Handbook On The Rights of The Child in Ethiopia: Girmachew Alemu (PH.D.) Yonas Birmeta

Handbook on the Rights of the Child in Ethiopia
Girmachew Alemu (Ph.D.)
Yonas Birmeta
Center for Human Rights
College of Law and Governance Studies
Addis Ababa University
In Collaboration with Save the Children Norway- Ethiopia
1
Table of Contents
Pages
Preface .......................................................................................................................................................... 6
Introduction .................................................................................................................................................. 7
CHAPTER ONE ............................................................................................................................................... 9
DEFINITION OF CHILDHOOD UNDER ETHIOPIAN LAW ................................................................................. 9
1.1. Commencement of Childhood ........................................................................................................... 9
1.2. End of Childhood ....................................................................................................................... 10
1.3 The Concept of Childhood under Ethiopian Laws ..................................................................... 11
1.4. Definition of Specific Minimum Ages under Ethiopian Legislation .................................................. 12
CHAPTER TWO ............................................................................................................................................ 23
GENERAL MEASURES OF IMPLEMENTATION OF RIGHTS OF CHILDREN IN ETHIOPIA ................................ 23
2.1. Recognition of Child Rights in the FDRE Constitution ...................................................................... 23
2.2. Status and Domestication of the CRC and ACRWC in Ethiopian Courts .......................................... 25
2.3. Related International Human Rights Instruments ........................................................................... 26
2.4. The Need for Comprehensive Legal Reform .................................................................................... 39
2.5. Children’s Rights under Ethiopian National Policies ........................................................................ 29
2.6. National Strategies for the Realization of the Rights of Children .................................................... 30
2.7. Coordination of Implementation of Children’s Rights ..................................................................... 31
2.8. Independent Monitoring of Implementation of Children’s Rights .................................................. 33
2.9. Monitoring and Data Collection ....................................................................................................... 34
2.10 Partnership with Civil Society ......................................................................................................... 35
2.11 Budgetary Allocation for Children................................................................................................... 36
2.12. Dissemination, Awareness Raising and Training............................................................................ 36
2
CHAPTER THREE .......................................................................................................................................... 38
GENERAL PRINCIPLES .................................................................................................................................. 38
3.1. The Principle of Non‐Discrimination ......................................................................................... 38
3.1.1. Affirmative Action ............................................................................................................. 40
3.1.2. Scope of the Obligations arising from the Principle of Non‐Discrimination ..................... 41
3.1.3. Prohibited Grounds of Discrimination .............................................................................. 41
3.2. The Principle of the Best Interests of the Child ......................................................................... 42
3.2.1. Case Law by Courts Of Law in Ethiopia Applying the Best Interests Principle.................. 48
3.3. The Right to Life and Maximum Survival and Development ..................................................... 48
3.3.1. Abortion ............................................................................................................................ 49
3.3.2. Infanticide ......................................................................................................................... 50
3.3.3. Capital Punishment ........................................................................................................... 51
3.4. The Principle of Respect for the Views of the Child .................................................................. 51
CHAPTER FOUR ........................................................................................................................................... 60
CIVIL RIGHTS AND FREEDOMS .................................................................................................................... 60
4.1. Birth Registration, Name, Nationality and Right to Know and Be Care for by Parents ............. 60
4.2. The Right of the Child to Identity ..................................................................................................... 66
4.3. Child’s Right to Freedom of Expression ..................................................................................... 69
4.4. Child’s Right to Freedom of Thought, Conscience and Religion ................................................ 69
4.5. Child’s Right to Freedom of Association and Peaceful Assembly.............................................. 70
4.6. Child’s Right to Privacy .............................................................................................................. 71
4.7. Child’s Access to Appropriate Information and Role of Media ................................................. 73
4.8. Freedom from Torture or Other Cruel, Inhuman, Degrading Treatment or Punishment ......... 77
3
CHAPTER FIVE ............................................................................................................................................. 78
FAMILY ENVIRONMENT AND ALTERNATIVE CARE ...................................................................................... 78
5.1. Parental Guidance and the Child’s Evolving Capacities ............................................................. 78
5.1.1. Responsibilities of the Child .............................................................................................. 83
5.2. Parental Responsibilities and State Assistance ......................................................................... 84
5.3. Separation from Parents ........................................................................................................... 95
5.4. Entering or Leaving Countries for Family Reunification .......................................................... 105
5.5. Illicit Transfer and Non‐Return of Children Abroad ................................................................ 107
5.6. The Right to Maintenance ....................................................................................................... 109
5.7. Children Deprived of their Family Environment ...................................................................... 110
5.8. Adoption .................................................................................................................................. 113
5.9. Child’s Right to Periodic Review of Treatment ........................................................................ 122
5.10. Child’s Right to Protection from all Forms of Violence ........................................................... 125
CHAPTER SIX.............................................................................................................................................. 134
BASIC HEALTH AND WELFARE ................................................................................................................... 134
6.1. Rights of Children with Disabilities .......................................................................................... 134
6.2. Child’s Right to Health and Health Services ............................................................................ 137
6.3. Access to Underlying Determinants of Health ........................................................................ 141
6.4. Protection against Harmful Traditional Practices .................................................................... 142
6.5. Child’s Right to Benefit from Social Security ........................................................................... 145
6.6. Child’s Right to an Adequate Standard of Living ..................................................................... 147
CHAPTER SEVEN ........................................................................................................................................ 150
EDUCATION, LEISURE AND CULTURAL ACTIVITIES ................................................................................... 150
7.1. Child’s Right to Education ........................................................................................................ 150
7.2. The Aims of Education ............................................................................................................. 153
4
7.3. Child’s Right to Leisure, Play and Culture ................................................................................ 155
CHAPTER EIGHT......................................................................................................................................... 157
SPECIAL PROTECTION MEASURES ............................................................................................................. 157
8.1. Children in Situations of Emergency ....................................................................................... 157
8.1.1. Refugee Children............................................................................................................. 157
8.1.2. Protection of Children affected by Armed Conflict ........................................................ 160
8.1.3. Rehabilitation of Child Victims ........................................................................................ 161
8.2. Children in Conflict with the Law ............................................................................................ 162
8.2.3. Administration of Child Justice ....................................................................................... 162
8.2.2. Torture, Degrading Treatment and Deprivation of Liberty ............................................ 171
8.3. Children in Situations of Exploitation ...................................................................................... 175
8.3.1. Child Labour .................................................................................................................... 175
8.3.2. Children and Drug Abuse ................................................................................................ 183
8.3.3. Sexual Exploitation of Children ....................................................................................... 183
8.3.4. Prevention of Abduction, Sale and Trafficking ............................................................... 193
8.3.5. Children Belonging to a Minority or an Indigenous Group ............................................. 195
References ................................................................................................................................................ 199
5
Preface
The Center for Human Rights (CHR) of Addis Ababa University is mandated to carry out teaching,
research and community services in connection with its declared objective of the promotion of human
rights and good governance. It is the firm belief of the CHR that knowledge and understanding of human
rights and fundamental freedoms is of utmost importance for their observance. Inspired by this
conviction, the CHR has been making efforts to promote teaching and research on human rights.
The need for the dissemination of knowledge on the law and practice of the rights of children to the
general public is of importance as children are entitled to special care and protection by reason of their
tender age. In this regard, the CHR recognizes that the limited jurisprudence of the rights of the child in
Ethiopia has not been sufficiently investigated. A comprehensive treatment of the legal and policy
framework of the rights of the child in Ethiopia is lacking, in particular, for educational and advocacy
purposes.
This Handbook aims at narrowing the gap in research and advocacy on the rights of the child in Ethiopia.
The Handbook examines the legal and policy framework in Ethiopia for the promotion and protection of
the rights of children. To this end, Handbook explores the human rights of the child as enshrined in
international, regional and national laws and instruments. Moreover, the Handbook utilizes standards
from instruments such as international declarations and programs of action, including General Comments
from the UN Committee on the Rights of the Child, the African Committee of Experts on the Rights of
the Child and other authoritative interpretations of the UN Conventions on the Rights of the Child and the
African Charter on the Rights and Welfare of the Child. A unique feature of this Handbook is its focus on
case law and jurisprudence by courts of law in Ethiopia demonstrating the most recent practice pertaining
to the rights of the child in Ethiopia.
6
Introduction
The Convention on the Rights of the Child was adopted by the General Assembly of the United
Nations on November 20, 1989. The treaty came into force on 2 September 1990. The African
Charter on the Rights and Welfare of the Child (hereinafter African Children’s Charter) was
adopted by the Organization of the African Unity on June 27, 1981 and entered into force on 21
October 1986. The African Children’s Charter is complementary to the Convention on the Rights
of the Child. The adoption of the African Children’s Charter was motivated by the need to
accommodate the specific realities and circumstances of the African child.
Ethiopia ratified the Convention on the Rights of the Child (CRC) on December 9, 19911 by
virtue of Proclamation 10/1992. The adoption of the two instruments marks a paradigm shift
since it identifies children as bearers of not only care and protection rights but also civil and
political rights as well. Ethiopia also ratified the African Charter on the Rights and Welfare of
the Child (ACRWC) on October 2, 2002 by virtue of Proclamation 283/2002. These two
instruments are comprehensive treaties which recognize the civil, political, economic, social and
cultural rights of children. The two child rights treaties are among the treaties ratified by the
country by way of notices of ratification i.e. Proclamations 10/1992 and Proclamation 283/2002.
Some have contended the issuance of these notices of ratification as a sufficient basis for the
justiciability of the treaties in Ethiopian courts despite the fact that the full texts of the treaties
are not published in the official law gazette i.e. the Federal Negarit Gazeta.
This Handbook is organized into eight Chapters. The Organization of the Handbook follows the
cluster of rights as organized by the Committee on the Rights of the Child in its Guidelines for
initial and Periodic Reports by States Parties. The first chapter elaborates the concept of
childhood and the different protective ages provided in related instruments. The second chapter
focuses on the general measures required for the implementation of the rights of the child and
elucidates the measures taken by Ethiopia to this effect. The third chapter of the Handbook
elaborates the four cardinal and general principles of the rights of the child. Chapter four
examines the civil and political rights of children. The fifth chapter looks into the right of the
child to a family environment and the right to alternative care of children deprived of family
1
Ministry of Labor and Social Affairs, Ethiopia’s National Plan of Action for Children (2003‐2010 and beyond),
2004, Addis Ababa, p. i
7
environment. Chapter six dwells on the basic and welfare rights of children. The seventh chapter
is devoted to the discussion of the rights of children to education, leisure and cultural activities.
The final chapter of the Handbook explains special protection measures in respect to children in
situations of emergency, exploitation, children in conflict with the law and children belonging to
minorities or an indigenous group.
8
CHAPTER ONE
DEFINITION OF CHILDHOOD UNDER ETHIOPIAN LAW
Introduction
This chapter considers the elaboration of the concept of childhood as stipulated in the
Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the
Child. The chapter examines the impact of legal definitions of childhood on social and
customary conceptions of childhood. The chapter also dwells upon the concept of childhood as
reflected in laws in Ethiopia. Furthermore, chapter one also looks into the various protective ages
set forth in the law for different purposes and intents. In this regard, the chapter attempts to
demonstrate the adequacy or otherwise of protective minimum ages provided in federal and
regional state laws in Ethiopia and outlines the recommendations of the Committee on the Rights
of the Child as regards the age limits dealt with.
1.1. Commencement of Childhood

The Convention on the Rights of the Child (hereinafter the “CRC” or “the Convention”) defines
“child” as every human being below the age of eighteen years.2 The Convention does not
provide the minimum age of childhood. It does not stipulate either birth or conception as the
starting point of childhood. The silence of the Convention on this point is intentional. The
Convention avoids taking position on the controversial issue of abortion with a view to
encourage universal acceptance of the instrument.3 The setting of the starting point for childhood
is left to the determination of States Parties to the Convention.4 Moreover, the Convention does
not conflict with domestic legislation which provides better protection more conducive to the
realization of the rights of children.5 The Revised Family Code does not provide for the
minimum age of childhood.
2
Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577
UNTS 3 (CRC) art 1
3
Rachel Hodgkin and Peter Newell, Implementation Handbook for the Convention on the Rights of the Child (3rd
edn Geneva 2007) 1
4
Hodgkin and Newell (n 3) 2
5
UNTS 3 (CRC) art 41
9
The majority of the rights enshrined in the African Children’s Charter as well as the CRC are to
be exercised following the birth of the child.6 The phrase “early childhood” has been defined by
the Committee on the Rights of the Child as young children at birth and through infancy, and
those during pre-school years and those during transition to school.7 Simply put, the children in
early childhood are those ranging from birth till the age of 8.8 Young children are entitled to all
the rights enshrined in the CRC.9 Young children are accorded with the right to special
protection measures and progressive exercise of their rights.10 The rights affirmed in the
Convention are to be applied holistically in early childhood in the light of the principle of the
universality, indivisibility and interdependence of all human rights.11
1.2. End of Childhood

For the purposes of the Convention, childhood comes to an end at the 18th birthday unless; the
age of majority is attained earlier pursuant to the domestic laws of States Parties to the
Convention.12 The Convention recognizes that majority may be attained at earlier age under the
laws applicable to the child. This flexible approach adopted by the Convention demonstrates that
it accommodates the concept of attainment of majority at an earlier age either pursuant to federal
laws or state laws of a given Member State. The upper limit of the age of childhood set forth by
the Convention is an age of childhood and not that of majority. This approach is adopted owing
to the fact that in many legal systems a child can acquire full legal capacity as regards various
matters at different ages.
On the other hand, the African Charter on the Rights and Welfare of the Child provides a
different definition of the term child. The Charter defines a “child” as every human being under
the age of 18 years.13 This makes the definitions of the concept of childhood under the African
Children’s Charter not subject to limitations.14 The omission of the phrase “unless majority is
6
7
Committee on the Rights of the Child, General Comment No.7, 2005, CRC/C/GC/7/Rev.1 para. 3)
8
9
10
11
12
13
African Charter on the Rights and Welfare of the Child, Article 2
14
Michael Gose, The African Charter on the Rights and Welfare of the Child (Community Law Center, Western
Cape, 2002) 27
10
attained earlier” in the African Children’s Charter makes the instrument more comprehensive
and inclusive.15 On the contrary, the Convention is more prescriptive and not inflexible as
regards the end of childhood.16
The Committee on the Rights of the Child has emphasized that adolescents up to the age of 18
years old are holders of all the rights affirmed in the Convention.17 Adolescents are accorded
with the right to special protection measures and progressive exercise of their rights.18
This implies the obligation that customary and social constructions of childhood must be
compatible with the Convention and African Children’s Charter. In addition, the Human Rights
Committee has asserted that protective ages must not be set “unreasonably low”. Moreover, the
Human Rights Committee has underscored that a Member State cannot avoid obligations to
children under international law despite the fact that they may have attained the age of majority
under domestic law.19
1.3 The Concept of Childhood under Ethiopian Laws

The term “child” is not specifically defined under Ethiopian law. Instead, Ethiopian laws make
use of such terms as “minors”, “infant”. “young workers” or “young persons”. Chapter Twelve
of the Revised Family Code deals with minors. The Revised Family Code defines a “minor” as a
person of either sex who has not attained the full age of eighteen years old.20 Based on the
Revised Family Code and Family Codes adopted by other Regional States in Ethiopia, it is
possible to assert that the general age of majority in the country is 18 years.
In spite of the fact that the Convention on the Rights of the Child sets 18 as the upper limit of
childhood, it allows minimum ages to be set for different purposes. The different minimum ages
set forth by a Member State need to strike a delicate balance between the evolving capacities of
the child indicated in Article 5 of the Convention with that of the obligation of the State to
15
Cape, 2002) 27
16
17
Committee on the Rights of the Child, General Comment No. 4, 2003, CRC/GC/2003/4, para.1)
18
19
Sharon Detrick, A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff,
The Hague, 1999) 57
20
Revised Family Code, Article 215
11
provide special protection for children. Consequently, Ethiopian legislation has minimum ages
defined under various laws pertaining to the protection of children.
Article 15 of the FDRE Constitution assures of the right to life of every person. Article 1 of the
Ethiopian Civil Code stipulates that one becomes a holder of rights and duties from the moment
of birth onwards. However, Article 2 of the Civil Code also provides exceptional circumstances
whereby personality may commence from the moment of conception. The Civil Code assures the
unborn child of the right to property if his or her interest so requires and if he or she is born alive
and viable if the father dies intestate.21 Moreover, the Criminal Code deals with crimes against
the life of unborn or abortion. The intentional termination of a pregnancy at whatever stage or
however effected is made punishable under the Criminal Code.22 Despite the fact that the
Criminal Code provides various grounds on the basis of which abortion is permitted, the practice
is considered, in principle, as an offence.23
1.4. Definition of Specific Minimum Ages under Ethiopian Legislation

Legal and Medical Counseling without parental consent
The Convention does not support the stipulation of a minimum legal age below which children
are unable to seek and obtain independent legal advice.24 One has to make distinction between
the right to seek and obtain independent medical and legal counseling with that of the right to
make decisions which is contingent upon the evolving capacity of the child.25
The right of the child to seek and obtain independent legal counseling is vital for the respect of
other rights guaranteed under the Convention, the African Children’s Charter as well as
Ethiopian legislation. In particular, the right of the child to seek and obtain independent legal
counseling is of paramount importance in cases where the interests of the child are distinct or
adverse from that of the parent(s), like in the following situations:-
 in case of violence against children, especially, sexual abuse within the family or
institutions working and coming into contact with children,
21
Civil Code, Article 2 cum Article 3
22
Criminal Code, Article 545(1)
23
Tsehai Wada, Abortion Laws in Ethiopia, Mizan Law Review, Volume 2 No.1
24
25
12
 in the event of dispute over children’s rights to a name or nationality,
 in cases involving separation from parents, family reunification, illicit transfer and
abduction,
 in the case of adoption, exploitation in employment and other forms of exploitation.26
Likewise, the right of the child to seek and receive medical counseling without parental consent
is equally important in cases where the interest of the child is adverse or conflicting to that of the
parent.27 This is in particular true in case where violence is meted out to the child by the parent
or other members of the family. Moreover, medical counseling without parental consent is
necessary in case of disagreement and misunderstanding between the child and the parent
concerning the propriety of access to health care services and treatment decisions, family
planning education and services.28 Thus, this must be read in conjunction with Article 24(2) (e)
of the CRC which stipulates that Member States must make sure that children as well as parents
are informed, have access to education and are supported in the use of basic knowledge of child
health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and
the prevention of accidents.”
Adolescent children are also entitled to the right to access to sexual and reproductive
information, pertaining to family planning and contraceptives, the risks inherent in early
pregnancy, the prevention of HIV/AIDS, and the prevention and treatment of sexually
transmitted infections (STIs).29
Medical Treatment or Surgery without Parental Consent
Article 20(3) of the Civil Code alludes to the power of the guardian of a minor to submit him or
her to an examination or treatment beneficial to the health of the minor. Similarly, Article 257(1)
of the Revised Family Code provides that the guardian shall watch over the health of the minor.
Article 257(2) of the Code also states that the guardian shall take the necessary measures for the
recovery of the minor in case of the latter’s sickness.
26
27
28
29
Committee on the Rights of the Child, General Comment No.4, 2003, CRC/GC/2003/4, paras. 28 and 33
13
End of Compulsory Education
Article 28(1) of the Convention laid down the obligation of Member States to provide free and
compulsory education. On the other hand, Article 32 of the Convention obliges Member States to
prevent the involvement of children in work and employment which interferes with their
education. Therefore, States Members are obliged to coordinate the age at which compulsory
education ends with the age for access to full time employment. It is therefore important to have
synchronization between the age when compulsory education ends with that of the age for access
to full time employment.
Article 89(2) of the Labour Proclamation (Proclamation 377/2003) stipulates that it is prohibited
to employ persons less than 14 years of age. One of the reasons for this stipulation is the need to
prevent children from work which interferes with their education.
Admission to Employment
Member States to the Convention are required to protect children from “any work that is likely to
be hazardous or interfere with the child’s education by virtue of Article 32. Article 32 also
requires Member States to proclaim for a minimum age or minimum ages for admission to
employment and to provide appropriate regulation of the hours and conditions of employment.
ILO Convention No. 138 establishes three age limits: 18 for hazardous work, 15 for full-time
employment in non-hazardous work, and 13 for light work that does not interfere with education.
ILO Convention No. 138 requires Member States to adopt all necessary measures including the
provision of appropriate penalties to enforce the minimum age requirements.
As mentioned earlier, Article 89(2) of the Labour Proclamation (Proclamation 377/2003)

stipulates that it is prohibited to employ persons less than 14 years of age. By virtue of Article
48(2) of the same Proclamation, the prohibition on admission to employment of children below
the age of 14 applies to contracts of apprenticeship. Though children between the age ranges of
14 to 18 are not totally banned from employment, the Labour Code provides various restrictions
on their condition of employment and work.
14
Sexual Consent
The laws of various countries stipulate a minimum age below which children are said to be
incapable of giving valid consent to sexual activity involving others. Accordingly, the definition
of sexual exploitation and abuse includes not only conduct involving violence or other forms of
coercion, but also all sexual activity with a child below a certain age whether or it is consensual.
Therefore, sexual activity with a child below a certain fixed age of consent renders the
perpetrator directly responsible for the crime of rape.
The entitlement to conclude marriage implies the ability to consent for sex. This shows that there
has to be synchronization between marriageable age and age of consent for sexual activity. It has
been stated that Ethiopian laws do not clearly stipulate a minimum age below which children are
said to be incapable of giving valid consent to sexual activity involving others. However, Article
626(1) of the Criminal Code provides that performance of sexual intercourse with a child who is
between the age ranges of thirteen and eighteen constitutes the offence of sexual outrage
irrespective of consent on the part of the victim. Therefore, the age of sexual consent in Ethiopia
is 18 both for boys and girls.
Marriage
Article 16 of the Universal Declaration of Human Rights assures the rights of men and women
“of full age” to marry and found a family. Article 16(1) of the Convention on the Elimination of
All Forms of Discrimination against Women (CEDAW) requires Member States to take all
appropriate measures to eliminate discrimination against women in all matters pertaining to
marriage and family relations. In particular, Article 16(2) of CEDAW provides that “the
betrothal and the marriage of a child shall have no legal effect, and all necessary action,
including legislation, shall be taken to specify a minimum age for marriage and to make the
registration of marriages in an official registry compulsory.”
The 1962 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of
Marriages requires Member States to eliminate completely child marriages and the betrothal of
young girls before the age of puberty. Article 2 of the same Convention requires States “to take
legislative action to specify a minimum age for marriage. The provision goes on to state that no
marriage shall be legally entered into by any person under the minimum age, except where a
15
competent authority has granted a dispensation as to age, for serious reasons, in the interests of
the intending spouses.
Article 35(2) of the FDRE Constitution underscores the equality of spouses. Article 7 of the
Revised Family Code raised the marriageable age of a girl to 18 years. Non-observance of this
requirement has the effect of invalidating the marriage. However, Article 7(2) of the Revised
Family Code reads as follows:
“Notwithstanding the provisions of sub-article 1 of this Article, the Minister of Justice

may, on the application of the future spouses, or the parents or guardian of one of them
for serious cause, grant dispensation of not more than two years”
Article 648 provides that “whoever concludes marriage with a minor apart from circumstances
permitted by relevant Family Code is punishable with
a. Rigorous imprisonment not exceeding three years, where the age of the victim is thirteen
years or above; or
b. Rigorous imprisonment not exceeding seven years, where the age of the victim is below
thirteen years.
Voluntary Enlistment and Conscription into the Armed Forces and Participation in Hostilities
Article 38 of the CRC imposes the obligation on Member States to refrain from recruiting into
their armed forces anyone who has not attained the age of 15. The provision also requires
Member States to give priority to those who are oldest in recruiting children between the ages of
15 and 18. Moreover, Member States are also called upon to take all feasible measures to ensure
that persons who have not attained the age of 15 years do not take a direct part in hostilities.
Article 22 of the African Charter on the Rights and Welfare of the Child requires States to refrain
from recruiting children. This implies that children who have not attained the age of 18 cannot be
recruited into the armed forces since Article 2 of the African Children’s Charter clearly defines
the “child” as person who has not attained the age of 18.
In addition, the Optional Protocol to the Convention on the Involvement of Children in Armed
Conflict requires Member States to take all feasible measures to ensure that persons who have
not attained the age of 18 do not take direct part in hostilities. The Protocol calls upon Member
16
States to take measures to prevent the recruitment of and use in hostilities of children who have
not attained the age of 18. This shows that 18 years is the age limit currently viewed as
appropriate age for the recruitment of children into the armed forces.
Article 4 of Defence Forces Proclamation (Proclamation No. 27/1996) provides that the Ministry
of Defence of the country may recruit persons and fit and willing for military services in
accordance with criteria periodically issued. However, the proclamation does not stipulate any
minimum age for enlistment, recruitment in to armed forces and for direct participation in
hostilities. National recruitment guidelines specify recruits must be at least 18.
Criminal Responsibility
Member States to the CRC are required to establish a minimum age limit below which children
shall be presumed not to have the capacity to contravene criminal laws by virtue of Article
40(3)(a). Member States are also called upon to ensure that this age limit is not too low and to
raise the age incrementally.30
Article 52 of the Criminal Code provides that infants who have not attained the age of nine years
shall not be deemed to be criminally responsible. It goes on to state that the provisions of the
Criminal Code shall not apply to this categorization of children referred to as infants by the
Code. In particular, the Committee on the Rights of the Child urged Ethiopia to raise the
minimum age of criminal responsibility at least to 12 and to ensure that children aged 15 to 18
years are accorded the protection of child justice provisions and are not treated as adults.31
Deprivation of Liberty and Imprisonment
Article 37(b) of the CRC requires Member States to ensure that no child shall be deprived of his
or her liberty unlawfully or arbitrarily. The Convention requires that the arrest, detention or
imprisonment of a child shall be in conformity with the law and shall be used as a measure of
last resort and for the shortest appropriate period of time.
The Criminal Code provides different categorizations of children for a variety of reasons. The
Criminal Code provides that the penalties and measures to be imposed by the courts shall be only
30
Committee on the Rights of the Child, General Comment No.10, CRC/C/GC/10, paras. 30
31
Committee on the Rights of the Child, Concluding Observations, ETHIOPIA crc/c/15/Add. 1434, para. 29
17
those specified under Articles 157-168 of the Code where a crime is committed by a young
person between the ages of nine and fifteen.32 The provision goes on to state that young person’s
shall not be subject to the ordinary penalties applicable to adults nor shall they be kept in custody
with adult criminals.
Capital Punishment and Life Imprisonment
Article 37(a) of the Convention on the Rights of the Child prohibits the imposition of capital
punishment and life imprisonment without the possibility of release for offences committed
before the attainment of the age of 18.
Second paragraph of Article 176 of the Criminal Code provides that “in no case may death
sentence be passed upon a criminal who had not attained his eighteenth year of age at the time of
the commission of the crime.
Giving Testimony, in court, in civil and criminal cases
Situations calling for children to give testimony may arise in both civil and criminal cases.
Article 12(2) of the CRC affirms the rights of the child to be heard in judicial and administrative
proceedings affecting the child. Civil judicial and administrative proceedings affecting the child
include, for example, custody, the upbringing of the child, separation from parents, modification
of family relations such as adoption and guardianship and the like.33 On the other hand, criminal
cases may include cases whereby children may be required to give evidence. This could be both
in cases where children are victims of offences or also cases where children are prosecuted for
infringement of criminal laws. Children may also serve as witnesses in cases involving other
parties. The consideration of the Convention does not support the setting of a fixed age for this
purpose in the national legislations of a Member State.
The issue of general competency to give testimony is governed by Evidence Law. In Ethiopia,
there is no codified and comprehensive “Evidence Law”. Instead, there are different versions of
Draft Evidence Rules. The consideration of the fragmentary and scattered evidence rules found
in Ethiopian legislation demonstrates that there is no hard and fast rule which precludes children
32
Criminal Code, Article 53
33
18
from giving testimony under existing laws. The 1967 Draft Evidence Rules in Ethiopia sets forth
two-pronged test to determine the general competency. Firstly, witnesses must be able to
observe, recollect and narrate. Secondly, witness must be able to understand the obligation to tell
the truth. In some instances, child witnesses may also be allowed to testify without taking an oath
if he or she is sufficiently intelligent to understand the obligation to tell the truth.
Lodging complaints and seeking redress without parental consent before a court or other
authority
Article 12 of the CRC sets forth the principle of the right of the child to be heard. This principle
implies the right of the child to have access to complaints procedure. This access is especially
pivotal in cases of complaints concerning violence or exploitation, including sexual exploitation
in the family context.34 The contention that children below a certain fixed age cannot have access
to complaints procedure is not supported by the Convention.
Article 312(1) of the Revised Family Code stipulates that the guardian, tutor, or any other
interested person may apply to the court for the emancipation of a child who has attained the age
of 14. Article 313 of the Code provides that an emancipated minor shall be deemed under the law
to have attained majority i.e. freed from legal restraints thereby in a position to lodge complaints
and seeking redress without parental consent before a court or other authority.
Article 291(1) of the Revised Family Code stipulates that the tutor shall consult the minor in all
important acts concerning him, unless the latter is less than fourteen years old. This shows that
children at the age of 14 years old and above must be consulted when important decisions
concerning them are made within the family.
Participating in Administrative and Judicial Proceedings affecting the Child
Article 12(2) of the CRC affirms the rights of the child to be heard in judicial and administrative
proceedings affecting the child. As regards legal or administrative proceedings, Article 191(3) of
the Revised Family Code provides that the court may approve the adoption upon hearing the
opinion of the child in case where the one of the parents is not willing to give his or her consent
to the adoption provided that the child is ten years of age or above.
34
19
Modification, of family relations, adoption, and guardianship
Article 8 of the CRC provides the obligation to respect for the right of the child to preserve his or
her identity. The right to identity includes nationality, name and family relations. The fixing of
minimum age for the exercise of giving consent to change of identity, including change of name
is not supported by the Convention. On the contrary, the reduction of the minimum age limit
fixed in domestic legislation at which the child’s consent for adoption is required is supported by
the Convention.35
As stated above, Article 191(3) of the Revised Family Code provides that the court may approve
the adoption upon hearing the opinion of the child in case where one of the parents is not willing
to give his or her consent to the adoption provided that the child is ten years of age or above.
Having access to Information concerning the Biological Family
Article 7 of the CRC assures of the right of the child to know his or her parents. Member States
are required to take measures to realize this right as far as possible. The exercise of this right of
knowledge of biological parents is of particular importance especially to adopted children and
abandoned children. The realization of the right of knowledge of biological parentage is
dependent upon the presence of adequate documentation and registration of children. Some
states impose limitations on access to information concerning origin and parentage and fix
minimum age limit for its availability.36 This stipulations run counter to the provision of Article
7 of the CRC.
Legal capacity to Inherit and conduct property transactions
Under Ethiopian legislation the ability to conduct property transactions is dependent upon the
attainment of age of majority, emancipation either as a result of judicial decisions or that of
marriage before the attainment of 18 for exceptional reasons. Article 216 of Revised Family
Code provides that the minor shall be represented by his tutor in matters concerning his or her
pecuniary interests and the administration of his property. Article 216(3) of the Revised Family
Code goes on to provide that the minor shall not perform juridical acts except in cases provided
35
36
20
by the law. Consequently, juridical acts performed by the child in excess of his or her powers are
subject to invalidation upon the request of the minor or his or her representative by virtue of
Article 299 of the Revised Family Code.
Article 205 of the Revised Family Code stipulates that a minor cannot make a will before the
attainment of the age of 16 years. The placement of minors under incapacity to perform juridical
acts is meant to protect them from unscrupulous individuals who may take advantage of their
youth. Article 299 of the Code provides that juridical acts performed by the minor in his or her
power shall be of no effect.
To Create or to Join Association
Article 15 of the CRC protects the right of the child to freedom of association. Art.13 (1) of the
Cooperative Society’s Proclamation No 147/1998 states that any individual may become a
member of cooperative societies when he or she has attained the age of 14 years.
Choosing a religion or attending religious school teachings
Article 14 of the CRC protects the right of the child to freedom of thought, conscience and
religion. Article 18 of the International Covenant on Civil and Political Rights (ICCPR)
stipulates the right of everyone to choice of religion. Thus, the child stands to benefit from this
entitlement in the ICCPR as well. Article 14(2) of the CRC also requires Member States to
respect the rights and duties of parent to provide direction to the child in the exercise of his or
her right in a manner consistent with his or her evolving capacities.
Consumption of Alcohol and other controlled substances
Article 33 of the CRC provides that Member States are required to take all appropriate measures,
including legislative, administrative, social and educational measures to protect children from the
illicit use of narcotic drugs and psychotropic substances. In several countries, the sale of alcohol
and tobacco products and other controlled substances to children below a certain fixed age is a
crime.
21
Minimum Protective Legal Ages Defined by Ethiopian Legislation
Boys Girls
1. End of Compulsory Education Not defined Not defined
2. Marriage 18 18
3. Sexual Consent 18 18
4. Voluntary Enlistment in the Armed Forces Fit and willing Fit and willing
5. Conscription into the armed Forces Fit and willing Fit and willing
6. Participation in Hostilities Fit and willing Fit and willing
7. Admission to Employment 14 14
8. Criminal Responsibility 9 9
9. Deprivation of Liberty and Imprisonment 15 15
10. Capital Punishment 18 18
11. Giving Testimony in Court, in Civil and Criminal Not defined Not defined
Proceedings
12. Lodging Complaints and Seeking redress before a 18 18
Court or other relevant authority without parental
consent
13. Legal and medical Counseling without parental Not defined Not defined
consent
14. Medical Treatment or Surgery without Parental Not defined Not defined
Consent
15. Participating in Administrative and Judicial
Proceedings affecting the Child
16. Giving consent to Change Identity, including Not defined Not defined
change of name, modification, of family relations,
adoption, and guardianship,
17. Having access to Information concerning the Not defined Not defined
Biological Family
18. Legal capacity to Inherit and conduct property 18 18
transactions
19. To Create or to join Association 14 14
20. Choosing a religion or attending religious school Not defined Not defined
teachings
21. Consumption of Alcohol and other controlled Not defined Not defined
substances
22
CHAPTER TWO
GENERAL MEASURES OF IMPLEMENTATION OF RIGHTS OF CHILDREN IN
ETHIOPIA
Introduction
Article 4 of the Convention on the Rights of the Child provides obligations of Member States to
undertake all appropriate legislative, administrative, and other measures for the implementation
of the rights enshrined in the Convention. Similarly, Article 1 of the African Charter on the
Rights and Welfare of the Child spells out the obligations of the Member States to recognize the
rights and freedoms enunciated in the Charter and to undertake the necessary steps to adopt
legislative and other measures necessary for giving legal effect to the provisions of the Charter.
Both the Convention and the Charter do not specify particular solutions instead they chart out
general measures. Once a State has voluntarily acceded to and ratified a treaty, the State is
obliged to adopt the same in good faith.37
As a Member State to both treaties, Ethiopia has been taking various measures to ensure the
realization and observance of the rights of children as enshrined under the Convention and
African Children’s Charter and other treaties as well. These measures range from constitutional
recognition of the rights of children to that of various steps to be taken with a view to give the
provisions of the two treaties legal effect in Ethiopia.
2.1. Recognition of Child Rights in the FDRE Constitution

The Constitution of the Federal Democratic Republic of Ethiopia affirms the rights of all persons
including men, women and children alike. One of the pillars of the Constitution is the right to
equality and non-discrimination.38 It provides that race, nation, nationality, or other social origin,
color, sex, language, religion, political, or other opinion, property, birth or other status as
prohibited grounds of discrimination. Consequently, children have the same rights save certain
age-related exceptions including in the sphere of the right to stand for election. The Ethiopian
Constitution recognizes the vulnerable position of children and guarantees their right to
37
Charter of the United Nations, Article 1; See also Vienna Convention on the Law of Treaties, Articles 26 and 27
38
The Constitution of the Federal Democratic Republic of Ethiopia, Proclamation No.1/1995, Federal Negarit
Gazeta, 1st Year, No.1, Article 25
23
protection. The Constitution also stipulates that human rights and freedoms, emanating from the
nature of mankind, are inviolable and inalienable.39
The FDRE Constitution stipulates important provision on the rights of children. The Constitution
devotes special section specifying rights pertaining to children solely. In particular, Article 36 of
the Constitution incorporates rights of children in the supreme law of the land as follows:
1. Every child has the right:

(a.) To life
(b.) To a name and nationality
(c.) To know and be cared for by his or her parents or legal guardians;
(d.) Not to be subject to exploitative practices, neither to be required nor permitted to
perform work which may be hazardous or harmful to his or her education, health or
well-being;
(e.) To be free of corporal punishment or cruel or inhuman treatment in schools and other
institutions responsible for the care of children.
2. In all actions concerning children undertaken by private and public institutions, courts of law,
administrative authorities or legislative bodies, the primary consideration shall be the best
interests of the child.
3. Juvenile offenders admitted to corrective or rehabilitative institutions, and juveniles who became
wards or who are placed in public or private orphanages, shall be kept separately from adults.
4. Children born out of wedlock shall have the same rights as children born of wedlock.
5. The state shall accord special protection to orphans and shall encourage the establishment of
institutions which ensure and promote their adoption and advance their welfare, and education.
Therefore, the FDRE Constitution recognizes the rights of children to life, to name and
nationality, and to know and be cared for by his or her parents. It provides the right of children to
live a life protected from violence, neglect, exploitation and abuse. In particular, the provision
affirms the right of children to life and bans exploitative practices against children and their
engagement in work which could be prejudicial to their health and well-being. Article 36(1)(e)
also prohibits the infliction of corporal punishment or cruel and inhumane treatment in schools
and other institutions responsible for the care of children. Article 36(2) enunciates the principle
of the best interest of the child as the primary consideration in matters affecting children. Article
36(3) calls up on the accommodation of children in conflict with the law separate from adults.
Article 36(5) also accords special protection for orphans.
39
FDRE Constitution, Article 10(1)
24
2.2. Status and Domestication of the CRC and ACRWC in Ethiopian
Courts
The Constitution of the Federal Democratic Republic of Ethiopia proclaims that the Constitution
is the supreme law of the land.40 Article 9(4) of the FDRE Constitution renders all international
instruments ratified by Ethiopia an integral part of the law of the land. Therefore, any law,
customary practice or a decision of an organ of state or a public official in contravention of the
Constitution is declared to be of no effect.41 Furthermore, Article 13(2) of the Constitution
provides that the fundamental rights and freedoms specified in the third chapter of the
Constitution shall be interpreted in a manner conforming to the principles of the Universal
Declaration of Human Rights, International Covenants on Human Rights and international
instruments ratified by Ethiopia.42
However, the effort geared towards giving legal effects to human rights conventions on children
and women appears to be inadequate. A systematic attempt aimed at full domestication of the
international instruments to which Ethiopia is a party to, leaves much to be desired. In its recent
Concluding Observations, the Committee on the Rights of the Child noted that Ethiopia has not
yet promulgated the Convention on the Rights of the Child and the African Charter on the Rights
and Welfare of the Child in its official law gazette, the Negarit Gazeta.43
The failure to publish these international instruments in the official law Gazette has been the
cause or a stumbling block for their enforcement before the law. The application of the
provisions of the Convention and the African Charter on the Rights and Welfare of the Child has
indeed been few and far in between in particular in lower tiers of the judiciary.
Regardless of this, there are certain bright spots. Recently, courts of law are rendering judgments
based on relevant provisions of the Convention on the Rights of the Child and African Charter on
the Rights and Welfare of the Child. In particular, the Cassation Bench of the Federal Supreme
Court has rendered various decisions relying on these international instruments.
40
41
42
43
Committee on the Rights of the Child (CRC), Concluding Observations of the Committee on the Rights of the Child: Ethiopia, 1
November 2006, CRC/C/ETH/CO/, para. 9, available at < http://www.unhcr.org/refworld/docid/45c30bd60.html [accessed 10
May 2012]
25
The fact that these judgments are rendered by the Cassation Bench makes them all the more
important. This is due to the fact that by virtue of Proclamation 454/2005 interpretation of the
law by the Federal Supreme Court rendered by the Cassation division with not less than five
judges carries the force of law. Courts of law at the federal and regional level are increasingly
following the lead of such landmark decisions. This has increased the number of court decisions
based on the Convention on the Rights of the Child. The aforementioned provisions in the FDRE
Constitution and recent judicial developments demonstrate that the Convention on the Rights of
the Child and African Children’s Charter prevail over ordinary legislation in Ethiopia
The Committee on the Rights of the Child also called upon the government to translate the
Convention into the different vernaculars spoken in the country.44 The Constitution of the
Federal Democratic Republic of Ethiopia provides that the fundamental rights and freedoms
enunciated in the Constitution are to be interpreted in conformity with the International Bill of
Human Rights.45 Failure to promulgate the international conventions affirming the rights of
children in the official law gazette militates against the effective domestication of the
international agreements in to the domestic legal order and thereby the implementation of the
rights of children.
2.3. Related International Human Rights Instruments

The Committee on the Rights of the Child provides that the implementation of other international
human rights instruments is of particular importance for the realization of the rights of the child
as well. At the time of writing of this Handbook, Ethiopia is a State Party to seven of the nine
core international human rights instruments. It ratified the instruments in the following years:
 International Convention on the Elimination of All Forms of Racial Discrimination

(ICERD)_1976
 International Covenant on Civil and Political Rights (ICCPR)_1993
 International Covenant on Economic, Social and Cultural Rights (ICESCR)_1993
 Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) _ 1993
44
Ibid.
45
The Constitution of the Federal Democratic Republic of Ethiopia, Proclamation No.1/1995, Federal Negarit
Gazeta, 1st Year, No.1, Article 13(2)
26
 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT) _ 1994
 Convention on the Rights of the Child (CRC) _1991
 Convention on the Rights of Persons with Disabilities-2010
However, there are a number of other international treaties to which Ethiopia is not yet a State
Party at the time of the writing of this Handbook. These include:
 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
 First Optional Protocol to the International Covenant on Civil and Political Rights
 Second Optional Protocol to the International Covenant on Civil and Political Rights
 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination
Against Women
 Optional Protocol to the Convention against Torture, Inhuman or Degrading Treatment or
Punishment
 Optional Protocol to the Convention on the Rights of the Child on the sale of children,
child prostitution and child pornography
 Optional Protocol to the Convention on the Rights of the Child on the Involvement of
Children in Armed Conflict
 International Convention on the Protection of the Rights of All Migrant Workers and
members of their Families
 Optional Protocol to the Convention on the Rights of Persons with Disabilities
 International Convention for the Protection of All Persons from Enforced Disappearance
2.4. The Need for Comprehensive Legal Reform

Since the adoption of the Constitution of the Federal Democratic Republic of Ethiopia, the
government has taken significant steps aimed at legal reform. Several pieces of legislation
affecting children have been promulgated. In 2005, the Criminal Code was adopted by the House
of Peoples Representatives to establish an effective legal framework for the protection of
children. Some of the major legal reform initiatives which play a crucial role for the safeguarding
of the rights of children include the entry in to force of the Revised Family Code in 2000, the
Labour Proclamation in 2003 and the Criminal Code in 2005.
27
These legislative measures have drawn inspiration from the provisions of the Convention on the
Rights of the Child and the African Charter on the Rights and Welfare of the Child. The Revised
Family Code dwells upon various issues which pertain to children including marriage, adoption,
affiliation and maintenance and other issues. The Code addressed some of the gaps and
inconsistencies which were inherent in the 1960 Civil Code. Though the Revised Family Code
does not define the term child per se, the related concept of minor is defined as a person of either
sex who has not attained the full age of eighteen years.46
The other legal development with major implications for children is the Criminal Code. The
Criminal Code which entered in to force in 2005 also introduced various changes and addressed
several gaps of the previous Penal Code with a view to ensure compatibility with the provisions
of international and regional instruments ratified by the country. Accordingly, the Criminal Code
proscribed several harmful traditional practices inimical and prejudicial to the rights and welfare
of children. To this effect, the Criminal Code has devoted a separate chapter on Harmful
Traditional Practices (HTPs) in its Book Five. Some of the traditional harmful practices which
have been prohibited under this Chapter include offences against the life, body, and health of a
pregnant woman or a child by practicing harmful traditional practices domestic violence against
a spouse or partner in an irregular union, female circumcision, infibulations of the female
genitalia, bodily injury by practicing other forms of harmful traditional practices, transmission
of diseases through the practice of harmful traditional practices, participation in harmful
traditional practices and incitement against observance of rules on harmful traditional practices.47
The year 2003 also saw the promulgation of the Labour Proclamation (Proclamation 377/2003).
This proclamation prohibits the employment of children below the age of 14 years of age.48 The
proclamation also prohibited the employment of young workers (i.e. persons who have attained
the age of 14 but are not over the age of 18 years) to work which is prejudicial to the life or
health of the children.49 The proclamation has also indicated some of the list of types of
employment which are considered hazardous.50
46
The Revised Family Code of 2000, Federal Negarit Gazeta Extraordinary Issue No1/2000, Article 215
47
The Criminal Code of 2005, Proclamation 414/2004, Articles 561‐570
48
Labour Proclamation No. 377/2003, Federal Negarit Gazeta 10th Year No. 12, Article 89(2)
49
Ibid, Article 89(3)
50
Ibid, Article 89(4)
28
However, still there are gaps and inconsistencies. The Committee on the Rights of the Child
expressed its deep concern over the lack of a systematic legislative review and adoption of a
comprehensive Children’s Code.51 Thus, the Committee made a recommendation to the
government to undertake a comprehensive legislative reform and adopt Children’ Code.52
2.5. Children’s Rights under Ethiopian National Policies

Ethiopian government has adopted several major policies which aim at ensuring that children are
given opportunities, services and facilities to develop in a healthy manner pointing out the
measures and strategies for the realization of the rights of children. These include the draft
Comprehensive National Child Policy, National Policy on Ethiopian Women, the draft Social
Protection Policy, National Youth Policy, the National Policy on HIV/AIDS and the National
Population Policy.
Ethiopia has developed a draft Comprehensive National Child Policy with due consideration of
the principles and provisions of the CRC and ACRWC to guide the work of various actors
dealing with children and also promote the rights of children.53 The policy emphasizes on three
central strategies, 1) development and growth, 2) prevention and protection, and 3) rehabilitation,
care and support. The draft Comprehensive National Child Policy is finalized to be presented to
the parliament. The National Policy on Ethiopian Women adopted in 1993 aims at achieving de
facto equality between men and women. It also sets out objectives for the realization of the rights
of women to participation, property and access to social services, and to be free from prejudiced
stereotypes and harmful traditional practices.
The government of Ethiopia has formulated several policies with focus on children. The draft
Social Protection Policy, under active consideration, dwells upon the welfare and developmental
needs of children and women. It touches upon varying child welfare issues including begging,
51
August 2010
52
Ibid, para. 9
53
Ethiopia’s 4th and 5th Periodic Reports to the United Nations Committee on the Rights of the Child (2006‐2011),
p.8
29
prostitution and juvenile delinquency. The policy aims at addressing the welfare issues of
vulnerable groups including children.
Ethiopia also adopted a National Youth Policy in 2004. The policy defines youth as those with
the age ranges of 15 and 29. The policy aims to address children related issues ranging from
education to protection. The policy identifies the youth among the segments of society hardest
hit by poverty and unemployment and other challenges.
The National Population Policy also discusses the adverse impact of, among others, war related
displacement and natural disasters on children including orphanhood. The Cultural Policy of
Ethiopia also dwells upon the need to eradicate harmful traditional practices in the country. The
Education and Training Policy announced by government also aims at ensuring access to
education to all school age children.
The National Criminal Justice Policy promulgated in 2011 has included various changes to
address a number of gaps observed in the criminal justice systems and ensure compatibility with
the provisions of the CRC and ACRWC. The policy devoted a separate section for care and
special handling of victims of crimes and children in conflict with the law. For instance, section
6 of the policy focuses on the circumstances of vulnerable children, the rights of victims to
participate in criminal investigation and procedures for charging and trial, legal protection and
handling of children in conflict with the law, alternative remedial measures and establishment of
special units for children. Most of these provisions provide protection to children who are
victims of FGM, early marriage, child labor, neglect and abuse.54
2.6. National Strategies for the Realization of the Rights of Children

Ethiopia’s National Plan of Action for Children (2003-2010 and beyond) replacing the previous
Programme of Action (1996-2000) has been approved. The Plan ensures action for survival,
development, protection and participation of children by all concerned organs at different levels
of government. The National Plan of Action was devised with the objective of coordinating
activities aimed at the implementation of the Convention on the Rights of the Child and “A
54
Ethiopia’s 4th and 5th Periodic Reports to the United Nations Committee on the Rights of the Child (2006‐2011)
30
World Fit for Children” resolution adopted by the General Assembly of the UN in May 2002.55
The National Plan of Action focuses on four themes: promoting healthy lives, providing quality
education, protecting against abuse, exploitation and violence and combating HIV/AIDS.
However, the National Plan is not clearly time-bound and suffers from insufficient budgetary
allocations.56
The National Action Plan for Gender Equality (2006-2010) alluded to the Ethiopian
Constitution, the Millennium Development Goals and other instruments on general equality. The
plan called upon all development programs at federal as well as regional level to mainstream
gender concerns. The plan also included violence against women and girls as one of its seven
focus areas.
The now expired National Action Plan on Sexual Abuse and Exploitation of Children in Ethiopia
(2006-2010) had been endorsed. The overall goal of the national action plan included the
reduction and minimization of sexual abuse and exploitation of children.57 The National Action
Plan had been rooted on the four areas of intervention including prevention of sexual abuse and
exploitation of children, protection of victims, rehabilitation and reintegration of child victims
and coordination and monitoring of interventions.58
2.7. Coordination of Implementation of Children’s Rights

It is evident that the effective implementation of children’s rights requires coordination among
central government departments, among different provinces and regions, between federal and
other levels of government, and between government and civil society.59 It is obvious that it is
not possible to vest one single governmental organ with the responsibility of ensuring respect for
the rights of children. As a result, there is a need for a permanent body for the purpose of
coordinating efforts for the effective implementation of children’s rights across government. To
55
Ministry of Labour and Social Affair, Ethiopia’s National Plan of Action for Children (2003‐2010 and Beyond,
Addis Ababa (2004 ) 44
56
UNICEF Ethiopia, Child Protection Systems Mapping: The Case of Ethiopia (2010) 43
57
Ministry of Labour and Social Affairs, National Action Plan on Sexual Abuse and Exploitation of Children, (2006‐
2010) Addis Ababa ,p.57
58
Ibid. pp. 57‐72
59
UN Committee on the Rights of the Child (CRC), General comment no. 5 (2003), General measures of implementation of the
Convention on the Rights of the Child, 27 November 2003, CRC/GC/2003/5, available at:
http://www.unhcr.org/refworld/docid/4538834f11.html [accessed 13 September 2010, para. 37
31
that effect, the Ministry of Women, Children and Youth Affairs has been established in view of
this objective. The Ministry has been established with the mandate to:
 Create awareness and movement on the question of women, children and youth;
 Collect, compile and disseminate to all stakeholders information on the objective realities
faced by women, children and youth;
 Ensure that opportunities are created for women and the youth to actively participate in
political, economic and social affairs of the country;
 Encourage and support women and the youth to be organized, based on their free will and
needs, with a view to defending their rights and solving their problems;
 Design strategies to follow up and evaluate the preparation of policies, legislations,
development programs and projects by federal government organs to ensure that they
give due considerations to women and youth issues;
 Undertake studies to identify discriminatory practices affecting women, facilitate the
creation of conditions for the elimination of such practices, and follow up their
implementation;
 Devise means for the proper application of women’s right to affirmative actions
guaranteed at the national level and follow the implementation of the same;
 Ensure that due attention is given to select women for decision-making positions in
various government organs;
 Coordinate all stakeholders to protect the rights and well-being of children;
 Follow up the implementation of treaties relating to women and children and submit
reports to the concerned bodies.60
However, the Directorate of Child Rights Promotion and Protection in the Ministry lacks
sufficient resources and the ability to establish coordination at the regional, zone and Woreda
level.61 Accordingly, the Committee urged the government to provide adequate human and
financial resources, enabling it to coordinate and monitor implementation at the federal, regional,
zone and Woreda levels.62 As the Ministry is the principal coordination mechanism, its
60
Definition of Powers and Duties of Executive Organs of the Federal Democratic Republic of Ethiopia,
Proclamation No. 691/2010, Article 32
61
UNICEF, Child Protection Systems Mapping: The Case of Ethiopia, (2010) 28 also Cf. CRC/C/ETH/CO/3, para. 10
62
UNICEF Ethiopia, Child Protection Systems Mapping: The Case of Ethiopia (2010) 28 also Cf.
CRC/C/ETH/CO/3, para. 11
32
limitations is apt to have adverse effects upon the overall implementation of children and women
rights.63 In spite of the plethora of coordinating bodies including gender-based violence,
vulnerable children, abuse and exploitation, juvenile just and child rights, coordination and
cooperation is limited.64 The lack of coordination and cooperation among the different organs for
the realization of the rights of children is, among others, attributed to lack of knowledge, high
staff turnover, lack of communication and overlapping mandate.65
In addition, the coordination of the implementation of the rights of children and women at
federal, regional, zonal and woreda levels is problematic. At the federal level, the coordination of
activities for the realization of the rights of children is vested in the Ministry of Women,
Children and Youth Affairs. However, in many regional states the mandate to coordinate such
activities is vested with the Labour and Social Affairs Offices or other offices. This absence of
interface between the federal and regional counterparts has also led to complication in terms of
allocation of budget.66
2.8. Independent Monitoring of Implementation of Children’s Rights

Independent human rights institutions play a crucial role for the monitoring, promotion and
protection of the rights of children. Both the Ethiopian Human Rights Commission and the
Ethiopian Institution of Ombudsman are vested with the responsibility to promote and protect the
rights of children. These quasi-judicial national human rights organs are vested with
promotional, protective, monitoring and advisory mandate as regards the implementation of the
rights of children.67 They are also mandated to undertake studies and research on ways and
means of effective implementation of the rights of children. To this effect, both the Ethiopian
Human Rights Commission and the Ethiopian Institution of Ombudsman have Commissioners
heading Children and Women Affairs specifically responsible for children.
63
UNICEF, Child Protection Systems Mapping: The Case of Ethiopia, (2010) 28
64
Ibid. p.27
65
Ibid. p.27‐28
66
67
Ethiopian Human Rights Commission Establishment Proclamation No 210/2000, Federal Negarit Gazeta, 6th Year
No. 40, Proclamation to Provide for the Establishment of the Institution of the Ombudsman No. 211/2000, Federal
Negarit Gazeta, 6th Year, No. 41
33
However, the Committee on the Rights of the Child expressed its concern over the lack of
information concerning the activities of these institutions.68 Furthermore, the Committee on the
Rights of the Child also recommended that these institutions be provided with adequate human
and financial resources.69 The Committee also suggested for Ethiopia to ensure the efficient
operation of both institutions in compliance with the established Paris Principles for Independent
National Human Rights Institutions adopted by the General Assembly in 1993.70
2.9. Monitoring and Data Collection

The independent monitoring of progress in terms of the implementation of the rights of children
is vital. The absence of data collection makes the assessment of the extent to which the rights of
children have been realized impossible. As a result of this, the Committee on the Rights of the
Child noted its concern on the lack of data on issues including domestic adoption, street children,
and children involved in armed conflicts, children without parental care, children involved in the
justice system, sexually abused and trafficked children.71 The lack of disaggregated data makes it
difficult to identify disparity. Currently, there is no annual publication of comprehensive report
on the state of children in Ethiopia.72
Consequently, the Committee on the Rights of the Child has recommended the improvement of
birth registration, to strengthen its system of collecting disaggregated data in particular in the
areas indicated above.73 The availability of data in particular disaggregated data is of paramount
importance for the purpose of designing policies for the implementation of the Convention on the
Rights of the Child.74
The Social Affairs Standing Committee of the House of Peoples Representatives is given the
mandate, among others to:
68
August 2010]
69
Ibid. para 15
70
Ibid.
71
Ibid., para. 18
72
73
August 2010]
74
Ibid.
34
 Supervise the effective implementation of the countries general social development
policies and strategies.
 Oversee the expansion of health services and prevention of health hazards
 Control the spread of HIV/AIDS.
 Ensure social security to street children, children with disabilities to realize the safety of
children.
 Study about other social related issues and evaluate the problems identified in the process
of execution.
 Receive complaints sent to it including that of children’s complaints. Thus, the mandate
of this Standing Committee in particular yields the basis for independent monitoring and
oversight over ministries and executive organs to follow up the extent to which they are
living up to the responsibility vested upon them.
2.10 Partnership with Civil Society

As a state party to the Conventions, Ethiopia is required to work in tandem with human rights
NGOs, child and youth led organizations, women associations and coalitions, parent and family
groups, faith groups, academic institutions, and also professional associations.
The Committee on the Rights of the Child expressed its concern over the restrictions imposed
upon civil society since the 2005 elections.75 This has led the Committee to recommend for
Ethiopia to respect the role played by civil society for the implementation of the Convention on
the Rights of the Child. Furthermore, the Committee also called upon Ethiopia to encourage the
active, positive and systematic involvement of civil society, including NGOs, in the promotion of
children’s rights.76
In 2001, the House of Peoples Representatives adopted the Proclamation for the Registration and
Regulation of Charities and Societies (Proclamation 621/2009). Accordingly, it came with a
three-pronged classification of charities and societies as Ethiopian charities, Ethiopian resident
charities and international and foreign charities. The law proclaims that only Ethiopian charities
75
August 2010]
76
Ibid., para. 23
35
are entitled to engage on advocacy on human rights including the rights of children. However,
the law requires Ethiopian charities to obtain 90 percent of their funding from local sources.
Since at present, Ethiopian charities are not in a position to muster the strength to secure 90
percent of funding for their activities, this has adversely impacted their activities for the
promotion of the rights of children.
2.11 Budgetary Allocation for Children

The identification of the proportion of the national and other budget assigned to the social sector,
and within that, to children is significant for the determination of the measures taken by a state to
fulfill the social, economic and cultural rights of children and women. The Committee on the
Rights of the Child welcomed incremental allocation of budget for children. However, the
Committee expressed its concern over the inadequacy of the budget allocated for the
implementation of the National Plan of Action for Children (2003-2010).77 Consequently, the
Committee recommended further incremental allocation of budgetary resources for children both
at national and local levels.78 In particular, the Committee called upon Ethiopia to increase its
budgetary allocation as regards vulnerable children including children belonging to ethnic
minorities, children with disabilities, children affected by and infected with HIV/AIDS and
children living in poverty and in remote areas.79
2.12. Dissemination, Awareness Raising and Training

The dissemination of the rights of children is crucial for their overall implementation. The
Committee has commended the effort on the part of Ethiopia to disseminate the provisions of the
Convention through publications in several vernaculars of the country.80 However, the
Committee has also highlighted the need to undertake further dissemination and awareness
raising activities in particular among relevant professional categories, parents and among
children themselves, in particular in rural areas.81
77
Ibid. para. 16
78
Ibid, para. 17
79
Ibid.
80
Ibid. para. 20
81
Ibid.
36
The lack of knowledge about the rights of children has been identified as a main challenge.82
This lack of knowledge is believed to have adverse impact upon programs implemented.83
Similarly, existing information flow among the different institutions charged with the protection
of the rights of the child leaves much to be desired.84 The Committee further recommended the
enhancement of training on the provisions of the Conventions for such professional categories as
law enforcement officials, teachers, health personnel, social workers and personnel of childcare
institutions.85 In addition, the Committee recommended that human rights education be included
at all levels of the curriculum.86
82
UNICEF Ethiopia, Child Protection Systems Mapping: The Case of Ethiopia (2010) 26
83
Ibid.
84
Ibid.
85
August 2010]
86
Ibid.
37
CHAPTER THREE
GENERAL PRINCIPLES
Introduction
The Convention on the Rights of the Child and the African Charter on the Rights and Welfare of
the Child are anchored on the four general principles which are principles of fundamental
importance for the implementation of the whole Convention. Therefore, principles of non-
discrimination (Article 2), the best interests of the child (Article 3(1)), the right to life and
maximum survival and development (Article 6) and respect for the views of the child (Article
12). These four principles have been identified as principles of general application and of
cardinal importance for the interpretation of the provisions in these instruments by the
Committee on the Rights of the Child.
3.1. The Principle of Non-Discrimination

The Convention on the Rights of the Child requires States Parties to respect and ensure the rights
enshrined in the Convention to each child without discrimination of any kind, irrespective of the
child’s or her parent’s or legal guardian’s race, color, sex, language, religion, political or other
opinion, national, ethnic or social origin, property, disability, birth or other status.87 In addition,
States Parties are obliged to take all appropriate measures to ensure that the child is protected
against all forms of discrimination or punishment on the basis of the status, activities, expressed
opinions, or beliefs of the child’s parents, legal guardians, or family members.88 The protection
against discrimination is also affirmed under Article 3 of the African Charter on the Rights and
Welfare of the Child. Specifically, Article 26 of African Children’s Charter provides protection
against apartheid and discrimination on other various grounds.
The principle of non-discrimination is one of the cardinal principles of the Convention which is
identified as one of fundamental pillars of the Convention.89 The term “discrimination” is not
defined in the CRC. However, the Human Rights Committee90 has provided the definition of the
87
UNTS 3 (CRC) art 2(1)
88
UNTS 3 (CRC) art 2(2)
89
90
The Human Rights Committee is a treaty monitoring body established based on Article 28 of the International
Covenant on Civil and Political Rights.
38
term in its General Comment. The term “discrimination” is defined as “any distinction,
exclusion, restriction or preference which is based on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or other
status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment
or exercise by all persons, on an equal footing, of all rights and freedoms.”91
The phrase in Article 2(1) “shall respect and ensure the rights set forth in the Covenant” shows
that the obligation imposed on States Parties is an active one.92 Therefore, a range of measures
are required to be taken for the implementation of the principle including review, strategic
planning, legislation, monitoring, awareness raising, education and information campaigns, and
evaluation of measures undertaken to reduce disparities.93 The principle of non-discrimination
implies that State Parties are required to identify individual children and groups of children the
recognition and realization of whose rights may call for special measures.94 The implementation
of the principle implies collection of disaggregated data, legal reform, appropriate
administration, equitable resource allocation as well as educational measures to bring about
attitudinal changes.
The principle of non-discrimination enshrined under the CRC needs to be read in conjunction
with other instruments affirming the same protection.95 The obligation to respect implies the
negative duty to refrain from any actions detrimental to the rights of children, whereas the
obligation to “ensure” implies affirmative obligations to enable individual children to enjoy and
exercise the rights enshrined in the Convention.96
In a similar vein, the FDRE Constitution provides that “all persons are equal before the law and
are entitled without any discrimination to the equal protection of the law. The provision goes on
to state that, the law shall guarantee to all persons equal and effective protection without
91
General Comment No 18, Human Rights Committee
92
93
94
Committee on the Rights of the Child, General Comment No.5, 2003, (CRC/GC/2003/5,para.12)
95
Article 2 of the International Covenant on Civil and Political Rights requires State Parties to respect and ensure to
all individuals in their territories and subject to their jurisdiction the rights recognized in the Covenant. Article
24(1) of the same Covenant stipulates that children are entitled to special measures of protection required by their
status as minors. On the other hand, Article 26 of the Covenant affirms the stand alone or autonomous
entitlement of equality before the law or equal protection of the law which applies to rights and freedoms outside
the purview of the Covenant.
96
39
discrimination on grounds of race, nation, nationality, or other social origin, colour, sex,
language, religion, political or other opinion, property, birth or other status.97 Moreover, the
Revised Constitutions of Regional States prohibit any form of discrimination on the basis of
race, nation, nationality or other social origin and colour and other prohibited grounds.
3.1.1. Affirmative Action

The principle of non-discrimination does not affect affirmative action i.e. the legitimate
differentiation in treatment of individual children.98 Affirmative action is beneficial to reduce
and eradicate the immediate, root and underlying causes perpetuating discrimination.99 In
particular, affirmative action proves to be necessary to ameliorate the conditions of children in
especially difficult circumstances.100 Not all forms of differentiation constitute discrimination in
particular if they are based on reasonable and objective grounds and aim to achieve legitimate
purposes.101 Likewise, legitimate differentiation between children based on the concept of
evolving capacities indicated in Article 5 of the Convention is not barred by the principle of non-
discrimination.
The Committee on the Rights of the Child stressed that implementation of the general principles
of non-discrimination and the best interests of the child as the primary consideration not
contingent upon budgetary constraints.102 Thus, the Committee has recommended the need for
affirmative action or positive discrimination on behalf of disadvantaged and vulnerable
children.103 In other words, resource allocations need to be made favouring children in
vulnerable situations including children with disabilities, children affected or living with
HIV/AIDS, street children and children in especially difficult circumstances.104
97
FDRE Constitution, Article 25
98
99
Sharon Detrick (n 19) 71
100
According to UNICEF, the term “children in especially difficult circumstances” alluded to in the
preamble of the convention include refugees, children with disabilities, children affected by organized
violence, unaccompanied children in disasters and street and working children.
101
102
103
104
40
In the same vein, Article 36(5) of the FDRE Constitution provides that “the State shall accord
special protection to orphans and shall encourage the establishment of institutions which ensure
and promote their adoption and advance their welfare, and education.” Moreover, Article 35(3)
of the Constitution provides that the historical legacy of inequality and discrimination suffered
by women in Ethiopia taken into account, women, in order to remedy this legacy, are entitled to
affirmative measures. The purpose of such measures shall be to provide special attention to
women so as to enable them compete and participate on the basis of equality with men in
political, social and economic life as well as in public and private institutions. Thus, this
provision is applicable to girl children.
3.1.2. Scope of the Obligations arising from the Principle of Non-

Discrimination
The phrase “to each child within their jurisdiction” in Article 2(1) of the Convention shows that
the principle of non-discrimination is not only applicable to children who are citizens of the State
Party. Instead, the provision is applicable to visitors, refugees, children of migrant workers and
those in the State illegally.105
3.1.3. Prohibited Grounds of Discrimination

The prohibited grounds of discrimination listed in Article 2(1) include race, color, sex, language,
religion, political or other opinion, national, ethnic, or social origin, property, disability, birth or
other status. Most of these prohibited grounds of discrimination are also reflected in Article 25 of
the FDRE Constitution which deals with the right to equality. However, the insertion of the
phrase “other status” in both Article 2(1) of the CRC and Article 25 of the FDRE Constitution
shows that the list is not exhaustive and illustrative. Article 36(4) of the FDRE Constitution
provides that “children born out of wedlock shall have the same rights as children born of
wedlock”. Thus, this constitutional stipulation recognized the equality of children regardless of
birth and their right to protection against discrimination. Therefore, parents and others cannot
discriminate between boys and girls in the provision of food, education, and healthcare.
Article 2(2) of the Convention also provides for the right of protection of children from
discrimination or punishment on the basis of status, activities, expressed opinions or beliefs of
105
41
child’s parents, guardians or family members. This provision has wider ramifications.106 This
provision calls for action against all forms of discrimination and is not confined to the matters
considered by the CRC.107
The Revised Family Code did away with the discriminatory marriageable ages for boys and girls
and prescribed the age of eighteen as the marriageable age for both boys and girls.108 Apart from
the Revised Family Code which is applicable in Addis Ababa and Dire Dawa, various national
regional governments have also promulgated their own family codes in keeping with the
Constitution. The Committee on the Elimination of All Forms of Discrimination expressed its
concern over the fact that the Family Code is not yet applicable by all regions and called upon
Ethiopia to ensure all regional governments implement the Family Code.109
3.2. The Principle of the Best Interests of the Child

Article 3 of the CRC provides one of the four fundamental principles of the CRC. The provision
states that the best interests of the child shall be a primary consideration in all actions concerning
children. The principle of the best interests of the child requires public and private bodies, social
welfare institutions, courts of law, administrative authorities or legislative bodies to ascertain the
impact on children of their actions with a view to confirm that the best interests of children are
taken as the primary consideration in making decisions affecting them. Thus, these bodies and
institutions are required to apply the principle of the best interests of children systematically.110
The scope of the principle is very wide.111 It encompasses all actions concerning children as a
group.112 Article 3(1) of the Convention requires public and private bodies to ascertain the
impact on children of their actions, in order to ensure that the best interests of the child are a
primary consideration.113 The provision stipulates that ensuring the best interests of the child
must be the primary consideration in all actions and decisions affecting children. It calls for the
consideration of the best interests of the child into national plans and policies for children into
106
107
108
The Revised Family Code of 2000, Federal Negarit Gazeta Extraordinary Issue No1/2000, Article 7
109
UN Committee on the Elimination of All Forms of Discrimination against Women, Concluding Comments of the
Committee on the Elimination of All Forms of Discrimination against Women: Ethiopia, UN Doc. A/59/38, para. 241
110
Ibid.
111
112
113
42
the activities of legislative, executive and judicial branches of the government both at national
and local levels.114 The principle requires consideration of, for example, how a proposed or
existing law or policy or administrative action or court decision, affect children. The principle of
the best interests of the child applies to children both individually and as a group.
Considerations of best interests must embrace both short and long-term considerations for the
child.115 Interpretation of best interest of the child must be compatible with the overall objective
and purpose of the Convention. The interpretation of the best interests of the child must not be
highly influenced by considerations of cultural relativism.116 The interpretations of the best
interests of the child must not put the rights guaranteed under the CRC in jeopardy.117 For
example, the interpretation of the best interests of the child cannot be used to justify practices
such as corporal punishment.118 The views of parents, professionals as to the best interests of a
child may vary at times. The consideration of the rights of the child under the Convention makes
the interpretation of the concept less subjective.119 The principle of best interests of the child
requires decision be based on the needs and circumstances of the individual child and it is a
dynamic concept that must take into account the views and evolving capacities of the child.
The phrase “shall be a primary consideration” in Article 3(1) shows that the best interests of the
child will not always be the single, overriding consideration.120 However, the rights and interests
of children must be actively considered.121 Therefore, actions and decisions affecting children
must amply demonstrate that the interests and rights of children have been actively explored and
taken into account as a primary consideration.122
Article 3(3) of the Convention on the Rights of Children provides that States Parties shall ensure
that the institutions, services and facilities responsible for the care or protection of children shall
conform to the standards established by competent authorities, particularly in the area of safety,
health, in the number and suitability of their staff, as well as competent authorities. Thus, this
114
115
116
117
118
Committee on the Rights of the Child, General Comment No.8, 2006, CRC/C/GC/8, para. 26)
119
120
121
122
43
provision requires States Parties to establish standards for institutions, services and facilities for
the care and protection of children. The state must also ensure that these standards are complied
with through competent supervision and monitoring. The adoption of these standards is a clear
manifestation of commitment of a government to the protection rights of children. The
application of the best interests of the child principle must not diminish or restrict other rights of
children as enshrined in the CRC or the African Charter on the Rights and Welfare of the Child,
and other treaties or the FDRE Constitution.
The principle of the best interests of the child as a primary consideration is reflected in Ethiopian
legislations at varying levels. Article 36(2) of the FDRE Constitution provides that “in all actions
concerning children undertaken by private and public institutions, courts of law, administrative
authorities or legislative bodies, the primary consideration shall be the best interests of the
child.” The Constitution or other secondary domestic legislation in Ethiopia does not provide
definition of the term best interest.
However, the laws of certain countries attempt to shed light on the meaning of the term “best
interests”. For example, in Philippines, the term best interests of the child is defined as “the
totality of circumstances and conditions which are most congenial to the survival, protection and
feelings of security of the child and most encouraging to the child’s physical, psychological and
emotional development.”123 In Nicaragua, the phrase “best interests” is defined as “all that
favours the child’s physical, moral, cultural and social development, in keeping with the
evolution of the child’s capacities.” 124
The reading of the English version of Article 36(2) of the FDRE Constitution makes it clear that
the emphasis placed on the concept of best interests of the Child as is stronger than that of
Article 3(1) of the Convention. This is due to the fact that the Constitution states that best
interests shall be the primary consideration, whereas Article 3(1) of the CRC states that it shall
be “a primary consideration”. The wording of Article 36(2) of the Constitution gives better
protection in this regard. Accordingly, the best interests of the child are a prevailing
consideration and not merely a primary consideration under Ethiopian laws. In other words, the
123
The Juvenile Justice and Welfare Act of 2006 of the Philippines, RA 9344, Section 2(b) and 4(b)
124
The Children Code of Nicaragua, Article 10
44
formulation of the principle in the FDRE Constitution conveys the message that the rights of
children prevail in case of conflict. In addition, the exercise of the rights of adults may not
jeopardize the exercise of the rights of children at any time by virtue of the principle of best
interests.
This approach makes the FDRE Constitution akin with that of the African Charter on the Rights
and Welfare of the Child. Article 4(1) of the Charter also stipulates that the best interests of the
child shall be “the primary consideration” as opposed to “a primary consideration” under the
Convention.125
Article 82 of the Revised Family Code provides that the court needs to take in to consideration
the interests of children when giving orders relating to the maintenance of the spouses, custody
and maintenance of children and the management of the property of the spouses. Article 113(2)
of the Revised Family Code also provides that the court shall take into account the income, age,
health and living condition of the spouses as well as the age and interests of the children as to
which spouse shall have custody of the children when giving decision on the dissolution of
marriage. Thus, courts of law must consider the interests of children in relation to decisions
concerning custody following pronouncement of divorce. Likewise, Article 194(2) of the
Revised Family Code also requires courts of law to verify whether or not adoption is in the best
interests of children before approving adoption agreements. Article 188(2) of the Revised Family
Code also requires the court to take into consideration the effects of other children of the adopter
on the well-being and best interests of the adopted child.
3.2.1. Case Law by Courts of Law in Ethiopia Applying the Best Interests
Principle
In recent years, courts of law in Ethiopia are increasingly applying the principle of the best
interests of the child in adjudication of cases. Some of these decisions are rendered by the
Cassation Division of the Federal Supreme Court. The decisions of the Cassation Division of the
Federal Supreme Court carry a force of law by virtue of Proclamation 454/2005. The following
125
Cape, 2002) 26
45
cases are typical of such notable decisions highlighting the incipient jurisprudence of the Courts.
It is therefore necessary to discuss the cases owing to their precedent effect.
In W/t Tsedale Demissie vs Ato Kifle Demisse, A Woreda Court in Bonga Area of Kafa Zone of
Southern, Nations, Nationalities and Peoples Regional State (SNNPRS) declared Ato Kifle
Demisse, the guardian and tutor of his son Binyam Kifle according to Article 235(1) of the
Family Code of the Regional State. The paternal aunt of the minor, W/t Tsedale Demissie,
submitted an opposition pursuant to Article 358 of the Civil Procedure contending that the father
should not be declared as the guardian and tutor for the child as the former has failed to care and
protect the child and did not provide him assistance. She went on to state that the father is merely
motivated by the financial gain and property he would derive by his status as tutor and guardian
of the child and not in the best interests of the child. She prayed that she is entitled to be guardian
and tutor of the child as she is the one who has been nursing and caring for the child for 12 years.
However, the Court rejected her plea arguing that tutorship and guardianship cannot be awarded
for an aunt while the father is alive. The Court relied upon the Family Code of the Regional State
in rendering this decision.126 The Court reasoned that the Family Code of the Regional State,
particularly, Article 235(1) of the Code, does not allow the aunt to be granted custody of the
child while the father of the child is still alive.
She took appeal from the decision of the Woreda Court arguing that the father should not be
granted the guardianship after failing to ensure the upbringing of the child for about 12 years.
She further claimed that the father did not provide for the education, life, survival and
development of the child in the past. She submitted that the father applied to be considered as the
tutor and the guardian following the death of the mother. She alleged that the father cannot be a
responsible guardian and tutor for the child given his past antecedents and unworthiness.
Nevertheless, the High Court of Kafa Zone also rejected her appeal on the very same grounds
invoked by the Woreda Court.127 Similarly, the Cassation Bench of the Supreme Court of
Southern Nations, Nationalities and Peoples Regional State quashed the application of the aunt
alleging the existence of a fundamental error of law committed by the two courts at the lower
tiers.
126
Family Code of Southern Nations, Nationalities and Peoples Regional State, Proclamation No.75/1996
127
High Court of Kafa Zone, File No. 01001
46
The matter was then submitted to the Cassation Bench of the Federal Supreme Court in March
2006 by the petitioner, W/t Tsedale Demissie. The Cassation Bench summoned the respondent,
Ato Kifle Demisse, who, however, did not appear thereby waiving his right to rebut the
arguments of the petitioner. In this decision the court invoked Article 36(2) of the FDRE
Constitution which provides that the best interests of the child shall be the primary consideration
in deciding all matters concerning the child. The Court went on to state that Article 3 of the
Convention on the Rights of the Child which has been ratified by the country and therefore is
part and parcel of the law of the land by virtue of Article 9 of the FDRE Constitution requires
that the best interests of the child to be the primary consideration in deciding all matters
concerning children. The Cassation Bench noted that regardless of the fact that Ethiopian Laws
give primacy to parents of children for the purpose of guardianship and tutorship; this would be
the case only in the event that parents serve in the best interests and well-being of children. The
Cassation Bench observed that the literal adherence to the letter of the law demonstrated by the
lower courts in this case does not comply with the consideration of the best interests of the child
as the primary consideration. The Cassation Bench also stated that the order for removal of the
child from the homestead where he lived in serenity (i.e. the dwelling house of the petitioner) for
long without consulting the child also constitutes a gross irregularity. The Cassation Bench
quashed the decision of the lower courts since it runs counter to the doctrine of the best interests
of the child enshrined in the FDRE Constitution and the Convention on the Rights of the Child
and awarded guardianship and tutorship of the child to the petitioner.
Another decision of guardianship rendered based on the best interests of the child principle is file
number 03389. The consideration of this case is illustrative how the court disposed elaborating
the principle of the best interests of the child.128 The judgment was made by the Cassation bench
of the Federal Supreme Court on November 5, 2007.
The First Instance Court of Addis Ababa City Government initially appointed the present
appellant i.e. the aunt of the two children to be their guardian and tutor. However, the court
reversed its decision on May 8, 2006 based on Article 360 of the Civil Procedure Code when the
128
Federal Supreme Court, Cassation Bench, File No. 03389
47
grandparent of the children showed up contending that he has priority for custody rights over the
aunt.
The appellant took decision from this judgment contending that the court did not take into
account the best interests of the child as the primary consideration. She appealed for the appellate
court to quash the decision of the lower court which is solely based on strict adherence to the
order outlined in the Revised Family Code since the latter’s decision harms the children. The
parties presented their cases before the appellate court.
The appellate court stated that it is possible for the court to vary the order of guardianship among
the legally entitled eligible persons as outlined under Article 226(4) of the Revised Family Code
based on the best interests of the child in the event of dispute in this case. The court makes
variation to the order of guardianship provided in the law based on the fact that their parents are
not alive and the income and living situations of the contending parties. Despite the fact that the
respondent has a right of priority over the appellant to be the guardian of the children based on
Article 225(a) of the Revised Family Code, the respondent is not entitled to be the guardian for
the children for a variety of reasons. To begin with, the respondent is elderly. Secondly, the
respondent lives in Fiche town away from Addis Ababa, where the children are based. Thirdly,
the respondent is currently also raising two other children. On the contrary, the appellant is
taking proper care of the children and supervising their education. The appellant has her personal
income and income derived from rental of her house. The court has confirmed that the children
opt to live with the appellant.
The court noted that it is convinced that it is in the best interests of the children to be under the
guardianship of the appellant than that of the respondent. Therefore, the court reversed the
judgment of the lower court and has decided the children to be under the guardianship of the
appellant based on Article 226(4) of the Revised Family Code.
3.3. The Right to Life and Maximum Survival and Development

The other principle designated as a general principle is the right to life and maximum survival
and development. The principle implies that protection from violence, neglect and abuse is
48
crucial for the maximum survival and development of the child. The implementation of this
principle requires States Parties to the Convention to take measures to ensure the optimal
development of the child.129 This cardinal principle is also mirrored under Article 5 of the
African Charter on the Rights and Welfare of the Child, under the heading “Survival and
Development.”
The inherent right to life is affirmed in various international and regional human rights
instruments. The protection of the right to life requires not only negative duties but also positive
duties.130 Negative duties or duties of omission implied by the right to life include prohibiting
and preventing death penalty, extra legal, arbitrary or summary executions or situations of
enforced disappearance.131 Affirmative obligations of States Parties include measures aimed at
reducing infant and child mortality, increase life expectancy, and eliminating malnutrition and
epidemics.132
Article 6 is closely intertwined with Article 24 of the Convention. Article 24 deals with the rights
of children to health and health services. Article 24 also requires States Parties to take measures
to reduce infant and child mortality. Other implications of Article 6 also include measures to
improve perinatal health for mothers and children and create conditions that promote well-being
of children.133
3.3.1. Abortion
The Preamble of the CRC states that “the child, by reason of his physical and mental immaturity,
needs special safeguards and care, including appropriate legal protection, before as well as after
birth. As discussed earlier, Article 1 of the Convention intentionally avoids any mention on the
minimum age of childhood. It is silent as to whether or not conception or birth marks the
beginning of childhood.134 Determination on the conflicting rights and interests involved in
issues such as abortion and family planning is left to the discretion of signatories to the
129
I Michael Gose, The African Charter on the Rights and Welfare of the Child (Community Law Center, Western
Cape, 2002)
130
131
132
133
Committee on the Rights of the Child, General Comment No.7, 2005, CRC/C/GC/7/Rev. 1, para. 10)
134
49
Convention.135 Nevertheless, countries where abortion rates are high and which employ the
practice as a method of family planning and gender preference are frowned upon.136
However, the Criminal Code deals with crimes against the life of unborn or abortion. The
intentional termination of a pregnancy at whatever stage or however effected is made punishable
under the Criminal Code.137 The practice of abortion is considered, in principle, as an offence.138
This is indicative of the fact that the national legislation confers legal protection to the unborn.
The Criminal Code provides various grounds on the basis of which abortion is permitted. These
include saving the life of the woman, to preserve physical health, to preserve mental health, in
case of pregnancy as a result of rape or incest and in the event of foetal impairment.139 The
Criminal Code does not allow abortion at request or for economic or social reasons.140 However,
the Criminal Code considers “extreme poverty” as a mitigating factor in assessing sentencing.141
3.3.2. Infanticide
Article 544 of the Criminal Code dwells upon the crime of infanticide. Article 544(1) provides
that “mother who intentionally kills her infant while she is in labour or while still suffering from
the direct effect thereof, is punishable, according to the circumstances of the case, with simple
imprisonment.
Article 544(2) goes on to state that “a mother who kills her child, either intentionally or by
negligence, in circumstances other than those specified under-article (1) of this Article shall be
tried according to the relevant provisions of this Code regarding homicide.” Another person,
being a principal, an instigator or an accomplice in the crime of infanticide is excluded from the
benefits of extenuation, and is punishable the general provisions relating to homicide, according
to the circumstances and the degree of his guilt.
135
136
137
138
139
140
141
50
3.3.3. Capital Punishment
Article 6 of the International Covenant on Civil and Political Rights prohibits capital punishment
for crimes committed by persons below eighteen years of age. The same provision prohibits the
imposition of capital punishment on pregnant women. Article 37(a) of the Convention on the
Rights of the Child prohibits the imposition of death penalty for crimes committed by persons
below the age of 18. Article 5(3) of the African Charter also contains a similar prohibition.
Second paragraph of Article 176 of the Criminal Code provides that “in no case may death
sentence be passed upon a criminal who had not attained his eighteenth year of age at the time of
the commission of the crime.”
3.4. The Principle of Respect for the Views of the Child

Article 12(1) of the CRC stipulates that any child capable of forming a view has the right to
express views freely in all matters affecting him or her. States parties are called upon to promote
children to form a free view and to create the conditions conducive for children to exercise their
right to be heard.142 The provision implies obligation on States Parties to make a presumption
that a child is capable of forming his or her own autonomous opinion. On the contrary, States
Parties are not in a position to make the presumption that a child is incapable of forming views
and opinions.143 Consequently, the child is not required to prove that he or she is capable of
forming opinions.144
In addition failure, on the part of the child to communicate verbally cannot be invoked as a bar to
militate against the exercise of the right of the child.145 As a result, the exercise of the right
implies the recognition of, respect for, non-verbal forms of communication including play, body
language, facial expression, drawing, painting, etc.146
In particular, children with disabilities need to be provided the support and assistance they need
to make their views heard.147 Moreover, children belonging to ethnic, religious and linguistic
142
General Comment No. 12, CRC
143
144
145
146
147
51
minorities and indigenous groups need to be encouraged to express their views.148 The State
Parties are also required to ensure the safety and security of children who express their views on
matters affecting them.149 Moreover, caution must be exercised in that the hearing and
interviewing of children must not affect them adversely and the necessary safeguards must be put
in place to that effect.150
The provision goes on to provide that the views of the child be given due weight based on their
age and maturity. The provision does not impose any age limits for the exercise of the principle
of respect for the views of the child.151 Thus, States Parties are barred from setting age limits as a
precondition for the exercise of the right to be heard.
Article 12(2) entitles children to give their views in any judicial and administrative proceedings
affecting him or her. This implies that the child can participate in a variety of settings court
hearings as well as formal decision making concerning the child as in the case of education,
health, planning, the environment, etc.152 This principle implies that the child is not merely a
passive object of charity, but an active participant in the promotion, protection and monitoring of
his or her rights.153 The principle implies that the views of children should be considered in
decision making, policymaking, preparation of laws and other matters.154
Practices and attitudes, political and economic barriers which perpetuate the image of children as
passive objects of charity are contrary to the principle of respect for the views of the child.155
Consequently, the right of the child to be heard is also referred to as the child’s right to
participation.
The formulation of the right, in particular, the phrase “shall ensure” demonstrates the fact that
the specific and concrete obligations arising from the right are mandatory upon States Parties.
The exercise of the right of the child to be heard is a choice to the child and not an obligation.156
148
149
150
151
152
153
154
155
156
52
Thus, the child is not obliged to exercise this right. To this effect, States Parties are required to
provide the child the information and advice required to make informed decision in the light of
his or her best interests.157 The need to prove children with appropriate information is also a right
enshrined under Article 17 of the Convention.
States Parties are required to take the necessary measures to give effect to the right of the child to
be heard. These include the direct recognition of the right, adoption of laws or the revision of
existing ones. The stipulation that the child is entitled to express their view “freely” implies that
no pressure, undue influence or manipulation be applied on the child.158
Children are entitled to express their views “in all matters affecting them.” The term “all
matters” encompasses a broad range of issues which may affect children. The provision has
opted to employ language which is not limitative.159 Thus, the right is applicable in regard to
family matters, school life as well as community. These may include adoption, expulsion of the
child under consideration, decision concerning location of playgrounds and or prevention of
traffic accidents.160
The implementation of the principle of the right of the child to be heard may be direct or indirect.
Though affording direct opportunity for the child to be heard may be preferable, it is not the only
method. In cases procedural laws may not allow direct implementation, this may take place
through representatives. The representatives may include, among others, parents, lawyers or
social workers.161
One of the mechanisms for the implementation of the right of the child to be heard is national
independent human rights monitoring bodies such as the Human Rights Commissions and
Institutions of Ombudsman. Accordingly, the Ethiopian Institution of the Ombudsman has
facilitated the establishment of model children parliaments in all the regional states as well as in
Addis Ababa and Dire Dawa.162 These model children parliaments have inspired regional states
to establish their own children parliaments and student councils in schools. The model children
157
158
159
160
161
162
53
parliaments have proved to be instrumental in the prevention of maladministration and violations
of the rights of children. They have also served as a platform for the participation of children on
matters concerning them.
This provision implies that proceedings involving matters affecting children need to be
conducted in an atmosphere of understanding and must afford children sufficient opportunity to
express their views and participate.
Article 14 of the Ethiopian Civil Code affirms the right of every person to think freely and to
express his ideas. Article 291 of the Revised Family Code also provides that the tutor shall
consult the minor in all important acts concerning him, unless the latter is lesser than 14 years
old. Article 249(2) of the Revised Family Code asserts that the court shall consult the minor
before making decision as to appoint or remove a person as guardian or tutor of the minor.
However, it appears that negative traditional values concerning the participation of children
remain to be obstacles to the implementation of this right.
Article 310 of the Revised Family Code provides that the incapacity of a minor comes to an end
where he or she attains age of majority or he is or she is emancipated. The minor attains the age
of majority when he or she celebrates his or her 18th birthday. Moreover, the child may be
entitled to legal capacity if he or she is emancipated. Emancipation of the child takes place for
two reasons. Firstly, the child may be emancipated by the sole fact of marriage as provided under
Article 311. This happens in the exceptional circumstances of the case where a child is allowed
to marry pursuant to Article 7(2) of the Revised Family Code. Secondly, the Court may allow the
child to be emancipated if he or she has attained the age of 14 years. However, the court may
decide to emancipate the child only where after considering his or her conditions, the reasons
applied for, and where it finds that the emancipation is in the minor’s best interests. Caution must
be exercised that these requirements of capacity do not compromise the ability of children to file
complaints due to want of capacity. Children should be given the right, in as far as possible, the
opportunity to initiate judicial proceedings and make complaints before administrative bodies to
protect their constitutional rights.
Consideration of the incipient jurisprudence of the Cassation Division of the Federal Supreme
Court concerning the principle of respect for the views of the child is instructive at this juncture.
54
The Cassation bench of the federal supreme court was seized of the case involving the principle
of respect for the views of the child in case number cassation file no. 35710.163 The judgment of
the Cassation Division was rendered on December 25, 2008.
The case is presented before the Cassation Bench of the Federal Supreme Court based on the
petition alleging that the judgment of the Cassation Division of Addis Ababa City Government
Court constitutes fundamental error of law.
The respondent submitted an application before the First Instance Court of Addis Ababa City
Government seeking the confirmation of the will made by the late Zenebe Nigussie on January 2,
2004. The application dated 23 May 2005 provides that the testament relates to the property of
the deceased and the guardianship and tutorship of Natnael Zenebe. Accordingly, the court
confirmed the said testament in its judgment rendered on July 14, 2005. The petitioner submitted
a pleading based on Article 358 of the Civil Procedure Code to the same court later opposing its
judgment confirming the testament on various grounds. Firstly, she stated that the testament was
made on common matrimonial property. Secondly, she stated that it is not possible to deprive the
guardianship and tutorship of the child from the mother of the child. The testament embodies
vague and dubious language. Thus, she stated that the confirmation of the testament by the court
is illegal and it should be cancelled. The court also endorsed the opposition of the respondent and
cancelled its decision of the confirmation of the testament based on the very same grounds
invoked by the respondent.
The appellate Court of Addis Ababa City also confirmed the decision of the lower court after
having examined the parties. However, the Cassation Division of Addis Ababa City Courts
quashed the decisions of both lower courts on a variety of grounds and affirmed the validity of
the testament. The petition was then submitted to the Cassation Bench of the Federal Supreme
Court.
The petition presented to the Cassation Bench of the Federal Supreme Court dated January 21,
2008 alleges that the decision of the Cassation Division of Addis Ababa City Government
constitutes a fundamental error of law. The Cassation Bench of the Federal Supreme Court
decided the matter warrants further investigation and summoned the respondent. The parties
163
Cassation Bench, Federal Supreme Court (Cassation File no. 35710)
55
submitted their written submissions. The court also undertook oral examination of the parties.
The Court also entertained the views of child Natnael Zenebe and recorded his thoughts on the
matter.
The Cassation Bench examined the matter against the backdrop of the case as stated above
pursuant to the views of the child and the relevant laws. The Cassation Bench asserted that the
bone of contention that calls for its determination is whether or not the judgment that the
testament the deceased Ato Zenebe Nigussie made on January 2, 2004 is valid.
It is possible to understand from the proceedings of the case that the deceased Ato Zenebe
Nigussie had been married to the petitioner and lived in matrimony for some time until the
dissolution of the marriage through decision of divorce on December 31, 2002. Upon the
pronouncement of the judgment of divorce, the former spouses were asked to produce their
mutual agreement concerning the effects of the divorce including custody and partition of
common property. If the parties fail to reach mutual agreement on these issues, the court
instructed one of them to apply to that effect before the court and closed the file. Afterwards, the
Federal First Instance Court has given a judgment requiring Ato Zenebe Nigussie to effect a
payment of 10,171.78 Birr to the petitioner in file No. 07941 after litigation concerning the
partition of the matrimonial property. The deceased made the testament on January 2, 2004. The
deceased passed away on May 8, 2005. The petitioner was approved as the guardian and tutor of
child Natnael Zenebe by the judgment of the court rendered on July 14, 2005 based on her
submissions dated May 23, 2003. However, this judgment was cancelled by the court on the
basis of the opposition filed on October 14, 2005. It is also possible to understand that the
petitioner did not obtain the amount money decided in her favour by the court as her moiety.
The Cassation Bench of the Federal Supreme Court also observed that the Cassation Division of
Addis Ababa City Government held that the testament of the deceased which devolved the
inheritance on the respondent and the child as valid regardless of the fact that it was informed of
the fact that the testament relates to the guardianship and tutorship of child Natnael Zenebe. The
Cassation Bench of the Federal Supreme Court observed that the judgment lacks clarity.
Therefore, the court noted that it becomes imperative to examine the effects of the testament on
the property of the deceased and the guardianship and tutorship of the child in the light of the
56
law. Cassation Division determined that the first issue that needs to be investigated in the case is
whether or not the testamentary appointment by the deceased of the respondent to be the
guardian and tutor of child Natnael Zenebe is appropriate.
In its judgment, the Cassation Division of the Federal Supreme Court makes the following
reasoning. It noted that children are part of the community entitled to special care and protection.
This is due to the vulnerability of children as a result of their tender age. With a view to realize
the special protection and care children are entitled to, several international and continental
treaties are being ratified and implemented. The Convention on the Rights of the Child and the
African Charter on the Rights and Welfare of Children feature prominently among these treaties
and agreements. Ethiopia ratified the Convention on the Rights of the Child (CRC) on December
9, 1991 by virtue of Proclamation 10/1992. Ethiopia also ratified the African Charter on the
Rights and Welfare of the Child (ACRWC) on October 2, 2002. In addition, there are domestic
laws meant for the protection of the rights of children including the FDRE Constitution and
regional State Constitutions. These international and continental treaties in relation to the rights
of the child embody fundamental principles. One of the fundamental principles is that of taking
the best interests of the child as the primary consideration in deciding matters relating to the
child. This principle is enshrined in Article 3(1) of the Convention on the Rights of the Child and
Article 4(1) of the African Charter on the Rights and Welfare of the Child. Article 9(4) of the
FDRE Constitution has made treaties ratified by Ethiopia an integral part of the law of the land.
Moreover, Article 13(2) of the Constitution has clearly laid down the stipulation that the
domestic laws of the country should be construed in the light of international human rights
treaties ratified by the country. Moreover, the Constitution has specifically devoted Article 36 to
provide the rights of children. Article 36(2) affirms that the primary consideration shall be the
best interests of the child in all actions concerning children undertaken by private and public
institutions, courts of law, administrative authorities or legislative bodies. Laws and policies
promulgated to entrench this doctrine are also believed to advance the objective of the best
interests of the child.
Respect for the views of the child is another principle which is given utmost importance in
international and continental treaties on child rights apart from the principle of the best interests
of the child. The principle of respect for the views of the child is found enshrined in Articles 12
57
and Article 4(2) of the Convention on the Rights of the Child and African Charter on the Rights
and Welfare of the Child. The scope of this principle encompasses all matters affecting the lives
of children. The principle entitles children to participate in decisions affecting their lives, and
exerting influence on decisions affecting their interests. Pertinent provisions make it clear that
the right of children to be heard extends to matters such as their health, education, environmental
matters as well. The provisions also show the children should be heard before judgments
concerning adoption and custody following the divorce between their parents and that due
weight needs to be given to their views apart from being listened to. It is indisputable that the
weight to be given to the views of children is contingent upon their age and maturity.
The main features and details that must be considered in deciding matters affecting children have
been reviewed from the perspective of international treaties. Shifting its attention to the case at
hand, the Cassation Bench of the Federal Supreme Court noted that the Revised Family Code has
stipulated organs of protection from Articles 219-238. According to the provisions, parents have
primacy right over others in regard to guardianship and tutorship of the minor. The provisions
also entitle the parent to appoint testamentary guardian or tutor to the child. The rules provide
that such appointment can be subject to annulment or variation by a court of law. In the absence
of parents or guardian or tutor appointed by their testament, the rules provide hierarchy of
relatives of the minor to be appointed by a court for the tutorship of guardianship. However, the
administration of the hierarchy must be determined based upon the principle of the best interest
of the child as the primary consideration. Article 113(2) and other provisions of the Revised
Family Code indicated above vest courts of law with the power to exercise this discretion in this
regard. Article 13(2) of the Constitution has clearly laid down the stipulation that the domestic
laws of the country should be construed in the light of international human rights treaties ratified
by the country. Moreover, Article 9(1) of the Constitution states that any law, customary practice
or a decision of an organ of a state or a public official which contravenes the Constitution shall
be of no effect.
Consequently, the consideration of the testament of the deceased on the matter demonstrates that
it has not taken the best interests of the child as the primary consideration. The child Natnael
Zenebe has made it clear to the court that he has no desire to be with his aunt and wants to stay
with his mother with proper care and protection. The child has made it clear that he has not
58
obtained the attention and care needed from his aunt following the death of his father. The court
also took note of the fact that the child is 10 years old and manifests maturity. These
considerations have necessitated the need to accord due weight to the views of the child.
Accordingly, since there is no legal ground that prohibits the annulment of the testamentary
provision of the deceased, the court has found the Decision of the Cassation Bench of Addis
Ababa City Government constituting fundamental error of law. The Cassation Division of the
Federal Supreme Court has also appointed the petitioner as the guardian and tutor of the child.
59
CHAPTER FOUR
CIVIL RIGHTS AND FREEDOMS
Introduction
The Convention on the Rights of the Child and the African Charter on the Rights and Welfare of
the Child enshrine various civil rights and liberties of children. These include birth registration,
name, nationality and right to know and be care for by parents, preservation of identity, child’s
right to freedom of expression, child’s right to freedom of thought, conscience and religion,
child’s right to freedom of association and peaceful assembly, child’s right to privacy, child’s
access to appropriate information and freedom from torture or other cruel, inhuman, degrading
treatment or punishment. Many of these rights have also been reflected in the FDRE Constitution
and other secondary legislation as will be seen in this Chapter. In principle, the rights and
fundamental freedoms enshrined in the Constitution are equally applicable to children except
some age-related restrictions such as the right to vote and stand for election.
4.1 Birth Registration, Name, Nationality and Right to Know and Be

Care for by Parents
Article 7 of the CRC assures the right to birth registration, name, nationality and the right to
know and be care for by parents. The provision mirrors Article 24(2) of the International
Covenant on Civil and Political Rights (ICCPR), which stipulates the right of every child to be
registered immediately after birth and to have a name. Article 24(3) of the International
Covenant on Civil and Political Rights (ICCPR) also enshrines the right of the child to acquire
nationality. Article 7 of the CRC is distinctive in that it affirms a novel right of the child to know
and be cared for by parents. This right is qualified by the phrase “as far as possible.” This is due
to the fact that it is not always possible to trace parents.164 It is also because of the fact that it is
not in the best interests of the child to be cared for by parents at times.165
Birth registration refers to the official and permanent recording of the birth of a child by the
state. Birth registration amounts to the acknowledgement of the legal existence of the child.
Accordingly, it provides legal proof of a child’s identity and is directly linked with to a child’s
164
165
60
claim to citizenship and to the rights, benefits and obligations that flow from that citizenship.
Therefore, birth registration is a right in itself. Furthermore, birth registration is instrumental for
ensuring that children enjoy a range of other entitlements to survival, development and
protection. In particular, birth registration is useful, among others, to ensure that children have
access to services at the appropriate age, including vaccinations and school enrolment.
The importance of universal registration of children is of both intrinsic and instrumental

importance. Birth registration is of intrinsic value in that it amounts to the first official
recognition of the individual importance of the child to the State and the law.166
Apart from its intrinsic importance, birth registration is of utility for a variety of reasons. Firstly,
children who are not registered are less valued.167 Thus, the registration of children is an
important first step to prevent their discrimination. Secondly, birth registration is useful for
national planning for children.168 For instance, it is not possible for States Parties to have clear
information concerning infant and child mortality rates without birth registration.169 Thirdly,
registration is the sine qua non for the protection of other rights of children.170 In this regard,
registration makes it possible to identify children following armed conflict, infanticide,
trafficking, abandonment and abduction. Moreover, registration is pivotal for the proof of the
protective ages of children as in the case of employment, recruitment in to armed forces,
administration of child justice, etc. The benefits of registration outweigh the costs by far related
with it.
Article 7 requires that children be registered immediately after birth. The term “immediately” is
construed to mean with a period of days and not months.171 Countries are obligated to make
universal registration compulsory for both parents and of the relevant administrative
authorities.172 The term “universal” is employed here as to mean that all children born within the
166
167
168
169
170
171
172
61
state regardless of their nationality.173 Birth registration should be free, in particular to families
of limited means.174
States Parties must take measures to ensure accuracy of data and prevent falsification of birth
records. The main particulars in birth records should include the child’s name at birth, the child’s
sex, the child’s date of birth, the place where the child was born, the names of the parents and
their addresses and the nationality of the parents.
Article 7 also assures the right of the child to a name as of the moment of birth. It makes it clear
that the right is applicable as of “from birth.” This implies that there should not be delay in
naming children. The right of naming is not an absolute parental right. Thus, parents are not
entitled to register names that make children an object of ridicule.175
The right of the child “to acquire a nationality” is another rights specified under Article 7 of the
CRC. Article 36(1) (b) of the FDRE Constitution also enshrines the rights of children to name
and nationality. The right to nationality is part and parcel of the right to identity enshrined under
Article 8 of the CRC. Birth registration of children is also instrumental for the acquisition of
nationality. This right is to be implemented in view of the national laws of the State Parties and
their obligation under the relevant international instruments in the field, in particular where the
child would otherwise be stateless. The last ambit of the provision refers to the 1961 Convention
on Reduction of Statelessness. This Convention stipulates that children should acquire the
nationality of the State in which they were born if they are not granted nationality by any other
state or if such children fail to make applications to obtain this right, and then they should be
entitled to the protection of the nationality of one of the parents subject to certain conditions.176
Nationality may be acquired based on parentage (jus sanguini) or from place of birth (jus soli.)
Article 33 of the FDRE Constitution assures of rights of nationality. Article 33(1) provides that
no Ethiopian national shall be deprived of his or her Ethiopian nationality against his or will. The
provision goes on to state that marriage of an Ethiopian national of either sex to a foreign
national shall not annul his or her Ethiopian nationality. Ethiopian law of nationality is primarily
173
174
175
176
62
based on decent. The Ethiopian Nationality Proclamation stipulates that shall be an Ethiopian
national by descent where both or either of his parents is Ethiopian.177 This shows that Ethiopian
nationality law basically follows the approach of parentage (jus sanguini) rather than the place of
birth (jus soli.) The proclamation also asserts that an infant who is found abandoned in Ethiopia
shall be deemed to have been born to an Ethiopian parent and shall acquire Ethiopian nationality
unless he or she is proved to have a foreign nationality.178 Article 7 of the Proclamation also lays
down conditions under which a child adopted by Ethiopian national acquires Ethiopian
nationality.
Article 7 also assures the right of the child to know and be cared for by his or her parents as far
as possible. Article 36(1) (c) goes on to affirm the right of children to know and be cared for by
his or her parents or legal guardians. The term parent is widely defined as to include genetic
parents and birth parents i.e. the mother who gave birth and the father who claimed paternity
through partnership with the mother at the time of birth.179 Some also include psychological
parents in the definition. Psychological parents are those individuals who cared for the child for
significant periods during infancy and childhood.180
However, the implementation of the right to know and be cared for by parents is qualified by the
phrase “as far as possible.” There are situations whereby it is not possible to realize this right. To
begin with, it may be difficult to identify the parent as in cases of a mother who does not the
father of the child or in case of abandoned children.181 Secondly, the mother may not be willing
to identify the father as in the case of incestuous relationships.182
The right of the child to be cared for by the parent implies a duty of more active involvement on
the part of the parent than simply effecting payment for the other parent for purposes of
upbringing.183 The formulation of this right further suggests that it is the right of the child and
not only that of the parent. This right cannot be realized if the parents are dead or have disowned
the child. Likewise, it is not also possible in situations of parents are deprived of their parental
177
Ethiopian Nationality Proclamation (Proclamation 378/2003), Article 3(1)
178
Ethiopian Nationality Proclamation (Proclamation 378/2003), Article 3(2)
179
180
181
182
183
63
rights based on judicial process in the best interests of the child as in the case of unworthiness. It
is also difficult to implement this right in case of runaway children who voted with their feet.
Birth registration also assists enhancing protection of children by reducing the vulnerability of
children to age related abuses such as early marriage, child labour, sexual exploitation and
criminal prosecution as an adult. It also promotes inheritance rights of children and prevents
property grabbing. It is also a useful means for data collection, trend analysis, policy and
programme development and decision-making in that it is believed to be essential element of
national planning for children. Consequently, birth registration provides benefits for children
through their lives.
In Ethiopia, there is no birth registration system currently. There is no adequate legal framework
and institutional structure for birth registration.184 As a result, birth registration in Ethiopia is
among the lowest in the world. Significant numbers of children remain unregistered neither at
birth nor at a later stage.185 This state of affairs have led the Committee on the Rights of the
Child to persistently recommend for Ethiopia to strengthen and further develop measures to
ensure that all children born within the national territory are registered by adopting an adequate
legal framework.186 The Committee also recommended for Ethiopia to create institutional
machinery which are accessible and free so as to implement effective birth registration, e.g. by
introducing mobile units, especially in rural and remote areas and in Internally Displaced Persons
(IDPs) and refugee camps.187
A draft bill of Vital Events Registration has been submitted to the House of People’s
Representative for Ratification. At the time of writing of this Handbook, the draft legislation on
vital events registration which was previously tabled before the House of People’s
Representatives has been referred back to the Ministry of Justice (MOJ).188
184
August 2010]
185
Ibid.
186
Ibid. para. 32
187
Ibid.
188
p.24
64
However, there are still further efforts to put in place a system of registration in the country.
Notably, the federal and regional bureaus of Women, Children and Youth in collaboration with
UNICEF have implemented a pilot project where registration of children in 10 rural and 8 urban
selected Kebeles of Addis Ababa, Dire Dawa, Amhara and Tigray. The pilot registration project
was carried out from April 2009 to December 2010 and resulted in a total of 28,541 children
being registered. The challenges and lessons generated from the piloting phase are documented
and analyzed to inform the design of birth registration law and system in the country.189
Though the Ethiopian Civil Code sets out a detailed system for civil registration under articles 47
to 153, these provisions have not entered in to force owing to the provision of Article 3361 of the
Code which provides that these rules will not become operational until the issuance of an order
by the state which has not yet been issued. Similarly, article 656 of the newly adopted Criminal
Code that makes failure to declare birth punishable by law cannot be applicable on account of the
absence of the mechanism to effect birth registration. The only meaningful legal regime for birth
registration is the practice of issuing birth certificates by municipalities which has been given
recognition by article 321/2/ of the Revised Family Code as a transitory measure until the
government establishes institutional arrangements for civil registration.
The above described absence of enforceable laws and institutional system for birth registration
has led to the registration of the fact of birth by health institutions, churches and municipalities.
Besides being irregular and lack of consistency of records in the registration of births by health
institutions, the fact that less than 6% of births take place in the presence of skilled attendants let
alone health institutions with a registration system makes the proportion of children registered
insignificant.190 The registration of birth by churches, in addition to the likelihood of being of
limited scope and quality, occurs only if the child survives to the time of baptism and actually
gets baptized.
189
p.24
190
UNICEF, The Official Summary of the State of World Children, Ethiopia, Statistics: Women, 2006.
65
4.2. The Right of the Child to Identity
Article 8 of the CRC assures the rights of children to identity and to have their identity
preserved, and where necessary re-established. The provision covers three elements of identity
including nationality, name and family relations. These rights of children are also echoed in the
International Convention on the Protection of All Persons from Enforced Disappearance adopted
in 2006. Any legislation, which prevents children from assuming the nationality of their parents,
is likely to be incompatible with the CRC. For instance, this is a situation likely to occur in
countries, which prohibit dual nationality.
The term “preserve” employed in Article 8 indicates both non-interference in identity and the
maintenance of records relating to pedigree, birth registration and particulars relating to early
infancy.191 States must introduce measures of record keeping and preservation of records or
preservation of identifying marks in case of abandoned, refugee or unaccompanied children.
States must also ensure that these records are confidential.192
Article 9(4) of the CRC obligates States Parties to inform children and parents of the
whereabouts of each other if the State has had responsibility for their separation through, for
example, imprisonment, deportation and death.193 Article 25 of the International Convention on
the Protection of All Persons from Enforced Disappearance prohibits tampering with documents
giving the true identity of children. In some instances, the State may be entitled to violate the
right of the child to preservation of identity for valid reasons.194 This valid reason may only be
justified in regard to the child’s best interests or to protect others.195
Article 8(2) stipulates that the right of a child who has been illegally deprived of some or all of
the elements of his or her identity to be provided by the State with “appropriate assistance and
protection with a view to speedily re-establishing his or her identity. This implies that States
191
192
193
194
195
66
must remedy any wrongdoing involving the violation of the right to preservation of identity by
dedicating adequate resources.196
Article 8 has also highlighted the importance of preservation of family relations of the child as an
integral part of the right to identity. The phrase “family relations as recognized by the law” under
Article 8 remains far from clear. This phrase implies the right of the child to know his or her
parents or family identity. Moreover, it also implies the right s of the child to know his or her
siblings, grandparents and other relative as these can be equally important to the child’s sense of
identity.197
Accordingly, Ethiopian laws have detailed rules concerning ascertainment of paternity and
maternity. The Revised Family Code stipulates that the maternal filiation is ascertained from the
sole fact that the woman has given birth to the child.198 On the other hand, the Code provides that
paternal filiation can be ascertained through different ways. To begin with, paternal filiation
flows from the maternal filiation when a relationship recognized by the law has existed between
the mother and a certain man at the time of the conception or the birth of the child.199 Secondly,
paternal filitation may also result from an acknowledgement of paternity made by the father of
the child.200 Thirdly, paternal filitation may also result from a judicial declaration.201 These
provisions are of utmost importance for the protection of the rights of children to know the
identity of their birth parents.
The Revised Family Code stipulates that the adopted child shall retain his or her bonds with the
family of origin.202 The Code goes on to provide that this also applies to the spouse and
descendants of the adopted child.203
196
Hodgkin and Newell (n 3)) 116
197
198
199
Revised Family Code, Article 125(1)
200
201
202
203
67
4.3. Child’s Right to Freedom of Expression
The Convention on the Rights of the Child differs from previous instruments on the same subject
in that it does not portray children as objects of care and protection but also holders of individual
personality rights. This is the paradigm shift brought about by the CRC. The perception that
children are not in a position to exercise civil rights is wrong. These gamut of rights recognized
in the CRC demonstrate that children are active subjects of rights and not passive objects of
charity. Thus, children should also be entitled to the exercise of civil rights and liberties.
Article 13 of the CRC assures the right of the child to freedom of expression. The freedom
embodies the “right to seek, receive and impart” information and ideas of all kinds. Article 13(2)
imposes limitation on restrictions that may be imposed on the exercise of the right. This right is
intertwined with the participatory rights, freedom of thought, conscience and religion and
freedom of association affirmed in Articles 12, 14 and 15 of the CRC respectively. The freedom
of expression is also affirmed under Articles 19 of the UDHR and the ICCPR.
In the same vein, Article 29(1) of the FDRE Constitution assures the right of everyone to
freedom of thought, opinion and expression. Article 29(2) of the Constitution also establishes the
right of everyone to freedom of expression without any interference. The freedom protects the
right to seek, receive and impart information and ideas. The right extends to the freedom to seek,
receive, and impart information and ideas of all kinds orally, in writing, in print, in the form of
art, or through other media of one’s choice. Article 4 of Freedom of the Mass Media and Access
to Information Proclamation also formulates the same entitlement in an identical manner.204
Restrictions imposed on the right of children to express their views should be guided by the
three-part test indicated in Article 13(2) of the CRC, article 19 of the ICCPR and Article 29 of
the UDHR. Accordingly, limitations must be provided by law, limitations must be imposed only
to further legitimate aims and restrictions should be necessary in a democratic society.
204
Freedom of the Mass Media and Access to Information Proclamation (Proclamation 590/2008), Article 4
68
4.4. Child’s Right to Freedom of Thought, Conscience and Religion
Article 14 of the CRC assures the right of children to freedom of thought, conscience and
religion. The right to freedom of thought, conscience and religion is also affirmed under Articles
18 of the UDHR and the ICCPR. The ICCPR emphasizes respect for the liberty of parents to
ensure the religious and moral education of their children in accordance with their own
convictions. On the contrary, Article 14(2) of the CRC mirrors the concept of parental guidance
stated in Article 5 of the CRC. The same provision requires, however, that parental guidance in
relation to freedom of thought, conscience and religion may be exercised in the light of the
“evolving capacities” of the child. In other words, the focus of the CRC is the freedom of
religion of the child and not that of the parents. Instead, Article 14(2) deals with the rights and
duties of the parents and not that of their liberty.
Article 27(1) of the FDRE Constitution also affirms the right of everyone to freedom of thought,
conscience and religion. The same provision goes on to state that the right includes the freedom
to adopt a religion or belief of his choice, and the freedom either individually or in community
with others, and in public or private, to manifest his religion or belief in worship, observance,
practice and teaching.
Thus, though parents are entitled to provide direction, it is the child who exercises the right.
Moreover, the direction may not involve physical or mental violence. Simply put, the provisions
do not support the view that children are obligated to assume the religion of their parents until
they attain the age of 18. Likewise, in case parents disagree as to the religion the child should
assume, the matter needs to be resolved based on the basis of the right of the child and neither
parent is in a position to exercise authority to the exclusion of the other.
Article 14(3) outlines the restrictions imposed on the exercise of the child to freedom of thought,
conscience and religion. Restrictions imposed on the right of children freedom of thought,
conscience and religion should be guided by the three-part test indicated in Article 14(2) of the
CRC, article 18 of the ICCPR and Article 29 of the UDHR. Accordingly, limitations must be
provided by law, limitations must be imposed only to further legitimate aims and restrictions
should be necessary in a democratic society.
69
The notion of freedom of thought is closely linked with the doctrine of participation rights
affirmed in Article 12 of the CRC. The implementation of freedom thought is related with the
freedom to seek, receive and impart information and ideas of all kinds, the right to information
and the right to education. The right of the child to privacy affirmed under Article 16 of the CRC
implies that children cannot be forced to disclose their thoughts. Article 14 does not impose
restrictions on freedom of conscience; however, sub-article 2 of the provision allows parental
guidance.
Freedom of religion of the child may be subjected to specified restrictions. Article 18(1) of the
ICCPR stipulates that freedom of religion may include freedom to have or adopt a religion or
belief of his choice, and freedom either individually or in community with others and in public or
private, to manifest his religion or belief in worship, observance, practice and teaching. Article
18 of the ICCPR also affirms that no one shall be subject to coercion, which would impair his
freedom to have or adopt a religion or belief of his choice.
Article 27 of the FDRE Constitution affirms the freedom of religion, belief and opinion. Article
27(1) reads “everyone shall have the right to freedom of thought, conscience and religion. This
right shall include the freedom to hold or to adopt a religion or belief of his choice, and the
freedom, either individually or in community with others, and in public or private, to manifest
his religion or belief in worship, observance, practice and teaching.” Article 27(4) stipulates that
parents and legal guardians have the right to bring up their children ensuring their religious and
moral education in conformity with their own convictions. Article 14(1) of the Civil Code also
affirms the right of everyone to freedom to think and express his or her ideas.
4.5. Child’s Right to Freedom of Association and Peaceful Assembly

Article 15 assures the rights of the child to freedom of association and to freedom of peaceful
assembly. Along with the principle of respect for the views of the child and freedom of
expression of the child enshrined in Articles 12 and 13 of the Convention, the right to freedom of
association and peaceful assembly projects the child as an active and participating member of
70
society.205 Article 15 affirms the rights of children to collective participation. Other international
instruments have also asserted the right to freedom of association and peaceful assembly for
“everyone”.206
Article 30 of the FDRE Constitution affirms that everyone has the right to assemble and
demonstrate together with others and peaceably and unarmed, and to petition. Moreover, Article
31 of the FDRE Constitution assures the right of everyone of association for any cause or
purpose. The Cooperative Society’s proclamation No 147/1998 Art.13 (1) states that any
individual may become a member of cooperative societies when s/he attains the age of 14 years.
The Ethiopian Institution of the Ombudsman has facilitated the establishment of model children
parliaments in all the regional states as well as in Addis Ababa and Dire Dawa.207 These model
children parliaments have inspired regional states to establish their own children parliaments and
student councils in schools. The model children parliaments have proved to be instrumental in
the prevention of maladministration and violations of the rights of children. They have also
served as a platform for the participation of children on matters concerning them.
Article 15 underscores the rights of children as holders of fundamental civil rights and freedoms
including the right to engage in peaceful activities as a group.208 Article 15 (2) of the CRC makes
it clear that restrictions on the rights enunciated under the provision may be imposed only in
accordance with the law and for the legitimate reasons set forth in the provision. The need for
parental direction and guidance in the exercise of the right of children to freedom of association
and assembly is reflected in the general provision in Article 5 of the CRC.
4.6. Child’s Right to Privacy

Article 17 assures the right of the child to privacy. It provides protection against arbitrary or
unlawful interference with his or her privacy, family, home, or correspondence as well as against
unlawful attacks on his or her honor and reputation. The right to privacy is also enshrined in
other international human rights instruments for “everyone”. The right to privacy is also affirmed
205
206
Freedom of association and peaceful assembly have been affirmed under Article 20 of the UDHR, Articles 21
and 22 of the ICCPR
207
208
71
in Article 12 of the UDHR and Article 17 of the ICCPR. These provisions provide that no one
shall be subject to such interference against with his or her privacy, family, home, or
correspondence. The right of the child to privacy is applicable in all settings including within the
family, alternative care, and institutions, facilities and services.209 Moreover, the article also
affords protection to the children’s family and home from arbitrary or unlawful interference.210
Article 40(2) (b) (vii) of the CRC also stipulates that a child alleged to be in conflict with the law
is entitled to the right to privacy at all stages of the proceedings. The right of the child to privacy
must also be observed in connection with family proceedings and when children are victims of
violence.
Article 26 of the FDRE Constitution provides that everyone has the right to privacy. The
provision goes on to state that the right shall include the right not to be subjected to searches of
his home, person or property, or the seizure of any property under his personal possession.
Consequently, Articles 10-13 of the Civil Code provide detailed protection of the right to
privacy. Articles 32 and 33 of the Criminal Procedure Code provide for safeguards against
arbitrary search and seizure. Articles 613-619 of the Criminal Code also stipulate the protection
against defamation and calumny.
Promotion of the health and development of children, in particular of adolescents calls for
respect for their privacy.211 It is also incumbent upon health care providers to keep the
information provided by children confidential.212 Adolescent children are also entitled to the
right to give informed consent to medical treatment.213
Article 16 prohibits different forms of interference with the privacy of the child. The prohibition
applies not only against state authorities but also others. To this effect, the State is required to
enact the required legislation. Interference with the right of the child to privacy may only take
place in line with the law and only for legitimate reasons. The fact that interference is authorized
by the law may not justify the measure unless it is compatible with the aims and objectives of the
209
210
211
Committee on the Rights of the Child, General Comment No.4, 2003, CRI/GC/2003/4, para 11
212
213
72
CRC. Such authorized interference is also required to be reasonable.214 Moreover, State
authorities must provide appropriate and accessible complain mechanisms for children whose
right to privacy has been breached.215
The right of children in residential and custodial institutions to privacy may be undermined by
physical environment and design, overcrowding, lack of appropriate supervision and so on.216
Thus, institutions must comply with certain minimum requirements on space, including private
space, design of toilets and bathrooms, etc.217 This obligation to adopt rules on these issues is
affirmed under Article 3(3) of the CRC.
It is usual to keep files of children concerning health, education, social services, etc. The right to
privacy of the child implies that the child should know about the existence of information
concerning him, that such information is stored and who is in control, has access to the
information stored and also is able to challenge and correct, if need be, by having recourse to the
established procedures.218
Article 16 of the CRC prohibits unlawful attacks on his or her honour or reputation. Children are
entitled to protection from verbal attacks, slanders, attacks in writing or through the media or
219
libel. The child is entitled to the right to effective remedy in case of violations of his or her
right to honour and reputation.
4.7. Child’s Access to Appropriate Information and Role of Media

Article 17 assures the right of the child to access appropriate information. The focus of Article
17 is on the role of the media in regard to the rights to rights of children. The provision also
stipulates the child’s access to information and material from various sources, in particular those
meant to promote well-being and physical and mental health. The provision underscores the
need to strengthen the media to disseminate positive material beneficial to the child in view of
214
Human Rights Committee, General Comment on Article 17
215
Human Rights Committee, General Comment on Article 17
216
217
218
219
73
the aims of education affirmed in Article 29 of the CRC. Moreover, Article 17 implies that
children should have access to the media to exercise their participatory rights.220
Article 17 is not primarily about protecting children from the harmful influence of the media. In
fact, the media can be more helpful than detrimental to the rights and interests of children.221
This can be seen from the phrase “important function performed by the mass media” in Article
17. The provision reflects the view that the media can play a pivotal role in terms of optimizing
the maximum development of the child.222
Article 17 makes reference to the aims of education as set out under Article 29(1) of the CRC.
Hence, it requires that the substance of information and material disseminated by the media
needs to be compatible with these objectives, which hare directed to:-
 development of the child’s personality, talents and mental and physical abilities to their
fullest potential;
 development of respect for human rights and fundamental freedoms, and for the
principles enshrined in the Charter of the United Nations;
 development of respect for the child’s parents, the child’s cultural identity, language and
values;
 development of respect for the national values of the country in which the child is living
and the country from which he or she may originate; and
 development of respect for civilizations different from his or her own.223
Article 17(c) also calls for encouragement of the production and dissemination of children’s
books and children’s literature. Article 17(d) calls upon States Parties to encourage the mass
media to have particular needs of children who belong to a minority group or who are
indigenous. This provision is related with Article 30 of the CRC which stipulates that the child
who belongs to a religious or linguistic minority, or who is indigenous, should not be denied the
right to enjoy his or her own culture, to profess and practice his or her own religion or to use his
or her own language. Likewise, Article 29 of the CRC also calls for respect for varying national
220
221
222
223
74
values and cultures and languages. These provisions imply the importance of producing material
and programmes and translation in to minority and indigenous languages. Moreover, children
with disabilities should be given equal opportunities by making information accessible to them
through appropriate arrangements.224
Article 17(e) of the CRC stipulates that States Parties to encourage the development of
appropriate guidelines for the protection of the child from information and material injurious to
his or her well-being. The projection of violence is believed to have adverse effects upon the
physical and mental health of children.225 The preambular provision of Proclamation on the
Freedom of Mass Media and Access to Information also underscore the importance of
preservation of the wellbeing of the youth, honour and reputation of persons, national security,
public order and other overriding rights. Article 30(4) of Broadcasting Service Proclamation
provides that any program intended for transmission may not violate the dignity and personal
liberty of mankind or the rules of good behavior or undermine the belief of others.226 Especially,
Article 31 of the Proclamation is exclusively devoted on “Protecting the Well-being of
Children”. The provision reads as follows:-
1) radio or television transmission programs that may corrupt the outlook of children or
harm their feelings and thinking or encourage them to undesirable behavior shall not be
transmitted at hours during which children normally watch or listen to such programs
2) Children are presumed not to listen or watch to radio or television transmissions from
11:00 o’clock in the evenings up to 5:00 o’clock in the morning.227
Article 33(4) of the Proclamation stipulates that broadcasting advertisement by interrupting any
program the transmission time of which is not more than 20 minutes or children’s program shall
be prohibited.228
Article 34 of the Broadcasting Service Proclamation focuses on prohibited advertisements.

Accordingly, the provision prohibits the following advertisements:-
224
225
226
Broadcasting Service Proclamation (Proclamation 533/2007), Article 30(4)
227
Broadcasting Service Proclamation (Proclamation 533/2007), Article 31
228
Broadcasting Service Proclamation (Proclamation 533/2007), Article 33(4)
75
 Any advertisement that violates gender equality and that disregards the dignity and
human rights of women
 Cigarette and cigarette related advertisements
 Advertisements related to narcotic drugs
 Advertisements of liquors with more than 12% alcoholic contents
 Advertisements that encourage users to buy medicine that cannot be administered without
medical prescription
 Other advertisements prohibited by law229
As mentioned earlier, Article 29 of the FDRE Constitution provides the right to seek, receive and
impart information and ideas. The right extends to the freedom to seek and receive information
and ideas of all kinds orally, in writing, in print, in the form of art, or through other media of
one’s choice. The same entitlement is also reinforced by Article 12 of the Freedom of the Mass
Media and Access to Information Proclamation. The proclamation states that all persons have the
right to seek, obtain and communicate any information held by public bodies as provided in the
Proclamation.230
Article 644 on protection of minors from such materials stipulates that:-
“Whoever, for gain or to provoke:
A) Publicly displays by video, or in a shop window, in a booth or in any other place visible
from without, writings, images or objects such as to stimulate unduly, to pervert or to
misdirect the sexual instinct, or to arouse or to stimulate unduly brutal or bloodthirsty
instincts, or anti-social feelings which are inimical to the family spirit, in minors: or
B) Knowingly offers, elands, gives or sells such objects images or writings to a minor, is
punishable with simple imprisonment from six months to three years, and fine without
prejudice to the forfeiture of the incriminating material where appropriate”.
229
Broadcasting Service Proclamation (Proclamation 533/2007), Article 34
230
Freedom of the Mass Media and Access to Information Proclamation, Article 12(1)
76
4.8. Freedom from Torture or Other Cruel, Inhuman, Degrading
Treatment or Punishment
Article 37(a) provides the right of the child to freedom from torture or other cruel, inhuman,
degrading treatment or punishment. This provision is also related to Article 19(1) of the
Convention which provides protection against violence and abuse. Article 16(1) of the African
Charter on the Rights and welfare of the Child combines the two provisions.231 Article 18(1) of
the FDRE Constitution provides that everyone has the right to protection against cruel, inhuman
or degrading treatment or punishment.
Article 36 (1) (e) of the FDRE Constitution provides for the rights of children to be free from
corporal punishment or cruel and inhuman treatment in schools and other institutions.
Furthermore, in 1998, the MOE issued a circular which listed acceptable disciplinary methods
that could be employed by teachers to discipline their students, which does not include corporal
punishment.232
Article 576(1) of the Criminal Code prohibits the maltreatment of children. It stipulates that
“whosesoever, having the custody or charge of a minor, ill-treats, neglects, over tasks or beats
him for any reason or in any manner is punishable with simple imprisonment not exceeding three
months.”
Article 576(2) of the Criminal Code further submits that the punishment shall be, in addition to
the deprivation of family rights of the criminal, simple imprisonment for not less than one year
where the crime causes grave injury to the health, well-being, education or physical or
psychological development of the minor.
231
Cape, 2002) 55
232
77
CHAPTER FIVE
FAMILY ENVIRONMENT AND ALTERNATIVE CARE
Introduction
Chapter five of the Handbook focuses on various issues. The Chapter commences with
explication of the concepts of parental guidance and the child’s evolving capacities. In this
regard, the Chapter also dwells on responsibilities of the child as enshrined in the African
Charter on the Rights and Welfare of the Child. This part also examines parental responsibilities
and state obligation to provide assistance. The section on separation from parents looks into,
among others, child custody and guardianship and visitation rights of the non-custodial parent
and the right of the child to parental knowledge. The Chapter also examines the rights of the
child to enter or leave his or her country for family reunification. It also considers the prohibition
of illicit transfer and non-return of children abroad. Other important matters considered in the
present chapter include the right to maintenance, children deprived of their family environment,
adoption, child’s right to periodic review of treatment and child’s right to protection from all
forms of violence.
5.1 Parental Guidance and the Child’s Evolving Capacities

Article 23 of the International Convention on Civil and Political Rights provides that the family
is the natural and fundamental group unit of the society. The provision makes it clear that the
family is entitled to protection by society and the State. Article 34(3) of the FDRE Constitution
provides that the family is the natural and fundamental unit of the society and is entitled to
protection by society and the State.
Article 5 of the CRC describes the delicate balance between the child’s capacity to exercise his
or her rights and responsibilities of parents to provide guidance and protection. The provision
also describes the duty of the state to respect the privacy of the family and to protect the rights of
children.233 It introduces the two twin concepts of “parental responsibilities” and the “evolving
capacities” of the child. There are different conceptions of family. The CRC as well as the
African Charter on the Rights and Welfare of the Child adopt a flexible definition of the term
233
Sharon Detrick, A Commentary on the United Nations Convention on the Rights of the Child ( Martinus Nijhoff
Publishers, the Hague, 1999) 115
78
“family”.234 This is because Article 5 refers to parents or, where applicable, the members of the
extended family or community as provided for by local custom, legal guardians or other persons
legally responsible for the child. The term family refers to a variety of arrangements that can
provide for children’s care, nurturance and development including the nuclear family, the
extended family, and other traditional and modern community based arrangements. International
law recognizes the family as the basic unit of the society.235
Article 20 of the African Charter on the Rights and Welfare of the Child also spells out the duties
of parents or other persons responsible for the child. The phrase “other persons responsible for
the child” includes both de facto careers as well as legal guardians.236 This shows that the
responsibility of care for the child in the African context is not confined to the parents but also
lies in the extended family.237 Article 20(1)(b) and (c) of the Charter also provide the duties of
parents and other persons responsible for the child to secure conditions of living necessary for
the child’s development and to enforce domestic discipline. In turn, domestic discipline must be
administered in accordance with humanity and in a manner consistent with the inherent dignity
of the child.238 This shows that African Children’s Charter also prohibits the subjection of the
child to dereliction of other people, pillories and stocks or degrading the child as a mere
object.239
A "healthy" family, as a primary and natural group, would provide the context for full
development of the personality of the child. According to this Article both parents have primary
responsibilities for the upbringing and development of their children. This responsibility may
also relate to guardians and tutors of the child. The basic concern of the parents and other
234
Geraldine van Bueren, The International Law on the Rights of the Child (Martinus Nijhoff Publishers, The Hague,
1998) 68
235
Geraldine van Bueren, The International Law on the Rights of the Child (Martinus Nijhoff Publishers, The Hague,
1998) 67
236
Cape, 2002) 34
237
Cape, 2002) 34
238
Cape, 2002) 34
239
Cape, 2002) 34
79
guardians is the best interest of the child. The parents have the responsibility to support the
exercise of the rights of the child enshrined in the Convention.
The family must be protected and helped by the State to be able to fulfill its primary social role.
 The State must offer effective protection to the family so the family, in turn,
will be able to offer protection to the child;
 So, to be able to assume its responsibility towards the child, the family needs
the State to assume its own responsibility towards the family.
Article 27 of the Convention on the Rights of the Child imposes a direct and explicit
responsibility on parents to secure a standard of living adequate for the child’s development. The
reading of the provision shows that parents have primary parental financial responsibility. This
implies that parents have primary responsibility for securing the right to adequate standard of
living for children. Article 27(2) reads “the parents or others responsible for the child have
primary responsibility within their abilities and financial capacities, the conditions of living
necessary for the child’s development.”
The responsibility of the state is secondary as can be seen from the reading of Article 27(3) of
the CRC. It provides that States Parties shall take appropriate measures to assist parents and
others responsible for the child to implement the right to adequate standard of living.
Accordingly, the state is obligated to provide materials and financial assistance within its means,
after failure of parents to provide it. This is true in particular with regard to nutrition, clothing,
and housing. Article 20(2) of African Children’s Charter also stipulates similar obligations. In
regard to federal family law, Article 255 of the Revised Family Code also stipulates that the
guardian may seek assistance from pertinent governmental institutions in order to carry out the
powers vested in him under the Code.
Failure to respect the evolving capacities of the child is a violation of the principle of the best
interests of the child. Article 312 of the Revised Family Code provides for a possibility of the
child being freed from legal restraints. This procedure is known as emancipation. Emancipation
takes place either as a result of marriage of a child as envisaged under the exceptional
circumstances indicated in Article 7 of the Revised Family Code or judicial decision to that
80
effect. The recognition by the law of the emancipation of the child from legal restraints before
the attainment of the general age of majority shows the flexibility of the law. This flexibility of
the law is important as it enables children to acquired rights to make decisions for themselves on
certain matters once they have acquired sufficient understanding.240
In line with this, case law of courts of law demonstrates that orders of emancipation are given on
several occasions for a variety of reasons. The following cases illustrate the circumstances which
lead to applications for emancipation and the judgments rendered by courts and their
considerations in reaching the decisions.
In file number No. 117/98, the Federal First Instance court gave the following judgment
concerning emancipation on July 19, 2006. The petitioner submitted an application in regard to
a 16-year-old boy and a 13 years old girl. She stated that the mother of the children is deceased
and the identity of their father is unknown. However, she submitted that the stepfather of the
children has secured a court judgment appointing him as their guardian and tutor having misled
the court. This has enabled him to take over the house and other property, which is succession of
their mother due to her from the grandparents of the children. The petition further states that the
stepfather is using it for his personal benefit and not for the children. Moreover, the stepfather
has thrown the children out of their homestead. Therefore, since there is no one who will be the
tutor and guardian of the children, the petitioner has asked the court to give order of
emancipation of the 16 year old and be conferred with legal capacity.
The court has summoned the children and heard their views on the matter. Article 312 of the
Revised Family Code has provided the exceptional situation whereby children may be
emancipated and be conferred upon legal capacity. Accordingly, the application of the petitioner
has a legal basis since it is based on the aforementioned Article. A minor who has attained the
age of 14 may be emancipated upon the application of guardian or other interested party. The
matter concerns the lasting interests of the child. The stepfather obtained tutorship and
guardianship powers by misleading and misrepresenting as though the children were his own
children. The stepfather was motivated by the malicious desire to takeover property that does
240
81
not belong to him in the name of the children. It is also established that the stepfather has failed
to discharge his responsibility and exposed the children to abuse and suffering.
Therefore, the court reversed the decision granting guardianship and tutorship status to the
stepfather of the children based on the misrepresentation that the children are his. On the other
hand, since the testimony of witnesses has confirmed that one of the children has attained 16
years of age and the court is convinced that it is in the best interests of the child to be
emancipated from his minority, the court has decided that he is hereby emancipated i.e. freed
from legal restraint.
Likewise, the court made a similar finding in file number file No. 104/99 in its judgment
rendered on October 17, 2006. In this case, the petitioner submitted a petition stating that, her
mother W/o Saba Tsegaye passed away on August 7, 1995. The deceased was also survived by
Ashenafi Chala, 11 years old sibling of the petitioner. On the other hand, the petitioner stated
that their father Chala Negewo also passed away on April 20, 2001. The petitioner submitted that
she is now over 15 years. However, she stated that there is no close relative who may supervise
the upbringing of herself and her brother. Therefore, she applied for the court to give judgment
of emancipation freeing her from legal restraint on her behalf.
The court listened to the testimony of witnesses. The court has found that the application of the
petitioner for emancipation is adequate and necessary. Thus, the court has decided that Frehiwot
Chala to be emancipated (freed from legal restraint) based on Article 312 of the Revised Family
Code. Furthermore, the court also appointed the petitioner to be the guardian and tutor of her 11
years old brother based on Article 225(b) of the Revised Family Code as she is now considered
as having attained majority by reason of the judgment of emancipation and that there is no
another suitable person to that effect.
82
5.1.1. Responsibilities of the Child
African Children’s Charter differs from the Convention on the Rights of the Child in that it is
also duty-oriented. Article 31 of the Charter outlines the duties and responsibilities of the child at
length. The provision states that every child shall have responsibilities towards his family and
society, the State and other legally recognized communities and the international community.
These responsibilities and duties include:
 The responsibility to work for the cohesion of the family;

 The responsibility to respect his or her parents, superiors and elders at all times and to
assist them in case of need;
 The responsibility to serve his national community by placing his physical and
intellectual abilities at its service;
 The responsibility to preserve and strengthen social and national solidarity;
 The responsibility to preserve and strengthen African cultural values in his relations with
other members of the society;
 The responsibility to contribute to the moral well-being of society;
 The responsibility to preserve and strengthen the independence and the integrity of his
country; and
 The responsibility to contribute to the best of his or her abilities, at all times and at all
levels, to the promotion and achievement of African Unity
The idea of duties is not particularly unique to the African Children Charter. It is also to be found
in Article 1 and Article 29 of the Universal Declaration of Human Rights. However, care must be
taken in the interpretation of these responsibilities and duties in African Children’s Charter. The
list of duties indicated must not put the rights of children affirmed in the Charter and the
Convention in jeopardy. In particular, the duty of obedience of children to respect their parents,
superiors and elders must not be interpreted to require such obedience even in cases where
parents abuse children.241 Similarly, the duty of children to work for the cohesion of the family
241
Cape, 2002) 40
83
does not imply the right of parents to exploit their children.242 Simply put, the understanding of
the duties of children should be guided by the whole Charter in its entirety.
5.2. Parental Responsibilities and State Assistance

Article 18(1) of the CRC provides that “States Parties shall use their best efforts to ensure
recognition of the principle that both parents have common responsibilities for the upbringing
and development of the child. It goes on to state that parents, guardians have the primary
responsibility for the upbringing and development of the child and their basic concern will be the
best interests of the child. The provision also stipulates that “States Parties shall render
appropriate assistance to parents and legal guardians in the performance of their child-rearing
responsibilities.
Parents bear the primary responsibility to provide a suitable upbringing for children. Parental
responsibility refers to the duties, obligations and rights that parents have regarding the upkeep
of children. Accordingly, different provisions of the CRC and the African Children Charter
provide for parental responsibilities. Similarly, Article 18(2) of the African Charter on the Rights
and Welfare of the Child stipulates the equal and common responsibilities of spouses regarding
their children. At this point, it is important to stress the fact that, according to the African Charter
on the Rights and Welfare of the Child, the duties of parents are not only shared, but also equal.
This approach is also reinforced by the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW).
In line with this principle, Ethiopian laws recognize the joint responsibility of parents in caring
for and exercising guardianship rights over their children. The recognition of joint legal
guardianship in the Revised Family Code implies that parental authority should be exercised
jointly, whether the parents of the child are married, separated or divorced. This requires that
parents should reach at amicable settlement concerning the exercise of parental authority.
Therefore, this gives rise to a presumption that joint parental responsibility survives the marriage
i.e. joint parental responsibility continues even if the marriage is dissolved by divorce.
242
Cape, 2002) 40
84
To begin with, preambular articles of the Convention on the Rights of the Child affirm the
fundamental importance of the family for development of the child. The Preamble states that
“the Family, as the fundamental group of society and for the growth and well-being of all its
members and particularly children, should be afforded the necessary protection and assistance so
that it can fully assume its responsibilities within the community”. The child should grow up in
a family environment, in an atmosphere of happiness, love and understanding for his or her full
and harmonious development of his or her personality. The Preamble goes on to state that the
child should be fully prepared to live an individual life in society and brought up in the spirit of
the ideals proclaimed in the Charter of the United Nations and in particular in the spirit of peace,
dignity, tolerance, freedom, equality and solidarity.
These preambular articles of the CRC imply two broad categories of rights. Firstly, the child is
entitled to the right to a family as an essential right. Secondly, the family has the right to be
supported and protected by the State.
Article 18 stresses the need for State support for parents and the family in the discharge of their
responsibilities.243 This provision must be read in tandem with Articles 5, Article 3(2) and
Article 27 of the Convention. The cumulative reading of these provisions conveys the message
that parents have the primary responsibility for securing the best interests of the child their basic
concern.244 The provision further obligates the State to provide support for the parents and
family.
In the same vein, Article 34(3) of the FDRE Constitution provides that the family is the natural
and fundamental unit of the society and is entitled to protection by society and the State. Article
34(1) of the FDRE Constitution asserts the principle of the equality of men and women with
regard to marriage. It goes on to state that men and women have equal rights while entering into,
during marriage and at the time of divorce. These provisions demonstrate that the paternal
authority over children (patria potestad) which was reflected in older domestic legislation in
Ethiopia has given way for the notion of parental rights and responsibilities. The provision also
reflects the view that the family is the preferred environment or the ideal setting for raising
243
244
85
children and for satisfying their needs. Consequently, the FDRE Constitution has entrenched the
right of families to support and assistance.
As stated earlier, the concept of “family” should be understood broadly. Article 18 affirms the
primacy of parents. This provision concerns itself with parental responsibilities rather than
parental rights. The impairment of the child’s physical, psychological or intellectual
development due to actions of parents implies non-compliance with this provision.
Article 18(1) asserts that the basic concern of parents is the best interests of the child. This
stipulation dispenses with parental “ownership” of children practiced in certain cultures.245 It
therefore dispels any notion of exercise of parental rights over children for the benefit of the
parents alone.246 Parental responsibility refers to the legal responsibility of parents to act in the
best interests of their children.247 In view of the aforementioned responsibilities, it is incumbent
upon the state to advise and educate parents about their responsibilities.248 Parent education is
believed to be an effective instrument for addressing grave social problems including social
dislocation.249
It is not only the mother or the father who bears responsibility for the upbringing and
development of children. Article 18 stresses that both parents have common responsibilities for
the day-to-day care of children.250 Similarly, Article 23(4) of the International Covenant on Civil
and Political Rights provides that States Parties “shall take appropriate steps to ensure equality of
rights and responsibilities of spouses as to marriage, during and on its dissolution.”
Article 50(1) of the Revised Family Code provides that the spouses shall have equal rights in the
management of the family. Article 50(2) goes on to state that the spouses shall co-operate to
protect the security and interest of the family to bring up and to ensure the good behavior and
education of their children in order to make them responsible citizens. Article 219 of the Revised
Family Code stipulates that the father and mother are jointly guardians and tutors of their minor
245
246
247
248
249
250
86
children. Article 220 (1) of the Code provides that in case of death, disability, unworthiness or
removal of one of the parents, the one who remains shall alone exercise such functions. Article
220(2) asserts that the mother shall exercise such functions where the father of the child is
unknown. On the other hand, Article 225 of the Revised Family Code also envisages situations
whereby other relatives may become guardian and tutor of the child.
Article 41 of the Federal Civil Servants Proclamation (Proclamation No. 515/2007) also provides
that maternity leave for a pregnant civil servant. Accordingly, she is entitled to a paid leave for
medical examination and paid leave before delivery upon appropriate recommendations. Article
46 of the Proclamation also accords medical benefits for working parents in government medical
institutions. Moreover, part eight of the Proclamation to Provide for Public Servants Pension
envisages benefits for surviving widows as well as children.251 The same is true in the case of
part eight of Private Organizations Employees Pension Proclamation.252
Thus, obligation owed to children by their parents under Ethiopian law include:-
 Duty to Maintain contact
 Duty of care of the person of the child
 Fixing the place of residence of the child
 Watching over the health of the minor
 Taking necessary measures in case of sickness of the child
 Directing the upbringing of the child
 Taking the necessary disciplinary measures for the purpose of ensuring his upbringing.
 Directing and supervising the social contacts of the child
 Ensuring that the child receives general and professional education commensurate to his
age
251
A Proclamation TO Provide for Public Servants’ Pension (Proclamation 714/2011), Articles 40‐45
252
Private Organization Employees Pension Proclamation (Proclamation 715/2011), Articles 39‐44
87
Paragraph 2 of Article 18 requires States Parties to provide appropriate assistance to parents and
families. The provision of state assistance becomes important in the event where the parents are
unable to undertake their child-rearing responsibilities.253 The State is expected to adopt a
preventive approach by identifying families at risk of breaking down and provide financial
benefits, housing. Day care, home visits, psychological and professional support.254
Various cases considered by courts of law in Ethiopia buttress the concept of joint
responsibilities of the parents in the upbringing of their children. The cases relate to the
administration of proprietary interests of children by their parents and also other matters. The
cases below are meant to illustrate the emerging jurisprudence of courts of law in Ethiopia
favoring the best interests of the child.
In File No, 46490, the court made the following decision on March 30, 2010.255 The petitioners
instituted a lawsuit against the respondent in High Court of Hawassa seeking the invalidation of
the contract of sale that the respondent concluded with another individual. The High Court of
Hawassa city accepted the relief sought and decided in their favor ordering the invalidation of
the contract of sale. However, the Supreme Court of Southern Nations, Nationalities and Peoples
Regional State (SNNPRS) quashed the decision of the High Court. The decision of the Supreme
Court was also approved by the Cassation Bench of the Supreme Court of the Regional State.
The petition is presented to the Cassation Bench of the Federal Supreme Court alleging the
existence of a fundamental error of law in the decisions of the lower courts.
The lawsuit the petitioners first instituted in the High Court of Hawassa city stated that the
respondent concluded marriage agreement with Ato Firew Lemma. The respondent built a
dwelling house while she was in matrimony with Ato Firew and also gave birth to two children.
The respondent sold the house, which is the common property of the spouses to the second
defendant in the lower court, upon the death of Ato Firew Lemma, having transferred title in her
name. The petitioners demanded the invalidation of the contract of sale as it affects the interests
of the children of the two spouses. The respondent argued that the contract of sale should not be
invalidated as it is concluded in accordance with the law. The High Court of Hawassa city
253
254
255
88
decided the invalidation of the contract since the respondent sold the common property including
the rightful share of the children which they obtained by virtue of succession from their deceased
father. The High Court noted that this adversely affects the rights and interests of the children.
The court also ordered the cancellation of the title deed issued in the name of the respondent and
ordered the maintenance of the title deed in the name of the deceased so that the house remains
the common property of the respondent and the children.
The respondent took appeal from the decision of the High Court to the Supreme Court of
Southern Nations, Nationalities and Peoples Regional State (SNNPRS), which reversed the
decision of the High Court after having examined the case. The decision of the Supreme Court
was also approved by the Cassation Bench of the Supreme Court of the Regional State.
The Cassation Bench of the Federal Supreme Court decided that the petition needs to be
examined in the light of the rights of children and the powers of guardianship and tutorship.
Thus, the parties were required to make their written submissions concerning the dispute.
The four petitioners seek the invalidation of the contract of sale of the house the respondent
concluded since it constitutes common matrimonial property. They contend that the house is the
property of the respondent as well as the children. The petitioners argued that the sale of the
house adversely affects the rights and interests of the children. They went on to state that the
respondent is not entitled to dispose the rightful share of the children along with her’s. The
guardianship and tutorship of children who have not attained the age of majority is legally vested
with the mother and father of the children. In the event of the death of one of the parents, the
surviving parent assumes the responsibilities of guardianship and tutorship alone. Accordingly,
the respondent is the legal guardian as well as tutor of the children. Due to this fact, she is
legally entitled to fixing the place of residence of the child, to care of the person of the child, to
watching over the health of the minors, to take the necessary measures in case of sickness of the
children, to direct the upbringing of the children, to take the necessary disciplinary measures for
the purpose of ensuring his upbringing, to direct and supervise the social contacts of the children,
to ensure that the children receive general and professional education commensurate to their age.
The respondent is legally entitled to determine appropriate measures in relation to the property of
the children if it is necessary for the proper upbringing of the children. Thus, the sole fact of the
sale of the moiety of the house belonging to the children does not necessarily mean that it
89
violates the rights of children if such measure is warranted under the circumstances of the case.
Article 292 of the Revised Family Code of the Southern Nations, Nationalities and Peoples
Regional State (SNNPRS) makes it clear that the tutor is entitled to sell movable corporeal
property, shares and securities to bearer. However, the Code is silent as to whether or not it is
possible to alienate immovable properties as well. Article 321 of the Revised Family Code of the
Southern Nations, Nationalities and Peoples Regional State (SNNPRS) makes it clear that the
relevant provision of Agency Law relating to acts performed in excess of power in case where it
is claimed that the tutor is not entitled to alienate the immovable property of the minors. The
relevant provisions of the law on agency in the Civil Code show that the principal is entitled to
confirm or to reject the acts of the agent performed in excess of his or her power. However,
Article 2207(1) of the Civil Code makes it clear that the principal is obliged to approve acts the
agent performed in excess of his or her power if it is proved that those were committed by the
agent in good faith. Likewise, the respondent contended that the sale of the house is in the best
interests of the children for their proper upbringing and their education. She submitted that the
sale of the house is necessary as to be able to discharge the responsibility incidental to
guardianship of the children. The petitioners argued that the respondent would mix the proceeds
of the sale of the house with that of her common property with her newly married husband.
However, the petitioners did not adduce any tangible evidence to establish that the respondent
has brought about damage to the proper upbringing of the children. They did not also establish
that the respondent has squandered the rightful property of the children. Evidently, the
respondent is not in a position to squander the property of the children as she pleases only
because she happens to be their tutor. Thus, the petitioners are required to prove not only the sale
of the house by the respondent but also the fact that this has adversely affected the interests of
the children. The sale of the property of the respondent and that of the children including that of
immovable property is not itself a sufficient ground for seeking invalidation of the contract so far
as this is meant for the proper upbringing of the children. Therefore, the decision of the lower
court ordering the invalidation of the contract of sale of the house belonging to the respondent
and the children without inquiring whether the sale is justified for the proper upbringing of the
children constitutes a fundamental error of law. Consequently, the Cassation Bench of the
Federal Supreme Court reversed the decision of the Supreme Court of Southern Nations,
Nationalities and Peoples Regional State (SNNPRS).
90
In another case, the Cassation Bench of Federal Supreme Court made the following judgment on
April 9, 2011 in File No. 54129.256 The case relates to the effects of a sale of property belonging
to a minor by his or her tutors to a third party on the minor. The lawsuit arose when the petitioner
demanded the approval of a contract of sale of immovable property concluded with the parents
of the respondent. Accordingly, the court approved the contract of sale.
Following this, the respondent submitted opposition protesting against the decision of the court
approving the contract of sale to the same court based on Article 358 of the Civil Procedure
Code. The respondent invoked different grounds for his opposition. To begin with, the
respondent contended that he has title deed over the immovable property which is the subject
matter of the sale, which is registered in his name. Secondly, he stated that at the time the
contract of sale was concluded he was minor under the guardianship and tutorship of his parents.
Thirdly, he contended that his parents are not entitled to effect the sale of the immovable
property under the law. Finally, he argued that the decision of the court approving the contract of
sale involving the buyer and his parents in his absence runs counter to his interests based on
Article 360 of the Civil procedure Code.
The First Instance Court of the Regional State which approved the contract of sale of the
immovable property has also revoked its decision of approval of the contract in a different file
staining that its confirmation of the contract in the case does not produce any legal effects.
The laws of the Regional State do not authorize the guardians to transfer or alienate the
immovable property of the minor. The Supreme Court of the Oromia National Regional State
stated that the decisions of the Woreda and the High Court of the Regional State cancelling their
prior decisions authorizing the confirmation of the contract of sale does not constitute a
fundamental error of law.
The submissions of the parties before the Cassation Bench of the Federal Supreme Court are not
that different from their previous submissions in the lower courts. The Cassation Bench looked
into the matter against the foregoing backdrop of the case.
256
91
It is indisputable that the house which is the object of the contract of sale is registered in the title
deed of the respondent. The petitioner argues that the sellers should be compelled to perform the
contract of sale though the property is registered in the name of the respondent. The petitioner
contended that at the time the contract of sale was concluded that respondent was merely a minor
not in a position to make fortunes of this type. The petitioner went on to state that the respondent
did not claim to have obtained the immovable by way of inheritance. The petitioner concludes
that the property actually belonged to the parents of the respondent. However, the arguments of
the petitioner is based on facts and not on legal basis since the substantive law relating to
registration of property has given answer to the question “Who is the owner of the property?”
The contention of the petitioner that he was in possession of the property for 14 years after
conclusion of the sale and that the opposition of the respondent is groundless is not also tenable.
This is because of the fact that the decisions of the lower courts do not establish this fact.
The laws of the Regional State do not authorize the guardians to transfer, alienate, or sell the
immovable property of the minor. The Laws of the Regional State are silent on the remedies
available to the third party to whom the property has been transferred. The laws provide
protection to the minor but not to the third party affected. The sellers did not have any authority
to sell the property. Therefore, the cancellation of the decision of lower courts revoking the
earlier judgment authorizing the confirmation of the contract of sale of the immovable does not
constitute a fundamental error of law.
In File No 54827, the Cassation Bench of the Federal Supreme Court also made the following
judgment on April 29, 2011.257 The basis of the petition for the Cassation Bench of the Federal
Supreme Court is the litigation revolving around the contract of sale of a house. The plaintiff in
the lower court upon the commencement of the lawsuit, the respondent at the cassation hearing,
instituted a lawsuit against the petitioners demanding the handing over the house which they sold
to him according to the contract of sale. He also demanded that they should facilitate the
registration of the property in his name. The petitioners argued that they should not be required
to handover the house since there is no contract concluded with them. The High Court of West
Shoa Zone examined the case and rejected the claim of the respondent. The court also ordered
257
92
the restoration of the parties to their previous situations. The respondent took appeal from the
judgment to the Supreme Court of Oromia National Regional State. The Supreme Court reversed
the decision of the High Court and decided that the petitioners to perform according to the
contract. The Cassation Bench of Oromia National Regional State also decided that the judgment
of the Supreme Court does not constitute a fundamental error of law. The petition was presented
to the Cassation Bench of the Federal Supreme Court against this backdrop.
The Cassation Bench of the Federal Supreme Court looked in to the matter by examining the
written submissions of the parties summoning the respondent. This is because the Bench deemed
it proper to examine the issue whether or not the decisions of the lower courts constitutes a
fundamental error of law.
The judgment of the court which tried the case initially shows that the contract of sale was
concluded on May 15, 2001. However, the respondent instituted lawsuit on May 25, 2007. As
indicated in the lawsuit, Elsi (Elsabet), Fasil and Dereje did not attain the age of majority at the
time. Consequently, they were represented by their tutor Romework Tesfaye. The respondent is
alleging that he concluded the contract of sale of house with these children as well. He also
mentioned that he bought the house for a consideration of 200, 000 Birr and effected a payment
of 47, 285 Birr. He also mentioned that he did not take over the house. The lower court did not
accept the lawsuit based on the argument that the contract is not legally enforceable. However,
the appellate court came to the conclusion that there is no reason why the contract cannot be
enforced so far as its conclusion is admitted.
The Cassation Bench of the Federal Supreme Court affirmed that the issue to be framed in this
case is not whether or not the contract is concluded or admitted. Instead, the issue to be framed in
the case so as to reach at the appropriate decision is predicated upon the legal effects that the
contract produces. The petitioners may be compelled to perform according to the contract only if
it is shown that they are obliged by the legal effects it produces. The petitioners have argued that
the contract should not be valid before the law. The reply the respondent submitted in response
to the cassation petition confirms that Elsi (Elsabet), Fasil and Dereje were aged 12, 14 and 10
years old respectively at the time of the contract was alleged to have been concluded. Therefore,
this implies that the contract of sale of the house was concluded on their behalf by their tutor.
Article 1226 of the Civil Code stipulates that the sale of the house may be effected only where it
93
is concluded on the consent of all the co-owners. This is the reason why the respondent
instituted a legal action saying that the petitioners have sold their house to him jointly. However,
it becomes pertinent to examine the provisions of the law concerning the protection of minors as
at the time of the conclusion of the contract of sale of the house some of the co-owners were
minors.
The lawsuit arose in Oromia National Regional State. The lawsuit was also initially entertained
by courts in the same region. Oromia National Regional State has promulgated its own Revised
Family Code (Proclamation 83/1995). Chapter 12 of the Revised Family Code of the Regional
State has laid down the provisions regarding the protection of minors. Part three of this chapter
deals with the powers of the guardian and the tutor of minors. Article 294 of the Revised Family
Code of the regional State is of particular relevance to the case at hand. According to this
provision, the tutor is entitled to sell movable corporeal property, shares and securities to bearer.
However, the Code is silent as to whether or not it is possible to alienate immovable properties as
well. The Code has opted to specify the property the minor the tutor is authorized to dispose.
Arguing a contrario, the tutor is not entitled to sell the immovable property of the minor directly.
This is also reflected under Article 277 of the Federal Revised Family Code.
The law has stipulated provisions in the family code with a view to ensure the protection of
minors. Article 299 of the Revised Family Code of Oromia National Regional State and Article
316 of the Revised Federal Family Code provide that contracts concluded by minors are subject
to invalidation let alone contracts concluded by their tutors. This shows that the contract which
is at the heart of the lawsuits in this case is not legally enforceable and voidable. The
conclusions of the Supreme Court and Cassation Division of Oromia National Regional State on
the matter therefore are not in keeping with appropriate construction of the law. Therefore, the
Cassation Bench of the Federal Supreme Court has come to the decision that the judgment
complained against by the petitioners constitutes a fundamental error of law. The judgments of
the Supreme Court and Cassation Division of Oromia National Regional State on the issue have
been subject to reversal.
94
5.3. Separation from Parents
Article 9 of the CRC requires State Parties to ensure that a child shall not be separated from his
or her parents against their will. Separation of children from their parents may be justified only
in cases where it is in their best interests. Even in these cases, Article 9(1) stipulates that the
separation must be sanctioned by competent authorities subject to judicial review. A typical
situation may warrant involving the separation of children from parents when the latter abuse or
neglect their children. Another circumstance is the situation where parents are living separately
and a decision must be made as to the child’s place of residence. Article 9(2) provides that
opportunity must be given for all interested parties to be given opportunity to participate in
proceedings involving separation of children from parents. The cumulative reading of Article
9(1) and Article 9(2) of the CRC hammers home two essential principles.258 Firstly, children
should not be separated from parents unless it is necessary for their best interests. Secondly, all
procedures involving separation of children from their parents must be fair.259
Article 9(3) requires States Parties to maintain personal and relations and direct contact with both
parents on a regular basis unless this is contrary to the best interest of the child. Article 9(4) of
the CRC requires States Parties to inform parents and child of the whereabouts of either if the
State has caused their separation, for instance, through deportation or imprisonment.
The International Covenant on Civil and Political Rights stipulates “the family is natural and
fundamental unit of society and is entitled to protection by society and the State.” This same
principle is also mirrored in Article 34(3) of the FDRE Constitution. Article 10 of the
International Covenant on Economic, Social and Cultural Rights also provides that “no one shall
be subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour and reputation.”
Article 9(1) prohibits the separation of children from their parents against their will. The proviso
“against their will” refers to either to the parent’s will or to the parents’ and child’s will
together. In other words, it does not refer to the child’s will solely.260 Even though States Parries
cannot be held accountable for separation caused as a result of divorce of parents, they are
258
259
260
95
obliged to endeavor to undertake research and awareness-raising activities concerning the
adverse effects of divorce on the children.261
Article 9 makes special mention of two illustrations of when it may be necessary to separate
children from one or both parents. These are when parents have abused or neglected the child
and, second, when parents live apart. There was also a suggestion to include “where there is a
disagreement between parent(s) and child as to where the child’s place of residence”. However,
this suggestion was not accommodated in the provision, since the Convention does not attempt to
give exhaustive list of circumstances warranting the separation of children from parents.262
Nevertheless, situations whereby parents agree between themselves where the child should live
or how parental access needs to be organized without the consent of the child remain deeply
vexing.263
Homelessness or poverty of parents should not serve as a ground for separation of children from
parents.264 Parents’ failure to send their children should not also serve as a ground of removal of
children into State care. Instead, the State should strive to alleviate the problems while the
children are still with their parents.265 Article 9(1) of the Convention on the Rights of Persons
with Disabilities provides that “in no case shall a child be separated from parents on the basis of
a disability of either the child or one or both of the parents.” The Convention on the Rights of
Persons with Disabilities also calls upon States Parties to undertake early detection and provide
support for parents to prevent “concealment, abandonment, neglect and segregation of children
with disabilities.”
One of the major causes of separation of children is that of abandonment. Article 659(1) of the
Ethiopian Criminal Code criminalizes the offence of “failure to bring up.” It provides that “a
parent or other person exercising the authority of guardian or tutor, who, for gain or in
dereliction of his duty:
a) Grossly neglects the children under his charge and abandons them without due care and
attention or to moral or physical danger; or
261
262
263
264
265
96
b) Entrusts a child for a long time to a person, an organization or an institution with whom
or where he knows, or could have foreseen, that it will be reduced to physical or moral
destitution, or will be physically or psychologically endangered,
is punishable with simple imprisonment or fine. The provision also states that the court may in
addition deprive the criminal of his family rights in grave cases.
Article 574 concerns itself with the crime of exposure or abandonment of another. Article 574
(1) reads “whoever, having the custody or charge, on no matter what grounds, of a person
incapable of protecting himself, whether on account of his health, his age, his situation or any
other circumstance, intentionally:
(a) Exposes him, thereby putting him in imminent danger of life or health; or
(b) Abandons him when in like situation,
is punishable, according to the circumstances of the case, with rigorous imprisonment not
exceeding five years, or with simple imprisonment for not less than six months, without
prejudice to the deprivation of the criminal’s family rights where necessary.”
Article 574 (2) goes on to state that where the crime is committed against an infant, the
punishment shall be rigorous imprisonment not exceeding seven years.
Chapter IV of the Criminal Code of Ethiopia embodies various provisions relating to exposure
and abandonment. The chapter is entitled “Crimes Endangering Life of Another. Article 571 of
the Code concerns itself with exposure of the life of another. It provides that whoever
intentionally puts another in imminent danger of death is punishable with rigorous imprisonment
not exceeding three years, or with simple imprisonment for not less than three months. The
provision defines exposure as the practice of putting the child in imminent danger of life or
health.
Article 574(1) (a) makes exposure a separate crime. Article 574 of the Criminal Code makes it a
crime to endanger the health or life of a child through the recklessness or indifference of an
adult. Article 574(1(a) dwells upon a form of child abandonment practiced in many cultures and
referred to as “Exposure.”
97
Article 30 of the African Charter on the Rights and Welfare of the Child concerns itself with
children of imprisoned mothers. It requires Member States to provide special treatment to
expectant mothers and to mothers of infants and young children accused of or found guilty of
contravening the criminal law. The imprisonment of parents, especially of mothers of infant
children, is disruptive for children. This is due to the fact that children are also punished along
with their parents.266 In addition, the situation also entails unnecessary costs on the State for the
care of infant children.267 The problem is also likely to lead to a more serious social problem for
the State. Two options are suggested as solutions to address this problem. Firstly, it may be
necessary to accommodate young infants with their mothers. Secondly, it may be worthwhile to
consider a more constructive and non-custodial penalties on the convicted parents.268 The
contention that courts of law should consider the best interests of children while sentencing
parents remains controversial.269
Article 28 of Federal Prisons Commission Establishment Proclamation (Proclamation 365/2003)

provides that a dependent infant not beyond eighteen months and that needs close maternal care
may stay with his mother who is in custody where his interest so requires.
Article 12 of the Council of Ministers Regulation on the Treatment of Federal Prisoners takes
this one further step and provides as follows:
Article 12: Pregnant and Female Prisoners with Children:
1) Where a female prisoner comes with an infant not more than 18 months old and where
his interest so requires, the infant shall stay in the prison with his mother.
2/ The infant shall, during his stay in the prison, be provided with the necessary food,
vaccination, medical as well as other necessary items.
3) If the stay of the child in the prison is likely to have an adverse physical or
psychological impact in him, he shall be handed over to a close relative; provided,
however, that the Administration shall facilitate the possibilities of finding another
guardian in the absence of a close relative.
266
267
268
269
98
4) A pregnant or a female prisoner with a child shall be provided with additional food
upon the recommendation of a medical officer.
Article 9 of the CRC sets forth various guarantees to be observed when children are separated
from parents. Accordingly, any decision involving separation of children from parents must be
undertaken by competent authorities, subject to judicial review, in accordance with applicable
law and procedures and give all interested parties the opportunity to participate and make their
views known.
Child Custody and Guardianship
Under Ethiopian law, guardians and tutors of children can be classified into three. These are
guardians and tutors designated by law, testamentary guardians or tutors and tutors and guardians
appointed by courts of law.
In regard to tutors and guardians designated by the law, the Revised Family Code provides that
both parents are jointly guardians and tutors of their children.270 The Code goes on to state that in
the event of default on the part of one of the parents; the other parent exercises all the functions
of a guardian and a tutor.271 The issue of which parent has custody rights arises in the event of
separation or divorce between the parents.
Testamentary guardians or tutors are those which are appointed by a will or testament. In this
regard, the Revised Family Code provides that the surviving parent of a minor may specify by
his or her last will, who shall be guardian or tutor of the child after his or her death.272 The
practice of designation of a guardian or tutor by the surviving parent is of paramount importance
as it would prevent unscrupulous individuals from masquerading as the tutor and guardian of the
child though the ensuring the best interests of the children is not their basic concern. Since the
surviving parents are presumed to know who will be able to provide the best shelter, health,
education and upbringing of the child, it would prevent unnecessary altercation likely to ensue
following the death of the parent if the latter has already designate the tutor and guardian by a
testament. This practice is also hailed as a panacea for the prevention of property grabbing by
so-called tutors and guardians who do not cater for the best interests of the child.
270
271
272
99
Lastly, tutors or guardians may be appointed by a court of law based on a judicial determination.
Decisions concerning parental divorce call for the regulation of the custody of the children born
out of wedlock. In this regard, the Revised Family Code provides the right of the parties to settle
this and other issues amicably.273 If the parties cannot reach at an agreement concerning the
custody of their children, the court which pronounced the judgment of divorce is entitled to give
an order concerning custody.274
The Revised Family Code provides that issues pertaining to custody, maintenance and visitation
rights of the non-custodial parents are ironed out with the dissolution of the marriage.
The consideration of cases and judgments rendered by courts of law in Ethiopia demonstrate the
trend concerning the determination of custody. The subsequent discussion has focused on these
cases with this spirit.
The first case to be considered in relation to this pertains to File No.57963. The decision of the
court was rendered on November 2, 2006. In this case, the court has instructed African Child
Policy Forum to undertake inquiry about the circumstances of the case and propose
recommendations concerning the upbringing of the two children following the pronouncement of
divorce. African Child Policy Forum, on its part, inquired into the matter and proposed a written
report recommending custody of the children to be given to their mother.
In addition, the court also entertained the views of the children and the parties in camera hearing.
The children explained that they are undergoing their studies properly and do not have any
complaints concerning food as well as clothing. However, the children stated that their father
prevented them from visiting their mother under the pretext of doing their studies. They further
submitted they would love to pay visit to their mother if they get their father’s permission.
On the other hand, the petitioner stated that the respondent has two other children and a
babysitter looks them after. The respondent has a habit of changing the babysitters every now
and then and she is not allowed to see them. She went on to state that the children are better off
with her since she is living along with her parents in their private dwelling. The respondent
273
274
100
denied that he ever prevented the children from seeing their mother and insisted that the children
are well off with them.
The Family Council confirmed that the matter has been considered and the members of the
council have seen the situation of the children in person. Members of the Family Council have
confirmed that the children are in good hands and have been treated well. The Family Council
submitted that it has decided by majority vote that it would be better for the children to live along
with their father, as it would be entirely different if they were going to grow with their mother.
Child Protection Center of the Africa Child Policy Forum explained that it has inquired in to the
circumstances of the children by getting to their residence in person and has concluded that the
children should not be living with the respondent and they are well off with the applicant.
The court has asked the attendance of the children and has observed that the situation of the
children is not as depicted. The court has realized that the children are well treated. The children
were asked by the court to clarify as to whom they wish to be with. The children stated
invariably that they prefer to be with their father. The Court also noted that the petitioner has
accepted this. Accordingly, the court decided the respondent to be the guardian and the tutor of
the children in accordance with Article 221(1) of the Revised Family Code.
In regard to visitation rights, the court allowed the petitioner to take the children once every two
weeks. The petitioner was to take the children on Friday at 5 PM and return them at 10 A.M. on
Sundays. However, the court gave the following decree since the petitioner complained before
the court that the respondent has failed to allow her to see her children following the
pronouncement of the previous judgment.
In its decree, the court noted that the mother submitted a petition stating that the father has failed
to comply with the order of the court concerning visitation rights. The court summoned the
parties and the children and heard them in camera. The court realized that the respondent is
using different methods to instill fear in the children thereby preventing them from approaching
their mother. Therefore, the court was seized of the matter whether or not the respondent should
be divested of his guardianship and tutorship?
101
The Constitution of the Federal Democratic Republic of Ethiopia has endorsed the rights and
freedoms of children as enunciated in the Convention on the Rights of Children. The Convention
has also been made an integral part of the domestic law of the land by virtue of the Constitution.
The Convention affirms the rights of children to the joint care and protection of both their
parents for their full development and not to be separated from their parents without their
consent. Article 36(c) of the Constitution of the Federal Democratic Republic of Ethiopia
proclaims the right of children to be cared for by their parents. Nevertheless, the court has taken
note of the fact that the respondent has acted contrary to these rights of the children affirmed in
the laws and has inflicted adverse impact on the children. The court awarded the guardianship
and tutorship of the children to the respondent in the belief that this would be in the best interests
of the children. However, since the items of evidence presented to the court at present indicate
that the situation has now changed and, accordingly, the court has reversed its decisions
regarding the guardianship and the tutorship of the father based on 113(3) of the Revised Family
Code. The court has decided the mother of the children to be their guardian and tutor as per
Article 221(2) of the Revised Family Code. The father hereby required to effect a payment of
700 (Seven Hundred Birr) by way of maintenance of the children based on Article 198 (1) of the
Revised Family Code.
The other case relating to issues of custody determination is File No. 47760. The judgment of the
court was rendered on November 29, 2007. In this case, the petitioner submitted an application
stating that the respondent has left abroad after having left the children aged 14 and 7 with her
brother. The petitioner requested the court to give him custody of the children since he is capable
of raising them. The agent and brother of the respondent replied that the children may be placed
under the custody of the petitioner if they are willing.
The court summoned the children and heard their views. The children confirmed that they do not
want to be placed under the custody of their father. The court has realized that the petitioner has
been engaged in over tasking the children in the trade of weaving. However, the court has
confirmed that the brother of the respondent has enrolled the children in school and is ensuring
their development properly.
102
The court has confirmed that the uncle of the children is well-placed to ensure the upbringing of
the children than that of the petitioner as the latter has failed to demonstrate his income and
ability to fulfill the developmental and psychological needs of the children. Therefore, the court
has determined that the petitioner effect a monthly payment of 200 Birr and the children to be
under the custody of their uncle, Ato Bekinew Adera, as per Article 113(1) of the Revised
Family Code.
Likewise, in File No. 27346, the Court concerned itself with the issue of revision of guardianship
and tutorship in case of temporary setback. The judgment was rendered on November 15, 2005.
The marriage between the parties was dissolved as a result of the judgment of divorce
pronounced by the court. Both parties demanded custody of their children, aged 4 and 7 years
old. The petitioner requested custody as he has better income and his mother is a health
professional. On the contrary, the respondent requested custody of the children since she has
already been raising the children for a year and the petitioner has prevented the children from
maintaining contact with her. She stated that the respondent has behavioral problems and is not
in a position to raise the children.
After hearing the parties, the court also listened to the opinions of the children. Article 113(2) of
the Revised Family Code determines that the custody of children must be determined based on
the best interests of the children as a primary consideration. The court noted that both parties
have the capacity to raise the children from this perspective. However, the court went on to state
that the respondent has smoking addiction and has prevented the children from visiting their
mother repeatedly disregarding their rights and the order given by the court. On the contrary, the
respondent has returned the children based on the order of the court. The conduct of the
respondent entails negative and adverse influence on children compromising their full
development. Therefore, the court has decided that it is better for the children to grow under the
custody of the respondent than that of the applicant. The conditions and timetable for the
visitation rights of the applicant and the amount of alimony he should pay are included in the
order.
Four months after the aforementioned decision was given, the applicant submitted a petition
demanding the revision of the custody order based on the allegation that the respondent has
103
given birth to a third child and is no longer in a position to take care of the two children. The
respondent opposed the motion and application of the petitioner. The court noted that custody
orders might be changed only if the circumstances which were the basis of the orders changed as
per Article 113(3) of the Revised Family Code. In the matter at hand, the circumstances, which
were the basis of the custody order, did not change. The only change that has taken place is the
fact that respondent gave birth to another child. The fact that the respondent gave birth to another
child may cause transient and temporary pressure but does not constitute a change in
circumstances that necessitates revision of the custody order. Therefore, the court rejects the
application for revision of custody order submitted on this ground.
Visitation Rights of the Non-Custodial Parent and the Right of the Child to Parental
Knowledge
Article 9(3) requires States Parties to respect of the rights of children to maintain personal
relations and direct contact. Children find it difficult to reunite with their parents if contact is not
maintained.275 Thus, States Parties need to take this fact in to account when planning placements
by ensuring their accessibility.276 As discussed earlier, Article 7 of the Convention provides that
children have the right to know and be cared for by their parents. Similarly, Article 19(2) of the
African Charter on the Rights and Welfare of the Child stipulates that “every child who is
separated from one or both parents shall have the right to maintain personal relations and direct
contact with both parents on a regular basis”.
These rights make it necessary to provide visitation rights to the non-custodial parent unless this
is deemed to be not in the best interests of the child. Accordingly, the Revised Family Code also
provides that courts of law can make orders for child support, custody as well as visitation rights
of the parties. Visitation rights of the non-custodial parent are instrumental to realize the rights of
the child to parental knowledge and to maintain contact to the non-custodial parent. This in turn
fundamentally contributes to the full and healthy development of the child.
275
276
104
Courts of law routinely deal with the issue of visitation Rights of the Non-Custodial Parent and
the Right of the Child to Parental Knowledge in law determination. For example, in file number
230004, the court made the following decision on May 2, 2006.
Following the dissolution of the marriage between the parties by decision of divorce, the court
decided custody of the children of the parties to the petitioner. The court also gave order
concerning visitation rights of the respondent to take the children at 9 A.M. on Saturdays and to
return them on 4 P.M. on Sundays. However, the applicant sought the reduction of the duration
of visitation rights since it interferes with the study of the children and since the children are not
actually accompanied with the respondent during these times.
The court consulted on the matter with the parties as well as the children. According to Article
113(1) of the Revised Family Code, the parent who is not entitled to custody is still entitled to
visitation rights. The visitation right of the absent parent is justified by the rights of the children
to maintain contact with their parents and to be cared for by them. The court has realized that the
children are not happy when the respondent is not accompanying them during times of visitation
and it has shortened the time available for their studies. Regardless of the fact that the respondent
has stated that he is in a position to hire a tutor and follow their studies, the court did not accept
this since it is the applicant who has the right to follow up the educational performance as it is
the applicant who is granted custody. Therefore, it is for the children and the applicant to
consider the timetable for the studies.
Consequently, the court has made changes with the timetable for the visitation rights of the
respondent owing to the aforementioned reasons, in particular to ensure that the children have
adequate time for their studies and that the respondent accompanies them during occasions of
visits. Thus, the court has ordered the respondent to collect the children at 11P.M on Saturdays
and to return them at noon on Sundays based on Article 113(3) of the Revised Family Code.
5.4. Entering or Leaving Countries for Family Reunification

Article 10 of the CRC assures the right of the child to family reunification. It concerns itself with
the rights of the child incidental to entering or leaving countries for family reunification.
However, the formulation of Article 10 is believed to be weak due to its failure to expressly
105
specify the right to family reunification. This reluctance is imputed to concerns revolving around
immigration control.277
Article 10(1) provides that applications by the child concerning family reunification should be
dealt with in a positive, humane and expeditious manner. The word “postive” was taken up in
lieu of the proposed two terms, namely, “objective’ and “favourable”.278 The term “positive” was
deemed to be acceptable since it did not assume that the State must agree to the application. The
ensuing term “humane” further reinforces the preceding term “positive.”279 It also requires the
procedure for making decisions concerning applications of family reunification to be humane.280
Immigration processes are required to respect the dignity of applicants.281 The term
“expeditious” implies that all judicial and administrative processes concerning children to be
disposed as quickly as possible.282 Delay and procrastination are detrimental for the healthy
development of children.
Moreover, States Parties are required to ensure that the submission of such a request will not
entail any adverse consequences for the members of the family of the child. In other words,
applications for family reunifications should not give rise to reprisals in the form of persecution,
discrimination or any breach of human rights.283 Submission of applications of this kind should
not put the applicant in jeopardy.284
The provision also implies duty of states to allow parents and children to visit each other if they
live in different countries. In other words, the Article assures of the right of the child, save in
exceptional circumstances, to maintain contact, on a regular basis, personal relations and direct
contacts with both parents where the parents reside in different States.285 The Hague Convention
on the Civil Aspects of International Child Abduction, which also allows parents to enforce court
orders for access i.e. contact or visitation rights, also calls for respect for this entitlement.
277
278
279
280
281
282
283
284
285
106
The right of child and parents to leave any country (including their own) may only be subject
only to legal restrictions “which are necessary to protect national security, public order, public
health or morals or the rights and freedoms of others. Moreover, such restrictions must be
consistent with the rights enshrined in the CRC. However, on the contrary, no restrictions may
be imposed upon the right of the child and parent to enter their own country.
Article 32(1) of the FDRE Constitution assures of the right to freedom of movement. It stipulates
that any Ethiopian or foreign national lawfully in Ethiopia has, within the national territory, the
right to liberty of movement and freedom to choose his residence, as well as the freedom to leave
the country at any time he wishes to. Article 32(2) also enshrines the right of any Ethiopian
national to return to his country. The Immigration Proclamation (Proclamation 354/2003) has
been issued with a view to operationalize this entitlement. This proclamation regulates both
applications for entry in to Ethiopia and departure from Ethiopia. Article 3 of the Proclamation
lays down the requirements that must be fulfilled to enter Ethiopia. Article 3(3) deals with the
requirements that must be met so that a foreigner who is a minor and who wants to enter Ethiopia
may do so. Article 6 of the Proclamation sets forth the requirements that must be fulfilled to
depart from Ethiopia.
5.5. Illicit Transfer and Non-Return of Children Abroad

Article 11 of the CRC dwells on the prohibition of illicit transfer and non-return of children
abroad. Article 11(1) of the CRC obliges States Parties to combat illicit transfer and non-return
of children abroad. In other words, it requires States Parties to prevent children from being
wrongfully taken or from being retained outside their jurisdiction. It also requires States Parties
to secure that these children are recovered and to undertake that abducted children brought into
their jurisdiction are returned.286 The basic focus of the provision is parental abductions and
retentions.287 Article 11 regulates situations whereby children are abducted by parents or other
relatives and not permitted to return home.288 Such parental abduction are primarily motivated
286
287
288
107
by the desire to prevent the child from having access to the parent with whom the child used to
live or with whom the child had direct and regular contacts and personal relations.289
The sale, trafficking and abduction of children are covered under Article 35 of the CRC and the
Optional Protocol to the Convention on the Sale of children, Child Prostitution and Child
pornography. The similarity between the two provisions is evident since “illicit transfer and non-
return of children abroad” falls within the ambit of “abduction” regardless of “consent” on the
part of the child.290 The main difference between these provisions lies in the fact that the scope of
application of Article 11 relates to taking of children for personal instead of financial gain. On
the other hand, “sale” or “trafficking” alluded to in Article 35 demonstrates commercial or
sexual motive.291 Moreover, the scope of application of Article 11 is confined to the case of
children taken out of their country, while Article 35 is not.292
Article 11(2) calls upon States Parties to conclude bilateral or multilateral treaties and
agreements or accede to existing ones to prevent “illicit transfer and non-return of children
abroad”. In this regard, the Hague Convention on the Civil Aspects of International Child
Abduction is of utmost relevance. It is believed that the signing and ratification of this
Convention is the most effective way for the prevention of “illicit transfer and non-return of
children abroad”.293 The objective of this Convention is the protection of children under the age
of 16 who have been wrongfully removed or retained abroad. The Convention facilitates courts
of law to render decisions requiring the return of children to their countries or place of habitual
residence. However, courts are not obliged to make such orders if there is evidence suggesting
that there return would cause grave risk of harm to the child or he or she has been in the new
environment and has settled there. Foreign courts are barred from investigating the merits of the
dispute. It is up to the courts of the country of origin or of habitual residence to make decisions
regarding the future of the child.
Similarly, the Hague Convention on jurisdiction, Applicable Law, Recognition, Enforcement and
Cooperation in Respect of Parental Responsibility and measures for the Protection of Children is
289
290
291
292
293
108
of importance as well. The purpose of this Convention is to settle issues concerning who has
parental responsibility and custody rights of children who have moved between countries. It is
also instrumental in resolving which country has jurisdiction to act on behalf of the children, for
instance, country of habitual residence or country of nationality.
In addition to the signing of the aforementioned conventions, the implementation of Article 11 of

the CRC requires other measures including the creation institutional machinery to check borders
and to obtain appropriate court orders, the provision of legal aid and financial assistance to
parents to pay for the costs of the return of the children, the training of diplomatic and consular
officials on the principles of the Hague Conventions and the provision of information to
government agencies and state databases to identify the whereabouts of abducted or wrongfully
retained children.294
5.6. The Right to Maintenance

Article 27(4) relates to financial maintenance of children by parents and others legally
responsible for them. It stipulates that States Parties shall take all appropriate measures to secure
the recovery of maintenance for the child from the parents or other persons having financial
responsibility for the child, both within the country and abroad. The provision also calls upon
States Parties to accede to international agreements which promote the recovery of maintenance
from individuals who live in a State different from that of the child.
States Parties must also ensure that maintenance is used in the child’s best interest. Fathers
should not be allowed to use maintenance as a financial leverage to secure unwanted access to
the child or to assert a greater right in determining the future of the child. Similarly, mothers
should not be allowed to use maintenance to retain custody with a view to secure financial
support or accommodation for themselves. States should also adopt appropriate maintenance
recovery procedures. This would discourage irresponsible attitudes towards family planning and
fatherhood in general. States should also disseminate knowledge concerning the maintenance
procedures.
294
109
5.7. Children Deprived of their Family Environment
The CRC makes the presumption that children are better off within their families.295 However, if
children are deprived of their family environment for whatever reason they are entitled to special
protection and assistance. Article 20(1) of the CRC provides that “a child temporarily or
permanently deprived of his or her family environment, or in whose own best interests cannot be
allowed to remain in that environment, shall be entitled to special protection and assistance
provided by the state.” The inability of children to live with their parents and families can be
attributed to several structural, underlying and immediate causes including death of parents,
abandonment or displacement, removal from custody due to unworthiness of guardians.296
The provision stresses that such children are entitled to “special protection and assistance”. This
conveys the message that if parents cannot meet the needs of their children, then children have a
moral claim upon society.297 In other words, Article 20 imposes on Member States the obligation
to ensure that children deprived of family environment are receive appropriate care.
Article 20(2) of the Convention on the Rights of the Child provides for the right of children to an
alternative care in case where they are deprived of family environment. This right is also
affirmed in the 2010 UN Guidelines for Alternative Care of Children. Article 20(3) of the CRC
outlines the different forms of alternative childcare. In particular, the provision sets forth four
types of forms of alternative care, namely, foster placement, kafalah of Islamic law, adoption or,
if necessary, placement in suitable institutions for the care of children. The same provision
underlines the need to ensure continuum of care while considering the different options of
alternative care for children.
The provision of alternative childcare must be guided by the subidiarity principle. The
subsidiarity principle is enshrined in various instruments including in Articles 4 and 17 of UN
Declaration on Social and Legal Principles, relating to the Protection and Welfare of Children,
with Special Reference to Foster Placement and Adoption Nationally and Internationally, Article
21(b) of the United Nations Convention on the Rights of the Child, Article 4(b) of The Hague
Convention on Protection of Children and Co-Operation in Respect of Inter-country Adoption.
295
296
297
110
The subsidiarity principle requires giving due emphasis on the benefits of a permanent solution
for the child: first domestically, and then internationally. The subsidiarity principle submits that
It is in the best interest of children to be raised by the family or kin. If immediate family or kin is
unable, or unavailable, domestic placement with a foster or adoptive family is the next best
option. If neither of these alternatives is viable, then placement in an appropriate family in
another country through inter-country adoption or placement with in an institution temporarily.
This suggests a hierarchy of options. Firstly, family relatives, including older children as in the
case of child-headed households should be considered. Secondly, substitute family through
fostering and adoption. Finally, consideration may be given to appropriate institutional care as a
last resort.
The hierarchy of options outlined above is informed by the general agreement that the family
environment is the family environment. The Convention on the Rights of the Child as well as the
African Charter on the Rights and Welfare of the Child both provide that the family environment
affords the best environment for the harmonious and full development of the personality of the
child. This position is also warranted by many cultures which cherish the solidarity within the
family or in the community. Children are entitled to live safe and secure life. Children are also
entitled to be raised by caring and responsible parents. Children can develop to their full
potential in terms of educational achievements, economic security, healthy attachments and lack
of anti-social habits only in this situation. The place of childhood to take place is inside-inside
society, inside family, inside a private dwelling. The place children occupy is important because
it could be a place where children are nurtured and secured or it can also be a place where
children are abused, neglected, corrupted or exposed to deviant habits. A proper place for
children is home, not the streets, the brothel or institution. Other forms of childhood are harmful,
tantamount to abandonment.
Poverty cannot be considered as a “best interests” reason to deprive children of their family
environment.298 Likewise, Article 23(4) of the Convention on the Rights of Persons with
298
111
Disabilities provides that the disability of either of the parent or of the child is not a sufficient
ground to place the latter in institutional care or deprive them of their family environment.299
The principle of subsidiarity needs to be implemented along with the principle of

individualization which posits that each child is unique and all placements should be considered
in regard to their individual needs.300
In recent times, Ethiopia has taken various measures to ensure that its laws and policies
concerning alternative care are in line with the Convention on the Rights of the Child. The
Ministry of Women, Children and Youth Affairs has adopted a variety of guidelines concerning
the provision of alternative childcare. Mainly, these include the 2009 Revised Alternative Child
Care Guidelines to establish a regulatory instrument on the quality of the child care system and
the 2010 Standard Service Delivery Guidelines for OVC Care and Support Programs.
The 2009 Revised Alternative Child Care is issued with a view to facilitate the provision of
quality and effective care and support to orphan and vulnerable children. The Guidelines
acknowledges different forms of alternative child care including community-based alternative
care, reunification and reintegration program, foster placement, adoption and institutional care.
Foster placement refers to homes which provide substitute parenting for children who have lost
their biological parents, are in orphanages, vulnerable due to the impact of HIV/AIDS and other
socio political and economic problems. A foster family is a family which has applied to and is
selected by a foster family care organization to provide a temporary physical care and emotional
support and protection for an unaccompanied child placed through a foster family care program for
an unspecified time.301 Foster placement is said to be beneficial for the physical, emotional,
guidance and supervision and positive role modeling of children.
Institutional care is a form of alternative care which needs to be considered as a last resort. This is
due to documented and verified studies which demonstrate its adverse effects on children. These
include loss of brain functionality which can become permanent, causes toxic stress for infants and
very young children which can damage brain architecture, lower IQ than their counterpart peers in
299
300
301
Alternative Childcare Guidelines
112
foster care and tendency to become homeless after leaving institutional care. Moreover,
institutional care is more expensive than community based care.
5.8. Adoption
Article 21 of the CRC assures of the rights of children who are adopted. The provision
underlines the paramountancy of the best interests of children in all adoption arrangements. It
also sets out the minimum requirements which must be fulfilled in adoption procedures.
Adoption can be domestic or inter-country. According to Article 21, inter-country adoption may
be considered only if the child cannot be suitably placed in his or her own country.
Ethiopia is one of the countries which recognize adoption as a form of alternative child care in
view of the sense of security and permanency that it affords for the child. The Revised Family
Code stipulates that adoptive filiation, may be created by an agreement between a person and a
child.302 This is congruent with Article 34(3) of the FDRE Constitution which recognizes the
family as the “fundamental unit of society”. Adoption is not recognized under Islamic Law,
which instead has the institution of kafalah. Kafalah differs from adoption in that the child does
not assume family name and inheritance rights. Thus, kafalah is a permanent form of foster care.
Article 21 of the CRC enshrines the principle of paramountancy. Accordingly, it emphasizes that
the best interests of the child shall be of paramount consideration in adoption proceedings. This
is therefore different from “a primary” consideration found in Article 3 of the CRC. The
requirement of paramount consideration implies that no other interests, whether economic,
political, state security or those of adopters may supersede that of the child. Other interests may
not be given primacy over that of the child’s interests and cannot even be accorded equal footing.
The Revised Family Code requires that the court shall decisively verify that the adoption is to the
best interest of the child.303 To this effect, the court is also required to entertain the opinion of
the child about adoption.304 This shows that the Revised Family Code does not specifically
stipulate the paramountancy principle, instead the best interests of the child as a requirement for
approval of adoption agreements.
302
303
304
Revised Family Code, Article 194(3)(a)
113
Article 21 of the CRC makes it clear that adoption must be authorized only by competent
authorities in accordance with applicable law. The provision further requires that determination
must be on the basis of all pertinent and reliable information, that the adoption is permissible in
view of the child’s status concerning parents, relatives and legal guardians and that, if required,
the persons concerned have given their informed consent to the adoption on the basis of such
counseling as may be necessary. Competent authorities include judicial and competent
authorities.305 These authorities must ensure that adoption agreements are in the best interests of
the child and proper consents have been obtained. They must also ensure that all relevant
information is considered.306 The decision of a judge concerning adoption must be based upon all
relevant information.307
It has been stated that parents bear the primary responsibility for the upbringing of children. It is
therefore incumbent upon parents to exercise this responsibility with the child’s best interest as
their basic concern. Adoption needs to be considered only if parents are unable or unwilling to
perform this task as determined by a judicial process. Competent authorities are therefore
required to ensure that children are not wrongly removed from their parents.308 The Revised
Family Code stipulates that the opinion of the guardian or tutor of the child must be taken into
consideration before approving adoption.309
Article 21 makes it clear that inter-country adoption may be considered as an alternative means
of child’s care under certain conditions. Inter-country adoption must not be over utilized and
susceptible to fraud. According to the CRC, inter-country adoption may only be considered as an
option if the child cannot be placed in a foster or an adoptive family or cannot in any suitable
manner be cared for in the child’s country of origin. This form of adoption must be considered
only as a last resort. This requirement is in line with the continuum of care, the right of the child
to know and be cared for by parents as well as the child’s right to preserve his or her ethnic,
religious, cultural and linguistic identity.
305
306
307
308
309
Revised Family Code, Article 194(3)(b)
114
The Convention also states that inter-country adoption should not result in improper financial
gain. Inter-country adoption must not involve questionable best interest decision making. Inter-
country adoption must be free from criminality, corruption and exploitation. This obligation must
be considered in line with Article 35 of the CRC which requires States Parties to take measures
to prevent the sale of children for any purpose.
Likewise, the Hague Convention on Protection of Children and Cooperation in respect of Inter-
country adoption affirms the subsidiarity principle. The subsidiarity principle holds that inter-
country adoption should only take place “after possibilities for placement of the child within the
state of origin have been given due consideration. The principle reflects the view that domestic
adoptions are more desirable and preferable than inter-country adoptions. However, Ethiopia has
not ratified The Hague Convention on Protection of Children and Cooperation in respect of Inter-
country Adoption at this point. The Convention calls for the need to ensure that the child
concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing
in the case of national adoption. A child shall not be placed with the applicant before the contract
of adoption is finalized with the court’s approval. 310
Courts of law in Ethiopia adjudicate on matters of adoption on various occasions. The

consideration of some of the cases is instructive to identify the jurisprudential trend. The first
case to be considered here relates to rejection of adoption agreement. The case was entertained in
relation to file number 80100. This decision was given on April 12, 2007.
In file number, 80100, in an application dated December 21, 2006, the two petitioners requested
the court to approve the adoption agreement they concluded on December 6, 2006. The
application was presented along with items of evidence demonstrating the health and income
status of the would-be adoptive parent and clearance confirming absence of any criminal record
in relation to the adoptive parent.
The 2nd applicant explained to the court that he signed the adoption agreement since the 1st
applicant is the would-be adoptive parent is the grandfather of the child and has requested him to
raise the child. The 1st applicant also stated that he has another child and he earns a monthly
310
Alternative Childcare Guidelines
115
income of 1198.50 Birr. It was possible to establish that the would-be adoptive parent earns his
livelihood from the 400 US Dollars his child dispatches to him.
The Court is required to ensure that the adoption agreement is in the best interests of the child as
per Article 194(2) of the Revised Family Code before approving the adoption agreement based
on the evidence presented to it. The 2nd applicant has confirmed that he committed to the
adoption agreement not because he is unable to raise the child himself; instead it is because the
1st applicant happens to be the grandfather of the child and asked to raise the child. It is also
possible to establish that the party who aspires to be the adoptive parent of the child is not
himself leading his livelihood from the income he derives instead he is dependent upon the
support of another. Therefore, as the 2nd applicant has the means and ability to raise the child and
since the approval of the adoption agreement is not in the best interests of the child, the court has
rejected the adoption agreement concluded between the parties on December 6, 2006.
Similarly, File No. 98033, the issue of rejection of a petition against the decision of the Court
Revoking of Court-Approved Adoption Agreement was entertained. The decision was made on
November 22, 2007. The petitioner submitted a pleading dated on October 8, 2007 stating that
the respondent has concluded an adoption agreement on August 14, 1998. Upon the conclusion
of the adoption agreement, the petitioner took the child of the respondent with him. He further
stated that the adoption agreement has also been approved by a court of law. Regardless of this,
the petitioner complained that after the adoption of the agreement, the respondent has not
provided with any support and assistance. He therefore, applied for the court to revoke the
approved adoption agreement.
The court has framed the issue whether or not court-approved adoption agreement is subject to
revocation.
Article 194(2) of the Revised Family Code affirms that the principal reason behind the
conclusion of adoption agreements is the best interests of the child to be adopted. Therefore, the
interests of the adoptive parent cannot be given more or even equal weight as compared to the
best interests of the child.
As per Article 195(2) of the Revised Family Code, adoption agreement will be revoked only if
the adoptive parent has treated the adopted child adversely thereby jeopardizing his or her future
116
full development. Therefore, since the application of the adoptive parent for the revocation of the
adoption agreement is not based upon the best interests of the child rather her own interests, the
court has rejected her application.
Similar issues were also discussed in Cassation File No. 44101. The decision in this case was
rendered on March 3, 2010. The case concerns the procedure concerning the revocation of
adoption agreement. Berhan Hiwot Children and Family Support Organization instituted a
lawsuit against the present respondents in the Federal First Instance Court. The present
respondents sought to adopt child Tulu. However, the respondents changed their minds
concerning the adoption of the child while the present applicant took the child from Berhan
Hiwot Children and Family Support Organization and was facilitating the adoption by ensuring
compliance with formalities thereof. The respondents also dispatched a written confirmation
stating that they do not want to adopt the child. However, the court approved the adoption due to
the fact that their written submission indicating withdrawal of their request did not reach the
court. The applicant informed the respondents that the court has already approved the adoption
agreement. However, the respondents maintained their position not to proceed with the adoption
of child Tulu. Consequently, the child was forced to stay in the temporary home of the petitioner.
Thus, the petitioner submitted an application for the court to revoke the judgment approving the
adoption agreement based on the Revised Family Code invoking that the acts of the respondents
puts the life and future development of the child in grave jeopardy. However, the Federal First
Instance Court rejected the application stating that there is no evidence supporting the claim that
the act of the respondents puts the life and development of the child in jeopardy. Though the
petitioner took appeal from the judgment of the court, the Federal High Court also confirmed the
judgment of the lower court. The petition was then submitted to the Cassation Bench of the
Federal Supreme Court so as to obtain the reversal of these decisions.
The counsel of the petitioner has outlined the reasons as to why there is a fundamental error of
judgment in the decisions of the lower courts. The counsel has explained in his submissions that
the decision of the Federal High Court not to revoke the adoption agreement is inaccurate in
view of the fact that the representative of the respondents appeared in person and told the court
that the respondents do not have any opposition towards the request to revoke the adoption
117
agreement approved by the court. The Cassation Bench of the Federal Supreme Court decided to
entertain the case ex parte since the respondents did not appear in person despite the fact that
they were summoned through notices publicized in newspaper.
Article 195(1) of the Revised Family Code clearly established the principle that adoption
agreement will not be subject to revocation once approved by a court of law. Article 195(2) of
the same Code has specified the grounds for revocation of adoption agreements. The
commentary of the relevant provision shows that it is no longer necessary to maintain the
adoption agreement intact if there is proof indicating that the adoptive parents are treating the
child in a manner contrary to his child and human right entitlements and his or her best interests.
The stipulation of this protection in the law is important to ensure the observance of the best
interests of the adopted child. The reading of the law makes it clear revocation of adoption
agreements may be pursued in case where there is proof showing that the life, treatment and
future of the adopted child have been jeopardized. The court is expected to duly consider the
ramifications of the revocation of the adoption agreement on the child.
The legal protection of adoption arrangements is meant to ensure the best interests of the child.
Various international and regional treaties have been ratified and are being implemented. In
particular, the Convention on the Rights of the Child and the African Charter on the Rights and
Welfare of the child deserve special mention. Ethiopia ratified the Convention on the Rights of
the Child (CRC) on December 9, 1991311 by virtue of Proclamation 10/1992. Ethiopia also
ratified the African Charter on the Rights and Welfare of the Child (ACRWC) on October 2,
2002. In addition to these, the Revised Family Code and other regional family laws in operation.
These laws reflect the principles enshrined in international and regional treaties. One of the
principal treaties mentioned in these laws is taking into account the best interests of the child as
the primary consideration in deciding matters concerning children.
311
Ministry of Labor and Social Affairs, Ethiopia’s National Plan of Action for Children (2003‐2010 and beyond),
2004, Addis Ababa, p. i
118
Article 9(4) of the FDRE Constitution has made treaties ratified by Ethiopia an integral part of
the law of the land. Moreover, it has clearly laid down the stipulation that the domestic laws of
the country should be construed in the light of international human rights treaties ratified by the
country. Moreover, the Constitution has specifically devoted Article 36 to provide the rights of
children. Article 36(2) affirms that the primary consideration shall be the best interests of the
child in all actions concerning children undertaken by private and public institutions, courts of
law, administrative authorities or legislative bodies. Laws and policies promulgated to entrench
this doctrine are also believed to advance the objective of the best interests of the child.
The fact that adoption is one of the issues considered to relate to the rights and welfare of
children is indisputable. Moreover, Article 36(5) of the FDRE Constitution affirms that the state
shall accord special protection to orphans and shall encourage the establishment of institutions
which ensure and promote their adoption and advance their welfare, and education. All these
indicate that matters related to adoption must be viewed from the perspective of constitutional
principle, the Convention on the Rights of the Child, the Revised Family Code and other relevant
laws. This court has also issued several binding decisions based on the principle of the best
interest of the child as the primary consideration including in file numbers 23632, 35710 and
many others.
The petitioner in the case at hand has explained the respondents have declined to take the child
despite the fact that the adoption agreement has been approved. Thus, the child is obliged to stay
in the temporary institution of the petitioner which is not equipped to provide all the materials
necessary for the children. It has not also been possible to hand over the child for adoption to
other parents. The petitioner argued that the act of the respondents has put the life and
development of the child in jeopardy. The lower courts could not accept the request for the
revocation of the adoption agreement since the grounds mentioned in Article 195(2) of the
Revised Family Code have not been established.
It is possible to understand from the reading of Articles 195 and Article 196 of the Revised
Family Code that the adoption agreement should not be maintained if there is proof that the
adoptive parent has treated the child in a manner contrary to the rights of children. It is possible
for an interested party to demand the revocation of the adoption agreement in such a case. Article
195 of the Revised Family Code provides that the court may revoke the adoption in case where
119
the adopter, instead of looking after the adopted child as his own child, handles him as a slave, or
in conditions resembling slavery, or makes him engage in immoral acts for his gain, or handles
him in any other manner that is detrimental to his future. The lower courts could not have
refused to revoke the adoption in view of the fact that the representative of the respondent
explained that we are not opposed to the revocation since we have already expressed the same
even before the approval of the adoption by the Federal First Instance Court. It is therefore
difficult to conclude that this is not going to pose problems for the child in the future. Thus,
since the judgments of the lower courts harms the development of the child it suffers from a
fundamental error of law. Consequently, the Cassation Bench has quashed the judgments of the
lower courts.
In a different case, a similar issue arose in cassation File No. 52691. The decision was rendered on April
30, 2010. The case relates a request regarding the revocation of adoption agreement. The
petitioners sought the revocation of the adoption agreement because the child whose adoption
agreement was approved by the Federal First Instance Court was diagnosed for suffering from
mental development retardation. Consequently, the adopters have been unwilling to take the
child. However, the Court noted that adoption agreement once approved cannot be revoked in
principle as stated under Article 195(1) of the Revised Family Code. Moreover, the Court noted
that adoption may be revoked only Article 195(2) of the Revised Family Code exceptional
grounds for the revocation of adoption agreement. Article 195(2) of the Revised Family Code
provides that the court may revoke the adoption in case where the adopter, instead of looking
after the adopted child as his own child, handles him as a slave, or in conditions resembling
slavery, or makes him engage in immoral acts for his gain, or handles him in any other manner
that is detrimental to his or her future. The Federal First Instance Court rejected the request for
the revocation of the adoption agreement since the grounds invoked do not fall within the ambit
of Article 195(2). The Federal High Court also dismissed the appeal of the petitioners over the
matter confirming the judgment of the lower court.
The petition is presented to the Cassation Bench of the Federal Supreme Court against the
backdrop f the case as discussed above. In their petition, the petitioners explained that they came
to know the fact that the child suffers from mental development retardation after the approval of
the adoption by the court. They maintained that they would not have agreed to the adoption if
120
they had knowledge of the fact that the child suffers from mental development retardation. They
went to state that if they are forced to take the child despite his condition, he would be subject to
significant harm since they do not have the means to be able to cover the costs needed for is
upkeep of his health. Thus, they sought the revocation of the adoption since the decisions of the
lower courts are incompatible with Article 195(2) of the Revised Family Code. The Cassation
Bench of the Federal Supreme Court decided to consider the matter in the light of Article 36 of
the FDRE constitution which lays down the principle of the best interests of the child as the
primary consideration in decoding matters affecting children.
Article 195(1) of the Revised Family Code stipulates that, in principle, adoption agreement
cannot be revoked. Article 195(2) of the Revised Family Code outlines the exceptional situations
which warrant the revocation of adoption agreements. Article 195(2) of the Revised Family Code
provides that the court may revoke the adoption in case where the adopter, instead of looking
after the adopted child as his own child, handles him as a slave, or in conditions resembling
slavery, or makes him engage in immoral acts for his gain, or handles him in any other manner
that is detrimental to his or her future. The phrase “in any other manner that is detrimental to his
or her future” calls for interpretation. The court has already rendered interpretation of this
phraseology in Cassation File No. 44101.
Accordingly, this stipulation connotes that there is no point in maintaining the adoption
agreement if there is situations that the adoptive parent has treated the child in a manner contrary
to the rights of children and his or her best interests. This is also indicated in the commentary of
the Revised Family Code. The stipulation of this protection in the law for the institution of
adoption is important to ensure the observance of the best interests of the adopted child. Article
36(2) affirms that the primary consideration shall be the best interests of the child in all actions
concerning children undertaken by private and public institutions, courts of law, administrative
authorities or legislative bodies. Article 36(5) of the FDRE Constitution also affirms that the
state shall accord special protection to orphans and shall encourage the establishment of
institutions which ensure and promote their adoption and advance their welfare, and education.
All the aforementioned considerations indicate that issues relating to adoption must be dealt with
carefully and that care caution must be exercised in the interpretation of the relevant provisions.
Therefore, it is possible to seek revocation of the adoption not only in case where harm is harm
121
done to the life and treatment of the child at present, but also if there is a likelihood of the same
harm happening to the child in the future.
In the case at hand, the petitioners sought revocation of the adoption due to the fact that the child
adopted was diagnosed for mental development retardation after the approval of the adoption by
the court. The petitioners made it clear that they intended to adopt a healthy child and they do not
have the financial means to be able to cover the cost required to meet the health demands of the
present child. It has not been confirmed that the adopters have sufficient means to meet the costs
for the treatment of the child and have undertaken to adopt the child with full knowledge of the
implications. On the contrary, the adopters are expressing their fear that significant harm would
materialize to the child’s future if they are compelled to take the child. The law permits and
provides legal protection to adoption with a view to ensure the best interests of the child as stated
above. If the continuation of the adoption is proved to entail harm to the child in the future the
adoption should be subject to revocation. The law does not allow the revocation of the adoption
not only in case where it is proved that harm would materialize to the child in the future. In view
of the fact that the adopters have expressed their inability to take the child and raise him and their
assertion that harm would materialize to the child if they are compelled to take him, maintaining
the adoption amounts to jeopardizing the life of the child. Thus, the decisions of the lower courts
that the adoption agreement will not be subject to revocation do not take into account the
aforementioned provisions of the law and constitutes a fundamental error of law.
5.9. Child’s Right to Periodic Review of Treatment

Article 25 of the CRC stipulates the right of children to periodic review of treatment. It
underlines the need for periodic review of treatment and situation of children placed by the
authorities for their care, protection or treatment of their health. The placements envisaged in this
provision include placement in foster families or institutions, adoption, children’s homes, refugee
camps, homes for children with disabilities, sick or mentally ill children, children in residential
schools, children deprived of their liberty, children in rehabilitative care and other placements.312
In recent times, there is growing understanding of the potential harm to children of adults
working in positions of trust. As a result, attention has been shifted to how agencies and
312
122
organizations working with and for children ensure that the children they come in to contact are
kept safe from harm.313 This has led to the adoption, by many agencies and organizations
working with and for children, of policies and procedures meant to ensure the protection of
children from harm.314 At the same, there are also a range of organizations which have not yet
built protection measures in to their work. In addition, those who have done so are facing
challenges of ensuring that their agencies and organizations are child safe.
However, Article 25 does not extend to placements arranged privately by parents. Thus, private
arrangements in a family environment whereby the child is looked after on an ongoing or
indefinite basis by relatives or friends (informal kinship care) are not included within the scope
of Article 25. Article 25 is closely related to Article 3(3) of the CRC, which requires states
parties shall ensure that the institutions, services and facilities responsible for the care or
protection of children shall conform to the standards established by competent authorities.
The importance of Article 25 on periodic review of treatment lies in the fact that it constitutes a
safeguard against abuse by the State, one of the most serious forms of child abuse. Regulations
meant for periodic review of treatment are also useful for developing standards for professionals
working and coming into contact with children.
The general requirement of establishing standards and ensuring their observance by those
concerned enunciated in this provision of the Convention is echoed in several other provisions
which deal with particular services. For example, Article 18(2) and (3) calls for the establishment
of standards and their observance for the care of children. Article 20 imposes the same
requirement in the case of alternative care for children deprived of family environment. The
requirement is also enshrined under Article 23 of the Convention in relation to care and
protection for children with disabilities. Moreover, the requirement is also reflected in
connection with rehabilitative and institutional care for children in contact with the law in Article
39 and 40 respectively.
The standards on institutions, services and facilities are required to comply with all the
provisions of the Convention on the Rights of the Child. More importantly, these standards on
313
314
123
institutions, services and facilities must be anchored on the four pillar principles of non-
discrimination, the best interests of the child, the right to survival and development of the child
and respect for the views of the child. In view of the fundamental importance of these four
guiding principles of the Convention in the formulation of standards on institutions, services and
facilities and competent supervision, a brief exposition of the principles is in order. The
Committee notes that early childhood professionals need to be provided with thorough
preparation, ongoing training and adequate remuneration.315
Likewise, in its General Comment No.7, the Committee on the Rights of the Child made the
following observations concertinaing institutions, services and facilities as follows:
“States Parties must ensure that the institutions, services and facilities, responsible for
early childhood conform to quality standards, particularly in the areas of health and
safety, and staff possess the appropriate psychological qualities and are suitable,
sufficiently numerous and well trained. Provision of services appropriate to the
circumstances, age and individuality of young children requires that all staff be trained to
work with this age group. Work with young children should be socially valued and
properly paid, in order to attract a highly qualified workforce, in order to attract a highly
qualified workforce, men as well as women. It is essential that they have sound, up-to-
date theoretical and practical understanding about children’s rights and development …;
that they adopt appropriate child-centered care practices, curricula and pedagogies, and
that they have access to specialist professional resources and support, including a
supervisory and monitoring system for public and private programmes, institutions and
services.”316
The Convention on the Rights of the Child requires non-State “for-profit” and for “non-profit”
service providers to observe and respect the principles and provisions of the Convention.317 The
Committee further reminds the States Parties that they have an obligation to monitor and regulate
the quality of service provision to ensure that children’s rights are protected and their best
interests served.318 The Committee on the Rights of the Child has also called for reform,
including legal reform of the institutional system by the establishment of standards for condition
in institutions, and their regular inspection, in particular by reinforcing the roles and powers of
independent inspection mechanisms and ensuring their right to inspect foster homes and public
315
316
Committee on the Rights of the Child, General Comment No.7, 2005, CRC/GC/7/Rev. 1, para. 23
317
Committee on the Rights of the Child, General Comment No.7, 2005, CRC/GC/7/Rev. 1, para. 23.
318
Committee on the Rights of the Child, General Comment No.7, 2005, CRC/GC/7/Rev. 1, para. 23.
124
institutions without advance notice.319 The implementation of Article 25 requires the existence of
effective complaint mechanism.320
5.10. Child’s Right to Protection from all Forms of Violence

Article 19 of the CRC concerns itself with the right of children to protection from all forms of
violence. It prohibits physical or mental violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual abuse. The scope of Article 19 is broader in that it
requires protection from all forms of physical or mental violence while in the care of parents or
others.321 The provision is also construed to include the prohibition of corporal punishment and
other cruel or degrading punishment or treatment of children.322 It emphasizes the right of
children to full respect for their dignity and physical and personal integrity.323 The provision is
closely linked with the right to life, maximum survival and development.324
Article 19(1) requires states to take a myriad of measures to ensure the protection of children
from all forms of violence including legislative, administrative, social and educational measures.
Article 19 (2) goes on to state that such protective measures should include effective procedures
for the establishment of social programmes to provide adequate support for the child and for
those who have the care of the child, as well as for other forms of prevention and for
identification, reporting, referral, investigation, treatment and follow-up of instances of child
maltreatment.
Legislation, which apologizes or authorizes for corporal punishment is not compatible with the
CRC and ACRWC. “Mental violence” includes humiliation, harassment, verbal abuse, the
effects of isolation and other practices that cause or may result in psychological harm.325 A
number of other provisions in the CRC also address violence and exploitation against children.
Article 17 of the CRC provides for protection of children from harmful information. Article
24(3) of the CRC provides for protection of children from harmful traditional practices
319
320
Hodgkin and Newell (n 3)
321
322
General Comment No. 8
323
324
325
125
prejudicial to their health. Article 28(3) of the CRC requires school disciple to be consistent with
the child’s human dignity. Article 34 of the CRC provides for protection of children from sexual
exploitation and sexual abuse including organized abuse and involvement of children in
prostitution and pornography. Article 35 of the CRC addresses protection of children from sale,
trafficking and abduction. Article 36 prohibits other forms of exploitation. Article 37 underlines
protection of children from torture and other cruel, inhuman or degrading treatment or
punishment. Article 38 stresses the need to protect children from the adverse effects of armed
conflict on children.
Article 19 of the CRC also prohibits treatment causing “injury or abuse, neglect or negligent
treatment”. Neglect may be intentional or unintentional as in the case of inability on the part of
the family, community or the State to provide for the child. The term “negligent treatment” in the
provision is closely linked with accidents to children.326 This notion is also dealt with under
Article 24(2)(e) of the CRC. Regardless of the fact that the primary responsibility rests with
parents, it is also incumbent upon the state to take action to prevent accidents.
The prohibition of maltreatment or exploitation including sexual abuse in Article 19(1) shows
the comprehensive nature of the Article.327 The term “maltreatment or exploitation” embodies
any other adverse treatment not necessarily involving physical or mental violence or defined as
abuse.328
Article 19 prohibits violence against children while they are in the care of parent(s), legal
guardian(s), or any other person who has the care of the child. The scope of application of
Article 19 extends to that of the family home and within other family-like situations including
foster care, day care, schools as well as institutional care. The risk of violence is heightened in
particular in regard to certain categories of children including children with disabilities, children
infected or affected by HIV/AIDS, unaccompanied or separated children, etc.
Articles 19, 28(2) and Article 37 of the CRC affirm the right of children to protection from
corporal punishment and other cruel or degrading forms of punishment. Physical violence has
been defined by the Committee on the Rights of the Child in its General Comment No 8 as “any
326
327
328
126
punishment in which physical force is used and intended to cause some degree of pain or
discomfort, however light” whereas mental violence is said to include humiliation, harassment,
verbal abuse, the effects of isolation and other practices that cause or may result in psychological
harm.329 Illustrations of physical punishment include hitting (smacking, slapping, spanking)
children, with the hand or with an implement such as a whip, stick, belt, shoe, wooden spoon,
etc.330 Physical punishment may also involve kicking, shaking or throwing children, scratching,
pinching, burning, scalding or forced ingestion. Corporal punishment is deemed to be degrading.
In addition, non-physical forms of punishment including belittling treatment, humiliating,
denigrating, scapegoating, threatening, scaring and ridiculing may also amount to degrading
treatment.331
States are also required to prohibit and eliminate all corporal punishment and all other cruel or
degrading forms of punishment of children.332 Article 36(1) (e) of the FDRE Constitution also
affirms the right of children to be free from corporal punishment or cruel and inhumane
treatment.333 This provision prohibits corporal punishment in schools and other institutions for
the care of children. The phrase other institutions for the care of children includes all forms of
alternative care and the justice system.334
The issue of violence against children and child abuse is particularly dealt with under the
Criminal Code. Evidently, the protection of children from abuse and violence is one of the main
objectives of the Criminal Code. The Code contains various provisions pertaining to the
protection of children from violence. The Criminal Code (2005) prohibits homicide, domestic
violence, violence against children including abduction (article 587-590); harmful traditional
practices (articles 561 – 563 and 567 – 570); female genital mutilation (articles 565 and 566),
early marriage (article 649), and bigamy (article 650); rape and sexual outrages (articles 620 –
628); trafficking in women and children (articles 597 and 635); forced prostitution (article 634);
329
UN Committee on the Rights of the Child (CRC), CRC General Comment No. 8 (2006): The Right of the Child to Protection
from Corporal Punishment and Other Cruel or Degrading Forms of Punishment (Arts. 19; 28, Para. 2; and 37, inter alia), 2 March
2007, CRC/C/GC/8, available at: http://www.unhcr.org/refworld/docid/460bc7772.html [accessed 13 September 2010]
330
Committee on the Rights of the Child, General Comment No.8
331
332
Committee on the Rights of the Child, General Comment No.8,
333
334
127
physical violence within marriage or in an irregular union (article 564); child pornography
(article 640 (2)(c)) and the like.
Article 576 of the Criminal Code contains provisions concerning the right to protection against
child maltreatment. Article 576(1) outlines various points which fall within the ambit of child
maltreatment. These include ill-treatment, neglect and over tasking. The provision states that
such acts will be punishable with simple imprisonment not exceeding three months. Article
576(2) goes on to state that the punishment shall be simple imprisonment for not less than one
year in case where the crime causes grave injury to the health, well-being, education or physical
or psychological development of the child. The same provision also envisages the deprivation of
family rights of the offender as an additional sanction.
Article 576(3) of the Criminal Code stipulates that the taking of disciplinary measures by parents
or other persons having similar responsibilities for the purpose of proper upbringing does not fall
within the ambit of child maltreatment.335 This sub-article also makes cross reference to Article
68 of the Criminal Code, which is found in the section dealing with lawful and justifiable acts
and excuses. Acts reasonably done in exercising the right of correction are among acts which are
declared to be required or authorized by the law within the meaning of Article 68(b) of the
Criminal Code. Article 2039(c) of the Civil Code provides that no offence shall be deemed to
have been committed where the act consists in reasonable corporal punishment inflicted by the
defendant on his child, ward, pupil, or servant.
The reading of these provisions in the Criminal and Civil Code indicates that corporal
punishment is not entirely prohibited under Ethiopian laws. Consequently, the Committee on the
Rights of the Child has called upon Ethiopia to revise its legislation on this point. The permission
of “reasonable chastisement” by the Criminal and Civil Codes is contrary to the FDRE
Constitution. These provisions are also contrary to the Convention on the Rights of the Child and
African Charter on the Rights and Welfare of the Child which do not allow any degree of
corporal punishment, no matter light.
The National Criminal Justice Policy issued in 2011 has included various changes to address a
number of gaps observed in the criminal justice systems and ensure compatibility with the
335
128
provisions of the CRC and ACRWC. The policy devoted a separate section for care and special
handling of victims of crimes and children in conflict with the law. For example, section 6 of the
policy focuses on the circumstances of vulnerable children, the rights of victims to participate in
criminal investigation and procedures for charging and trial, legal protection and handling of
children in conflict with the law, alternative remedial measures and establishment of special units
for children. Most of these provisions provide protection to children who are victims of FGM,
early marriage, child labor, neglect and abuse.336
Following the adoption of the National Criminal Justice Policy, the Criminal Procedure Code
(CPC) was revised and presented to the Federal Parliament for deliberation and enactment. The
revised CPC incorporated significant measures to ensure children’s access to protective and child
friendly justice system. These include measures such as application of diversionary methods and
setting up child friendly structures at various levels in the judicial process in line with
international principles and standards.337
Ministry of Education (MOE’s) Educational leadership, Organization, Community Participation

and Finance Guideline states that discipline in an educational establishment should be
maintained on the basis of respect for the dignity of the students. Draft guidelines for
investigating and prosecuting crimes committed against children and for providing psychological
counseling were developed by the Ministry of Justice (MOJ).338
The National Coordinating Body for Multi-Sectored and Integrated Response to Violence against
Women and Children was launched in 2008 and focuses on the management of child abuse.
Child Protection Units (CPUs) have been established in all ten sub-city police stations in Addis
Ababa by the Addis Ababa Police Commission under a pilot project. The Centre for the
Investigation and Prosecution of violence against women and children has been established
within the compound of the Lideta Division Federal First Instance Court in Addis Ababa. The
Federal First Instance Court (FFIC) has also established a victim-friendly bench that entertains
cases involving victims of violence against women (VAW) using a closed-circuit TV to protect
child victims from facing the perpetrator and public while testifying in court. The Federal First
336
337
338
129
Instance Court (FFIC) has also established a family court to adjudicate, among other cases,
family disputes affecting the best interests of children, and custody, and adoption proceedings.339
A Manual on Investigative Interview is formulated by the Child Justice Project Office of the
Federal Supreme Court. A Child Justice Guideline for dealing with witness and surviving
children in the Justice System is developed by the Child Justice Project Office of the Federal
Supreme Court.340
Apart from the legal and institutional framework for the prevention of violence against children,
the consideration of case law is instructive to shade light as to the jurisprudence of courts in this
regard. The following discussion focuses on some illustrious cases demonstrating the
jurisprudence.
The first case to be considered here is the judgment of the court on 31 January 2007 in its File
No. 75575.341 The case relates to the commission of acts of sodomy on the 9 year old boy by the
defendant. In this case, the prosecutor submitted a charge dated September 15, 2006 against the
defendant. The defendant is charged with the contravention of Article 631(1) (b) of the Criminal
Code. The defendant is charged with committing acts of homosexual on a 9 year old boy on
August 23, 2006. The defendant was served with the charge which was read to him before the
court. The defendant pleaded not guilty contending that he did not do the acts indicated in the
charge. The court summoned and heard the testimony of three prosecution witnesses. Moreover,
documentary evidence was adduced from of the Family Planning Department and the Medical
Faculty of Addis Ababa University.
The court gave a ruling requiring the defendant to defend himself as the prosecution has made out a prima
facie case against him. The court heard the testimony of two defence witnesses.
The court examined the charge along with the evidence presented as follows. The medical
evidence adduced by the Family Planning Department states that there no physical injury is
339
340
341
File No 75575 በፌዴራል ጠቅላይ ፍርድ ቤት የሕፃናትና ወጣቶች ፍትህ ፕሮጀክት ጽ/ቤት፣ ሕፃናትን
የተመለከቱ የተመረጡ የፍርድ ቤት ውሳኔዎች (የካቲት 2002 E.C.)
130
sustained by the boy. However, the court reckons that there may not be any visible physical
injury in such cases. On the other hand, the medical evidence presented from Medical Faculty of
Addis Ababa University states that the boy was brought to the hospital and was diagnosed. The
diagnosis revealed that there is infection nearby the anus of the boy. The medical evidence
further confirmed that the infection has been treated and has healed. The court took note of the
fact that homosexual acts may lead to infection without any trace of physical injury. Thus, the
court stated that this supports the contention of the prosecutor. The court did not find the
testimony of the defence witnesses convincing. Therefore, the court found the defendant guilty
as charged.
The defendant was asked if he has any grounds for mitigation of sentencing. The court noted that
the count the defendant is charged with carries a penalty of rigorous imprisonment varying from
15 years to 25 years. The defendant is found guilty of performing homosexual acts to a 9 year
old boy.
The court has sentenced the defendant for 16 rigorous imprisonment based on Article 88 of the
Criminal Code. Furthermore, the court has also given orders suspending the civic rights of the
defendant including his right to vote and be elected.
Another relevant case is the commission of Sexual outrages committed against infants. This case
was entertained in File No. 85118.342 The final judgment was rendered on March 21, 2007. The
prosecutor submitted a charge dated March 20, 2007 against the defendant who is accused of
rape in violation of Article 627/1// and (5) of the Criminal Code. The charge reads that the
defendant performed sexual intercourse on a 9 year old girl. The charge states that the defendant
took the girl from her bed, embraced her, put her on his thigh and penetrated her. The prosecutor
also presented evidence including witnesses, the statement the defendant gave under Article 35
of the Criminal Procedure Code before the court and medical evidence. The defendant pleaded
not guilty. However, the court confirmed that the testimony of the prosecution witnesses and
documentary evidence presented prove the commission of the act by the defendant beyond
File Number 85118 (as reported in በፌዴራል ጠቅላይ ፍርድ ቤት የሕፃናትና ወጣቶች ፍትህ ፕሮጀክት
342
ጽ/ቤት፣ ሕፃናትን የተመለከቱ የተመረጡ የፍርድ ቤት ውሳኔዎች (የካቲት 2002 E.C.)
131
reasonable doubt. The defendant stated that he has no defense rebuttal evidence. The court found
the defendant guilty of the crime based on the various items of evidence presented to it.
The court noted that the provision of the Criminal code the defendant is accused of violating
pertaining to rape on a minor who has not attained the age of thirteen i.e. Article 627(1) entails a
penalty of rigorous imprisonment from fifteen years to twenty five years. The court went on to
state that the punishment shall be rigorous imprisonment for life if the sexual outrage has caused
grave bodily or mental injury to or death of the victim According to Article 627(5) of the
Criminal Code. The court made it clear the medical evidence presented demonstrates that the
harm done to the child is grave bodily injury. The court recounted that the criminal acted with
treachery, perfidy, a base motive and a deliberate intent to injure as provided under Article 84(1)
(a) of the Criminal Code. The court is convinced that the defendant should receive penalty
commensurate to his cruel and inhuman act. Moreover, the court observed that there are not
migrating grounds put forward by the defendant. The court decided life imprisonment on the
defendant based on Article 88 of the Criminal Code as to penalize the offender for his deeds and
to deter others from doing the same. Moreover, the court also deprived the civic rights of the
defendant to be a witness, to vote and stand for election based on Article 124 of the Criminal
Code.
Another involving the issue of Rape and Homosexual Acts is (File No. 80596). The judgment
was rendered on January 1, 2007. The prosecutor submitted a charge dated December 29, 2006
against the defendant on three counts. In the first count, the defendant is charged with acts of
sexual outrage in violation of Article 627(1) of the Criminal Code.343 The crime took place on
November 14, 2006 at a place called Amist Kilo Kindergarten. The defendant, who had been
serving as a guard of a kindergarten, allowed the three year old girl into the premises of the
school at 7:40 A.M. He then took off her clothes and performed acts of sexual outrage
deflowering the girl. In the second count, the defendant is accused of committing homosexual
acts in violation of Article 631(1) (b) against a five year old. Thirdly, the defendant is accused of
File No. 80596, በፌዴራል ጠቅላይ ፍርድ ቤት የሕፃናትና ወጣቶች ፍትህ ፕሮጀክት ጽ/ቤት፣ ሕፃናትን
343
የተመለከቱ የተመረጡ የፍርድ ቤት ውሳኔዎች (የካቲት 2002 E.C.)
132
committing acts corresponding to the sexual act or any other indecent act upon a three year old
girl in violation of Article 627(3) of the Criminal Code.
The defendant pleaded not guilty. The prosecutor presented six witnesses and medical evidence.
The court heard the testimony of the witnesses and also examined he medical evidence presented
to it. Both private complaints also gave testimony corresponding to the charges leveled against
the accused and identified him in the court room. The third prosecutor gave testimony that
testified that the children were taken to the school earlier before others came and left for job. The
court found the defence evidence of the defendant contradictory and unconvincing. The court
found the defendant guilty as charged. The court noted that the crimes committed by the
defendant are concurrent within the meaning of Article 60 (a) of the Criminal Code. The court
stated that this is a ground of aggravation based on Article 85 of the Criminal Code. Thus, the
court noted that the sentencing is to be guided by Article 184(1)(a) of the Criminal Code. The
court also took note of the fact that the crime is committed by the defendant against children
entrusted to his custody and care and dependant on him within the meaning of Article 627(4)(a)
of the Criminal Code. The court asserted that there are aggravating grounds against the defendant
in both the general as well as the special part of the Criminal Code. The court further noted that
there is no ground that may mitigate the sentencing on the part of the defendant. The court
sentenced the defendant to 25 years rigorous imprisonment. Moreover, the court also suspended
the civic rights of the defendant to be a witness, to vote and stand for election for five years.
133
CHAPTER SIX
BASIC HEALTH AND WELFARE
Introduction
This chapter deals with the basic health and welfare entitlements of children under the
Convention on the Rights of the Child and the African Charter on the Rights of the Child. In
particular, the Chapter gives special emphasis to the rights of children with disabilities. In this
connection, the Unit examines the rights of children in the Convention on the Rights of Persons
with Disabilities (CRPD). Thus, the Chapter looks into the relationship between Article 23 of the
CRC and Article 7 of the CRPD. In addition, the Chapter explores the rights of children to health
and health services, the right to underlying determinants of health, protection against harmful
traditional practices, the right of the child to benefit from social security, the right of the child to
an adequate standard of living. Moreover, the Chapter also examines the manner how these
entitlements are reflected in Ethiopian legislations, policy documents and strategies.
6.1. Rights of Children with Disabilities

Needless to say, all the rights of children enshrined under the Convention on the Rights of the Child
and the African Charter on the Rights and Welfare of the Child apply to children with disabilities.
The four general principles and all the rights enshrined in the CRC are indivisible and interrelated.
Furthermore, Article 2 of the Convention on the Rights of the Child requires States to ensure and
respect all the rights set forth in the Convention to children with disabilities in their jurisdiction. The
same article also prohibits discrimination on the basis of disability.
Article 23 of the Convention on the Rights of the Child requires State Parties to ensure and respect
all the rights set forth in the Convention on the Rights of the Child to children with disabilities
within their jurisdiction. Article 23 further emphasizes on the need to provide the child with
conditions for living that promote self-reliance and facilitate active participation in the community.
Paragraphs 2 and 3 of Article 23 of the Convention stress that children with disabilities are entitled
to special care in such a way so as to ensure effective access to various services in a manner
conducive to the child’s achieving the fullest possible social integration and individual
development. Article 13 of the African Charter on the Rights and Welfare of the child also stresses
the same protection to children with disabilities.
134
In December 2006 the United Nations General Assembly adopted the Convention on the Rights
of Persons with Disabilities. This Convention enshrines civil, political, social, economic and
cultural rights. The Convention calls up on States Parties to abolish legislation, customs and
practices that discriminate against children with disabilities. The adoption of the Convention
marks a paradigm shift from viewing persons with disabilities as objects of charity to considering
them as individuals with human rights. The Convention takes note of the fact that there are
linguistic, social and cultural barriers which prevent the full and effective participation of
persons with disabilities in society on an equal basis with others. The Convention calls up on
States Parties to remove such barriers.
Though all provisions embodied in the new Convention on the Rights of Persons with
Disabilities apply to children, the Convention dedicates one provision (i.e. Article 7) to enshrine
the rights of children with disabilities. Ethiopia also ratified the UN Convention on the Rights of
Persons with Disability in 2010. Unlike Article 23 of the Convention on the Rights of the Child
which is primarily focused on addressing the special needs of children with disabilities, Article 7
of the Convention on the Rights of Persons with Disabilities advocates for the realization of their
rights. In particular Article 7 of the Convention requires States Parties344:
 to ensure the enjoyment of all human rights and fundamental freedoms by

children with disabilities on an equal basis with other children;
 to ensure the best interests of children with disabilities is a primary consideration
in deciding matters affecting them;
 and to provide disability and age appropriate assistance to ensure that children
with disabilities are able to realize the right to their express views on all matters
of concern to them and have them taken seriously in accordance with age and
maturity.
 introduce age appropriate measures to ensure that children with disabilities have
access to justice.
 Take measures to provide age sensitive assistance to prevent exploitation,
violence and abuse; age, gender and disability sensitive protection and
344
Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May
2008) A/RES/61106 (CRPD) Article 7
135
rehabilitation services; and child focused legislation to ensure that exploitation,
violence and abuse is identified and investigated.
 Take measures to ensure that children with disabilities are registered immediately
after birth.
 Ensure that children with disabilities are entitled to retain their fertility, thereby
forbidding sterilization.
 Ensure that children with disabilities have equal rights with respect to family life
and States Parties have an obligation to provide services and support to families to
prevent abandonment, concealment and segregation.
 Ensure that children with disabilities are not separated from parents unless this is
in their best interests and never on the basis of disability.
 Ensure that education at all levels must be inclusive and children with disabilities
have an equal entitlement to general education.
Ensure that children with disabilities must be provided with equal access to participation in play,
recreation, and leisure and sporting activities, including in schools.
As per the Central Statistics Agency of Ethiopia, there were 864 218 (1.17%) persons with
disabilities of which 464,202 were male and 400,016 were female out of a total population of
73,750 932 in 2007. Children accounted for 232,585 (126,195 male and 106,390 female).345
Article 25 of the FDRE Constitution provides that all persons are equal before the law and entitled without
discrimination to the equal protection of the law. The Constitution fails short of explicitly protecting children
with disabilities against discrimination, though the phrase ‘other status’ includes disability. Furthermore,
Article 41 of the Constitution provides that the State shall, within available means, allocate resources to
provide rehabilitation and assistance to persons with physical and mental disabilities.
The Ministry of Labour and Social Affairs adopted a national program of action for rehabilitation
of persons with disabilities in 2006/7 with the objective of promoting the full participation and
equal opportunity for persons with disabilities in all spheres of life.346 The national program of
action focuses on prevention of disability, medical, educational and vocational rehabilitation, and
increased accessibility and awareness.347 The Ministry of Education launched "inclusive
345
346
347
136
educational arrangements" in terms of location, social functions at all levels to meet the needs of
children with disabilities.348 The Proclamation to Provide for the Right to Employment of
Persons with Disabilities affirms the right to participate in any suitable job without
discrimination.349 The Building and Construction Code on Barrier-Free Accessibility was
adopted in order to promote the development of barrier-free buildings and integrate persons with
disabilities into community life.350
6.2. Child’s Right to Health and Health Services

Article 24 of the Convention on the Rights of the Child is closely linked with Article 6 of the
CRC which stipulates the right of the child to life, survival and maximum development. The
term “health” is defined as a state of complete physical, mental and social well-being and not
merely the absence of disease or infirmity.351 Article 24(1) assures the right of children to highest
attainable standard of health and to facilities for the treatment of illness and rehabilitation of
health.352 States Parties to the CRC are obligated to ensure that no child is deprived of his or her
right of access to such health care services.
As compared to counterpart provisions in other international human rights instruments, Article

24 of the CRC is distinctive in that it asserts the right of access to health care services and
providing a non-exclusive list of appropriate measures imposed on States Parties.353 The right to
the highest attainable standard of health is not the same as the right to health care. Instead, the
right to health encompasses a myriad of socio-economic factors necessary to lead a healthy life,
and includes the underlying determinants of health such as food and nutrition, housing, access to
safe and potable water and adequate sanitation, safe and healthy working conditions and a
348
349
Proclamation to Provide for the Right to Employment of Persons with Disabilities (Proclamation 568/2008)
350
Ethiopian Building Proclamation (Proclamation 624/2009)
351
352
The right to the highest attainable standard of health is also asserted under Articles 25 and 12 of the (Universal
Declaration of Human Rights (UDHR) and the (International Covenant on Economic, Social and Cultural Rights
(ICESCR) respectively.
353
137
healthy environment.354 Other underlying determinants of health include an adequate supply of
safe food, nutrition and housing and sexual and reproductive health.355
The right to health does not also mean the right to be healthy. The right to health comprises both
freedoms and entitlements. The right comprises freedoms such as the right to control one’s
health and body, including sexual and reproductive freedom, the right to be free from
interference including freedom from torture, non-consensual medical treatment and
experimentation.356 On the other hand, the entitlements embody the right to a system of health
protection providing equality of opportunity for all to enjoy the highest attainable standard of
health.357 An important ramification of the right to health is the participation of the population in
all health-related decision-making at the community, national and international levels.358
Article 24(4) underscores the importance of international cooperation for the full realization of
the right to health and health care services.
Article 24 of the CRC requires states to implement their obligations under the provision to the
maximum extent of their available resources within the framework of international cooperation.
This shows that health rights are of progressive implementation as it is the case with most, if not
all, economic, social and cultural rights. This is also reaffirmed as the article obliges states to
strive to ensure that no child is deprived of his or her right of access to health care services. The
proviso on health rights also promotes and encourages international cooperation with a view to
achieve the full realization of the right. The concept of progressive realization serves as a
flexibility device.359 However, the phrase “progressive realization” must be given meaningful
content. The Convention requires States Parties to move expeditiously and effectively towards
the attainment of the highest standard of health and to take concrete and targeted measures to that
354
Committee on Economic, Social and Cultural Rights, general Comment No.14,2000, “The right to the highest
attainable standard of health HRI/GEN/1/Rev. 8, para. 4, p.87
355
356
357
358
attainable standard of health HRI/GEN/1/Rev. 8, para. 4, p.87 and 88
359
Committee on Economic, Social and Cultural Rights, General Comment No.3, 1990, HRI/GEN/1/Rev. 8, paras. 9
to 11
138
effect. In other words, the phrase “progressive realization” cannot be invoked as an excuse to
justify unwillingness or under-acting to bring about the fulfillment of the right.360
Consequently, it is believed that the right to health entails a minimum core obligation of ensuring
the minimum essential levels of the right.361 The presence of a significant number of people
deprived of essential primary health care in a state triggers the prima facie presumption of failure
to discharge obligations under the provision.362 States Parties are also obliged to monitor and
assess the extent of the realization or otherwise of the right to health and to devise strategies and
programmes for its promotion.363
The cumulative effect of Articles 2 and Article 24 of the CRC conveys the message that there
must not be discrimination in the implementation of health rights. Consequently, State Parties are
required to make sure that children living in poverty, girls, children with disabilities and children
living in rural areas are exercising their health rights to the same extent as other children.364
Article 24(2) sets forth the various measures that States Parties are required to take for the
implementation of the right to health. These include ensuring the provision of necessary medical
assistance and health care to all children with emphasis on the development of primary health
care. The right to the highest attainable standard of health is linked with the rights to adequate
standard of living, education and protection from all forms of physical and mental violence. The
list of measures State Parties are required to take and which as outlined in Article 24(2) are not
exhaustive but illustrative. However, certain measures that States Parties must take have merited
special mention in Article 24(2) due to their particular importance. Thus States are in particular
required to take measures to: -
 Diminish infant and child mortality;
360
to 11
361
to 11
362
363
364
139
 Ensure the provision of necessary medical assistance and health care to all children with
emphasis on the development of primary health care;
 Combat disease and malnutrition, including within the framework of primary health care,
through, inter alia, the application of readily available technology and through the
provision of adequate nutritious foods and clean drinking water, taking into
consideration the dangers and risks of environmental pollution;
 Ensure appropriate parental and postnatal health care for mothers;
 Ensure that all segments of society, in particular, parents and children, are informed have
access to education and are supported in the use of basic knowledge of child health and
nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the
prevention of accidents; and
 Develop preventive health care, guidance for parents, and family planning education and
services.
Ethiopia has undertaken various activities in terms of provision of the required infrastructure and
services for health care of children and has also adopted various laws, policies and strategies for
the implementation of the right to health of children. These include the Health Sector
Development Program (HSDP), the National Nutrition Strategy, and the National Child Survival
and Reproductive Health strategies.365
The National Health Policy is an overarching policy document that gives emphasis to the
fulfillment of the needs of the less privileged rural population. The policy outlines
democratization and decentralization of the health system, development of the preventive and
promotional components of the health service, ensuring access to healthcare for the whole
population, promoting inter-sectoral collaboration, involvement of NGOs, UN agencies and the
private sector and promoting and enhancing national self- reliance in health development by
mobilizing and efficiently utilizing available resources.366
365
Ethiopia’s 4th and 5th Periodic Reports to the United Nations Committee on the Rights of the Child (2006‐
2011),.84
366
Ethiopia’s 4th and 5th Periodic Reports to the United Nations Committee on the Rights of the Child (2006‐2011),
p.84
140
6.3. Access to Underlying Determinants of Health
The right of the child to health and health care cannot be materialized in the absence of the
fulfillment of the underlying determinants of health. Underling determinants of health are
entitlements of the child which are preconditions for the achievement of the highest attainable
standard of health. These underlying determinants of health include potable water and sanitation.
The Right to Water
Potable water is one of the vital underlying determinants of health. The right to water has not
been expressly laid out in the International Bill of Human Rights or other major international
human rights instruments. However, it has been construed as being part and parcel of other rights
enshrined under the International Covenant on Economic, Social and Cultural Rights.
The right to water has been more explicitly and holistically recognized through adoption of the
General Comment No.15 (GC15) of the Committee on Economic, Social and Cultural Rights.
on the Right to Water was adopted by the UN Committee on Economic, Social and Cultural
Rights at its twenty-ninth session in November 2002 (UN Doc. E/C.12/2002/11). The Comment
provides guidelines for State Parties on the interpretation of the right to water under two articles
of the International Covenant on Economic, Social and Cultural Rights - Article 11 (the right to
an adequate standard of living) and Article 12 (the right to health). While GC15 is an official and
legal interpretation of article 11(1) & Article 12 of ICESCR, it is not legally binding as
international conventions and treaties.
The General Comment affirms that ‘the human right to water entitles everyone to sufficient, safe,
acceptable, physically accessible and affordable water for personal and domestic uses’. It notes
that the right to water has been recognized in a wide range of international documents and
reaffirms the fundamental importance of the right stating that: ‘the human right to water is
indispensable for leading a life in human dignity. It is a prerequisite for the realization of other
human rights’.
The Right to Sanitation
GC15 states that “State parties have an obligation to progressively extend safe sanitation
services, particularly to rural and deprived urban areas, taking into account the needs of women
141
and children”. The human right to sanitation requires that States ensure to each person access to
safe, accessible, acceptable and affordable sanitation facilities in or near to their homes and
public institutions (including educational institutions, hospitals and places of work).
The State is required to move as expeditiously as possible towards the full realization of the right
to water and sanitation, using its available resources. It has obligations that are of immediate
effect, such as the obligation of non-discrimination and the obligation to establish concrete and
targeted programs to achieve the full extent of the right to water and sanitation.
Article 90 of the FDRE Constitution provides that policies shall aim to provide all Ethiopians
access to public health and education, clean water, housing, food and social security to the extent
the country’s resources permit. Article 44 of the constitution also states that “all Persons have the
right to clean and healthy environment”
The Government of Ethiopia has established appropriate institutional structures as well as issued
and implemented various policies and strategies to ensure implementation of the constitutional
provision and improve access to water supply and sanitation,.
Development of the Water Resource Management Policy (WRMP), formulation of the national
water sector strategy, the issuance of water resources management proclamation and regulation,
the preparation of Water Sector Development Program (WSDP) and Universal Access Plan, the
issuance of Environmental Pollution Control Proclamation (2002) and Public Health
Proclamation (2000), decentralization of rural water supply responsibilities to Woredas (2004),
and development of National Hygiene and Sanitation Strategy (2006) etc are among the policy
and legal responses that the government has put in place to create enabling environment for the
realization of right to water supply and sanitation.
6.4. Protection against Harmful Traditional Practices

Article 24(3) of the CRC requires States Parties to abolish traditional practices prejudicial and
detrimental to the health of children. The same protection is also mirrored in Article 21 of the
African Charter on the Rights and Welfare of the Child. The provision calls for States Parties to
the African Children’s Charter to discourage any custom, cultural or religious practice affecting
the welfare, dignity, normal growth and development of the child. Article 16 of the FDRE
Constitution stipulates the right to the security of person. Harmful Traditional Practices (HTPs)
142
are contrary to this right since they cause permanent or temporary injuries on the body of the
victims. Article 35(4) of the FDRE Constitution also provides that the state shall enforce the
right of women to eliminate the influences of harmful customs. The provision goes on to state
that laws, customs and practices that oppress or cause bodily or mental harm to women are
prohibited. Article 91(1) of the FDRE Constitution concerns itself with cultural values. The
provision affirms that protection is accorded to cultural values on condition that they are not
detrimental to basic human rights and to the dignity of the human person.
In view of the obligation to eliminate harmful traditional practices, the Criminal Code has
included several provisions to proscribe various forms of HTPs. These provisions in the 2004
Criminal Code mark a break from the previous Penal Code which in effect condoned many
forms of HTPs.
Female Genital Mutilation and Infibulation
Article 565 of the Criminal Code criminalizes female genital mutilation (FGM). It provides that
“whoever circumcises a woman of any age, is punishable with simple imprisonment for not less
than three months, or fine of not less than five hundred Birr.”
Moreover, Article 566 addresses the infibulations of the Female Genitalia. It reads:
1) Whoever infibulates the genitalia of a woman is punishable with rigorous imprisonment

from three years to five years.
2) Where injury to body or health has resulted due to the act proscribed in sub-article (1)
above, subject to the provision of the Criminal Code which provides for a more severe
penalty, the punishment shall be rigorous imprisonment from five years to ten years.
Article 569 provides that persons who are accomplices to the crime as parents, guardians or in
any other capacity are punishable with simple imprisonment not exceeding three months or fine
not exceeding Birr 500.00. Parents or other persons who cooperate with one who commits the act
may also be liable to a penalty not exceeding three months simple imprisonment or fine not
exceeding Birr 500.00.
143
Abduction
Article 35(2) of the FDRE Constitution stipulates that marriage is an arrangement that needs to
be based upon the full and free consent of the future spouses. Article 14(4) of the Revised Family
Code provides that marriage concluded through violence is not valid in the eyes of the law.
Article 587 of the Criminal Code addresses marriage by abduction. Under the Criminal Code,
abduction is a crime irrespective of the conclusion of marriage following the abduction.
Moreover, the abductor is liable to the penalty prescribed for rape in addition to the penalty for
the crime of abduction where the abduction is followed by forced sex. As provided under Article
620. Abduction is punishable by imprisonment ranging from seven to ten years. Article 587
reads as follows:
Article 587 Abduction of Women
1) Whoever with intent to marry a woman abducts her by violence, or commits such an act
after having obtained her consent by intimidation, threat, trickery or deceit, is punishable
with rigorous imprisonment from three years to ten years.
2) Where the act of abduction is accompanied by rape, the perpetrator shall be liable to the
punishment prescribed for rape in this Code.
3) The conclusion of a marriage between the abductor and the abducted subsequent to the
abduction shall not preclude criminal liability.
4) Nothing shall affect the right of the victim to claim compensation under civil law for the
moral and material damage she may have sustained as a result of the abduction.
Early Marriage
Article 35(2) of the Constitution stipulates the principle of the equality of spouses. The Revised
Family Code has fixed the marriageable age to 18 years. Articles 7 and 31 imply that failure to
comply with this marriageable age entails the invalidation of the marriage. This matter has also
been considered in connection with the first Chapter on minimum protective ages.
The 2004 Criminal Code criminalizes early marriage. It reads as follows
144
Article 648 Early Marriages
Whoever concludes marriage with a minor apart from circumstances permitted by relevant
Family Code is punishable with
c. Rigorous imprisonment not exceeding three years, where the age of the victim is thirteen
years or above; or
d. Rigorous imprisonment not exceeding seven years, where the age of the victim is below
thirteen years.
Harmful Traditional Practices in connection with Child Delivery
The 2004 Criminal Code contains various provisions addressing harmful traditional practices
related with child delivery.
Article 561 concerns itself with endangering the lives of pregnant women and children through
harmful traditional practice. Article 561(1) reads:-
(1) “Whoever causes the death of a pregnant or a delivering woman or that of a newly born
child as a result of the application of a harmful traditional practice such as:-
a. Massaging the abdomen of a pregnant woman, or shaking a woman in a prolonged
labor; or
b. Soiling the umbilical cord of a newly-born child with dung or other similar
substances, keeping a newly-born child out of sun or feeding it butter, excising the
uvula of a child or taking out milk teeth or preventing the child from being
vaccinated; or
c. Through the exercise of other traditional practices known by the medical profession
to be harmful, is punishable with fine or simple imprisonment from three months to
one year.
(2) Where the death was caused by negligence, the relevant provision of this Code (Article
543) shall apply.
6.5. Child’s Right to Benefit from Social Security

Article 26 assures of the child’s right to benefit from social security. Article 26(1) provides that
this right includes social insurance. States Parties are required to take the necessary measures to
145
achieve the full realization of the right. It includes financial support for children to be provided
by the State. The right to social security and social insurance is also affirmed under Article 9 of
the International Covenant on Economic, Social and Cultural Rights. The basic elements of
social security include medical care and benefit for families.367
It has been said that parents bear the primary responsibility for upbringing of the child. However,
when parents are unable to provide for children due to failure to secure gainful employment or
due to circumstances beyond their control such as illness or old age, the State is obliged to ensure
that the child is provided with financial support.
This financial support may be provided to the child himself directly or through a responsible
adult.368 States are required to provide such financial support to the maximum extent of their
available resources and within the framework of international cooperation as indicated in Article
4 of the CRC.
Article 41(4) of the FDRE Constitution obligates States Parties to allocate ever increasing
resources to provide to the public health, education and other social services. Article 36(5) of the
Constitution provides that the State shall accord special protection to orphans and shall
encourage the establishment of institutions which ensure and promote their adoption and advance
their welfare, and education. However, this provision can be controversial as a result of its undue
emphasis on institutionalization of children. Institutionalization of children is not a panacea to
the problem of children deprived of family environment as discussed in the relevant section of
the Handbook. Instead, the trend should be towards deinstitutionalization.
Ethiopia has one of the largest numbers of orphans in the world, over five and a half million
according to recent estimates.369 The country has been making efforts to address the problems of
children in need of social security. These include the effort aimed at developing an adequate
policy and regulatory environment. To this effect, Ethiopia is currently drafting its own Social
Protection Policy. The policy framework aims to address and respond to social problems with
367
ILO Social Security (Minimum Standards) (No. 102)
368
369
2007 national report on HIV/AIDS by the Ethiopian Ministry of Health. A little under 17% of these children have
been orphaned due to AIDS.
146
particular focus on vulnerable groups including children. The Social Welfare Services envisaged
under the Policy include child welfare services, psychosocial support, alternative care, and grants
for the elderly, disability and other social issues.370
6.6. Child’s Right to an Adequate Standard of Living

Article 27(1) of the CRC affirms the right of the child to a standard of living adequate to his or
her physical, mental, spiritual, moral and social development. The right to an adequate standard
of living enshrined in Article 27 of the CRC echoes the same right as enshrined in Article 25 of
the Universal Declaration of Human Rights and Article 11 of the International Covenant on
Economic, Social and Cultural Rights.
Article 27 is closely linked with Article 6 of the CRC which lays down the right to life and
maximum survival and development. These provisions imply the need to fulfill the basic
necessities of the child including nutrition, clothing and housing. Apart from these, it also points
to the need for the fulfillment of clean drinking water, health education, good hygiene and
sanitation and breastfeeding. Also implicit in the right to an adequate standard of living are
measures aimed at prevention of environmental pollution, child accidents and harmful traditional
practices.371
Article 27(2) stipulates that parents have the primary duty to secure the full development of the
child. This provision mirrors the same principle enshrined in Articles 3(2), Article 5 and Article
18 of the CRC. The parental responsibility to secure the full development of the child is qualified
by the phrase “within their abilities and financial capacities.” The provision has also specifically
outlined the different aspects of development. Parental responsibility implies the duty of parents
to meet the material, emotional, developmental as well as intellectual needs of their children.372
However, the Convention is quick to add the responsibility of the State to assist parents when
they do not have the skills or resources.373 Article 27(3) provides that States must provide
material and other forms of assistance for parents in their endeavor to secure this right. The
support provided by the State may extend to food, clothing and housing. The right of the child to
370
Draft Social Protection Policy of the Government of Ethiopia
371
372
373
147
an adequate standard of living is not merely confined to food, clothing and housing. Article 27
links the right of the child to development with the primary responsibility of parents for securing
this development supported by the State.374
At this point, the consideration of case law on the part of courts of law in Ethiopia, in particular,
that of the Cassation Division of the Federal Supreme Court is instructive. To this effect,
Cassation File No. 45819 which was decided on February 19, 2010 is considered here. The case
relates to a petition alleging the existence of a fundamental error of law in the order of the
Federal First Instance Court. The provisional order which is the subject of this petition is the
order of the Federal First Instance Court which gave injunction against the sale, transfer or
exchange of the private car of the petitioner so that the car would serve as a security for the
payment of maintenance for children until the latter reach the age of majority. The petition is
submitted to the Cassation Bench since the provisional order of the court was also confirmed by
the Federal high Court.
The legal counsel of the petitioner submitted a cassation petition dated May 19, 2009 alleging the
existence of fundamental error of law in the decisions of the lower courts. The Cassation Bench
decided to look into the matter further and the respondent also submitted his reply dated January
6, 2010 to the cassation petition. The counsel of the petitioner also adduced his counter-reply
dated January 25, 2010. The Cassation Bench undertook oral examination of the parties. The
Bench examined the matter in the light of pertinent provisions of the law.
The petitioner is opposed to the injunction order of the lower court against his private car barring
him from selling, transferring or exchanging until the children attain the age of 18 years old. He
contended that this would prevent the petitioner from selling his car for the purpose of settling
other debts from the proceeds of the sale. The Cassation Bench asked the petitioner if he is in a
position to deposit the total amount of money needed for the maintenance of the children in cash.
However, the petitioner explained that he is only capable of depositing money to the tune of 3 or
4 months maintenance for the children and not able to deposit the total amount of money needed
to ensure the maintenance of the children until they reach the age of majority. The Cassation
Bench noted that the amount of monthly maintenance determined by the court is 450 birr. It went
374
148
on to state that it is not possible to say that this amount would remain adequate to cover costs of
the maintenance in the future as circumstances might change. Therefore, the issuance of the
provisional order given in relation to the car as a security to guarantee future payments of
maintenance is necessary in conformity with the rules of the Revised Family Code relating to
maintenance and the constitutional rights of the child. It is not therefore possible to state that the
order of the court suffers from a fundamental error of judgment. Thus, the Cassation Bench also
confirmed the decision of the lower courts.
149
CHAPTER SEVEN
EDUCATION, LEISURE AND CULTURAL ACTIVITIES
Introduction
This Chapter focuses on the child’s right to education. The Chapter also explores the aims of
education as enshrined in the Convention on the Rights of the Child and the African Charter on
the Rights and Welfare of the Child. The Chapter proceeds with the consideration of the child’s
right to leisure, play and culture.
7.1. Child’s Right to Education

Article 28 of the CRC affirms the right of the child to education. The Convention demonstrates
that the right to education is a core minimum right and an engine for economic growth. The
provision mirrors Article 26 of the Universal Declaration of Human Rights and Article 13 and 14
of the International Covenant on Economic, Social and Cultural Rights. Achievement of
universal primary education is also one of the eight Millennium Development Goals.
“Education” refers to the entire process of social life by means of which individuals and social
groups learn to develop consciously within, and for the benefit of, the national and international
375
communities, the whole of their personal capacities, attitudes, aptitudes and knowledge.”
Likewise, the definition of the term “education” in the Convention is not confined to instruction
delivered within schools.376
It stipulates that the right to education should be achieved “on the basis of equality.” The
provision “on the basis of equal opportunity” points to the need for measures to prevent
discrimination in access to education. The proviso “on the basis of equal opportunity” is the
specific manifestation of the general principle of non-discrimination reflected in Article 2 of the
CRC. The underlying cause of absence equality of opportunity in terms of access to education is
the lack of resources.377 Lack of resources in turn is imputed to low government budget or
poverty of families forcing children outside the purview of the education services.378 Girls,
375
The Recommendation concerning Education for International Understanding, Cooperation and Peace and
Education relating to Human Rights and Fundamental Freedoms, adopted by the General Conference of UNESCO at
its 18th session (November 1974) Article 1(a)
376
377
378
150
children with disabilities, children belonging to ethnic, religious and linguistic minorities and
indigenous groups are more vulnerable to discrimination in access to education.379
Like the case of most economic, social and cultural rights, the right to education is to be
implemented “progressively” as indicated in Article 28 of the CRC. The flexibility device of
“progressive implementation” is inserted with acknowledgement of the fact that States may lack
the resources to ensure that education is accessible to all children.380 In particular, States may
find it difficult to ensure that secondary and higher education is available to all.381 The provision
obliges States to develop and adopt plans for the progressive provision of education “to the
maximum extent of available resources.”382 Regardless of this, the provision decidedly stipulates
that primary education must be free and compulsory as a minimum core obligation. However, the
duty to provide access to secondary education is recognized, in general programmatic terms, but
no reference is made to pre-primary education.
Articles 28(1) (a) to (e) specify detailed obligations imposed upon States Parties in relation to the
right to education. Article 28(1) (a) stipulates that “free” education at the primary level is a core
minimum that States Parties must be obligated to fulfill for all children. The Committee on
Economic, Social Cultural Rights also reinforced this obligation as follows:
“The nature of this requirement is unequivocal. The right is expressly formulated so as to

ensure the availability of primary education without charge to the child, parents or
guardians. Fees imposed by the Government, the local authorities or the school, and other
direct costs, constitute disincentives to the enjoyment of the right and may jeopardize its
realization. They are also often highly regressive in effect. Their elimination is a matter
which must be addressed by the required plan of action. Indirect costs, such as
compulsory levies on parents (sometimes portrayed as being voluntary, when in fact they
are not), or the obligation to wear a relatively expensive school uniform, can also fall into
the same category”383
Articles 28(1) (b) requires States Parties to encourage the development of different forms of
secondary education, including general and vocational education, make them available and
accessible to every child, and take appropriate measures such as the introduction of free
379
380
381
382
383
Committee on Economic, Social and Cultural Rights, General Comment No.11, 1999, HRI/GEN/1/Rev. 8, para. 7,
p.62
151
education and offering financial assistance in case of need. Thus, this provision does not impose
free compulsory secondary obligation as this is beyond the capacity of many countries.384
Despite this, secondary education should also be available and accessible. The term
“accessibility” has three elements. These are non-discrimination, physical and economic
accessibility.385 Physical accessibility suggests that education must be available within a safe
physical reach at some convenient geographical location or through modern technology
including distance education.386 Economic accessibility implies that education has to be
affordable to all. 387
Article 28(1) (c) provides for higher education to be made available “on the basis of capacity.”
Regardless of the fact that higher education is mostly pursued after the lapse of “childhood”, the
CRC has opted to consider this as an integral part of children’s rights. Article 28(1) (d) stipulates
that States Parties make educational and vocational information and guidance available and
accessible to children. On the other hand, Articles 28(1) (e) obliges States Parties to take
measures to ensure regular attendance at schools and the reduction of drop-out rates. This
provision is vital as it requires the proactive engagement of States than simply requiring them to
channel resources.388
Article 28 requires States Parties to ensure that schools are attractive and that school discipline
respects the rights of the child. This should be considered in conjunction with provisions in the
Convention which prohibit corporal punishment, however light. Thus, disciplinary measures
used in schools must be consistent with the child’s human dignity. Likewise, Article 36(1)(e) of
the FDRE Constitution stipulates that every child has the right to be free from corporal
punishment or cruel and inhumane treatment in schools and other institutions responsible for the
care of children. This provision clearly implies the constitutional prohibition in the school system
of corporal punishment and other forms of degrading and humiliating treatment.
Moreover, Article 28 calls for the promotion of international cooperation in education,

particularly taking account of the needs of developing countries.
384
Hodgkin and Newell (n 3)) 422
385
386
387
388
152
The Ethiopian Constitution includes the rights of all children to education. In order to realize its
educational objectives, the Government introduced a new Education and Training Policy and an
Education Sector Strategy in 1994. Moreover, in 1997 the government developed a twenty-year
Education Sector Plan, which is divided into a series of five-year Education Sector Development
Programs (ESDP).
Pre-primary education level normally includes children of ages 4-6 enrolled in the pre-primary
education. The government is currently exerting effort to developing curriculums, training
teachers, and providing supervisory support and more recently, developing an integrated policy
framework and Early Childhood Care and Education (ECCE) monitoring tools.389 Alternative
Basic Education (ABE) is also provided for children for, in particular, pastoralist and semi-
pastoralist areas of the country.390
7.2. The Aims of Education

Article 29 of the CRC outlines the fundamental purposes of education. Article 26 of the
Universal Declaration on Human Rights (UDHR) asserts that education shall be directed to the
full development of the human personality and to strengthening of respect for human rights and
fundamental freedoms. It goes on to state that education shall promote understanding, tolerance
and friendship among all nations, racial or religious groups. Educations should also be designed
with a view to purse the objectives of the United Nations. Article 13(1) of the International
Covenant on Economic, Social and Cultural Rights (ICESCR) also mirrors the same purposes
outlined in the UDHR.
However, Article 29(1) of the CRC is distinctive from the aforementioned counterpart provisions
in the UDHR and ICESCR. To begin with, Article 29(1) is more detailed on the aims of
education. Moreover, the CRC does not make any specific reference to parent’s rights to choose
their children’s school and to ensure children’s education is in conformity with the parent’s
religious and moral orientation which were reflected in earlier instruments including the ICCPR
389
p.46
390
p.46
153
and ICESCR.391 Regardless of their recognition in Article 28 of the CRC, parental rights operate
only within the framework of the child’s own interests and freedoms.392
The principal objectives of education as discussed in Article 29 (1)(a)-(e) read as follows:
(a) The development of the child’s personality, talents and mental and physical abilities
to their fullest potential;
(b) The development of respect for human rights and fundamental freedoms, and for the
principles enshrined in the Charter of the United Nations;
(c) The development of respect for the child’s parents, his or her own cultural identity,
language and values, for the national values of the country in which the child is
living, the country from which he or she may originate, and for civilizations different
from his or her own;
(d) The preparation of the child for responsible life in a free society, in the spirit of
understanding, peace, tolerance, equality of sexes, and friendship among all peoples,
ethnic, national and religious groups and persons of indigenous origin;
(e) The development of respect for human the natural environment.
Article 29(2) provides for the rights of individuals and groups to arrange their own forms of
education on condition that these are compatible with the aims of education, respect other rights
of the children, the Convention and meet any national minimum standards.
Similarly, the Education and Training Policy of Ethiopia provides that the objectives of
education include:
 Bringing up citizens who respect human rights, stand for the well being of peoples as
well as for equality, justice and peace endowed with democratic culture and discipline;
 Providing education that promotes democratic culture, tolerance and peaceful resolutions
of differences and that raises the sense of discharging societal responsibility;
 To recognize the rights of nation/nationalities to learn in their language, while at the same
time providing one language for national and another one for international
communication.
391
392
154
7.3. Child’s Right to Leisure, Play and Culture
Article 31 of the CRC assures the right of the child the right to leisure, play and culture. It covers
the rights of the child to rest, to engage in recreational activities and to participate in cultural and
artistic life. Though the words “rest”, “leisure”, “play” and “recreational activities” appear to
convey the same message, varying meanings have been ascribed to them. “Rest” refers to the
basic necessities of physical or mental relaxation and sleep.393 Rest is very important for the
development of the child as is nutrition, housing, health care and education.394 Lack of rest
interferes with the ability of children to learn and makes them susceptible to illness.395 This
implies that children should have enough time to sleep and relax. This is in particular crucial for
working children.
“Leisure” implies having the time and freedom to do as one pleases.396 “Play” means children’s
activities which are not controlled by adults and which do not necessarily conform to any
rules.397 Thus, play is unstructured and free from adult direction.398 “Recreational activities”
embodies the whole range of activities carried out by choice for the purpose of pleasure.399
Recreational activities include sports, performing and creative arts, etc. Play and recreational
activities have one thing in common i.e. they are not compulsory.400 These activities contribute a
great deal to children’s physical and psychological health.401 Play and recreational activities
afford the child the opportunity to develop life skills such as negotiation, sharing and self-
control, etc.402 To this effect, children need to be provided with safe, accessible space.403
The right to play has sometimes been dubbed as the “forgotten right” due to the little attention to
it by adults and the tendency to consider it as mere luxury.404 However, rest, leisure, play and
393
394
395
396
397
398
399
400
401
402
403
404
155
recreational activities are essential parts of development of children.405 Lack of play deprives
children of important social and personal skills.406 Article 31 also underscores the right of
children to have access to their cultural and artistic events and partake in them.407 This implies
that children should be given opportunity to participate in the cultural and artistic pursuits of
adults. The provision implies that children are given the opportunity to actively engage in
producing cultural activities. Furthermore, children should not be prevented from performances
without good cause, for instance, because of potential harm to them.408
405
406
407
408
156
CHAPTER EIGHT
SPECIAL PROTECTION MEASURES
Introduction
Chapter Eight dwells on special measures of protection that need to be implemented in relation
to specific category of children. These are further divided into four as children in situations of
emergency. Secondly, the Chapter focuses on children in conflict with the law. Thirdly, the
Chapter looks into international and national standards relating to children in situations of
exploitation. Finally, the Chapter focuses on international standards relating to children
belonging to ethnic, religious and linguistic minorities and indigenous groups.
8.1 Children in Situations of Emergency
8.1.1 Refugee Children

Article 22 of the CRC stipulates the rights of refugee and asylum-seeking children to appropriate
protection and humanitarian assistance. This includes tracing of family members. Refugee and
asylum-seeking children are entitled to the rights enshrined in the Convention on the Rights of
the Child. In particular, refugee and asylum-seeking children are entitled to the right to
nationality and family relations, protection from separation from parents, right to family
reunification, entitlement not to be deprived of family environment, protection from trafficking
and deprivation of liberty.
The 1951 Convention Relating to the Status of Refugees defines a refugee as a person who fled
his country of origin or habitual residence owing to well founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group or political
opinion, is outside of the country of his nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of his country; or who, not having a nationality and
being outside the country of his former habitual residence as a result of such events, is unable or,
owing to such fear, is unwilling to return to it.” The Convention definition applied to persons
who became refugees before 1 January 1951, in other words who were refugees because of
World War II and events after that. It soon became apparent, however, that new refugee
movements were occurring, which were totally unrelated to the post war period in Europe. The
1967 Protocol formally excluded such restrictions, giving a universal dimension to the
Conventions provisions.
157
The OAU refugee definition has two parts. The first repeats the definition of the 1951
Convention. The second part goes further. It covers any persons compelled to leave his or her
country “owing to external aggression, occupation, foreign domination or events seriously
disturbing public order in either part or the whole of his country of origin or nationality”. The
2004 Ethiopian Refugee Proclamation incorporated refugee definition from both the 1951
Convention and the 1969 African refuge convention verbatim. Article 4 of the Proclamation
adopted a combined definitions of refugees given by the above two instruments. The 1951
convention refuge definition has been considered to be too restrictive. The 1969 OAU definition
on the contrary has been hailed to be inclusive. The fact that the Ethiopian Refugee Proclamation
combines the two definitions suggests an enormous interest on the part of Ethiopia to be more
accommodative and more open to the plights of refugees.
The Ethiopian Refugee Proclamation also asserts that there must not be procedural irregularities
in Refugee Status Determination (RSD).409 Such irregularities include the lack of oral hearings,
decision solely based on paper applications by an administrative or police officer who
interviewed the refugee, the lack of translation and interpretation services, the lack of written
notifications of decisions, the lack of access to legal aid and advice, delays in receiving
decisions, lack of judicial review of rejected asylum applications, lack of appropriate body to
consider the appeal and the imposition of prohibitive costs.
Interviews and hearings conducted with children, accompanied or unaccompanied, needs to be

carried out in a child friendly environment.410 Children should be given access to appeal and they
should be given adequate representation, translation and interpretation services.411
Internally Displaced children are not specifically protected under the CRC, since they do not fall
within the definition of the term “refugee”. However, the plight of internally displaced children
is the same with that of refugee children.412 The first element of the 1951 Convention relating to
the Status of Refugees is that the claimant must be outside of his or her country of origin. Many
if not most of the persons forced to flee their homes in search of safety remain within the
409
Refugee Proclamation (Proclamation 409/2004)
410
Committee on the Rights of Children, General Comment No.6, 2005, (CRC/GC/2005/6, para. 73
411
Committee on the Rights of Children, General Comment No.6, 2005, (CRC/GC/2005/6, para. 73
412
158
boundaries of their state. Thus, internal refugees are excluded from the definition of refugees
with the meaning of the Convention and the Protocol. These are called Internally Displaced
Persons (IDPs). The UN guiding Principles on Internal Displacement adopted by the then
Commission on Human Rights in 1998 defines IDPs as:
Persons or group of persons who have been forced or obliged to flee or to leave their
homes or places of habitual residence, in particular as a result of or in order to avoid the
effects of armed conflict, situations of generalized violence, violations of human rights or
natural or human-made disasters and who have not crossed an internationally recognized
state border.
Due to their situation, refugee and internally displaced children are highly vulnerable to sexual
abuse and military recruitment.413 Thus, States Parties have legal and moral obligations to protect
these children. In particular, it is incumbent upon States Parties to protect refugee and internally
displaced children from separation from families and care givers, sexual exploitation as well as
military recruitment.414
Article 23 of the 1951 Convention Relating to the Status of Refugees also obligates States Parties
to accord to refugees lawfully staying in their territory national treatment i.e. the same treatment
with respect to public relief and assistance as is accorded to their nationals. Article 22 of the
same Convention accords the same treatment to refugee children and asylum-seeker children.
Thus, the treatment required is to be afforded to children even if they are not granted refugee
status in so far as they remain within the jurisdiction of the State Party.
Refugee and internally displaced children should be provided with appropriate education, health
and welfare services.415 Article 37(b) of the CRC provides that the detention of refugee children
should be used as a measure of last resort and for the shortest appropriate period of time. The
Convention also requires States Parties to provide appropriate cooperation with the United
Nations and specialized agencies, particularly, The United Nations High Commissioner for
Refugees (UNHCR), in their efforts to address the plight of refugee and internally displaced
children.
413
414
Hodgkin and Newell (n 3)313
415
Hodgkin and Newell (n 3)313
159
Article 22 of the CRC also imposes the obligation on States Parties to trace parents or other
members of the family of any refugee child in order to obtain information necessary for
reunification. This is aimed at preserving and restoring the child’s family unity. Reunification of
the child may take place within the country of origin of the child, in the country where the child
is seeking asylum or through resettlement in a third country.416
The CRC states that in cases where no parents or other members of the family can be found, the
child shall be accorded the same protection as any other child permanently or temporarily
deprived of his or her family environment for any reason. Moreover, the State Party is required
to facilitate durable solutions for refugee and internally displaced children.
8.1.2 Protection of Children affected by Armed Conflict

Article 38 of the CRC dwells on protection of children affected by armed conflict. Article 38(1)
requires States Parties to respect and ensure the rules of international humanitarian law (IHL)
applicable in times of armed conflicts relevant to the child. These are in particular embodied in
the 1949 four Geneva Conventions and the 1977 two Additional Protocols. The strict
observance of the principles of necessity, humanity, distinction, proportionality and precaution
afford children much needed protection in cases of armed conflicts of both international and non-
international character. Article 38 implies that States should make efforts to secure the rights of
children within their jurisdiction in times of armed conflict and that the principles enshrined in
the CRC are not subject to measures of derogation.
Article 38(2) also requires states to ensure that children who have not attained the age of 15 do
not take direct part in hostilities. Article 38(3) calls for States Parties not to recruit children who
have not yet attained the age of 15 into the armed forces and give priority to the oldest when
recruiting children between the age ranges of 15 to 18. The Optional Protocol to the Convention
on the Rights of the Child on the Involvement of Children in Armed Conflict entered into force
in 2002. Pursuant to this Protocol, States are required to take all feasible measures to ensure that
under 18-year-olds do not take a direct part in hostilities and to ensure that they are not
compulsorily recruited. The Optional Protocol also raises the age of recruitment of children into
armed forces to 16 from the age of 15 in Article 38 of the CRC. Article 8 of the Rome Statue of
416
160
the International Criminal Court makes the conscription and enlisting of children below the age
of 15 a war crime.
Moreover, Article 38(4) requires States Parties to take all feasible measures to ensure the
protection and care of children affected by an armed conflict. Article 4 of Defence Forces
Proclamation (Proclamation No. 27/1996) provides that the Ministry of Defence of the country
may recruit persons and fit and willing for military services in accordance with criteria
periodically issued. However, the proclamation does not stipulate any minimum age for
enlistment, recruitment in to armed forces and for direct participation in hostilities. National
recruitment guidelines specify recruits must be at least 18.
8.1.3. Rehabilitation of Child Victims

Article 39 of the CRC dwells upon rehabilitation of child victims. It requires States Parties to
take measures to assist child victims. The provision mentions various categories of child victims
including child victims of any form of violence, neglect, exploitation or abuse, torture or any
other form of cruel, inhuman and degrading treatment or punishment as well as victims of armed
conflicts.
Article 39 stipulates that recovery and reintegration of child victims should take place in an
environment enhancing the health, self-respect and dignity of children. Rehabilitation and
recovery of child victims must be available based on the principle of non-discrimination.
Rehabilitation must also be geared towards ensuring the best interests of the child. Furthermore,
the services should promote the right of the child to life, maximum survival and development.
The participatory rights of child victims need to be given due attention in the course of planning
and implementation of rehabilitation and recovery. Article 39 is closely linked with various
provisions of the CRC including health rights as enshrined in Article 24 of the Convention.417
Rehabilitation and recovery of child victims has also been buttressed in the Optional Protocol to
the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child
Pornography which was adopted in 2000.
417
161
Child victims are entitled to protective services. Protective services aim to prevent, respond to,
and resolve the abuse, neglect, exploitation and violence experienced by children in all settings.
They include, for example, medical, psychosocial and legal support to victims of violence and
abuse; fostering and adoption of orphans; outreach work with street children and children with
disabilities to help them access livelihood, education and other support, awareness-raising and
livelihood support to prevent unsafe child migration and trafficking; reuniting separated children
with their families; reintegrating child soldiers and other children associated with fighting forces
into their communities; establishing community care committees and other local services to help
identify vulnerable children and help them to access support; income and other support to parents
to enable them to provide and care for their children in a safe family environment.
Child victims should also be given reintegration assistance, free basic education or vocation
training. Efforts must be made to ensure that child victims must not be further victimized by
stereotyping them as vagrants, prostitutes, migrants or runaways.418
8.2. Children in Conflict with the Law
8.2.1 Administration of Child Justice

Article 40 of the CRC focuses on administration of child justice. It enunciates the rights of
children alleged, accused or recognized as breached the Criminal Code. It covers different stages
of the administration of justice including investigation, arrest, charge, pre-trial period, trial,
sentencing and post trial sage.
The stipulation in Article 40 mirrors Article 14(4) of the International Covenant on Civil and
Political Rights, which provides that in case of juvenile persons, the procedure shall be such as
will take account of the age and desirability of promoting the rehabilitation of children in conflict
with the law. The implementation of Article 40 must be informed by soft law principles
including:
 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the
Beijing Rules);
 United Nations Rules for the Protection of Juveniles Deprived of their Liberty;
418
162
 United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh
Guidelines);
 Guidelines for Action on Children in the Criminal Justice System; and
 Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime.
It is to be recalled that Article 36(2) of the FDRE Constitution requires that the best interests of
the child is considered as the primary consideration in all actions affecting children. Needless to
say, the principle of the best interest of the child is also applicable in the administration of justice
for children who come into contact with the law. It follows that the police, courts of law,
corrective institutions must make observance of the best interests of the child their basic concern.
8.2.1.1. Categorizations of children in Conflict with the Law under the

Ethiopian Criminal Code
The Criminal Code provides different categorizations of children for a variety of reasons. Article
40 (3) (a) also requires States Parties to raise the minimum age of criminal responsibility to
acceptable level. Article 52 of the Criminal Code provides that infants who have not attained the
age of nine years shall not be deemed to be criminally responsible. It goes on to State that the
provisions of the Criminal Code shall not apply to this categorization of children referred to as
infants by the Code. The Code goes on to provide that appropriate steps may be taken by the
family, school or guardianship authority in the event where a crime is committed by an infant.419
States Parties have been urged to raise the age of criminal responsibility to a minimum of 12
years.420 Age limits falling below this are said to be unacceptable internationally.421
Consequently, the Committee on the Rights of the Child urged Ethiopia to raise the minimum
age of criminal responsibility.
The Criminal Code provides that children with the range of 9 up to 15 years are not immune
from criminal responsibility. Article 53(1) of the Criminal Code provides that the penalties and
measures to be imposed by the courts shall be only those specified under Articles 157-168 of the
Code where a crime is committed by young person between the ages of nine and fifteen.422 The
provision goes on to state that young persons shall not be subject to the ordinary penalties
419
420
Committee on the Rights of the Child, General Comment No.10, 2007, CRC/C/GC/10, para. 3
421
422
163
applicable to adults nor shall they be kept in custody with adult criminals. Article 53(2) of the
Code makes it clear that the measures and penalties envisaged under Article 158-168 will not be
applicable unless the child is first found guilty of the offence.
Similarly, Article 36(1)(e) of the FDRE Constitution has provided the right of the child to be
protected from corporal punishment in institutions. Article 36(3) of the FDRE Constitution
stipulates that juvenile offenders admitted to corrective or rehabilitative institutions and juveniles
who become wards of the state or who are placed in public or private orphanages shall be kept
separately from adults.
On the other hand, Article 56(1) of the Criminal Code stipulates that “if at the time of the
commission of the crime, the criminal was over fifteen but under eighteen years of age, he shall
be tried under the ordinary provisions of the Code.” Article 56(2) goes on to provide that the
court may take into account the circumstances of the case including the age of the criminal, his
incorrigible or dangerous disposition and the likelihood of his reform in assessing sentence. The
provision entitles the court to apply either the general provisions regarding ordinary mitigation of
penalties or apply one of the special measures specified for young persons. This provision
implies that, save some exceptions, children between the age ranges of 15 up to 18, are treated as
adults under the Criminal Code. This position taken by the Criminal Code has prompted the
Committee on the Rights of the Child to call upon Ethiopia to ensure that children aged 15 to 18
years are accorded the protection of child justice provisions and are not treated as adults.423
8.2.1.2. Minimum Judicial Guarantees for Children in Conflict with the Law
Article 40(2) of the Convention sets out the minimum judicial guarantees of the right to a fair
trial that must be observed in cases of children alleged to be in conflict with the law. Before all
things, children who come in to contact with the law are entitled to the same protection accorded
to adults. Moreover, children who come in to contact with the law are entitled to differential
treatment on account of their needs for special safeguards. Article 40(2) (a) stipulates that no
child shall be alleged as, be accused of, or recognized as having infringed the penal law by
reason of acts or omissions that were not prohibited by national or international law at the time
423
Committee on the Rights of the Child, Concluding Observations, ETHIOPIA crc/c/15/Add. 1434, para. 29
164
they were committed. Consequently, the inclusion of “status” offences such as vagrancy,
truancy, running away and the like are frowned upon.424
Article 40(2) (b) goes on to outline minimum guarantees accruing to every child alleged as or
accused of having infringed the penal law. The list commences with the minimum guarantee of
the presumption of innocence. Article 20(3) of the FDRE Constitution provides that “during
proceedings accused persons have the right to be presumed innocent. The protection outlined in
Article 40 is further complemented by guarantees under Article 37 of the CRC. As discussed
earlier, Article 37 prohibits the imposition of death penalty and life imprisonment without
possibility of release. Article 37 also requires that resort to measures involving the deprivation of
liberty should be measures of last resort and should be used for the shortest appropriate period of
time.
Article 40(2) (b) (ii) asserts the right of the child to be informed promptly and directly of the
charges against him or her. Article 19(1) of the FDRE Constitution provides the right to be
promptly informed of reasons for arrest and detention and of any charges against oneself. The
same provision also affirms the right of the child to have legal or other appropriate assistance in
the preparation and presentation of his or her defence. Article 40(2) (b) (iii) provides the right of
the child to be tried without delay by a competent, independent and impartial authority or judicial
body in a fair hearing according to law. Article 20(1) of the FDRE Constitution provides the
right to be tried by an independent and impartial tribunal as follows:
“Accused persons have the right to a public trial by an ordinary court of law within a
reasonable time after having been charged. The court may hear cases in closed sessions
only with a view to protecting the right to privacy of the parties concerned, public morals
and national security.”
The provision also affirms the right of the child to be tried in the presence of legal or other
appropriate assistance unless this is deemed to be in his or her best interests. Article 21(2) of the
FDRE Constitution provides as follows:
424
Committee on the Rights of the Child, Geenral Comment No.10, 2007, CRC/C/GC/10, para. 3
165
“All persons shall have the opportunity to communicate with, and to be visited by, their
spouses or partners, close relatives, friends, religious councilors, medical doctors and
their legal counsel.”
The right of the child not to be compelled to give testimony or confess guilt is enshrined under
Article 40(2) (b) (iv). Article 19(5) of the FDRE Constitution entitles the person arrested not be
compelled to make confessions or admissions which could be used in evidence against them.
The right of the child to equality of arms, in particular, to the right to confront or cross-examine
adverse witnesses is laid down in the same proviso. Article 20(4) of the FDRE Constitution
provides as follows:
“Accused persons have the right to full access to any evidence presented against them, to
examine witnesses testifying against them, to adduce or to have evidence produced in
their own defence, and to obtain the attendance of and examination of witnesses on their
behalf before the court.”
The right to appeal is also stated in Article 40(2) (b) (v) of the CRC. Article 20(6) of the FDRE
Constitution provides that persons accused have the right of appeal to the competent court
against an order or a judgment of the court which first heard the case.
The entitlement of the child to have the free assistance of an interpreter is stipulated in Article
40(2) (b) (vi) of the CRC. Article 20(7) of the FDRE Constitution provides that persons accused
have the right to request for the assistance of an interpreter at state expense where the court
proceedings are conducted in a language they do not understand.
The right of the child to respect for privacy is also reflected in Article 40(2) (b) (vii). Article 26
of the FDRE Constitution provides that everyone has the right to privacy. The provision goes on
to state that the right shall include the right not to be subjected to searches of his home, person or
property, or the seizure of any property under his personal possession.
166
Strategies and policies concerning the incidence of children coming into contact with the law
should be predicated on prevention.425 United Nations Guidelines for the Prevention of Juvenile
Delinquency (Riyadh Guidelines) also calls for priority must be measures of prevention.426 This
in turn calls for appropriate socialization and integration of children.
Article 40(3)(b) highlights interventions not involving judicial proceedings.427 It provides for
diversion i.e. measures for dealing with children who may have contravened the Criminal Code
without resorting to judicial proceedings. This is indicative of the fact that the Convention
promotes diversion and restorative justice.428 Diversion is in particular advisable in case of
children coming into contact with the law for the first time.429
8.2.1.3. Assessment of Penalties and Measures

Article 54 of the Criminal Code concerns itself with expert evidence and enquiry that the court
must consider in assessing sentencing in the case of young criminals. Article 54(1) of the Code
states that the court may require information about the conduct, education, position and
circumstances of the young person found guilty for the purpose of assessing sentence. The court
may also examine the parents, the representatives of the school, guardianship authorities of the
child and concerned institutions. These individuals and institutions may be asked by the court to
produce any files, particulars, medical and social reports in their possession concerning the
young person and his or her family.
Article 54(2) of the Criminal Code also stipulates that the court may order the convicted young
person to be kept under observation in a medical or education center, a home or any other
suitable institution. Moreover, the court may also require the production of expert evidence
regarding the physical and mental condition of young person. The court may examine expert
evidence as regards what treatment and measures of an educational, corrective or protective kind
would be most suitable in the circumstances of the case.
425
426
427
428
429
167
Article 55 of the Criminal Code also provides that the court shall take into account the age,
character, degree of mental and moral development of the convicted young person and the
educational value of the penalties or measures in assessing sentencing or measures. The same
provision entitles the court to vary its orders in light of Article 164 of the Criminal Code. Article
164 of the Code supports variation of orders concerning penalties or measures when this proves
to be beneficial to the convicted young person.
Measures
The Convention encourages States Parties to provide a variety of alternative dispositions to

institutional care. Article 40(4) of the CRC stipulates that a variety of dispositions, such as care,
guidance and supervision orders, counseling, probation, foster care, education and vocational
training programmes and other alternatives to institutional care shall be available to ensure that
children are dealt with in a manner appropriate to their well-being and proportionate care both to
their circumstances and the offence.
The Criminal Code provides a variety of measures and penalties to be applied to young persons
in view of the special purposes elaborated under its Article 55. The court needs to have secured
all the necessary inquires and evidence to inform its determination of measures and penalties.
The guiding philosophy of measures and penalties is that of rehabilitative and not punitive.
It is possible to categorize these measures into two broad categories. These are institutional and
non-institutional measures. Institutional measures are those administered in a closed
environment, whereas non-institutional measures are those measures taking place in a free
environment. The non-institutional measures include admission to a curative institution (Article
158), supervised education (Article 159), reprimand or censure (Article 160), school or home
arrest (Article 161) and admission to a corrective institution (Article 162).
168
Penalties
On the other hand, Article 166 of the Criminal Code provides that the court may impose
penalties only if the measures outlined under Article 158-162 have been applied but failed. The
penalties envisaged under the Criminal Code on convicted young persons are much lenient as
compared to counterpart penalties for the same offences when committed by those children with
the age group of 15 up to 18 and adults. These penalties include fine (Article 167) and
imprisonment (Article 168). The penalty of fine may be imposed if the convicted young person is
capable of paying and realizing the purpose of its imposition. Imprisonment of convicted young
person can be authorized by the court if he or she has committed a serious crime which is
normally punishable with a term of rigorous imprisonment of 10 years or more or with death
penalty.
8.2.1.4. Procedure in Cases involving Children in Conflict with the Law

Article 40 calls for a distinctive child-oriented restorative justice system concerning children in
conflict with the law based on international standards.430 It stipulates that the fundamental
objectives of this distinctive system of justice should be positive and not punitive.431 Moreover,
administration of child justice must be carried out in accordance with the four leading cardinal
principles of the CRC.432 This in turn requires the establishment of specialized, trained units
within the police, the judiciary, court system and prosecutor’s office, and specialized
representatives to provide legal and other assistance to the child.433
Accordingly, Article 171 of the Criminal Procedure Code provides that children in conflict with
the law shall be tried pursuant to the special procedure established under the Third Chapter of the
Code. Article 3 of the Criminal Procedure Code defines “a young person” as a person between
the ages of nine and fifteen years. By virtue of Article 172(3) of the Criminal Procedure Code,
prosecution of a young person must first be authorized by the court to which the child is
summoned. The court may authorize the public prosecutor to frame charges against the young
person only if the accusation relates to an offence punishable with rigorous imprisonment
430
431
432
433
169
exceeding ten years or with death. It is this feature that makes the prosecution of young persons
far removed from the prosecution of children between the age ranges of 15-18 or adults.
The Code also stipulates a special approach regarding the institution of proceedings in cases of
children in conflict with the law. As per Article 172 of the Civil Procedure Code a child in
conflict with the law shall be taken immediately to the nearest Woreda court. Those entitled to
take the child to court are only the police, the public prosecutor, the parents or guardians or the
complainant. The act of taking of the child to court must take place immediately meaning, at the
earliest possible moment. Such a requirement of urgency is presumably to avoid the custody of
the child at the hands of the police or other persons.
Once a child in conflict with the law is brought before the court, the court asks the person who
brought the young person to state the particulars of the alleged offence and witnesses (if any).
Under normal circumstances, a formal complaint is not necessary in case of child in conflict.
However, the court may ask such a person to make a formal complaint.
The principal special procedure in child justice administration cases is that it is the court which
issues the police instructions concerning the manner of investigation. Simply put, the police are
not free to determine the conduct of investigation. In other words, the police are not in a position
to apply Articles 22 and following of the Criminal Procedure Code which govern the process of
police investigation in ordinary criminal cases.
Another important peculiar aspect of the procedure involving child justice administration is that
no framing of charge is necessary. Framing of charge is not permitted except in cases where the
accusation relates to an offence punishable with rigorous imprisonment exceeding 10 years or
with death and even in such cases the public prosecutor must be instructed by the court to frame
a charge as mentioned earlier. The provisions regulating charge do not apply to young persons
unless a court order is made as per Article 179 of the Criminal Procedure Code. Moreover,
Article 40(2) of the Criminal Procedure Code states that the public prosecutor shall not institute
proceedings against a young person unless instructed so to do by the court as per Article 172 of
the same code.
The child suspect of being in contact with the law may not be handed over to the police. Instead,
Article 172(4) of the Criminal Procedure Code stipulates that he or she shall be handed over to
170
the care of his parents or guardian or relative or in their default to a reliable person who is going
to be responsible for ensuring the attendance of the juvenile at trial. At the time when the young
person is brought before the court if no parent, guardian or other person in place of parents is
present, the first step the court has to take is to inquire the existence or accessibility of such
person and if the answer is in the affirmative then it shall summon such person to appear without
delay.
Trial of Children in Contact with the Law
Children in conflict with the law are entitled to camera hearing as provided under Article 176 of
the Criminal Procedure Code. The provision requires that all the proceeding shall be held in
chambers and the persons who are allowed to attend the proceedings are limited to witnesses,
experts, parents or guardians or representatives of welfare organization. Article 176 prohibits the
public prosecutor to be present in hearings involving children in conflict with the law unless it is
hearing taking place in the high court. Moreover, the law requires that hearings involving
children in conflict with the law must be conducted in an informal manner as this is provided
Article 76(2) of the Criminal Procedure Code. This is aimed at ensuring, among others, that the
child feels at ease in the court room and not intimidated. In the event the child pleads not guilty,
examination of witnesses shall be conducted by the court as stipulated in Article 176 (6) of the
Criminal Procedure Code.
8.2.2. Torture, Degrading Treatment and Deprivation of Liberty

Article 37 of the CRC prohibits the infliction of acts of torture, other cruel, inhuman or
degrading treatment or punishment, capital punishment, life imprisonment without possibility of
release and unlawful or arbitrary deprivation of liberty.434 The provision mirrors comparable
entitlements in Article 5 of the Universal Declaration of Human Rights (UDHR), Article 7 of the
International Covenant on Civil and Political Rights (ICCPR) as well as the International
Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment
(CAT).
434
171
In addition, Article 37 stipulates basic considerations that must be taken into account in the
treatment of children deprived of liberty. Thus, it obligates States Parties to ensure that children
deprived of liberty be treated with humanity and respect for the inherent dignity of the human
person, taking into account the needs of persons of his or her age. The provision stipulates that
children should be separated from adults unless it is believed to be in their best interests and to
maintain contact with his or her family through correspondence and visits subject to exceptional
circumstances. Children deprived of liberty are also entitled to prompt access to legal and other
appropriate assistance and the right to challenge the legality of the measure of deprivation of
liberty before a court or other competent, independent and impartial authority. Moreover,
children have the right to a prompt decision on such action.435
The scope of application of Article 37 is not confined to children in conflict with the law. The
conditions of treatment are also applicable in cases of children deprived of liberty due to other
concerns including welfare, mental health and also in connection with asylum-seeker and refugee
children.436 Article 37 should be considered in relation to Article 39 which assures the right of
victims of torture, and other forms of cruel, inhuman, degrading treatment or punishment
recovery, rehabilitation and reintegration.
The prohibition in Article 37 of torture, and other cruel, inhuman, degrading treatment or
punishment is taken up by Article 19 of the CRC, which stipulates that States Parties are obliged
to take legislative, administrative, judicial, social and educational and other measures to prevent
violence against children. The prohibition of all forms of physical and mental violence against
children in Article 19 leaves no room for any level of legalized violence against children.437 By
necessary implication, corporal punishment constitutes violence against children.438 Therefore,
the distinction maintained by certain countries including Ethiopia between acceptable and
unacceptable forms of corporal punishment is not legally mandated by the Convention.439
Article 37(a) prohibits the imposition of capital punishment on children. This provision is
intertwined with the principle of life and maximum survival and development enshrined under
435
436
437
Committee on the Rights of the Child, General Comment No.8, 2006, CRC/C/GC/8,paras. 2, 16 and 18
438
439
172
Article 6 of the CRC. The prohibition of the imposition of death penalty on persons who have
not attained the age of 18 mirrors the same protection enunciated under Article 6(5) of the
ICCPR. For a stronger reason, Article 37 also denounces extrajudicial executions of children.
Similarly, Article 37(a) also prohibits the imposition of life imprisonment without the possibility
of release for offences committed by persons below the age of 18. This prohibition must also be
viewed from the point of view of Article 37(b) which stipulates that detention of children should
be seen as a measure of last resort and for the shortest appropriate time. This proviso requires
that measures involving deprivation of liberty must be legally mandated and must not be
arbitrary.
In the same vein, Article 17 of the FDRE Constitution provides that
1. No one shall be deprived of his or her liberty except on such grounds and in accordance
with such procedure as are established by law;
2. No person may be subjected to arbitrary arrest, and no person may be detained without a
charge or conviction against him.
Therefore, Article 17 of the FDRE Constitution, in line with the provisions in the ICCPR and
African Charter on Human and People’s Rights, provides for the Principle of Legality. The
Principle of Legality means that deprivation of the liberty of individuals must be carried out
pursuant to the law and must not be arbitrary. The principle of legality is said to be contravened
in the event where a person is arrested or detained on grounds which are not clearly established
in the law.
The Human Rights Committee explained that the meaning of the term arbitrary in Article 9(1) of
the Covenant should not be construed to mean “against the law” as such. Instead, the Human
Rights Committee stated that the term “arbitrary” includes elements of inappropriateness,
injustice, unreasonableness, capriciousness, disproportionality, lack of predictability and due
process of law. Therefore, the prohibition of arbitrary arrest under Article 17 of the FDRE
Constitution shows that remand in custody must not only be lawful but also reasonable and
necessary. Moreover, the prohibition of arbitrariness also implies that deprivation of liberty must
not be discriminatory.
173
Article 37 (c) provides that every child deprived of liberty shall be treated with humanity and
respect for the inherent dignity of the human person, and in a manner which takes into account
the needs of persons of his or her age. It goes on to state that, in particular, every child deprived
of liberty shall be separated from adults unless it is considered in the child’s best interest not to
do so. Article 5 of the Council Of Ministers Regulation on the Treatment of Federal Prisoners
provides that juvenile prisoners under the age of 18 shall have separate accommodations to the
extent that circumstances allow.
Article 37 (c) assures the right of the child deprived of liberty to maintain contact with his or her
family through correspondence and visits subject to certain exceptions. Article 21(2) of the
FDRE Constitution provides that all persons shall have the opportunity to communicate with,
and to be visited by, their spouses or partners, close relatives, friends, religious councilors,
medical doctors and their legal counsel. This right is also provided under Article 13 of the
Council of Ministers Regulation on the Treatment of Federal Prisoners which stipulates that
prisoners shall have the right to communicate with their spouses, close relatives and friends,
medical officers, legal councilors and religious fathers.
Article 37(d) provides for the right of every child deprived of his or her liberty to prompt access
to legal and other appropriate assistance. This proviso also asserts the right of the child to
challenge the legality of the deprivation of his or her liberty before a court or other competent,
independent and impartial authority, and to a prompt decision on any such action. Article 21(2)
of the FDRE Constitution provides that “all persons shall have the opportunity to communicate
with, and to be visited by, their spouses or partners, close relatives, friends, religious councilors,
medical doctors and their legal counsel.”
Children deprived of liberty are also entitled to accessible complaints procedure by virtue of
Article 12 of the CRC. Accordingly, Article 28 of the Council of Ministers Regulation on the
Treatment of Federal Prisoners provides that “every prisoner shall have the right to lodge a
complaint orally or in writing.”
174
8.3. Children in Situations of Exploitation
8.3.1. Child Labour

Article 32(1) of the CRC affirms the right of the child to be protected from economic
exploitation and from any work that is likely to be hazardous, or to interfere with his or her
education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social
development. Therefore, child labor might be defined as work by a child, which is exploitative,
hazardous, otherwise inappropriate for his or her age, detrimental to his or her schooling, or
detrimental to his or her social, physical, mental, spiritual or moral development. The protection
against child labour is also reflected under Article 15 of the African Charter on the Rights and
Welfare of the Child.
The African Charter on the Rights and Welfare of the Child (ACRWC) also affirms the rights of
children to be free from all forms of economic exploitation. Article 15(4) of the Charter provides
that “every child shall be protected from all forms of economic exploitation and from performing
any work that is likely to be hazardous or interferes with the child’s physical, mental, spiritual,
moral, or social development.”
Article 32(1) requires States Parties to take legislative, administrative, social and educational
measures to ensure implementation of this protection. Article 32(2) also requires States Parties to
have regard “to the relevant provisions of other international instruments”. Especially, States
Parties are requested to ratify the 1973 Minimum Age Convention (No. 138) as supplemented by
recommendation (No. 146) and the 1999 Worst Forms of Child Labour Convention (No.182).
Accordingly, Ethiopia has ratified the Minimum Age Convention (No. 138) in 1999 and the
Worst Forms of Child Labour Convention (No.182) in 2003. Ethiopia has also ratified the Dakar
Optional Protocol on Minimum Age of Admission to Employment in 1999.
The ILO Minimum Age Convention (No. 138)
The Minimum Age Convention No 138 adopted in 1973 is a comprehensive legal document
aimed at the total abolition of child labor applicable to all sectors of economic activity whether
or not children are employed for wages. The Convention elucidates a consolidation of principles
which have been established through earlier subject specific instruments. The Convention applies
to work performed by children both for another person and self-employment and requires States
175
Parties to pursue a national policy designed to ensure the effective eradication of child labour
and to raise progressively the minimum age for admission to employment or work to a level
consistent with the fullest physical and mental development of young persons. In addition, States
Parties to the Convention are obliged to specify the minimum age for employment within their
jurisdiction. It is supplemented by Recommendation No. 146 which provides the broad
framework and essential policy and enforcement measures for the prevention of child labour.
The ILO Worst Forms of Child Labour Convention (No.182)
ILO Worst Forms of Child Labour Convention (Convention No 182) is another basic Convention
adopted on 17 June 1999. The Convention is supplemented by Recommendation (No.190).
Article 1 of the 1999 Convention requires States Parties to take immediate and effective
measures to secure the prohibition and elimination of the worst forms of child labour. The
Convention and Recommendation apply to all children under the age of eighteen years and to all
forms of work.
Article 3 of the Convention defines “the worst forms of child labour” as work likely to harm the
health, safety or morals of children”. States Parties are given the discretion to flesh out which
types of work fit this description by virtue of Article 3(d) of the 1999 Convention.
The worst forms of child labour” includes:-
 All forms of slavery and practices similar to slavery, such as the sale and trafficking
of children, debt bondage and serfdom and forced and compulsory labour, including
forced or compulsory recruitment of children for use in armed conflict;
 The use, procuring or offering of a child for prostitution, for the production and
trafficking of drugs; and
 Work, which by its nature or the circumstances in which it is carried out, is likely to
harm the health, safety or morals of children.
The guidelines set forth in paragraph three and four of Recommendation No 190 stipulate the
following as constituting hazardous work:-
 Work which exposes children to physical, psychological or sexual abuses;

 Work underground, under water or at dangerous heights;
176
 Work with dangerous machinery, equipment and tools, or which involves the manual
transport of heavy loads;
 Work in an unhealthy environment which may expose children to hazardous
substances, agents, or to extreme temperatures, noise levels, or vibrations; and
 Work under particularly difficult conditions such as for long hours, during the night
or work where the child is unreasonably confined to the premises of the employer.
Member States to the ILO Worst Forms of Child Labour Convention as supplemented by
recommendation (no.190) are required to take the following measures to combat worst forms of
child labour:
 design and implement programmes of action to eliminate the “worst forms of child
labour”
 design appropriate mechanisms for monitoring implementation;
 take time-bound measures for prevention; and
 provide support for removal of children from the “worst forms of child labour” and for
their rehabilitation and access to free basic education or vocational training
Ethiopian Legal Provisions Relating to Child Labour
Article 36 (1)(d) of the Constitution of the Federal Democratic Republic of Ethiopia (FDRE)
stipulates that every child has the right “not to be subject to exploitative practices, neither to be
required nor to be permitted to perform work which may be hazardous or harmful to his
education, health or well-being”. Article 41 of the FDRE Constitution also requires the state
machinery to allocate resources to provide for rehabilitation and assistance to children who are
left without parents or guardians within available means.
As a Member State to the CRC and the aforementioned instruments, Ethiopia is obliged to
provide for a minimum age or ages for admission to employment, appropriate regulation of the
hours and conditions of employment and appropriate penalties or other sanctions to ensure
effective enforcement.440 To this effect, Ethiopia has adopted various action plans and strategies
to address the incidence of child labour. These include Education and Training Policy, National
440
177
Plan of Action for Children, the National Action Plan on Sexual Abuse and Exploitation of
Children, and the Draft National Action Plan on the Elimination of the Worst Forms of Child
Labour in Ethiopia.
The Revised Family Code specifies obligations owed to children by their parents. These include
duty to maintain contact, duty of care of the person of the child, fixing the place of residence of
the child, watching over the health of the minor, taking necessary measures in case of sickness of
the child, direct the upbringing of the child, takes the necessary disciplinary measures for the
purpose of ensuring his upbringing, direct and supervise the social contacts of the child and
ensuring that the child receives general and professional education commensurate to his age.
In particular, Article 215 of the Revised Family Code stipulates a duty on guardians to ensure the
safety and welfare of the child’s physical and intellectual development. Article 195 of the
Revised Family Code provides that adoption agreement approved by a court of law would be
subject to revocation if the adoptive parent enslaves the child, engages the child in immoral acts
for gain, or handles the child in any other manner detrimental to his or her future. The
observance of these obligations by parents is of utmost importance for the prevention of child
labour.
On the other hand, the Ethiopian Civil Code provides for the sanctions and remedies for
exploitation and abuse of a child. By virtue of Article 2052 of the Civil Code failure to educate
or supervise any person under one’s care entails extra-contractual liability. The remedies
envisaged under the Civil Code take the form of compensation.
Article 576(1) of the Criminal Code prohibits the maltreatment of children. It stipulates that
“whosesoever, having the custody or charge of a minor, ill-treats, neglects, over tasks or beats
him for any reason or in any manner is punishable with simple imprisonment not exceeding three
months.”
Article 576(2) of the Criminal Code further submits that the punishment shall be, in addition to
the deprivation of family rights of the criminal, simple imprisonment for not less than one year
where the crime causes grave injury to the health, well-being, education or physical or
psychological development of the minor.
178
Article 659 of the Criminal Code provides that a parent or other person exercising the authority
of guardian or tutor, who for gain or in dereliction of his duty (a) grossly neglects the children
under his charge and abandons them without due dare and attention or to a moral or physical
danger, or (b) entrusts a child for a long time to a person, an organization or an institution with
whom or where he knows, or could have foreseen that it will be reduced to physical or mental
destitution, or will be physically or psychologically endangered is punishable with simple
imprisonment or fine.
In regard to prostitution, Article 635 of the Criminal Code states that a person who traffics in
children with the intention of gratifying the passions of others whether by seducing them, or by
procuring them or otherwise inducing them to their interest is punishable. Similarly, the Code of
Petty Offences prohibits immoral soliciting and debauchery.
The Criminal Code also sanctions trafficking and sale of children as grave offences.
Accordingly, Article 596(1) of the Criminal Code stipulates that “whoever forcibly enslaves another,
sells, alienates, pledges, or buys him, or trades or traffics in or exploits him in any manner; or keeps or
maintains another in accommodation of slavery, even in a disguised form, is punishable with
rigorous imprisonment from five years to twenty years, and fine not exceeding fifty thousand
Birr.
Article 596(2) of the Code goes on to state that “whoever, in order to deliver him at his place of
destination, carries off or transports a person found in situations stated above whether by land, by
sea or by air or conducts or aids such traffic is liable to the same punishment.” The punishment
shall be rigorous imprisonment from ten years to twenty years where the crime is committed
against children, women, feeble-minded or sick persons by virtue of Article 596(3).
Article 597 provides that whoever by violence, threat, deceit, fraud, kidnapping or by the giving
of money or other advantage to the person having control over a women or a child, recruits, receives,
hides, transports, exports or imports a women or a minor for the purpose of forced labour is punishable
with rigorous imprisonment from five years to twenty years and fine not exceeding Birr fifty
thousand.
Article 640 of the Criminal Code pertains to the issue of child pornography. It reads whoever
makes, imports or exports, transports, receives, possesses, displays in public, offers for sale or
179
hires, distributes in writings, images, posters or other objects which are obscene or grossly indecent, or
in any other way traffics or trades in them; or advertises, indicates or makes known, by any means,
how or from whom such objects may be procured or circulated either directly or indirectly is
punishable with simple imprisonment of not less than six months and fine, without prejudice to
the forfeiture and destruction of the incriminating materials.
Article 644 of the Criminal Code states that whoever for gain or to provoke publicly displays
video, or in a shop window, in a booth or in any other place visible form without writings,
images, or objects such as to stimulate unduly, to prevent or to misdirect the sexual instinct, or to
arouse or to stimulate unduly brutal or bloodthirsty instinct, or anti-social feelings or feelings which are
inimical to the family spirit or knowingly offers, lends, gives or sells such object, images or writings to
the minor, is punishable with simple imprisonment from six months to three years and fine, without
prejudice to the forfeiture of the incriminating martial where appropriate.
Minimum Age for Admission to Employment under the Labour Code
The Labour Proclamation No.377/2003 also contains various provisions pivotal for the purpose
of addressing child labour. It is the most important piece of legislation for addressing child labour. Article
89 of the Proclamation provides that a “young worker” is a person who is between the ages of 14 and 18.
It also prescribes that no one may employ persons under 14. Thus, the law prohibits the
employment of young persons in work which by their nature and/or the conditions under which
they are carried out endanger the lives or health of young workers performing them.
Worst Forms of Child Labour under the Labour Code and Relevant Guidelines
The Ministry of Labour and Social Affairs (MOLSA), the Government organ entrusted with the
responsibility of implementing the Proclamation is empowered to prescribe the list of activities
prohibited to young workers. These, among others, include:
1. Work in the transport of passengers and goods by road, railway, air and internal water
way, docksides and warehouses involving heavy weight lifting, pulling or pushing or any
other related type of labour;
2. Work connected with electric power generation plants, transformers or transmission

lines;
180
3. Underground work such as mining, quarries and similar works; and
4. Works in sewers and digging tunnels.
The Ministry also adopted a directive containing prohibited activities in addition to those listed
in the Proclamation. Accordingly, the engagement of child workers in the following activities is
prohibited.
 Engaging in construction activities that require standing on scaffoldings.
 Work in sewers and tunneling activities.
 Work in street cleaning and sewerage of toilets.
 Work in alcoholic beverages and cigarette production.
 Work in hotels, motels and night clubs.

 Works in too cold areas or in areas of high temperature or in areas of dangerous radiation.
 Work in buildings, grindings, cuttings and shaping of metallic objects.
 Work in felling of logs.
 Work in mixing chemicals, which are dangerous to health by their nature.
 Other works which entail moral as well as physical hazards.

Furthermore, the Directive issued by MOLSA has determined various weights of goods that may
be moved from place to place in the following manner.
 If the transport is to be wholly accomplished manually and the young worker is engaged in
such activity continuously, the weight of the good to be unloaded, loaded, pushed, pulled,
etc. must not exceed 7 kgs. If, on the other hand, work is to be done only occasionally, the
weight of the good may only be as high as 11 kgs.
 If the above mentioned manual work involves ascending and descending, for continuous
work the weight must be 5 kgs. For non-continuous work, the weight May go to 9 kgs.
 If the work is to be done using 1 wheeled cart and the ground is not leveled, the weight of
the material to be transported must not exceed 16 kgs. But if the ground is leveled, the
weight may go to 20kgs.
181
 If the transport of the goods is to be performed using a two-wheeled cart and if the ground
is not leveled, the weight of the goods must not exceed 30 kgs. On the other hand, if the
ground is leveled the weight must not exceed 45 kgs.
 If the transport of goods by young workers involves a three-wheeled cart and the ground is
not leveled, the weight of the goods to be transported must not exceed 55 kgs. If, on the
other hand, the ground is leveled, the weight of the goods may be 60 kgs.
Regulation of Hours and Conditions of Employment under the Labour Code
The Labour Proclamation stipulates that normal hours for young workers shall not exceed seven
hours a day, which is one hour shorter than the normal working hours determined for adult
workers. As far as night and overtime work is concerned, children are protected from being
engaged in night works between 10:00 p.m. and 6:00 a.m, overtime work, work on weekly rest
days or public holidays
Contract of apprenticeship for young workers is also governed by the Labour Proclamation.
According to its Article 48, only young persons who have attained the age of 14 qualify to
conclude a contract of apprenticeship. As such, a contract of apprenticeship takes place “when an
employer agrees to give a person complete and systematic training in a given occupation”. Such
a contract is further expected to show the nature and duration of the training in the
apprenticeship, the remuneration to be paid and the conditions of the work. Of course, the law
does not tell the time in which the training takes place nor the types of activity to be carried out
during such training. But we can infer these and other related gaps are covered by the general
provisions of child labour referred to above.
Article 48(3) of the Labour Proclamation provides that a contract of apprenticeship and its
modifications shall only be valid when they are made in writing and attested to by the Ministry.
In addition, Article 170 of the Proclamation has empowered MOLSA to issue directives where
necessary in consolation with other concerned organs, regarding the types of occupation and
works in which apprenticeship is needed to be given and the duration thereof.
The Labour Proclamation applies to employment relationships within the private sector. On the
other hand, Article 14(a) of the Federal Civil Servants Proclamation No.515/2007 provides that
persons under 18 are not eligible to be civil servants.
182
8.3.2. Children and Drug Abuse
Article 33 of the CRC concerns itself with children and drug abuse. The provision focuses on the
protection of children from drug abuse. It requires Member States to take all appropriate
measures to protect children from illicit use of narcotic or psychotropic substances. These
include opiates, coca leaves, cannabis products like marijuana, amphetamine-type stimulants or
any other psychotropic/psychoactive drug capable of producing a state of dependence or the
abuse of which could lead to social and public health problems warranting international
control.441
Article 33 requires states to take legislative, administrative, social and educational measures
against drugs. As discussed earlier, involvement in drugs is one of the activities characterized
among the “worst forms of child labour” by the ILO.
Article 525 of the Criminal Code prohibits the production, making, trafficking is or using
poisonous or narcotic and psychotropic substances. The provision imposes a penalty of rigorous
imprisonment for not less than five years, and fine not exceeding one hundred thousand Birr.
However, the penalty is aggravated to rigorous imprisonment for not less than ten years, and fine
not exceeding two hundred thousand Birr if, among others, the crime is committed in places
where children or young students engage in educational, sporting or other social activities.
Similarly, the penalty is also aggravated if the offender employed children or a person with
mental illness as a means for the commission of the crime. Child endangerment by the provision
of dangerous substances is also punishable under Article 531 of the Criminal Code. Article 185
of the Criminal Code also authorizes the admission of a child in conflict with the law to a
curative institution if he or she is found to be addicted to dangerous substances. In the same vein,
the Drug Administration and Control Proclamation (Proclamation No. 176/1999) also prohibits
and inculpates the aforementioned acts involving illicit drugs.
8.3.3. Sexual Exploitation of Children

Article 34 of the CRC concerns itself with the protection of children from all forms of sexual
exploitation and sexual abuse. Article 4 of the Universal Declaration on Human Rights (UDHR)
prohibits slavery and all forms of servitude. The prohibition of forced and compulsory labour is
441
183
also echoed in Article 8 of the International Covenant on Civil and Political Rights (ICCPR). The
protection of children from forced labour or prostitution has long been highlighted.442 The
protection of children against sexual exploitation is also affirmed under Article 27 of the African
Charter on the Rights and Welfare of the Child.
The term “sexual encounters” encompasses intercourse, genital contact, fondling or an encounter
with exhibitionist.443 Sexual abuse refers to the involvement of dependent, developmentally
immature children and adolescents in sexual activities that they do not fully comprehend, to
which they are unable to give informed consent or that violates the social taboos of family
roles.444 Though all forms of sexual exploitation are abusive, sexual exploitations is performed
for financial gain.445 In other words, sexual exploitation implies a commercial connotation.446
Article 34 of the CRC requires states parties to undertake measures to protect the child from all
forms of sexual exploitation and abuse. In particular, Member States are required to take all
appropriate national, bilateral and multilateral measures to prevent:
 The inducement or coercion of a child to engage in any unlawful sexual activity;

 The exploitative use of children in prostitution or other unlawful sexual practices; and
 The exploitative use of children in photographic performances and materials.
In other words, States Parties are required to prevent three interrelated forms of exploitation,
namely sexual abuse, prostitution and use in pornography. These forms of exploitative use of
children are also linked with the sale of and trafficking in children.447 Article 19 of the CRC also
provides for protection against sexual exploitation and sexual abuse of children while in the
home or in the care of other persons having responsibility for the child while in the home or in
the care of other persons having responsibility for the child. Article 19 of the CRC is more
related with “physical and mental abuse” but also makes mention of “sexual abuse”. Article 34
complements this protection provided under Article 19 of the CRC.
442
443
M Freeman, The moral status of Children: Essays on the Rights of the Child (1997) 261
444
M Freeman, The moral status of Children: Essays on the Rights of the Child (1997) 262
445
Geraldine Van Bueren, “Child Sexual Abuse and Exploitation: a Suggested Human Rights Approach’ 2
International Journal of Children’s Rights (1994) 14
446
Geraldine van Bueren, The International Law on the Rights of the Child (Martinus Nijhoff Oublisher, the Hague,
1998) 275
447
184
The General Assembly of the United Nations also adopted the Optional Protocol to the
Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child
Pornography in May 2000. This Optional Protocol entered into force on 18 July 2002. The
protocol is adopted with a view to adopt a holistic approach in addressing contributing factors
including irresponsible adult sexual behavior, harmful traditional practices and trafficking in
children to facilitate the elimination of the sale of children, child prostitution and child
photography.
Article 2 of the Protocol provides the definition of the terms “child prostitution” and “child
pornography”. Accordingly, child prostitution is defined, as “the use of a child in sexual
activities for remuneration or any other form of consideration”. On the other hand, child
pornography is defined as “any representation, by whatever means, of a child engaged in real or
simulated explicit sexual activities or any representation of the sexual parts of a child for
primarily sexual purposes”.
States Parties to the Protocol are required with the responsibility to prohibit the sale of children,
as well as the practice of child prostitution and child pornography through implementing and
disseminating laws, taking administrative measures, developing social policies and programs to
prevent the offence. Moreover, Member States are also required to provide appropriate support
services to child victims throughout the legal process and ensure child victims have access to
procedures to seek compensation for damages. Member States must also facilitate assistance for
the social reintegration of child victims by virtue of Articles 8 and 9 of the Optional Protocol.
One of the measures that Ethiopia needs to take to prevent the sexual abuse and exploitation of
children is that of accession to and ratifying Optional Protocol to the Convention on the Rights of
the Child on the Sale of Children, Child Prostitution and Child Pornography and international
instruments pertaining to trafficking.
Article 18(2) of the Constitution provides that “no one shall be held in slavery or servitude.
Trafficking in human beings for whatever purposes is prohibited.” Accordingly, no one shall be
held in slavery or servitude and holding a child in slavery like practices or servitude as well as
trafficking is a prohibited act. Article 36(1)(d) of the Constitution bars the subjection of children
to exploitative practices. It reads:
185
Every child has the right…not to be subject to exploitative practices, neither to be
required nor permitted to perform work which may be hazardous or harmful to his or her
education, health or well being.
Ethiopia has included various provisions in its legislations against sexual offences. These
provisions can be found in the Criminal Code. These include rape, sexual outrage, homosexual
and other indecent acts and others. Apart from the fact that the commission of the acts constitutes
crimes, attempt to commit these offence is also punishable. The following is a brief description
of these acts and the penalties they bear. Other related offences not touched upon in the
following sections are discussed in the relevant provisions.
8.3.3.1. Age of Sexual Consent and Sexual Outrage

The topic of age of sexual consent has been touched up on in Unit One in connection with the
definition of minimum protective ages in Ethiopian legislation. It has been stated that Ethiopian
laws do not clearly stipulate a minimum age below which children are said to be incapable of
giving valid consent to sexual activity involving others. However, Article 626(1) of the Criminal
Code provides that performance of sexual performance with a child who is between the age
ranges of thirteen and eighteen constitutes the offence of sexual outrage irrespective of consent
on the part of the victim. Therefore, the age of sexual consent in Ethiopia is 18 both for boys and
girls. Moreover, the presumption that children below the age of 18 cannot consent for sexual
activity is absolute.
The issue of the age of sexual consent was at the heart of the matter in Cassation File No. 46412
before the Cassation Bench of the Federal Supreme Court. The consideration of this case is
instructive as it demonstrates the current jurisprudence of the court on this matter. The decision
was rendered on November 9, 2010.
The case relates to crimes of sexual outrage committed against children who have attained the
age of 13 but are below 18. The case started at High court of Harari National Regional State
upon the charge submitted by the prosecutor. The defendant (Bona Ahmed) was charged with the
crime of rape in violation of Article 620 of the Criminal Code. The charge recounts that the
defendant compelled (Zemu Ahmed) , a 15 year old girl, to submit to sexual intercourse by the
use of violence and grave intimidation after having rendered her unconscious or incapable of
186
resistance on November 17, 2007 at 10PM in the evening at a place called Nede Gobe. The
charge states that the defendant closed the door behind the girl prevented her from shouting and
calling for help holding her mouth and nose. The defendant pleaded not guilty. However, the
court acquitted the defendant based on the argument that the prosecution witnesses and evidence
confirms that the defendant performed sexual intercourse with the private complainant
consensually and not forcibly.
The prosecutor took appeal from the judgment to the Supreme Court of Harari National Regional
State. The Supreme Court looked into the case having summoned the parties and confirmed that
the defendant has performed sexual intercourse on the private complainant. However, it framed
the issue whether or not the crime alleged falls within the ambit of Article 620 of the Criminal
Code. The Supreme Court noted that the age of the defendant was 16 at the time of the
commission of the alleged crime, whereas the age of the victim is 15 years old. The Court went
on to state that the Criminal Code is silent as to what should be done in such circumstances. The
Court further observed that Article 2(3) of the Criminal Code states that the court may not create
crimes by analogy. In the end, the Supreme Court of Harari National Regional State confirmed,
in principle, the decision of the High Court of the Region.
The present cassation petition is presented based on the foregoing background. The prosecutor
submitted a cassation petition of three pages dated May 6, 2009. The petition of the prosecutor
alleges the commission of a fundamental error of law by the courts of Harari National Regional
State in this regard. In particular, the petition submits that the decisions of the lower courts are
contrary to Articles 2(3), 56, 211 and 626 of the Criminal Code and Article 113(2) of the
Criminal Procedure Code. The prosecutor has also asserted that relief has been sought at the tiers
of court demanding the courts to find the defendant in violation of Article 626 (1) of the
Criminal Code. Since the Cassation Division is of the belief that the petition submitted by the
prosecutor needs to be considered, the parties have been summoned and have given their written
submissions to the court.
187
Having briefly outlined the background of the case, the Cassation Bench of the Federal Supreme
Court examined the case framing the issue whether or not the acquittal of the present respondent
is appropriate.
It is possible to understand from the proceedings of the courts of Harari National Regional State
in the case that both courts have established the fact that the respondent has performed sexual
intercourse with the private complainant aged 15 years old. The counsel for the respondent
contended before the Cassation bench that there is no evidence confirming that the respondent
has performed acts of sexual intercourse with the girl. However, this contention of the legal
counsel is not tenable owing to the fact that the Cassation Bench does not have the jurisdiction to
reexamine the position of the courts of the Regional State concerning their measure and
assessment of standard of proof and conclusions thereof based on Article 80(3)(a) of the FDRE
Constitution and Article 10 of Federal Courts Establishment Proclamation (Proclamation No.
25/1996).
It has been established that the respondent was 16 years old when he performed sexual
intercourse with the private complainant. The respondent was acquitted by the courts of the
Regional State on the contention that Article 626(1) of the Criminal Code is silent in cases where
the ages of the private complainant and that of the perpetrator is within the range of 13 up to 18.
Article 626(1) of the Criminal Code stipulates that “whoever performs sexual intercourse with a
minor of the opposite sex, who is between the ages of thirteen, and eighteen years, or causes her
to perform such an act with him is punishable with rigorous imprisonment from three years to
fifteen years.” The Court observed that the term “whosoever” in this provision indicates that the
matter should be viewed in the light of Articles concerning criminal responsibility as provided
under Articles 48 up to 56 of the Criminal Code. In particular, the court noted the reading of
Article 56 demonstrates that young persons between the age ranges of 13 up to 18 are not
exonerated from criminal liability. Thus, there is no reason to suggest that the respondent is
exonerated from criminal liability considering his age at the time of the commission of the crime.
The main focus of Article 626(1) of the Criminal Code is that inducing or compelling a minor
between the age ranges of 13 up to 18 or causing the minor to perform such an act entails
criminal responsibility. The fact that the age of the perpetrator who committed sexual intercourse
with a girl between the ages of thirteen, and eighteen years, happened to be in the same range
188
does not exonerate him from criminal responsibility. Article 211(1) of the Criminal Code states
that prosecution and enforcement of penalty is a public proceeding and is instituted by the public
prosecutor in all cases unless the law provides otherwise. Consequently, the commission of acts
alluded to in Article 626(1) may not necessarily bring about criminal responsibility upon the
private complainant. The intention of the lawmaker is not to conclude that boys and girls
between the ages of thirteen, and eighteen years and who perform sexual intercourse are immune
from criminal responsibility. On the contrary, the intention of the lawmaker is that of preventing
children within these age ranges from being exposed to harm. The court further noted that the
invocation of Article 2(3) of the Criminal Code by the courts of the Regional state is misplaced.
The Cassation Bench went on to conclude that if the fact that the respondent has performed
sexual intercourse is established with a 15 year old girl, ruling should have been given requiring
the respondent to defend based on Article 113(2) of the Criminal Procedure Code in the light of
Article 56 and Article 626(1) of the Criminal Code. Therefore, the decisions of the lower courts
affirming that the respondent does not bear criminal responsibility is contrary to Article 56,
Article 211(1) and Article 626(1) of the Criminal Code and the purpose of the Criminal Code.
Therefore, the court ruled that there is a fundamental error of law in the judgments of the lower
courts and repealed the judgments remanded the case to the lowest tier of court.
8.3.3.2. Rape of a Girl between Thirteen and Eighteen Years of Age

The Ethiopian Criminal Code establishes penal sanctions on those found guilty of rape, including
rape of a young woman between thirteen and eighteen years of age. Article 620(1) of the
Criminal Code defines rape as compelling a woman to submit to sexual intercourse outside
wedlock, whether by the use of violence or grave intimidation or after having rendered her
unconscious or incapable of resistance. Article 620(2)(a) provides that the punishment shall be
rigorous imprisonment from five years to twenty years where the offence is committed on a
young woman between thirteen and eighteen years of age. However, the punishment may be
aggravated to rigorous imprisonment from five to twenty five years as stipulated under Article
628. Article 628 of the Code stipulates that the punishment shall be rigorous imprisonment
ranging from five years to twenty five years, where the relevant provision does not prescribe a
more severe penalty, where
189
 the victim becomes pregnant; or
 the criminal transmits to the victim a venereal disease with which he knows himself to be
infected; or
 the victim is driven to suicide by distress, anxiety, shame or despair.
Moreover, Article 620(3) of the Criminal Code provides that the punishment shall be life
imprisonment where the rape has caused grave physical or mental injury or death. Article 620(4)
authorizes the application of other provisions of the Code concurrently where the rape has caused
grave bodily or mental injury or death, or where it has involved illegal restraint or abduction of
the victim.
Consequently, Article 555 of the Criminal Code is of particular relevance since it addresses
grave bodily or mental injury. It provides for punishment with rigorous imprisonment not
exceeding fifteen years, or with simple imprisonment for not less than one year where a person
intentionally:
 wounds a person so as to endanger his life or to permanently jeopardizes his physical or

mental health; or,
 maims his body or one of his essential limbs or organs, or disables them, or gravely and
conspicuously disfigures him; or,
 in any other way inflicts upon another an injury or disease of a serious nature.
Accordingly, if a person is found guilty of rape on a girl child between thirteen and eighteen
years of age and causing her grave injury because of the rape, the punishment for each crime will
first be determined separately. Afterwards, to determine the total punishment, the court will add
the number of years of rigorous imprisonment up to a total punishment of rigorous imprisonment
for life under Articles 184(1) (b) and 108(1) of the Code.
8.3.3.3. Sexual Outrage against Children

Article 626(1) defines sexual outrage on minors as performing sexual intercourse with a child of
the opposite sex or causing a child of the opposite sex to perform sexual intercourse. It includes
all incidents of sexual intercourse with a child that does not fall under the provision dealing with
rape on a girl child between the ages of thirteen and eighteen. Accordingly, the definition of
190
sexual outrage includes not only conduct involving violence or other forms of coercion, but also
all sexual activity with a child whether or not it is consensual. Therefore, sexual activity with a
child below the age of 18 renders the perpetrator directly responsible for the crime of sexual
outrage. Moreover, sexual outrage applies to all children. Thus, sexual intercourse with a boy
child is addressed under the provisions of the Criminal Code on sexual outrage.
Article 626(4) provides that the punishment to be imposed upon such criminal shall be more
severe when the crime is committed by another person where the victim is the pupil, apprentice,
domestic servant or ward of the criminal, or a child entrusted to his custody or care, or in any
other way directly dependent upon or subordinate to him.
The crime of sexual outrage bears a penalty of rigorous imprisonment for life if the assault has
resulted in grave bodily or mental injury to or death of the victim as per Article 626(3) of the
Criminal Code. Moreover, the aggravating circumstances outlined under article 628 will be
applicable in cases falling under the first two sub-articles of Article 626. Concurrence of sexual
outrage on minors and incest through Article 660(2) will be applicable where a family member
or close relative perpetrates the outrage. However, a child victim who has consented to the act of
sexual outrage is immune from punishment except for the application of measures for his proper
upbringing and protection as alluded to in Article 661(1).
Apart from rape and sexual outrage, the Criminal Code addresses other indecent acts committed
against children. Article 627 of the Code criminalizes other indecent acts on minors of the
opposite sex. The provision prohibits performing acts corresponding to the sexual act or any
other indecent act upon a minor of the opposite sex, or induces him to perform such an act, or
deliberately perform such an act in his presence. The phrase “any other indecent act” is a general
term covering all acts of sexual nature that do not fall under rape and sexual outrage on minors
when conducted on a child by another person, where a child is in any way induced to perform
such acts, and another person or persons performing the acts in the presence of a child. These
acts bear the penalty of simple imprisonment for not less than three months, or rigorous
imprisonment not exceeding five years, where the victim is between the ages of thirteen and
eighteen years; or, simple imprisonment for not less six months, or rigorous imprisonment not
exceeding seven years, where the victim is below thirteen years of age.
191
8.3.3.4. Homosexual and other Indecent Acts on Minors
Homosexuality is defined as act of performing sexual intercourse with a person of the same sex.
It carries a punishment of simple imprisonment. However, the punishment may be aggravated
under Article 631(1) of the Criminal Code if it is committed against children. Article 631(1) of
the Code provides that performance of a homosexual act or any other indecent act on a minor is
punishable:
 with rigorous imprisonment from three years to fifteen years, where the victim is
between the ages of thirteen an eighteen years; or
 with rigorous imprisonment from fifteen years to twenty five years, where the victim is
below thirteen years of age.
Article 631(4) of the Code carries even severe penalties where there is a relationship of
dependence between the offender and the child victim, the court is directed to impose more
severe punishment. Article 631(5) provides that the punishment will be rigorous imprisonment
for life if the child victim suffered grave bodily or mental injury as a result of the offence or if
the offence led to his death or suicide. Moreover, the punishment for indecent behavior between
relatives under Article 655 will be applicable through article 660 addressing concurrence of
offences when the offence is committed by a family member or relative of the child.
Article 629 punishes both participants in the commission of a homosexual or other indecent act
between persons of the same sex. Article 661 stipulates immunity from prosecution for child
victims of such offences. Article 632 criminalizes the participation of a juridical person in sexual
outrages committed on minors. It stipulates that an institution established for the purpose of
upbringing, educating, training or in any other way taking care of children where the operation or
administration of the institution has created a favorable condition for the commission of such
offences is punishable.
8.3.3.5. Child Prostitution

Article 634 of the Criminal Code criminalizes habitual exploitation for pecuniary gain including
keeping a brothel and land lording over a house of prostitution. The provision reads that
“whoever, for gain, makes a profession of or lives by procuring or on the prostitution or
immorality of another, or maintains, as a landlord or keeper, a brothel, is punishable with simple
192
imprisonment”. Article 636(b) aggravates the punishment to rigorous imprisonment not
exceeding five years, and fine not exceeding ten thousand Birr if the victim is a trafficking
victim.
8.3.3.6. Child Pornography

Article 639 criminalizes public indecency and outrages against morals. It prohibits the deliberate
sexual act or any other obscene act or gesture grossly offensive to decency and morals. It lays
down the punishment of simple imprisonment of three months to one year. The punishment
increases from simple imprisonment of six months to five years where it is knowingly performed
in front of a child. Similarly, Article 640 provides a punishment of simple imprisonment for not
less than one year, and fine not exceeding ten thousand Birr where the offender knowingly
exhibits, hands over or delivers such objects to a minor. Article 640(2) (b) criminalizes the
display of a simulation of sexual intercourse by minors or exhibits their genitals.
In addition to the criminal liability, sexual offence against children also entails civil liability
under the Civil Code. Article 100 of the Criminal Code envisages this where the perpetrator has
been condemned or found guilty in criminal proceedings. Article 2035/1/ of the Civil Code
provides that a person commits a fault where he infringes any specific and explicit provision of a
law, ordinance or administrative regulation’. Article 2028 states that “whosoever, by his fault,
causes damage to another, shall make it good”.
8.3.4. Prevention of Abduction, Sale and Trafficking

Article 35 of the Convention provides protection aimed at the Prevention of abduction, sale and
trafficking. This is also reflected under Article 29 of the African Charter on the Rights and
Welfare of the Child. In particular, the concept of “trafficking in children” can also be found in
Article 24(d) of African Children’s Charter. Article 29(b) of the Charter also prohibits the use of
children for begging.
Article 3 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons,
especially Women and Children (Palermo Protocol) defines trafficking as :
the recruitment, transportation, transfer, harboring or receipt of persons, by means of

threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of
the abuse of power or of a position of vulnerability or of the giving or receiving of
193
payments or benefits to achieve the consent of a person having control over another
person, for the purpose of exploitation. Exploitation shall include, at a minimum, the
exploitation of the prostitution of others or other forms of sexual exploitation, forced
labour or services, slavery or practices, similar to slavery, servitude or the removal of
organs.
Trafficking in persons can occur both internationally and domestically. There are many
provisions in the Criminal Code specifically addressing trafficking in children. The Code
criminalizes trafficking in children. Article 636 of the Criminal Code states that whoever
traffikcs in persons for gain, or to gratify the passions of another including traffic in minors,
whether by seducing them, by enticing them or by procuring them or otherwise inducing them to
engage in prostitution, even with their consent. Moreover, Article 597 of the Criminal Code
stipulates that whoever by violence, threat, deceit, fraud, kidnapping or by the giving of money
or other advantages to the person having control over a woman or a child, recruits, receives,
hides, transports, exports or imports a woman or a minor.
The reading of Article 636 of the Criminal Code shows that the consent of the victim cannot be
invoked as a defense.
Article 637 of the Criminal Code concerns itself with organization of traffic in women and
minors. It provides that:
Whoever makes arrangements or provisions of any kind for the procurement of or

traffic in women or minors is punishable with simple imprisonment, or according
to the circumstances of the case, especially where a professional procurer is
involved or where the arrangements are fully made and intended to apply to many
victims, with rigorous imprisonment not exceeding three years, and a fine which
shall not less than five hundred Birr in grave cases.
Article 585 of the Code criminalizes abduction of a woman. It defines illegal restraint as
arresting, confining or detaining or in any other way restraining the freedom of an individual in
violation of law or lawful order. Though this offence is punishable with simple imprisonment not
exceeding three years, the punishment is aggravated to rigorous imprisonment not exceeding five
years under article 590(2)(b) when performed with intent to take unfair advantage of the victim,
194
or to allow another to take advantage of him, or to use him for debauchery or prostitution as
stipulated under Article 590(1)(a). Abduction of a minor is defined under article 589(1) of the
code as follows:
Whoevever abducts another by violence, or commits such an act after having obtained his
consent by intimidation or violence, trickery or deceit, is punishable with rigorous
imprisonment from five years to fifteen years.
8.3.5. Children Belonging to a Minority or an Indigenous Group

Article 30 of the CRC concerns itself with children of minorities or of indigenous people. It
stipulates that children belonging to ethnic, religious, linguistic minorities and indigenous groups
not to be denied the right to enjoy their culture, profess and practice their religion or use their
language together with other members of their group.
The inclusion of Article 30 is justified by the sheer size of grave and concerning discrimination
against minority or indigenous populations. Article 30 mirrors Article 27 of the International
Covenant on Civil and Political Rights. Article of the ICCPR provides that “in those States in
which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall
not be denied the right, in community with the other members of their group, to enjoy their own
culture, to profess and practice their own religion, or to use their own language.”
The 2006 Declaration on the Rights of Indigenous Peoples stipulates the rights of indigenous
people to autonomous life within the dominant culture without prejudicing their equal right to
participate in the political, social and economic life of the country. Article 31(1) of the
Declaration further provides that:
Indigenous peoples have the right to maintain, control, protect and develop their cultural
heritage, traditional cultural expressions, as well as the manifestations of their sciences,
technologies and cultures, including human and genetic resources, seeds, medicines,
knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports
and traditional games and visual and performing arts. They also have the right to
maintain, control, protect and develop their intellectual property over such cultural
heritage, traditional knowledge, and traditional cultural expressions.
195
Article 39(2) of the FDRE Constitution provides that every Nation, Nationality and People in
Ethiopia including minority nationality has the constitutional right to speak, to write and to
develop its own language; to express, to develop and to promote its culture; and to preserve its
history.
196
References
Frans Viljoen , International Human Rights Law in Africa, (Oxford University Press, Oxford,
2007)
Geraldine van Bueren, The International Law on the Rights of the Child (Martinus Nijhoff, The
Hague, 1998)
Geraldine Van Bueren, ‘Child Sexual Abuse and Exploitation: a Suggested Human Rights
Approach’ 2 International Journal of Children’s Rights (1994)
Henry Steiner, Ryan Goodman and Philip Alston, International Human Rights Law in Context:
Law, Politics, Morals (Oxford University Press, Oxford, 2007)
Lawerence J LeBlanc, The Convention on the Rights of the Child: United Nations Law Making
on Human Rights (University of Nebraska Press, 1995)
Michael Gose, The African Charter on the Rights and Welfare of the Child (Community Law
Center, Western Cape, 2002)
Rachel Hodgkin and Peter Newell, Implementation Handbook for the Convention on the Rights
of the Child (3rd edn , UNICEF, Geneva, 2007)
Sharon Detrick, A Commentary on the United Nations Convention on the Rights of the Child
(Martinus Nijhoff, The Hague, 1999)
Thoko Kaime, The African Charter on the Rights and Welfare of the Child: A socio-legal
Perspective (PULP, 2009)
197

Handbook On The Rights of The Child in Ethiopia: Girmachew Alemu (PH.D.) Yonas Birmeta

Uploaded by

Copyright:

Available Formats

Handbook On The Rights of The Child in Ethiopia: Girmachew Alemu (PH.D.) Yonas Birmeta

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Handbook On The Rights of The Child in Ethiopia: Girmachew Alemu (PH.D.) Yonas Birmeta

Uploaded by

Copyright:

Available Formats

Handbook on the Rights of the Child in Ethiopia

Girmachew Alemu (Ph.D.)

Center for Human Rights

College of Law and Governance Studies

Addis Ababa University

In Collaboration with Save the Children Norway- Ethiopia

CHAPTER ONE ............................................................................................................................................... 9

DEFINITION OF CHILDHOOD UNDER ETHIOPIAN LAW ................................................................................. 9

1.1. Commencement of Childhood ........................................................................................................... 9

1.2. End of Childhood ....................................................................................................................... 10

1.3 The Concept of Childhood under Ethiopian Laws ..................................................................... 11

1.4. Definition of Specific Minimum Ages under Ethiopian Legislation .................................................. 12

CHAPTER TWO ............................................................................................................................................ 23

GENERAL MEASURES OF IMPLEMENTATION OF RIGHTS OF CHILDREN IN ETHIOPIA ................................ 23

2.1. Recognition of Child Rights in the FDRE Constitution ...................................................................... 23

2.3. Related International Human Rights Instruments ........................................................................... 26

2.4. The Need for Comprehensive Legal Reform .................................................................................... 39

2.5. Children’s Rights under Ethiopian National Policies ........................................................................ 29

2.7. Coordination of Implementation of Children’s Rights ..................................................................... 31

2.8. Independent Monitoring of Implementation of Children’s Rights .................................................. 33

2.9. Monitoring and Data Collection ....................................................................................................... 34

2.10 Partnership with Civil Society ......................................................................................................... 35

2.11 Budgetary Allocation for Children................................................................................................... 36

2.12. Dissemination, Awareness Raising and Training............................................................................ 36

GENERAL PRINCIPLES .................................................................................................................................. 38

3.1. The Principle of Non‐Discrimination ......................................................................................... 38

3.1.1. Affirmative Action ............................................................................................................. 40

3.1.3. Prohibited Grounds of Discrimination .............................................................................. 41

3.2. The Principle of the Best Interests of the Child ......................................................................... 42

3.3.1. Abortion ............................................................................................................................ 49

3.3.2. Infanticide ......................................................................................................................... 50

3.3.3. Capital Punishment ........................................................................................................... 51

CHAPTER FOUR ........................................................................................................................................... 60

CIVIL RIGHTS AND FREEDOMS .................................................................................................................... 60

4.2. The Right of the Child to Identity ..................................................................................................... 66

4.3. Child’s Right to Freedom of Expression ..................................................................................... 69

4.4. Child’s Right to Freedom of Thought, Conscience and Religion ................................................ 69

4.5. Child’s Right to Freedom of Association and Peaceful Assembly.............................................. 70

4.6. Child’s Right to Privacy .............................................................................................................. 71

4.7. Child’s Access to Appropriate Information and Role of Media ................................................. 73

FAMILY ENVIRONMENT AND ALTERNATIVE CARE ...................................................................................... 78

5.1. Parental Guidance and the Child’s Evolving Capacities ............................................................. 78

5.1.1. Responsibilities of the Child .............................................................................................. 83

5.2. Parental Responsibilities and State Assistance ......................................................................... 84

5.3. Separation from Parents ........................................................................................................... 95

5.4. Entering or Leaving Countries for Family Reunification .......................................................... 105

5.5. Illicit Transfer and Non‐Return of Children Abroad ................................................................ 107

5.6. The Right to Maintenance ....................................................................................................... 109

5.7. Children Deprived of their Family Environment ...................................................................... 110

5.8. Adoption .................................................................................................................................. 113

5.9. Child’s Right to Periodic Review of Treatment ........................................................................ 122

CHAPTER SIX.............................................................................................................................................. 134

BASIC HEALTH AND WELFARE ................................................................................................................... 134

6.1. Rights of Children with Disabilities .......................................................................................... 134

6.2. Child’s Right to Health and Health Services ............................................................................ 137

6.3. Access to Underlying Determinants of Health ........................................................................ 141

6.4. Protection against Harmful Traditional Practices .................................................................... 142

6.5. Child’s Right to Benefit from Social Security ........................................................................... 145

6.6. Child’s Right to an Adequate Standard of Living ..................................................................... 147