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Judicial Implementation: An Empirical Study of Good Governance

Author(s): Tassew Shiferaw Gizaw


Source: International Journal of Ethiopian Studies, Vol. 5, No. 2 (Fall/Winter 2010-2011),
pp. 115-130
Published by: Tsehai Publishers
Stable URL: https://www.jstor.org/stable/41757594
Accessed: 01-06-2020 16:01 UTC

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l.1 International Journal of
ÜTHIOPIAN STUDIEO

Judicial Implementation: An Empirical St


of Good Governance

Tassew Shiferaw Gizaw

The Government of Ethiopia implemented its revised family code in Addis Ababa in
July 2000. The statutory objectives of the code underline the principle of eliminating
discrimination to preserve the legal rights of women as a matter of good governance.
A basic finding is that legislative ambiguity in framing the code prompted judges to
reinterpret some of the code's provisions in order to accommodate the interests of women.
Since challenges arise during the execution of such a policy, continuous amendment is
required. Highlighting the ethical obligations of working together, which are currently
lacking, this article examines the execution of the code in light of the implementation
theoretical framework. Implementation is viewed as a process of cooptation.

Introduction
This article presents the findings of an empirical research with reference to the
implementation of the revised family code in Addis Ababa. The fundamental
principle of good governance should espouse the ethics of treating women on an
equal footing with men in the administration and provision of public services,
thereby preserving equal rights. The Office of the United Nations (U.N.) High
Commissioner for Human Rights, indicating the lack of exhaustive definition
of good governance, states that: "The true test of "good" governance is the
degree to which it delivers on the promise of human rights: civil, cultural,
economic, political and social rights." Thus, the principle of good governance
renders the avoidance of discrimination imperative. The Office of the U.N.
High Commissioner for Human Rights requires stringent compliance with the
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), and unequivocally obligates states to eliminate discrimination and
Tassew Shiferaw Gizaw, Ph.D., is an Assistant Professor of Public Administartion in the
Department of Political Science at Norfolk State University. He has been teaching public
personnel administration and policy related courses. His area of research includes human
resources management, public policy and gender issues.

The International Journal of Ethiopian Studies (ISSN: 1543-4133) is published two times a year by
Tsehai Publishers | www.tsehaipublishers.com | Copyright ©2011 | Volume V, Number 2

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116

to preserve women's rights. In this co


that: "... the United Nations and Eur
increasingly toward the role of the st
economic rights in order to secure gen
the courts (2003, 6).

In July 2000, the Government of Ethio


the 1960 Ethiopian Civil Code and impl
for the first time after four decades of t
relationship in that country. The gov
amending discriminatory provisions an
in the previous law. The Ethiopian C
European countries (David, 1967; Krze
and the provisions of the family law w
traditional laws of Europe and the Uni
and the United States were gender bia
1985; Coltrane, 1996; Stamps, 2002; Spa
law, which was part of the 1960 Civil C

Gender biased (in contravention to in


family law, which was part of the Civil
to her husband. Many of the provision
the status of women were inequitable,
(1), 645, 646 and 656 (1). They stipulat
relation to her husband's power over all
to obligate her to serve as a maid, and m

Because of such discriminatory provisio


Ababa, were places where women present
Since husbands were the primary br
own most property, wives suffered fina
marital conflict might not even be able t
children. Court decisions (such as thos
child custody cases) were resolved only
because the law (Articles 725 to 736) requ
to examine marital conflicts and subm
(Shiferaw 1998; W/Giorgis [Woldegior
high arbitration payment made it even
generally depended upon their husban
(1997) states: "[T]he whole concept of fee
into a commercial transaction. This tur
have no income of their own ..." (1997

Gender advocates-Ethiopian wome


organized in associations-were thus m

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JUDICIAL IMPLEMENTATION: AN EMPIRICAL STUDY OF GOOD GOVERNANCE

this situation and to expedite the promulgation o


light of the 1995 constitution of the country (a
to the principles of gender equality. This motiva
externally by the international gender advocacy m
the principle of gender equality emphasized after
held in Beijing. Consequently, Ethiopia, as a memb
of international treaties such as CEDAW, was lega
revise discriminatory provisions and clauses of law

According to the December 2004 U.N. Econo


Commission on the Status of Women's Repor
implemented gender-sensitive policies. Thus, the
has compelled many countries to design gender-sensi
gender-biased legislation. This is evidenced by the
which made explicit references to the importance
and macroeconomic objectives in order to help wo
resources in like manner with their male counterpar
1999).
Hence, concomitant with the U.N. principles, the revised family code has
statutory objectives aimed at safeguarding the rights and well being of women
on an equal footing with men: "WHERE AS, it has become essential to make
the existing Ethiopian family law in accordance with the socio-economic
development of the society... to provide the legal basis which guarantees the
equality of the spouses during the conclusion, duration, and dissolution of
marriage;..." (The Revised Family Code 2000, 1). The endeavour to safeguard
the legal rights of women is a feature of good governance intended to improve
the general quality of life in society through the elimination of discriminatory
practices. To this end, concerned entities are obligated to work together in order
to confront such unfair practices and to realize the aforementioned statutory
objectives. This article explores pertinent issues in light of a theoretical
framework followed by the methodology, findings and discussion sections.
Examined here, therefore, is whether or not the judicial implementation of the
revised family code has helped attain the statutory objectives: i.e. whether or
not there has been a failure for the code to be implemented as intended.

Theoretical Framework

The law has been implemented in accordance with the policy intent of
ensuring the legal rights of women by redressing past discriminatory practices
as a matter of good governance. Such a policy concern requires committed
and concerted efforts in order to achieve the statutory objectives of the code
in practice, i.e. implementing the code through the cooperation of concerned
parties.

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118

Many authors [e.g., O'Toole (1984);


(1995); Lane (2000); Hill and Hupe (
Long and Franklin (2004), and Schofi
ways of approaching implementation
models." According to Calista (1994),
implementation stems from statutes or
lineated. It emphasizes implementation v
level. On the other hand, the bottom-
of negotiation over policy intention t
making local level participation imperat

From the bottom-up perspectiv


implementation is one of mutual adap
willingness or lack of willingness of im
She explains that in the process, "the
support evidenced by the principal actors
for success" (1976, 170). According to
interact in three different conditions: m
implementation. Mutual adaptation del
a policy. It involves the modification of
arrangements and staff" while implem
lacking, co-optation tends to prevail.

Co-optation entails accepting policy wi


institutional arrangements. Schultz de
organizations use to deal with potenti
(2004, 86). In this study, the term ref
implement the code, or measures tak
or to meet the interest of stakeholde
significance of the term is to bring ab
pressure in implementation. This is ac
degree of latitude concerning policy r
willingness to consider arising challen
would entail innovative modification
traditional practices, which would be
help avoid opposition to the implemen
implementation is where a policy wou
or to which attention would not be give

In an attempt to show the conver


approaches to implementation, Mailan
model. It presupposes that policy conflic
He notes that conflict emerges when
entirely serve their own interests due

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JUDICIAL IMPLEMENTATION: AN EMPIRICAL STUDY OF GOOD GOVERNANCE

conflict with regard to the means required to im


can be more severe when incongruity of the
of the stakes exist. Matland also explains amb
"ambiguity of goals and ambiguity of means
goal ambiguity tends to cause misapprehension an
resulting in unsuccessful implementation. Ambig
there is a clarity of roles played by various orga
of implementation. He also mentions that wh
creates difficulty as to the usage of implementat
arise. Matland presents an ambiguity-conflict
more ambiguous the policy, the more it tends to
of implementation.

The models by McLaughlin and Matland a


they describe factors that would determine t
implementation. McLaughlin provides guidan
cooperation or interaction among policy actors
discussion relative to the interpretation of the
the implementation process. The focus here is on
women in Addis Ababa by tackling discrimina
are institutions (such as women's associations
mentioned herein), and policy actors include
advocates. Implementation can be viewed as a pro
public arena where fair treatment is expected.

Methodology
The qualitative study is based on collected interviews data. According to
Patton (1990 and 2002), qualitative research involves a naturalistic approach
(such as open-ended interviews) which capture a wide range of information
based on the perceptions of participants. It involves an inductive approach
through which the researcher generates themes and ideas from the data
collected (Creswell, 2003). The interviews (n=14) were conducted through
telephone conversations between April 15 to May 7, 2007. The duration of
each interview depended upon how each participant responded to the interview
question, and lasted approximately from 1.25 to 2.0 hours. Consequently,
the data was gathered through a semi-structured interview protocol, which
contained six major questions and one optional question. The interview
questions constituted "as to how, what, and would you please tell us" type of
exploratory inquiries.

Purposive sampling technique was employed to select information-rich


participants which included four family court judges, four attorneys and six
gender advocates. These participants were selected because they have had

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120

adequate knowledge concerning the i


The selection process involved consult
individuals who had significant roles
code. A potential bias in the informatio
advocate interviewees who may be em
matter is acknowledged. After refin
procedures, the investigator was able
furnish discussion and analysis. Accor
ethics, in order to protect the informan
has been assigned to each participant.

Findings and Discussion


According to the participants, the cod
accordance with the intent of the pol
been realized. For instance, the court re
period of time, as compared to the prac
petitioning for divorce is no longer s
Such parties, who are usually women, n
imposed upon those individuals dispos
requests to the court. In other words, w
in a marital relationship can readily,
time, obtain a divorce without being
divorce has now been codified. Ms. M
advocates' group) states:
Under the previous law, some women
unhappy marriages because of the fea
therefore losing 1/3 of their divided pr
a petitioner for divorce. Some men by
creating unbearable conditions drove th
the latter would prefer to file for divo
marriage. However, now no penalty is
in a painful marriage can easily get divo

The new condition has rendered divor


since some couples tend to divorce fo
consideration. Ms.Messelch gives the e
on the grounds that one's partner pract
the attorneys' group, has same concern
The code made divorce the end of an or
and divorce has become as simple as b
gums. The procedure is currently so

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JUDICIAL IMPLEMENTATION: AN EMPIRICAL STUDY OF GOOD GOVERNANCE

grants divorce for those who seek it. This creates


a disputing couple, who could, given time, pe
differences, would be divorced even for reason
resolved (April 15, 2007).

Thus, the consequences of divorce are often di


hardship because men generally hold the role o

According to participants from the judges g


April 18; Gobeze, April 23; and Tesfanesh, Ap
many more files forwarded to the court as comp
cases were delayed for 10 to 15 years without bei
been addressed through the restoration of family
implementation of the revised code. Along with o
were handled in the civil court system until the
Unlike the practices that prevailed under previou
has now been computerized and appointments
have facilitated the implementation of the code.

The participants revealed a lack of uniform app


There has also been the lack of remuneration f
tends to discourage the willingness of arbitrators
Yet, this can create a problem especially for w
afford the payment required to remunerate ar
major reasons for the revision of the previous
to look into possible ways to resolve marital conf
seek the court's assistance in finding trustworthy

For instance, Judge Woldemariam (a partic


and Mr. Berihun (a participant from the attorn
arbitrators could assist the court by ascertainin
whether they wish to live with their mother or
dictates a marital conflict be resolved within thr
where many couples are not afforded the opportu
option of reconciliation.

Having attempted to identify the extent


relationship, we now turn to the implementation
mutual adaptation, co-optation or non-implement
model also informs the findings.

Mutual Adaptation
Mutual adaptation signifies a successful imp
modification of policy to accommodate the intere
actors. It also reflects the working relationship

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122

actors in the implementation process. In ot


in which the three groups work together
code. For instance, if the groups constantly
bility for them to work together, identify
seek solutions to mitigate barriers which a

All participants of the judges' group p


a good working relationship with most
to support the court in a manner to help p
The court is often in conflict with attorne
themselves in accordance with the expe
judges believe that most attorneys are ye
the place and priority that co-operative jud
proceedings. Expressing his criticism of m
states:

By and large, attorneys are not cooperative with regard to the spirit
of the law. They are primarily motivated by money and encourage
conflicting couples whom it would be possible to reconcile, to get
divorced by considering in advance the fees avaricious attorneys
would earn especially when they handle property division. Attorneys
need to correct this condition of adverse incentive. In fact there are
few attorneys who reconcile conflicting couples before they come
to the court. Moreover, a significant number of attorneys display
indifference with regard to the protection of family or child welfare.
In fact, they benefit financially from family litigation (April 18, 2007).

However, another participant, Judge Tesfanesh, expresses that she has had
a good working relationship with some attorneys and mentioned that they
demonstrate cooperation in helping to resolve litigations.

As to the working relationship with gender advocacy institutions (such as


the Ministry of Women's Affairs and the Addis Ababa Women's Association),
all group participants indicated that judges do not have working relationship
with advocacy institutions except with the Ethiopian Women's Lawyers'
Association (EWLA). All participants of the judges' group confirmed this
finding, believing that EWLA is very cooperative in assisting the court in
rendering justice.

In line with these views, a participant of the attorneys' group (Mr.


Mekonnen) says that there are attorneys who mar the good relationship
that judges should have with attorneys. The other three participants of the
attorney's group think that even though there is no special working relationship
between attorneys and judges, the entire relationship is conducted strictly

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JUDICIAL IMPLEMENTATION: AN EMPIRICAL STUDY OF GOOD GOVERNANCE

within the framework of the law. An attorney repre


before the court and litigates on behalf of a particula
judgment after considering the facts presented. The i
law. The judge has the freedom to question or repr
event the latter acts in contravention of the law. Oth
working relationship between attorneys and judges ba
participants of this group indicated that attorneys
relationship with gender advocacy institutions.

In contrast, gender advocates who have had a


advocacy institutions, with the exception of Ms. M
have no working relationship with family court judg
these participants mentioned that they have a good w
EWLA. For instance, Ms. Tsigereda - (a participant
group) - explains that the association utilizes th
some legal interventions sought for its members (A
participants of this group agree that they have a
with each other. Nonetheless, Ms. Tsedale (participant
group) is of the opinion that although there has be
among gender advocacy institutions, this relationship
for them to fully safeguard the legal rights of wo
because each institution has internal problems su
human and financial resources required to create a str
gain popular support.
There is, then, either no working relationship (f
family court judges and most gender advocacy institu
relationship between family court judges and att
groups of key actors (family court judges, attorne
do not have the required interaction and co-opera
realization of the intent of the revised family code a
In other words, there is little cooperation among the
are there any modifications made to the code whi
interests. Therefore, the implementation process o
be characterized as mutual adaptation. The lack of
affected efforts to put pressure on the governmen
problems encountered in the code implementation.
Gobeze is of the opinion that family matters are n
national concern; and he criticizes the government an
Family matters should be reviewed very carefully and
in depth. The fact that the revised law has been e
necessarily imply that the government is focusing
for labor relations conflicts there is a labor dispu
board to bring about healthy industrial relations. W

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124 INTERNATIONAL JOURNAL OF ETHIOPIAN STUDIES (V: 2)

the government establish a similar board to resolve the


pertinent to family matters? (April 23, 2007).

Hence, one can argue that the government (the ul


body) should provide a forum wherein the efforts of conc
organized. Had there been mutual adaptation, some kind
have been developed to maintain the full realization of the
of the code.

Cooptation
The implementation process of the revised code cou
the operations of the courts. Likewise, the staff arrang
would have a direct bearing upon the operations of th
section examines what the staff arrangement of the c
and if there have been some changes made concerning st
implementation process.

Each interviewee indicated that in spite of the revi


no significant changes made concerning staffing, excep
have been restored and family matters are now treated sep
civil matters. That is, before the revised code was put in p
were handled in the civil courts along with other matters
other civil contracts. Currently, although family matters
in family courts, there is no new staff arrangement. In th
always judges, clerks, a procedure keeper (a messenger),
Berihun states: "There is no structural adjustment made ex
of family courts, and random assignment of old and marr
to family matters" (April 15, 2007). In fact, Mr. Mebra
participant of the gender advocates' group, who was one
the code, and an attorney participant, Ms. Hamere (Apr
that there was a family court in the 1980's. However over
were handled with other civil matters (such as inheritan
of judges and due to budgetary constraints. The existence o
courts as a consequence of the revised code can be consi
what had been established in the past.

Mr. Mebratu explains what the other participants h


in connection with staff placement or structural adju
his experience in relation to the non-establishment of
notary. According to him, the law stipulates that the offic
be established within six months. This office should ha
to the kebele level (the smallest administrative locality) to
(if they fail to report) and to register their marriages. How
and its branches have not been established. Nonetheless

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JUDICIAL IMPLEMENTATION: AN EMPIRICAL STUDY OF GOOD GOVERNANCE

Addis Ababa registers civil marriages and issues


upon the application of couples that have celebrat
marriages. There is not a marriage-counseling ag
in Addis Ababa. Instead, EWLA mediates marriag
guidance and assigns its members (lawyers) to re
seek its service to represent them in court. Judges,
power, allow lawyers (members) of EWLA who d
as attorneys for the purpose of safeguarding the int
consistent with the intent of the code.

For the various reasons discussed herein, the c


tribunal of family arbitrators, only acknowledging c
in which the litigating couples themselves would see
82, 2.2). However, as indicated, it may be difficult f
trustworthy arbitrators. Neither has the code in
how a couple can be assisted by the court in selectin
does there exist a court-annexed arbitration body to
Consequently, those desiring that their marital
reconciliation often insist that the court assign arbit
upon the request of litigants, select arbitrators by w
pertinent provisions in order to keep a particular m

Even though the revised code does not acknowledg


services, when judges select family arbitrators to re
they may instruct the latter to remunerate the arb
arbitrators to be committed to identifying the root
diligently attempt to achieve reconciliation. In preve
they thereby act in the interest of couples needing
to preserve their marital status. As Mr. Berihun ind
prefer the old provision with regard to family arbit
tribunal of family arbitrators), and wish it to be rein
concurs and explains:
...some people argue that the previous operations
family arbitrators be reinstated. Their argument is
of family arbitrators would proceed slowly with
the litigating couples would have an increased
reconcile. After the divorce, however, the realities o
status having worsened rather than improved, m
become severely emotionally distressed. On severa
suggested to the legislators that the pertinent pr
amended to rectify this problem (April 18, 2007).

Each of the judges pointed out that the Civil


which allows the payment of arbitration fees, is s

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126 INTERNATIONAL JOURNAL OF ETHIOPIAN STUDIES (V: 2)

the current code bans arbitration payments, those jud


reinterpreting the code, would like to help conflicting cou
the Civil Procedure Code (Articles 315 to 318), and par
(5), which stipulates: "Where the fee to be paid to the arbi
fixed, a reasonable fee shall be fixed by the arbitrator in h
is to serve the interest of those couples who insist that th
be resolved through arbitration, the discrepancy betwee
evidence of the existence of legislative conflict.

Despite the fact that there is no provision which


property division after a long period of separation, som
reinterpretation of the code (based on its intent) rule that
neither equitable nor feasible, particularly in the aftermath
The judicial argument is that it is unlikely there would
to justify the existence of common property after a separ
period.

Due to ambiguous or lack of legislative means, there were differences in


rendering judgments concerning child maintenance and household provisions,
which are part of the endeavor of reinterpreting the revised family code to
safeguard the interest of parties involved in family litigations. That is because,
unless reinterpreted, the code would not allow judges to deal with these issues
before a marital conflict is resolved. Some judges (Judge Gobeze and Judge
Tesfanesh, for example) are cognizant of their discretionary power and are
disinclined to postpone marital litigations that involve child maintenance
and household provisions. Therefore, rendering judgment concerning such
litigations before the actual divorce has often occurred in order to protect the
interests of women and children who traditionally lack maintenance income.

This consideration was also pointed out by gender advocate participants


and it is commensurate with the current movement of women's associations,
such as EWLA and the Addis Ababa Women's Association, towards the
amendment of some provisions of the code whose application brought about
adverse effects to women and children. Ms. Menbere (participant six of the
gender advocates' group) pointed out that her office had prepared a proposal
which takes into account alimony, (post divorce maintenance for women)
suggesting it be included in the code, and that child custody be provided to
mothers as it was under the previous code.

Analogous to the conflict-ambiguity model, the preceding discussion


shows the lack of appropriate provisions (lack of means) and unclear provisions
(ambiguity of means) which affected the realization of the statutory objectives
of the code to safeguard the rights of women to the fullest extent desired. As
a result, the judges, using their discretionary power, opted for reinterpreting
some of the provisions in order to help women and children, i.e., co-optation.

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JUDICIAL IMPLEMENTATION: AN EMPIRICAL STUDY OF GOOD GOVERNANCE

The foregoing information, therefore, characte


process as one of co-optation. That is because the int
as women involved in court proceedings and wom
accommodated, since judges are disposed to reinte
to safeguard the rights of women and children. T
possible occurrence of resistance or adversaries in th
of the revised family code.

Non-implementation
It refers to failure of implementation endeavor, a
the intent of policy - policy breakdown to attain sta
the revised family code has weaknesses, it also has st
previous family law. For instance, women have the ri
short time without justifying grounds for divorce -
irregular unions and whose relationships last for thr
the right to property division. Therefore, there is r
which is also an indication that the revised family c
for the last seven years. This fact makes the term n
signifies policy breakdown (as has been defined
characterizing the implementation process of the co

Summary and Conclusion


The revised family code has been successful in
for women. It has benefited women in terms of in
conditions which have allowed women to assert indiv
it allows divorce without having to present grounds
no penalty incurred. Nevertheless, the implement
code also confronted unfavorable conditions, which

Based on the conflict-ambiguity model, the implem


revised code has suffered from an ambiguity of
which affected the full attainment of policy int
rights of women). Since concerned bodies are no
implementation process cannot be characterize
can neither be characterized as non-implementatio
of some positive developments which indicate tha
is generally being realized. For example, women n
fault divorce. Further, the code has been implement
The implementation of the revised code can be ch
because there have not been any significant chan
or institutional setting of the court system. Th
resistance to the implementation of the code, which

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128 INTERNATIONAL JOURNAL OF ETHIOPIAN STUDIES (V: 2)

certain requirements, for example, from the allocation o


of public fiinding to manage change. There has also been
to reinterpret some of the provisions based on the in
revised family code), in regards to the interests of wom

There have not been presently any modifications o


to the code. Nonetheless, concerned parties such as g
judges are seeking further revisions in order to rectify
code and mitigate the noticeable weaknesses of certain
alleviate the negative impacts of the inadequacy of th
parties involved in family litigations, especially wome
co-optation could be considered as a strategy necessar
adversaries, and so it characterizes the implementation
code.

The study encourages researchers to initiate sound


and helps examine and compare obstacles and best pr
process of implementation of gender sensitive polic
administrators, who either develop or execute public pol
implementation is not merely a litmus paper used t
a particular policy. Rather it is a mirror which reflec
concerned parties, including the government and in
ethical obligation to work in unison in order to prese
women. Working together assists in the creating of a fo
best practices and limitations by identifying factors tha
the attainment of statutory objectives (for instance,
prepared as a document, but in the course of its exec
of policy intent may prove to be difficult, thus requ
feedback). The point is that "...if it [a policy] cannot alle
which it was designed, it will probably be a failure n
implemented" (Edwards III 1980, 1).
The study also presents a policy implementation exp
to shed light upon other ongoing U.N. monitored poli
programs to bring about gender equality. It underscores
are part of the global agenda of human rights' movemen
discourses. In particular, it demonstrates the challen
gender-based policies in developing societies that are atte
traditional values to contemporary ethics which foster g
Hence, implementing public policy to protect the rights
i.e. women, is at the heart of the ideal and reality of go

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JUDICIAL IMPLEMENTATION: AN EMPIRICAL STUDY OF GOOD GOVERNANCE

Work Cited

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20 years of Implementation Studies. Public Administration 82, (2) 249-262.
Brook, H. (2002). Rethinking the Politics of marriage. Feminist Theory, 3 (1) 45-66.
Calista, D. (1994). Policy Implementation. In Encyclopaedia of Policy Studies (pp. 177-
155. London: Routledge.
The Civil Code of Ethiopia (1960). Addis Ababa: Berhanena Selam Printing Press.
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