Legal system of Eritrea

Before independence, Eritrea was colonized by Italy and later occupied by Britain, therefore subjugated to those nations' laws through the World War II era.

The administration did not repeal the Italian Penal Code, which in effect disenfranchised Eritrea in any criminal proceedings.

[5] Under the Federation of Ethiopia and Eritrea (1952-1962), the National Assembly created a commission to codify customary law.

However, because of extreme tension and fighting between the groups attempting to draft the new code, the project was scrapped, and the commission remains inactive today.

This included an expansion of women's rights, limits on the time prisoners could be held in detention, and a presumption of innocence for those charged with crimes.

With the number of courts growing from 38 to 110 and reaching rural populations, and a subsequent emphasis not only on customary law but civil law, Eritrea transitioned from a country mainly governed by local legal practices to a unified legal system.

This included a group of 50 experts from a variety of religious and ethnic backgrounds appointed by the National Assembly to create the next constitution.

[4] Headed by Bereket Habte Selassie, the assembly aimed to create a fair, just Constitution.

[2] The Constitution spelled out democratic ideals, delineated separation of powers and guaranteed human rights for all.

For a variety of reasons, including the inability to translate these laws into vernacular languages, they have not been put in place to this day.

[4] Although Eritrea was under Ethiopian control in 1952, a federal act in Ethiopia established an Eritrean constitution.

[7][8] This Constitution not only gave deference to local customary law systems, but also created a legal pluralism structure by empowering the judicial systems that were in place, as well as mandating that judges be familiar with local cultural customs and legal practices.

Moreover, the 1952 Constitution's inclusion of the "Special Rights of the Various Population Groups in Eritrea" article enables protections for minorities including those surrounding land ownership, languages, local administration, and political participation.

[1][2] However, the mandatory requirement for officials to learn local customs and legalize what was previously customary law along with other expectations was removed in the 1997 Constitution.

Finally, the article mandates that other state institutions cooperate with and support the judicial system in any way asked of them.

The Supreme Court oversees its own internal operations, including forms of decision-making and the process of case selection.

In the case that a judge is found unable to fulfill these requirements, the Judicial Service Commission is obligated to recommend removal to the president.

With civil cases, jurisdiction is split between Zonal and High Courts depending on the disputed amount.

The officials operating within this system are generally senior military officers without any legal experience or knowledge.

This was originally established under Italian colonization as part of a political decision to maintain certain power structures.

Moreover, the Ministry of Justice is creating a capacity development program for community court judges to increase their literacy and ability to lead this system through basic legal training.

By 1996, students at the University of Asmara's law school were still being taught using Ethiopian, American and European legal structures.

The University of Asmara also struggled with a lack of research facilities and found it difficult to retain permanent faculty.

In 2007, the University of Asmara demoted its law school again to be part of the College of Arts and Social Science.

Although the University of Asmara continues to teach law and counts a variety of judges, prosecutors, and government legal advisers as alumni, there is no prohibition on either the creation of an independent bar association nor are requirements impossible to circumvent.

[4] Article 43 of the 1997 Constitution grants the president immunity from all civil and criminal cases during their time in office.

The lack of guaranteed rights and ability to reopen any case creates a paradox of order within the judiciary while stripping it of authenticity.

[4] Moreover, although the Constitution guarantees a variety of rights within the judicial system, in practice, things tend to be different.

The government has held politicians, journalists, religious leaders, and persons evading conscription for an unknown amount of time without trial or formal legal charges, and has not allowed any outside access to them.

Community courts enable participants to speak in their language, fully explain their situation, and resolve disputes among themselves.