A Comprehensive Analysis of Administrative Rule-Making in Ethiopia: Bridging Theory, Law, and Practice under the Federal Administrative Procedure Proclamation No. 1183-2020

Introduction

Administrative rule-making stands as a pivotal function within contemporary governance, encompassing the formulation, amendment, or repeal of laws by executive and administrative agencies. In Ethiopia, this authority is predominantly exercised by the Council of Ministers, which issues regulations, and various administrative agencies, responsible for issuing directives. Both derive their legislative power from the House of People’s Representatives (HoPR). Historically, the process of directive issuance (የአስተዳደራዊ መመሪያ አወጣጥ ስርዓት) has presented a significant challenge to the principles of good governance in Ethiopia, often being perceived as a more intractable issue than administrative decision-making itself. Prior to the enactment of the Federal Administrative Procedure Proclamation (FAPP) No. 1183/2020, a notable absence of standardized, mandatory procedures characterized the issuance of administrative rules, fostering an environment of opacity and limited public engagement. Directives frequently operated as “hidden laws” (የጓዳ ህጐች) concealed within agencies, inaccessible and unknown to the public, which often led to arbitrary sanctions and the denial of benefits.

The Federal Administrative Procedure Proclamation (FAPP) No. 1183/2020 marks a transformative moment in Ethiopian administrative law. It introduces, for the first time, a universal and mandatory procedure for issuing directives, specifically designed to rectify long-standing issues pertaining to transparency, public participation, and accessibility. This Proclamation is widely regarded as a cornerstone for safeguarding individual and collective rights and freedoms, and for actively combating arbitrariness within public administration. The foundational principles underpinning FAPP are deeply rooted in three core constitutional tenets: transparency (ግልጽነት), public participation (ህዝባዊ ተሳትፎ), and accessibility (ተደራሽነት).

This report endeavors to provide a comprehensive analysis of administrative rule-making in Ethiopia. It integrates theoretical underpinnings with the practical application of FAPP, synthesizing insights from both Amharic and English legal texts. This approach offers a multi-layered perspective on the evolution, persistent challenges, and future trajectory of delegated legislation within the country. The analysis will traverse conceptual definitions, delve into the justifications for and objections to legislative delegation, examine constitutional and legal limitations, meticulously detail FAPP’s procedural and formality requirements, explore various mechanisms of control, and offer practical insights gleaned from the experiences of key administrative agencies.

1. Conceptual Foundations: Defining Administrative Rules and Delegated Legislation

The landscape of administrative law is rich with terminology, often leading to a complex understanding of how government agencies create binding norms. A clear conceptual framework is essential to navigate this domain.

Definition of Administrative Rule-Making and Delegated Legislation

Administrative Rule-Making is a comprehensive term that encompasses the entire process by which government organs, distinct from the legislative parliament or the judicial courts, formulate, amend, or repeal laws. This concept places significant emphasis on the “process, procedure, or technique” employed in this legislative activity, highlighting the procedural aspects that ensure legitimacy and accountability.

Delegated Legislation, conversely, refers to the body of laws made by the executive branch—specifically, the Council of Ministers and various administrative agencies—under the explicit authority granted to them by the legislature, the House of People’s Representatives (HoPR). It represents the exercise of legislative power by a “subordinate agency” or a “delegate” of the primary legislature. The term “delegated legislation” can also refer to the “subsidiary rules themselves” that are the tangible outcome of this exercise of power. While “administrative rule-making” broadly describes the procedural activity, “delegated legislation” is often the preferred term when discussing the final, binding product of this law-making process. Other terms frequently used interchangeably to describe this phenomenon include subordinate legislation, subsidiary legislation, secondary legislation, and quasi-legislation.

Core Characteristics of Directives as per FAPP

The Federal Administrative Procedure Proclamation (FAPP) does not employ a generic term like “rule-making” but instead focuses specifically on the “Issuance of Directive” as its primary subject. Article 2/2/ of FAPP provides a precise definition of a “Directive”: it is a legislative document issued by an administrative agency based on delegated power, which “affects people’s Rights and Interests”. This definition explicitly encompasses the “amendment, or repeal of an already existing directive,” indicating that the procedural requirements of FAPP apply equally to the creation, modification, or revocation of these instruments.

The key elements derived from this definition illuminate the nature of directives:

• Legislative Document: This implies that a directive, for all legal purposes, is considered a form of law, akin to those enacted directly by the HoPR. It is a product of a formal law-making process undertaken by the administration.
• Issued Based on Delegation of Power: A fundamental characteristic is that administrative agencies inherently lack their own rule-making powers. Their authority to legislate is entirely derived from, and contingent upon, specific delegation from the primary legislature.
• Affects People’s Rights and Interests: Directives are designed to create rights and obligations, and they possess the capacity to impose sanctions for non-compliance. Consequently, their implementation directly impacts the rights and interests of citizens and entities. However, it is important to note that the scope of this definition does not extend to all directives; for instance, those issued solely to govern the internal operations and organization of an agency may not necessarily fall under this specific definition.
• Includes Amendment and Repeal: The comprehensive nature of the FAPP’s definition ensures that the procedural requirements stipulated within the Proclamation are uniformly applied, whether an agency is creating a new directive, making changes to an existing one, or revoking a directive that is no longer necessary.

Analysis of Terminology and Nomenclature for Administrative Rules

The study of rule-making is frequently complicated by a pervasive “lack of uniformity in terminology”. This inconsistency is evident both across different legal jurisdictions and, at times, even within a single country, leading to potential confusion regarding the status and effect of various administrative instruments.

Internationally, a diverse array of terms is employed:

• In England, administrative rules may be designated as Orders in Council, rules, regulations, bylaws, or directions.
• Australia uses key terms such as legislative instruments, regulations, subordinate laws, statutory rules, and subsidiary legislation.
• In Germany, ‘ordinances’ typically refer to legislation made by the executive or government departments, while ‘bylaws’ are associated with autonomous bodies, and ‘administrative directions’ regulate internal administrative matters.

In the Ethiopian context, the most common designations are “Regulation,” which refers to laws issued by the Council of Ministers, and “Directive,” which denotes laws issued by administrative agencies. Despite this established distinction, practical implementation reveals a “multitude of names with undetermined status and legal effect”. This proliferation of terms necessitates a discerning approach to classifying administrative instruments.

A critical principle for distinguishing administrative rules is to look beyond their nominal designation and instead examine the document’s actual content and its binding legal effect. This approach is paramount for ensuring legal certainty and upholding the rule of law. If administrative bodies could circumvent FAPP’s mandatory procedures simply by labeling a binding rule as a “manual” or “guideline,” the entire reform effort aimed at enhancing transparency and accountability would be undermined. This places the burden of classification on a substantive analysis of a document’s legal force, rather than its mere title. Such an approach is also crucial for judicial review, as courts must apply this principle to determine if a challenged document, regardless of its name, is indeed a “directive” subject to their review powers under FAPP.

The FAPP’s definition of “Directive” (Art. 2/2/) explicitly states that it “does not help distinguish administrative directives from decisions” and “says nothing about the basic characteristics of directives” that govern internal operations. Yet, the subsequent analysis of various nomenclatures, such as manuals and codes, indicates that they can be classified as directives if they affect rights and interests or prescribe rules of conduct. This highlights a tension between the narrow statutory definition and a broader practical interpretation, suggesting an ongoing interpretive challenge for courts and legal practitioners. While FAPP provides a foundational definition, the complexities of administrative action necessitate a more functional approach to identifying what constitutes a “directive” for procedural compliance. This also points to a potential area for future legislative refinement or judicial clarification to explicitly address internal directives or to provide clearer criteria for distinguishing between legislative rules and administrative decisions beyond the current FAPP definition. The Cassation Bench’s previous ruling on language (before FAPP) indicates a history of judicial pragmatism in interpreting directives, which may continue in these grey areas.

To further clarify, the following are common nomenclatures and the criteria for their classification as directives:

Table 1: Typology of Administrative Rules (Nomenclature and Legal Effect)

This table underscores that the applicability of the Federal Administrative Procedure Proclamation’s rule-making procedures should not be determined solely by the name of the legal instrument, but rather by its substantive content and its potential to create rights and duties for individuals and businesses.

1. The Rationale for Delegated Legislation: Balancing Constitutional Principles and Practical Necessity

The existence of delegated legislation in modern governance presents a fundamental tension between deeply held constitutional ideals and the pragmatic demands of effective administration. While robust theoretical objections challenge its legitimacy, an equally compelling set of practical justifications underscores its undeniable necessity.

Theoretical Objections

The criticism against delegated legislation primarily stems from two foundational constitutional principles: representative democracy and the separation of powers. These theoretical arguments highlight the potential for unchecked power and a departure from democratic accountability.

Representative Democracy: The bedrock of a democratic system is the principle that elected representatives are entrusted by the populace to formulate laws. Citizens cast their votes based on the belief that their chosen representatives possess the competence and trustworthiness to govern and enact legislation that serves the public good. This forms the basis of the Principle of Non-Delegability of Power, famously encapsulated by the Latin maxim “delegata potestas non potest delegare,” meaning “what has been delegated cannot be delegated”. This theoretical objection posits that elected representatives, having received their law-making authority as a sacred trust from the people, cannot legitimately transfer this power to unelected officials. Such a transfer, it is argued, fundamentally constitutes “government by unelected officials,” thereby eroding the very essence and meaning of representative government and the electoral process itself. The power of the HoPR, as the primary legislative body, originates directly from the people, and to re-delegate this power to those not directly chosen by the electorate is seen as a betrayal of that trust.

Separation of Powers: The constitutional doctrine of the separation of powers meticulously allocates distinct functions to the branches of government: law-making to the parliament, law administration and enforcement to the executive, and law interpretation to the judiciary. This doctrine is explicitly and structurally reflected within the Ethiopian Federal Constitution, with dedicated chapters defining the roles of the House of People’s Representatives, the Executive, and the Courts. The delegation of legislative power from the parliament to the executive government “has the appearance of a considerable violation” of this sacred principle. Critics contend that this concern extends beyond mere appearance; the proliferation of executive-made directives and regulations inherently blurs the distinct roles of the branches, potentially leading to an unchecked accumulation of power and fostering “administrative abuse”. An executive body that simultaneously wields both law-making and law-enforcing powers risks degenerating into an “authoritarian” entity, as it would lack a superior oversight body to constrain its actions.

Practical Justifications

Despite the compelling theoretical objections, the “practical realities of modern administration have made delegation inevitable”. Indeed, it is widely acknowledged as “essential for an efficient and effective government”. This recognition of necessity leads to a focus not on abolishing delegation, but on establishing robust control mechanisms, a shift that is evident in the very existence of the FAPP. This implies that future legal reforms will likely continue to strengthen oversight rather than attempting to reverse the trend of delegation, acknowledging its indispensable role in effective governance. The framing of delegated legislation as a “necessary evil” subtly suggests a perpetual need for vigilance against potential abuses, even while accepting its inevitability.

The primary practical justifications for the widespread practice of delegated legislation include:

• Expertise: Modern legislation is characterized by its increasing complexity and technicality, often requiring specialized knowledge that general parliamentarians typically do not possess. Administrative agencies, by their very nature and purpose, are designed to cultivate and house such experts, making them uniquely equipped to handle intricate details. Delegating these technical aspects to agencies allows experts to formulate precise rules, thereby freeing parliament to concentrate on broader policy considerations. Attempting to establish parallel specialized institutions within parliament to acquire such expertise would be both costly and inefficient, creating a redundant bureaucratic apparatus.
• Pressure on Parliamentary Time: The legislative process within parliament is inherently lengthy and time-consuming, characterized by strict procedural requirements and limited working days. Parliament simply cannot cope with the sheer volume of detailed legislative tasks demanded by a modern, complex state. Delegating these subordinate legislative functions to the executive allows parliament to dedicate its invaluable time to high-level policy discussions and the enactment of fundamental legislation, thereby enhancing its overall efficiency and effectiveness.
• Unforeseen Contingencies and Flexibility: Primary legislation, by its very nature, cannot anticipate every conceivable future problem or local condition that may arise during its implementation. Delegated legislation provides the crucial mechanism for “speedy and flexible adjustment to fresh circumstances and technical new developments” without the cumbersome necessity of continually restarting the parliamentary legislative machinery. This adaptability is particularly vital in rapidly evolving sectors such as banking, insurance, and customs regulation, where unforeseen issues frequently emerge and demand swift regulatory responses. For instance, directives can be issued to determine provisions for substitute land based on specific urban situations or to set the types and quantities of firearms permitted based on localized security statuses, demonstrating how delegated power enables rapid adaptation to changing circumstances.
• Opportunities for Experiment: The method of delegation facilitates regulatory “experiments to be carried out” that would be impractical or impossible under the slower, more rigid parliamentary legislative process. Should rules or orders prove unsuitable or ineffective, they can be “revoked or amended” with far greater ease and speed than primary statutes, allowing for a more agile and responsive regulatory framework.
• Emergency Powers: In situations demanding “rapid and effective action” to safeguard national interests, it becomes essential to equip the government with “extraordinary powers”. Delegated legislation provides the mechanism for the executive to issue necessary directives quickly, often within a week or even less, a stark contrast to the lengthy process required for proclamations. This enables swift responses, such as restricting movement during a pandemic outbreak, without the delays inherent in full parliamentary procedures. This also extends to situations requiring confidentiality, where prior public knowledge might undermine the directive’s intended objective. For example, a directive from the Government Housing Agency aimed at regulating illegal sub-letting might fail if its measures become known prematurely, allowing rule-breakers to circumvent enforcement.

The interplay between these practical justifications and FAPP’s procedural framework is significant. FAPP’s procedural exemptions (Art. 11) for “emergencies,” situations “contrary to Public Interest,” or where notice might “undermine the implementation of the directive” directly respond to these practical needs. For instance, the necessity for quick action in emergencies, such as issuing COVID-19 related directives, is mirrored by the exemption from standard notice and consultation requirements. Similarly, the need for confidentiality, as illustrated by the Government Housing Agency example, aligns with the “undermine implementation” exemption. This demonstrates a deliberate attempt by the Ethiopian legislature to balance the need for administrative efficiency and responsiveness (driven by practical justifications) with the principles of transparency and participation (enshrined in the general FAPP procedures). However, the Proclamation’s instruction to interpret these exceptions “narrowly” and require “detailed justification” indicates an awareness of the potential for abuse, reinforcing the idea that while practical needs are acknowledged, they should not become loopholes for arbitrary rule-making. This creates a legal tension that courts are tasked with navigating in practice.

III. Constitutional and Legal Limitations on the Power of Delegation

While the practical necessity of delegated legislation is widely accepted, its inherent risks necessitate robust constitutional and legal limitations to prevent the abuse of power and safeguard fundamental rights. The extent and nature of these limitations vary across jurisdictions, often shaped by historical experience and constitutional design.

Non-Delegable Matters

Many national constitutions remain silent on the explicit limits of legislative delegation. However, in several jurisdictions, courts have progressively evolved limitations, while others, like Germany, have enshrined express limits in their basic laws. The historical misuse of delegation under the Weimar Constitution serves as a potent cautionary tale, leading to stringent measures in the German Basic Law.

Certain matters are generally considered to be non-delegable, meaning they should remain exclusively within the purview of the primary legislature:

• Policy Matters: The House of People’s Representatives (HoPR), as the supreme legislative body, retains the inherent power to legislate on fundamental policy matters, particularly those assigned to Federal jurisdiction under Article 51 of the FDRE Constitution. Before any delegation occurs, the HoPR is obligated to define the “basic principles and policy issues” that will guide the delegated authority. Important policy questions, especially those with direct implications for individual rights, are broadly considered inappropriate subjects for delegated legislation.
• Prescribing Offenses: Provisions that create criminal offenses, including civil penalties, are generally understood to belong exclusively within the realm of primary legislation. This ensures that serious infringements on liberty are defined by directly elected representatives.
• Imposing Taxation and Administrative Penalty: The power to levy taxes and impose administrative penalties is deemed an “essential legislative power” that should not be transferred to administrative agencies. This restriction is crucial due to the “huge risk of abuse of power” if unelected officials were granted the discretion to determine the financial burdens on individuals and private entities, or to impose fines and other administrative sanctions.
• Amending, Altering, or Modifying an Act of Parliament (“Henry VIII” clauses): Clauses that empower a minister to amend primary statutes or other acts through delegated legislation are considered “constitutionally problematic”. Such provisions are “unknown in Ethiopia” and would be deemed unconstitutional, as they would permit a subordinate organ to unilaterally alter the foundational legislation enacted by the primary legislature.
• Vague Grants of Discretionary Rule-Making Power: Delegated power must not be so broad or ill-defined that it renders judicial review of its limits practically impossible. German law, for instance, explicitly requires that the “content, purpose and scope of the authorization” to make ordinances must be “sufficiently defined”. This ensures that citizens can foresee what is required of them directly from the authorizing law itself, rather than having to deduce it from the subsequent ordinance.

Constitutional Tests for Delegation in Different Jurisdictions

The necessity of delegated legislation for effective administration is undeniable, yet the transfer of unlimited and overly broad legislative authority carries significant dangers, potentially leading to catastrophic consequences if the legislature abdicates its fundamental law-making power.

• German Basic Law (Article 80): Following the profound misuse of power during the Nazi era, the German Basic Law introduced stringent measures to curb unlimited delegation. Article 80, clause (1) of the Basic Law stipulates that while the Federal Government, a Federal Minister, or Land Governments may be authorized by law to issue ordinances, “The content, purpose and scope of the powers conferred must be set forth in the law” that grants such authorization. Any delegation that fails to conform to this precise standard will be nullified by the courts. This provision was a direct response to the historical context where unlimited delegation under the Weimar Constitution contributed to the rise of Nazism.
• Indian “Essential Legislative Function” Test: In India, courts employ the “essential legislative function” test to determine if there has been an excessive delegation of legislative power. The Supreme Court of India has affirmed that “essential powers of legislation cannot be delegated”. This means the legislature is prohibited from delegating its core function of “laying down legislative policy” or its “formulation as a rule of conduct”. Instead, the legislature must “declare the policy of the law and the legal principles” and “provide a standard to guide the officials” who are tasked with executing the law.
• US “Intelligible Principle” Doctrine: In the United States, the non-delegation doctrine serves as a constitutional restriction on Congress’s ability to delegate its fundamental legislative power. While Congress cannot entirely delegate its legislative power, it is permitted to transfer rule-making power to agencies if it provides an “intelligible principle” to guide the agency’s exercise of that power. This doctrine theoretically ensures that Congress establishes broad policy objectives, leaving agencies to fill in the necessary details. In practice, however, this standard has been interpreted quite broadly, though the current US Supreme Court has indicated an interest in revisiting its application.

The Ethiopian context regarding constitutional limits on delegation aligns more closely with jurisdictions like the US, India, or Australia, where the constitution is largely silent on the question of delegation, necessitating judicial evolution of limitations. The absence of explicit constitutional limits on the legislature’s power to delegate means that the burden of defining and enforcing these boundaries falls heavily on the judiciary and the legislature’s self-restraint. The FAPP, by formalizing procedures and establishing grounds for judicial review, implicitly acts as a statutory limitation on the exercise of delegated power, even if the power to delegate itself is not constitutionally curtailed. This creates a dynamic where judicial review, specifically under FAPP’s ultra vires ground, becomes the primary constitutional check on the scope of delegated legislation in Ethiopia.

Modes of Delegating Power in Ethiopia

Legislative power is transferred from the House of People’s Representatives (HoPR) to the Council of Ministers and administrative agencies primarily through four distinct mechanisms:

• General Legislative Power of Implementation: This is a common form of delegation, typically found in the concluding sections of primary legislation. It empowers the Council of Ministers or administrative agencies to issue regulations or directives deemed “necessary for the implementation of this Proclamation”. While the term “implementation” can be broad, the scope of such powers is understood to be limited to giving effect to the primary legislation, rather than permitting the creation of laws on matters not indicated therein.
• Special Legislative Power on Specific Issues: In this mode, a provision within a proclamation broadly delegates legislative power concerning specific, often technical, matters. This can result in what is sometimes termed ‘skeleton,’ ‘coat-hanger,’ or ‘framework’ legislation, where the primary legislation provides only the “bare bones,” and the majority of the detailed law is contained within the delegated legislation. When delegation is specific, directives or regulations can only be issued on the explicitly stated matters. For example, the Investment Proclamation No. 1180/2020, Article 32/4/, mandates the Investment Board to adopt a Directive determining its overall working procedure, meeting conduct, and decision-making processes. The board’s power to issue directives under this provision is strictly confined to these specified areas.
• Establishment and Reorganization Legislative Power: This mechanism involves the delegation of power to the Council of Ministers to create, modify, dissolve, or reorganize administrative agencies. This practice, which first appeared in Proclamation No. 603/2008, has effectively resulted in a practically permanent transfer of a significant power that traditionally belongs to the HoPR. Article 34 of the Definition of Powers and Duties of the Executive Organs of the Federal Democratic Republic of Ethiopia (Amendment) Proclamation No. 603/2008 exemplifies this, empowering the Council of Ministers to reorganize federal executive organs through regulations.
• Designation Power: This is essentially the power to define or to extend or restrict the scope of a defined matter. While often transferred as a decision-making power, some delegations of designation power are legislative in nature. An example is Article 35/1//a/ of the Council of Ministers Value Added Tax Regulations No. 79-2002, which defines “export country” but also allows the Minister of Finance to designate, by Directive, specific countries or territories that are not to be considered export countries.

To Whom is Power Delegated?

The power to make administrative rules through delegation can be conferred upon various governmental organs:

• Council of Ministers: As the oldest government institution in Ethiopia, dating back to the 1931 constitution, the Council of Ministers has evolved into a highly powerful legislative organ. It initiates or reviews every piece of primary legislation under the FDRE Constitution. Its authority to make regulations stems from express authorization by the HoPR, rather than from the constitution itself.
• Administrative Agencies: Legislative power is typically delegated to the administrative agency as a collective entity, although the head of the agency often exercises considerable influence in shaping the content of the directive. Direct delegation to the head of an agency is exceptional.
• Federal Supreme Court: While the judiciary’s primary constitutional task is law interpretation, not rule-making, delegation to the Supreme Court occurs in very limited circumstances. One notable area is sentencing, where Article 88/4/ of the Criminal Code authorizes the Federal Supreme Court to issue a binding manual relating to sentencing. These manuals, despite their name, function as binding rules that courts are duty-bound to apply.
• House of People’s Representatives (Self-delegation): Interestingly, some proclamations delegate power back to the HoPR itself to issue subsequent directives or regulations (e.g., the Auditor General Proclamation). However, this practice “does not serve any purpose of delegated legislation” as it fails to address the very problems (technicality, flexibility, time constraints) that justify delegation in the first place.
• Regional Governments: In specific, limited instances, the HoPR transfers a portion of its legislative powers to regional governments, as seen in Article 24/3/ of the Coffee Marketing and Quality Control Proclamation No. 1051/2017, which delegates to Regional States the power to issue necessary implementing laws.

1. Mandatory Rule-Making Procedures under the Federal Administrative Procedure Proclamation

The Federal Administrative Procedure Proclamation (FAPP) No. 1183/2020 represents a landmark legal instrument in Ethiopia, introducing a universal and mandatory procedure for the issuance of directives. This procedural framework is designed to address historical deficiencies in transparency, accountability, and public participation in administrative rule-making, thereby safeguarding individual and collective rights.

Introduction to FAPP’s Procedural Framework

Prior to FAPP, administrative agencies in Ethiopia were not subjected to any mandatory rule-making procedures, despite the proliferation of directives affecting nearly all social and economic activities. This absence led to a situation where administrative sanctions were imposed or benefits denied based on directives that were often inaccessible or unknown to the public. FAPP aims to rectify these problems by establishing a formal procedure, ensuring that directives are relatively accessible to the public. While this uniformity promotes accountability, it also poses challenges to administrative flexibility, as the “one-size-fits-all” approach may not always accommodate the diverse needs of public administration.

Record-Keeping (Art. 7)

Article 7 of FAPP imposes a fundamental obligation on administrative agencies to organize and maintain a comprehensive record concerning any directive they intend to issue. This record must include:

• The subject matter of any draft directive currently under consideration within the agency, along with its rule-making schedule.
• Information indicating the current stage of preparation of the draft directive.
• Copies of all published notices related to the draft directive.
• Details regarding the timeframe for submitting comments on the draft directive.
• A compilation of comments received on the draft directive, collected pursuant to Articles 8 and 9 of FAPP, and the administrative agency’s positions taken on these comments.

Crucially, FAPP mandates that any person has the right to inspect this organized record or obtain copies of its contents upon covering the necessary costs. This provision is a cornerstone of transparency, enabling individuals to understand the process and obtain vital information about proposed directives.

Notice Requirements (Art. 8)

The initial step in FAPP’s rule-making procedure is the mandatory publication of a notice concerning the proposed draft directive. Article 8 of FAPP stipulates that an administrative agency must publish this notice in a widely circulated newspaper, on its official website, and through other media channels before adopting a directive. The notice must contain specific information to facilitate informed public engagement:

• The legal basis that authorizes the drafting of the law and the specific subject matters intended to be covered by the draft directive.
• An indication that copies of the draft directive are available, along with clear instructions on where and how they may be accessed.
• Precise details on where, when, and how interested persons can submit their comments on the draft directive.
• Information on where and when the records kept in accordance with Article 7 of FAPP can be accessed.

The purpose of this mandatory notice is to provide citizens with comprehensive and clear information, thereby enabling them to actively participate in the rule-making process. This aligns with international best practices, such as the US Administrative Procedure Act of 1946, which similarly requires public notice of proposed rule-making in the Federal Register, including details about the proceedings and the substance of the proposed rule.

Consultation Processes (Art. 9, 10)

Consultation is a vital component of FAPP’s framework, designed to ensure that interested parties have the opportunity to consider and influence the proposed rule before its final adoption. This process enhances public acceptance and facilitates practical implementation. FAPP outlines several stages for collecting comments and conducting public hearings, aiming to foster meaningful public participation.

Comment Collection Stages:

• During the Notice Stage: The initial notice published under Article 8 serves as the first opportunity for public input. It must include clear instructions on how and when the public can provide written comments on the draft directive. The minimum time allowed for public comments is fifteen working days from the date of the notice’s publication.
• During the Solicitation Stage: Agencies are not expected to passively await comments. Instead, they are encouraged to proactively identify and solicit feedback from public and private entities most likely to offer valuable suggestions, expert opinions, or recommendations. For example, the National Bank of Ethiopia, before adopting a directive on banking business, is expected to send its draft to banks and financial institutions for their input.
• During Public Hearing: Following the period for written comments, agencies are required to organize a public forum. While comments at this stage are primarily oral, the Proclamation also provides a second chance for individuals who were unable to submit written comments during the notice stage to do so during the oral hearing.
• After Adopting the Final Draft: Once all comments from the preceding stages are collected, organized, and thoroughly analyzed, the agency may incorporate these inputs and revise the draft directive accordingly. If no substantial changes are made in response to the comments, the agency is legally obligated to prepare a written justification explaining its reasons for rejecting the comments. This ensures that public participation is not merely a formality but a process where feedback is genuinely considered and accounted for.

Nature of Public Hearings (Art. 10): Despite the English title “public hearing” in Article 10 of FAPP, the Amharic version and the body of both versions of the Proclamation clarify that it is not a trial-like hearing, as seen in the formal procedures of the American Administrative Procedure Act (APA). Instead, Article 10/1/ states that “After the expiry of the date for receiving written comments, the agency shall organize a public forum open for all interested persons and gather inputs”. This signifies that the “public hearing” is essentially a discussion forum for collecting oral comments, where the agency may engage in explaining and responding to comments, but the process remains non-adversarial.

Role of the Federal Attorney General’s Opinion (Art. 12/4/, 12/5/)

The final phase of the consultation process involves obtaining the opinion of the Federal Attorney General (referred to as the Ministry of Justice in some explanatory notes). Prior to the ratification of a directive, the agency must send the draft to the Federal Attorney General for its opinion. The Attorney General is mandated to submit its opinion within 15 working days. If the Attorney General fails to provide an opinion within this prescribed timeframe, it is legally presumed that they have no opinion on the draft, and the agency is then permitted to proceed with ratification. The precise nature of this opinion—whether it pertains to the format or the substance of the directive—is not explicitly clarified in the Proclamation. However, given the rigid and extensive consultation process the draft has already undergone, it is generally understood that fresh comments on the merit of the draft would likely not be entertained at this final stage.

Exceptions and Exemptions to Procedures (Art. 11)

Article 11 of the Federal Administrative Procedure Proclamation No. 1183/2020 outlines specific, narrowly interpreted conditions under which administrative agencies may be exempted from certain procedural requirements, including record-keeping, publishing notice, and collecting public feedback. These exceptions are designed to balance the general principles of transparency and participation with the practical exigencies of public administration, but they require detailed justification from the agency invoking them.

The specific exceptions are:

1. Emergencies where time does not allow to go through the requirements (Art. 11(1)(a)): This exception applies when an urgent situation necessitates immediate action, making it impractical to follow the standard procedural steps. The phrase “in case of emergency” in this provision refers to the urgency of the situation itself and does not necessitate a formal declaration of a “State of Emergency” as enshrined under Article 93 of the Constitution. For instance, if there is an outbreak of a disease, such as COVID-19, the Ministry of Health may need to issue directives immediately to restrict the movement of people or to mandate special precautions to control the spread of the virus. In such a scenario, there is insufficient time to comply with procedures like sending drafts for comment or organizing public hearings, thereby justifying the immediate adoption and implementation of the directive.
2. Where the issuance of advance notice may be contrary to Public Interest (Art. 11(1)(b)): This exception is applicable when providing prior notice of a proposed rule could lead to adverse consequences for the public interest, such as market distortion. For example, if the Ministry of Trade and Industry decides to set prices for certain basic commodities, issuing an advance notice and undergoing standard consultation procedures could lead to market distortion before the final decision is made. This uncertainty might disrupt the supply of essential commodities, thereby harming the public interest. In such cases, the directive can be prepared and adopted confidentially without prior notice or extensive consultation.
3. Where the issuance of notice may undermine the implementation of the directive (Art. 11(1)(c)): This exception is relevant when disclosing a planned measure through the consultation process would allow individuals to circumvent the directive’s intended implementation. An illustrative example involves the Government Housing Agency preparing a directive to sanction illegal sub-letting of rental housing. If one of the proposed measures allows sub-lessees to enter into direct lease agreements with the agency, disclosing this plan through a public consultation process could provide illegal sub-letters with an opportunity to evict their tenants before the directive is adopted, thereby frustrating its implementation. In such circumstances, agencies are justified in being exempt from open and public consultation procedures.

For any of these exemptions to be invoked, the agency is expressly required to prepare a record detailing the reasons that justify the exemption (Article 11(2)). This documentation serves to ensure that agencies do not deviate from their procedural obligations without robust justification and provides pre-constituted proof that can be crucial in judicial review proceedings if the directive’s validity is challenged. If an agency adopts a directive by invoking these exceptions without the circumstances being met, it may be instructed to restart the process or the directive could be nullified through judicial review.

1. Formality Requirements for Directives

Beyond the procedural steps, the Federal Administrative Procedure Proclamation (FAPP) also mandates several formality requirements for directives. These requirements are crucial for ensuring clarity, legal certainty, and accessibility, thereby enhancing the overall integrity of administrative rule-making.

Serial Number

Serial numbers serve as unique identifying codes for directives, often incorporating numerical sequences, letters, and symbols. Typically, a serial number in a directive, much like proclamations, is supplemented by the year of issuance or sometimes a category related to the subject matter. For instance, a directive issued by the National Bank of Ethiopia might bear a serial number such as “SBB/84/2022,” where “SBB” denotes “Supervision of Banking Business,” “84” is the sequential serial number, and “2022” indicates the year of issuance. Similarly, “SIB/57/2022” would represent a directive on insurance business supervision, with 57 and 2022 signifying the serial number and year, respectively. This systematic numbering aids in the unique identification, organization, and referencing of directives.

Source of Power

It is a fundamental requirement that any directive explicitly cite the enabling legal provision from which its power is derived. This is paramount because the executive branch does not possess inherent legislative power; its authority to legislate is entirely granted by the primary legislature. The disclosure of the source of power provides an immediate and clear reference point for courts or any interested person to determine the validity and legal basis of the directive. In Ethiopian practice, this citation is customarily found in the preamble of the directive, following the same format as proclamations and regulations. An example is the “Telecommunications Licensing Directive No. 792/2021,” which explicitly states its legal basis in “Ethiopian Communication Service Proclamation No. 1148/2019, Articles 6(2), 6(7), 20(2), 20(4), and 52(4)”.

Signature

A signature constitutes one of the most critical elements in the legislative process. For primary legislation, such as proclamations, Article 57 of the FDRE Constitution mandates that laws deliberated upon and passed by the House of People’s Representatives must be signed by the President within fifteen days of their presentment. If the President fails to sign within this period, the law nonetheless takes effect without the signature.

Regrettably, a similar mandatory requirement for the signature of the head of the agency is conspicuously absent in the Federal Administrative Procedure Proclamation for directives. Prior to the introduction of FAPP, the lack of mandatory signatures was a significant problem for directives, with many lacking either the signature of the agency head or an official stamp. This negligent practice often made it challenging to distinguish legally valid and effective directives from mere draft documents, undermining their authority and legal certainty.

Language Requirements (Art. 15/1/)

Before the promulgation of FAPP, directives were not legally required to be bilingual. Depending on the working language of individual agencies, many directives were prepared solely in Amharic or English. For instance, the National Bank of Ethiopia predominantly used English for its directives, while most other federal agencies used Amharic. This often meant that directives impacting foreign business owners, such as customs and tax regulations, were available only in Amharic, creating accessibility barriers.

Article 15/1/ of FAPP was specifically designed to rectify this practice by mandating that a directive adopted by an agency “shall be prepared in English and Amharic language”. Despite this clear and mandatory requirement, the previous practice of issuing directives in only one language has, in many instances, persisted. This continued non-compliance places these directives at risk of invalidation if challenged in court, as non-observance of procedural rules is a recognized ground for judicial review. While the Cassation Bench had previously ruled (before FAPP) that directives produced legal effect irrespective of being prepared in only one language, FAPP’s explicit bilingual requirement fundamentally alters this legal landscape, making dual-language preparation a prerequisite for procedural compliance. The imperative for bilingual directives is rooted in the principle of accessibility and legal certainty. For a directive to be truly effective and enforceable, it must be comprehensible to all parties it affects. In a country with diverse linguistic backgrounds and significant international business engagement, providing directives in both official working languages ensures broader understanding, reduces misinterpretation, and fosters compliance, thereby strengthening the rule of law.

Registration with the Federal Attorney General (Art. 16)

Article 16 of the Federal Administrative Procedure Proclamation mandates a crucial step for directives: their filing and registration with the Federal Attorney General. Upon adoption, an agency is required to send copies of the directive, along with its accompanying explanatory statement, to the Attorney General. The Attorney General then assigns a unique serial identification number, formally records the directive, and promptly notifies the agency about its registration status. Furthermore, the Attorney General is obligated to publicize the registered directives, along with their explanatory statements, making them accessible to the public from the date of registration notification.

This registration requirement directly addresses a long-standing historical problem in Ethiopian administration where agencies often struggled to accurately account for the number of active directives they possessed or to confirm the existence of directives governing specific subject matters within their competence. Centralized registration aims to rectify this by creating a central database, thereby achieving a higher level of clarity and organization regarding agency directives. This system facilitates the easy determination of which directives are still active, which have been amended or repealed, and which have been adopted in compliance with legal requirements. Moreover, the fact that directives are registered alongside their corresponding explanatory notes is intended to enhance accessibility of information for anyone seeking to understand the adoption process or the content of the directives.

Agencies are required to send the directives they intend to implement for registration before their intended date of coming into force. The Attorney General’s prompt confirmation of registration directly impacts the directive’s effective date, as stipulated under Article 18 of FAPP. Significantly, FAPP also mandated that all directives adopted prior to its coming into force be filed with the Federal Attorney General within 90 days, under the penalty of loss of validity. This retrospective requirement was a deliberate “middle-ground approach” to integrate existing directives into the new transparent framework without imposing the overwhelming administrative burden of requiring them to be reissued under the new procedures. If a directive becomes invalid due to non-registration, the concerned agency may initiate the directive issuance procedure under FAPP to adopt it anew if it deems it still necessary.

Preparation of an Explanatory Note (Art. 14)

Article 14 of FAPP imposes a requirement for agencies to prepare an explanatory note concurrently with the adoption of a directive. This note is a crucial document that must contain specific information:

• The objective and the legal basis for the adoption of the directive. This goes beyond a simple reference to the parent law, requiring a detailed exposition of the objectives that both the directive and its parent law aim to achieve.
• Where there are differences in content between the draft directive circulated for public notice and the final adopted directive, the note must include an explanation of these changes and the rationale behind them.
• A summary of the comments received on the draft directive and the measures taken by the agency in response to these comments.

The preparation of an explanatory note serves multiple vital purposes. It aims to facilitate public compliance by clarifying the directive’s intent and to aid in the appropriate interpretation of any ambiguous or vague clauses. Furthermore, it serves as a critical record that allows for the verification of whether the agency genuinely fulfilled its obligation to consider comments submitted during the consultation process. By outlining discrepancies between the draft and final versions and summarizing public feedback, the explanatory note helps to properly understand the entire process through which the directive has passed. This makes the directive’s content more comprehensible not only for legal professionals but also for any literate person, and it serves as an essential reference document for any future amendments or revisions.

1. Mechanisms for Controlling Administrative Rule-Making

The pervasive nature of delegated legislation, while a practical necessity for modern governance, inherently carries risks of arbitrary exercise of power. As scholars aptly describe it, delegated legislation is often considered a “necessary evil”. Consequently, robust control mechanisms are indispensable to ensure that this power does not degenerate into arbitrary government and that it is exercised legitimately, transparently, and within its prescribed limits. These controls typically encompass procedural, parliamentary, and judicial oversight.

Procedural Controls

Procedural controls are foundational to ensuring transparency, accountability, and public participation in government administration. The Federal Administrative Procedure Proclamation (FAPP) is a pivotal legal instrument in Ethiopia that has significantly transformed administrative rule-making towards a more open and accountable process.

The procedural requirements introduced by FAPP are designed to achieve these objectives:

• Notice: The duty of agencies to provide sufficient information about a draft directive to the public through wide circulation and online platforms is a key step in realizing openness. Without the opportunity to access proposed and published directives, it would be exceedingly difficult to hold public authorities accountable for infringements on individual rights resulting from legislative overreach.
• Consultation: The requirements for soliciting written comments and organizing public forums ensure that interested parties can contribute their views, thereby improving the quality and legitimacy of administrative rules. The obligation for agencies to consider these comments and provide justifications for rejections reinforces genuine public participation.
• Publication: The mandatory requirement that directives be published, particularly on agency websites and through the Federal Attorney General’s portal, was a major development introduced by FAPP. This ensures public knowledge of the rules, which is essential for compliance and for challenging directives that are not properly publicized.
• Registration: The centralized registration of directives with the Federal Attorney General further enhances transparency by creating a verifiable record of all active directives, making it easier to track their status and legal compliance.

Collectively, these procedural controls empower citizens and stakeholders by providing them with the necessary information and opportunities to engage with, and scrutinize, the administrative rule-making process.

Parliamentary Controls

The House of People’s Representatives (HoPR) is the ultimate source of rule-making power for administrative agencies and the Council of Ministers. This relationship establishes a principal-agent dynamic, where the HoPR, as the principal, bears the ultimate responsibility to ensure that delegated power is utilized in the best interests of good administration and for the benefit of the public. The HoPR has a constitutional duty to prevent the abuse of delegated legislative power, ensure it does not infringe upon constitutionally guaranteed individual rights, that it remains within the scope of delegation, and that mandatory procedures are complied with. Furthermore, the HoPR must also “supervise itself” by implementing internal procedures and mechanisms to ensure that the nature and extent of delegation are clear and limited to “filling up details”. Most importantly, it should continuously re-evaluate its delegation practices to ensure that essential legislative functions are not inadvertently transferred to the executive.

Parliamentary controls can be broadly categorized into pre-delegation and post-delegation mechanisms:

1. A) Pre-delegation Control: At the pre-delegation stage, before rule-making authority is transferred to agencies and the Council of Ministers, the HoPR must, during its deliberations on the primary proclamation, meticulously consider the extent and form of the provision empowering the making of any delegated legislation. When delegation is granted on a subject matter that is clear and specific, it significantly reduces the risk of abuse. However, it is often impractical to use overly narrow language to describe the subject matter, as this might curtail the agency’s ability to effectively implement the legislation or respond to unforeseen circumstances. Wider discretionary power is often necessary to deal with rapidly changing and contingent situations. The expectation is that the legislature will determine major policy issues and provide guiding principles, leaving the detailed implementation to directives or regulations.
2. B) Post-delegation Control: Post-delegation control mechanisms are designed to enable parliament to regularly scrutinize and, if necessary, revoke the power it has granted to the Council of Ministers or agencies.

• Tabling/Laying Procedure: This procedure involves the submission of delegated legislation to parliament for review, allowing the legislature to assess how the delegated power is being utilized. This mechanism enables parliament to disapprove or disallow the delegated legislation in question if it finds evidence of misuse of power.
  • Affirmative Laying Procedure: This is a disapproval procedure that requires prior approval from parliament, either at the draft stage or after publication. Under this procedure, the delegated legislation may not come into operation unless parliament explicitly approves it, or its continued operation is dependent upon a subsequent resolution of parliament permitting its continuance.
  • Negative Laying Procedure: Conversely, this is a disallowance procedure that operates on legislation that is already in force. Under this procedure, the delegated legislation continues to be legally binding unless parliament decides to revoke or disallow it. This can involve the legislation coming into force after a specified number of days, unless parliament resolves against it, or commencing immediately but allowing parliament the right to disallow it by resolution within a specified timeframe. In the United States, the Congressional Review Act (CRA), enacted in 1996, serves as a mechanism to oversee the rulemaking process, requiring major rules to be submitted to both houses of Congress and the Government Accountability Office (GAO) before taking effect, and empowering Congress to disapprove rules contrary to its will. However, a significant gap exists in the Ethiopian context: there is no specific law requiring the submission of directives and regulations to the House of People’s Representatives for review, either at the draft stage or after they are published. The Federal Administrative Procedure Proclamation No. 1183/2020 also does not contain any provision on such a review mechanism by the House. This absence of parliamentary control creates a notable gap in the “principal-agent relationship” and places greater reliance on judicial and procedural controls to ensure accountability and prevent unchecked power.
• Scrutiny Committees: After delegated legislation is tabled, it is typically referred to a specialist scrutiny committee within the parliament. The work of these committees is guided by clear parameters to avoid interfering with technical matters beyond parliamentary competence. In Australia, for example, scrutiny committees examine whether the delegated legislation is in accordance with the statute, does not operate retroactively, does not unduly trespass on personal rights and liberties, and does not contain matters more appropriate for parliamentary enactment. The work of these committees is of paramount importance in jurisdictions like the UK and Australia, as parliament often relies heavily on their reports and recommendations to pass resolutions.

Judicial Controls

Judicial control is a critical mechanism for ensuring the legality of administrative rules and protecting citizens from arbitrary or unlawful executive action. The Federal Administrative Procedure Proclamation No. 1183/2020 has significantly transformed the landscape of judicial control over directives in Ethiopia. Prior to FAPP, there was confusion within the judiciary due to a lack of clear standards of review and available remedies for individuals aggrieved by directives issued beyond the scope of delegation.

• Standing: Unlike judicial review of administrative decisions, where standing might be a restrictive factor, FAPP explicitly states that “any interested person may file a petition requesting a judicial review of a directive” (Article 46/1/). This broad grant of standing ensures that the issue of legal standing is not an obstacle to challenging the legality of a directive.
• Grounds of Review: When exercising its control function, a court primarily examines the legality and procedure of directives, rather than their substance or merit. It is a cardinal principle of judicial review that the policy objectives or substantive correctness of directives (and administrative decisions) fall outside the proper competence of the courts. The judiciary’s role is not to determine whether a directive is sound in terms of policy, as such decisions are reserved for the legislative and executive branches of government. For instance, whether the benefits of alcohol advertising outweigh its risks is a policy decision for the legislature and executive, not the judiciary. Article 50 of FAPP explicitly lists the following three grounds or standards of review:
  • It is proved to have failed to comply with the procedural rules provided in Chapter Two of this Proclamation.
  • It is ultra vires, meaning it exceeds the scope of the delegated power.
  • It is contrary to other laws placed higher in the hierarchy of laws.
• Remedies: If a directive fails to comply with the prescribed procedure, contravenes a higher law, or exceeds its delegated power, it will not produce any legal effect. In such cases, the court will revoke or annul the directive. This revocation may be total or partial, depending on the nature and extent of the illegality.

VII. Rule-Making Procedure and Practice in Some Administrative Agencies

An examination of the practical implementation of rule-making procedures by key administrative agencies in Ethiopia, specifically the Ministry of Revenue and the Food and Drug Administration, provides valuable insights into the challenges and best practices in adhering to the Federal Administrative Procedure Proclamation (FAPP).

Ministry of Revenue

The Ministry of Revenue’s rule-making process typically commences with a request for the issuance of a new directive or the revision of an existing one. These requests can originate from various internal working units within the Ministry, and occasionally, though rarely, from the Legal Service Directorate itself. Once a proposal is made, it undergoes discussion and further development before receiving final approval from higher officials within the Ministry.

Legal experts within the Ministry, particularly those from the Legal Service Directorate, play a pivotal and significant role throughout the entire process, from the initial conceptualization of a directive to its final adoption. They are instrumental in shaping both the content and the form of draft directives.

According to information from respondents, the Ministry of Revenue reportedly prepares directives by strictly adhering to the procedural requirements stipulated by FAPP. For publicizing new or revised directives to stakeholders, the most commonly utilized platform is the Ministry’s official website. Additionally, the Ministry distributes written documents, such as leaflets and brochures, to stakeholders who visit the Ministry for other services, although these are not widely accessible. Respondents have acknowledged that the Ministry has historically lagged in disseminating directives but has recently adopted a clear directive to enhance accessibility through all possible means.

In terms of consultation, the Ministry has a practice of inviting stakeholders to discuss and enrich draft directives. However, challenges persist in engaging the wider public, with a notable reluctance from the general public to actively participate in the directive adoption process. For example, C-Level Taxpayers are often unavailable for discussions on draft directives that are likely to affect their interests, whereas A-Level taxpayers (such as importers, exporters, and manufacturers) are comparatively more responsive. This difference is perhaps attributable to the significant tax amounts paid by the latter, which makes them more attentive to the rule-making process. The Ministry reportedly gives serious consideration to convincing and feasible comments and opinions from stakeholders, incorporating them into the final rule.

Regarding publication, respondents indicated that there is currently no official mode of publication for directives in the strictest sense. There is, however, a mandatory procedure requiring the Ministry of Revenue to send the first draft of any prospective directive to the Ministry of Justice. Finally, after incorporating comments, the directive is returned to the Ministry of Justice for registration, where it is assigned an official number for reference.

When distinguishing directives from other legal instruments, respondents explained that a directive, by its inherent nature, typically grants rights and imposes duties on both service providers and recipients. In contrast, other documents like manuals, guidelines, and standards are commonly used only for internal reference and evaluation purposes, and occasionally serve as means of communication among various working units within the Ministry.

Food and Drug Administration

The process for preparing or revising a directive at the Food and Drug Administration mirrors that of the Ministry of Revenue, with requests originating from various departmental units or the legal drafting and medico-legal directorate. Following a formal request, the proposal is presented, discussed, and ultimately decided upon by the Administration’s higher officials.

The Legal Drafting and Medico-Legal Directorate assumes a leading role in shaping and drafting directives, with the legal team involved from the early stages of inception through to final adoption. As with the Ministry of Revenue, legal experts play a pivotal role in the rule-making process within the Food and Drug Administration.

Based on information from respondents, the Administration also adheres to a practice of rule-making that conforms with the procedural requirements of FAPP. To make a draft directive accessible for public consultation, the most common method of communication is posting the preliminary draft on the Administration’s official website. In some instances, written copies are sent directly to stakeholders. When full copies are not distributed, the Administration prepares leaflets and brochures for distribution to public and private institutions with whom it maintains working relationships. These materials are often provided freely to stakeholders who visit the agency for other services.

The Food and Drug Administration maintains a strong culture of conducting consultations on draft directives, actively inviting stakeholders to express their opinions, concerns, and objections. The Administration utilizes these comments and suggestions to enrich the draft directives. However, similar to the Ministry of Revenue, they also face pervasive challenges in engaging the wider public in the rule-making process, noting a general reluctance to actively participate. Nonetheless, the Administration reportedly takes into account persuasive and justified comments and opinions from stakeholders, incorporating them into the final rule.

Regarding publication, respondents from the Food and Drug Administration clarified that there is not yet an “official publication” in its strictest sense. A mandatory procedure requires the agency to send the first draft of any prospective directive to the Ministry of Justice. Subsequently, after incorporating comments, it is resent to the Ministry for registration and to be assigned an official number, which then allows it to be cited as a formal legal document.

In distinguishing directives from other types of legal instruments, the Administration, like the Ministry of Revenue, identifies directives by their fundamental characteristic of offering rights and imposing duties on both service providers and recipients. Other documents, such as guidelines, standards, and codes, are primarily used for the agency’s internal reference and evaluation purposes.

Challenges and Best Practices

Synthesizing the experiences of both the Ministry of Revenue and the Food and Drug Administration reveals common challenges and emerging best practices in administrative rule-making in Ethiopia:

Challenges:

• Public Engagement: Both agencies consistently highlight the significant challenge of engaging the wider public in the rule-making process, noting a general reluctance to actively participate. This suggests a need for more innovative and proactive outreach strategies beyond simply making information available, possibly by leveraging community-level platforms or targeted educational campaigns.
• Official Publication: Neither agency currently possesses a strict “official mode of publication” for directives, relying instead on website postings and direct distribution of physical copies. This lack of a centralized, universally recognized official publication mechanism could impact the uniform accessibility and legal certainty of directives across the country.
• Dissemination Lag: The Ministry of Revenue specifically acknowledged a lag in disseminating directives, indicating a need for improved strategies to ensure that directives reach all relevant parties effectively and promptly.
• Distinguishing Legal Instruments: While both agencies have internal mechanisms to differentiate directives from other documents based on their legal effect (i.e., creating rights/duties versus internal use), the broader discussion in the research material points out that nomenclature can be misleading. This suggests a potential for confusion for external parties who may not be privy to the agencies’ internal classification criteria.

Best Practices:

• Adherence to FAPP: Both agencies demonstrate a commendable commitment to strictly following the procedural requirements of FAPP. This adherence is a crucial step towards fostering greater transparency and accountability in administrative rule-making.
• Involvement of Legal Experts: The consistent and pivotal role of legal experts, from the initial drafting stages to final adoption, ensures the legal soundness of directives and their compliance with the Proclamation.
• Website Publication: Utilizing official websites for publicizing draft directives is a positive practice for providing public notice and facilitating accessible information dissemination.
• Stakeholder Consultation: Both agencies actively invite and consider comments from relevant stakeholders, recognizing the invaluable input these parties provide in enhancing the quality and practicality of administrative rules.
• Registration with Ministry of Justice: The mandatory procedure of sending drafts to, and registering final directives with, the Ministry of Justice contributes significantly to centralizing information and assigning official reference numbers. This practice supports better organization and enhances the potential for centralized accessibility of directives.
• Responsiveness to Key Stakeholders: The observation that certain categories of taxpayers (e.g., A-Level) are more responsive to consultations suggests that tailoring engagement strategies to different stakeholder groups can be an effective approach to maximize participation and gather relevant feedback.

In summary, while Ethiopian administrative agencies are making commendable progress in implementing the formal rule-making procedures mandated by FAPP, persistent challenges remain, particularly in ensuring widespread public participation and establishing robust official publication mechanisms. The consistent involvement of legal experts and a commitment to stakeholder consultation are key strengths in their current practice, laying a foundation for continued improvement in administrative governance.

Conclusion

The analysis of administrative rule-making in Ethiopia, particularly through the lens of the Federal Administrative Procedure Proclamation (FAPP) No. 1183/2020, reveals a profound transformation in the country’s legal and administrative landscape. Historically, the process of issuing administrative directives was plagued by opacity, a lack of standardized procedures, and limited public engagement, often leading to the arbitrary imposition of sanctions and denial of rights. Directives frequently operated as “hidden laws,” inaccessible and unknown to those they affected.

FAPP represents a pivotal legislative intervention, designed to rectify these long-standing issues by introducing a universal and mandatory procedural framework for directives. Its foundational principles—transparency, public participation, and accessibility—are critical for fostering good governance and safeguarding individual and collective rights. The Proclamation’s detailed requirements for record-keeping, public notice, multi-stage consultation, and formal registration with the Federal Attorney General are all geared towards ensuring that administrative rule-making is conducted openly, accountably, and with meaningful public input. The mandatory requirement for bilingual directives, though not fully complied with in practice, underscores the commitment to broader accessibility and legal certainty for a diverse populace.

A central theme in this analysis is the enduring tension between the theoretical objections to delegated legislation and its undeniable practical necessity in a complex, modern administrative state. While principles of representative democracy and the separation of powers raise legitimate concerns about the transfer of law-making authority to unelected officials, the realities of specialized expertise, parliamentary time constraints, the need for flexibility in dynamic environments, and the imperative for rapid responses in emergencies render delegation indispensable. The FAPP implicitly acknowledges this “necessary evil” by focusing not on abolishing delegation, but on rigorously controlling its exercise. The Proclamation’s provisions for procedural exemptions, while designed to accommodate practical exigencies, are tightly constrained by requirements for narrow interpretation and detailed justification, reflecting a cautious balance between efficiency and accountability.

Despite these significant advancements, areas for continued development persist. The absence of a specific legal framework for parliamentary oversight of delegated legislation in Ethiopia, unlike in many other jurisdictions, represents a notable gap. This places a greater burden on judicial review and the diligent application of FAPP’s procedural controls to ensure that administrative agencies operate within their delegated powers and adhere to legal norms. Furthermore, the practical challenges highlighted by administrative agencies, particularly regarding widespread public engagement and the establishment of a truly official and universally accessible publication mode for directives, indicate areas where further effort and innovation are required.

In conclusion, FAPP has fundamentally reshaped administrative rule-making in Ethiopia, moving it towards a more legitimate, transparent, and accountable process. While the journey towards fully realizing the Proclamation’s objectives is ongoing, the established legal framework provides a robust foundation. Continued vigilance, consistent enforcement of procedural requirements, and a commitment to addressing remaining challenges are essential to ensure that delegated legislation serves as a tool for effective and just governance, rather than a source of administrative overreach