Mixed Legal Systems

Italian Eritrea

The Italians established Eritrea as a colony. They also established institutions

and a formal judicial system under the civil law system but it was a mixed system then too.

Criminal Cases- the Italian penal code applied to all

Civil Cases- The Italian civil code applied only if one of the parties was Italian

Sharia'a Law- Recognized if a participant was Muslim

Customary Law- applied if both parties were Eritrean

(Mekonnon, 2015)

Britain

When Italy was defeated in the second world war in 1941 the British Military Administration (BMA) took over as a caretaker of “occupied enemy territory”(Mekonnon, 2015, p.156). The BMA had a fairly limited influence on the legal system as it was an “occupying force” in Eritrea and limited by the terms of the 1907 Hague convention which prevented the BMA from making changes to the system unless they were required for “military necessity, humanity, and conscience” (p.156). The BMA did introduce ideas into Eritrea, such as "educational facilities, political participation, and economic responsibilites" which were new concepts after 50 years of Italian rule. These created a new "politically sensitized environment" in Eritrea which led to “an awareness and understanding of fundamental rights” (p.156). So while no common-law legal traditions remained the BMA did create a new expectation of individual rights amoung citizens.

Ethiopia

The British acted as adminstration in Eritrea until an international decision was made by the United Nation in 1952 to form a federation of Ethiopia and Eritrea. In 1962 the Emperor of Ethiopia, Haile Selassie, abrogated the federation and made Eritrea a province instead. When this happened all the Ethiopian laws applied. Interestingly, the Ethiopian system was also a mix of civil law, influenced by Swiss and French laws, and customary law (Mekonnon, 2015).

In 1974 the Ethiopian government was overthrown by the Derg regime. The Derg regime had a stated objective to build a communist society and much of the laws made during this time used as tools of repression. The laws included a proclamation that suspended fundamental rights and freedoms.

This period begins a 30 year revolutionary struggle against the Derg regime (Mekonnon, 2015).

Freedom at last?

The Derg regime was defeated in 1991 and Eritrea became an independant nation. The Eritrea People's Liberation Front (EPLF) had liberated Eritrea and formed a temporary government (Mekonnon, 2015). The initial aim of the EPLF, which changed it's name to the People's Front for Democracy and Justice (PFDJ), was to form a democratic society, draft a temporary constitution, and then elect a government. The PFDJ spent 4 years working on a constitution and framework for democracy but the government never finished these initiatives or left office(Mekonnon, 2015). Eritrea has "no working constitution, functioning parliament, (or) independant judiciary..."(Mekonnon, 2015, p.158). Eritrea has never had an election and now operates under an "entrenched dictatorship"(p.158).

Authoritarian Revolutionary Dogma

Eritrea, post conflict, had good intentions that were never achieved. Mekonnon (2015) attributes this failure to "authoritarian revolutionary dogma" which refers to the secretive and protective ideology that was formed during the revolution from the Derg regime. He further explains it as a measure of control over the freedom fighters that was essential for success and calls it "the prevailing politico-legal order in Eritrea" (Mekonnon, 2015, p.152).

Eritrea is now accused of human rights violations that according to the Human Rights Commission in Eritrea amount to crimes against humanity with citizens subject to "arbitrary arrest, incommunicado detention, enforced disappearances, and a national service system that amounts to enslavement" (UN News Centre, 2017)