An explanatory note on the ratified Eritrean Constitution of 1997 and the current Eritrean intellectual property regulatory framework
Prepared by the World Intellectual Property Organization © 2011
Eritrea is located in northeast Africa on the western coast of the Red Sea. It is bound by Sudan to the west, Ethiopia to the south, Djibouti to the southeast and the Red Sea to the north and northeast.
The country officially declared its independence on May 24, 1993 following a 30-year armed struggle against Ethiopia and became one of the world's new nations . Eritrea is a member of the United Nations (UN) and joined the World Intellectual Property Organization (WIPO) in 1997.
The current Eritrean Constitution which is the first Eritrea Constitution was ratified and adopted by the Constituent Assembly on May 23, 1997; however, it has not yet come into force . Before the 1997 ratified Eritrean Constitution, there existed the 1952 Constitution prepared by the United Nations (U.N) during the period of federation with Ethiopia  which is not anymore in force in Eritrea.
The ratified Eritrean Constitution of 1997  envisages establishing Eritrea as a national democratic state. It lays out the powers and duties of the legislative, executive, and judicial branches and guarantees the fundamental rights and freedoms of its citizens.
The Constitutional Government has not yet replaced the Provisional Government due to the fact that the ratified constitution is not yet in force . The Provisional Government of Eritrea  has a unicameral National Assembly of 150 members elected by direct popular vote. The National Assembly has a 5 year term. The Executive organ consists of a Council of Ministers headed by the President of the state. The President is the Chief of State and Head of Government, as well as the Head of National Assembly. The judicial system consists of the Regular Courts and the Special Courts. The Regular Courts  include the Zonal and High courts which have a duty to follow State law. The Special courts  include the Community courts, Sharia courts and military courts. The Community courts and Sharia courts apply Customary laws , Sharia laws, and Islamic laws. Military courts have limited personal jurisdiction .
Eritrea's legal system is a civil law system borrowed from Ethiopia's adoption of the Napoleonic Code. The legal and regulatory system includes the following:
- the Constitution of Eritrea (ratified in 1997 and awaiting implementation);
- the Ethiopian legal code of 1957  known as primary source with certain amendments and revisions;
- post independence–enacted laws;
- proclamations published by Government after independence promulgating laws;
- customary laws, Islamic laws.
The ratified Constitution of Eritrea contains provisions that protect intellectual property rights of its citizens: environmental and biodiversity rights (Art. 8 (3)), right to preserve traditional cultural expressions, right to foster invention and constantly to create technological novelties, the freedom of artistic creation guaranteed by the State (Art. 9, Chap. II & Art. 21 (4), Chap. III), the respect and full protection of national symbols and of all Eritrean languages (Art. 4, Chap. I), the rights to property (Art. 23, Chap. III).
IP protection is not a new phenomenon in Eritrea. In fact, during the Italian, British and Ethiopian occupations, there already existed legislation governing the protection of trademarks, inventions and designs and also Royal decrees that dealt exclusively with copyright matters, which were later superseded by Ethiopian codified laws. However, IP law was not seriously considered in the three phases of Eritrea's colonial history.
In Eritrea, the Transitional Commercial Code, Civil Code, the Penal Code and the Investment Proclamation include provisions in respect of copyrights, patents, trademarks and industrial designs . However, current legislation does not contain provisions regarding IP registration. Eritrea has made significant efforts to work with some regional organizations and countries to issue legislations or directives regulating traditional knowledge, especially traditional medical knowledge (TMK) .
In Eritrea, trademark, patent, industrial designs and copyrights are protected when they are published in the Official Gazette . The system of protecting these IP rights by publication has a legal effect as other legal systems which fully recognize the exclusive right of use of the owner. Any illegal use by others, without the written permission of the proprietor shall be subject to civil and criminal liabilities.
The High Court, known as the civilian court, which also serves as an appellate court, has exclusive jurisdiction over cases dealing with IP rights. IP owners can bring a lawsuit in the High Court for infringement of any published trademark or patent, etc.
In 1995 and 2000, at the request of Eritrea, WIPO prepared a draft Industrial Property Law, known as "Industrial Property Law of 1995", and discussed an intensive program concerning the establishment of an Industrial Property Office, information on treaties in the IP field, etc.
Eritrea currently does not have an Industrial Property Office; however, there is one officer, designated as the Director of Domestic Trade, under the supervision of the Ministry of Industry and Trade, who attends to industrial property matters. A law reform project is underway, but no new IP law has been issued to replace the present law contained in the Transitional Commercial Code, Civil Code and Penal Code .
1) The Constitution of Eritrea, http://unpan1.un.org/intradoc/groups/public/documents/un-dpadm/unpan040909.pdf; http://www.eritrea.be/old/eritrea-constitution.htm.
2) Eritrea, http://en.wikipedia.org/wiki/Eritrea.
3) Luwam Dirar & Kibrom Tesfagabir, Introduction to Eritrean Legal System and Research, http://www.nyulawglobal.org/Globalex/Eritrea.htm.
4) UNCTAD WID Country Profile: Eritrea, http://www.unctad.org/sections/dite_fdistat/docs/wid_cp_er_en.pdf.
5) Law Library of Congress, Introduction to Eritrea's Legal System, http://www.loc.gov/law/help/eritrea.php.
6) Eritrean Youth for Change, http://eycbayarea.com/EriYC/.
7) Summary of the CSP/NIP (2009- 2013) for the State of Eritrea, http://ec.europa.eu/development/icenter/repository/summary_er_csp10_en.pdf.
8) Tesfatsion Medhanie, Constitution-making, Legitimacy and Regional Integration:An Approach to Eritrea's Predicament and Relations with Ethiopia, Diiper Research Series, Working Paper No. 9, http://vbn.aau.dk/files/16138517/DIIPER_wp_9.pdf.
 Prior to independence, Eritrea was under Italian and British rule from 1809 to 1950. Eritrea was colonized by the Italians between 1890 and 1941. During World War II, the British defeated the Italians and took control over the country of Eritrea, which was placed under British mandate (1942-1950). From 1950 to 1960 it was federated with Ethiopia, http://news.bbc.co.uk/2/hi/africa/1070861.stm.
 Under proclamation No. 55/1994, the Provisional Government of Eritrea established the Constitutional Commission. The Commission prepared the draft constitution of the Country that was ratified in 1997. However, it has not yet been implemented. See Eritrea 1997, http://www.princeton.edu/~pcwcr/reports/eritrea1997.html ; BH Selassie (2001) "The disappearance of the Eritrean Constitution and its impact on current politics in Eritrea", http://news.asmarino.com/Articles/2001/01/bhs-20.asp (accessed on 5 December 2005); see also http://www.its.caltech.edu/~aigp22/eritreaPOC/Eritrea_POC.html; http://www.laenderdaten.de/staat/verfassung.aspx.
 Preamble of the Constitution of Eritrea of 1952, Trusting that He (GOD) may grant Eritrea peace, concord and prosperity, and that the Federation of Eritrea and Ethiopia may be harmonious and fruitful, We the Eritrean Assembly, acting on behalf of the Eritrean people, Grateful for the United Nations for recommending that Eritrea shall constitute an autonomous unit federated with Ethiopia under the sovereignty of the Ethiopian crown and that its Constitution be based on the principles of democratic government; Eritrea, see Section "Adoption of Federal Scheme", http://www.britannica.com/EBchecked/topic/191577/Eritrea/37670/Federation-with-Ethiopia; BH Selassie, The making of the Eritrean Constitution: The dialectic of process and substance (2003), see page 9, The Eritrean Constitution 1952, http://www.shakat.com/index.php?option=com_content&task=view&id=462&Itemid=4
 Id., at note 2; Constitution of Eritrea, http://unpan1.un.org/intradoc/groups/public/documents/un-dpadm/unpan040909.pdf, http://freeeritrea.org/files/Constitution.pdf, see page 1; Dan Connell, Countries at the Crossroads 2005 - Eritrea, 5 May 2005, available at: http://www.unhcr.org/refworld/docid/473869075a.html: "Eritrea's constitution, ratified by a 527-member constituent assembly on May 23, 1997… Government officials have said the constitution will go into effect once national elections are conducted, but such elections, first scheduled for 1998 and delayed with the outbreak of war, rescheduled for 2001 and then delayed again by the political crisis that engulfed the ruling party, have yet to be set."
Furthermore, please see Section 2.3 "Post-colonial history", page 15 of Country Report of the Research Project by the International Labour Organization and the African Commission on Human and Peoples' Rights on the constitutional and legislative protection of the rights of indigenous peoples: Eritrea, http://www.chr.up.ac.za/chr_old/indigenous/country_reports/Country_reports_Eritrea.pdf; BH Selassie, The making of the Eritrean Constitution: The dialectic of process and substance (2003), The Red Sea Press, Inc, Publishers & Distributors of Third World Books, P. O. Box 1892, Trenton, NJ08607; http://www.pbs.org/wnet/wideangle/episodes/hell-of-a-nation/map-new-constitutions/1283/; See Part I - "Constitutionalism", http://www.nyulawglobal.org/Globalex/Eritrea.htm#_edn26, etc.
 For further information please see Section 2.4 "Current state structure ", page 16 of Country Report of the Research Project by the International Labour Organization and the African Commission on Human and Peoples' Rights on the constitutional and legislative protection of the rights of indigenous peoples, Copyright © 2009 International Labour Organization and African Commission on Human & Peoples' Rights. First published 2009: Eritrea, http://www.chr.up.ac.za/chr_old/indigenous/country_reports/Country_reports_Eritrea.pdf.
 Proclamation No. 23/1992 (as amended), Proclamation issued to determine the Structure and Authority of the Provisional Government of Eritrea, Gazeta Awagiat Eritra, Vol. 2/1992, No. 5. The preamble of the mentioned proclamation states that "until the Eritrean people decides it's right to self-determination through a plebiscites and until a constitutional government is established "; Similarly, The preamble of Proclamation No. 37/1993 states that the life span of the Government would be until the establishment of a constitutional government. For further information, please refer to Chapter IV-VI in the ratified Constitution of Eritrea defining the government organs, http://freeeritrea.org/files/Constitution.pdf for a comparison with the organs of the provisional government.
 See Proclamation No. 133/2003 concerning the structure and jurisdiction of the Regular Courts.
 See Proclamation 85/1996, in particular articles 1-5 concerning the structure and jurisdiction of the Special Courts.
 See article 3347 of the Transitional Civil Code of Eritrea.
 See Proclamation No. 4/1991, Proclamation to Establish the Eritrean Military Court.
 The Ethiopian Code of 1957 consists of six Codes, namely, Civil Code of Ethiopian, Civil Procedure Code of Ethiopian, Penal Code of Ethiopian, Criminal Procedure Code of Ethiopian, Commercial Code of Ethiopian and Maritime Code of Ethiopian. All these Codes were amended and the Prefix Transitional was added in addition to the replacement of Ethiopia by Eritrea. Transitional Civil Code of Eritrea, Transitional Civil Procedure Code of Eritrea, Transitional Penal Code of Eritrea, Transitional Criminal Procedure Code of Eritrea, Transitional Commercial Code of Eritrea and the Transitional Maritime Code of Eritrea.
 These Codes were proclaimed by Ethiopia in 1957 and 1960 and the State of Eritrea adopted these Codes on a transitional basis, but certain provisions of these Codes were note adopted. See Introduction to Eritrea's Legal System, http://www.loc.gov/law/help/eritrea.php.
In particular please refer to Articles 1647-1674 of the Transitional Civil Code of Eritrea for copyright provisions; Article 148 of the Transitional Commercial Code of Eritrea for patent provisions; Articles 130-134 of the Transitional Commercial Code, Article 2057 of the Transitional Civil Code, & Article 673 of the Transitional Penal Code for unfair competition practices in business; Articles 140-141 of the Commercial Code & Article 674 of the Penal Code for distinguishing marks and infringement of marks. (Cannot have these transitional laws because Eritrea cannot provide us with these laws, in this highly unstable political time. Furthermore, the provisional government has also not complied with transitional laws).
 Senai W. Andemariam, Legislative Regulation of Traditional Medicinal Knowledge in Eritrea vis-à-vis Enritrea's Commitments under The Convention on Biological Diversity: Issues and Alternatives, http://www.lead-journal.org/content/10130.pdf. In particular, see pages 137-147.
 IP Laws in Eritrea, http://www.alliedipattorneys.com/NEWS/articles/eritrea.html; Eritrea & Trademarks, http://anboxin.com/countries/064er.html; Eritrea & Legislation, http://adamiprlawfirm.com/index.php?link=eritrea.
 Anderson R. Zironda, An Overview of Intellectual Property Policy, Administration and Enforcement in Selected African Countries: see Annex One, The Report of The Mission To Asmara, Eritrea from 17th April to 17th May, 2000, pages 1-9, http://www.iprcommission.org/papers/pdfs/study_papers/sp9_SSAfrica_case_study.pdf.