|
I find Yohannes W. Gabriel's article last week
headlined, "Edier, Eqube Incompatible with Consumer
Association," [Fortune, Volume 8. Number 416, April
20, 2008] again an epitome of a contradiction and
misunderstanding. He started by claiming to clarify
some legal issues for the best interest of Fortunes'
esteemed readers only to end up failing to even
recall what he himself had written just two weeks
ago.
In his article published in Fortune on April 6, he
asserts that: "Neither is the legal regime governing
both organizations (Edier and Eqube) completely
different from that governing consumer cooperatives
or business organizations". Then he went on to turn
his back on his own saying by declaring last week
that: ". . . the legal framework governing Edier is
different from that on consumer associations."
I do not get it. If this is clarifying legal issues
involved; I would like to know what is called
blurring them then. None of us have a giant
long-term memory bank for ideas and thoughts piled
high up for analysis. But for someone claims to have
be determined to clarify legal issues to the wider
reader; cross-checking his own argument is not too
much to ask.
Then going from the frying pan to the fire itself,
he wrote that I had categorically denied the
existence of a proclamation on cooperative societies
and a consumer protection policy and regulatory
direction. He has not, however, provided where the
evidence for all that is. I thought from the very
beginning that Yohannes's problem was in
understanding the concepts and the legal
technicalities involved in the matter.
My thoughts would be proved correct when one looks
at Yohannes's expressed understanding on the Civil
Code's "virtual inappropriateness for cooperative
groupings", on modeling consumer associations in
Eqube and Edier format, on the lease law and the
Addis Abeba rent directive on shopkeepers.
Yohannes thinks, in his convoluted understanding,
that what are not in existence are laws and policies
protecting consumers. What I wrote as being
non-existent, on the contrary, are cooperatives
organized by the government itself as forms of
direct intervention in the market. I also suggested
that if the government wishes not to intervene in
the market, it should provide consumer policy
framework and legislation for the would-be,
hands-off government cooperatives, detailing their
operation and overall activities. I did that because
the laws and policies that we have now cannot deal
satisfactorily with the upcoming issues with
consumer associations.
Yohannes thinks the laws we have can appropriately
deal with any issues that may come up. I put it to
him in my last article that if the laws he says he
has would answer queries like ". . . Would the
up-coming consumer associations be permitted to buy
and sell only from and to a particular group? Can
they jump the traditional dealers and buy the goods
they need directly from the producers? If that
happens, what would be the fate of the duly licensed
and taxpaying merchant in the market? Can these
proposed consumer associations hoard goods for the
rainy day? If they do, how could they be
differentiated from the conventional sellers who
hoard their goods with the hope of raising prices in
the future? Does the fact that the former is doing
it to lower prices and the latter to hype them up
make any difference?"
But Yohannes failed to say anything on these issues
in his latest article. Undoubtedly, conscious of
knowing he does not have the laws to tackle any of
these queries, he chose to ignore them and instead,
accused me of shifting the issue. Ludicrously, he
said that: "I am very well aware of the proclamation
issued in 2003 governing trade practices, which
provides a host of provisions, among other issues,
which regulate prices and the equitable distribution
of certain basic goods and services in times of
irregular and inadequate supplies."
I have to say, there is a big difference between
tackling the issues involved with a legal analysis
on a required level of knack and tact and the
expression of someone, somewhere, knowing about some
law enacted sometime in 2003. I guess from his
phrases such as "trade practices" and
"anti-competitiveness" that this must be about the
law on unfair trade practices with firms of traders;
which I have excluded from the very onset in my
previous articles.
As consumers are not supposed to be involved in
trading, it has a very scant application to them.
And if it was possible to stabilize the food market
by regulating prices and pronouncing the need for
equitable distribution in laws, then probably we do
not need to have either cooperative associations or
economic analysis at all.
Yohannes failed to get a grip on the symbiotic
relationship between newly-formed consumer societies
and the need to regulate their operation in
uncharted territory. His conceptual understanding of
modelling is, to put it very charitably, more than
strange. The underlying argument that he puts
forward for protesting against Eqube and Edier being
models to other groupings is the legal shortcomings
they suffer. The truth is that modelling something
cannot be contingent on the legal status of what it
is modelled on. It is all about the inherent
characteristics of something whose fundamental
elements are essential for the thing to be modelled
on that makes it a candidate for a format.
Any real or imaginary shortcomings in legal matters
can be rectified by enacting and adjusting the law.
Yohannes has also a completely flawed understanding
of the Civil Code provisions on consumer
associations and on lease and ownership as well. He
suggested that the Civil Code "emphatically excludes
cooperatives - including consumers' cooperatives -
and other groupings which tend to satisfy the
financial interests of their members by placing them
in a position to save money from its application."
This is incorrect. After pronouncing the stand of
the Civil Code, Yohannes went on to declare, in
direct contradiction from what he just put above,
that consumers' associations which do advocacy for
quality of life concerns are governed by the rules
of association under the Civil Code. Who said that
these consumer associations do not tend to satisfy
the financial interests of their members by saving
money?
The Civil Code deals both with consumer associations
and any other groupings as well. In Article 404, it
defines associations as groupings formed by two or
more persons with a view to obtaining a result other
than the securing or sharing of profits. And in
Article 405(2), the Civil Code stipulates that if
these groupings tend to satisfy the financial
interests of their members by placing them in a
position to save money, say, for instance, credit
associations, they are governed by the Commercial
Code and not by the Civil Code.
Thus, despite the misleading quotation by Yohannes
on Article 405 (2) of the Civil Code by inserting
his own words of "including consumers' cooperatives"
into the wordings of the Article; there is no
provision in the Civil Code which is virtually
inappropriate, be it for consumer associations or
for cooperatives, as long as they are not meant for
the securing or sharing of profits. And the consumer
associations or cooperatives we are dealing with are
not meant for profit sharing but to enable
consumers' proper to get basic food stuffs just to
live on and not die.
However, the Civil Code provisions are incompatible
with the would-be consumer associations because they
do not give the detailed and underlying legal
framework on how they are going to operate in the
market. And that is why the government must make
indirect intervention by providing a streamlined
legislative framework to rectify this shortcoming.
Yohannes also claimed that there is duplication of
laws on almost every new task the government wants
to take on and he cited the urban land lease law and
the then Region 14 directive on lessees and
sub-lessees of government owned houses as typical
examples of this. Both laws were enacted and started
to be implemented under my watch.
It was ill advised for a lawyer to have been seen
claiming that a government could have used
provisions of the Civil Code on land, which were for
all practical purposes, repealed by the
nationalization laws which made land the property of
only either the public or the state, making it
extra-commercial. If anyone wants to revive the
provisions of the Civil Code on land matters, there
must be a new law amending or repealing the land
nationalization laws by a tacit or express
abrogation.
The urban land lease law has done just that by
bringing urban plots that were made extra-commercial
for almost 20 years, back in the realm of financial
but legal subjects of transactions. It went further
and above that purpose as well. As is the case with
the upcoming consumers' associations' affair; there
were matters that had to be dealt by legislation
which were not covered in the lease provisions of
Civil Code.
Primarily, the Civil Code provisions did not make
then, and do not make now, a distinction between
lease and rent as forms of administration of land.
They use them interchangeably. There is, however, a
big difference between lease and rent as the former
is almost ownership but without the right of abuses
and the latter is just a matter of use right.
The Civil Code provisions do not tell how many
square meters of land should be given for citizens
to build their private dwelling on lease but without
payment; what kind of land uses the government
should encourage by way of granting land on lease
but still without payment; even when land is given
on lease and payment what kind of use on land shall
be given priority over others; and what should be
the duration of the lease and the modalities of
payment for it. One can go on enumerating all those
important provisions of the urban land lease laws
which are totally non-existent in the Civil Code, or
any other laws for that matter.
When it comes to the Region 14 Administration
directive on the leasing and sub-leasing of
government owned trading buildings, which Yohannes
mistakenly termed as "administrative order" and
tried to tie it up with dwelling houses by referring
to an irrelevant co-dwelling regulation for the
issue at hand, he got it all wrong all the way. The
Region 14 had a status which was equal to the status
of the other regions that constituted the federal
state of Ethiopia. It has not been under the direct
supervision of the Prime Minister and as per the
proclamation which provide the division of power
between the regional and federal governments; it was
a government empowered directive on the owning and
administering of the state owned houses in its
territory.
What the directive did was simply to implement the
provisions of the Civil Code on the leasing and
sub-leasing of houses. But there was a need to enact
a directive because the Civil Code does not make any
differentiation between dwelling houses and
businesses and all the Region was interested in was
the latter. The relevant Civil Code provisions give
the owner of the building the right to terminate any
sub-lease granted by the lessee without prior
authorization from the owner to do so. And even
further than that, the owner can claim damages for
the transgression of the lessee, terminate the lease
and make a contract with the sub-lessee by way of
direct action.
These are expressly enacted under Articles 2957(2),
2958 and 2962 of the Civil Code. And that was
exactly what the Region 14 government had done.
I understand the plight of traders who were affected
by the implementation of the law. To ease their
plight, I had a little fight with the then incumbent
administration on matters of technicalities. But
that was a matter of policy and choice, and not of
law. It is not even a matter of justice, as Yohannes
desperately tried to make out. The lessees who were
affected by this measure were paying less than 100
Br for the houses they leased but sub-letting them
to other folks for rents in the regions of
thousands.
The houses for which they were charging exorbitant
prices by way of sub-leasing had not even been built
by them. It just happened that they had occupied
them when they were expropriated from other lawful
owners by the previous government. They were allowed
to pay to the government less than half of the
market price prevailing at the time of expropriation
for more than 20 years while they were profiteering
from the sub-leasing by extraordinary proportion.
Where is the justice in that?
There was no illegal act committed by the Regional
goVvernment transgressed on the sanctity of
contracts. Rather, it emancipated a number of
sub-leases by giving them a fair share of the legal
right that they should have while substantially
increasing the coffers of the public finance.
|
