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LEGAL SYSTEMS
system and party presentation as representing a modern method of
procedure, it was readily accepted by the Ethiopian judges, because it
conformed to traditional practice. The new feature introduced was
rules of procedure, which followed the common-law model. 2 7 6 In 1943,
procedural rules were promulgated by the High Court, 2 7 1967] www.abyssinialaw.com
and some
additional rules were established at a later time. Those rules, though
sketchy, governed procedure until the adoption of the Criminal Procedure
Code and Civil Procedure Code. So, the judges operated under
common-law procedure and to the extent they were familiar with
procedure at all, it was with the common-law notion.
Third, despite the adoption of civilian-based codes, litigation will
have the same place in Ethiopia that it does in the common-law system.
To the Ethiopian, a right necessarily means something that he can enforce
in court, and he will be insistent on enforcing rights. Litigation
will continue to be very frequent, and vindication of rights in court
will be very important to the people. The hope was that detailed
procedural rules, if properly applied, could significantly expedite the
conduct of litigation, and it was necessary to have a process by which
each phase of the litigation would be controlled.
Finally, the judiciary did not enjoy such confidence or have such
experience that it seemed wise to entrust them with wide discretion
in the conduct of litigation. By demanding adherence to the rules of
procedure, higher courts could insure that a fair trial was had in the
lower courts. Arbitrary action, particularly that delaying the case,
would be inhibited by the presence of procedural rules. The civilian
approach, giving wide discretion to the judge, assumes a professional
career judiciary which was lacking in Ethiopia. It was considered
necessary to tell the judges what to do at each stage of the litigation
2 7 8
and to oversee their actions.
Therefore, just as it was sound for Ethiopia to adopt codes on the
continental model, it was sound to adopt the common-law approach
to procedure. A mixed legal system in Ethiopia was a matter of necessity
rather than, as elsewhere, a product of historical development.
Originally, Professor Graven, the drafter of the Penal Code, had
drafted a comprehensive judicial code following continental lines
which covered evidence, civil procedure, and criminal procedure. The
Codification Commission, however, decided that in Ethiopia the com-
27 6
Except for the institution of the jury, which was never introduced in
Ethiopia.
277 Under the AD1USSTRATON OF JusricE PRocLALAnoN oF 1942 art. 20, the
Supreme Imperial Court and the High Court were authorized to promulgate rules
with the approval of the Minister of Justice. The rules promulgated by the High
Court were to be employed by the lower courts as well.
278 See Graven, supra note 274, at 74.