There is a great deal of development activity that takes place solely in domestic context of states, and this activity is regulated by domestic development law. National development law may conflict with or complement international development law.19 International development law may directly interact with domestic legal traditions.20 However, there is a sharp distinction between national and international development law.21 National or domestic development law regulates domestic-based development policy.
National development law regulates the financial, economic, social, environmental, industrial and cultural development of a nation.22 Since economic development is an element of international development, economic plan made at national level should include and enhance as well as coordinate social, cultural and educational development of human resources. It coordinates services in sectors such as resource, sea and atmosphere, power as well as energy. All these are included in the notion of national development and national development law is that law which coordinates and regulates all national development.23
In Ethiopia, development law can be observed as incorporated in different laws of the country.24 Currently, the FDRE Constitution aspires that
We, the Nations, Nationalities and Peoples of Ethiopia:
17
See the FDRE Constitution (n 4 above) Art. 89(4) and (6).
18 Above, Art. 89(6) and 43(2). The Ethiopian Government reports to the African Commission on Human and
peoples’ rights, See for example, Federal Democratic Republic of Ethiopia Combined report (Initial and Four Periodic Reports) to the African Commission on Human Rights and Peoples’ Rights. The report does not explain the concept of the right to development rather it rephrases the provisions of the Constitution.
19 C Picker ‘International trade and development law: A legal cultural critique’ (2011) 4 The Law and
Development Review 48.
20 G Wang ‘International development law in the globalized world’ (2006) 13 James Cook U. L. Rev. 221. 21 DD Bradlow ‘Differing conceptions of development and the content of international law’ (2005) 21 South
African Journal of Human Rights 66. As Sucharitkul defines international development law is a part of international
law that regulates and controls various aspects of national development and development of shared resources of the global society, of a region or sub region or common heritage of peoples. S Sucharikul ‘The nature and sources of international development law’ (Encyclopaedia of Life Support Systems (EOLSS)) 3. This indicates that international development law and national development law are interconnected.
22
DD Bradlow ‘Development decision-making and the content of international development law’ (2004) 27
Boston College International & Comparative Law Review 206-07; Sucharikul, above 4.
23 Sucharikul, above.
24 Tilahun Teshome ‘Rule of law and development in Ethiopia: Now and twenty-five years from now’,
125
Strongly committed, in full and free exercise of our right to self-determination, to building a political community founded on the rule of law and capable of ensuring a lasting peace, guarantying a democratic order, and advancing our economic and social development;25(emphasis added).
This makes clear that Ethiopian Nations, Nationalities and Peoples are committed to their economic and social development. Therefore, the Constitution gives due emphasis to development. It also provides that the federal government shall formulate and implement overall social, economic and development policies, strategies and plans of the country.26
The policies, strategies and laws of the country must promote the accelerated development and cause institutions to implement them.27 The Rural Development Policies and Strategies
aspire for the development of the country.28
Investment law of Ethiopia is an essential development law of the country. Investment proclamation of the country, has a rationale, inter alia, to encouraging and promoting the investment so as to ‘...accelerate the economic development of the country and to improve the living standards of its peoples.’29 Moreover, bilateral investment agreements Ethiopia signed aim at promoting investments in Ethiopia.30 The Ethiopian Government adopted a free-market economy whereby the investor will triumph from the competition and thereby contributes for the accelerated development of the nation.31
The Criminal Code aims at accelerating the economic progress of Ethiopia and to strengthen a steady order of free market.32 Furthermore, the Revised Federal Ethics and Anti-Corruption Commission Establishment Proclamation, Proclamation No. 433/2005 provides that fighting corruption is necessary ‘to promote and sustain the development and the democratic process in Ethiopia...’33 This can also be considered as part of the development law of the country.
25 The FDRE Constitution (n 4 above) 1st paragraph of the Preamble.
26 Above, Art. 51(2). Similarly, the Council of States is empowered to ‘formulate and implement economic,
social and development policies and strategies.’ Above, Art. 77(6).
27 ልማት፣ ዴሞክራሲና አብዮታዊ ዴሞክራሲ (ጥቅምት 1999 ዓ.ም.) (Development, democracy and revolutionary
democracy, October 2007) 72.
28 FDRE Rural Development Policies and Strategies (Ministry of Finance and Economic Development Addis
Ababa April 2003).
29 Proclamation No. 769/2012 (n 8 above) 1st paragraph of the preamble. One of the investment objectives of
Ethiopia is ‘to accelerate the country’s economic development.’ Above, Art. 5(1).
30 See for example the Agreement between The Belgian-Luxemburg Economic Union, on the one hand and The
Federal Democratic Republic of Ethiopia on the other hand on The Reciprocal Promotion and Protection on Investments, 2006, Article 2.
31 Development, democracy and revolutionary democracy (n 27 above) 76.
32 The Criminal Code of FDRE, Proclamation No. 414/2004, last paragraph of the preface.
33 Revised Federal Ethics and Anti-Corruption Commission Establishment Proclamation No. 433/2005, Federal
126
Furthermore, the proclamation, which provides for the powers and duties of the executive organs, establishes institutions that are important to transform the development goals of the country into practice. For instance, it empowers each Ministry to supervise different public enterprises that are established in accordance with the Public Enterprises Proclamation No. 25/1992.34 Each Ministry has the duty to ensure that public enterprises operate as development catalysts.35 The public enterprises proclamation is basically aimed at implementing the new economic policy.36 It also aspires to make public enterprises ‘to be efficient, productive and
profitable as well as strengthen their capacity to operate by competing with private enterprises.’37 One of the rationales of enacting the labour law is to enable the workers and employers to work towards the all-round development of our country38 by providing the rights and duties of the parties as well as ensuring working environment. Therefore, it is one piece of development law of Ethiopia.
The agricultural sector is required to be promoted to commercialization.39 Pursuant to Art. 19(1)(a) of the Proclamation No. 916/2015, the Ministry of Agriculture and Natural Resources is empowered to promote the expansion of extension and training services that aim at improving the productivity of the agricultural sector to farmers, pastoralists and private investors. This aims at increasing the productivity of the agriculture sector. Training centres are also envisaged so as to enhance agricultural development and improvement of rural technologies.40 The Ministry, furthermore, is duty bound to coordinate activities related to food security,41 and to ensure the provisions of credit facilities for farmers and pastoralists.42
The Agricultural Transformation Council and Agency Establishment Council of Ministers Regulations No. 198/2010 establishes the Agricultural Transformation Council.43 As indicated in the Regulations, the following are two important powers of the Council, among others,44
34 Public Enterprise Proclamation No. 25/1992, Negarit Gazeta 51st Year No. 21 Addis Ababa, 27 August 1992
Art. 10(3) (hereinafter Proc. No. 25/1992).
35 Above, Art. 3
36 Above, 1st paragraph of the Preamble. 37 Above, 2nd paragraph of the Preamble.
38 Proclamation No. 377/2003, Federal Negarit Gazeta 10th Year No. 12 Addis Ababa 28th February 2004, 1st
paragraph of the Preamble.
39 Development, democracy and revolutionary democracy (n 27 above) 73. 40
Proclamation No. 916/2015 (n 16 above) Art. 19(1)(q).
41 Above, Art. 19(1)(s)
42 Above, Art. 19(1) (m). The provision reads: 'ensure the creation of enabling environment for the provision of
credit facilities to farmers and pastoralists'
43
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A) Provide leadership in identifying, designing and effectively implementing solutions to basic hurdles of agricultural development; and
B) Provide policy directives and effective coordination is realised among different actors involved in agricultural development.
As it is clear from the provisions, the Council is empowered to lead the agricultural development endeavour. To lead this, it is essential to identify basic problems that hinder the agricultural development, and the Council is responsible to provide leadership in solutions to the identified problems. Showing the policy direction is the second power of the Council, and that is why the Prime Minister and the Minister of Agriculture are made Chairperson and Deputy Chairperson respectively.45 Furthermore, the Regulations establish the Agricultural Transformation Agency with the objectives to46
A) Identify systemic constraints of agricultural development, through conducting studies, and recommend solutions in order to ensure sustainability and structural transformation, and support the application of same;
B) Support the establishment of strong linkages among agricultural and related institutions and projects in order to ensure the effectiveness of agricultural development activities. As the Regulations provides for rules that are aimed at promoting agricultural development of the country, it can be seen as part of agricultural development law of Ethiopia. Besides, the law provides for incentives to investors engaging in irrigation development to ‘bring about an accelerated economic development of the country.’47 This is also part of development law of Ethiopia that aimed at bringing economic development in the agricultural sector.
4.4 The concept of democratic developmental state in Ethiopia
The concept democratic developmental state is composed of democracy, development and state. Developmental state is a paradigm to bring about development. The neoliberal development
44
Above, Art. 5.
45 See above, Art. 4(1). 46 Above, Art. 9.
47 Irrigation Development Investment Incentives Council of Ministers Regulations, Regulations No. 162/2009,
128
paradigm has failed to bring about development in developing countries including Ethiopia48 and therefore new alternative paradigm is needed.49 Learning from the experiences of successful East
Asian countries, Ethiopian government has adopted developmental state paradigm.50
Definition
Developmental state is explained as a state where it promotes the idea of development having the institutional capacity to formulate and implement its policies and development programs.51 It
is a type of state that intervenes and guides the direction and process of economic development.52 A given state to be considered as developmental state it must be development oriented and should demonstrate a high level of commitment to attain economic development. It must also possess sufficient capacity to influence, direct and set private sector to achieve development goals.53
Elements
Number of elements of the developmental states has been developed but they may not exist in a single state considered as developmental state. The following are policy lists that indicate developmental state.54
The role of private investor in the economy;
The major role of state to steering investment and coordinating projects; Collaboration and communication between public and private sectors; Strong interest in export and openness to import;
Due attention to entrepreneurship, innovation and product development rather than relying on imported technology and know-how;
48 Meles argues that the neoliberal development paradigm has failed in Africa. Befekadu Wolde Gebriel EPRDF
‘Developmental state and rent seeking’ (University of Utah) 3.
49 Teshome A. ‘Melese’s development paradigm and its impacts on economic transformation in Ethiopia’
(2012) 8.
50 Befekadu (n 48 above) 1.
51 Sehen Bekele & Tsegaye Regassa ‘Democratization in a developmental state: the case of Ethiopia Issues,
challenges and prospects’ (2012) 5.
52 EP Caldentey ‘The Concept and Evolution of the Developmental State’ (2009) 37 International Journal of
Political Economy 28.
53 See Fisseha Mulu Gebremariam & Abtewold Moges Bayu ‘Ethiopia: A democratic developmental state?’
(2017) 7 ILIRIA International Review 156.
54 DM Trubek ‘Developmental states and the legal order: Towards a new political economy of development and
129
Promoting effective foreign direct investment (FDI); Making private firms competitive;
Public-private partnership in providing public services;
Promotion of domestic capital markets and the financial sector in order to generate and allocate resources;
Attention to social protection such as reducing inequality; Welfare programs to invest on human capital.
Developmental state has two major features: a) developmentalist ideology and b) institutional arrangements that will ensure the enforcement of its developmental ideology.55 These features are called ‘software’ and ‘hardware’ of developmental state and they may be regrouped into four. A) Developmental ideology
As per this feature, the state should promote an ideal and development agenda. It must have a mission to bring about economic development to the nation by applying appropriate strategies.56 Some argue that the Ethiopian government adopts developmental ideology because reducing poverty and bringing sustainable development is considered as a ‘life-and-death’ issue.57 The FDRE Constitution states that Nations, Nationalities and Peoples of Ethiopia are committed to advance their economic and social development.58 The Constitution aspires for a democratic government on the basis of ‘...rule of law...’ so as to achieve ‘economic and social development’ of the country.59 This shows the existence of ideological element of democratic developmental state in Ethiopia.60 Moreover, the country’s vision is entrenched on a system of good governance, rule of law and justice on the basis of free will of the peoples. It reads:
55 Sehen & Tsegaye (n 51 above) 7. 56 Fisseha & Abtewold (n 53 above) 157.
57 Above, 163; Development, democracy and revolutionary democracy (n 27 above) 72. 58 The FDRE Constitution (n 4 above) first paragraph of the Preamble.
59 The FDRE Constitution (n 4 above) 1st paragraph of the preamble. In Ethiopia, unlike the East Asian
countries, it is impossible to postpone democracy for the sake of development. Dessalegn An interview given to the media on current Ethiopian situations, Radio Fana FM 98.6 2013 Saturday 3:15 PM.
60 See Sehen & Tsegaye (n 51 above) 6; Ideological, institutional and economic are features of democratic
developmental state. Developmentalism is the ideological feature of democratic developmental state. The ideology of developmentalism enables the state to develop structure that would help to implement economic policy to achieve development. Ibrahim Worku ‘Analysing developmental state in Ethiopia: The case of ‘Project Hegemony’ and ‘Good Institutional Framework’ (Proceedings of Fifth National Conference on Growth and Transformation Plan (GTP) and Civil Service in Ethiopia Addis Ababa July 2012) 48. The 1995 Ethiopian Constitution was ‘applauded
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To become a country where democratic rule, good governance and social justice reign, upon the involvement and free will of its peoples, and once extricating itself from poverty to reach the level of middle- income economy as of 2020-2023.61
The economic sector vision reinforces this vision giving a premium on industrial sector to play the leading role while modern and productive agricultural sector with enhanced technology is essential.62 The objective of the state to eradicate poverty and to become middle income level indicates the developmentalist orientation of the state, which is the ideological element of developmental state.63 This is a clear indication of the ideology of the Ethiopian state to bring about development for the country.
B) Institutional capacity
Developmental state should have a strong institutional capacity to implement the developmental ideology. Institution includes governmental bureaucracy staffed by professionally competent persons.64 This implies that the staff in bureaucracy should be empowered, capable and depoliticized.65 Besides, developmental state needs visionary and committed leaders to mobilize the resources and the peoples to enhance economic development.66 Developmental state needs building trust and confidence on institutions and norms including the rule of law, justice, political stability and peace.67
In Ethiopia, institutional capacity is a challenge for the establishment of developmental state.68 Committed, strong and depoliticized bureaucracy is missing in the country.69 The government does not attract professionals to its bureaucracy.70 Recently, the government appointed some professionals in the highest positions such as ministers and minister d’état.
for its commitment to liberal democracy and respect for political freedoms and human rights,’ Bertelsmann Stiftung (BTI) ‘Ethiopia Country Report’ (2012) 2. However, the EPRDF regime is accused of refusal to accept democratic rules of the game. Above, 3.
61 Ministry of Finance and Economic Development Federal Democratic Republic of Ethiopia Growth and
Transformation Plan 2010/11-2014/15 Volume I: Main Text 21(here in after referred to as GTP I).
62 As above.
63 Sehen & Tsegaye (n 51 above) 17.
64 Sehen & Tsegaye (n 51 above) 7. Fisseha & Abtewold (n 53 above) 158. 65 Sehen & Tsegaye (above). Fisseha & Abtewold (above) 158.
66 Fisseha & Abtewold (above).
67 Sehen & Tsegaye (n 51 above) 7. Fisseha & Abtewold as above.
68 Mesgna Gebretensae ‘The challenges and prospects of building a developmental state in Africa: A
comparative study of Botswana and Ethiopia’ unpublished Master Thesis Addis Ababa University, 2015 65.
69
Fisseha & Abtewold (n 53 above) 164. Some indicate the attempt of the Ethiopian government to incorporate ethnicity in its bureaucracy does not consider the merit of persons and this is a challenge to implement the developmental state ideology of the country. Zemenu Y. Ayenew, ‘The Developmental State and Ethnic Federalism in Ethiopia: Issues to Worry about’ (2017) 1 Hawassa University Journal of Law 1-22 14.
70
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However, it seems not producing a difference in the performance of the government to enhance development in the country.
C) State and Private Sector
State intervenes in the economy so as to ensure economic development. State prepares a plan and follows up its enforcement. It also rectifies market failures of the economy.71 It plays a vital role in guiding and regulating the economic development of the nation.72 The private sector, such
as investors are major players in the economic development.73
The Ethiopian government has been playing a regulating and controlling role of the economic development and has scored a continued economic development.74 It also controlled some of the strategic economic sectors such as electricity and telecom which is considered as appropriate in the absence of strong private sector to play the role.75 The nature of economic development in the country is heavily top down by which the government is playing a great role.76 The Ethiopian government opted to large-scale agricultural investment to involve private
investors and it took cheap options without adequate appraisal of the environmental conditions; and in the absence of massive infrastructural development little significant production has resulted.77
D) Legitimacy
The development process cannot be achieved in a short period; it needs a continuity of performance regardless of change of leaders, or government. This kind of legitimacy should be given by the people in general. The government and leaders should bring about a meaningful reduction of poverty and unemployment.78 In principle, government in Ethiopia is elected by the
71 Above, 159.
72 Bizuayehu Daba & Fesseha Mulu ‘Incorporating “Democratic developmental state ideology” into Ethiopia’s
Ethnic Federalism-A Contradiction?’ (2017) 6 Universitepark Bulten 114.
73 Fisseha & Abtewold (n 53 above) 159.
74 The Ethiopian government has implemented different plans to bring about accelerated development to the
country. Now the growth and transformation plan II (GTP II) is being implemented. See Federal Democratic Republic of Ethiopia Growth and transformation plan II (GTP II) (2015/16-2019/20) (National Planning Commission, Addis Ababa, May 2016).
75 Above, 166.
76 C Clapham ‘The Ethiopian developmental state’ (2017) Third World Quarterly 10. 77 Above, 8.
78
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peoples for each election term79 and this could be taken as a ground for legitimacy of the government to undertake development programs in the country.
Democracy
Since the mid 1990’s, paradigm of good governance as the role of the state in development has developed that ‘focused primarily on how states should govern rather than on what they should be doing...’80
In Ethiopia, unlike the East Asian countries, it is not possible to postpone democracy for the sake of development. Democracy is a must in a multicultural and ethnic country like Ethiopia. In the absence of democracy, economic development is unthinkable. In addition, democracy now a day is considered as one of the components of basic human rights.81 Democracy and development enforce each other;82 where there is democracy, peoples will work for development. The FDRE Constitution provides that the rule of law and guaranteeing democratic order are visions of the country.83 The country aspires for respecting individual and peoples’ fundamental
rights and freedom as necessary condition for achieving the above mentioned objectives,84 by