Eritrea, like all of its African brethren, is a colonial creation. Although Turkey, Egypt, and the local Ethiopian rulers controlled different parts of what later became Eritrea at different times, it was Italy that was responsible for its creation as a distinct territorial and political entity in 1890, in discussion with the British (who controlled Sudan, Eritrea’s neighbor to the west). This followed the signing of a treaty with the Ethiopian Emperor, Minilek II – the 1889 Treaty of Ucciali. After the defeat of the Italians in the Second World War, the British took over the administration of Eritrea on behalf of the Allied Forces until a decision on what to do with former Italian colonies was made under section 23 of the Paris Treaty. In 1950, the United Nations issued a report and passed a resolution recommending that Eritrea be federated with Ethiopia as of September 1952, a document which formed part of the Federation Act.
The Federation arrangement with Ethiopia did not last. From the outset the Ethiopian Emperor began undermining Eritrea’s autonomy, which was guaranteed under the federal arrangement. When it became clear that the arrangement was being used as a stepping stone for annexation and that it was not going to lead to Eritreans getting an opportunity to exercise their right to self-determination, Eritreans took up arms. The first shot was fired on September 1, 1961, beginning a long struggle for independence. In November of 1962, Ethiopia’s Emperor Haile Sellasie officially dissolved the arrangement and declared Eritrea to be a province of Ethiopia. After thirty years of war, and the deaths of thousands Eritreans, Eritrea was liberated by the Eritrean People’s Liberation Front on May 24, 1991. Independence was formally recognized two years later following an official referendum in which Eritreans voted almost unanimously in favor of independence.
As Eritrea celebrates its 20th year of independence, a lot has been written about the country’s economic and political situation. There have also been a number of problems identified in relation to Eritrea’s legal system, including:
- The Constitution, which was ratified in 1997, has yet to be implemented.
- The country essentially does not have a legislative body. The National Assembly, which the Constitution states is the “supreme representative [of the Eritrean people] and [the] legislative body,” has not met in a decade to carry out its most basic of functions, making laws. Laws are currently issued by the Executive body.
- The judiciary is not independent. The judiciary lacks institutional independence because it relies on the Executive for budget and human resources supply. In addition, the Executive routinely interferes in the affairs of the courts – the firing of Eritrea’s chief justice by the Eritrean President through the Justice Minister in 2001 marked the most serious and visible violation of the judiciary’s independence by the Executive.
- In addition to the lack of independence, the regular court system suffers from a lack of adequately trained professionals. The fact that the only law school in the country was closed from 2007 through 2010, and that many young attorneys have left the country, has exacerbated the problem. As a result, the regular courts are increasingly forced to rely on judges without proper legal training.
- The lack of adequate properly-trained attorneys, coupled with Ministry of Justice’s practice of not issuing licenses to young attorneys who wish to go into private practice, makes legal counsel inaccessible to most Eritreans.
- Arbitrary arrest and detention by the police, members of the army and the National Security Agency remains commonplace.
- A special tribunal that contradicts provisions of the Eritrea Constitution remains in operation. The Special Court was established in 1996 to adjudicate corruption cases. Its judges are high ranking military officers with no legal training who were appointed by the Eritrean President without any oversight. The Court has unfettered powers to open cases that have been closed by regular courts (in violation of the principle of double jeopardy) and is not bound by any existing substantive, procedural, or evidentiary rules, including in relation to sentencing. There is no right to counsel or appeal and trials at the court are not public.
The Law Library of Congress holds a number of historical documents relating to Eritrea, including quite a few in Italian as well as some relating to the Federation arrangement. The Library of Congress also holds many books and materials on the independence struggle and on the issues facing the country since independence – you can see a large list of interesting titles just by entering “Eritrea” in the catalog search tool.