The draft proclamation in Ethiopia to amend document authentication and registration proclamation

This briefing has been published by Mesfin Tafesse & Associates, Ethiopia, who have agreed to Simmons & Simmons making it available to elexica subscribers.

Introduction

The procedure and requirements of authentication and registration of documents vary in different jurisdictions. So does the scope of work and mode of appointment of notaries. For example, notaries in England and Wales have quite different roles from notaries in other jurisdictions in that they act as independent professionals whereas notaries in most other jurisdictions are appointed by the state. Notaries in England and Wales deal with the requirements of other countries’ laws, whereas notaries in other jurisdictions often play a leading role in the administration of their own countries’ legal systems and do not deal with anything relating to the laws of other countries. In America, no legal training is required to become a notary as notaries there have a limited role to act as impartial witnesses and take acknowledgments (witness signatures). They usually undertake that role in the particular district to which they are appointed and for a specific term, typically four years. The European civil law system has yet another mode of document authentication and registration system. As state-appointed officials, notaries in civil law countries are often charged by their governments with providing legal security for parties entering into contracts. These could relate to property, inheritance, family, commercial law, company law or other matters.

The authentication and registration of documents in Ethiopia is currently regulated by the Authentication and Registration of Documents Proclamation No. 334/2005 (as amended) (hereinafter referred to as the (Proclamation). There is an amendment of this Proclamation that is currently being drafted (hereinafter referred to as the (Draft Proclamation). It has been presented to the Parliament in the past month but has not yet been enacted. This update reviews the changes that the Draft Proclamation has incorporated. The Draft Proclamation foresees institutional changes as well as an incorporation of new procedures.

Definitions and scope of application of the proclamation

The Draft Proclamation has expanded the list of documents that are to be regulated by the Proclamation. It has included documents of vital event, education and professional certificate as well as a document of the revocation of a power of attorney. Furthermore, it foresees the establishment of an “Institution” at the federal and regional level. This institution is expected to perform duties of authentication and registration of documents as a duly authorised organ of the government.

Hence, the scope of the Draft Proclamation is limited to the institution mentioned above and federal government organs delegated with the powers and duties of authentication and registration of documents as provided for in the Proclamation.

Authentication and registration institutions and basic principles

The institution mentioned above is expected to exist in the federal and regional levels. The “Federal Institution‟ is an institution to be established by a regulation of the Council of Ministers to centralise the work and data; as well as do the work of authentication and registration in Addis Ababa and Dire Dawa. It is expected to nationally coordinate and support the authentication and registration activities. The "Regional Institutions" are expected to be established by the regions to implement the Proclamation. The structure of these institutions is to be determined by the regions in light of each region’s reality. For the purpose of maintaining the national uniformity of the authentication and registration system of documents, these institutions shall send the necessary data of their registered documents to the Federal institution. An authenticated document by the Regional Institutions is acceptable by the Federal Institution and vice versa.

Under the current Proclamation, there are other organs of the government that are given the power to authenticate and register documents. The Draft Proclamation maintains this power of delegation but unlike the current Proclamation that only lists the organs, the draft goes further in specifying the documents that each organ is responsible to authenticate and register. Hence, Ethiopian Embassies and Consulates authenticate documents to be sent to Ethiopia; the Ministry of Foreign Affairs authenticates documents to be sent abroad or documents authenticated by Ethiopian Embassies abroad or embassies and consulates of other countries in Ethiopia; the Commander of the defence force can authenticate a document presented by members of the defence force on active duty; the Head of federal prisons shall authenticate documents submitted to them by prisoners or detainees.

Authentication activities, procedures and duties of the notary

The Draft Proclamation enhances the duties listed as “Notarial Activities‟ in the current Proclamation. The duty to ascertain the legitimacy of the authority that signed the document is added to the list of duties of the Notary. Furthermore, the Draft Proclamation has included the document of revocation of the power of attorney in the list of documents that have to be authenticated and registered in order to have a legal effect.

Unlike the current Proclamation, the Draft Proclamation contains a list of documents that are required to be signed by two witnesses before being authenticated. These documents are contracts for transfer of an immoveable property by sale or wills.

Moreover, the Draft Proclamation expands the list of documents that a Notary is prohibited to authenticate. The Draft Proclamation adds one more item to the list. The Notary is prohibited from authenticating a document of a business organization or a company to which the Notary is a beneficiary.

Another duty of the Notary is the duty of confidentiality as regards documents and information which come into the possession of the Notary in the course of performing his duty. The Draft Proclamation maintains this provision from the current Proclamation but, as an exception to this principle, it relieves the Notary of this duty if the Notary gets access to information of a crime. In this case, the Notary should report it to the appropriate organ.

Improperly authenticated and registered documents

The Draft Proclamation introduces a new concept of improperly authenticated documents and their suspensions. This concept does not exist in the current Proclamation. Hence, the Draft Proclamation envisages that the institution may order the suspension of an authenticated and registered document provided that certain conditions are fulfilled. For a document to be suspended in this manner a petition for suspension has to be made by a concerned party or by the initiation of the institution itself. Furthermore, it has to be proved that if the document is not suspended, it will cause a serious damage that may not be easily reversed.

A document is considered to be improperly authenticated when:

• it is authenticated by a prohibited Notary. A Notary is prohibited to authenticate his own documents, documents of his spouse, documents of his ascendants or decedents, documents of his brother and sister, documents of the parents of his spouse or documents of the brothers and sisters of his spouse
• it is authenticated due to the presentation of illegal documents, and
• it is authenticated without fulfilling basic authentication and registration formalities and procedures listed out in the Proclamation.

After a petition for the suspension of a certain document has been lodged, an examination has to be conducted by at least three professionals of the institution. Afterwards, a decision to suspend is given by the head of the institution within five working days. The effect of this order of suspension is that during the time of suspension, the document shall be considered as though not authenticated and registered. The concerned party shall then institute a case in regular court within a month of the suspension of the document. The party who is aggrieved by the order of suspension or the denial of the order of suspension can, in a similar manner, bring an action to the court. However, the order of suspension will be discarded when either the concerned party does not institute a case within one month of the order of suspension or when the court discards the suspension. The Notary will be liable for improperly authenticated or registered documents in accordance with relevant laws.

Lodging a petition

The procedure set out by the Draft Proclamation for lodging a petition by an aggrieved person is identical to that of the current Proclamation. An aggrieved person is expected to lodge a petition to the superior officer within 15 days of being refused of a service listed in the Proclamation. If the person is not satisfied by the decision of the superior officer or no decision is given within 30 days the person can institute a case in a regular court.

The Draft Proclamation also imposes the duty to cooperate in providing documents or information that are necessary to the activities of a Notary on any person that is in possession of such document or information. As a transitory provision, the Draft Proclamation provides that until the new Federal Institution is established by a regulation of the Council of Ministers, the current institution shall remain as it is. Finally, the Draft Proclamation seeks to repeal all previous laws in regards to authentication and registration of documents.

The Draft Proclamation has been put forth to stakeholders for discussion and one of the ideas forwarded by, for example, the “Ethiopian Lawyers" Association, is the idea of delegating some of the notary work to law offices on the basis of capability criteria that will be monitored by the Federal Institution in charge of the overall notarial responsibility. The existing development of the legal profession casts doubt as to the acceptability of this and similar policy level suggestions by the government.