ETHIOPIA

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 Chapter Five
Constitutions, Democracy
and Human Rights
 5.3. Constitution and Constitutionalism

5.3.1. Conceptualizing Constitution

 Constitution is a document which contains laws, customs, traditions, rules, regulation and
etc by which gov’t and people are governed.
 It is a set of principles that provides responsibilities of authorities, the rights and duties of
the people and the relationship between government and citizens.
 It is the result of scientific principles, values and traditions of a societies.
 The views of the constitutions are partly legal and partly non legal. Legal parts are laws that
courts recognized and apply, while the non-legal or extra-legal are usages, understandings,
customs or conventions which people develop in their life experiences.
 Courts don’t recognize non-legal as laws but they are not less effective in regulating the
gov’t than the rules.
 Is the supreme law of a state
 A basic law in a country
 A reference point for the powers and functions of the government
 5.3.2. Peculiar Features of Constitution

A. Generality: Constitutional principles are guidelines for others laws. It is

always the most general, short and brief.
B. Permanency: constitution is made for undefined period of time. It is
purposely made to be stable and permanent.
C. Supremacy: Constitutions are supreme laws, taking precedence over all
others, and defining how all the others should be made.
D. Codified document: Constitutions are written down; often in a single
document that presents the constitution in a systematic manner.
E. Allocation of powers: Constitution outline the proper relations between
institutions and offices of the state, and government and citizens. It allocates
powers and functions, rights and duties to governments and citizens.
 5.3.3. Major Purpose and Function of Constitutions

1. It serves as a framework for gov’t: it is a plan for organizing the operation of

gov’t which in turn guides the functions and powers of gov’t organs.
2. It limits the powers of gov’t: This is related with constitutionally limited gov’t
and the rule of law. A constitutional gov’t is neither too powerful nor too weak.
3. It protects individual and collective rights of citizens.
4. It serves as the supreme (highest) law of a country: this means constitution is the
source of and supreme over all laws in a country.
5. It provides gov’t legitimacy/stability: as it formalize and regulate r/ships b/n
political bodies and citizens and also provide mechanisms in which conflicts can
be adjudicated and resolved, constitution usually provide the vital function of
introducing a measure of stability, order, and predictability of gov’t.
6. Constitution blue prints for establishing values and goals: In a constitution there
is also an ideological aspect of constitution making where the people truly aspired
for it.
 5.3.4. Classifications of Constitutions

A. Constitution based on its forms (Written and unwritten)

 Written constitution; is a type of constitution which has the details of rules, laws and
principles incorporated and integrated in a single document Ex. The constitution of
Ethiopia, Thailand, Nigeria, France and USA can be cited. Read merit and demerit
from module
 Unwritten constitution; is not systematically organized in a single document; instead
it exists in a number of documents such as parliamentary enactments, court decisions
e.tc and this may take a form of customs, understanding, conventions etc. Israel,
New Zealand, Oman, and Saudi Arabia are countries using unwritten constitution.
Read merit and demerit from module
B. Constitution based on complexity of amendment procedure (nature of constitution)
• Rigid; this type of constitutions requires complex and special amendment procedures.
• Flexible; this kind of constitution does not require special procedure
 Cont…..

C. Constitution based on degree of practice ( implementation of articles)

Effective constitution: This is a constitution in which gov’t and citizens
practice correspond to the provisions of the constitution.
Nominal constitution: This is a constitution of state that shows the texts,
principles, rules and laws that may accurately describe the gov’t behavior but
fail to limit gov’t behavior and activities in practice.
D. Constitution based on kind of state structure
Federal:-The federal constitution decentralize power between federal and
regional gov’ts.
Unitary:-Unitary constitutions concentrates power at the central government.
 5.4. Constitutionalism
Is a pattern of ideas elaborating the principles that the authority of
gov’t drives from and is limited by a body of fundamental law
Is political governance based on a given constitution where state
power is exercised according to established rules contained in the
constitution
It is a gov’t of a country realizing the principles of democracy such
as; popular sovereignty, supremacy of the constitution, rule of law,
separation of power, separation of state and religion and
independence of the judiciary.
 5.5. The Constitutional Experience of Ethiopia: Pre and Post 1931

5.5.1. Traditional Constitution (Pre- 1931)

The followings are short descriptions on unwritten documents in Ethiopia pre
1931.
The monumental Fetha Negest (Law of king), was a legal code or codex of
law used as a source of secular and religion provisions than being a definite
constitution.
The Kibre Negest (Glory of Kings), was the most important instrument
confirmed the legend of the Solomic Dynasty and queen of Saba which
defined who should become king in Ethiopia.
Ser’ate Mengist, was another document that provided some rules and
regulations (administrative and protocol directives) useful to the
constitutional process.
 5.5.2. The 1931 First Written Constitution
This constitution was written by the then minister of finance Bejirond TH TM. He followed the
model of the 1898 Meji constitution of Japan.
Factors motivated the emperor to formulate the constitution were;
i. The ambition to provide formal framework for the consolidation and centralization of his
power.
ii. Aspiration to give international image to the country. Besides centralizing all powers to the
emperor, the constitution showed some changes by establishing bicameral parliament, these
are:
• The senate was the upper chamber which was stronger than the lower and its members were
directly appointed by the emperor from the nobilities and the dignitaries.
• The chamber of Deputies or the lower chamber members were chosen by the members of the
upper house.
Their activities were only restricted to advise the king and all ministers were accountable to the
king. As far as the judiciary system is concerned, the constitution structured two court systems;
regular/ordinary court (to handle civil and criminal cases) and administrative tribunals (could
see civil cases affecting gov’t). At the top/apex of the court system there was the emperor’s
zufan chilot in which the emperor review necessary cases.
 5.5.3. The Revised constitution of 1955

There were basic reasons that led to revise the 1931 constitution. The following
are some;
The socio economic changes that were witnessed in the last 24 years. (The five
years Italian occupation had created closer ties with the outside world. Again the
event of WWII increased the movement of goods, ideas and peoples than ever
before. Yet again in 1945 Ethiopia became the founding member of UN).
The demand made by educated Ethiopians.
The federation of Eritrea with Ethiopia in 1952 through resolution passed by the
UNGA. This necessitated the incorporation of two other documents into the
Ethiopian constitutional system. These were the federal act of the UN and the
Eritrean constitution.
 As the constitutions, the power of the emperor includes;

Commander in chief of the armed forces and foreign relations

Unquestioned power on legislative, executive and judiciary
The power over Ethiopian orthodox church ( the power to elect and
appoint Abune)
Co-legislative function; the power to make law and veto power over
laws passed by parliament
The power to appoint members of senate and dissolve the parliament
The power to appoint and dismiss the government officials
The power to create governmental agencies and their functions
 The following are some of the changes witnessed under the revised constitution;
The right given to prime minster to nominate ministerial candidates
The rights and power given to Deputies to question the executives during
reporting on financial and other related instances.
Recognition of rights and liberties of citizens (remained impractical) Ex.
Universal adult suffrage (practically applied on the selection of members of lower
house).
The process of active codification in 1960s imperial code
5.5.4. The 1987 Constitution of People’s Democratic Republic of Ethiopia
(PDRE)
After Dergue seized power, immediately it issued proclamation No 1 of 1974. Then;
 Emperor Haile Silasie was deposed from power (abolition of monarchy).
 It suspended the 1955 constitution
 Parliaments were dissolved
 It established the provisional military administrative council
Cont…..
Since 1974 to 1987 Dergue ruled Ethiopia by periodic decrees and proclamations.
But after 13 years of lapse, in 1987 the regime formulated PDRE constitution containing 119
articles.
The constitution contains general provisions like:-
@ Flag @ National anthem @ National language @ Capital city
@ Date of enforcement of the constitution and @ Amendment procedure
The following are general events performed by the regime;
Applied the slogan; Ethiopia first “Ethiopia Tikidem”
 Issued National Democratic Revolutionary Program (NDRP) in 1976.
Established People’s Democratic Republic of Ethiopia (PDRE) in 1987.
Setup Workers Party of Ethiopia (WPE) in 19 84.
The constitution established unitary state structure with 14 administrative regions and 5
autonomous regions (Eritrea, Tigrai, Assab, Dire Dawa, and Ogaden).
The parliament was Uni-cameral, having one parliament called National Shengo (NS)
What were the reasons for the weakness of the regime?

Confrontation with westerns

The armed insurgents in Eritrea, violent confrontation in Tigrai and war with
Somalia
Natural and manmade disasters
Lack of financial and technological support from socialist countries.
5.5.5. The 1991 Transitional Charter
It was formulated by the peace and democratic conference of AA in 1991.
It was convened from July 1-5, 1991, and discussed and approved the charter
laying down the rules governing the transitional gov’t as well as setting down
the principles for the transitional period.
Its major principles include the setting up of transitional gov’t of Ethiopia
based on federalism and guarantee of the right of nations, nationalities and
peoples of Ethiopia on the basis of equality and freedom.
 5.5.6. The 19 95 (FDRE) Constitution

The 1995 constitution was drafted by the constitutional commission

established by transitional gov’t of Ethiopia.
It included the basic principles as guiding points for the whole other provisions
of the constitution.
The basic principles are
Popular sovereignty
Supremacy of the constitution
Respect to Human and Democratic rights
Separation of Religion and State (secularism)
Transparency and Accountability of government
Major Features of the 1995 Constitution are; Ethnicity, System of federalism
& Provision of Basic rights
 5.6.Democracy and Democratization
5.6.1. Defining Democracy

 Democracy is a form of political organization in which all people, through direct

referendum or/through elected representatives exercise equal control over the
matters which affect their interests. This means that democracy is a system of
government in which the supreme authority and the ultimate political power
resides in the hand of the people.
 Democracy is a peaceful resolution of conflicts by applying the values of
tolerance cooperation, compromise, consensus, pragmatism, civility, and so on.
 Abraham Lincoln also defined democracy as follows: “Democracy is a gov’t of
the people, by the people and for the people.” In this definition: “of” stands for
ownership of democracy, “by” represents free, fair and periodic election and
“for” denotes accountability of gov’t.
 Con…..

There are two broad ways of exercising democracy.

Direct democracy; is a form of gov’t in which the right to make political decisions is
exercised directly by the whole body of citizens acting under procedures of majority
rule.
Indirect democracy; is a form of gov’t in which citizens exercise their rights and
freedoms and discharge their obligations through representatives chosen by
themselves.
5.6.2. Values and Principles of Democracy
There are three core values that are central in democracy.
A. Liberty or freedom: this includes personal freedom, political freedom and economic
freedom.
B. Justice: this value includes distributive Justice, corrective Justice and procedural
justice.
C. Equality: this includes political equality, social equality and economic equality.
The followings are among the fundamental principles of democracy. These are;

A. The principles of popular sovereignty

B. The principle of equality
C. The principle of separation of power
D. The principle of universal suffrage
E. The principle of majority rule with minority right
F. The principle of rule of law
G. The principle of free, fair, periodic and competitive election
H. The principle of multiparty system
I. The principle of peaceful transition of power
J. The principle of separation of state and religion (secularism)
K. The principle of supremacy of the constitution
L. The principle of accountability
M. The principle of transparency
N. The principles of protection and promotion of human right
 5.6.3. Democratization

• Is the process of transitions from nondemocratic to democratic regimes that

occur within a specified period of time.
• There are three main elements in democratization such as; the removal of the
authoritarian regime, installation of a democratic regime, and the
consolidation or long-term sustainability of the democratic regime.
• Democratization is institutionalization and routinization of democratic ideas
and principles and their effective functioning.
• Moreover, democratization is a conclusive and extended process, which
involves the emergence or presence of the formal elements of a democratic
political system such as the recognition of basic civil and political rights,
multiparty system, electoral system and etc.
• Democratization in this sense, involves the full-scale transition from
authoritarian regime and its replacement by democratically elected regime
 5.6.4. Actors of Democratizations
5.6.4.1. Political Parties
 Provides the proper mode of functioning for the government.
Citizens extend their desires, needs, and problems to the government through the political parties.
5.6.4.2. Media
 Is a mirror of the society. It has an influential role in strengthening democracy given that media and
democracy have strong association.
 Theoretically, the role of free media in processes of democratization is straightforward.
 Free media serve as watchdogs, monitors those in power and provides citizens the information they need
to be free and self-governing and to hold gov’ts accountable for their actions.
5.6.4.3. Civic Societies
 Are the set of civil rights, including everyone‘s right to participate in public life.
 Forms the backbone of democracy.
May comprise civic, religious, and educational interest groups and associations.
Have a potential of playing numerous roles for democratic development and consolidation.
Look your module….page 176.
 5.7. Human Rights: Concepts and Theories

5.7.1. What are Human Rights?

Human Rights:-
• Are rights bestowed on human beings by virtue of the human person
• Are entitlements/privileges/claims inherent in our nature as human beings
• Are the only universally recognized value system under international law
• Are rights which include varieties of legal and moral values
• Are the sum of civil, political, economic, social, cultural and collective rights
laid down in international and regional HRs instruments including constitution
of states
• Are understood to represent individual and group demands for shaping and
sharing of power, wealth, enlightenment and other values
 The Nature of Human Rights
 Human rights are Universal and Inalienable
 Human Rights are Indivisible and Interdependent
 Human Rights are Irrevocable/irreversible
 Human rights are not to be given by Government
Features of Human Rights
HRs are based on equality
HRs are inalienable (cannot be taken away during promotion and protection).
HRs are eternal, as far as human society exists on earth, it continue to exist.
HRs are irreducible (cannot be reduced to d/t interpretation and are applicable in their fuller forms).
HRs are indisputable (not subject to d/t argument). As they are natural we cannot alienate human
right from human nature.
HRs are natural (not inherited by government). They are possessed by nature of human being and
are not transferred rights.
HRs focus on inherent dignity of all human beings.
HRs are indivisible (are interdependent mutually dependent or supporting).
 5.7.2. Human Rights and Responsibilities

HRs involves responsibilities and duties toward other people and the community
HRs are part of a context of people living together in societies.
As part of this, there are legal, social and international orders to be realized
effectively.
Therefore promoting respect of HRs is the responsibilities of UN and its agencies
and state parties to UN. They are mandated with the promotion, protection and
fulfillment of HRs.
Various HRs instruments and resolutions responsible as issued by the UN
includes; the UN charter itself, UDHR, International Covenant on Civil and
Political Rights (ICCPR), International Covenant on Economic, Social and
Cultural Rights (ICESC), Convention on the Rights of Children (CRC),
Convention on all forms Discrimination against Women (CEDAW) and the Paris
Principles are among others.
• Mandates of state institutions are also clearly stipulated in the FDRE
Constitution. Look the third chapter of the Constitution from article 13 to 44.
 5.7.3. Land Marks in the Development of Human Rights
Look module on page 182

5.7.4. Right Holders and Duty Bearers

Right Holders; are those who are entitled to enjoy, possess or claim a given right.
HRs provisions usually starts by mentioning the right holders using terms like, every human
being, all children, women, people with disability; From that we can simple know for whom
is a given right intended.
Duty Bearers; are those who carry the obligation of promoting, protecting, and fulfilling
these right to the right holders.
The primary (not the only) duty bearer for almost all of our rights is the state. Besides,
individuals and other non-state actors may be named as duty bearers depending on the nature
of the right.
5.7.5. Categories of Human Rights
 Based on Generations (Time of Appearance): this is based on three themes; liberty, equality
and fraternity (organization, union, alliance, and sorority, group).
Cont….
5.7.5.1. Civil and Political rights
 First Generation Rights: are rights named as civil and political rights or liberty
rights. These rights are core values featured in the constitution of more than 160
states. Article 2-21 of UDHR contained it. Ex. Freedom from any influence.
5.7.5.2. Social and Economic Rights
 Second Generation Rights: are rights categorized as; economic, social and
cultural rights or equality rights. They includes; the right to social security,
work, protection, rest, leisure, health, education etc. Article 22-27 of UDHR
deals about such rights.
5.7.5.3. Peace, Development and Environmental Rights
Third Generation Rights; these rights are known as peace, development and
environment rights. Again called solidarity/unity, harmony and fraternity rights.
These rights includes; the right to self-determination, economic and social
development, balanced environment, freedom from humanitarian disaster relief.
Available in Article 28 of UDHR
(Based on Sphere of life), other scholars classified it in the following ways.

• Moral Rights; are claims of individuals based on the conscience of the

community. They cannot however be enforced by courts
• Civil Rights; are rights related to person and property of individual. They are
also called civil or social rights as they related to essential conditions of
civilized society. Paradigm; the right to life, liberty, property, religion etc
• Political Right; are rights related to man’s participation in state and government
affairs
• Economic Right; are related to man’s vocation, his engagement in a gainful
employment so as to solve the problem of food, clothing and shelter.
Human Right; are rights related with natural right coupled with civil right. Case
in point, the right to security in the event of unemployment, disability…
 5.7.6. Derogation and Limitation of Human Rights
There are two conditions under which HRs can be restricted:-
A. Limitations; are lawful infringements of rights.
 Are deviations from the standard manner of dealing with rights imposed
primarily to facilitate optimal use or exercise of rights in a context of scarce
public resources, space and time.
 Can take the form of restrictions and/or derogation. Restrictions are acceptable
or justifiable limits of HRs during the normal times. Restrictions circumscribed
the manner, or place, and the extent to which rights can be enjoyed or exercised
in a particular set of circumstances, often in normal times.
B. Derogation; means temporary non-application and suspension of rights by
the state in abnormal or emergency (natural/artificial) situations.
Enjoyment of HRs is subject to limitations and these limitations are normally
found in constitutional HRs and international HRs treaties.
Cont….

In Ethiopia for example, both Federal and Regional gov’ts have constitutional
powers to limit exercising HRs since they have the power to declare state of
emergency in their respective domains.
Regional states can declare in two conditions: natural disaster and epidemics.
Besides, the FDRE constitution (Art. 93) clearly specifies four conditions for
such declaration by the Federal Gov’t.
The Council of Ministers can declare a State of Emergency in the following
situations:
A. External Invasion,
B. Breakdown of law and order when it (i) endangers the constitutional order,
and (ii) cannot be controlled by regular law enforcement,
C. Natural disaster, and
D. Epidemic.
 5.7.7. Non-Derogability of Human Rights
The concept of non-derogability has been one of the important aspects of the
international HRs laws and treaties.
Some of the important treaties concerning HRs, including the ICCPR have
special provisions explaining whether its member states can derogate from
certain rights during some exceptional situations.
There are also certain unique and inherent HRs, which can never be suspended
under any circumstances. For instance, the ICCPR, which also allows states to
suspend some of the rights under specific conditions, clearly mentions that some
of the articles are non-derogable. They are:
Right against arbitrary deprivation of life (art. 6);
Freedom from torture or cruel, inhuman and degrading treatment or
punishment; and freedom from medical or scientific experimentation without
consent (art. 7);
Conti…….

Freedom from slavery and servitude (art. 8);

Freedom from imprisonment for inability to fulfill a contractual
obligation (art. 11);
Prohibition against the retrospective operation of criminal laws (art.
15);
Right to recognition before the law (art. 16); and
Freedom of thought, conscience and religion (art. 18).
The FDRE constitution (art. 93) sub article (c) states that rights
under Articles 1, 18, 25, and sub-Articles 1 and 2 of Article 39 of the
Constitution are non-derogable rights.
 5.7.8. Implementation and Enforcement of Human Right:-
5.7.8.1. International Mechanisms or International Bill of Human Rights

These instruments are associated with the charter of UNs. The charter contained two
important HRs provisions, Article 1 sub article 3; and article 55 sub article C. On the
bases of these, international instrument includes the three crucial documents known as
International Bill of HRs. The Bill consists, UDHRs, ICCPR and two Optional
protocols annexed there and the ICESCRs.
A. UDHR (1948); is a declaration or statement of principles expected to be followed
by member states of UN. It has 30 articles that include; civil rights, political rights,
social rights and cultural rights.While the general assembly (GA) adopts it, the
member states were 56 and out of them 48 voted in favor while the rest 8 countries
abstained. To strengthen the work of UDHR, the GA adapted the following two
documents.
B. International covenant on civil and political rights (ICCPR, 1966); this document
adopted 20 main provisions.
C. International covenant on economic social and cultural rights (ICESCR, 1966); It
sets a number of general principles and list of some substantive rights.
Cont….

International Bill of Rights (IBR) are minimum standards for the protection of
HRs. In addition to these, the general assembly adopted various treaties in the
need of protecting international HRs violations. Some of them are;
International Convention on the Elimination of all forms of Racial
Discrimination (CERD, 1979)
Conventions on the Eliminations of all forms of Discrimination Against
Women (CEDAW, 1979)
Convention Against Torture and other Cruel Inhuman or Degrading Treatment
or Punishment (CAT,1984)
Convention on the Right of the Child (CRC, 1989).
The Convention on the Prevention and Punishment of the Crime of Genocide
Convention on the Political rights of Women etc are few among others
 5.7.8.2. Regional Mechanisms:
They cover HRs implementations and enforcements in three regions; Africa, America and
Europe. This means, regional HRs systems are currently established only in these regions.
The alternatives for citizens live in the other regions is to take their complaints to the UN
human rights system, which is barely functional.
In African, this system is established under the AU structure; in Americas it is part of the
Organization of American States (OAS); and in Europe it is embedded in the EU
organizational structure.
The African HRs system is operative under the organizational structure of AU since July
2002.
Currently, 53 African countries are signatory members to the AU and the African Charter on
Human and Peoples' Rights (1981/86).
Besides, a protocol to the African Charter on Human and Peoples' Rights on the
Establishment of the African Court on Human and Peoples' Rights (1998/2004) is adopted in
2004 and ratified by 21 member states.
Ethiopia is a signatory party to the Banjul Charter since 1991 and to the African Charter on
the Rights and Welfare of the Child in 2001.
 5.7.9. The Ethiopian Human Right System
As a member state of UN, Ethiopia adopted the principles of HRs as its guideline.
The FDRE constitution has established a national HRs regimes by recognizing most of
the HRs entitlements acknowledged by the core international and regional HRs
instruments. These rights cover, civil and political rights (arts. 14 to 38), socio-economic
rights (arts.41 to 42) and group rights (arts. 39, 43 and 44).
About one-third of the constitution is devoted to enshrining fundamental rights and
freedoms.
Further, Article 9/4/ and Article 13 of the constitution state that, international agreements
ratified by Ethiopia are an integral part of the law of the land and the fundamental rights
and freedoms specified in the constitution are to be interpreted in a manner conforming
to the principles of the UDHR.
For the attainment of the objectives, the constitution authorized the council of
representatives to establish HR Commission and Ombudsman office under article 55(14)
and 55(15) and or proclamation No. 210/92 and office of the ombudsman under
proclamation No.211/92.
 A. The Human Right Commission

This institution does not replace the courts but rather operates as a special additional
support for the protection of HRs in the country. Here any person can submitter his/her
HRs violation grievances.
Some of the services provided by the commission includes:-
 Follow-up and consultancy services
 Conducting and disseminating research output
 Reporting and public declaration and oversight
B. The Office of the Ombudsman
It acts as an impartial agent who investigates complaints of citizens fairly.
Ombudsman will have two main components.
First- it will be neutral mediating party between gov’t institutions and citizen with
grievances
Second- it will or reflects the growing trend of the ombudsman to be more proactive in
helping to give feedback about existing procedures and systems that affects the citizens.
 Ethiopian Ombudsman provides the following services;

Follow-up and oversights the implementation of HRs

principles
Conducting research in connection with respect of human
rights
Undertaking studies and research on ways and means of
curbing maladministration
THANK
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