JIMMA UNIVERSITY SPECIAL SECONDARY SCHOOL 2016

UNDERSTANDING CONSTITUTION

Introduction

In this lesson students will learn about the concept of constitution, types of constitution and
constitutional principles. Constitution is a fundamental document that contains the basic laws of
a country. There are different types of constitutions. These are, written and unwritten
constitution, rigid and flexible constitution, unitary and federal constitution. Constitution also
consists of different principles, such as popular sovereignty, limited government, separation of
powers, rule of law, and respect of human rights, transparency and accountability.

Definition of Constitution

 Constitution is a fundamental document that contains the basic laws of a country.

 It is the most fundamental or supreme law of a state that underlines the existence of the
state.
 Constitution is the aggregate of laws, customs, conventions, principles, rules and
regulations by which a particular government of a country implements its administrative
activities.
 It is a fundamental document that defines the nature of government and its functions, the
rights and duties of citizens.
 is a document that contains the basic principles, customs and rules by which a group of
people or state is governed.
 is the basic document which reflects the will and interest of the people of one country.
 is used as a general frame work for the government to act and rule the country.

Basic Functions of the Democratic Constitution:

 Protecting/ ensuring/safeguarding the rights of citizens;
 Limiting/ restraining the power & authorities of government officials/elected individuals;
 Stating/ outlines the rights & obligations of citizens and their relations with their state
 Maintaining peace and security in the country.
 Determine the structures and functions of a government & etc.
Classifications of Constitution

Constitutions of a state in different political systems differ from one another in terms of:
 their principles on the distribution of political power,
 the structural separation of authority among the different branches of government,
 the limits they set on government authority as well as, their amendment procedures and
their forms.
Accordingly Constitution can be classified into the following categories:
 Written and Unwritten Constitution
 Rigid and Flexible Constitutions
 Effective and Nominal Constitution

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 Federal and Unitary Constitutions

Written and Unwritten Constitution

Based on their form/appearance constitutions can be classified as written and unwritten.

Written constitution

Written constitutions are constitutions that exist in a single document or in a codified form. A
written constitution refers to a collection of documents in which the fundamental rules regarding
the nature of the government and the rights and duties of citizens are clearly laid down. It is
precise, definite and systematic. The majority of states have written constitutions, for example,
Ethiopia, South Africa, Nigeria, India, United States of America, France, Brazil, etc..

Advantages of written constitution

Written constitution has different advantages.

 It is easily accessible to citizens.

 Citizens can get written constitutions in different ways, for instance, from the library,
from other individuals, from online, or buy from bookshops.
 It is full of clarity and definitions because key provisions are written,
 It has the quality of stability- since people know the nature of constitutional provisions;
the people can feel a sense of satisfaction,
 The Rights and liberties of the people are secured- since all important points are reduced
to writing,
 It has educational Value in that it highlights the central values and over all goals
(objectives) and principles of the political system,
 Major principles and key constitutional provisions are embedded, safeguarding them
from interference by the government of the day,
 The power of the legislative is constrained, cutting its sovereignty down to size, and
 It is clear and definite
 It is free from being twisted easy according to the popular emotions or legislative
deposition.
 It is stable and steady
 It affords protection to the individual and guarantee people rights

One of the main purposes of the constitution is to define the rights and duties of citizens. So, in
the case of written constitution citizens can have the chance to refer the rights guaranteed to them
by the constitution.

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Disadvantages of written constitution

Written constitutions have limitations mainly in terms of its rigidity. Compared to the unwritten
constitution, it is not as such easy to improve in the changing circumstances. Thus,

 It is difficult to amend
 It creates a situation of rigidity
Unwritten constitution

Unwritten constitution is a constitution that is not found in a single written document. Instead, it
exists in terms of customs and conventions. It is unsystematic, indefinite, and imprecise. Few
countries have unwritten constitution, for instance, United Kingdom and Israel.

Advantages of unwritten constitution

Unwritten constitution has also its own advantages. For instance, it is simple or easy to make
amendments or changing some constitutional provisions. Since it is undocumented or
unmodified constitution, it is suitable for improving or amendment.

Thus,

 it has the quality of elasticity and adaptability to changing circumstances or situations, or

 It is easily adaptable to the changing condition of a dynamic society
 it is dynamic in that it prevents chances of popular uprisings.
 It provides legal means for satisfying popular passion and preventing revolutions
Disadvantages of unwritten constitution

Unwritten constitution is not easily accessible to citizens. Citizens can also have not the chance
to easily learn about their rights and duties from constitutional document unlike the case with the
written constitution.

 It is unstable and leads to the situations of instability

 It suits a monarchical or an aristocratic system but not a democratic system
Rigid and Flexible Constitutions

Based on the amendment procedure or changing situation, constitution can be classified as rigid
or flexible. An amendment procedure refers to the modifications of the constitution or it is about
adding some important issues to the constitution or removing unimportant ones.

Rigid Constitutions

Rigid constitution cannot be amended, in a manner in which ordinary laws are passed amended
or repealed. Thus, rigid constitution requires special or difficult procedures for the amendment
process. On the other hand, flexible constitution is a constitution which is simple for amendment.

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It is a constitution that does not adapt itself to changing circumstances immediately and
quickly i.e. amendment procedures may be more or less complex or difficult.

For example, in Australia, Denmark, Ireland, and Spain, popular referendums are used to obtain
the public approval for constitutional amendments or ratify once endorsed by the legislature.

Merits of Rigid Constitution:

The advantages of a rigid constitution include:
 the establishment of a stable and reliable legal landscape,
 the heightened protection of constitutional rights and values, and
 perhaps increasingly consistent enforceability of constitutional structures and provisions
Demerits of Rigid constitution are:
 present a risk of being violated or
 failing entirely when unforeseen circumstances arise
 obligating future generations to provisions which no longer serve the greater good or
function as they should
Flexible Constitutions

A flexible constitution is one which can easily be amended by perhaps an ordinary legislative
process or by the ordinary resolution. It doesn’t require special procedure for amendment, for
example, the Constitutions of Britain and Israel. It is a constitution that adapts easily and
immediately to changing circumstances.

Merits of Flexible Constitution:

 allow the constitution and the government to act and react more easily as times change
 prevent future generations from being bound by past commitments when it no longer
serves the common good
Demerits of Flexible constitution are:
 They provide less protection, however, against actors or parties in power who wish to
change the constitution or
 diminish constitutional protections in order to serve their self-interests.
Effective and Nominal Constitution

On the basis of the degree to which constitution of state observed in practice, constitutions can
be classified as effective and nominal constitutions.

Effective Constitution:

Effective Constitution is the one that fulfills these two criteria:

 the practical affairs of government correspond to the provisions of the constitution;

 when the constitution has the capacity through whatever means, to limit government
behavior and activities.

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Therefore, an effective constitution of state requires not merely the existence of constitutional
rules and laws but also the capacity of those rules and laws to constrain government behavior and
activities. As a result we can say there is “Constitutionalism”.

Nominal /Facade/ Constitution:

 That shows the texts, principles, rules and laws that may accurately describe the
government behavior but fail to limit government behavior and activities in practice.

 Therefore, a nominal constitution of state is not observed in practice but in form.

 Hence, it can be said a paper value constitution- there is no constitutionalism.

Federal and Unitary Constitutions

Based on the nature of state structure constitution can be classified as federal and unitary
constitution.

Federal Constitution

A federal constitution is one which distributes power between the federal and regional
governments, for example, the 1995 FDRE constitution. It distributes powers to the federal and
the regional governments.

Unitary Constitution

On the other hand, a constitution that centralizes all state power at the central government is
called unitary constitution for example, the Constitution of Britain.

Constitutions can also be further classified into:

 Parliamentary and presidential (based on the systems of government), etc.
Fundamental Principles of Constitution

Constitution consists of certain fundamental principles in the form of constitutional principles.

Constitution can be realized as per the important principles stated in it.

Popular Sovereignty: refers to the ultimate or supreme power of the people. The people are the
ultimate source of power. The government must be based on the consent of the people.

Limited government: the power of government must be limited by the constitution. This means
that it should act according to the power and functions given to it by the constitution.

Separation of powers: constitution assigns specific responsibilities and powers to each branch
of the government such as legislative, executive and judiciary organs for the purpose of check
and balance system.

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Rule of law: refers to every one acts according to the rule of law. The law applies to everyone,
even to those who are on power.

Respect for human rights: the human rights of individuals or groups must be respected by both
government and ordinary citizens.

Transparency and accountability: Transparency refers to the condition of making the conducts
and actions of government officials shall be open or transparent to the public, whereas
accountability refers to the condition in which government officials are held responsible for any
failure in their official duties.

Secularism: is understood as separation of state & religion. It asserts the freedom of religion, &
freedom from the government imposition of religion upon the people, & absence of state
privileges or subsidies to religions.

Independence of the Judiciary: refers to the ability of a judge to decide a matter free from
pressures or inducements. Judiciary must also be independent by being separate from
governmental & other concentrations of power. The principal role of an independent judiciary is
to uphold the rule of law.

Understanding constitutionalism

Constitutionalism refers to a government system that is based on and acts according to the
supreme law. Constitutionalism refers to a limited system of government by law in which there
is:

 the actual or real realizations of the fundamental rights and freedoms of citizens,
 a real practice of good governance,
 rule of law and separations of powers.

The existence of constitutionalism is very crucial in a given political system to:

 realize human rights and fundamental freedoms of people,

 control misuse or abuse of power by the government and to ensure rule of law.

Importance of Constitutionalism

A real practice of constitutionalism in a given country has a very remarkable contribution and is
usually at the forefront in insuring peace and stability and human well-being. Some of the major
contributions of constitutionalism are discussed as follows:

Realizations of human rights of citizens: Human rights are inviolable and inalienable rights.
Constitutionalism prevents tyranny and guarantees the liberty and rights of individuals or groups
of individuals. Respecting human rights and fundamental freedoms for all is the responsibility of

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every citizen and the government in particular. This can become real only when there is a
government which acts according to the supreme law.

Controlling the abuse and misuse of powers of government: constitutionalism checks whether
the acts of a government are legitimate or officials conduct their public duties in accordance with
laws. It provides institutional safeguards against abuse and misuse of powers by authorities.

Prevalence of rule of law: Constitutionalism is a foundation for rule of law. Constitutionalism

proclaims the necessity of the rule of law in contrast to rule by the arbitrary judgment. Everyone
must be law abiding citizen. Citizens must accept the limits on their freedom, and officials must
also observe the limits on their power.

Characteristics of limited unlimited government by law

Limited government by law
 People are source of power
 Peoples are sovereign and the locus of power
 Democratic system of government
 Realizes the rights and freedoms of citizens
 The power is taken and kept only by free and fair election
 Leader is accountable to the people

Unlimited government by law

 The source of power is a single individual or few groups of individuals
 Government has sovereign or unlimited power
 Undemocratic or dictatorship
 Restrict the rights of citizens
 Power is kept by force
 Leader is not accountable to the people

The existence of constitution alone does not imply the existence of constitutionalism. For
instance, when we take constitutional experiences in Ethiopian context, the country has a long
history of constitutional experiences. However, it is difficult to conclude that all constitutions
limit the power of the government. For constitutionalism to exist at least two important things are
needed. The first one is, there should be democratic constitution, a constitution which is made-up
of the consent of the people. The second one is, this democratic constitution must be
implemented, not a constitution which is paper tiger/paper value.

When there is no constitutionalism, there is no democratic or limited system of government by

law. Accordingly, the fundamental rights and freedoms of individuals or group of individuals
cannot be respected. Citizens are considered as subjects and they are duty holder not right holder.
Leader or government is above the law, so that there is no rule of law. Government tries to
ensure peace only by force. This cannot bring sustainable peace. Unlimited government is
characterized by rampant corruption or lack of good governance.

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Constitutional Experiences Of Ethiopia

Ethiopia is a country that has a long history of constitutional experiences. It used traditional or
unwritten constitutions until the introduction of the first written constitution by Emperor Haile
Selassie I in 1931.

Traditional constitutional experiences of Ethiopia

Until the early 1930s, the rule of the Ethiopian Emperors was based on traditional constitutions
such as Kibre Negest, Fetha Negest and Sirate Mengist. The traditional constitutional experience
was characterized by the dominance of myths and legends that were used to provide legitimacy
to the monarchs rather than ensuring the basic rights and freedoms of citizens.

The Kibre Negest (Glory of kings), justifies that the Ethiopian monarchs derived their power to
rule from God. This literally means the glory of kings and gives the account of the legend of
Queen Sheba which is not supported by evidences.

The Fetha Negest (Law of Kings) justifies the authority of kings and their officials. According
to Fetha Negest, challenging the authority of the king is considered as challenging or rebelling
against one’s creator - God. This literally means the law of kings. This is legal code which has a
set of religious and secular provisions since 17thc. The Fetha Negest was basically a code of law
providing for secular and religious legal provisions.

Sirate Mengist is the other important document that emerged in the 19thc that proved to be
administratives and protocol directive of the government. This has provided administrative and
protocol directives since 19th c. It is the first document known to have been used for allocating
power among the Crown, its dignitaries and the Church.

Written Constitutional Experiences In Ethiopia

The first written constitution was introduced by Emperor Hailesilassie in 1931. The 1931 written
constitution was revised in 1955. The main aim of both traditional and written constitutions was
to consolidate the absolute power or the divine authority of the king. In 1987 the Peoples
Democratic Republic of Ethiopia (the Derg Constitution) was adopted after the demise of the
imperial regime by the Derg military regime. Next to the PDRE constitution the Transitional
Charter of the 1991 was introduced after the downfall of the Derg regime by Ethiopian People’s
Revolutionary Democratic Front (EPRDF). Finally, in 1995 the Federal Democratic Republic of
Ethiopian Constitution was come into effect.

The 1931 Written Constitution

The 1931 constitution was the first written constitution in the Ethiopian history. However, it
doesn’t mean that a new philosophy was introduced to the Ethiopian political system. Instead, it
was simply an attempt to change the unwritten dynastic claim into a written form, in other

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words; it didn’t provide genuine freedom to the Ethiopian peoples. Its main aim was to give the
country and the Imperial rule “an image of modernity”. By large, the major aim of the 1931
constitution was guaranteeing continuity to the rule of the Emperor. This can be clearly seen in
the constitution that the king was presented as the “representative of God”, i.e. the king is
presented as “Niguse Negest Seyume Egziabher,” which literally means king of kings elect of
God. Those who were participating in the political leadership were only the noblemen. This
constitution has 7 chapters and 55 articles.

The 1931 constitution was not initiated by the demand of the people and it was not also initiated
for the people. That is why there was no attention to guarantee popular sovereignty, political
freedoms and fundamental human rights to the Ethiopian people. And the people were
considered as subjects as they used to be, without granting any kind of political and civil rights.
In general the constitution was formulated/ introduced mainly to attain two basic purposes that
would advance the Emperor’s authority and political control.

(1)The constitution was intended to give Ethiopia the image of “modernity” in the Ethiopia’s
statehood and the Emperor’s sovereign rule in the country. During that period, Ethiopia felt
pressures from the European powers that controlled colonial territories in Africa. Ethiopia was
accused of being “uncivilized” to be considered as a sovereign political entity in an international
atmosphere by the colonial powers. The colonial powers did that to justify their presence in
Africa with a “civilizing” and “modernizing” mission. Therefore, Haile Selassie issued the
constitution to impress Europeans with Ethiopia’s political modernity in search of external
sovereignty for Ethiopia.

(2) More significantly than the above purpose, the constitution was introduced to the regional
rulers. In other words the constitution was meant to create a legal framework that enabled the
Emperor to subordinate the traditional nobilities. The emperor had greater desire to centralize
power, thus, he used the constitution as a legal basis to extend the power of the central
government over regional rulers.

As a result, the emperor became the only person that could give political titles and appointments.
This helped him to end any tendency of provincial autonomy by the nobility. Thus, the
constitution provided him with legal framework for political legitimacy to his personal rule.

Thus, the 1931 constitution can be referred as the Charter of the absolute power of the monarchy.
The political and human rights, freedoms and liberties of peoples of Ethiopia were denied.
However, the 1931 constitution laid some foundations for modern practices of government in
Ethiopia. These innovations can be summarized as follows:

 Parliamentary System
 Annual Budget
 Ministerial System
 Judicial Branches

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The 1955 Revised Constitution

After nearly 25-years experiment of written constitution, Ethiopia entered into the second phase
of its constitutional development. The political principles and objectives of the 1955 constitution
were much clearer in pronouncing the powers and functions of the Imperial government than its
predecessor. It included some provisions bearing advanced democratic ideas compared to the
previous written constitution. Like the constitution of 1931, however, the revised constitution did
not involve popular process for ratification. Indeed it was “gift” from the Emperor to his subjects
on the occasion of celebrating his 25 years in power, i.e. silver jubilee.

There were major historical and political processes that forced the revised constitution to come
into being. The imperial regime revised its constitution in 1955 mainly for two reasons: internal
and external. The internal reason was the Italian invasion of Ethiopia in 1935. Accordingly, the
1931 constitution was interrupted, and the Emperor was also forced to flee to Britain. Eritrea
that had been under Italian colonial rule for decades, and latter under the British protectorate,
was federated with Ethiopia following the decision made by United Nations (UN) General
Assembly.

Under the supervision of the United Nations, the Eritrean constitution of 1952 was drafted
providing a separate system of government for Eritrea under the sovereignty of Ethiopian crown.
The federation of Eritrea, therefore, created abnormal political situation.

The second and the most basic reason was external one, which was the federation of Eritrea with
Ethiopia in 1952.

As far as the content and issues addressed are concerned, the revised constitution maintained
some of the basic principles of the 1931 constitution. The 1955 revised constitution has 8
chapters and 131 articles.

In short, the 1955 revised constitution made the powers and authority of the Emperor absolute
and complete in the Ethiopian state and society. In contrast, little significance was attached to the
need to guarantee political and human rights of the Ethiopian people through protecting
individual rights in terms of property, life and private affairs. However, in practice the
mechanisms for implementing these limited rights were largely absent. There were no effective
means for representing and reflecting the needs and interests of the people in the government. In
the practical sense, Ethiopian people were still considered as merely subjects of the Emperor.

Although the revised constitution of 1955 was a step forward in the history of constitutional
development in Ethiopia, in effect it failed to lay down a democratic tradition in the Ethiopian
political process.

In the end, it is possible to identify some progressive elements, which were included in the
Revised Constitution of 1955. These were the following:

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(1) It gave at least textual recognition to rights and liberties of citizens, which included rights
such as freedom of speech, freedom of press, freedom of assembly, and people’s participation in
election of the members of chamber of Deputies. But, there was no observance (enforcement) of
these provisions of rights and freedoms of individuals in practice at all. It was only paper value
to ordinary Ethiopians.

(2) The Chamber of Deputies was made to have the power, at least in textual sense, to question
the ministers with the view to hold the government accountable.

The Constitution of Peoples Democratic Republic of Ethiopia (PDRE) (1987-1991)

In 1974, the feudal monarchy or the Imperial Regime was removed from power by the Derg
military regime. The Derg regime introduced different decrees and proclamations which had not
constitutional status until the adoption of the 1987 constitution. Thus, the period from 1974 up to
1987 was known as constitutional vacuum or lacuna in Ethiopian political history.

In 1987 the government adopted its own constitution. This constitution has 7 chapters and 119
articles. The constitution changed the system of government from the monarchy system to a
republican form of government. The 1987 PDRE constitution also introduced the idea of
secularism or the separation of state and religion for the first time in Ethiopia.

In order to deepen its power, the Derg established its single party, the Workers’ Party of Ethiopia
(WPE) in 1987. This has marked the transition from no party system to the one party system in
Ethiopia. Nevertheless, this did not give rise to democratic orders. Through eliminating or
weakening internal opposition, the Derg moved on establishing the Peoples’ Democratic
Republic of Ethiopia (PDRE).

The PDRE constitution differed from the previous constitutions in some ways. (1) It was drafted
by a constitutional commission through a program of public “consultation”. (2) It was later on
ratified by the name of a popular referendum to provide it pretext of broad participation.
However, the discussions were not effective as planned because the public was in the state of
insecurity and intimidation.

The PDRE constitution has divided the unified state power among the National Shengo, the
Council of State, and the President of the Republic and Shengos of the Administrative
Autonomous regions. Theoretically, the National Shengo was the most important organ
exercising the most significant functions of the state of the PDRE. Accordingly, the working
people exercise their power through the National Shengo and Local Shengos they established
through election. The authority of other organs of the state shall derive from these organs of state
power. Thus, the National Shengo was the supreme organ of state power through which the
sovereignty of the working people would be manifested.

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The council of state was meant to be an organ of state power functioning as a standing body of
the shengo. The council was given the power, inter alia to ensure the interpretation and
implementation of the constitution including other laws; ratify and denounce international
treaties; grant amnesty, citizenship, and political asylum; and to issue special decrees between
sessions of the National Shengo.

The President of the Republic was to be elected by the National Shengo, and vested with broad
powers. He was the head of state representing the Republic at home and abroad as well as the
commander in chief of the Armed forces.

Matters pertaining to citizenship and fundamental freedom, rights and duties of citizens were
given better coverage in the 1987 PDRE constitution compared to the way they were treated
under the previous constitutions. To mention but few of the concerns, irrespective of their
nationality, sex, religion, occupation, social or other status the constitution has provided that
Ethiopians are equal before the law. This equality was to be manifested through equal
participation in political, economic, social and cultural affairs.

Moreover, the constitution came up with women’s rights which until then had never been
reflected in Ethiopian constitutions. It also set the duty to provide women with special support
particularly in education, training, and employment so that they participate in political,
economic, social, and cultural affairs on equal basis with men.

In Contrary to the previous constitution, the 1987 PDRE constitution explicitly states the
separation of state and religion. So it appeared to be a meaningful solution to problem related to
inequalities among nationalities in Ethiopia. The establishment of the Institute of Nationalities
was assumed by many as a prelude and by the Derg to ending the civil wars. However, the most
the Derg could offer was regional autonomy, as is unable to implement genuine decentralization
of governance.

The Transitional Charter of the 1991

The 1991 Transitional Charter was introduced in May 1991 by EPRDF after the demise of the
Derg regime. The charter served as law of the land for the transitional period from 1991 up to
1995. It is a very short document that addressed only some fundamental issues. It contains only
20 articles. The charter recognized freedom, equal right and self-determination of all
nationalities. It also puts high premium on human rights.

The 1995 Constitution of FDRE

The period of Transitional Charter was culminated by the adoption of FDRE constitution in
December 1995. The 1995 FDRE constitution introduced different changes as compared to its
predecessors. It introduced a federal state structure for the first time, parliamentary democracy,
and the establishment of the two houses of parliament: House of Federation and House of People

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Representatives. It also guarantees the rights and freedoms of citizens as well as describes the
duties of the citizens. The 1995 constitution has a preamble and 11 chapters with 106 articles.

Fundamental Principles of the FDRE Constitution

The Constitution embodied five fundamental principles which relates to sovereignty of the
peoples; supremacy of the constitution; human rights; secularism and transparency and
accountability of government. These principles give a background to many of the rules that
emerge in subsequent chapters thereby setting the framework for a better understanding and
interpretation of the rules.

Sovereignty of the Peoples

The FDRE Constitution unequivocally vests this sovereignty in “Nations, Nationalities and
Peoples of Ethiopia.” By so doing it presumes the existence of nations, nationalities and peoples
who seek sovereignty. This approach of vesting sovereignty in sub-national units has important
implications for the federal structure. Furthermore, it is part of an expression of their sovereignty
that Nations, Nationalities and Peoples are bestowed with the right to self-determination up to
secession.

Supremacy of the Federal Constitution

In line with the trend of federal systems the FDRE Constitution under Art.9 declares its
supremacy and makes other laws, customary practices and decisions of an organ of a state or
public official null and void if it contravenes the Federal Constitution.

Human Rights

As mentioned earlier, one of the distinguishing characters of the FDRE Constitution from its
predecessors is the emphasis given to internationally recognized human rights norms. This
fundamental principle is stipulated in Art.10 of the FDRE Constitution which articulates “Human
rights and freedoms, emanating from the nature of mankind, are inviolable and inalienable”.
Secularism

The FDRE Constitution Article (11) explicitly declares the separation of religion from the state.
In spite of the recognition given to religious law system in a restricted manner the Constitution
envisages an entirely secular state in which the state does not interfere in matters belonging to
religion and vice versa.

Transparency and Accountability

It is inscribed in Art.12 of the Constitution as the fifth principle. “The conduct of affairs of
government shall be transparent,” holds, Art12 (1). Moreover it stresses the fact that “any public
official or an elected representative is accountable for any failure in official duties.

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