Constitutional Law II Lecture Notes Aberra Degefa 1

Lecture Note
\
CONSTITUTIONS AND CONSTITUTIONALISM IN ETHIOPIA
INTRODUCTION
We study the past in order to gain a better understanding of the present. Usually,
the past haunts the present in the sense that the past system of ideas and old habits affect the
present in so many ways. In order to understand the current Ethiopian Constitution, one
needs to critically explore the sources of legitimacy and power base of the past Ethiopian
rulers’ authority and their constitutions. The past constitutional history has its own direct
influence on the present constitutional questions of Ethiopia. The origin of the present
Ethiopian constitutional developments and challenges may possibly be traced back to the
way Ethiopia was constituted and developed since then.

Ideological Basis (Source of Legitimacy) of the Imperial authority: What has

served the Ethiopian monarchs as a powerful source of legitimization for a long time was the
Solomonic legend which traced the descent of the first Ethiopian king to King Solomon of
Israel. This legend which has been propagated both by the Orthodox Church and the state
was instrumental in legitimizing the authority of Ethiopian kings.
The Church preached that the kings got their mandate to rule from heaven. The
alleged descent from King Solomon was meant to establish blood relationship between the
Ethiopian Emperors and Christ in the House of David (Perham, 1969). The Solomonic
legend became a belief in the minds of the subjects which gave the rulers of the country a
sacred supremacy. This role of the Orthodox Church has cemented and sustained the
symbiotic relationship between the Church and the State (Merera, 2003).
Hence, in Imperial Ethiopia, since the emperors remained “the unchallenged head
of the Church, and the fortunes of Solomonian Dynasty were interwoven by historical
associations and mutual interest with those of the Church” (Perham, p.103). The so called
Solomonic Dynasty has made the Imperial authority hereditary. But the thing is, any
hereditary government by its nature is a tyranny since inheriting a government is simply
inheriting the people, as if they were flocks or herds” (Paine, 1954: 144).
Concerning the traditional authority of Abyssisnian kings, James Bruce, explained
that “The kings of Abyssinia are above all laws. They are supreme in all causes,
ecclesiastical and civil. The land and persons are equally their property and every inhabitant
of the kingdom is born their slave” (1790: 575). Clapham on his part explained that force,
kinship, religion were the sources of authority of Abyssinian rulers.
Ethiopia claims long history of independence, but she has remained extremely
backward. The difficulty of understanding this Ethiopia’s extreme backwardness in view of
its long history of independence has been commented on by Perham as follows:
To the student who has formed his ideas of constitutional development upon the
histories of European nations, and above all upon those of the seemingly
comparable medieval kings of France and Britain, it is almost unbelievable that a
monarchy which can claim some 2,000 years of almost unbroken rule to its credit
failed in that period to build up any kind of administrative framework through
which to exercise the absolute powers with which, by tradition and consent it was
endowed (1969: 72).

1
 Constitutional Law II Lecture Notes Aberra Degefa 2

One may wonder why Ethiopia, with such a long history of independence has remained
extremely backward. This has continued to be the paradox of Ethiopian constitutional
development.
Ethiopia as a Multi-Ethnic Empire: The modern Ethiopian polity was created in the
second half of the 19th century as an amalgam of polyethnic entities and has since then been
maintained by use of force. The past rulers of Ethiopia have always relied entirely on their
military force to subject the people of the Empire to their autocratic rule. Because of the
harsh and repressive rule of Ethiopian rulers, quite a big number of scholars agree that rule of
law was alien to Ethiopia (Bairu, 1994). The system had always been hostile to the rule of
law thus engendering continual ethnic conflicts (Merera, 2003). For this reason, the entire
history of the state has generally been characterized as a history of conflicts (Markakis, 2003,
Merera, 2000).
Politically, Ethiopia had traditional ruling ethnic groups who had the monopoly of
power and resources of the country. As a consequence, the conflicts in Ethiopia were by
and large attributable to absolute monopoly of power and resources by one or the other
ethnic group to the exclusion of all others (Ali, 2003, Lewis, 1983, Sarah Vaughan and
Kjetil Tronvoll, 2003).
As a multi-ethnic empire-state, the modern Ethiopia was created by wars of
conquest. The way the State was forged has created many constitutional problems which
remained unaddressed by the successive generations. The scars from the wars of conquest
have had significant effects on the past, the present and the future. In Ethiopia, numerous
nations and nationalities have been subjugated by one or the other which conquered the
former from without and retained their conquest and domination by force. So the Ethiopian
Empire as such was forged by the force of arms where the hegemonic rule of one or two
ethnic groups has been established and maintained. Hence, the Empire State of Ethiopia had
at birth and carried with it potential seeds of conflict (Merera, 2003).
Questions:
a. How did all the past Ethiopian governments constitute themselves?
b. How and by whom were all the past Ethiopian constitutions made?

I. THE PRE 1991 ETHIOPIAN CONSTITUTIONS

a. Haile Sellassie’s Monarchical Constitutions
i. The 1931 Haile Sellassie I Constitution
The major factors which influenced the nature of the 1931 Constitution were:
 Legend of Solomonic Dynasty-descent from Christ- Elect of
God.
 Strong relation between Orthodox Church and State-(Emperor
needed blessing from Church anointment).
 Strong rivalry between the nobilities.
Hence, the 1931 Constitution was the product of this environment. The main objectives of
the Constitution were:
 To reduce the political power of the nobility and to legally bind the feudal
nobility
 To consolidate the power of the monarchy and central government
 To appear modern in the eyes of foreigners and the educated

2
 Constitutional Law II Lecture Notes Aberra Degefa 3

With that objective Haile Sellassie brought the nobility into the process of making
the 1931 constitution, in order to legally bring them under his control and to give further
weight to the document (Paul & Clapham, 1972). In short, the 1931 Constitution has:
 Helped in consolidating Haile Sellassie’s power
 Served as an instrument of centralization reflecting the traditional
principle of absolute imperial power without any practical limitations.
 Introduced a parliament as an institution which had only the right of
discussion (see arts. 30-47 of the Constitution).
Under Arts 6-17 of the Constitution, the powers and prerogatives of the Emperor were
provided. Accordingly,
 Supreme power rested into the hands of the Emperor (Art. 6).
 The Emperor had the right to institute Chambers (Art. 7).
 The Emperor had the right to convene and dissolve the Chamber of
Deputies (Art. 8).
 The Emperor had the power to promulgate Decrees taking the
place of laws (Art. 9).
With regard to citizens’ rights, Articles 18-29 provides the rights and duties of
subjects of the Empire. Article 28 states that Ethiopian subjects had the right to present
petitions to the government in legal form. But no independent judiciary was created to
guarantee these rights.
Overall, the 1931 constitution explicitly made the Emperor supreme and above
the law (arts 5 & 6). As sovereignty was made to be vested on the Emperor, it is difficult to
imagine how this same sovereign could impose on itself the law it could not infringe. In so
doing, the traditional principle which attributed super-human virtue to the Emperor prevailed.
In general, the 1931 Constitution, rather than limiting and distributing power it
consolidated and centralized it (arts 1-5). Like the traditional Abyssinia kings, the Emperor
remained above laws and supreme in all cases ecclesiastical and civil (Bruce). According to
Article 5 of the Constitution ’In the Ethiopian Empire supreme power rests with the
Emperor’. This kind of constitution cannot claim to be a genuine constitution in the
substantive sense, since it fails to institutionalize shared and limited government. Mahtama
Sellassie also stated that the Ethiopian Emperor had an uncontested and boundless power
over the territory he ruled (Zikre Nagar).

Question: What were the failures of the 1931 Constitution?

ii. The 1955 Revised Constitution

This constitution made a considerable departure from the 1931 constitution in:
 Introducing the notion of separation of powers(see Arts 5 and 6)in a better
manner
 The parliament was two chambered.
 Rights of subjects included but these powers were qualified.
 Introducing the notion of independence of judges
 Expressly providing for supremacy of the constitution and amendment clause
(see arts 122 &131)
But here again, the old tradition prevailed because the Emperor’s powers were not
limited (see arts 26, 27, 30, 36) which made the emperor above the law. Art 62(a) made the

3
 Constitutional Law II Lecture Notes Aberra Degefa 4

Emperor free from judicial process. Rather, based on Article 35, the Emperor had the power
to maintain justice. What is more, by virtue of art 36, the Emperor was made the sole
guardian of the people’s rights which were provided under arts 37-63. As per art 26ff the
Emperor was made the sovereign. Hence under the 1955 Revised Constitution of Haile
Sellassie, the principle of judicial independence (art 110) conflicted with the unique and
absolute power of the Emperor. The 1955 Revised Constitution could not expressly provide
for a body empowered to deal with constitutionality issues.
The separation of powers was applicable only at the level below the Emperor.
Based on Art 30, the Emperor had the power to make treaties. Of course, Art 64 provided
that everyone in the Empire has the duty to respect and obey the constitution, laws, decrees,
orders and regulations of the Empire. But this did not (at least in writing) include the
Emperor (see also art 4).
Under the 1955 Revised Constitution, the Emperor had the power to initiate
legislation (See Articles 34, 86, 88, 91, and 92). Art 88 made the publication of laws possible
only after the Emperor approves.

 Ministers accountable to the emperor (Art 66).

 Senators appointed by the Emperor (Art 101).
 Judges appointed by the Emperor (Art 111).
By making the Emperor once again above the law, the 1955 Revised Constitution
settled the balance in favour of tradition i, e, absolutism.
On the whole, the 1955 Revised Constitution served the same old purpose by a
new procedure because;
a) it failed to limit the powers of the Emperor, and
b) it made all constitutionally established institutions subordinate to the Emperor.
Ultimately, both constitutions of Haile Sellassie (1931 & 1955), rather than
creating a constitutional monarchy, as claimed, amounted simply to monarchical
constitutions (Paul H. Brietzke,1994). In other words, the constitutions could not in any way
serve as a restraint on the exercise of power of the Emperor. Most importantly, feudal land
ownership and the issue of ethnicity remained unaddressed by Haile Sellassie’s constitutions.
This failure to redress historical wrongs and to address the manifest ethnic, religious, social
and political inequality, has led to the 1974 popular revolution which deposed Haile
Sellassie, the last Ethiopian monarch ’s government.

Question: What were the major constitutional problems which Haile Sellassie’s Government
failed to address?
iii. The PMAC and the 1987 PDRE Constitution
The 1974 revolution has brought an end to Ethiopia’s imperial regime. After
deposing the Emperor and suspending the 1955 Revised Constitution, the Provisional
Military Administrative Council (PMAC) constituted itself as a provisional government. The
Military regime ruled the country up to 1987 without a constitution. The Peoples Democratic
Republic of Ethiopia Constitution (PDRE) was adopted by referendum in 1987. During its 13
years rule, the Military regime has addressed the land question ignoring the country’s ethnic
problem.

4
 Constitutional Law II Lecture Notes Aberra Degefa 5

The Constitution was meant to build socialism. According to the PDRE

Constitution the National Shengo was made the Supreme organ of the State to decide on any
national issue (Art 62). Based on Art 84 of the Constitution, the President was elected by the
National Shengo but as to how he was elected, nothing has been provided in the Constitution.
The power of the PDRE President was not limited since he had control over the parliament,
Council of State and Council of Ministers and the judiciary.
 Art 86(1) (b) the president presents the Council of Ministers to the National
Shengo
 Art 86(1) (c) He presided over the Council of Ministers
 Art 87 he could dismiss the Council of Ministers
 Art 86(1) (d) Presents judges to the National Shengo and could dismiss them
 Art 81(3) He was the president of the Council of State and the National
Shengo
The constitution could not separate powers so as to avoid arbitrariness and
concentration of powers. The infallibility of the president was taken for granted. Art 6 of the
Constitution made the Workers Party of Ethiopia (WPE) the guiding force of state and entire
society which bring in the hidden hands of the Party in the state affairs.
The technical invention that authoritarianism needed in order to succeed in the
technological society was the single or state party. Through it, the plurality of
several power holders could be nominally maintained but subordinated to the single
power holder, an individual person, junta, committee, assembly, or party. The single
party dominates all established power holders and state organs, including the
members of the governing group itself, the assembly, courts, army, and
bureaucracy. Once the competition of the rival socio political forces has been
eliminated in the closed power circuit, the constitution becomes meaningless. At
most, it remains a functional frame for the conduct of governmental business by the
party-controlled power holders (Loewenstein, 1965:146).
Thus the PDRE constitution failed to create an independent body which controls
constitutionality of laws. Art 118, the supremacy of the constitution was expressly stated.
In abolishing feudal land ownership, the Derg has addressed one of the major
problems in Ethiopia but has failed to properly address ethnic issue. Rather by declaring
Ethiopia as a unitary State in total disregard of the strong demand for ethnic equality, the
Derg, continued with the old assimilationist policy of creating one Ethiopian nation out of
diverse peoples and cultures through forced assimilation.
The legal unaccountability of senior officials that was
pioneered by Haile Sellassie took even more authoritarian directions
under Mengistu, and this helped to full regional rebellions and an
increased ethnic consciousness. Paul Brietzke (1994)

According to Brietzke, the Deg’s response to ethnic problem was unitarism in the
extreme.
Little sensitivity toward ethnic sensibilities emerged however, a regional
administrative autonomy was supposedly created by the 1987 constitution,
but there was no meaningful political or ethnic autonomy Mengistu’s style
of governance unovwerslist and unitarist in the extreme: through popular

5
 Constitutional Law II Lecture Notes Aberra Degefa 6

mobilization the masses were to be emancipated from their nationalities as

well as their class.
Features Common to all the pre-1991 Ethiopian Constitutions
 Their main objectives were to get the support of super powers, not to
enable the people to govern themselves.
 They were all drafted by people loyal to the ruling regimes and the
processes of constitution- making were entirely under the control of the
government from the beginning to the end.
 They were meant to centralize power. They were not meant to solve the
national problem.
 They all discouraged the establishment of civil society.
 The principle of sovereignty of the people has not been recognized in
the real sense.
 They were all copied from outside to imitate others.
 They all failed to restrain arbitrary exercise of power or absolutism.
Thus they all came to be suspended with the regimes which helped
them to come to life.
 The constitutions have failed to rectify historical wrongs.
 All the constitutions we have had so far were not antecedent to
governments as stated by Thomas Paine but came after governments
seized power through force only to consolidate power.
 The implementation of the constitutions solely depended on the
goodwill of the governments.


I. POST-1991 Constitutional Change and the FDRE Constitution

Introduction
The successful constitution maker must work upon an existing political and
historical mold. The Philadelphia Convention could operate effectively because the Framers
were able to reconcile the important differences that existed between them. Opposing
viewpoints were harmonized. In the USA, the document drafted in 1787 was a bundle of
compromises. The birth defect in a constitution is fatal to its stability or its longevity-(length
of time constitution lasts). There is correlation between fragility of a constitution and
unreality of the constitution.
Regarding what a new constitution should aim at, James Paul states that “New
constitutions and basic regimes of law must address history and redress historical grievances
and political pathologies”.
Democracy can hardly be expected to take hold where elections are reduced into a
symbolic exercise in mass participation with predictable results rather than a process of
competition. Political justice, constitutional justice and constitutionalism cannot take root or
operate meaningfully within the present dispensation unless the rights of political parties are
constitutionally recognized, protected and guaranteed within a framework of certain
minimum principles designed to ensure a free, fair, participatory and competitive political
process.
The constitutional right to form or join a political party and the right to vote or be
voted for, is meaningless if there are no guarantees that the whole political process would not

6
 Constitutional Law II Lecture Notes Aberra Degefa 7

easily be manipulated by the dominant majorities or dominant parties that have emerged
today in many African countries. One of the most important ways to arrest this insidious
decline towards the one party system is for all African constitutions, first to guarantee
constitutionalism and second to constitutional the status of political parties.
Of the two main constitutional issues i. e, end of feudal land ownership and ethnic
issue, the Derg failed to address the ethnic issue in a meaningful way in the 1987 PDRE
Constitution. Consequently, the resistances which manifested themselves in the form of
ethnic liberation fronts finally led to the fall of the Derg and with it also the 1987
constitution. Hence, as it lived only for less than four years some say that the 1987
Constitution ‘never got off the ground’. Missed historical opportunities in Ethiopian
Constitutional History
According to Dr Eshetu Chole, within a period of less than one generation,
Ethiopian society has had to contend with two periods of transition. The first was at the end
of the Haile Sellassie era when the Imperial rule came to an end by the seizure of power by
the military which represented a definite transition because when seen in the light of the
political and economic structures the transition represented a radical break with the past. In
1974, with the fall of Imperial order, history availed the Ethiopian people a unique
opportunity of building an economically viable, democratic and just society. But popular
aspirations were hijacked by a military clique, and the record of seventeen years of military
misrule turned out to be a bitter ”harvest of sorrow”. In other words, as a people we wasted
the opportunity offered by 1974(Dialogue, 1992, vol1 no 1, p.63).
The second was, in a rare instance of generosity, in 1991, history has once again
given Ethiopian people another chance to redeem our country and pull it out of the quagmire.
Dr Eshetu’s question then was, whether we could rise to the occasion and rehabilitate
Ethiopian society and economy, or whether we could once again waste a historic opportunity,
thereby perpetuating hell on earth, not only for this generation but also for generations to
come?
In Dr Eshetu’s view, two opportunities in less than a generation was a privilege seldom
granted to a people; squandering both of them is a crime that will not be forgiven by
posterity. Right after the fall of the Dergue Regime, that was a challenge which once again
was placed before the Ethiopian people during the transitional period (p.63).

b. The Transitional Period Charter ( 1991-1995)

Little is known about the Charter’s background. It was deliberated upon on the
Peace Conference that was held in Addis Ababa from July 1-5 in 1991. The Charter was
agreed upon by the several warring factions that together over threw the Derg. The
Transitional Charter was meant to create a favourable atmosphere for the establishment of a
popularly elected democratic government on the part of most participants of the conference.
In its spirit and approach, the Charter was by far a great departure from the past Ethiopian
traditional way of solving the empire’s problems.
As pointed out in the Preamble of the Charter, the overthrow of the Derg
presented historical moment as it provided the peoples of Ethiopia with the opportunity to
rebuild and restructure the state democratically. The military dictatorship in its essence was a
continuation of the previous regimes and its demise marks the end of an era of subjugation
and oppression thus starting a new chapter in Ethiopian history in which freedom, equal
rights and self-determination of all peoples shall be the governing principles of political,

7
 Constitutional Law II Lecture Notes Aberra Degefa 8

economic and social life and thereby contributing to the welfare of the Ethiopian peoples and
rescuing them from centuries of subjugation and backwardness.
The Charter has provided for the dismantling of all institutions of repression
installed by the previous regimes. Its objectives were to redress regional prejudices and the
safeguard the rights and interests of the deprived citizens by a democratic government
elected by and accountable to the people. The Charter recognized several human rights
including the right to self- determination of ethnic groups to independence when the
nation/nationality or people concerned are convinced that its rights were denied abridged or
abrogated (Articles 1 and 2).
The provisional government which was referred to as the Transitional
Government of Ethiopia (TGE) was established by the Charter. The TGE had 87 members
which consisted of Council of Representatives and Council of Ministers (Article 6). The
Transitional Council of Representatives (TCR) was composed of representatives of liberation
fronts and professional organizations. It had the power to exercise all legal and political
responsibility for the governance of Ethiopia (Article 9).
The Charter did not have constitutional character within the strict definition of
modern constitution. It was an interim constitution as it was meant to serve only for two
years (Art 12). It did not have amendment clause but had supremacy clause (see Art 18). It
failed to define the relationship between the different organs clearly. Issues like:
 Accountability,
 Check and balances. (See art 6, 7 and 8),
 Failure to provide for enforcement machineries,
 Mechanism for realizing democratic rights (provided under art 1 and 2 but
without independent judiciary were meaningless),
 Independence of the judiciary and control of constitutionality of laws (verbally
article 9(F) provides it), were not adequately defined and established clearly.

The Charter and the Constitution Making Process

The Charter provided for the establishment of a constitutional commission with
the mandate to draft a constitution (Article 10). The said Commission was established in
1992. The Commission consisted of 29 members (General Assembly). The General
Assembly consisted of:
 7 members from the TCR
 7 representatives from various political parties
 3 from trade unions
 2 from Teachers’ Associations
 2 from Lawyers’ Associations
 2 from health professionals’ associations
 3 from chamber of commerce, and
 3 representing women.
After the draft was finalized, the Commission had to submit it to the TCR (Article
10). Having adopted the draft Constitution, the TCR had to present it to the people for
discussion. According to Tsegaye Regassa, the turn out for the popular discussion was
low. At the end, the final draft had to be presented to the Constituent Assembly to be
elected on the basis of the draft constitution (Article 11). Finally, members of the
Constituent Assembly were elected according to the draft. The Constituent assembly

8
Constitutional Law II Lecture Notes Aberra Degefa 9

discussed on the draft and ratified it on December 8, 1994. The Constitution entered into
force on 21 August 1995.
Regarding the participation and inclusiveness level in the making of the
constitution, writers had different views. According to Meaza Ashenafi,” debates were
lively.-------Nonetheless, the EPRDF, the ruling party, always dominated when an issue
came to a vote, as it had the largest delegation”(Meaza, 2003, P 32). For Meaza, the
process was not fully participatory. In C.N. Paul’s view,
None of the political and ethnic forces which make the opposition to (the
EPRDF) had participated in the constitution making. All opposition parties, most
importantly, those representing the Amhara and Oromo groups (38 and 35%
respectively) withdrew from the electoral competition. The new constitution is
therefore supported politically and ethnically by the Tigrayan minority which
counts less than 10% of the population (Paul, 2000, p. 128).

THE 1995 FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA

CONSTITUTION

a. Introduction
The Preamble of the Constitution outlined its major aims and aspirations. The
constitution is a compact between nations, nationalities and peoples of Ethiopia. It
aspired for rectifying historical wrongs. It aims at ‘building a political community
founded on the rule of law and capable of ensuring a lasting peace, guaranteeing a
democratic order, and advancing ... economic and social development’.
The Constitution conditions the success of this sacred goal on the full respect of
the fundamental rights and freedoms of individuals and the people, to living together on
the basis of equality and without any sexual, religious, and cultural discrimination, and on
rectifying historically unjust relationships and promoting shared interests.
The 1995 FDRE Constitution has made a significant departure from the previous
constitutions both in form and in content. The nature of state it has envisaged and the
government it established was different. As clearly captured in the preamble of the
constitution, one of the most important objectives of the constitution is to create one
economic and political community based on good governance, respect for human rights
and democracy. The right to self-determination is clearly provided for under article 39
and nine regional states were created based on cultural and linguistic categories. The nine
regional states newly created are Afar, Amhara, Benshangul Gumuz, Gambela, Harari,
Oromiya, Somali , SNNP (Southern Nations, Nationalities and Peoples), and Tigray. The
FDRE Constitution has eleven chapters and 106 articles.
Chapter one General provisions (1-7)
Chapter two- Fundamental principles (8-12)
Chapter Three fundamental rights and Freedoms (13-44)
Chapter four- State Structure (45-49)
Chapter five structures and division of powers (50-52)
Chapter six the federal councils (53-68)
Chapter seven –The presidency (69-71)
Chapter Eight- The Executive (72-77)
Chapter Nine- Structure and powers of courts (78-81)

9
Constitutional Law II Lecture Notes Aberra Degefa 10

Chapter ten- National policy objectives (82-92)

Chapter Eleven- Special provisions (93-106)
Essential Features of the 1995 FDRE Constitution
This Constitution provides for:
1. A federal multiparty system form of government (Arts. 1, 46, 47,
50(1))
2. Ethnicity has been given central place(Preamble, Arts. 8, 46, 47)
3. Parliamentary system of government (Art 45).
4. Rights of nations to self determination up to secession (Art 39).
5. Equality of languages at regional level(Amharic remained the
working language of the federal state, Arts 5, 39)
6. Separation of state and religion (Art 11).
7. Extensive catalogue of provisions on fundamental rights and
freedoms (Arts 13-44).
8. Unique arrangement with regard to the control of constitutionality
of laws (Arts 62, 83, 84).
9. Rigid amendment procedure (Art 105).
General Provisions: Under chapter one (Arts 1-7) matters having to do with the
nomenclature of the state, territorial jurisdiction, flag, national anthem, languages,
nationality and gender reference have been treated.

b. Fundamental Principles of the 1995 FDRE Constitution

Several fundamental principles have been outlined in the FDRE Constitution.
Chapter two of the Constitution prescribes these fundamental principles. These principles
include:
 Sovereignty of the people,
 Supremacy of the Constitution,
 Human and democratic rights,
 Separation of state and religion and
 Transparency and accountability of conduct of government.
Along with these principles, the Constitution has included also national policy
principles and objectives under Arts 85-92.
Sovereignty of the People (Art 8): Sovereignty refers to ultimate authority. Under the
FDRE Constitution, all sovereign power resides in the nations, nationalities and peoples
of Ethiopia which makes sovereignty divisible. According to Minasse Haile (1996), it
created 9 sovereign entities and thus serves as a recipe for disaster. Was it a leap in the
dark (Brietzke) or commendable measure).
The constitution is an expression of the nations, nationalities and people’s
sovereignty. This sovereignty of nations, nationalities and peoples shall be expressed
through their representatives elected in accordance with the constitution and through
their direct democratic participation. Doesn’t this provision seem to suggest that there is
collective or group exercise of power?
According to Article 38 of the Constitution every Ethiopian national has
the right to vote and be elected. Based on this provision, there is no way that every
nation, nationality and people as a collective vote and be elected. The only possible

10
Constitutional Law II Lecture Notes Aberra Degefa 11

collective sovereign exercise of power as a nation or nationality is under Article 39 of the

Constitution (See also Art 54).
Supremacy of the Constitution (Art 9): The FDRE is the supreme law of the land.
Accordingly, any law, customary practice, an act of an agency of government or official
contravening the constitution is invalid (see Arts 62(1) cum 84(2). All citizens,
governmental bodies, parties, associations and their officials are bound by the
constitution. They should also insure its observance (see Arts 74(13) cum Art 31).
The constitution also subjects means of assuming power to be in
accordance with the provisions of the constitution (Arts 9(3) cum(31)). International
agreements ratified by Ethiopia are an integral part of the laws of Ethiopia (see Art
55(12)). The supreme organ to control constitutionality of laws is the House of
Federation (Arts 62 cum 84). The amendment procedure is also meant to protect the
supremacy of the constitution (Arts 104 and 105).

Human and democratic rights (Article 10): Article 10 of the FDRE Constitution
provides that human rights and freedoms, emanating from the nature of mankind, are
inviolable and inalienable. Human and democratic rights of citizens and peoples shall be
respected. Democracy and human rights are distinct yet interrelated concepts, with
democracy referring to government by the people, and human rights referring to universal
rights that apply to all individuals in all societies.

But what are human rights?

Human rights are commonly understood as being those rights which are inherent
in the mere fact of being human. A human right is something that pertains to all humans
at all times. Human rights are those, which belong universally to people regardless of
their sex, race, color, language, national origin, age, class, religion or political beliefs.

Human rights have been defined as ‘basic moral guarantees that people in all
countries and cultures allegedly have simply because they are people. The moral doctrine
of human rights aims at identifying the fundamental prerequisites for each human being
leading a minimally good life. Calling these guarantees “rights” suggests that they attach
to particular individuals who can invoke them, that they are of high priority, and that
compliance with them is mandatory rather than discretionary.

The concept of human rights is based on the belief that every human being is
entitled to enjoy her/his rights without discrimination. Human rights are not bought nor
does any other specific contractual undertaking create them.

Common Characteristics of Human Rights

There are certain common features of all the categories of human rights. The
following are the basic characteristics of human rights:

 Inherent – human Rights are inherent because they are not granted by any person
or authority.

11
Constitutional Law II Lecture Notes Aberra Degefa 12

 Fundamental - Human Rights are fundamental rights because without them, the
life and dignity of man will be meaningless.

 Universal - Human Rights are universal in application and they apply irrespective
of one’s origin, status, or condition or place where one lives. Human rights are
enforceable without national border.

 Inalienable - Human Rights are inalienable because:

o They cannot be rightfully taken away from a free individual.

o They cannot be given away or be forfeited.

 Imprescriptible - Human Rights do not prescribe and cannot be lost even if man
fails to use or assert them, even by a long passage of time.

 Indivisible - Human Rights are not capable of being divided. They cannot be
denied even when other rights have already been enjoyed.

 Interdependent - Human Rights are interdependent because the fulfillment or

exercise of one cannot be had without the realization of the other.

Democratic Rights

Democratic rights have got to do with the right to take part in the establishment
and running of government. According to Article 21 of Universal Declaration of Human
Rights (UDHR),

1. Everyone has the right to take part in the government of his country, directly
or through freely chosen representatives.

2. Everyone has the right to equal access to public service in his country.

3. The will of the people shall be the basis of the authority of government; this
shall be expressed in periodic and genuine elections which shall be by universal
and equal suffrage and shall be held in secret vote or by equivalent free voting
procedures.

Article 25 of the International Convention on Civil and Political Rights (ICCPR), also
provides that

Every citizen shall have the right and opportunity… (a) To take part in the
conduct of public affairs, directly or through freely chosen representatives; (b) To
vote and be elected at genuine periodic elections which shall be by universal and
equal suffrage and shall be held by secret ballot, guaranteeing the free expression

12
Constitutional Law II Lecture Notes Aberra Degefa 13

of the will of the electors; (c) To have access, on general terms of equality, to
public service in his country.

Classifications of Human rights

Collective and Individual Rights: In general, most human rights relate to the individual. It
will, however, become apparent that some of them can only be exercised by groups. This
is especially so when the ability to exercise rights is linked to membership of a particular
group.
First, Second and Third Generation Rights: This classification follows the historical
development of rights. First are the civil and political rights and second are the social,
economic and cultural ones. In recent years, academics have started to talk about the
existence of a third generation of rights which are solidarity rights, for example the right
to peace, the right to development, the right to food and to a clean environment. Human
rights are necessarily dynamic.

Who are the Duty Bearers?

Human rights hold nations accountable for meeting the conditions which satisfy
the promotion, protection and respect for these rights. The main duties deriving from
human rights fall on states and their authorities or agents, not on individuals.
As stated in the Preamble to the Universal Declaration of Human Rights,
(1948)...recognition of the inherent dignity and of the equal and inalienable of all
members of the human family is the foundation of freedom, justice and peace in the
world. The advent of a world in which human beings shall enjoy freedom of speech and
belief and freedom from fear and want has been proclaimed as the highest aspiration of
the common people
According to the Declaration, disregard and contempt for human rights have
resulted in barbarous acts which have outraged the conscience of mankind. If man is not
to be compelled to have recourse, as a last resort, to rebellion against tyranny and
oppression, that human rights should be protected by the rule of law.
The Universal Declaration of Human Rights was meant to serve as a common
standard of achievement for all peoples and all nations. Human rights are held to be
standards of justification and criticism whether or not they are recognized and
implemented by the legal system or officials of a country.

Separation of state and religion (Article 11): What do we mean by separation of state
and religion? This simply means that state should be secular. There should be no state
religion. But what is religion? According to Frankfurter, religion is the affirmative pursuit
of one’s convictions about the ultimate systems of universe and man’s relation to it.

Religion is that system of activities and beliefs directed toward that which is perceived to
be of sacred value and transforming power. It refers to the set of beliefs, feelings, dogmas
and practices that define the relations between human being and sacred or divinity. These
set of beliefs concerns the cause, nature, and purpose of the universe, especially when
considered as the creation of a superhuman agency or agencies, usually involving
devotional and ritual observances, and often containing a moral code governing the
conduct of human affairs.

13
 Constitutional Law II Lecture Notes Aberra Degefa 14

A state should not identify itself with any particular religion or be controlled by
any particular religion. No particular religion in the state will receive any state patronage.
TA secular state is not going to make any discrimination whatsoever on the ground of
religion.
The essential features of secular democracy
 The state will not identify itself with or be controlled by any religion
 While the state guarantees to every one the right to profess whatever
religion one chooses to follow, it will not accord any preferential treatment
to any of them
 No discrimination will be shown by the state against any person on
account of his/her religion or faith and
 The right of every citizen, subject to any general condition, to enter any
office under the state will be equal to that of his fellow citizens.
In the affairs of the state, the professing of any particular religion will not be
taken into consideration at all.
In the USA, there is an Establishment Clause which provides that neither a state
nor the Federal Government can set up a church. Neither a State nor the Federal
Government can pass laws which aid one religion aid all religions, or prefer one religion
over another. No tax in any amount, large or small can be levied to support any religious
activities or institutions whatever they may be called, or whatever form they may adopt to
teach or practice religion.
Neither a state nor the Federal Government can, openly or secretly, participate in
the affairs of any religious organizations or groups and vice versa. This is meant to erect
‘a wall of separation between church and state’.
To survive an establishment challenge in the USA, a government action must
meet each of these requirements known as Lemon Test- Lemon vs Kurtzman(1971)
c. The statute must have a secular legislative purpose
d. Its principal or primary effect must be one that neither advances nor
inhibits religion
e. The statute must not foster an excessive government entanglement with
religion
Art 11 of the FDRE Constitution provides that State and religion are separate. There
shall be no state religion. The state shall not interfere in religious matters and religion shall not
interfere in state affairs. But what constitutes religious affairs?
 To establish and maintain institutions for religious and charitable purpose
 To maintain its own affairs in matters of religion
 To own and acquire movable and immovable property and
 To administer such property in accordance with law
Article 27 provided that everyone has the right to freedom of thought, conscience
and religion.
 This right shall include the freedom to hold or to adopt a religion or
belief of his choice, and the freedom, either individually or in community
with others, and in public or private, to manifest his religion or belief in
worship, observance, practice and teaching.

14
Constitutional Law II Lecture Notes Aberra Degefa 15

 Without prejudice to the provisions of sub-Article 2 of Article 90,

believers may establish institutions of religious education and
administration in order to propagate and organize their religion.
 No one shall be subject to coercion or other means which would restrict
or prevent his freedom to hold a belief of his choice. Parents and legal
guardians have the right to bring up their children ensuring their
religious and moral education in conformity with their own convictions.
 Freedom to express or manifest one's religion or belief may be subject
only to such limitations as are prescribed by law and are necessary to
protect public safety, peace, health, education, public morality or the
fundamental rights and freedoms of others, and to ensure the
independence of the state from religion.

Recognition of religious and customary courts under the FDRE Constitution

Article 34(5) provides that the Constitution shall not preclude the adjudication of
disputes relating to personal and family laws in accordance with religious or customary
laws, with the consent of the parties to the dispute the particulars of which shall be
determined by law.
According to Article 78(5), pursuant to sub-Article 5 of Article 34 the House of
Peoples' Representatives and State Councils can establish or give official recognition to
religious and customary courts. Religious and customary courts that had state recognition
and functioned prior to the adoption of the Constitution shall be organized on the basis of
recognition accorded to them by this Constitution. Pursuant to Article 90(2) of the
Constitution, education shall be provided in a manner that is free from any religious
influence, political partisanship or cultural prejudices.

Some contentious religious and constitutional issues

 Prisoners right to free exercise of religion vs providing chapels in prison
 Religious exercises school prayer
 Religious symbols or displays on government property or as a part of government
program
 Freedom of religion vs conscientious objector
 Controls upon places of worship - refusal of permission to build a prayer-house
 Dress code
 Proselytism
 Interfering in internal disputes between adherents of a religious community
 The requirement for state registration
o Domestic law may require official recognition in order to obtain the legal
personality necessary to allow a religious body to function effectively. The
risk with such requirements is that these may be applied in a discriminatory
manner with a view to restricting the spread of minority faiths.
o The imposition of a requirement of state registration is not in itself
incompatible with freedom of thought, conscience and religion, but the State
must be careful to maintain a position of strict neutrality and be able to
demonstrate it has proper grounds for refusing recognition.

15
Constitutional Law II Lecture Notes Aberra Degefa 16

o Furthermore, the process for registration must guard against unfettered

discretion and avoid arbitrary decision making.
o While the State is “entitled to verify whether a movement or association
carries on, ostensibly in pursuit of religious aims, activities which are harmful
to the population”, it may not appear to be assessing the comparative
legitimacy of different beliefs. Strasbourg Court stressed that Article 9
excluded state assessment “of the legitimacy of religious beliefs or the ways in
which those beliefs are expressed”.

Question for Discussion

o State the merits and demerits of providing for the establishment of religious
and cultural court in view of the fact that the state has declared secularism.

Conduct and Accountability of Government (Article 12): This article provides that the
conduct of government affairs shall be public and transparent. This would create relation
of harmony and understanding between the government and the people. Its absence
would on the other hand create suspicion (see also Arts 29(2-4), 58(5)
Any public official or an elected representative shall be accountable to the people
for any dereliction of the duties of office. He will be responsible and answerable for
failing to discharge his official duties. Whoever is the victim of such dereliction should
be able to get remedies which require the establishment of legal devices for enforcing the
accountability (see Art 37).
If the electorate looses confidence in an elected representative, s/he may be
recalled. Procedures are to be established by law (see Art 54(7) of the Constitution. See
Arts 4-7 of Procl. No 88/97 a proclamation on loss of mandate of members of HPR.
In general, in a democracy, elected and appointed officials have to be accountable
to the people. Officials must make decisions and perform their duties according to the
will and wishes of the people, not for themselves. For government to be accountable the
people must be aware of what is happening in the country. This is referred to as
transparency in government. A transparent government holds public meetings and allows
citizens to attend. In a democracy, the press and the people are able to get information
about what decisions are being made, by whom and why.

National policy Principles and Objectives (Articles 85-92)

These principles are:
 Objectives
 Principles of external relations
 Principles of national defense
 Political objectives
 Economic objectives
 Social objectives
 Cultural objectives
 Environmental objectives
These principles and objectives have two characteristics. Firstly, they are not
enforceable by courts. If a directive is infringed, no remedy is available to the aggrieved

16
Constitutional Law II Lecture Notes Aberra Degefa 17

party by judicial proceedings (they are non-justiciable). These provisions are not meant to
be enforceable by courts.
Secondly, they are fundamental in the governance of the country and it shall be the duty
of the State to apply these principles in making laws. If a law giving effect to the
principles infringes any of the constitutional provisions, it will not be valid. The directive
principles can as well be taken into consideration in interpreting the ambiguous
provisions of the constitution as it is the case with the Preamble of the Constitution.

Objectives in setting the Constitution

a. Lay down the form of political democracy
b. Lay down the ideal of economic democracy
c. Prescribe that every government whichever is in power shall strive
to bring about economic democracy (See article 13(1), 85, and 92).

The fundamental rights provisions speak of certain things which the state ought to
refrain from doing. But pursuant to article 85, the directives are meant only to guide
public authorities in the implementation of the Constitution (both central and regional). In
making laws and in the governance of the country, the state has to apply these principles
or follow the directives, which would require positive actions. As such the principles and
the objectives are not suitable for enforcement in court of law. They are instructions
issued to the legislature and the executive for their guidance.
Critics Regarding the inclusion of the Objectives and Principles in a Constitution
Arguments against the inclusion of these objectives
These principles are simply manifestations of aims and aspirations as they lack the
quality of enforceability. But constitution as a rule should include only those provisions
whose enforcement is obligatory on the state.
So they think it should not be part of the constitutional document.
Arguments favoring its inclusion
d. Although the state may not have to answer for breach in a court of
law, the electorate may require the answer during election time.
e. They are in the nature of moral rules for the authorities of the state
as such they have educational value.

Amendment of the FDRE Constitution and Procedures

The stringency of a formal amendment process reflects a commitment by
constitutional designers to entrench certain rules and procedures or specific programs and
prohibitions. More stringent amendment procedures help to make constitutional
commitments stable and thus credible. Such procedures, consequently, help to create a
higher legal system that will stand above and limit ordinary legislation (Ferejohn 1997).
Less stringent amendment procedures allow constitutional mistakes to be readily
corrected and institutional experimentation to be more readily conducted.
Some constitutions rule out particular formal constitutional reforms altogether by
establishing unamendable provisions. For example, Article V of the U.S. Constitution
says that “no state, without its Consent, shall be deprived of its equal Suffrage in the
Senate.”

17
Constitutional Law II Lecture Notes Aberra Degefa 18

In Germany, the federal system is protected against changes. Similarly,

amendments of the basic principles of Articles 1 (on human dignity) and 20 (on basic
principles of state order and the right to resist) are inadmissible (see Article
79).
Naturally, constitutions must be updated over time to reflect changes in the
polity’s circumstances and citizens’ values. So in order to better advance citizen interests
as economic and political conditions change through time, there needs to be amendment.
Modesty on the part of constitutional designers requires them to acknowledge that even
their best efforts may need to be adjusted to take account of new circumstances, new
ideas, or new information.
There are always risks associated with constitutional reform because
constitutional “mistakes” are more difficult to correct than ordinary policy mistakes, there
are also risks associated with constitutional rigidity.

Amendment Procedures in the FDRE Constitution

Initiation of Amendments
Democratic constitutions address dynamic problems involving the stability and
flexibility of the constitutional regime itself by including amendment procedures in their
constitutions. The FDRE Constitution has also included such amendment procedure.
According to Article 104 of the FDRE Constitution, any proposal for
constitutional amendment, if supported by a two-thirds majority vote in the House of
Peoples Representatives, or by a two- thirds majority vote in the House of the Federation
or when one-third of the state Councils of the member States of the Federation by a
majority vote in each Council have supported it, shall be submitted for discussion and
decision to the general public and to those whom the amendment of the Constitution
concerns.
When it comes to the amendment of the Constitution, for the purpose of
amendment, Article 105 has classified the provisions of the Constitution into two
categories and made them subjected to two forms of amendment procedures.
In the first category, based on Article105 (1), all rights and freedoms specified in
Chapter three of the constitution, Articles 104 and 105 can be amended only in the
following manner.
 When all State Councils, by a majority vote, approve the
proposed amendment;
 When the House of Peoples’ Representatives, by a two-
thirds majority vote, approves the proposed amendment;
and
 When the House of the Federation, by a two-thirds
majority vote, approves the proposed amendment.
Based on Article 105(2) of the Constitution, those Constitutional provisions
included under the second category are amended in the following manner. All provisions
of the Constitution other than those specified in sub-Article 1 of Article 105 are amended:
(a) When the House of Peoples’ Representatives and the House of the
Federation, in a joint session, approve a proposed amendment by a
two-thirds majority vote; and

18
 Constitutional Law II Lecture Notes Aberra Degefa 19

(b) When two-thirds of the Councils of the member States of the

Federation approve the proposed amendment by majority votes.
Obviously, amendments procedures having to do with fundamental rights and
freedoms and the amendments provisions are made more stringent than the remaining
provisions.

Question
Does a durability of a constitution be measured by the existence of stringent amendment
procedures?

III. Fundamental Human rights and freedoms under the FDRE Constitution
Introduction
According to Harold Laski, (1934), “Every state is known by the rights that it
maintains. Among the distinguishing features of modern democratic society recognition of
the fundamental rights and freedoms of the people is the most important one. Hence one
method of judging a state’s character lies, in the contribution that it makes to the substance
of men’s happiness (Grammar of Politics, 3rd. ed. p.89). In Loewenstein’s view of all
restraints placed on the power of the state, the most effective is considered to be the
recognition by law and the protection by observance of certain areas of individual self
determination into which the State cannot penetrate (1965).
The recognition and the protection of fundamental rights and freedoms are the
essence of the political system of constitutional democracy. They signify shared and
limited power without which it cannot function. The reality of individual liberties is the
only reliable criterion that differentiates authoritarian and constitutional democratic
political systems.

Horizontal and Vertical Protection of Human rights

Bill of rights operates vertically and horizontally. A vertical bill of rights protects citizens
from things done by the government which might undermine their rights. This means that
citizens will only be protected if the government has been involved in the act which affects
their rights. If the bill of rights operates horizontally the rights of private citizens will be
protected against violations by fellow citizens (employment).

How Important are the constitutional guarantee of Rights?

Of course, no knowledgeable person has ever suggested that constitutional safeguards
provide in themselves complete and indefensible security. But they do make the way of the
transgressor, or tyrant, more difficult. A government determined to abandon democratic
courses will fid ways of avoiding them, but they are of great value in preventing a steady
deterioration in standards of freedom and the unobtrusive encroachment of a government on
individual rights.
Today, unless we resort to the reality of individual liberties behind the
theoretically provided one, we cannot distinguish between autocratic systems and
constitutional democracies since the institutional apparatus of both governments: assemblies,
elections, parties, bureaucracies have become stereotyped to the point of identity
(Loewenstein, 1965).

19
 Constitutional Law II Lecture Notes Aberra Degefa 20

Forms of guarantee of rights

The constitutional guarantee of fundamental rights and freedoms may take one of three
forms.
 As a declaration of objectives in a preamble
 As a guarantee of rights in the preamble
 As a guarantee of rights in the substantive provisions of
the constitution.
Declarations made in the preamble confer no rights on the individual because a preamble is
not an enforceable part of the constitution. Hence civil liberties guaranteed in a preamble
have no more than a moral force.
For example, if it is declared in the preamble that the State “shall ensure the equality of all
citizens before the law, without distinction of race, religion and social condition”, it is only a
declaration of what the state should do, it confers no right on citizens.
Where it is intended to protect human rights, the normal methods is to guarantee the rights
and freedoms in the substantive provisions of the constitution, but the efficacy of the
guarantee depends upon how it is formulated.

The problem of formulation of the rights

The content of bill of rights depends not only on the range of the rights guaranteed but also
upon the scope and the sweep of the qualifications made to them. For it is obvious that rights
cannot be guaranteed in absolute terms if for no other reason than to protect the rights of
other persons. To guarantee rights without qualifications is to guarantee anarchy.

But how can the extent of a right guaranteed to be determined?

The organization or body entrusted with the making of the constitution or with the
enforcement of the rights guaranteed will inevitably have to draw a line somewhere. But
whether the line is to be drawn by the enforcement agency in accordance with the spirit of
the pre-existing law or in the constitution itself, the problem is where to draw it so as to leave
ample room for the enjoyment of individual rights and at the same time make it possible for
the government to discharge its obligations towards the society and the political community
itself. This would involve a delicate balancing of objectives.
The duty of the government to respect and enforce certain rights depends on the type of
right in question.
Absolute & Immediate Obligations of the Government
When the duty of the government is absolute it cannot justify violation of certain
rights for any reason. Poverty or underdevelopment cannot be used as justification to violate
basic freedoms and rights for which the state has assumed absolute obligation. Articles 16
and 18 can be taken as examples. The rights for which the government assumes an absolute
obligation are regarded as rights having immediate application (of immediate effect).
Qualified and Progressive Obligations
Qualified: The obligation of the state to ensure human rights and basic freedoms depends on
the resources available to the state. Here the state is expected to take appropriate measures
to ensure the rights concerned.
Progressive: The obligation of the government to protect and enforce such rights is not
immediate but it is expected to be achieved overtime (Art 41(7)).

20
 Constitutional Law II Lecture Notes Aberra Degefa 21

The African Charter on Human and Peoples Rights states “Every individual shall have
the right to enjoy the best attainable state of physical and mental health”. The words “best
attainable” are used because this will vary, depending upon how rich a particular country
is, and what resources it has available for these services.
Conflicting Rights
Environmental rights with economic development rights freedom of information with
right to privacy

Human rights Provisions in the FDRE Constitution

The provisions are included under chapter three of the Constitution. Included under this
chapter are articles 13 – 44. The chapter is classified into human rights (Arts. 14-28) and
democratic rights (Arts. 29-44). There seems to be no strong justification for the
classification. It is difficult to understand how freedom of thought, women’s rights and
children’s right included under democratic rights differ from the rights included under human
rights.
Article 13 of the Constitution determines the scope of application of provisions dealing
with fundamental rights and freedoms. Accordingly, it provides that all Federal and State
legislative, executive and judicial organs at all levels shall have the responsibility and duty o
respect and enforce the provisions of the chapter. The fundamental rights and freedoms
specified in the chapter shall be interpreted in a manner conforming to the principles of the
Universal Declaration of Human Rights, International Covenants on Human Rights and
international instruments adopted by Ethiopia.
The civil and political rights enshrined in the Constitution are verbatim copies of the
provisions of the Universal Declaration of Human Rights (UDHR). The list includes:
 the right to life, which outlaws the deprivation of life except as a punishment
for a serious offence determined by law;
 the right to security of the person;
 the right to liberty, which prohibits arbitrary arrest and deprivation of liberty;
and
 the right to protection against cruel, inhuman, or degrading treatment or
punishment, including the banning of slavery and trafficking in human beings
for whatever reason, and forced or compulsory labor(See Arts 14–18 and 19).

The Scope of Protection of life

This would require removal of threats to human life such as:
o Malnutrition
o Life threatening illness
o armed conflict or
o nuclear danger.
This can be done by way of:
 Reducing infant mortality and increasing life expectancy
 Eliminating malnutrition or epidemics.
A state has special duty towards persons under arrest. For instance, omission like:-
 deprivation of food
 Deprivation of medical treatment

21
 Constitutional Law II Lecture Notes Aberra Degefa 22

 Failure to prevent suicide.

Generally a state should not only refrain itself from arbitrarily taking of life it
should as well take a positive measures to ensure life.

Rights of arrested or detained persons (Arts 19-21)

The rights of arrested persons:
 to remain silent,
 to be promptly informed, in a language she or he understands, of the
reasons for their arrest,
 to be brought before a judge within 48 hours, and
 to habeas corpus are entrenched in the FDRE Constitution.

Confessions or admissions obtained through coercion have been overruled or

excluded. But the right to compensation has not been included.
Article 21 provides that persons in custody have the right to treatment that
respects their human dignity. They also have the right not to be held incommunicado and
hence to be visited by their spouses or partners, close relatives, friends, religious
councilors, medical doctors, or their legal counsel.
Article 22 stipulates that retroactive application of criminal laws is prohibited and
hence unconstitutional. But a law promulgated subsequent to the commission of the
offence shall apply if it is advantageous to the accused or convicted person. The
Constitution also prohibits double jeopardy in the form of re-trial or punishment for an
offence upon which a final conviction or acquittal has been entered as per criminal law
and procedure (Article 23).

Minimum guarantees of the accused in criminal trial

 Presumption of innocence
 Right to be informed of the charge
 Right to preparation of the defense
 Right to be tried without undue delay
 Right to defense
 Right to call and examining witnesses
 Right to free assistance of an interpreter
 Juvenile trials
 Right to appeal
 Right to compensation for miscarriage of justice
 Prohibition of self incrimination
 prohibition of double jeopardy
Under Article 24, the Constitution provides that everyone has:
 The right to respect for his human dignity, reputation and
honour.
 The right to the free development of his personality in a
manner compatible with the rights of other citizens.
 The right to recognition everywhere as a person.

22
Constitutional Law II Lecture Notes Aberra Degefa 23

23