Chapter Five: Constitution,

Democracy and Human Rights

5.3 Constitution and Constitutionalism

 5.3.1. Conceptualizing Constitution
 Constitution is figuratively defined as the fundamental or basic law of
a state which sets out the structure of the state and also lists the rights
of citizens alongside the limits on the power exercise of a government.
 It is a blue print placed on top the hierarchy of laws on constitutional
governments.
 It is a collection of principles according to which the powers of the
government, the rights of the governed, and the relation between the
two are adjusted.
 Constitution state General Principles.
 Constitution is the mothers of all laws; all other ordinary laws are
derived from and subjected to this blue print.
 any other law contradicted with the provisions of the constitution
becomes void or invalid.
 5.3.2. Peculiar Features of Constitution
 Constitution is a contract or an agreement between the ruler and the ruled.
 The following are some of the distinctive features of a constitution.
1. Generality: it states general framework and principles. While other
laws are detail. The generality is very important because it give the
constitution a feature of elasticity through interpretation thereby to
accommodate various questions.
2. Permanency: unlike laws constitution is made for undefined period of
time. On the contrary, other laws are tentative, occasional and in the
nature of temporary existence.
3. Supremacy: it’s above all other laws. It is original because it is directly
made by the people as the direct expression of the will of the people.
4. Codified document: Constitutions are written down; expressly stated
processes for revising or amending.
5. Allocation of powers: outline the proper relations between institutions
and offices of the state, and between government and citizens.
 5.3.3Major Purposes and Functions of Constitution
1. It serves as a framework for Government: it is a brief and a general
outline of duties and rights of governments and also that of citizens.
2. It Limits the Powers of Government: A constitutional Government 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: the
constitution of state is referred to as “the law behind other laws or “the
Mother of all laws” of a country.
5. It provides Government legitimacy/stability: gives governments a
legitimate/legal right to rule or govern. provide the vital function of
introducing a measure of stability, order, and predictability of
government.
6. Constitution Blue Prints for establishing Values and Goals: the
fundamental aims (objectives) and principles are described or
accomplished explicitly in preambles to constitutional documents,
which often function as statements of national ideals and values.
 5.3.4. Classification of Constitutions
 Taking the form, amendment procedure and degree of implementation/practice,
constitutions can be classified into the following categories.
A. Constitution based on form/apperance
1. Written Constitution:- a written constitution is one whose provisions are
written in detail. It exists in a single document .
 Example India, Kenya, Ethiopia, USA, Germany, Brazil, Indonesia, Jordan,
Venezuela and Nigeria have written form of constitution.
Merits of Written Constitution
 It is easily accessible to citizens that enable them to monitor the
behavior of their government thus preventing the emergency of
dictatorship.
 Citizens can easily learn about their rights and duties and the basic laws
governing the patterns of political processes of their nation
 It is full of clarity and definiteness because the provisions are written in
detail.
 It has the quality of stability, since people know the nature of
constitutional provisions , they feel a sense of satisfaction.
 Demerits of written constitution
 It creates a situation of rigidity. It leads to the development of a
conservative attitude.
 It becomes difficult to change it easily quickly as per the
requirements of time.
 It led to different interpretations.
 not easily adapted to a new situation or changing circumstances.
2. Unwritten Constitution
 An unwritten constitution is one whose written provisions are very brief
and most of the rules of the constitution exist in the form of usages
and customs. It consists of customs, conventions, traditions, and some
written laws bearing different dates.
 It is made up, largely of customs and judicial decisions.
 Example Britain.
 Merits of Unwritten Constitution
 quality of elasticity and adaptability
 Dynamic that it prevents the chances of popular uprisings.
 can absorb and also recover from shocks that may destroy a written
constitution.
Demerits of Unwritten Constitution
 not easily accessible to the public to determine which aspects of the
constitution are violated and when it is violated
 It is difficult to create awareness through education on the
fundamental constitutional rights and duties of citizens.
 It leads to situations of instability. they are always in a state of flux as
per the emotions, passions and fancies of the people.
 It leads to the state of confusion. Controversies may arise from usages
and customs of a country.
 It certainly does not suit a democracy where people are always
conscious and suspicious of constitutional provisions.
 B. Constitution based on complexity of amending process

 constitutions may be classified as rigid and flexible.

1. Rigid Constitution
 A constitutional amendment bill must be passed by the parliament by
special majority. Then it is to be approved either by the provincial
units or by the people in a referendum or both.
 A more difficult procedure of constitutional amendment is the one
which requires a national referendum. Those countries like USA,
Australia, Denmark and Switzerland are known to have rigid
constitutions.
2. Flexible Constitution
 The simplest and commonest amendment procedure is the one which
requires an absolute majority (two thirds support) in the parliament.
Any new law made by the parliament gives a new rule to the
constitution. E.g. United Kingdom and New Zealand.
 C. Constitution based on degree of practice
1. Effective Constitution: a situation in which government/citizens
practices correspond to the provisions of the constitution.
2. Nominal constitution: when the constitution only remains to have
paper value or when there is absence of constitutionalism.
D. Based on the kind of state structure
 unitary and federal constitution .
1. Federal Constitution: Federal constitution is one that distributes
power among the different units of a state administration. United States
of America, Canada, Australia and Malaysia are examples.
2. Unitary Constitution: state power is concentrated in the hands of the
central government.
 5.4. Constitutionalism
 Constitutionalism is being subject to limitations and that citizens and
governments operate in accordance with the general rules and laws
rather than arbitrary.
 the essential elements for constitutionalism are constitution and its
effective implementation.
 constitutionalism does not merely require the existence of
constitution.
5.5. The Constitutional Experience of Ethiopia: Pre and Post 1931
5.5.1. Traditionnel Constitution (Pre- 1931)
 Documents like the Kebra Nagast, the Fatha Nagast and serate mengest from the
13th Century until the early 20th Century were the precursors to the formal written
Ethiopian national constitutions of the modern era.
Fetha Negest
 (The Law of Kings) was a religious and secular legal provision. written in Arabic
by the Coptic Egyptian writer Abu-l Fada’il Ibn al-Assal (commonly known as Ibn
al-Assal) when Cyril III was the Patriarch of Alexandria (1235-1243).
 Continued…
Kibre Negest
 Literally, Kibre Negest means glory of king. This document was written
by six Tigrean clerics and completed in the early 14th Century.
 it determine the succession of the throne in Ethiopia. It was the
principal sources of legitimacy for the kings.
Ser’ate Mengist
 provided certain administrative protocol and directives in the 19th
century.
5.5.2. The 1931 First Written Constitution
 The constitution was written on July16, 1931 by Emperor Haile Selassie.
 The constitution reinforced the traditional position of the emperor as
‘Siyume Egziabiher, Niguse Negast Za Ethiopia’
 External factor for writing the constitution is to Became member of
League of Nations. The constitution copied from Japan.
 Continued…
 Internally, the 1931 constitution was intended to provide a legal
framework for the suppression of the powerful traditional nobilities
to the emperor.
 It was designed to unify and centralize all state power in the hands of
the monarch.
5.5.3. The Revised Constitution of 1955
 The revision of the 1931 constitution was urged by both internal and
external factors.
 The Constitution spent one chapter settling the issue of succession on
the rule of male primogeniture.
 Interestingly enough it also contained an elaborate regime of civil
and political rights for the subjects. It contemplated even an
independent ministerial government responsible to the monarch
and parliament, an elected chamber and independent judiciary.
 It was revised because of internal and external factors mainly to cope
up with the social and political dynamics of the then period, global
politics, and Ethio-Eritrean federation.
 Continued…
 The federation of Eritrea with Ethiopia led to the addition of two new
documents in to the Ethiopia legal system. These were the federal act
and the Eritrean constitution.
5.5.4. The 1987 Constitution of People’s Democratic Republic
Ethiopia (PDRE)
 the time from 1974-1987 was a period of constitutional vacuum in
Ethiopia.
 The People’s Democratic Republic Ethiopia constitution (1987) was
different from the 1931 and the 1955 imperial constitutions in that
constitution:
1. State and religion were separated for the first time.
2. political power and sovereignty were given for the workers.
3. contains provisions on democratic and human rights.
4. recognized the different cultural identities and the equality of Nation
and Nationalities.
 Continued…
5. a transition from a none party system to a single party system.
6. aimed at the principles of Marxist and Leninist ideology.
7. Aimed at giving power to the peoples so that they exercise
through referendum, local and national assembly.
5.5.5 The 1995 (FDRE) Constitution
 Of the total 106 articles of the constitution just about one third
(approximately 33 articles) is devoted to the discussion of rights.
 The democratic rights enshrined in the constitution tend to be
essentially group-oriented and political in nature the human
rights on the other hand are individualistic and natural.
 This constitution make federal state.
 The 2nd chapter have five Fundamental principles, popular
sovereignty (art. 8), constitutional supremacy (art. 9), human
rights (art. 10), secularism (art. 11) and accountability and
transparency of government (Art.12).