Introduction: The Dual Obligation of Lower Courts
The principle of stare decisis, or the binding nature of judicial precedent, places a dual obligation on lower courts. Specifically, in Ethiopia, Proclamation No. 1234, which governs the binding force of legal interpretations, imposes two key duties on subordinate courts. Firstly, they are obligated to accept and apply the legal interpretations of the Cassation Bench in relevant circumstances. Secondly, and as a corollary to the first, they must refrain from applying these interpretations in irrelevant situations. The effective fulfillment of these obligations demands not only a willingness to comply but also a profound understanding of the law. Therefore, courts at every level must possess the crucial skills of “matching” (identifying similar cases) and “distinguishing” (identifying dissimilar cases) precedents.
While the legislator, in stipulating that the Cassation Bench’s interpretations are binding on courts at all levels, did not extensively elaborate on the specific types of cases to which this binding force should apply, it is widely accepted that the binding nature inherently requires a similarity of cases.
Determining “Similarity” in Cases
The binding legal interpretation given by the Cassation Bench compels any court at any level only for “similar cases.” But how is the “similarity of cases” determined?
Although in general terms, an attempt was made in Cassation File No. 61221, Volume 14, to identify the precondition that bridges the relationship between binding force and the type of cases. In the explanation given in this file:
“As stipulated in Article 2(1) of Proclamation No. 454/1997, a legal interpretation given by a bench of not less than five judges of this court is binding on any court at any level for similar cases. For a legal interpretation to be authoritative for a similar case, we understand from the concept of binding legal interpretation that the cases must be similar on fundamental points.”
What are these “fundamental points”? While not exhaustive, an answer to this question was provided in Cassation File No. 67924, Volume 13. Accordingly:
“In order to establish a uniform legal interpretation and application in the country, as stipulated in Proclamation No. 454/97, a legal interpretation given by the Federal Supreme Court Cassation Bench with not less than five judges shall have binding force or character on lower courts only if the factual and legal questions that arose in the case where the interpretation was given and the case presented for adjudication are found to be similar.”
Indeed, both the law and the facts must be similar. The challenging question is, to what extent must they be similar? Must they be completely identical? Or mostly similar? If “mostly similar,” does this mean similarity in a few, but fundamental, factual elements that have a direct bearing on the legal interpretation? Or similarity in a numerically larger number of factual elements?
Providing a concise answer to these questions is difficult. Such questions related to similarity have not been resolved by a single formula even in common law countries with centuries of developed practice. Each dispute has its unique characteristics. While a system of deciding similar cases in a similar manner appears appealing when viewed solely from its objective (consistency and predictability), it should not be forgotten that it also carries risks. The Cassation Bench itself has acknowledged this important point:
“As is known, disputes are decided by examining their individual characteristics. To conclude entirely that a decision given to resolve a dispute that arose in one case can also resolve a dispute that arose in another case is neither correct nor appropriate.”
Challenges in Practical Application
Over the 14-year journey of the Cassation Bench, while the legal interpretations given in numerous decisions have undeniably contributed significantly to resolving contentious legal issues, being cited by lower courts both primarily and supportively, it is also an undeniable fact that they have increasingly become a source of further disputes. In the 24 published volumes, as well as in the unpublished and subsequent decisions, there has been a continuous increase, not decrease, in instances where the Cassation Bench has criticized lower courts for basing their decisions on Cassation Bench files deemed irrelevant to the case at hand. Similarly, there have been repeated instances where decisions rendered by lower courts, silently overlooking relevant legal interpretations, have reached the Cassation Bench for rectification. Overall, the issue of “similar cases,” which Proclamation No. 454/1997 and Proclamation No. 1234/2012 largely overlooked, has now reached a stage that demands attention. Otherwise, the Cassation Bench will inevitably be occupied not only with interpreting the law but also with interpreting its own decisions.
As lower courts accumulate experience through effort and study, their ability to match cases will undoubtedly develop over time. However, the effectiveness of matching will be undermined if it is not supported by sincerity and integrity. Judges have broad discretion to compare the factual and legal points in the case they are adjudicating with a Cassation Bench decision of similar content, either to exaggerate points of difference or to somehow force a resemblance between disparate cases. What restricts them from such conduct is only their adherence to judicial ethics. Judges do not commit fundamental errors of law merely out of ignorance. Some errors committed in court are intentional, made knowingly to benefit one litigant. Such errors cannot be rectified by the Cassation Bench alone. Just like legal interpretation, the skill of matching cases cannot flourish unless there is a free, fair, and impartial judicial system; otherwise, it will be stunted.
The Cassation Bench’s Responsibility
Finally, it is necessary to reiterate the role of the Cassation Bench here. Without clear and high-quality decisions, matching becomes even more challenging. The Cassation Bench is always expected to:
- Clearly articulate the facts established by lower courts.
- Properly identify fundamental factual and legal questions.
- Present the method by which the law was interpreted without complicating it.
- Explain which legal interpretive method was used to resolve the fundamental legal question.
- Use simple, universally understandable language that adheres to grammatical rules.
- Concise summarization of the binding rule (legal interpretation).
- In general, give due regard not only to the content of the decision but also to the principles and rules of judicial writing.
The fact that the Cassation Bench has given a legal interpretation does not mean that the interpreted provision ceases to be controversial. This is because differences in understanding can arise even with the court’s interpretation. This is why the court in Cassation File No. 80350, Volume 14, was compelled to issue a cautionary message:
“However, it is evident that if the spirit of this binding legal interpretation of the Cassation Bench is not carefully considered and understood, it will inevitably lead to outcomes that are inconsistent with the purpose and spirit of the law.”
Conclusion: Towards a More Effective Precedent System
The effective functioning of a precedent-based system, even in a civil law context like Ethiopia’s, hinges on the ability of lower courts to accurately match and distinguish cases. This requires not only a clear understanding of the law but also judicial integrity and access to well-articulated, consistent precedents from the Cassation Bench. The current challenges, including the lack of comprehensive codification, conflicting interpretations, and the potential for intentional misapplication, highlight the need for systemic improvements. Both the Cassation Bench, through enhanced clarity and consistency in its judgments, and the lower courts, through continuous development of their interpretive skills and adherence to ethical standards, share the responsibility for ensuring that the principle of binding precedent truly serves its purpose of fostering a predictable and just legal system.