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Legal pluralism vs. Human Rights issues: Sharia Courts and Human Rights concerns in the light of the federal constitution of Ethiopia

Abstract

The Federal Democratic Republic of Ethiopia Constitution (FDRE constitution) has taken a bold step in recognizing and promoting ethno-linguistic and religious divert in the country. To this effect, it has specifically granted mandate to customary and religious system in settlement of disputes on matters affecting personal status of individuals. The legal pluralism recognized by the constitution gives rise to plurality of sources of normative ordering that could potentially conflict with state laws, and especially with the supremacy clause of the constitution and human rights provisions enshrined under the constitution. This is the case with matters falling within the competence of sharia courts that are to be resolved by the application of Islamic law, which has a different conception and approach towards the rights of women in general and gender equality in divorce, inheritance, sharing of estate upon divorce, etc. The decisions rendered by sharia courts using Islamic rules could conflict with rules human rights norms in general and rules on gender equality, protection of against discrimination on any ground, etc that are enunciated under the Constitution. This paper examines mechanisms, if any, adopted by the FDRE Constitution to manage the potential clash between state laws on the one hand and religious laws and decisions on the other as related to the jurisdiction of sharia courts. Whether or not final judgments pronounced by sharia courts are supposed to be compatible with the constitutional standards (such as the supremacy clause and human rights provisions) are examined. Before doing so, some important issues that serve as a framework to put things in context that are related to sharia courts such as their brief history in the country, their jurisdiction,, structure, administration, and place in the legal system will be discussed. In addition, few cases decided by sharia courts that shed light on practice of exercising their jurisdiction and relationships with courts of law and an organ in charge with the task of interpreting the Constitution are reviewed. The discussions on issues raised in the paper are based on the analysis of the relevant provisions of the FDRE constitution and laws related to the jurisdiction of sharia courts, such as the Sharia Courts Establishment Proclamation, the Civil Code, the Federal Courts Establishment Proclamation, etc, and review of few cases decided on by sharia courts along with consultation of relevant literature. Sharia courts are set up both the Federal and each nine units of the Ethiopian federation and the focus here is on the Federal sharia courts and not the Regional ones

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