Although conventional assumption in such type of gatherings would have it that participants should discuss matters that directly or indirectly affect their own interests, the discussion on the two draft bills, however, was unique in one respect - they had an overriding national importance of constitutional magnitude.

This includes an issue that grants a total and unwarranted exemption to the central bank to make customs declaration on all import and export of gold, silver, local and foreign currency notes and coins. This is entirely unacceptable and against the applicable mandatory customs laws that require the full and accurate declarations for all import or export goods coming to or going out of the national customs territory.

A proclamation issued in 2005 in order to re-establish - and modernize if you want - the Customs Authority amended “a form prepared or a procedure established by the authority in which details of import, export or transit goods are described for the accomplishment of customs formalities.”

It is evident from this definition that the accomplishment of customs formality is entirely dependent on customs declaration of goods; no goods may be placed under any regime of customs law for import, export or transit clearance procedure to or from the customs territory unless duly declared and accepted by the authority. This is a universal requirement in all modern and civilized states’ customs laws the world over.

Customs declaration, however, differs depending on the type of goods. Under the existing customs law that has become enforceable beginning September 2003, “customs declaration” states Article 19(9), may be lodged orally, by bodily action or electronically. Therefore, customs declaration for personal effects and accompanied luggage is different from goods for home consumption. But, in any case, no goods may be allowed to come in or out without being scrutinized and obtain the approval for entrance or exit by the Customs Authority.

This is because the authority has the ultimate legal authority to process customs formalities; it grants permissions for detention or release of all goods coming to or going out of the country. This responsibility is not merely to collect taxes and duties and ensure government revenue interest. But the authority has a compelling responsibility to ensure that public safety and state security is safeguarded; public health and safety is maintained; and national treasures, antiques, biological species, articles of historical and cultural heritages are protected.

There is also a need to ensure an accurate record of incoming and outgoing goods for national statistical purposes. No security concerns or cumbersome customs formalities may justify the total exemption from the fulfillment of customs declaration; exemption and temporary or permanent relief from payment of duty and tax does not have any legal nexus with lodgment of customs declaration.

Even the most devastating war arsenals imported to defend our sovereignty against active or latent foreign and internal enemies are considered “goods” for the purpose of customs. Therefore, all goods imported to maintain public and state securities, although free from any taxes and duties, in accordance with the relevant tariff code, are legally required to be declared.

Goods imported or exported by the National Bank of Ethiopia (NBE) include gold, silver, local and foreign currency notes and coins. Under our Local Harmonized Commodity Classification System Code currently in force, the importation or exportation of such goods is classified under Second Schedule B; and the NBE is exempted from any duties and taxes. Both the HS code and the customs proclamation classify gold, silver and even currency notes as goods in the same way it considers warplane, canons and bullets. Therefore, gold, silver and currency notes are not such mystified objects that warrant any special treatment, attention and exemption as to be relieved from compliance with the requirements of customs declaration.

The reasoning for granting total exemption to the central bank is illogical and legally unacceptable. Notwithstanding, the advice by those concerned to remove this pointless and yet potentially damaging provision suffered wanton disregard; the highly stormed and criticized bill obtained the full sanction and blessing of  Parliament last year, when incorporated in the Sub-article Two of Article 23 of the proclamation that re-established the National Bank of Ethiopia (NBE).

This provision confers exclusive privilege to any staffer of the NBE in charge, to dispense with any mandatory customs law requirement to bring to the attention of the customs authority of any information on the import, export or transit of gold, silver or currency notes to, from, or within the customs territory of Ethiopia.

In effect, a staff member of the central bank in charge of such goods would be free to take or bring any amount of gold in short or excess amount than indicated in the relevant documentation in accordance, or even in violation of laws. If compliance is made on providing any such information to the Customs Authority, it is done as a matter of goodwill or cooperation by the central bank or any of its officers. They are not under any legal requirement because the law has granted dispensation.

Neither has the Customs Authority any say to question should it find any discrepancies, nor could its officers seize any amount of gold, silver or currency coming to or going out of the country, even if they do not conform with the accompanying documents or are illegal. They have no frame of reference to verify the legality of these imports simply because the authority is prevented from requiring and receiving customs declaration of the goods. Any supervision by Customs Authority thus, is completely denied so long as no information is provided to it by way of customs declaration. 

It is very difficult to understand, for a customs lawyer, the policy considerations underlying NBE’s exemption from making customs declaration on all imports and exports of gold, silver and currency notes and coins. It may be argued that this exemption is designed to “minimize or avoid hassles and cumbersome procedures at the customs” that may be hazardous to these “sensitive items.” If customs does not have the means to check, ahead of time, the quantity, quality, origin and value of the goods arriving or departing, from the customs declaration lodged to it against each item, there is a potential for fraudulent acts. This is contrary to customs law and the staffer in charge at the central bank would have the propensity to do what he wishes by abusing the exemption.      

Many debating the bill were apprehensive of the foregoing issues while proposing a change on the exemption. The discussion on this particular provision of the draft proclamation was obviously prompted by collective concerns on the supremacy of the law and selfless civic motive to ensure national interest; it was not about promoting any individual interest or group return.

The dialogue between the state and citizens is not merely aimed to ensure getting concession on certain benefits to the respective parties. There are also compelling national interests for mutual benefits of all persons involved. One such area of state and citizens dialogue is to help ensuring the rule of law and upholding legality that are always a bulwark for the right to property, good business conducts, the security of contracts or other juridical acts, and ultimately the pursuit of happiness.

It is unfortunate that the suggestion made during the debates on the foregoing bill, that is to the best advantage of the state more than anything else, was rejected.

Again, in November 2008, Parliament organized a public hearing on the bill to re-establish the Customs Authority. As usual, the business community and those from the public sector were invited to contribute on the bill. Interestingly, the newly reconstituted Ethiopian Revenue and Customs Authority (ERCA), which is exclusively mandated to accomplish customs formalities on incoming, outgoing and transit goods and which has been in deep slumber amidst the foregoing heated debates on customs declaration of goods, came with a new bill which has strikingly new draft provision.

Reads one of the provisions: “Any import, export or transit goods shall be subject to customs declaration.”

A close reading of this provision might give the impression that the controversy over the unwarranted exemptions bestowed to the central bank, to make customs declarations on import or export of gold, silver and currency notes has come to a final and logical conclusion. Indeed, for a lawyer, the special customs law, primarily concerned on goods declaration on import and export of goods accomplishment of customs formalities, prevails over any general legislation, such as the proclamation in relation to the central bank that makes a slight reference to customs law.

However, a public body that was relieved from the legal obligation to make customs declaration of goods, notwithstanding timely and proper advises on the subject, cannot be deemed to maintain an opposite position a few months later. As a result - and assuming that the position of the legislature on the central bank proclamation is based on unexplained policy consideration that does not have any justification under customs principle and indeed the new customs bill - a proposal was submitted to the supreme law making body to take remedial measure for all similar and previous blunders in conformity with universally accepted customs principles.

Reads a provision in this proclamation: “Notwithstanding any law to the contrary, import, export or transit goods shall be subject to customs declaration.”

Much to the dismay of all concerned, however, this proposal failed to get the attention of MPs and much less, the support of officials at the newly formed authority, which is empowered to recommend and rectify past, current or future legal irregularities. Consequently, the Customs Bill has been adopted without any change. I am curious to see how authorities at the central bank and the Customs and Revenues Authority will enforce the inconsistent and contradictory formulation on customs declaration of goods inconformity with accepted principles.

This raises very serious concern on the efficacy and importance of discussions on draft policies, proclamations, regulations, and other laws before adoption. If the government is not responsive to legitimate and selfless suggestions of experts and other stakeholders for its own advantage, it is even more difficult for professionals to protect and promote individual legal interest.

It is certainly a futile and wasteful exercise in terms of public and private resources to guarantee and recognize the legal right to discuss on any policy or legal issues with no guarantee for acceptance. This is a kind of practice that could discourage even the most sincere consultative role to safeguard the interest of the government.

Ethiopia is a home for all Ethiopians. Its pain and pleasure should not be the exclusive domain of the few ruling elite.