Chapter Eight:

Fundamental Rights and Freedoms under the

FDRE Constitution
Chapter outline
8.1 Human Rights: An Overview
8.2 International human rights instruments under the FDRE Constitution
8.3 Individual and group rights
8.4 Enforcement of Human rights
8.5 Human rights institutions/Organs of control
8.6 Human rights during a state of emergency
8.6.1Grounds for state of emergency
8.6.2 Derogable and non-derogable rights
Definition of Human Rights
Human rights are:
• Universal legal guarantees protecting individuals and groups
against actions and omissions that interfere with fundamental
freedoms, entitlements and human dignity.

• Human rights law obliges Governments and other duty-bearers

to do certain things and prevents them from doing others.

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Human Rights: An Overview

▪ Rights: claims against the state

▪ Human rights are inherent to human beings
▪ All men are born and remain free and equal in their rights

▪ Human Rights: Belong to all humans, regardless of race, colour, sex,

language, religion, political or other opinion, national or social origin,
property, birth or other status (Art. 2, UDHR)
Core Principles of Human Rights
• Universal: All individuals are equal as human beings and by virtue of the inherent
dignity of each human person.
• Inalienable: All people everywhere in the world are entitled to human rights. A
person cannot voluntarily give them up. Nor can others take them away from him or
her.
• Indivisible and interrelated: Rights are completely interdependent and depend on
each other for their effectiveness.
• Non-discrimination: Everyone is entitled to human rights without discrimination
• Empowerment/participation: These rights endow people the power to claim them
from their governments, as opposed to charity which is an act of generosity. Human
rights are owned by everyone.
• Accountability: Governments have certain duties and obligations to respect, protect
and fulfil human rights. (Individuals and non-state actors also have duties to others)

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THE INTERNATIONAL BILL OF HUMAN RIGHTS
• The Charter of the United Nations: the foundations for the international
protection of human rights, cooperation in promoting and encouraging respect
for human rights and for fundamental freedoms for all without distinction as to
race, sex, language or religion
• The Universal Declaration of Human Rights: the Declaration constitutes an
authoritative interpretation of the Charter obligations and provides a
comprehensive list of human rights and freedoms to be protected. It represents a
consensus of the international community regarding human rights which each of
its members must respect, promote and observe.
Enforcement of Human rights
State Obligations
• To Respect: States must refrain from interfering directly or indirectly
with the enjoyment of the right.
• To Protect: States must take measures that prevent third parties from
interfering with the enjoyment of the right.
• To Fulfill: States must adopt appropriate legislative, administrative,
budgetary, judicial, promotional and other measures towards the full
realisation of the right (facilitate) and directly provide assistance or
services for the realisation of these rights (provide)

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Human rights institutions/Organs of control
▪ Montesquieu in his publication, Spirit of the Laws, is considered one
of the great works in the history of political theory and
jurisprudence, and it inspired the Declaration of the Rights of Man
and the Constitution of the United States.
▪ Under his model, the political authority of the state is divided into
legislative, executive and judicial powers.
▪ He asserted that, to most effectively promote liberty, these three
powers must be separate and acting independently.
▪ Proclamation No. 1224/2020 Ethiopian Human Rights Commission
Establishment
8.2 International human rights instruments under the FDRE Constitution

▪ Article 13(1), by imposing a duty on both federal as well as regional legislative,

executive and judicial organs to protect and enforce those rights and
freedoms gives the provisions of chapter III of the constitution a special
position.
▪ The name ‘fundamental rights and freedoms’ is used to describe all those
rights included in chapter III which the constitution later classifies them as
Human Rights and Democratic Rights.
▪ In jurisprudence and law, a right is the legal or moral entitlement to do or
refrain from doing something or to obtain or refrain from obtaining an action,
thing or recognition in civil society.
Classification of Fundamental Rights and Freedoms

Even if these are not exhaustive listings of all types of classifications, we shall
be discussing some four ways of categorization,
1. Civil and political rights vs. economic, social and cultural rights;
2. First, second and third (Fourth Generation) generation rights;
3. Norms of Aspiration and enforceable rights; and
4. The one the FDRE constitution has adopted which is human rights and
democratic rights.
1. Civil and Political rights vs. Economic, Social and Cultural rights
➢This was a classification adopted by the international Bill of Rights after a
prolonged controversy.
➢While the Universal Declaration of Human Rights made no distinction
between these forms of rights, during the drafting of the two other
Covenants there had arose a difference of opinion in either coming up with
a single and universal human rights instrument that included, as did the
UDHR, both civil and political rights as well as Economic, Social and Cultural
Rights, or splitting them into two separate instruments.
➢The latter idea was supported by capitalist countries such as the US that
favoured only the civil and political rights while the former had been highly
supported by the then socialist countries.
➢Finally, the latter view had been accepted and two covenants had been
adopted in 1966, which came into force after ten years, in 1976.
What is the difference between the two types of human rights?

➢ Civil and political rights are those rights that are sometimes referred to as
first-generation rights that primarily protect individual rights such as:
- right to life,
- prohibition of torture, cruel, inhuman or degrading treatment or
punishment,
- the right to liberty and security of person,
- the freedom of movement,
- freedom of association,
- freedom of religion,
- freedom of expression,
- right to equality,
- the right to vote and be elected, etc.
➢ The economic, social and cultural rights, on the other hand, are, as its
name implies, are rights that relate to the socio-economic, and cultural
wellbeing of individuals and groups within the country, and they are
referred sometimes as second generation rights.
➢ In these category of rights are the right to non-discrimination:
- the right to work,
- the right to just and favourable conditions of work,
- the right to form trade union,
- the right to social security,
- the right to protection of family life,
- the right to adequate standard of living,
- the right to health,
- the right to education, and
- the right to participate in cultural life.
2. First, Second and Third Generation rights, fourth generation rights?
➢ The division of human rights into three generations was initially proposed in 1979 by
the Czech jurist Karel Vasak at the International Institute of Human Rights in Strasbourg.
➢ He used the term at least as early as November 1977.
➢ Vasak's theories have primarily taken root in European law, as they primarily reflect
European values.
➢ His First-generation human rights (FGHR) deal essentially with liberty and participation
in political life. They are fundamentally civil and political in nature, and serve to protect
the individual from excesses of the state.
➢ First-generation rights include, among other things, freedom of speech, the right to fair
trial, freedom of religion, and voting rights.
➢ They were first enshrined at the global level by the 1948 Universal Declaration of
Human Rights.
➢ There are many writers who propound that when first generation human rights are
limited this directly limits second generation rights in the sense that where there are
limits on freedom of speech and expression it is not likely that people in that state will
have adequately enforceable socio-economic rights.
Second-generation human rights are related to equality and began to be
recognized by governments after World War I.
➢ They are fundamentally social, economic, and cultural in nature.
➢ They ensure different members of the citizenry equal conditions and
treatment.
➢ Secondary rights would include
- a right to be employed,
- rights to housing and health care,
- as well as social security and
- unemployment benefits.
➢ Like first-generation rights, they were also covered by the Universal
Declaration of Human Rights.
 Third-generation human rights are those rights that go beyond the mere civil and social,
as expressed in many progressive documents of international law.
➢ Because of the principle of sovereignty and the preponderance of would-be offender
nations, these rights have been hard to enact in legally binding documents.
➢ The term "third-generation human rights" remains largely unofficial, and thus
encompasses an extremely broad spectrum of rights, including:
Group and collective rights
- Right to self-determination
- Right to economic and social development
- Right to a healthy environment
- Right to natural resources
- Right to communicate
- Right to participation in cultural heritage
- Rights to intergenerational equity and sustainability
- Right to peace and security
3. Norms of Aspiration and Enforceable rights
➢ This form of classification basically owes its base in the Indian constitution that
provides the Bill of Rights in three groups: Fundamental Fights, Directive Principles of
State Policy and Fundamental Duties.
➢ While section 32 of the constitution provides ‘the right to move the Supreme Court by
appropriate proceedings for the enforcement of the rights conferred by this Part (which
enumerates the fundamental rights) is guaranteed’, those directive principles of state
policy are just considered as norms of aspiration.
➢ Part IV Section 37 of the constitution, which provides about those ‘norms of aspiration’
states ‘The provisions contained in this Part shall not be enforceable by any court, but
the principles therein laid down are nevertheless fundamental in the governance of the
country and it shall be the duty of the State to apply these principles in making laws.’
➢ Thus, those directive principles, which predominantly relate to economic, social and
cultural rights, are supposed to be realized by the state’s legislation progressively. They
only serve as policy guides for the government.
4. Human Rights and Democratic Rights
➢ Our constitution’s approach is distinct in that it classifies the fundamental
rights and freedoms into human rights and democratic rights.
➢ The apparent understanding of the terms might suggest that the
classification is meant to put distinguish between civil rights and political
rights, though the content of the enumerated rights does not support this
understanding.
Human Rights
▪ The right to life (Art. 15)
▪ The right to security of Person (Art. 16)
▪ The Right to Liberty (Art. 17)
▪ Prohibition Against Inhuman Treatment (Art. 18)
▪ Right of Persons Arrested (Art. 19)
▪ Right of Persons Accused (Art. 20)
▪ Right of Persons Held in Custody and Convicted Persons (Art. 21)
▪ Non-Retroactivity of Criminal Law (Art. 22)
▪ Prohibition of Double Jeopardy (Art. 23)
▪ Right to Honor and Reputation (Art. 24)
▪ Right to Equality (Art. 25)
▪ Right to Privacy (Art. 26)
▪ Freedom of Religion, Belief and Opinion (Art. 27)
Democratic Rights
• Right of Thought, Opinion and Expression (Art. 29)
• Right of Assembly, Demonstration and Petition (Art. 30)
• Freedom of Association (Art. 31)
• Freedom of Movement (Art. 32)
• Right of Nationality (Art. 33)
• Marital, Personal and Family Rights (Art. 34)
• Right of Women (Art. 35)
• Right of Children (Art. 36)
• Right of Access to Justice (Art. 37)
• The right to vote and be elected (Art. 38)
• Right of Nations, Nationalities and Peoples to Self-Determination Including Secession
(Art. 39)
• The Right to Property (Art. 40)
• Economic, Social and Cultural Rights (Art. 41)
• The right of Labor (Art. 42)
➢8.6 Human rights during a state of emergency

▪ A state of emergency is a governmental declaration that may suspend

certain normal functions of government, may work to alert citizens to
alter their normal behaviors, or may order government agencies to
implement emergency preparedness plans.
▪ It can also be used as a rationale for suspending fundamental rights and
freedoms.
▪ Such declarations usually come during a time of natural disaster, during
periods of civil unrest, or following a declaration of war (therefore, in
democratic countries many call this martial law, most with non-critical
intent).
8.6 Human rights during a state of emergency
➢ It is the Council of Ministers which is given the power to declare a state of emergency.
➢ When it comes to the regions, the state councils are given such powers, the specifics of
which are going to be determined in the particular state constitution.
➢ However, the Council of Ministers’ decision for declaring an emergency situation is to
be checked by the highest political organ of the country, which is the House of Peoples’
Representatives.
➢ Therefore, the Council’s decision remains to be provisional until it gets a two-thirds
majority approval within the House which shall look into the matter, where it is in
session, within 48 hours.
➢ Where such declaration has been issued during those months where the House is in
recess, the Speaker of the House shall call for a meeting to consider the matter as
stipulated under Art 58 (4).
➢ Since such emergency calling of the members of the House for a meeting will take
time, 15 days are given for the Council to present the matter to the House for approval.
8.6.1 Grounds for state of emergency

➢Art 93(1)(a).
➢The circumstances can be put in four main headings and a fifth
point which is applicable to most of those four circumstances.
Accordingly, the situations that might justify the declaration of
state of emergency under the Ethiopian constitutional system are;
- External invasion,
- A break down of law and order which endangers the
constitutional order,
- A natural disaster, and
- An epidemic.
▪ These are the four main points that might be cited by the Council of Ministers
while declaring a state of emergency.
▪ However for the last three headings, an additional test must be met before
they become as valid grounds for suspension.
▪ This is the fact that where a break down of law and order, a natural disaster or
an epidemic can adequately be controlled by the regular law enforcement
agencies and personnel such as the civilian police force, those grounds may
not be raised as justification for the declaration of state of emergency.
▪ Thus, while the grounds themselves can be considered as requirements of
legality, this latter condition is a requirement of proportionality in the sense
that the state of emergency may not be proportional in circumstances where
the ordinary police force can quell the unrest without any need of suspension
of the fundamental rights and freedoms through the state of emergency.
▪ These are the four main points that might be cited by the Council of Ministers
while declaring a state of emergency.
▪ However for the last three headings, an additional test must be met before
they become as valid grounds for suspension.
▪ This is the fact that where a break down of law and order, a natural disaster or
an epidemic can adequately be controlled by the regular law enforcement
agencies and personnel such as the civilian police force, those grounds may
not be raised as justification for the declaration of state of emergency.
▪ Thus, while the grounds themselves can be considered as requirements of
legality, this latter condition is a requirement of proportionality in the sense
that the state of emergency may not be proportional in circumstances where
the ordinary police force can quell the unrest without any need of suspension
of the fundamental rights and freedoms through the state of emergency.
8.6.2 Derogable and non-derogable rights
ICCPR
No derogation from articles 6 (Right to life), 7 (Prohibition of Torture, Inhuman and Degrading
treatment or Punishment), 8 (paragraphs I (Prohibition of Slavery) and 2 (Prohibition of
Servitude)), 11 (Prohibition of imprisonment for failure to fulfill contractual obligations), 15
(Prohibition of the non-retroactive application of criminal law), 16 (The right to recognition
everywhere as a person) and 18 (Freedom of thought, conscience and religion) may be made
under this provision.

The Council of Ministers shall have the power to suspend such political and democratic rights contained in this Constitution to
the extent necessary to avert the conditions that required the declaration of a state of emergency.
93(4a)