• The word ‘constitution’ is used mainly in many senses
  • In a political sense, it signifies the constitution of the state
  • the term has attained a normative connotation and has become another term for a ‘democratic political order

• Constitution is figuratively defined as
  • the fundamental or basic law of a state which sets out the structure of the state
  • 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 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 is the mothers of all laws; all other ordinary laws are derived from and subjected to this blue print

• constitution is supreme law of a land, any other law contradicted with the provisions of the constitution becomes void or invalid

5.3.2. Peculiar Features of Constitution

• constitutional documents and traditions take the general form of a contract or an agreement between the ruled and the rulers
  • Limitations on the rulers are exacted by the ruled in exchange for allowing the rulers to preserve some elements of their right to govern and for preserving the stability of the governing system itself

• Generality
  • provides the general principle of a state and carry on foundation and sets out general framework of the law and the government
  • constitutional law announces principles while other laws apply or implement what the constitution announce their respective spheres of fields
  • other laws provide the details BUT constitution is always the most general in the sense, short and brief
  • The generality is very important because it give the constitution a feature of elasticity through interpretation thereby to accommodate various questions

• Permanency
  • It is made for undefined period of time; serve for a long lap of ages
  • purposely made to be stable and permanent
    • other laws are tentative, occasional and in the nature of temporary existence

• Supremacy
  • taking precedence over all others, and defining how all the others should be made
  • It is original because it is directly made by the people as the direct expression of the will of the people
    • other laws are secondary or derivate being commands of representatives of the sovereign

• Codified document
  • written down; often in a single document that presents the constitution in a systematic manner
  • constitutions are not intended to be perfect is evidenced by expressly stated processes for revising or amending them

• Allocation of powers
  • It outline the proper relations between institutions and offices of the state, and between government and citizens
  • most crucial part because it allocates powers and functions to government

5.3.3 Major Purposes and Functions of Constitution

• Serves as a framework for Government
  • It is a plan for organizing the operation of government which in turn effectively guides the functions and powers of bodies of government

• Limits the Powers of Government
  • In a constitutionally limited government, officials are always abided by the constitution
  • there is no decision or action that will be undertaken arbitrarily and spontaneously rather
    • every decision, act, or behavior is entertained according to rules and laws that originate from the constitution
  • A constitutional Government is neither too powerful nor too weak
    • constitutions shall grant Governments enough powers to effectively and consistently undertake their functions and responsibilities
    • But at the same time must put limits on their powers to make sure that they are not in a position to endanger the rights and freedoms of citizens

• Protects individual and collective rights of citizens

• Serves as the Supreme (Highest) Law of a Country
  • Constitution is the source of and supreme over all laws in a country
  • No specific law will be valid if it contradicts the constitution
  • constitution of state is referred to as “the law behind other laws or “the Mother of all laws” of a country

• Provides Government legitimacy/stability
  • provide mechanisms through which any potential conflicts can be adjudicated and resolved
  • It provide the vital function of introducing a measure of stability, order, and predictability of government
    • It gives governments a legitimate/legal right to rule or govern and by doing so it serves as the weapon for legitimizing regimes

• It is Blue Prints for establishing Values and Goals
  • 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
    • Example: preamble of the FDRE Constitution

5.3.4. Classification of Constitutions

• Written Constitution
  • is one whose provisions are written in detail
  • embodied in a single formal written instrument or instruments
  • written constitution is a formal document in a codified form
    • Example, India, Kenya, Ethiopia, USA, Germany, Brazil

• Rigid Constitution
  • the process of amendment is difficult
  • special procedure is followed to make a change in any rule of the constitution
    • A constitutional amendment bill must be passed by the parliament by special majority
  • A more difficult procedure of constitutional amendment is the one which requires a national referendum
    • Referendum – the process of direct voting by citizens to support or rejects at constitutional amendment or other major national issues
  • does not adapt itself to changing circumstances immediately and quickly
    • Example: USA, Australia, Denmark and Switzerland

• Flexible Constitution
  • simple amendment procedure and there is as such no special required procedure for amending a constitution
    • absolute majority (two thirds support) in the parliament
  • adapts easily and immediately to changing circumstances
    • Example: Constitutions of United Kingdom and New Zealand

• Effective Constitution
  • government/citizens  practices correspond  to  the provisions  of  the constitution
  • requires not merely the existence of constitutional rules and laws but also the capacity of those rules and laws to constrain or limit government behavior and activities, and establish Constitutionalism

• Nominal constitution
  • constitution accurately describes government’/citizens’ limits yet in practice either or both fail to behave accordingly
  • constitution only remains to have paper value or when there is absence of constitutionalism
  • a nominal Constitution is not observed in practice but in form

• Federal Constitution
  • distributes power among the different units of a state administration
  • Some constitutions purely classify and decentralize power between the central government and regional/local units
  • The powers divided between the federal government and states or provinces will be clearly set down in the constituent document

• Unitary Constitution
  • state power is concentrated in the hands of the central government
  • central government can establish or abolish the lower levels of government; determine their composition, and their power and functions
    • local government has no guarantee for their existence

5.4. Constitutionalism

• refers to a doctrine that governments should be faithful to their constitutions

• It is being subject to limitations and that citizens and governments operate in accordance with the general rules and laws rather than arbitrary
  • This is because the rules and laws so provided are all that can protect citizens’ rights from arbitrary actions and decisions of the government

• constitutionalism is the belief that constitution is the best arrangement of affairs in a society

• essential elements for constitutionalism are constitution and its effective implementation

• It is another name for the concept of a limited and civilized government

• constitutionalism does not merely require the existence of constitution
  • constitutionalism checks whether the act of government is legitimate and whether officials conduct their public duties in accordance with laws pre-determined in advance

5.5. The Constitutional Experience of Ethiopia: Pre and Post 1931

• Ethiopia has a very little experience with a written constitution in spite of its long history of state formation
  • first written form of constitution promulgated in Ethiopia in 1931

• Such lack of written constitution does not necessarily implicate the total absence of constitutional rules and principles

• Beginning in the 13th Century until the early 20th Century the Ethiopian Orthodox Church was the chief legitimator of monarchical rule

• 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

• a religious and secular legal provision than being a definite constitution

• It was originally written in Arabic by the Coptic Egyptian writer Abu-l Fada’il Ibn al-Assal

• designed by monks in the Church the same time Kebre Negest penned

• It set out the laws and regulations that were used to govern all activities of the Ethiopia society in the late middle age
  • used as the sources of constitutional, civil, and criminal laws

• It was compiled from the Old Testament, the New Testament, and the Roman law

• It was fundamental laws upon which the government and the administration were based and the king vested with absolute power
  • It contains the idea of divine rights of kings with the assumption that rules have a God given power

• written to document for the first time the mythical origins of the royal house

• written by six Tigrean clerics and completed in the early 14th Century

• important traditional document that even defined who should become king in Ethiopia
  • It was the principal sources of legitimacy for the kings

• Based on this the document determined that any king in Ethiopia must descend from the Solomonic dynasty or must have such blood relationship with the dynasty

• provided certain administrative protocol and directives in the 19th century

• hardly be considered to be a document of Constitutional Law in its widest sense

• it is the first document known to have been used for allocating power among the Crown, its dignitaries and the Church

• tried to lay out a pattern of succession to power, though the problem of primogeniture was more theoretical than practical

• With promulgation of first written form of constitution on July16, 1931 by Emperor Haile Selassie, the era of unwritten form of constitution came to an end

• The constitution reinforced the traditional position of the emperor a ‘Siyume Egziabiher, Niguse Negast Za Ethiopia’ which literally means: Elect of God, King of Kings of Ethiopia
  • However, on the other marked the end of the role of the nobility or at least the gradual reduction of their role in local leadership, the traditional check against the power of the king of kings, to insignificance

• The constitution unequivocally declared that the sole basis of legitimate authority was the emperor, and that all titles and appointments descended from him – Article 6

• both internal and external factors forced the development of the 1931 constitution

• It was was the result of the growing interaction between Ethiopia and the external world, particularly the western European countries
  • Emperor Haile Silassie developed strong aspiration to view Ethiopia as a modern state to the rest of the world

• The emperor had to convince the world that his country was modernizing and taking her place among the civilized states

• However, the 1931 constitution was failed to achieve external goals as intended by the emperor

• Democracy literally means the government of the people or government of the majority

• Etymologically, the word democracy is derived from two Greek words
  • demos – common people
  • kratos – rule (legitimate power to rule)

• in its original sense democracy means “rule by the people”

• Gradually, however, the meaning of this term is evolving and changing substantively

• a government comes from the people; it is exercised by the people, and for the purpose of the people’s own interests

• he defined between two contrasting notions of democracy
  • government by the people
    • public participates in government and indeed governs itself
  • government for the people
    • public interest and the idea that government benefits the people, whether or not they themselves rule

• democracy is a state of government in which people hold the ruling power either directly or indirectly through their elected representatives

• in democratic system, state power involves compromise and bargaining in decision- making process in a democratic system

• Democracy is institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people’s vote

• rulers are held accountable for their actions in the public realm and citizens act indirectly through the competition and cooperation of their elected representatives

• rooted in the ideal of popular participation/ Athenian democracy
  • Athenian democracy was the direct and continuous participation of all citizens in the life of their polis or city-state

Democracy can also be conceived as the institutionalization of freedom

• it refers to the process of organizing agencies that can watch the respect of rights and freedoms

• freedom means responsibility to do in line with national interest and then answerable for one’s actions and inactions

• There are two conditions under which human rights can be restricted: limitation and derogation

• Limitations
  • 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
  • Limitations can take the form of restrictions and/or derogation
    • Restrictions
      • acceptable or justifiable limits of human rights during the normal times
      • Restrictions circumscribed the manner, or place, and the extent to which rights can be enjoyed in a particular set of circumstances in normal times
    • Derogation
      • a temporary non-application and suspension of rights by the state in abnormal or emergency (natural/artificial) situations

• limitation should not be arbitrary, it should be based on legality, necessity, rationality and proportionality supposed to be determined by the human rights law

• Limitations may be made on the enjoyment of human rights for the sake of
  • safeguarding of national security or public peace
  • prevention of crimes
  • the protection of health, public morality
  • protection of the rights and freedom of others
  • safeguarding democratic institutions

• FDRE Constitution (art. 93) clearly specifies four conditions for declare state of emergency. The Council of Ministers can declare a State of Emergency in the following situations
  • External Invasion
  • Breakdown of law and order when it
    • endangers the constitutional order
    • cannot be controlled by regular law enforcement
  • Natural disaster
  • Epidemic

5.7.7. Non-derogability of Human Rights

• States believe that some provisions of derogability are necessary to allow them exercise their sovereign power during exceptional circumstances for the greater good of their people
  • However, this kind of derogation is not unconditional and it has its own limits

• There are also certain unique and inherent human rights, 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)
  • 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)
  • freedom of thought, conscience and religion (art. 18)

5.7.8. Implementation and Enforcement of Human Rights

• main objectives of the international law and its institutions is in one way or another related with the protection of human rights

• Charter of the United Nations make protection of human rights one of the three main objectives of the UN

• The United Nations has six prime organs, namely
  • General Assembly – legislative (law making)
  • Security Council – executive (law enforcing)
  • Economic & Social Council (ECOSOC)
  • International Criminal Court (ICC) – judiciary (law interpreting)
  • Office of the Secretariat
  • Trusteeship Council (Suspended operations-1994 with the independence of Palau)

• The Office of High Commissioner for Human Rights (OHCHR) is established under the ECOSOC, and is an organ particularly dedicated to the promotion, observance and monitoring of human rights worldwide

• international bill of human rights is made up of various treaty and charter based human rights instruments; treaties, covenants, charters and declarations

• The Universal Declaration of Human Rights (UDHR)
  • It is a human rights instruments considered as the groundwork of most of the post-1945 codification of human rights
  • It is the basis for human rights protection and promotion around the world and has been endorsed by all countries. Many countries have included its provisions in their basic laws or constitutions
  • The UDHR is not a binding instrument but claimed to have great moral weight and popularity
    • Thus, no obligation can be drawn from that instrument, since it is not a treaty based document. However, its wider global acceptance is enabling it to be seen as a customary law

• Besides to the UN Charter and the UDHR, the UN presently has more than ten core human rights treaty based human rights instruments
  • Each of the human rights treaty instruments has an autonomous monitoring body, composed of independent experts who examine the reports that signatory nations submit under the treaty

• Ethiopia is a signatory member to all of the aforementioned core international human rights instruments

5.7.8.2. Regional Mechanisms

• In addition to the international human rights regime functioned under the UN umbrella, there are regional human rights systems which cover three parts of the world
  • Africa
  • Americas
  • Europe

• if an individual or groups feel that his/her/their rights are not protected on the domestic level, “the international system comes into play, and protection can be provided by the global or the regional system”

• regional human rights systems are currently established only in Europe, Africa and American regions
  • In African, this system is established under the African Union (AU) structure
  • in the Americas it is part of the Organization of American States (OAS)
  • in Europe it is embedded in the European Union’s (EU) organizational structure

• Regional human rights systems are also recognized for providing a better systems of enforcement than the global system
  • It allows regions to apply the relevant enforcement mechanism that fits to their context
  • Example: example, the EU founds judicial approaches more appropriate and the AU inclined to non-judicial mechanism

5.7.9. The Ethiopian Human Rights System

• The foundation of the observance of the human rights in Ethiopia is the FDRE Constitution, which was ratified in 1994
  • FDRE Constitution classifies human rights as one of its five fundamental principles
  • The FDRE Constitution has established a national human rights regimes by recognizing most of the human rights entitlements acknowledged by the core international and regional human rights instruments
  • About one-third of the Constitution is devoted to enshrining fundamental rights and freedoms
  • 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

• Constitution has required the establishment of human rights and democratic institutions; including
  • the national human rights commission
  • general attorney office and office of ombudsmen, with an independent judiciary or courts equipped with the needed resources

• established institutions with the specific and prominent mandate of respect and promotions of human rights and the main organizations in this respect are
  • the Ethiopian Human Rights Commission (EHRC)
  • the Ethiopian Institution of the Ombudsman (EIO)
  • the Federal and Regional Ethics and Anti-Corruption Commissions and the Chief Auditor’s Office

• The National Election Board was established on the basis of the Constitution’s dictum that state power can be assumed only through representatives elected by universal and equal suffrage held by secret ballot, guaranteeing the free expression of the will of the electors