significance of the lawful marriage. In other words, there remains no incentive for the prospective spouses to conclude a lawful monogamous marriage. Above all, such a ruling is tantamount to violating the legitimate spouse's constitutional right to equality with regard to the common property acquired during the marriage.Footnote ⁵³

At this juncture, it is notable that the precedent itself has evolved from a misapplication of the rule of equal partition to a bigamous marriage. The rule intended for a valid marriage was applied to an invalid marriage. It is a well-established statutory rule that common property shall be divided on an equal basis following the dissolution of a valid marriage.Footnote ⁵⁴ This is a fundamental principle that is central to the common property regimes of all family laws in Ethiopia. Moreover, both the Federal and Oromia Regional State Constitutions guarantee “equal rights of the spouses upon entering into, during and upon divorce of a marriage”.Footnote ⁵⁵ In particular, the Federal Constitution's integration into domestic law of the relevant international human rights instruments enshrining marital rightsFootnote ⁵⁶ adds a human rights dimension to the issues under consideration. Although dwelling on this dimension at this point goes beyond the scope of this article, central to this article are the unfettered and equal rights of the legitimate spouses, inter alia, with regard to their pecuniary interests as regulated by family law. In particular, the equality principle is quite significant upon divorce for the equal partition of common property. As is evident from the reading of the constitutional provisions, the equality guaranteed is arguably limited to a valid marriage dissolved by divorce.Footnote ⁵⁷ In this regard, the Amharic version of the Federal Constitution uses the term fitch, which is a direct translation of the term “divorce”. Nonetheless, this literal interpretation of the legal provision is quite narrow in its remit, as it excludes other grounds for dissolution. Hence, it is plausible to argue that the term “divorce” should be understood in its broader sense to include other grounds for the dissolution of a valid marriage. This is in line with the purpose and spirit of the constitutional guarantee of equality between spouses. In this respect, the rule of purposive interpretation is much more sound and reasonable than the rule of literal interpretation. The constitutional provisions are not meant to retract the equality guaranteed for a lawful marriage merely due to its dissolution as a result of external factors, such as death or the declaration of absence. After all, these factors lie beyond the spouses’ control.

Nevertheless, the principle of marital equality as guaranteed by the constitutions and enshrined in family laws does not stretch to embrace the various instances of the dissolution of invalid marriages in general and bigamous marriages in particular.Footnote ⁵⁸ The rationale behind this exclusion is inherent in the very purpose of the constitutions and family laws to prohibit discrimination in the protection of marital rights in a lawful marriage. In principle, in guaranteeing equal marital rights, both the federal and regional constitutions are reasonably deemed to envisage the equality of rights in a lawful marriage.

Court's neglect of the rule of equity

As indicated above, the key FSC precedents regarding family matters that have been evolving since 2005 are very unclear. The FSC's stance over the last decade lacks consistency with regard to the financial liquidation of bigamous marriages. A typical inconsistency relates to the issue of joint contributions for common property. Of the three recent precedents, the issue of joint contribution, direct or indirect, was required or given undue weight in two cases for the characterization and partition of common property.Footnote ⁵⁹ Furthermore, the rule of equality was used in two casesFootnote ⁶⁰ while the “rule of greater share” was applied in two other cases in favour of a bigamous spouse.Footnote ⁶¹ As the overall assessment of the rulings reveals, the bigamous spouses were treated unduly favourably, to the detriment of the legitimate financial interests of the lawful spouses. Although all the precedents were triggered by the cases originating in two regional states outside Oromia, the precedents are deemed to “bind” the Oromia regional courts in their interpretation of regional laws governing their prospective decisions over similar cases. The family codes of both SNNP and Oromia regional states share a striking similarity regarding the rule of equity so intended, inter alia, for the financial aspects of a bigamous marriage. Consequently, the trend of FSC jurisprudence and its stance in the recent precedents would elicit significant legal implications for the application of the regional family law on the legal effects of a bigamous marriage.

In particular, the precedential jurisprudence clearly contradicts the rule of equity under the OFC that is intended to govern the division of common property upon the dissolution of a bigamous marriage. The rule of equity as discussed above is intended to strike a balance between two interests: discouraging the practice of bigamy and ensuring fairness in the treatment of its financial effects where equity so requires. In the cases analysed above, none of the precedents would fit into the rule of equity. Instead they tip the scales in favour of the bigamous spouse to the extent of adversely affecting the legitimate interests of a lawful spouse. The rule of equal partition that is designed for a valid marriage is stretched to embrace the case of a bigamous marriage in a manner that encroaches upon the constitutional rights of the lawful monogamist. As noted in the precedents, one such instance is the reduction of the legitimate wife's share in favour of a bigamous wife who claims a share in common property acquired during the continuance of the valid marriage. Hence, it appears that the FSC jurisprudence tends to encourage the practice of bigamy. In consequence, this tendency has a punitive effect on the financial interests of the spouses in valid marriages. Further, this amounts to the violation of the constitutional equality of the lawful spouses’ financial interests upon the dissolution of a valid marriage.

Thus, the application of the federal precedents necessarily leads to the continued disregard of the rule of equity. It is important to bear in mind the significance of the rule in safeguarding the lawful spouses’ legitimate interests while maintaining the necessary room to consider fairness. The tendency to conform to the precedent in disregard of the rule has already been evidenced by the practice of the regional courts. Arguably, the practice of the regional courts, though not consistent, largely reflects the FSC jurisprudence. In particular, this seems to be the current trend at the regional Supreme Court. Given the prevalence of bigamous practice in the region, the judges appear to be reluctant to distinguish between the status of legitimate and bigamous spouses.

Despite a lack of consistency, the current rule of partition applied by state courts is apparently based on the approach followed by the FSC in Aminat v Fatuma.Footnote ⁶² As laid down in that case, the rule entitles the wives to a share in common property acquired in their respective marriages with the bigamist husband.Footnote ⁶³ In effect, the precedent equates the financial effects of a valid marriage to those of a bigamous marriage. This is not what was intended by the rule of equity under the OFC. In fact, the OFC rule of equity has been neglected altogether, even by the regional courts. A case in point from Oromia is Mame v Urjitu et al, in which the regional courts overlooked the rule of equity embedded in the OFC.Footnote ⁶⁴ The neglect of the rule is quite detrimental to a lawful spouse's legitimate interest due to the consequent reduction in his or her legitimate share in the common property. In Zeynaba v Kedija, the same practice appeared to influence the SNNP regional courts. Disregard for the rule by the regional courts can be attributed, inter alia, to the fluid and bigamy-friendly jurisprudence of the FSC. That is, the regional courts would be bound to apply the unsettled precedents, despite their judicial power to adopt their own interpretation of the respective regional family law in similar cases. This is what the existing practice dictates. As a result, judicial practice is at variance with the relevant OFC provisions and the legitimate spouse's constitutional rights.

Regional Constitution vis-à-vis the federal practice of cassation

The other critical issue pertains to the legal basis of the practice of cassation over cassation in light of the regional constitution. As the root cause of the jurisprudential practice, the practice of “cassation over cassation” or “double cassation” results from the FSC's cassation review of a final decision on a state matter that has undergone a similar review by the regional Supreme Court in its cassation division. This second cassation review by the FSC is the prevailing practice that underpins the current precedential rule. Thus, the quest for the constitutional legitimacy of the precedential rule necessitates prior scrutiny of the “double cassation” practice itself. Given its importance, this section attempts to shed light on the constitutional legitimacy of the practice under the Federal Constitution and scholars’ arguments on the issue. Although the issue has already garnered considerable attention with intense debates among academics, most of the debates centre on the issue of double cassation per se as opposed to its practical implication for a specific regional law. Indeed, this article seeks to highlight the important perspective of this latter point. Despite apparent consensus on the need to stop the practice, authority is split on the constitutional basis for the practice of “cassation over cassation”.

For instance, one of the scholars on the subject, Abdo, argues that the practice of “double cassation” in Ethiopia draws its legitimacy from the relevant provisions of the Federal Constitution.Footnote ⁶⁵ He contends that the relevant provision is sufficiently clear to substantiate the FSC's current cassation power to “review all final decisions rendered by any court throughout the country”.Footnote ⁶⁶ To substantiate his argument, he invokes the contextual reading of the provisions to justify the FSC's cassation power over state matters as an “exception”.Footnote ⁶⁷ As noted below, this argument is at odds with the principle underpinning the federal structure and the clear provision of the Federal Constitution that allots judicial power to both federal and state courts over their respective subject matter. Furthermore, Abdo opines that the practice is in line with the intentions of the framers of the Constitution.Footnote ⁶⁸ To this effect, he refers to the minutes of the Constitutional Assembly (MCA) that preceded the drafting of the Federal Constitution. Although he notes the intended existence of the double cassation in the MCA, he admits that the draft document could not accurately reflect the intention of the framers.Footnote ⁶⁹ In support of his view regarding the existence of the legislative intent, Abdo cites the reasons indicated in the MCA, including “the goal of having a uniform interpretation of laws”.Footnote ⁷⁰ In sum, Abdo concludes that the counter arguments simply lack a legal basis to refute the legitimacy of the double cassation practice. Nonetheless, in view of the practical and legal implications, he underscores the need to eliminate the practice of double cassation.Footnote ⁷¹

Abdo's line of argument and the conclusion drawn from it are still debatable. In this author's view, there appears to be no such explicit articulation of the intended goal to justify the current cassation practice. Although there was mention of the reasons cited in the MCA, the clear division of powers in a federal structure, the cassation power of state courts on state matters and the inevitable diversity in the state laws would together lessen the weight to be attached to the alleged intention in the MCA in support of double cassation. Indeed, one needs to be cautious not to rely overly on such a preparatory document when the final provisions clearly guard against resorting to such a dubious reading. Its reading as a preparatory work should not be misconstrued to contradict the final provisions of the Federal Constitution enshrining the basic principle of division of judicial power. Neither should it bear as much weight as the final provisions do. Further, Abdo's concession that the intended double cassation is not clearly articulated, even in the draft constitution, would counter or, at least, cast doubt on his central argument. After all, a lack of clarity in the draft cannot lead to a solid inference in the final version of the Federal Constitution. Furthermore, there is no mention of this point in the more credible exposé des motifs [explanatory statement] to the Constitution. Consequently, the framers’ firm intent on this issue remains quite dubious, compared with the explicit provisions of the Federal Constitution.

Despite the MCA's alleged initial anticipation of a uniform interpretation of laws, the division of power between the federal government and regional states, as well as the consequent diversity in the regional laws, would impede the realization of the “intended” goal.Footnote ⁷² In fact, the specific regional law under consideration in this article (family law) is among the diverse areas of laws that fall under the exclusive legislative and judicial power of the regional states. As is evident from the practice, the diverse regional laws do not agree with the alleged intended “goal” to generate uniform legal interpretation through double cassation.Footnote ⁷³ Even if one might tend to subscribe to Abdo's view on the legitimacy of double cassation, this line of interpretation fails to take account of the overriding principle of division of power in the Ethiopian federal system. In the author's view, such a narrow line of interpretation would not conform to the broad constitutional division of federal and state powers, including the parallel judicial structures and mandates as circumscribed within the federal rule of non-interference. If such an exception were intended, one would expect its clear articulation in the Federal Constitution, with proper alignment to all the relevant provisions of the constitution. As a matter of fact, this is not evident from the existing federal and state constitutions.

In contrast, Redai contends that the practice of “cassation over cassation” has no constitutional basis.Footnote ⁷⁴ He maintains instead that the practice has been caused by the erroneous interpretation of article 80 of the Federal Constitution.Footnote ⁷⁵ In his opinion, the spirit of article 80(3) should be read together with the particular law contemplated by the Constitution.Footnote ⁷⁶ He argues that such a reading would clarify the existing ambiguity and delineate the cassation power of the FSC that must be limited to federal matters.Footnote ⁷⁷ Thus, unlike Abdo's suggestion for a legislative amendment to eliminate the practice while defending its very legitimacy, Redai not only rejects its alleged legitimacy, but also recommends a proper interpretation of the provision itself to do away with the practice altogether. To this effect, he rules out the need for amending the provision in the Federal Constitution.

This author shares Redai's view. It must be noted that the Federal Constitution unequivocally vests the highest and final judicial power over state matters in the State Supreme Court.Footnote ⁷⁸ Yet, others contend that the Federal Constitution actually provides an exception to the rule under the relevant provisions.Footnote ⁷⁹ This author disagrees with the purported reading of the provisions. Indeed, the subsequent usage of the phrase “notwithstanding the provisions of sub-Articles 1 and 2 of this Article” in article 80(3) of the Constitution must not be understood as an exception. Despite the common connotation of the word “notwithstanding” in most legal documents as denoting an exception, closer scrutiny of the provision reveals that the sub-article is an “extension” of the preceding sub-articles. That is, article 80(3)(a) must be read in light of article 80(1), while article 80(3)(b) must be read in conjunction with article 80(2). Such a reading is quite consistent with the preceding provisions of the Federal Constitution. It is deemed an extension or specification, as the cassation power falls within the ambit of the highest and final judicial power of the respective states’ Supreme Courts. Thus, the subsequent sub-articles are neither derogations from nor additions to the highest and final judicial power phrased in general terms. A regional state's cassation jurisdiction is an adjudicative power within the highest and final judicial power of its Supreme Court. No exception is made to this power.

Moreover, the argument that relies on the literal reading of article 80(3)(a) of the Federal Constitution is quite tenuous. It is argued that this provision, along with article 10(3) of the Federal Courts Proclamation No 25/96, authorizes the FSC to exercise a cassation power over any final court decision on federal or state matters.Footnote ⁸⁰ The argument is often based on the wording of “any final court decision” without a further comparative qualification, such as “federal matters”. At first glance, the argument seems to make sense. Nonetheless, closer scrutiny of the relevant provisions and the appropriate construction of the cited proviso would unveil flaws in the argument. First, article 80(2) states that “the highest and final” judicial power over state matters is vested in the State Supreme Court. This is in line with the fundamental principle of the division of power enshrined in the Federal Constitution. In particular, the constitution clearly empowers the respective state councils with the highest legislative power on state matters while the corresponding judicial powers over those matters are vested exclusively in the state courts.Footnote ⁸¹ Further, the Federal Constitution explicitly states that the powers so defined shall be respected by both the federal and state governments.Footnote ⁸² It is worth mentioning that the Federal Constitution provides for no supremacy clause, despite significant legislative inspiration from the US Constitution.Footnote ⁸³ Against this backdrop, the purposive or contextual rule of constructionFootnote ⁸⁴ dictates that article 80(3)(a) should be interpreted in light of these provisions, including articles 50(2) and (8), 52(1) and 79(1) of the Federal Constitution. A literal interpretation that contradicts and renders ineffective the relevant provisions of the Federal Constitution runs counter to the conventional wisdom of a statutory construction. It cannot be justified in the name of an “exception” that is dubiously read into the provision. Should there be the need for an exception, it is an established rule of practice that an intended exception be stated in clear language.

Furthermore, the absence from article 80(3)(a) of a comparative qualifying term from article 80(3)(b) can never be a cogent justification to stretch the limit of the provision beyond its reasonable scope. The use of the phrase “on state matters” in article 80(3)(b) with regard to a state's cassation power is necessary and logical in order to avoid any ambiguity in the provision. That is how it should be identified from the FSC's corresponding cassation power indicated in the preceding sub-article. Yet, no such comparative qualification (ie use of “federal matter”) is necessary for the reading of article 80(3)(a). In fact, the phrase would add nothing to the provision in the Federal Constitution that defines the judicial power of a federal court while mentioning the corresponding power of a state Supreme Court.

The other ground of contention pertains to the proper notion of “any final” court decision under article 80(3)(a). In this regard, the author concurs with Redai's interpretation. Redai correctly notes that the “final” decision should be distinguished from the “cassation” decision.Footnote ⁸⁵ For the purpose of cassation, a decision is deemed final when the decision in a regular proceeding is irreversibly reviewed by the higher court in its appellate jurisdiction. As cassation is not part of regular court proceedings,Footnote ⁸⁶ a cassation decision does not serve as a parameter to determine the finality of a decision. In other words, the finality of a decision is related to the final review of questions of fact and law in the appellate jurisdiction. Moreover, the existence of this distinction is implicit in the usage of both terms in the provision under scrutiny. One can glean this from the wording “a power of cassation over any final decision” enshrined in the Federal Constitution provision. This cassation power, as argued above, is thus limited to the review of final decisions on federal matters. That is, even at a federal level, a cassation review on a federal matter is the exception, not the rule. Indeed, cassation is understood as a discretionary review of a final decision containing a basic error of law. It therefore remains operative within its confines. In fact, the federal cassation power can never be extended beyond its natural limit to justify the existing practice of cassation over cassation on regional matters. Thus, there is not a constitutional basis for the practice even under the Federal Constitution. As argued above, there is a compelling reason to refute the arguments based on supposed pragmatic considerations and the misreading of the MCA in isolation from the basic principles explicitly enshrined in the Federal Constitution.

Further, the lack of a legal basis for the practice of cassation over cassation is implicit in a meticulous reading of the relevant provisions of the Oromia State Constitution. A joint reading of article 64(2)(a) and (c) of the Oromia State Constitution reiterates ad verbatim the corresponding article 80(2) and (3)(b) of the Federal Constitution. In particular, article 64(2)(a) and (c) of the State Constitution bestows upon the State Supreme Court the final judicial power over state matters and the power of cassation over any final regional court decision containing a basic error of law. Nowhere does the regional constitution hint at an instance of the practice of cassation over cassation.Footnote ⁸⁷ If the arguments for the constitutional legitimacy of the Federal Constitution should remain valid, one would expect the corresponding state constitution to recognize the power vested in the FSC by the Federal Constitution. In other words, it is the rule that the state constitution shall conform to the Federal Constitution.Footnote ⁸⁸ In effect, as the proponents suggest, the Oromia State Constitution would have been required to endorse the practice of double cassation in its relevant provisions in order for it to remain compatible with the Federal Constitution. The truth is that such a line of contention has no legal basis under the regional constitution.

Indeed, the Oromia State Constitution expressly mirrors all the corresponding provisions of article 80 of the Federal Constitution.Footnote ⁸⁹ The regional constitution has even dealt with a less significant matter pertaining to the delegation of federal jurisdiction to the state Supreme and High Courts. Yet, the relevant provisions of the Oromia State Constitution do not mention the alleged power of cassation over cassation. Such an omission can never be taken as an inadvertent slip of draftsmanship. Nor should silence be construed as implicit recognition of the federal practice with a consequent limit upon the state's judicial sovereignty. Given its profound implications, no state constitution would implicitly endorse such a significant limit to its judicial power. As testament to its explicit approach, the Oromia State Constitution reiterates the delegated jurisdiction for matters that are vested in the federal government. In contrast, no similar mention suggests or corroborates the alleged inference with regard to the alleged double cassation. In fact, resolving the issue of cassation over cassation in an explicit text is far more significant to the framers of the Oromia State Constitution than the issue of delegation over a federal matter. If it had been so intended, the issue of the so-called double cassation would have deserved no less legislative attention and reiteration in the state constitution.

It follows from this analysis that the practice of “cassation over cassation” or “double cassation” lacks a clear legal basis under both the Federal and the Oromia State Constitutions. The practice rather subordinates the autonomy of the state judiciary to that of the federal judicial power. The argument of the “unique court structure with a convergence at the apex”Footnote ⁹⁰ tends to suggest such subordination in asserting the non-existent power of cassation over cassation. First, this assertion would have required an explicit constitutional approach. Secondly, it would have called for proper alignment in the relevant provisions of the Federal Constitution to provide for a division of power to underpin the claimed mix of unitary and federal state structures.Footnote ⁹¹ Indeed, neither the Federal Constitution nor the Oromia State Constitution hints at such an attempt, leaving both the rule of precedent and its enabling federal legislation incompatible with the Oromia State Constitution. In other words, both the legislation and such an intrusive rule of precedent would contradict the state constitution.

In sum, the practice of cassation over cassation runs counter to the Oromia State Constitution. The existence of such a practice tends to undermine both the significance of state cassation and the judicial competence of the courts to render a final and binding interpretation of regional laws on state matters. Consequently, the rule of precedent established on this practice contravenes the state constitution, despite its subsequent recognition by federal legislation. In the same vein, the expansive federal legislation is too intrusive to respect the regional state power enshrined in the Federal and Oromia State Constitutions. Hence, the precedential jurisprudence is devoid of a constitutional basis to bind the regional courts on state matters. Rather, its application by the state courts should remain restricted to cases where the courts exercise delegated jurisdiction over federal matters.Footnote ⁹²

Regional law vis-à-vis the federal rule of precedent

As hinted in the preceding sub-sections, the relationship between the rule of precedent and the regional law is inconsistent. As the law stands, the rule of precedent has been given overriding priority over the regional law. It even appears to be superior to the regional law,Footnote ⁹³ despite its purported purpose of guiding a uniform interpretation of national laws by federal and regional courts throughout the country.Footnote ⁹⁴ In fact, judicial recourse to the rule of precedent can be made with the effect of an obiter dictum where similarity in the relevant federal and regional laws on a legal issue calls for an interpretation with nationwide application. However, given the inevitable diversity in relevant laws, such as family laws, in some areas,Footnote ⁹⁵ the significance of the rule of precedent in serving its intended purpose would be limited. Emphasizing this point, the mandatory application of the rule of precedent will eventually supersede the application of relevant regional laws through a distorted and misconstrued interpretation. It also robs state courts of their discretion to follow their own lines of interpretation specific to the regional context, despite the existence of a federal precedent on a similar legal provision. The tendency of state courts to succumb to the overbearing influence of the federal precedent has been witnessed in the cases analysed above, as well as similar cases on other legal matters. It must be noted that such an overriding effect has no constitutional basis.

As argued elsewhere in this article, a rule of precedent that lacks the constitutional legitimacy to command a binding interpretative application over state matters cannot engender a binding interpretation of the regional law. Demanding a binding application of the interpretation based on a different law results in complete disregard for the inherent notion of legal pluralism in a federal set-up. The precedents on the partition of common property upon the dissolution of bigamous marriages are inconsistent with the intended purpose of article 123 of the OFC. Despite neglect of the rule of equity by the regional courts and its inherent obscurity, the essence of the rule is to discourage the conclusion of an invalid marriage. In other words, it was intended to ensure compliance with the essential conditions of a valid marriage under the OFC. Bigamy is one example of the anticipated invalid marriages. While the law bans the conclusion of bigamy and requires its dissolution once concluded, it leaves the regulation of its financial effects to the reasonable discretion of the courts on the basis of equity. In so doing, the law attempts to maintain an equitable outcome when deemed appropriate with regard to the financial interests.

Nevertheless, none of the precedents set so far has taken this legal element into account. Indeed, it is quite unlikely that the FSC would take this rule of equity into account while dealing with a case based on other family laws that do not have such a rule. Even for a case calling for the application of such a rule under the SNNP Family Code, neither the State Supreme Court nor the FSC mentioned the rule. Eventually, the evolving precedents stand in stark contrast to the relevant OFC provision. It might be argued that the overriding application of the precedent is justified by the legislation that requires state compliance with the precedent.Footnote ⁹⁶ The simplest counter argument is that legislation that lacks a constitutional basis to dictate compliance cannot create a binding rule of precedent that overrides or marginalizes the regional law by way of pre-emptive interpretative jurisprudence. Moreover, the reading of article 49(3)(a) of the Oromia State Constitution must be read in the light of the Federal Constitution. The state constitution speaks of compliance with the Federal Constitution and other federal laws that remain within their bounds.Footnote ⁹⁷ As explained above, Proclamation No 454/2005 is a federal law that must first be read in light of the Federal Constitution. For the same reason underpinning the arguments forwarded by the author in this article, the legislation itself cannot withstand scrutiny of the Federal Constitution. The compliance clause under the Oromia State Constitution contemplates cases where the federal law is enacted within the ambit of and in accordance with the Federal Constitution.Footnote ⁹⁸ Indeed, all legislation is expected to conform to the constitution from which it drives its legitimacy. In this regard, should federal legislation or practice contradict the Federal Constitution, it will become void.Footnote ⁹⁹ This principle holds true for a state's constitution as well. Likewise, state laws must be compatible with the Federal Constitution.Footnote ¹⁰⁰ A power that is vested in the state by the Federal Constitution cannot be legitimately retracted by a subordinate federal law. Rather, the retraction, when deemed necessary, can only be made by means of a constitutional amendment.

Non-compliance with the federal rule of precedent

The first possible option is judicial non-compliance with the rule of precedent in general and any specific FSC precedent that conflicts with the relevant state law on exclusive state matters. The non-compliance can be resorted to with or without legislative assistance. Accordingly, regional courts can opt for either de jure or de facto non-compliance with the rule. De jure non-compliance can be made based on an explicit legislative action by the state council in light of the state constitution. This might be done by inserting in the relevant legislationFootnote ¹⁰¹ an explicit denunciation of the purported binding interpretative application of the rule of precedent on regional courts. In effect, the jurisdiction of the state courts can be redefined in such a manner. In principle, such an act would remain compatible with both the Oromia State and Federal Constitutions, both of which clearly affirm the judicial autonomy of the regional courts. The unilateral repudiation might even go further to the extent of overruling the practice of cassation over cassation on state matters. No matter how outrageous this step might appear, it falls within the ambit of the state's legislative power. Thus, taking such a bold step would put to rest once and for all the perplexing issue of the cassation itself. The plenum of the State Supreme Court can urge the state council to consider this step.

In the event this step fails or proves inefficient, the state courts may opt for de facto non-compliance. This would not require legislative intervention and might occur where the state's legislative organ is reluctant to intervene or in the interim period pending a planned legislative intervention. In this regard, the courts can justify their conduct based on article 80(2) of the Federal Constitution and article 64(2)(a) of the Oromia State Constitution. Both constitutions state that the highest and final judicial power over state matters is vested in the state Supreme Court. In other words, there is no higher judicial organ to exercise superior judicial power over, or to dictate to, the regional courts regarding their judicial mandate on exclusive state matters. The Federal Constitution has already enshrined the principle of non-interference between the federal and state governments with regard to their exclusive powers.Footnote ¹⁰² Both governments are bound to respect each other's exclusive powers. No arm of the federal government can reach out to interfere with the mandates of any arm of state government. At a state level, the state council is the highest legislative organ of state authority over state matters.Footnote ¹⁰³ The principle of non-interference can thus apply between the corresponding arms of the governments. In the case at hand, the rule of non-interference shields the state judicial organ from the arbitrary arms of both federal legislative and judicial organs. Thus, state courts are under no obligation to surrender their judicial autonomy to federal legislation and FSC jurisprudence on matters that remain within their exclusive jurisdiction. State courts can leave aside the rule of precedent insofar as it contravenes the regional law; they can sidestep the operation of a precedent that runs counter to the application of the rule of equity under the OFC. It should however be admitted that de facto non-compliance is not the best approach to follow, as such unilateral action could affect the harmonious relationship between the federal and state governments.

In sum, regional courts’ non-compliance with the federal rule of precedent and its disputed legitimacy can be considered a self-help measure to repudiate the current practice. Either the state council or the courts can take steps in this regard, although it would be more appropriate for the state council to take the initiative. Otherwise, the State Supreme Court can step up and pave the way for the lower state courts to follow its path through a binding interpretation of article 123 of the OFC.

Court referral to State Council of Constitutional Inquiry

Given its lack of constitutional legitimacy, the practice of cassation over cassation should be denounced. Nevertheless, the practice of the regional courts indicates the obscurity clouding the legitimacy of the rule of precedent and the underpinning issue of cassation over cassation. As noted above, there have been arguments asserting the legitimacy of the practice.Footnote ¹⁰⁴ The denunciation of such an entrenched practice thus requires a careful and systemic approach that follows existing constitutional procedure. As a result, it would be wise for the state courts or any interested party to initiate a constitutional interpretation at the state level. The legal issue can be submitted to the State Council of Constitutional Inquiry (SCCI)Footnote ¹⁰⁵ for constitutional interpretation by the State Constitution Interpretation Commission (SCIC).Footnote ¹⁰⁶ At this juncture, it could be argued that a referral to the SCCI is limited to legal rules enacted by state organs that contradict the state constitution.Footnote ¹⁰⁷ Indeed, that is what a literal reading of the state constitution seems to suggest.

Nonetheless, this provision must be understood from the perspective of the ultimate purpose behind the interpretation. Even if the need for interpretation is often triggered in order to avoid obscurity in a legal rule, the ultimate purpose is rather to ensure that the subordinate rules conform to the state constitution. In so doing, the supremacy of the constitution will be maintained throughout the regional state. This constitutional supremacy is exercised over any rules or practices that operate within the state over state matters.Footnote ¹⁰⁸ The current federal rule of precedent is such a rule, which is intended to apply in the state on state matters. Although it is enacted by the federal government, it contradicts the state constitution. Both cassation over cassation and the consequent rule of precedent disregard the supremacy of the state constitution.

Thus, the rule's legal status in the light of the state constitution must be subject to constitutional scrutiny. As with the rules enacted by the state legislative organ to have legal application in the region, the federal rule of precedent claims the same interpretative application in the region alongside other state legal rules. The mere enactment of the rule by the federal government cannot insulate the rule against constitutional scrutiny by a state as long as it purports to apply in the region over state matters. It seems that the state constitution did not mention this principle as it did not contemplate this scenario. Yet, the existence of the principle is implicit within the overriding principle of the division of power in a federal set-up. Indeed, in a situation where state and federal powers are delineated, such an intrusion through the backdoor would be inconceivable. Despite the lack of an explicit reference to such a rule, the ultimate purpose of the interpretation as reinforced by the supremacy of the constitution justifies the referral of the issue to the SCCI. Upon referral to the SCCI by the state courts, the consistency of the practice or rule can be examined, should it merit a constitutional interpretation.Footnote ¹⁰⁹ Based on the outcome of the inquiry, the recommended interpretation may be submitted to the SCIC for a final decision.Footnote ¹¹⁰

State council or court referral to the House of Federation

The other possible option for clarifying the legitimacy of the practice or the rule of federal precedent would be for the state council or court to refer the matters to the House of Federation (HoF) via the Federal Council of Constitutional Inquiry (FCCI). Reference to the FCCI on the constitutionality of the scope of Proclamation No 454/2005 and the rule of precedent can be made by a state court or an interested party.Footnote ¹¹¹ The court may refer the matter to the FCCI upon its own initiative or upon request by an interested party when it believes that the issue necessitates or involves constitutional interpretation. This is the case where a federal or state law conflicts with the Federal Constitution.Footnote ¹¹² As the rule of precedent is introduced by the federal legislation that endorses the practice of cassation over cassation, the legitimacy of the rule can be examined in light of the Federal Constitution. In the same fashion, a referral related to the constitutionality of the practice of cassation over cassation may be initiated by the state council when the issue arises outside the court.Footnote ¹¹³

To this end, the state council can make a referral against the practice of federal cassation on state matters. Nonetheless, it is not crystal clear whether this issue fits the notion of the “unjusticeable matter” reserved for referral by the state council.Footnote ¹¹⁴ Nowhere does the legislation define the phrase to assist in characterizing the issue at hand. Arguably, issues that cannot stand alone to trigger a judicial decision might be considered for this purpose. In fact, it is argued that the concerned state council may submit to the FCCI disputes relating to the vertical division of powers between the federal and state governments.Footnote ¹¹⁵ The practice of federal cassation over state matters is likely to fall within this category as it constitutes the issue of division of power. Once disputes are submitted to it, the FCCI will examine the necessity of the interpretation sought. The FCCI plays a key investigative and advisory role in the constitutional interpretation of the matter by the HoF.Footnote ¹¹⁶ Should the FCCI find the referral meritorious, the matter will be submitted, along with an appropriate recommendation, to the HoF for a final decision.Footnote ¹¹⁷