Draft Laws

The approximately eighty draft Codes, Acts, Regulations and Rules published through the ABC Journey form part of a single institution-building project. They were not prepared as isolated model laws. Their purpose is to demonstrate how Eritrea’s constitutional, governmental, economic and legal institutions could be reconstructed within a coherent democratic legal order.

The starting point was the Constitution of Eritrea 1997. Every draft was examined against the Constitution’s allocation of powers, protection of fundamental rights, commitment to democratic government and rule of law, and provisions governing the National Assembly, presidency, judiciary, local government and independent institutions. Particular attention was given to the constitutional rule that the National Assembly is the supreme legislative body and that no person or organization may make a decision having the force of law except as authorized by the Constitution or an Assembly Act. Accordingly, each instrument identifies both its maker and the legal authority under which it is made. Primary legislation is presented as an Act of the National Assembly; delegated legislation is presented as an Executive Regulation, Agency Rule or, where appropriate, Bylaw.

The project next examined Eritrea’s existing body of law. This included the transitional Codes inherited and adapted after independence, the four Codes published in 2015, and the proclamations and legal notices issued since 1991. The Ministry of Justice’s thematic categorization of domestic legislation was used to identify the fields in which Eritrea had previously legislated, the institutions it had established and the areas in which legislation had become obsolete, fragmented or incomplete. Existing Eritrean terminology and familiar institutional names were retained when they remained useful. Continuity was preferred where continuity served clarity and institutional memory.

Existing legislation was not preserved merely because it existed. Each instrument was assessed against the Constitution, later Codes, contemporary regional and international standards, technological change and the requirements of democratic government. Provisions associated with arbitrary executive power, indefinite national service, political control of public institutions, unexplained administrative discretion, discrimination, secrecy or the absence of judicial review were reconsidered. Where an old proclamation addressed a continuing need, its useful substance was retained and reorganized within a modern Act. Closely related proclamations and legal notices were sometimes consolidated. Instruments that had become obsolete, had been superseded by a Code or regulated circumstances that no longer existed were not reproduced.

The four Codes published in 2015 provided an important substantive benchmark. They reflect extensive professional effort and contain valuable attempts to modernize and adapt Eritrean law. Their useful organization, terminology and substantive improvements were considered when preparing related legislation. At the same time, they were not treated as immune from revision. More than a decade has passed since their publication, and developments in electronic communications, digital evidence, banking, payments, corporate governance, data management and international commerce require further modernization. The draft Commercial and Maritime Codes, for example, preserve useful features of the older Ethiopian-Eritrean codes while introducing contemporary rules for electronic transactions, digital records, modern companies, secured commerce, shipping, ports, marine safety and international trade.

Comparative law was used as a source of experience rather than as a substitute for Eritrean judgment. Legislation and institutional arrangements from democratic African states, small states, civil-law jurisdictions and countries managing comparable economic or administrative challenges were examined where they could provide useful lessons. International standards were also considered in specialized fields such as labour, banking, public finance, elections, maritime affairs, intellectual property, environmental protection and administrative justice. The aim was not to copy a single foreign legal system. Comparative models were accepted only when they could operate within Eritrea’s constitutional structure, administrative capacity, social conditions and stage of development.

Eritrea’s regional and international obligations were another important consideration. The drafts were assessed against relevant human-rights, labour, children’s-rights, anti-discrimination, environmental and other treaty standards associated with Eritrea. International law was used particularly to strengthen due process, equality, legality, judicial remedies, humane treatment, labour protection and accountable government. At the same time, the drafts recognize that international standards must operate through a constitutionally legitimate domestic legal order.

The legislation was also designed for Eritrea as it exists, not for an imagined country with unlimited money, personnel and institutional experience. Eritrea has a small population, limited administrative capacity, a large diaspora, substantial informal economic activity, underdeveloped financial institutions and an urgent need to create employment for people leaving national service. The drafts therefore seek institutions that are credible but not unnecessarily complicated. They permit gradual implementation, digital administration, cooperation among public bodies and the use of regulations for technical details, while reserving fundamental policy choices to the National Assembly.

Economic legislation assumes a transition toward an open and competitive economy in which private property, investment, entrepreneurship and contractual freedom are protected. It nevertheless preserves the regulatory authority necessary to protect workers, consumers, communities, public resources and the environment. Land and natural-resource legislation gives special attention to Eritrea’s village institutions, sedentary and pastoral communities, customary interests, lowland realities and the danger of placing uncontrolled ownership power in an unrepresentative state. Maritime, fisheries, mining, banking, commercial and investment legislation similarly attempts to make economic development possible without sacrificing constitutional accountability or public welfare.

Institutional legislation was drafted with separation of powers and enforceable accountability in mind. Independent bodies are given defined mandates, appointment procedures, reporting duties, financial safeguards and protection from improper direction. Executive institutions receive sufficient authority to govern effectively, but their discretion is bounded by law, reason-giving requirements, administrative fairness and judicial review. The armed forces and intelligence services are placed under civilian constitutional control. Courts, electoral institutions, the Advocate General, Auditor General, National Bank and public-service bodies are designed to serve the constitutional order rather than a governing person or political organization.

A common drafting architecture was applied throughout. The instruments use a consistent hierarchy of Books, Titles, Chapters, Sections and principal provisions according to their size and complexity. Each preamble identifies the problem addressed and the authority of the institution making the law. Numbering follows the principle of symmetry: no numbered or lettered subdivision stands alone without a coordinate provision. Cross-references, definitions, transitional rules, repeal provisions and commencement clauses were checked for consistency. Drafting notes explain the origin, purpose, principal changes and relationship of each instrument to existing Eritrean law.

These instruments remain consultation drafts. They are not presented as enacted Eritrean law and do not claim the authority of the National Assembly, President or any public agency. Their legitimacy must ultimately come from consideration and enactment by the constitutionally competent institution. Their immediate value is different: they provide concrete texts around which Eritreans can debate institutions, policies and legal choices. They seek to show that rebuilding the legal order need not begin from an empty page. Eritrea can preserve useful legal experience, correct the failures of its existing system and construct a modern body of law fitted to its constitutional aspirations and practical realities.