Introduction to Eritrea’s Legal System
Present day Eritrea is a colonial creation. Its boundaries were created by Italy as part of the 1880’s European colonial project, ’Scramble for Africa’. In 1890, Italy officially declared Eritrea its colony and continued to occupy it until its defeat in the Second World War and replacement by the British in 1941.
In pre-colonial times, the present day Eritrean territory was never controlled by a single force. Rather, different local chiefdoms and external powers controlled different parts of the territory at different times. The external powers that occupied parts of the territory include local rulers from the present day Ethiopia, the Egyptian Empire, and the Turkish Ottoman Empire. When the Italians left in 1941, Eritrea fell in to the hands of the British Military Administration and remained under this rule until 1952. In 1950, the UN issued a resolution to federate Eritrea with the Ethiopian monarchy. The federation lasted from 1952 to 1962 when the Ethiopian monarchy dissolved the arrangement and declared Eritrea an Ethiopian territory. Eritreans raised arms and finally obtained their de facto independence in 1991 and de jure independence in 1993 after a popular referendum with 99.805% of voters favoring Eritrea independence from Ethiopia. Due to this long colonial history, the Eritrean legal system is a combination of traditional law and laws inherited from colonizers, especially Ethiopia.
Eritrea is roughly divided between Muslims and Christians with a small number of Eritreans practicing traditional religions. It has nine ethnic groups and its population size is estimated at 3.6 million.
Eritrea generally follows a civil law tradition although some of its laws reflect a common law influence. For instance, sections of the civil procedure incorporate practices from inquisitorial systems. The same is true for its criminal procedure law.
Eritrea has a transitional government composed of legislative, executive, and judicial branches. The unicameral Transitional National Assembly is composed of 150 members, of which half are non elected members of the sole political party, the People’s Front for Democracy and Justice (PFDJ), and the rest are elected representatives. The Eritrean National Assembly, according to the Eritrean Constitution, is the “supreme representative” of the Eritrean people and a legislative body. The U.S. State Department provides background information on Eritrean history, government structure, and related topics, and the CIA provides a listing on Eritrea in The World Factbook for more detail.
The executive body is composed by the president and his cabinet. The cabinet has 19 members with the president as its chair. The cabinet has the highest authority between sessions of the National Assembly, and it is accountable to the National Assembly. The National Assembly has not met since 2002.
Eritrea has three types of courts: civil, special, and military court.
The Military Court
The Military Court has jurisdiction over penal cases brought against members of the armed forces. It also assumes jurisdiction over crimes committed by and against the members of the armed forces. The Military Court is structured in two levels: higher and lower. The jurisdiction of these two levels depends on the seriousness of the offences in question. The higher level of the Military Court is part of the Eritrean High Court. The Military Court does not afford the right of appeal.
The Special Court
The Special Court has jurisdiction over cases involving corruption. It has the power to re-open and adjudicate cases that have already been processed through the regular criminal justice system. This court does not afford the right of counsel or appeal.
Judges in the Special Court do not have formal legal training. They are appointed by the Eritrean President and are mostly senior members of the armed forces.
The Civil Courts
1. Community Court
The Community Courts, established in 2001, have a one magistrate bench system filled by elected magistrates. They have jurisdiction over cases involving minor infractions of the law. The magistrates, who sit in community courts, do not have legal training. Unlike judges in the Zoba and High Courts, they base their decisions on the customs of the areas in which they serve. Decisions made by such courts may be appealed to Zoba Courts.
2. Zoba Court
The Zoba Court, with few exceptions, is the court of first instance. It has civil, criminal, and shari’a benches. In addition to the one judge bench system which hears all first instance cases, it has a three judge appellate bench that hears cases appealed from determinations made by the labor office on employer-employee relations. The Shari’a bench adjudicates matters of personal status of followers of Islam. Decisions rendered by any of the benches at the Zoba Court can be appealed to the appropriate benches at the High Court.
3. High Court
The High Court, with few exceptions, is an appellate court. It has three judge bench systems. These benches are the civil, criminal, commercial, and shari’a benches.
Eritrea also has a five judge bench that hears final appeals in lieu of a Supreme Court. Eritrea does not have a Supreme Court yet although the Eritrean Constitution envisages one. The final appeals panel at the High Court, which is at the same level of all other benches in the High Court, functions much like a Supreme Court does and is the bench of last resort. This bench is presided by the High Court’s Chief Justice and four other judges from the other benches at the High Court.
Official Sources of Law
The Eritrean Constitution (external link) (official source) ratified in 1997 and awaiting implementation, sits at the top of the hierarchy of the Eritrean laws. The codes adopted from Ethiopia with certain amendments and proclamations published after independence are next in the hierarchy. Following in the list are regulations issued by Ministries by powers delegated under the proclamations. At the bottom of the hierarchy sit administrative acts and directives published by ministries and other authorities.
In the transitional Eritrean government, the executive body enjoys a temporary de-facto law making function. Once the Eritrean Constitution is implemented this function, as mandated by the Constitution, will be assumed by the National Assembly.
Although the Eritrean Constitution envisages the National Assembly as the branch vested with legislative function, the Eritrean National Assembly has not had any meaningful involvement in law making with the exception of its act of ratification of the Eritrean Constitution in 1997. The Ministry of Justice, part of the executive branch, drafts and publishes laws in collaboration with other relevant executive ministries and the office of the president.
1. Customary laws
Although customary law is not recognized as an official source of law in Eritrea, it plays a complementary role in the “modern legal system” through incorporation and enjoys a great deal of importance in practice. Its lack of uniformity, due to its variations along ethnic and regional lines, makes blanket customary law application impossible. It has, however, maintained its importance in the Eritrean legal system through informal incorporation in the “modern laws.” For instance, while the age of majority according to the Civil Code is 18 years of age, the Civil Code also recognizes marriages between the age of 15 and 18 in recognition of Eritrean customary marriage practices. The establishment of Community Courts in 2001 with the mandate to apply customary laws is another testimony to the importance of customary law in Eritrea.
2. Shari’a Law
Although Shari’a law is not formally recognized as a source of law, it enjoys de facto status in the Eritrean legal system. It regulates issues of personal status of believers of Islam and is enforced through separate Shari’a chambers in the civil court system.
- The Eritrean Constitution (1997).
- Transitional Civil Code (The Ethiopian Civil Code, 1960 amended by Proclamation No. 2/1991, Transitional Civil Code of Eritrea, Vol. 1/1991). (Call No. Law Ethiopia 3 Civil Code 1960)
- Transitional Code of Civil Procedure (The Ethiopian Code of Civil Procedure, 1965 amended by Proclamation No. 3/1991, Transitional Code of Civil Procedure of Eritrea, Vol. 1/1991). (Call No. Law Ethiopia 3 Civil Procedure 1965)
- Transitional Penal Code (The Ethiopian Penal Code, 1957 amended by Proclamation No. 4/1991, Transitional Penal Law of Eritrea, Vol. 1/1991). (Call No. Law Ethiopia 3 Criminal 1957)
- Transitional Code of Penal Procedure (The Ethiopian Code of Penal Procedure, 1957 amended by Proclamation No. 5/1991, Transitional Code of Penal Procedure of Eritrea, Vol. 1/1991). (Call No. Law Ethiopia 3 Crime Proc 1961)
- Transitional Commercial Code (The Ethiopian Commercial Code, 1960 amended by Proclamation No. 6/1991, Transitional Commercial Code of Eritrea, Vol. 1/1991). (Call No. Law Ethiopia 3 comm 1960)
- Transitional Maritime Code (The Ethiopian Maritime Code, 1960 amended by Proclamation No. 7/1991, Transitional Civil Code of Eritrea, Vol. 1/1991).
- Proclamations Issued under the Official Gazette of Eritrean Laws, Government of Eritrea, Proclamation No. 9/1991, A Proclamation to Establish The Gazette of Eritrean Law, Vol. 1/1991.
Note: The Transitional Eritrean laws are composed of the combined reading of the Ethiopian Codes and the 1991 Eritrean proclamations that amend the codes. The call number for the Ethiopian codes is provided above. The 1991 Eritrean proclamations have not been assigned call numbers yet.
- No official government Web sites that make Eritrean legislation available exist with the exception of the Ministry of Information Web site which makes available a copy of the Eritrean Constitution (external link).
- NATLEX: Eritrea (external link) (International Labor Organization) database of national laws on labor, social security, and related human rights makes certain Eritrean legislation available.
- Selected Eritrean legislation is made available in United Nations Environment Program (UNEP) Country Environment Profile Information Syste (external link)m.
- Selected Eritrean Legislation is made available by UNHCR (external link).
- The Library of Congress makes legal and other sources on Eritrea available in the GUIDE TO LAW ONLINE: Eritrea.
- Selected legislation on natural resources (external link) is made available by University of Denver, Sturm College of Law.
Last Updated: 03/07/2014