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been based on the common law system which gives the judiciary more discretion to develop principles.
Despite the closeness in time between Ethiopia and South Africa in the making of the their constitutions (1994) and the prevalent domestic violence; the contents and the implementation of Constitutional rights of women as well as the role of the judiciary have stark differences.
Accordingly, the South African Constitution have been well acclaimed with the incorporation of justiceable Socio-economic rights which have been instrumental to achieving substantive equality in a country which has been hit by violence, poverty and as well as a wide gap between the poor and the rich. In contrast, the Ethiopian Constitution of 1994 has stated Socio-economic rights as policy goals and not as rights which could be litigated in courts. More importantly, the Constitutional Court of South Africa has been playing an active role in pushing towards greater state accountability to protect women from domestic violence. On the other hand, the judiciary in Ethiopia does not have the power to interpret the Constitution and also has been playing a passive role in recognizing the State’s duty to protect women from violence.
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protect women from violence though there have been insignificant amount of cases where women sued the government for failure to protect.
“The state shall enforce the right of women to eliminate the influences of harmful customs. Laws, Customs and practices that oppress or cause bodily or mental harm to women are prohibited”
Moreover, the Constitution have ascertained the fundamental rights related with domestic violence like the Security of the Person(Art.16), Prohibition against Inhuman Treatment (Art.
18), and Equality before the Law (Art. 25). Moreover, the equal rights of women and men in marriage as well as the family and that they mandate the protection of the state and the society is stipulated. 166
South Africa, on the other hand has a unique and well developed Constitution with a strong constitutional court which has contributed remarkable case precedents on the domestic violence issues dealing with state accountability and intervention mechanisms. Thus, the 1994 South African Interim Constitution in its Section 8 stipulated equal protection for laws and non-discrimination on the basis of sex.167 South Africa is one of only a few countries in the world to entrench rights such as access to food, water, housing, healthcare and social security.168 A very remarkable way in which the South African Constitution has incorporated the social and economic rights as justiceable rights – which is unique move in its own towards government
166 Art. 34, FDRE (n.165)
167 South African Interim Constitution, 1994
168 Section 27, South African Constitution, 1996
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accountability in areas that were considered by many legal systems as non- justiceable. South Africa went further to assume a duty to prevent violence by private actors where the Constitution States go further and assume a duty to prevent violence by private actors. For example, the Constitution guarantees the right "to be free from all forms of violence from either public or private sources.169This stipulation was elaborated in the legal opinion in State V Baloyi case of the Constitutional Court, Section 12 (7) (c) of the Constitution, which reads “Everyone has the right to freedom and security of the person, which includes the right—to be free from all forms of violence from either public or private sources; meant as obliging the state directly to protect the right of everyone to be free from private or domestic violence.” 170
Moreover, as Vodjik asserted the presence of women activists in South Africa played a fundamental role in ensuring a constitutional and political commitment to gender equality.171 Hence, the idea of state legal intervention has coincided with the assertion of state accountability in cases of failure to protect domestic violence victims which would be unthinkable at this point in Ethiopia.
As far as the South African constitutional law is concerned, its Constitutional Court plays an important part in making sure that Constitutional articles are interpreted and implemented according to the fundamental norms and rights in it. The South African Constitutional Court have been conferred with the power to interpret the Constitution while in Ethiopia such power is
169 Section 12(1)(c) , South African Constitution, 1996
170 S v Baloyi and Others (CCT29/99) [1999] ZACC 19; 2000 (1) BCLR 86 ; 2000 (2) SA 425 (CC) (3 December 1999) , Para. 11
171 Valorie K. V, “Conceptualizing Intimate Violence and Gender Equality: A comparative Approach in Women, Children, and Victims of Massive Crimes: Legal Developments in Africa”, Fordham Int’l L.J. 487 (January 2008) : p. 10 of 30
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vested on one house of parliament which is primarily a political organ than a legal one.172 This has created a barrier for the judiciary to play an active role in the interpretation of equality norms under the Constitution into concrete cases. The South African Constitutional Court on the other hand, has been instrumental in dealing with the interpretation of the Constitutional articles as well as incorporating international instruments into its precedents.
With regard to institutional arrangements, the Ministry of Women and Children’s Affairs is the main government organ in Ethiopia to give support to victims of violence against women. The Ministry was established according to the National Women’s Policy of 1993 which did not mention the issue of domestic violence specifically but dealt with issues of discriminatory practices. Nevertheless, besides few non-governmental organizations, the Ministry is the only governmental structure all over the nation receiving complaints from women on domestic violence cases. However, despite the Ministry’s strategic position which is attributed to the presence of its offices all over the country, it has been suffering from lack of resources and expertise as well as absence of enough mandates from the government about dealing with such issues.
Besides the Constitution and policies, there have been legal reforms in Ethiopia in relation to domestic violence, specifically the family law and the criminal law in 2003 and 2005 respectively. Legal reforms with regard to domestic violence play an important part in the context of Ethiopia since the previous laws related to family and violence against women were enacted in
172 Art. 62(1), FDRE (n.165) reads; the House of Federation has the power to interpret the Constitution.
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the 1960s where the awareness on domestic violence in the national context was almost next to nothing. Nevertheless, the effectiveness of the legal reforms depend on their conjunction with other measures as legal literacy, reforms in the law enforcement bodies as well as other socio-economic and psycho-social support.
Whereas, Legislation in South Africa dealing specifically with domestic violence dates back to 1993 in the Prevention of Family Violence Act (133 of 1993). 173 Then again, South Africa has passed a law in 1998 the Domestic Violence Act (DVA)174 and a policy framework and strategy supporting shelters for victims of domestic violence in South Africa in 2003.175