CHAPTER ONE: CONCEPTUALIZING CONSTITUTIONS

To constitute means to make up, order, or form. Thus a nation’s constitution should pattern a
political system. Some texts implicitly proclaim themselves to be supreme law and many do so
explicitly. Still, a document’s bearing the title, a constitution and declaring its own control over
all other political acts may not mean very much. We need to distinguish between the authorities a
text asserts.

A Constitution as a Charter for Governments: At minimum, an authoritative constitutional

text would more often sketch the fundamental modes of legitimate governmental operations.
Who its officials are, how they are chosen, what theirterms of office are, how authority is divided
among them, what processes they must follow, and what rights, if any, are reserved to citizens.
Such a text need not proclaim any substantive values, beyond obedience to itself; if it does
proclaim values, they might be those of Nazism or Stalinism – anathema to constitutional
democracy.
A constitution as a guardian of fundamental rights: If a text is authoritative, for it embodies
democratic theory, it must protect rights to political participation; and if it is authoritative and
embodies constitutionalism, it must protect substantive rights by limiting the power of those even
freely chosen representatives.

Constitution of State as the Weapon for Legitimizing Regimes: Constitution of states

is also indispensable for building legitimacy for regimes. Legitimacy is defined as the
right to rule or the validity power to govern. A legitimate system of government is one
based on authority; that is, those subject to its rule recognize its right to make collective
decision or to rule. However, authority creates its own power so long as people accept that
the authority figure has the right to make decision.

The process of legitimating regimes has two dimensions. These are:

i. The existence of constitution of state is almost prerequisite for a state’s membership of
the international community and for its recognition by other states in the current modern
world; and

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ii. More importantly, the ability to use constitution of state to build legitimacy with in a
state through the promotion and effective consolidation of respect and compliance
amongst the domestic population. This is possible because constitution of state both
symbolizes and disseminates the values of the regime.

Constitution as covenant, symbol, and aspiration:constitution is a covenant by which a group

of people agree to (re) transform themselves from mere state into a nation; it may function for
the founding generation like a marriage consummated through the pledging partners; consenting
to remain a nation – for better or worse, through prosperity and poverty, in peace and war.

For later generations, a constitution may operate more as an arranged marriage in which consent
is passive, for the degree of choice had been limited. Even where cancellation of a contract is a
recognized right, exit from a membership of such an association is unlikely to offer viable
alternative. Revolution becomes a legal right only if it succeeds and transforms revolutionaries
into founders. Otherwise, a system usually endures only by bringing into and then binding many
groups into its forms.

In a constitutionthere is also an ideological aspect of constitution making where the people truly
aspired for it. In such a situation, it would be a common belief of the constituent, or at least, their
leaders, what the envisioned state should be geared towards providing the people either as
citizens or as membersof any organization. This sort of positive declaration also usually has a
way of offering bearing to the operation of the constitution as well as affordingthe subjects the
parameter for assessing them. It therefore, seeks to invest for unifying political values. As such,
the fundamental aims (objectives) and principles are described or accomplished explicitly in
preambles to constitutional documents, which often function as statements of national ideals and
values. For instance, the preamble of the FDRE Constitution stated that:
We, the Nations, Nationalities and Peoples of Ethiopia:
Strongly committed, in full and free exercise of our right to self-determination, to building
a political community founded on the rule of law and capable of ensuring a lasting peace,
guaranteeing a democratic order, and advancing our economic and social development;

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Firmly convinced that the fulfillment of this objective requires full respect of individual
and people’s fundamental freedoms and rights, to live together on the basis of equality and
without any sexual, religious or cultural discrimination;

Further convinced that by continuing to live with our rich and proud cultural legacies in
territories we have long inhabited, have, through continuous interaction on various levels
and forms of life, built up common interest and have also contributed to the emergence of
a common outlook;

Fully cognizant that our common destiny can best be served by rectifying historically
unjust relationships and by further promoting our shared interests;
Convinced that to live as one economic community is necessary in order to create
sustainable and mutually supportive conditions for ensuring respect for our rights and
freedoms and for the collective promotion of our interests;

Determined to consolidate, as a lasting legacy, the peace and the prospect of a democratic
order which our struggles and sacrifices have brought about;

Have therefore adopted, on 8 December 1994 this constitution through representatives we

have duly elected for this purpose as an instrument that binds us in a mutual commitment
to fulfill the objectives and the principles set forth above.

The preamble is often utilized for the purpose of this declaration. Thus, out of the 160 odd
written constitutions in the world, only 41 do not have a perambulatory affirmation. Some
affirm belief in God or Allah etc and others the United Nations Declaration of Human
Rights etc. Some Constitutions also make fuller declarations in the body of the
Constitution.

In lay terms, a constitution is a set of rules which governs an organisation. Every organisation,
whether social club, trade union or nation state, which has defined objectives and departments or
offices established to accomplish those objectives, needs a constitution to define the powers,
rights and duties of the organisation’s members. This set of rules, in addition to regulating the
internal working of the organisation, will also make provision for the manner in which the
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organisation relates to outside bodies. It can therefore be said that a constitution looks to both
internal and external regulation of the body to which it relates.

Constitution has both legal and political dimension. In political terms, a constitution is the
basic decision of a people on how it wants to live. It has been described as a socio-political
frame-work through which the polity agree on who gets what, when and how. It is said to
define "political space" and the relationship between the state and its citizens. Simple
example is preamble of 1995 Ethiopian Constitution. The constitution is a living, dynamic
organism which at any point in time will reflect the moral and political values of the people
it governs, and accordingly, the law of the constitution must be appreciated within the socio-
political context in which it operates. It is a kind of a "power map" and "charter of
government". It has been described as a social contract or covenant between the state and its
subjects on the manner of governance and exercise of state power.

In legal terms, a constitution is the fundamental and supreme law of the country. Law of
Constitution is partly substantive and procedural public law (remember) what a constitution
attempts to give answer to –i.e. “the what and the how”, law of constitution. It is a bridge
between political and legal forum –i.e. the regular courts, constitutional courts that would be
appropriate for Ethiopia. It is the basic law from which all laws derive their validity.
Constitutional law is concerned with the role and powers of the institutions within the state
and with the relationship between the citizen and the state. Therefore, any law which conflicts
with the constitution has no legal effect. A written constitution is even supreme over the
legislature. Accordingly, a constitution is regarded as having legal sanctity or being sacred. It
deserves the highest respect and obedience from the leaders and the people alike. It follows
therefore that a constitution represents the deepest norms and ideals by which the people
govern their political life.

Why wehave a constitution?

Insomerespectsgovernmentislikeagame;beforetheplayerscaneventakethefieldtocom
pete,theyneedtoagreeonasetofrulesthatdecide
[Link]–
whocanvote,whocanstandforoffice,whatpowerstheyaretohave,therightsanddutiesofc

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[Link],br
uteforce,[Link]
rulesworkwell,wetendtotakethemforgrantedandconcentrateontheday-to-
daygameofpolitics,justaswetaketherulesofourfavoritesportforgrantedandconcentrate
ontoday’[Link],constitutionsareimportantbecausetheyhaveaprofound
influenceoverhowthegame
ofpoliticsisplayed,andthereforeovertheoutcomeofthegame–who
getswhat,andwhen?Forthisreason,sometheoriesofpoliticsplacegreat
importanceonconstitutions,andonthepoliticalinstitutionsthattheycreateandshape.

Like most human creations, constitutions are a response to a problem presented by

nature—human nature in this instance. We need to organize ourselves politically,
dividing into rulers and the ruled. The specific problem that a constitution tries to
address is how to create a stable and secure human community within a prescribed
territory under a political organization flexible enough to adapt to external and
internal changes that may threaten the community’s stability and security. The
problem has grown more acute as population has increased and the world, in terms
of communications and travel, has shrunk. For the past two hundred years nation-
states appear to have been searching for the perfect balance of authoritarian
stability and individual freedom to survive as legally recognized sovereign entities.
From the first limitations on absolute monarchs to the constitutional limitations on
the rulers or governors of the nation-state, constitutions have developed to provide
some of this stability and predictability.

The most important role of constitutions is to limit the behavior of government. Constitutions
generate a set of inviolable principles and more specific provisions to which future law and
government activity more generally must conform. This function – which, as if to highlight its
centrality to the concept, is commonly, given the namesake constitutionalism–, is vital to the
functioning of democracy. Without a commitment to higher law, the state operates for the short-
term benefit of those in power or the current majority. Those who find themselves out of power
may find that they are virtually unprotected, which in turn may make them more likely to resort

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to extra-constitutional means of securing power. By limiting the scope of government and pre
committing politicians to respect certain limits, constitutions make government possible.

A second function that constitutions serve is the symbolic one of defining the nation and its
goals. A constitution operates as a device that declares the legitimacy of the perhaps fledgling or
otherwise rudderless state and sets aspirations toward which the polity can set steer. This state
building function of constitutions is particularly important for young states, whose citizens have
strong ethnic or communal identities that may compete with their loyalty to the state. The
constitution functions not so much as a set of rules as an ongoing set of practices that define the
political unit. As Hanna Pitkin (1987: 169) put it, “our constitution is less something we have
than something we are. This sense of ‘constitution,’ then, is activating and empowering, calling
us to our powers as co-founders and to our responsibilities.” It is in this sense that Peter Russell
(1993: ix) worries that Canada – having patched together scraps of laws enacted in coordination
with Great Britain – has fallen short of “constituting itself as a people.”

A third and very practical function of constitutions is that they define patterns of authority and
set up government institutions. Even a dictatorship needs established institutions through which
to govern. Defining institutions allows those in charge to focus on the substance of government
policy, rather than arguing over fundamental rules of the game. This function differs from the
Constitutionalist function of limiting government. Although the mere process of defining an
institution involves some constraints on its behavior, these organizational maps are conceptually
distinct, albeit subtly, from the substantive and entrenched limits on government action
incorporated into the notion of constitutionalism.

Parts of Constitution
Inspiteoftheirhugevariety,mostconstitutionsfallintofourmainparts:
A.
Preamble:Thepreambletendstobeadeclarationaboutnationhoodandhistory,withreferencestoi
mportantnationalevents,symbolsandaspirations. The Preamble, strictly speaking, isnot a
part of the Constitution, but "walks before" [Link] itself alone it can afford no basis for
acclaim either of governmental power or of private right. It serves, nevertheless, two very
important ends: first, it indicates the source from which the Constitution comes, from

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which it derives its claim to obedience, namely, the people of the Ethiopia for instance;
second, it states the great objects which the Constitution and the Government established
by it are expected to promote: national unity, justice, Peace at home and abroad, liberty,
and the general welfare. Hence, the preamble tends to be inspirational rather than legal or
rational. Preambles are not found in all constitutions, but when they tend to contain
hyperbolic language that does little to shed light on the system of government or the
practicality of the constitution itself. However, in the case of some constitutions of
communist countries, the preamble may reveal the motives for the document, which
otherwise bears little resemblance to how the national political power structure actually
operates. A preamble may also provide a clue as to the inspiration and sources of principles
that informed the document’s drafters.

B. Fundamentalrights(BillofRights):Alistofcivilandpoliticalrightsandstatementsaboutthe
limitsofgovernmentpowers. Someconstitutionsreferalsotoeconomic,socialandculturalrights.
Manyofthenewerconstitutionssimplyadoptthe1948UNUniversalDeclarationofHumanRights.
Most written constitutions recite a list of fundamental rights of the country’s citizens or
inhabitants, analogous to the U.S. bill of rights and many also include a list of duties of
their citizens. Key fundamental rights include freedom of the press, religion, association,
assembly, and petition of grievances against government authorities, as well as protections
for private property and persons accused of crimes. But the fact that a right is not expressly
provided for in a constitutional document does not always mean that it is not recognized in
other law or by judicial rulings or tradition.

Some constitutions expressly limit guaranteed fundamental rights. Regardless of whether

such limitations are expressed, how well any guaranteed rights are implemented varies
from country to country. In some extreme cases, violations of human rights in countries
with express constitutional guarantees of fundamental rights are noted in the text. The
absence of such notation, however, is not intended to imply that violations do not occur in a
particular country. A number of nations have incorporated regional, multinational, and
international standards of human, civil, and political rights into their constitutions or laws.
This trend toward international and verifiable standards of human rights provides hope for
real progress in this area, but many countries still have abysmal records with respect to

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human and civil rights.

C. Institutions and offices of government:

Themainstructuresorinstitutionsofgovernmentaredescribed,togetherwiththeirpowersandduti
[Link] this means the executive, legislative and judicial branches of national
government, and sometimes lowers levels of government as well.

D. Amendment:Theprocedurestobefollowedinamendingthe constitution. Under a written

constitution, the constitution will itself define the procedure for amendment and may
provide for varying degrees of ease or difficulty in amendment in relation to particular
rules. For instance, in FDRE constitution case, any proposal for constitutional amendment
is carried out, if supported by 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. The rules
regarded as the most important are characterized by the greatest degree of difficulty in the
process of amendment. Under unwritten constitution, by way of contrast, the manner in
which constitutional change is effected will be dependent not upon clearly defined written
rules but, rather, by accepted constitutional practice which has evolved over time.

Features of constitution

A. Generality: a constitution provides the general principle of a state and carry on

foundation and sets out general framework of the law and the government. As other laws
provide the details of the subject for which they are created, Constitutional principles are
guidelines for others laws. In other words, constitutional law announces principles while
other laws apply or implement what the constitution announce their respective spheres of
fields. It builds substantial foundation and basis and general frame work of the law and
government. All other laws provide the details of the subject which they treat. Of course,
the degree of generality of laws may depend on other factors like hierarchy of laws. But
constitution is always the most general in the sense, short and brief. The general set up of
the government and its functions in all spheres, including political, economic, legal, etc is

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by the constitution. The generality is very important because it give the constitution a
feature of elasticity through interpretation thereby to accommodate various questions.

B. Permanency: unlike laws constitution is made for undefined period of time. That means
constitution serve for a long lap of ages. It is purposely made to be stable and permanent. It
is made to be stable, i.e., not to be worked upon by the temper of the times or to rise or fall
with the occasional events. On the contrary, other laws are tentative, occasional and in the
nature of temporary existence. One of the mechanisms to ensure this permanency is
through constitutional amendment. The constitutions are not intended to be perfect is
evidenced by expressly stated processes for revising or amending them. Constitutional
change by means of an orderly procedure is far preferable to overthrowing a government
by force whenever a country’s constitution has fallen out of favor with a majority of its
people. Judicial interpretation is also another ways of making a given constitution
adaptability. In short, amendment is necessary to offer stability in a country. Thus,
constitutional stability is one of the factors for creating a durable peace in a society.
Unstable constitutional environment mostly indicates a socio-political instability.

When we adopt a constitution, it is better to look the problems that existed in the past and
the likely ones in the future. This gives it stability. For example, the US constitution was
adopted in 1789 with only 26 amendments since then. Yet, there have indeed been many
changes in the subsidiary laws. Even then, it should always be remembered, permanence is
relative.

On the other hand, one can ask why this doesn’t hold true of other countries, say, Ethiopia,
why its subsidiary laws have lived longer than the constitution. This is attributable to the
fact that, firstly, what constitution has do with regulating exercise of political power, the
supremacy aspect. And as such, the different regimes had to get constitutions of their own
reflecting their supremacy. In contrast, the civil code governing the private matters has
remained more or less substantially permanent except in some areas like ownership of land.
The other reason why our constitutions did not stay long at the different eras is that the
people did not participate in the making of the constitutions directly or indirectly that they
have remained contrary to it.

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C. Supremacy: Constitutionsarelawsaboutthepoliticalproceduresto
[Link],takingprecedence
overallothers,[Link]‘
meta-
rules’(rulesabouthowtomakerules),buttheGermanconstitutioncallsthem‘theBasic
Law’. As a mother of law, it is original law by which the system of government is created,
and to which the branches of government must look for all their powers and authority. It is
original because it is directly made by the people as the direct expression of the will of the
people. All other laws are secondary or derivate being commands of representatives of the
sovereign. Because, after all, the direct will of the people outrights the will of any other
single individual. To ensure this supremacy, the constitution needs to have the following:
First and for most, the constitution must have a supremacy clause. All written constitutions
have this clause. This provision commands that individuals, government institutions, and
private institutions must observe the constitution. The second way of adjustment of a
constitution with a changing need of the people is via interpretation. But that must be in
accordance with the procedures established by the constitution. Otherwise the constitution
is at the state of risk. In majority of states, this task is given to the Supreme Court or a
specialized constitutional court. Thus, judicial review should be there, to ensure the
supremacy of the constitution. Finally, in order to make constitution a fundamental law of
the country we need special amending procedures. As mentioned earlier
[Link]
laws,constitutionsusuallystatetheconditionsunderwhichtheconstitutioncanitselfb
[Link]
surethatthechangeisnothastyorundemocratic,andthatithaswidespreadsupport. If
the constitution is amended by those in power, there might be a state of crisis. Thus, the
constitutions must state the amendment procedure clearly; this promotes its supremacy.

Constitutional Theories
A. The ‘old constitutionalism’: The interest of political theorists in constitutions dates
back at least to Aristotle’s famous commentary on the constitution of Athens. In the late
nineteenth and first half of the twentieth century, however, the lead was taken not by political

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theorists but by lawyers and comparative political scientists. Their work was largely legal,
descriptive and historical, and confined to a few western states, especially to the UK, the USA
and France. After the Second World War this style of political science was fiercely
criticisedfor being too descriptive and legalistic rather than analytical, for its failure to theorise
and generalise, for being culture-bound by its narrow western origins and, above all, for its
interest in formal and legal documents rather than ‘going behind the scenes’ to get at the real
stuff of everyday politics. Moreover, constitutions do not always work as they are supposed to.
As a result, many of the constitutions so carefully designed (mainly by constitutional lawyers
for the newly decolonised and independent countries of Africa and Asia) collapsed and gave
way to dictatorship and military government because they were not adapted to social, political
and economic circumstances. The failure of these constitutions made it clear that democracy
rests on more – far more – than constitutional design, no matter how good this may be on
paper. Consequently, when an interest in constitutions was revived in the last quarter of the
twentieth century, it went beyond the ‘old’ institutionalism of legalistic and descriptive studies
of constitutions.

B. The ‘new constitutionalism’: The ‘new constitutionalism’ tried to balance out three main
concerns:

1. The protection of citizen rights and the limitation of government powers – in other words,
the classical concerns of constitutional theory.

2. A concern with balancing the limited powers and maximum accountability of government,
with the need for effective government action in a complex and fast-changing world. It is
argued that constitutions are not abstract designs, but practical machines that need careful
construction and engineering, and then to be judged by how effectively they work in practice.

3. An attempt to adapt the constitutional design of a country to its social and economic
circumstances. It was realised that there is no single constitutional design that is best, but a
variety of models to suit different conditions. Constitutional theory tried to solve the problem
of how stable democracies could be established in previously undemocratic countries,
especially in countries divided by ethnic, religious, linguistic and cultural cleavages. In central
and eastern Europe, civil society theorists argued that it was vital that constitutions

11 | P a g e
guaranteed the rights of citizen organisations, and their independence from government.
ethnically mixed societies, it was argued, needed a form of ‘consensus’ democracy that
protected the rights of minorities and gave them effective power to participate in government.

Legitimacy

Whether a particular state has authority or not, in the sense that people obey its laws, we can ask
whether it has legitimacy. The term legitimate comes from the Latin for ‘lawful’. In the most
basic sense, a state is legitimate if it exists and operates according to the law. But this definition
is too shallow: if a country has no laws about how a government can come to power, then no
matter how the government came to power, it will be legitimate. Or again, if a government is
elected lawfully, but then changes the laws to create a police state ruled by a dictatorship, the
dictatorship will be legitimate. But this is not what we mean by a legitimate government.
However, legitimacy can be understood in the following ways.

Theproblemoflegitimacy,whichiscentralinpolitics,isnottheexclusivepropertyofanyonedi
[Link] and political science, law,
sociology,andpoliticalanthropologyhaveallmadeofitaprivilegedobject ofresearch.
Theideaoflegitimacyconcernsfirstandforemosttheright togovern.
Legitimacyisthereforecognitionoftherighttogovern. The most common requirements
are democratic and constitutional rule, where the exercise of authority is bound by law
that enjoys some form of popular sanction, but other options are possible.

Regarding the relationship between political legitimacy and democracy, the first thing that
needs to be acknowledged is that most of the essential features of democratic systems (e.g., the
recognition of all citizens as political equals and the right of the citizens to self-rule mainly
through the election of their rulers) make this relationship very complex and extremely
significant. Furthermore, given the current worldwide legitimacy of democracy as a form of
political regime and the spread of representative governments around the world in the last few
years—on the one hand—and the seeming contradiction between this and an apparent crisis of
democratic legitimacy both in established and new democracies—on the other—, it is critical to
consider some of the most important issues and trends regarding the relationship between
democracy and legitimacy.

12 | P a g e
Democratic legitimacy has very frequently been defined as citizen orientations toward the main
principles of the political regime or the entire political system (i.e., democracy and not a
particular administration, needs to be perceived as the best form of government or at least as the
least evil). The main problem with this definition is that it does not recognize that other objects
of political legitimacy can be equally significant for the functioning and prospects of a
democratic regime. For example, it is clear that a persistent negative perception of the
performance of democratic authorities and institutions can erode the legitimacy of democracy as
a form of government. Fortunately, in the last few years it has become more common to assume
that democratic legitimacy or support for democracy is a multidimensional phenomenon.
Extensive empirical research found that there are at least five important dimensions of political
legitimacy that are relevant for the stability and effectiveness of democratic regimes: (1) support
for the political community; (2) support for the core regime principles, norms, and procedures;
(3) assessment of the regime performance; (4) support for the regime institutions; and (5)
support for the authorities.

Tojustifypowerandobediencesimultaneouslyisthefirstissueinvolved
[Link] twofold
demonstrationdependboththerighttogovernandwhatresultstherefrom,politicalobligatio
[Link],ithastofulfillatleastthree
complementaryconditionsthathavetodowiththedomainsofconsent,
law,andnorms,thesebeinginrealityin [Link] these three notions
will allow one to see in what way they areconstitutive of legitimacy.

Constitutionalism and consent

Liberal democracy is often portrayed as the only stable and enduringly successful form
of government. Its virtue, its supporters argue, is that it contains the means of its own
preservation: it is able to guarantee continued legitimacy by ensuring that government
power is not unchecked or arbitrary but is, rather, exercised in accordance with the
wishes, preferences and interests of the general public. This is achieved through two
principal devices. In the first place, such regimes operate within certain ‘rules of power’,
taking the form of some kind of constitution. These supposedly ensure that individual
liberty is protected and government power is constrained. Second, liberal democracies

13 | P a g e
provide a basis for popular consent in the form of regular, open and competitive
elections. From this point of view, legitimacy is founded upon the willing and rational
obedience of the governed; government is rightful only so long as it responds to popular
pressure.

Constitutions confer legitimacy upon a regime by making government a rule bound

activity. Constitutional governments therefore exercise legal rational authority; their
powers are authorized by constitutional law. Historically, the demand for constitutional
government arose when the earlier claim that legitimacy was based upon the will of God
– the Divine Right of Kings – was called into question. However, the mere existence of
a constitution does not in itself ensure that government power is rightfully exercised. In
other words, constitutions do not merely confer legitimacy; they are themselves bodies
of rules which are subject to questions of legitimacy. In reality, a constitution confers
legitimacy only when its principles reflect values and beliefs which are widely held in
society. Government power is therefore legitimate if it is exercised in accordance with
rules that are reasonable and acceptable in the eyes of the governed. For instance,
despite the enactment of four successive constitutions – in 1918, 1924, 1936 and 1977 –
the Soviet Union strove with limited success to achieve legitimacy. This occurred both
because many of the provisions of the constitution, notably those stipulating individual
rights, were never respected, and because major principles like the Communist Party’s
monopoly of power simply did not correspond with the values and aspirations of the
mass of the Soviet people.

Conformity to accepted rules may be a necessary condition for legitimacy, but it is not a
sufficient one. Constitutional governments may nevertheless fail to establish legitimacy
if they do not, in some way, ensure that government rests upon the consent or agreement
of the people. The idea of consent arose out of social contract theory and the belief that
government had somehow arisen out of a voluntary agreement undertaken by free
individuals. John Locke, for instance, was perfectly aware that government had not in
practice developed out of a social contract, but argued, rather, that citizens ought to
behave as if it had. He therefore developed the notion of ‘tacit consent’, an implied
agreement among citizens to obey the law and respect government. However, for

14 | P a g e
consent to confer legitimacy upon a regime it must take the form not of an implied
agreement but of voluntary and active participation in the political life of the
community. Political participation is thus the active expression of consent.

Many forms of political rule have sought legitimacy through encouraging expressions of
popular consent. This applies even in the case of fascist dictatorships like Mussolini’s
Italy and Hitler’s Germany, where considerable effort was put into mobilizing mass
support for the regime by plebiscites, rallies, marches, demonstrations and so on. The
most common way in which popular consent can be demonstrated, however, is through
elections. Even one-party states, such as orthodox communist regimes, have found it
desirable to maintain elections in the hope of generating legitimacy. As these were
single-party and single-candidate elections, however, their significance was limited to
their propaganda value. Quite simply, voters rarely regard non-competitive elections as
a meaningful form of political participation or as an opportunity to express willing
consent. By contrast, open and competitive electoral systems, typically found in liberal
democracies, offer citizens a meaningful choice, and so give them the power to remove
politicians and parties that are thought to have failed. In such circumstances, the act of
voting is a genuine expression of active consent. From this perspective, liberal-
democratic regimes can be said to maintain legitimacy through their willingness to share
power with the general public.

Power and Authority

Power and authority are mutually exclusive notions, but ones that are often difficult
in practice to disentangle. Authority can best be understood as a means of gaining
compliance which avoids both persuasion and rational argument, on the one hand,
and any form of pressure or coercion on the other. Persuasion is an effective and
widely used means of influencing the behaviour of another, but, strictly speaking, it
does not involve the exercise of authority. Much of electoral politics amounts to an
exercise in persuasion: political parties campaign, advertise, organize meetings and
rallies, all in the hope of influencing voters on Election Day. Persuasion invariably
involves one of two forms of influence: it either takes the form of rational argument
and attempts to show that a particular set of policies ‘make sense’, or it appeals to

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self-interest and tries to demonstrate that voters will be ‘better off’ under one party
rather than another. In both cases, the elector’s decision about how to vote is
contingent upon the issues that competing parties address, the arguments they put
forward and the way they are able to put them across. Quite simply, parties at
election time are not exercising authority since voters need to be persuaded. Because
it is based upon the acknowledgement of a ‘duty to obey’, the exercise of authority
should be reflected in automatic and unquestioning obedience. In this case, political
parties can only be said to exercise authority over their most loyal and obedient
supporters – those who need no persuasion.

In Weberian sense, authority can be distinguished from the various manifestations of

power. If authority involves the right to influence others, while power refers to the
ability to do so, the exercise of power always draws upon some kind of resources. In
other words, power involves the ability to either reward or punish another. This
applies whether power takes the form of pressure, intimidation, coercion or violence.
Unlike rational argument or persuasion, pressure is reflected in the use of rewards
and punishments, but ones that stop short of open coercion. This can be seen, for
instance, in the activities of so-called pressure groups. Although pressure groups may
seek to influence the political process through persuasion and argument, they also
exercise power by, for example, making financial contributions to political parties or
candidates, threatening strike action, holding marches and demonstrations and so on.
Intimidation, coercion and violence contrast still more starkly with authority. Since it
is based upon the threat or exercise of force, coercion can be regarded as the
antithesis of authority. When government exercises authority, its citizens obey the
law peacefully and willingly; when obedience is not willingly offered, government is
forced to compel it.

Nevertheless, although the concepts of power and authority can be distinguished

analytically, the exercise of power and the exercise of authority often overlap.
Authority is seldom exercised in the absence of power; and power usually involves
the operation of at least a limited form of authority. For example, political leadership
almost always calls for a blend of authority and power. A prime minister or president

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may, for instance, enjoy support from cabinet colleagues out of a sense of party
loyalty, because of respect for the office held, or in recognition of the leader’s
personal achievements or qualities. In such cases, the prime minister or president
concerned is exercising authority rather than power. However, political leadership
never rests upon authority alone. The support which a prime minister or president
receives also reflects the power they command – exercised, for example, in their
ability to reward colleagues by promoting them or to punish colleagues by sacking
them. The obligation to live peacefully and within the law would perhaps be
meaningless if law was not backed up by the machinery of coercion, a police force,
court system, prison service and so forth.

It is clear that authority is very rarely exercised in the absence of power. The UK
monarchy is sometimes presented as an example of authority without power. Its
remaining powers are either, like the ability to veto legislation, never used, or they
are exercised by others, as in the case of the appointment of ministers and the signing
of treaties. Nevertheless, the British monarchy is perhaps best thought of not as an
example of authority without power but rather as an institution that no longer
possesses any significant authority. The royal prerogative, the monarchy’s right to
rule, has largely been transferred to ministers accountable to Parliament. In the
absence of both power and significant authority, the monarchy has become a mere
figurehead, little more than a symbol of constitutional authority. Examples of power
being exercised without authority are no more easy to identify. Power without
authority suggests the maintenance of political rule entirely through a system of
intimidation, coercion and violence. Even in the case of totalitarian dictatorships like
those of Hitler, Pol Pot or Saddam Hussein, some measure of authority was exerted,
at least over those citizens who were ideologically committed to the regime or who
were under the spell of its charismatic leader. The clearest case of power without
authority is perhaps a military coup – although even here the successful exercise of
power depends upon a structure of authority persisting within the military itself.

Kinds of authority
Traditional authority: Weber suggested that in traditional societies authority is

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based upon respect for long-established customs and traditions. In effect, traditional
authority is regarded as legitimate because it has ‘always existed’ and was accepted
by earlier generations. This form of authority is therefore sanctified by history and is
based upon ‘immemorial custom’. In practice, it tends to operate through a
hierarchical system which allocates to each person within the society a particular
status. However, the ‘status’ of a person, unlike modern posts or offices, is not
precisely defined and so grants those in authority what Weber referred to as a sphere
of ‘free grace’. Such authority is nevertheless constrained by a body of concrete
rules, fixed and unquestioned customs that do not need to be justified because they
reflect the way things always have been. The most obvious examples of traditional
authority are found amongst tribes or small groups, in the form of ‘patriarchalism’ –
the domination of the father within the familyor the ‘master’ over his servants – and
‘gerontocracy’ – the rule of the aged,normally reflected in the authority of village
‘elders’. Traditional authorityis thus closely tied up with hereditary systems of power
and privilege. Fewexamples of traditional authority have survived in modern
industrialsocieties, both because the impact of tradition has diminished with
theenormous increase in the pace of social change, and because it is difficult tosquare
the idea of hereditary status with modern principles like democraticgovernment and
equal opportunities. Nevertheless, vestiges of traditionalauthority can be found in the
survival of the institution of monarchy, evenin advanced industrial societies such as
the UK, Belgium, the Netherlandsand Spain.

Charismatic authority: This form of authority is based entirely upon the power of
an individual’s personality, his or her ‘charisma’. The word itself is derived from
Christianity and refers to divinely bestowed power, a ‘gift of grace’, reflected in the
power which Jesus exerted over his disciples. Charismatic authority owes nothing to
a person’s status, social position or office, and everything to his or her personal
qualities and, in particular, the ability to make a direct and personal appeal to others.
This form of authority must always have operated in political life because all forms
of leadership require the ability to communicate and the capacity to inspire loyalty.
In some cases, political leadership is constructed almost entirely on the basis of
charismatic authority, as in the case of fascist leaders such as Mussolini and Hitler,
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who, in portraying themselves as ‘The Leader’, deliberately sought to achieve
unrestricted power by emancipating themselves from any constitutionally defined
notion of leadership. It would be a mistake, nevertheless, to think of charismatic
authority simply as a gift or natural propensity. Political leaders often try to
‘manufacture’ charisma, either by cultivating their media image and sharpening their
oratorical skills or, in cases such as Mussolini, Stalin, Hitler and Mao Zedong, by
orchestrating an elaborate ‘cult of personality’ through the control of a propaganda
machine.

Whether natural or manufactured, charismatic authority is often looked upon with

suspicion. This reflects the belief that it is invariably linked to authoritarianism, the
demand for unquestioning obedience, the impositions of authority regardless of
consent. Since it is based upon personality rather than status or office, charismatic
authority is not confined by any rules or procedures and may thus create the specter
of ‘total power’. Furthermore, charismatic authority demands from its followers not
only willing obedience but also discipleship, even devotion. Ultimately, the
charismatic leader is obeyed because submission carries with it the prospect that
one’s life can be transformed. Charismatic authority has frequently therefore had an
intense, messianic quality; leaders such as Napoleon, Hitler and Stalin each presented
themselves as a ‘messiah’ come to save, liberate or otherwise transform his country.
This form of authority may be less crucial in liberal democratic regimes where the
limits of leadership are constitutionally defined, but is nevertheless still significant. It
is important to remember, moreover, that charismatic qualities are not only evident in
the assertive and, at times, abrasive leadership of Margaret Thatcher or Charles de
Gaulle, but also in the more modest, but no less effective, ‘fireside chats’ of F.D.
Roosevelt and the practised televisual skills of almost all modern leaders.

Legal rational authority: This was the most important kind of authority since, in
Weber’s view; it had almost entirely displaced traditional authority and become the
dominant mode of organisation within modern industrial societies. In particular,
Weber suggested that legal-rational authority was characteristic of the large-scale,
bureaucratic organizations that had come to dominate modern society. Legal-rational

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authority operates through the existence of a body of clearly defined rules; in effect,
legal-rational authority attaches entirely to the office and its formal ‘powers’, and not
to the office-holder. As such, legal-rational authority is clearly distinct from any
form of charismatic authority; but it is also very different from traditional authority,
based as it is upon a clearly defined bureaucratic role rather than the broader notion
of status.

Legal-rational authority arises out of respect for the ‘rule of law’, in that power is
always clearly and legally defined, ensuring that those who exercise power do so
within a framework of law. Modern government, for instance, can be said to operate
very largely on the basis of legalrational authority. The power which a president,
prime minister or other government officer is able to exercise is determined in almost
all circumstances by formal, constitutional rules, which constrain or limit what an
office-holder is able to do. From Weber’s point of view, this form of authority is
certainly to be preferred to either traditional or charismatic authority. In the first
place, in clearly defining the realm of authority and attaching it to an office rather
than a person, bureaucratic authority is less likely to be abused or give rise to
injustice. In addition, bureaucratic order is shaped, Weber believed, by the need for
efficiency and a rational division of labour. In his view, the bureaucratic order that
dominates modern society is supremely efficient. Yet he also recognized a darker
side to the onward march of bureaucratic authority. The price of greater efficiency,
he feared, was a more depersonalized and inhuman social environment, typified by
the relentless spread of bureaucratic forms of organization.

An alternative means of identifying kinds of authority is the distinction between de

jure authority (authority in law), and de facto authority (authority in practice). De
jure authority operates according to a set of procedures or rules which designate who
possesses authority, and over what issues. For example, anyone described as being
‘in authority’ can be said to possess de jure authority: their ‘powers’ can be traced
back to a particular office. In that sense, both traditional and legal-rational authority,
as defined by Weber, are forms of de jure authority. There are occasions, however,
when authority is undoubtedly exercised but cannot be traced back to a set of

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procedural rules; this type of authority can be Called de facto authority. Being ‘an
authority’, for example, may be based upon expertise in a definable area but it cannot
be said to be based upon a set of authorising rules. This would also apply, for
instance, in the case of a passer-by who spontaneously takes charge at the scene of a
road accident, directing traffic and issuing instructions, but without having any
official authorization to do so. The person concerned would be exercising de facto
authority without possessing any legal right or de jure authority. All forms of
charismatic authority are of this kind. They amount to de facto authority in that they
are based entirely upon an individual’s personality and do not in any sense refer to a
set of external rules.

The concept Constitutionalism

Despite some basic agreements, the two theories – i.e. democracy and constitutionalism differ
significantly. Constitutionalists tend to be more pessimistic about human nature, fearing that
people are sufficiently clever to oppress without hurting themselves. Constitutional theorists do
not deny the importance of institutional checks but see those as insufficient. They are constantly
concerned with the human propensity to act selfishly and abuse power. Instead of taking the
[presumed/pre-supposed] element of human innate behavior as yardstick in the determination of
the qualities of democracy, it is much better to characterize democracy as a system in a large
array of political culture, as modeled by the developers at the beginning of this Chapter.
Constitutionalism, too, is a political system. If it presupposes the existence of some sort of
constitution at all, then it must be in the sense where constitution is taken as a political
institution. In either of its aspects, the concept of constitutionalism must first be dealt with before
one does that to the constitution.

To delineate constitutionalism, one has to recognize that it has two connotations, closely
connected, though. In one of its senses it indicates the striving of codification of the organization
of state and power. On the other hand, constitutionalism may refer equally as well to the ideals,
particularly political ideals regarding the organization of the state. The first sense inclines more
to the organization of the state and functions by legal means, which is the essence of constitution.

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The second pertains to Political Science; one of its achievements or end products is democracy,
which is majoritarianism.

Democracy is taken as essentially referring to being governed by duly elected representatives, of

which the group which won the majority becomes the ruling party, and wherein decisions are
normally made by majority vote. Does Rule by Majority guarantee the security and wellbeing of
minorities and that of the individual? is the question that democracy and theories of democracy
have not yet fully answered. The whole question seems to revolve around putting-up of restraint
on governmental actions. The restraints may aim at protecting the individual’s or group rights
and freedoms against governmental interference. This is the substantive and actually the
substantial aspect of constitutionalism. In contradistinction to this, the formal constraints pertain
to the organizational aspects of constitutionalism.

Constitutionalism, therefore, pertains to two kinds of relationships. The relationship between

government and nationals/citizens, residents/ is the first category – the substantive. The second
(the formal) refers to the appraisal of one branch of government vis-à-vis the other; and to their
inter-relationship. It is these two aspects of constitutionalism which are the quit-essentials of a
constitution, be that written, rigid, flexible, etc…

In generally, Constitutionalism is the doctrine which governs the legitimacy of

government action. By constitutionalism is meant – in relation to constitutions written
and unwritten – conformity with the broad philosophical values within a state.
Constitutionalism implies something far more important than the idea of ‘legality’
which requires official conduct to be in accordance with pre-fixed legal rules. A
power may be exercised on legal authority; however, that fact is not necessarily
determinative of whether or not the action was ‘constitutional’. Constitutionalism
enshrines respect for human worth and dignity as its central principle, too. To protect that
value, citizens must have a right to political participation, and their government must be
hedged in by substantive limits on what it can do, even when perfectly mirroring the popular
will. What constitutionalism insists on is having limited government. Predictability of
governmental actions is also a characteristic feature of its typology. Its opposite is
capriciousness or unpredictability – the hall-mark of tyranny. Hence, the 1 st paragraph above

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postulates democracy as majoritarian politics, whereas the 2nd paragraph relates to counter-
majoritarianism.

The doctrine of constitutionalism suggests, at least, the following:

(a) That the exercise of power be within the legal limits conferred by parliament on
those with power – the concept of intra vires– and that those who exercise power are
accountable to law;
(b) The exercise of power – irrespective of legal authority – must conform to the
notion of respect for the individual and the individual citizen’s rights;
(c) That the powers conferred on institutions within a state – whether legislative,
executive or judicial – be sufficiently dispersed between the various institutions so as
to avoid the abuse of power; and
(d) That the government, in formulating policy, and the legislature, in legitimating
that policy, are accountable to the electorate on whose trust power is held.

Constitutional Endurance

A constitution will be maintained only if it makes sense to those who live under its dictates, so a
crucial quality of any successful constitution is that it be self-enforcing. This means that those
within the constitutional bargain must have a stake in the successful implementation of the
document for it to endure. Even though constitutional bargains may have relative winners and
relative losers, they will endure to the extent that parties believe they are better off within the
current constitutional bargain than in taking a chance on, and expending resources in, negotiating
a new one.

The model of endurance also imagines that a political bargain, once adopted, will be stable so
long as it is not subject to either endogenous or exogenous shocks, such as financial crises,
armed conflict, or the death of a long-serving leader. Such shocks change the calculus of costs
and benefits for parties considering whether to remain in the constitutional bargain. In the real
world, however, such shocks are endemic: currencies plunge, invasions occur, and new
technologies are invented that empower some actors, but weaken others. The question then
becomes whether there are any features of the constitution that can render it more resilient in the

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face of shifting conditions. These three features, we believe, are crucial for facilitating
constitutional endurance. Flexibility represents the constitution’s ability to adjust to changing
circumstances, and is captured in the empirical analysis by the ease of formal and informal
amendment. Constitutions can be changed through both formal processes as well as
interpretative changes that update the understanding of the text among relevant actors. Inclusion
captures the degree to which the constitution includes relevant social and political actors, both at
the time of drafting and thereafter. Inclusion facilitates both enforcement of the constitution as
well as investment in its endurance. Specificity refers to the breadth of coverage and level of
detail of constitutional provisions. It is detailed documents may be more enduring than general
framework documents so celebrated in American constitutional thought.

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CHAPTER TWO: HORIZONTAL DIVISION OF POWER

Legislature

The term legislature derives from the Latin words ‘legis’ (law) and ‘latio’
(bringing). Legislatures evolved from the assemblies that medieval monarchs called to agree to
some royal action – to levy taxes or wage war. These assemblies started meeting regularly, and
eventually came to be elected by all citizens of the state and so they acquired legitimacy as
representative parliaments or assemblies. Technically, a legislature is any law-making body,
however constituted, but in a democracy the legislature gets its legitimacy from the fact that it is
directly and popularly elected by citizens. Legislatures are known by a variety of names –
assemblies, parliaments, houses and chambers – but all amount to much the same thing:
assemblies are meetings of elected representatives who meet to discuss public affairs;
parliaments are ‘talking shops’; houses and chambers are the places where assemblies and
parliaments meet – the House of Commons, the House of Representatives, the Chamber of
deputies.

Legislatures may be formed by one (unicameral) or two (bicameral) houses.

If we remember that democratic government is already divided between three main branches,
one might well ask why the legislative body should be further divided into two chambers.
Indeed, two chambers may only complicate matters:

a. Which of the two is to be the stronger and have the last word if they
disagree?
b. If the fist is elected in a democratic fashion, how is the second to be constituted, and if it
is also elected won’t it inevitably clash with the first?

For these reasons, there is a great debate about whether unilateralism is

better than bicameralism, but it turns out that most democracies are bicameral. This is because it

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is usually not too difficult to sort out a system that enables two houses to work together
effectively. Whatever the abstract and theoretical problems may be, it is generally possible to
solve them in a practical way.

The FDRE constitution fulfills the minimum requirement of having a second chamber but with a
totally different function. Article 53 states that there shall be two federal houses named the house
of people’s Representative (HPR) and the House of Federation (HF). In contrast with the
principles explained earlier and experience of well-functioning federal countries, the upper house
or House of Federation has no legislative power. In this case, we might ask ourselves if there is a
concept of upper or lower house in Ethiopia.

A. The House of Peoples’ Representatives

The highest authority of the Federal Government rests with the House of Peoples’
Representatives. The House of Peoples’ Representatives is an institution whose members are
elected for a five-year term on the basis of universal suffrage and by direct, free, and fair
elections through secret ballot. Each member state is divided in to electoral districts, and
members are elected by a plurality of the vote race.

The House of Peoples’ Representatives plays many important roles. Its functions encompass the
legislative, financial, deliberative, informative, and representative areas. Among these, the most
important function of the House is the process of law making, that it is entitled to issue laws.
With respect to it’s, ‘power to legislate,’ the constitution provides that all matters assigned to
Federal jurisdiction fall within the competence of the House of Peoples’ Representatives. Federal
jurisdiction is exhaustively enumerated in twenty-one provisions under Article 51 of the
constitution. From the protection and defense of the constitution, through policy formulation in
political, economic, and social spheres to more specific areas such as control of firearms, the
patenting of inventions or the protection of copyrights, and the establishment of uniform
standards of measurement and calendar is carefully defined. The reasons for such careful
enumeration of the processes and functions of the Federal Government is, of course, because of
the juxta positioning of the powers and functions of the member states, which are enumerated in
Article 52.

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Beyond the careful delimitation of federal jurisdiction and hence the broad legislative
competence of the House of Peoples’ Representatives, the constitution mandates it to ‘enact
specific laws’ on a number of vital areas such as the utilization of land, natural resources, and
interstate lakes and rivers; interstate and foreign commerce; interstate roads postal and
telecommunication services; enforcement of constitutionally established political rights;
nationality, asylum, and other specific issues. The issuance of major codes such as a labor code,
a commercial code, a penal code, and civil laws are also specifically provided by the
constitution. The House of Peoples’ Representatives is also specifically mandated to decide on
the organization of national defense, public security, and national police force, as well as the
proclamation of a state of emergency or a state of war pursuant to decisions made by the council
of Ministers. The ratification of international agreements entered into by the executive is also
specifically within its mandate.

The approval of economic, social and development polices and strategies as well as the fiscal and
monetary policy of the country, including legislation on the National Bank and foreign and on
local currency, is particularly vested into the power of the House of Peoples’ Representatives. So
is the ratification of the budget of the Federal Government and the levying of taxes and duties on
revenue sources reserved to the Federal Government Specifically provided for.

With respect to the administration of justice, the approval of the appointment of federal judges,
the establishment of Human Rights commission and the institution of the Ombudsman, as well as
the determination of their powers and function are expressly provided for House of Peoples’
Representatives. The inability of state authorities to arrest violations of human rights is
considered so grave a matter, and rightly so, that the House of peoples’ representatives may
initiate a joint deliberative session with the House of Federation through which appropriate
decisions are then made and directives passed to the concerned state council. The House of
Peoples’ Representatives is also specifically provided with the questioning power; that is, having
approved the appointment of members of the executive, it has the power to call and question the
Prime Minister and other Federal officials. Its questioning power is unambiguously stated to
include the power ‘to investigate the Executives’ discharge of its responsibilities.’ Beyond the
questioning power, the House of Peoples’ Representatives, at the request of one-third of its
members, may discuss any matter pertaining to the powers of the Executive and take the

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necessary decisions and measures. The same with other parliaments of other countries, the House
of Peoples’ Representatives has also the mandate to establish standing and ad hoc committee to
accomplish it work. And according, it has already established nine standing committees on the
economy, the budget, the social affairs, defense, foreign affairs, administration, law, culture, and
communication as well as women’s affairs.

B. House of Federation

The power and responsibilities of the House of Federation according the constitution and the
proclamation consolidation the powers and responsibilities of the House of Federation are to:
 Interpret the Constitution;
 Organize the Council of Constitutional Inquiry;
 Decide, in accordance with the Constitution, on issues relating to the rights of
Nations, Nationalities and peoples to self-determination, including the right to
secession;
 Promote the equality of the peoples of Ethiopia enshrined in the Constitution, and
promote and consolidate their unity based on their mutual consent.
 Strive to find solutions to disputes or misunderstandings that may arise between
states;
 Determine the division of revenues derived from joint federal and State tax sources,
and the subsidies that the Federal government may provide to the States;
 Determine civil matters which require the enactment of laws by the house of
peoples’ Representatives.
 Order the federal Government to intervene if any state threatens the Constitutional
order in violation of the Constitution;
 Determine on the draft proposal of electoral constituencies submitted by the National
Election board based on Article 103/5/ of the Constitution;
 Determine jointly with the house of peoples’ Representatives the power of taxation
on revenue sources, in accordance with Article 99 of the Constitution, of which
neither the Federal nor the State governments have responsibility
 Elect the president of the country in a joint session with the House of peoples’
Representatives in accordance with Article 70/2/ of the constitution.

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  Participate in the process of the Constitutional amendment as stipulated in sub-
Article (I) and (2) of Article 105 of the Constitution:
 In collaboration with others, offer education and training, and whenever necessary,
carry out research in matters pertaining to its responsibilities
 Establish permanent and ad hoc committees of the House;
 Elect the speaker and Deputy Speaker of the house\

In a democracy citizens enjoy a right to vote on an equal basis. However, in a federation,

representation of regions in upper chambers is equally important and might contravene equality
principle. Bicameralism requires a second chamber that is dissimilar in terms of its composition
compared to the first chamber. Is the overrepresentation to certain minorities or smaller states is
a basic characteristic of upper houses in federations. It is a guarantee against the tyranny of the
majority in the lower houses.

However, The Ethiopian House of Federation seems to ignore this basic principle of upper
chambers applicable in worldwide federations. The constitution states that “Each Nation,
Nationality and people shall be represented in the House of the Federation by at least one
member. Each Nation or Nationality shall be represented by one additional representative for
each one million of its population. The first part of this provision seems in line with the principle
discussed earlier. As each nation nationality is a building block of the federation, they need to be
represented in the HF. The representation of one million persons by one person is undermining
the chance of the minorities to influence the upper house and they are submitted to the majority
as in lower houses. The House of Federation composition is closer to the proportionality
principle which is a main characteristic of lower houses. The organizational principle of the HF
is almost the same as HPR except that there is a significant difference in the number of
constituencies, 100.000 for the HPR and 1 million for the HF.

It may be argued here that the role that the second chamber plays can be achieved otherwise. For
instance, by taking into account regional interests in the composition of the federal cabinet,
executive level co-operations between the federal government and the states or by introduction
of proportionality in elections. But none of these elements are constitutionally guaranteed. There
is a trend to reflect regional interests in the cabinet formation, but it is far from formal. Besides,

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 there is ample historical record of minorities’ marginalization from political power and it needs
more constitutional guarantee if it is intended to replace the role of the second [Link]
territorial units have neither the minimum participatory role nor the even greater functions
assigned to upper chambers. The gist of the argument is therefore that the Ethiopian Constitution
needs to be reconsidered seriously to empower the HoF to be part of the federal law-making
process. There are three reasons for this assertion. Primarily, cursory reading of Ethiopian history
proves that one of the perennial tensions has been the strife for power between centripetal and
centrifugal forces, the latter constantly urging for local empowerment and for a certain role at the
center, at times claiming the throne itself. The present arrangement addresses the problem of
local empowerment, but fails to incorporate the states in the law making process at the center.
There is good reason to argue that power is still centralized in as far as the federal government
does not allow the states to participate in those powers reserved to it.

Secondly, because the states are organized on a purely linguistic basis, there is an immense
disparity among them in terms of population and geographic size, resources, administrative
capacity and other elements of diversity. The power to legislate on federal matters is left to the
exclusive authority of the HoPR organized on a proportionality basis. As a result, the existing
glaring political asymmetry among states is constitutionally further reinforced at the center. There
is no mechanism for the smaller states to check the decisions of the HoPR. It is completely in the
hands of the largely populated states. The very constitution, which aims to protect the nations,
nationalities and peoples, betrays them by leaving their destiny in the hands of the more populous
nationalities.

Thirdly, both the federal principle, in the sense of requiring the incorporation of the states in the
federal law-making process and federal practice, at least the second chambers included in this
study, support the case for a second chamber that has a role in law-making. Despite the common
rationale for having second chambers, however, there are significant variations in the manner of
composition, election/appointment and more importantly in their role.

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Table 1.1 Composition of the House of federation
Regions Total number of Represented ethnic No. of representatives
representative diversities for the major ethnic
groups in the region
Tigray 6 3 Tigre 4
Afar 2 2 Afar 2
Amhara 17 5 Amhara 13
Oromia 16 1 Oromia
Somali 4 1 Somali
Benishnagulgumuz 4 4
SNNPR 54 46
Gambela 4 4
Harari 1 1 Harari
Addis Ababa - -
Dire Dawa - -

As shown in the above table, the Ethiopian house of federation did not accommodate such
persons of exceptional talent. Despite the representative of nation’s nationalities and peoples,
these distinguished personalities are well informed and more mature; the debates may bring to
light defects in the legislations. Moreover, since the residents of the capital city Addis Ababa and
free city Dire Dawa have no representative in the House, the researcher suggests few seats
should be allocated to these men on behalf of them. As the British, Italian and Indian experience,
the president should be given the discretion to nominate the “brain stores” of the country.

In tenure system, if we examine the Ethiopian constitution House of Federation like the house of
people’s Representative is dissolved every five years. Furthermore, the election year for both the
HPR and HF is congruent. As type of government is parliamentary democracy, the executive will
also leave office and the ceremonial president is the only individual holding office between
parliamentary elections. This clearly creates a power vacuum which could be a bodied if the

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terms of the HF and HPR are separated and the HF made a permanent institution which is not
subject to total dissolution.

Executive: The branch of government mainly responsible for initiating government action,
making and implementing public policy, and coordinating the activities of the state. Most large
organizations have a person, or small group, to take final decisions, decide policies and take
ultimate responsibility. Businesses have company chairmen and chief executive officers (CeOs).
Governments have political executives (from the Latin term ‘to carry out’) who do the same job,
and who are usually known as presidents or prime ministers – President Obama of the
USA, Prime Minister Haile Mariam of Ethiopia, Chancellor Merkel of Germany, Prime
Minister Singh of India, President Bachelet of Chile, President Khama of Botswana and so on.

1. Decision-making: initiating government action and formulating public

policy
2. Implementation: executives implement (apply) their policies, which means
they must also run the main departments and bureaucracies of state.

3. Coordination: coordination and integration of the complex affairs of

state.

In most modern democracies the executive officer is called a president or

prime minister. But, to complicate matters, presidents are not always political executives. For
example, both the USA and Germany have presidents, but they do entirely different jobs. In
America, the elected president is both the head of government and the head of state, which is an
enormously powerful and important position, but the German president is only the head of state
and a largely ceremonial figure that is, in some respects, rather like a constitutional monarch. In
what follows we are concerned mainly with the politically powerful presidents who, as both
heads of state and government, are significant political figures, not ceremonial ones.

i. Presidential systems: Presidential systemsa directly elected executive, with a limited term of
office and a general responsibility for the affairs of state. A great many presidential systems are
modeled on the USA, and they reproduce many features of the American system, though not in
every detail. The president, alone among all the officials of state, has general

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responsibility for public affairs. He or she may appoint ministers or cabinet members, but they
are responsible only for their own department business, and they are accountable to the president,
not the legislature. To ensure areal separation of powers neither the president nor members of the
cabinet can be members of the legislature. Presidential government is marked by four main
features:

1. Head of state and government: Presidents perform the ceremonial duties of head of state
and are also in charge of the executive branch of government: they are usually chief of
the armed forces and head of the national civil service, and responsible for both foreign
policy and for initiating domestic legislation.

2. The execution of policy: Presidents appoints cabinets to advise them and run the main
state bureaucracies.

3. Dependence on the legislative branch: Presidents initiate legislation but depend on the
legislature to pass it into law.

4. Fixed tenure: Presidents are directly elected for a fixed term and are normally secure in
office unless, in exceptional circumstances, they are removed from it by the legislature.

The separation of executive and legislative, each with its independent authority derived from
popular election, is a deliberate part of the system of checks and balances. In theory both have
powers and are independent of each other, but in practice presidents and assemblies usually have
to share power. They must cooperate to get things done, and the result is not so much a
separation of powers as a complex mix of them, consisting of a separation of institutions but a
mix of powers in the daily give-and-take of their political relations.

The president is not accountable to the legislature. Instead, he is accountable to the constitution.
Presidential governments make no distinction between the positions of head of state and head of
government both of which are confided in the person of the president.

Merits and Demerits

(i) Merits

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The first advantage of presidential government is the fact that the executive is stable by virtue of
a fixed term. Since the existence of the executive does not depend on parliamentary whim, it is
more stable than a prime minister (in parliamentary form of government) who can be dismissed
at any time.

As the president is directly chosen by the people, it is argued by the supporters of this system
that there is a high tendency for the system to be more democratic than a leadership chosen by a
legislative body, even if the legislative body was itself elected, to rule.

By way of making more than one electoral choice, voters in presidential system can more
accurately indicate their policy preferences. In the United States, for instance, some political
Scientists interpret the late cold war tendency to elect a Democratic Congress and a Republican
President as the choice for a Republican foreign policy and a Democratic domestic policy.

The existence of separation of powers is another advantage of this system. The fact that a
presidential system separates the executive from the legislature is sometimes considered as an
advantage, in that each branch may scrutinize the actions of the other.

The other advantage of this system is that the president can recruit ministers of highest caliber as
he can appoint his ministers from people who do not belong to the legislature. This is so because
the president selects persons of greater competence and integrity without any need to make
political considerations or party affiliations.

Here, it does not mean that people of the highest caliber and integrity are not available in the
legislature. Instead the president is at liberty to choose from outside the legislature, he stands a
greater chance of securing the services of highly competent and qualified personnel.

The fact that elections are fixed in a presidential system is considered to be a welcome “check”
on the powers of the executive, contrasting parliamentary system, which often allows the prime
minister to call election whenever he sees fit, or orchestrate his own vote of no confidence to
trigger an election when he cannot get a legislative item passed.

The presidential model is said to discourage this sort of opportunism, and instead force the
executive to operate within the confines of a term he cannot alter to match his own needs.
Theoretically, if a president’s positions and actions have had a positive impact on their respective

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country, then it is likely that they or their party’s candidate will be elected for another term in
office.

As party discipline in the legislature is loose in a presidential system, members of the legislature
enjoy considerable freedom to oppose or support any proposal even though it may be part of the
president’s program. Members of the parliament are guided by their conscience rather than a
strict party discipline. This could enable them to express their feelings with greater freedom.

(ii) Demerits

Although the president’s fixed tenure has its own advantages, it has disadvantages as well
because it brings with it the difficulty in removing an unsuitable president from office before
his/her term has expired. In addition it is believed that it breaks the political process into
discontinuous and rigidly demarcated periods leaving no room for the continuous readjustments
that events may demand.

The reason for saying this is that political governance is a continuous process, which introduces
changing circumstances into the system in an uninterrupted manner. This system to some extent
has the effect of arresting this continuous process.

President John Taylor, who only became president because William Henry Harrison had died
after thirty days and refused to sign Whig legislation, was loathed by his nominal party, but
remained firmly in control of the executive branch. Since there is no way to remove an
unpopular president, many presidential countries have experienced military coup to remove a
leader who is said to have lost his mandate.

Had it been in the parliamentary system, it would have been very easy for unpopular leaders to
be quickly removed by a vote of no confidence, a procedure which is reckoned to be a “pressure
release valve” for political tensions.

The president’s leadership is much looser than that of the prime minister in a parliamentary
system mainly because the president has no power to dissolve the legislative organ or to
participate in legislative deliberations. He rarely has at his disposal the legislative majority which
is available to the government in a parliamentary system. He does not have the means available
to the prime minister to enforce disciplined voting along party lines.

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The president, unlike the prime minister, cannot directly ensure that the measures which he
desires will be enacted by the legislature. This may happen even when the president and the
majority in the legislative organ belong to the same party. But lack of coordination between the
executive and the legislature in a presidential system may be heightened if the president and the
majority in the House belong to different political parties as it happens quite often.

The other criticism staged against this system of government is that presidential form of
government has the tendency towards authoritarianism as winning presidency is a winner-take-
all, zero sum game. A prime minister who does not enjoy a majority in the legislature will have
to either form a coalition or, if he is able to lead a minority government, govern in a manner
acceptable to at least some of the opposition parties. Even if the prime minister heads a majority
government, he must still govern within (perhaps unwritten) constraints as determined by the
members of his party.

On the other hand, once elected, a president can not only marginalize the influence of other
parties but can also exclude rival factions in his own party as well, or even leave the party whose
ticket he was elected under. The president can thus rule without any allies for the duration of one
or possibly consecutive terms, a worrisome situation for many interest groups.

In presidential systems, the legislature and the president have equally valid mandates from the
public. There is often no way to reconcile conflict between the branches of government when the
president and the legislature are at logger heads and the government is not working effective,
there is a powerful inventively to employ extra-constitutional maneuvers to break the deadlock.

Presidential governments are blamed for loose accountability when compared with parliamentary
systems as it is easy for either the president or congress to escape blame by the other.

ii. Parliamentary System

In parliamentary systemsthe executive is not directly elected but usually
emerges or is drawn from the elected legislature (the parliament or assembly)
and, unlike a directly elected president, is often an integral part of it. This form of parliamentary
executive usually consists of a prime minister (sometimes called chancellor or premier)
and a cabinet or a council of ministers. The cabinet or council is the collective executive body.
Usually the leaders of the largest party in the assembly, or the governing coalition within it, take
the executive offices. Unlike presidents, who are the only officials with general responsibilities

36 | P a g e
for government affairs, parliamentary executives are supposed to share responsibilities among
their members. This means that the cabinet, including the prime minister, is jointly responsible
for all the actions of government, and the prime minister, therefore, is only
primus inter pares (first among equals).

Whereas the executive and legislative branches in presidential systems are

separated, this is not so clearly the case in parliamentary systems where:
1. The leader of the party or coalition of parties with most support in parliament becomes the
prime minister or chancellor.
2. The prime minister or chancellor forms a cabinet usually chosen from members of parliament,
and the cabinet then forms the core of government.

3. The government is dependent upon the support of parliament, which may remove the
executive from power with a vote of no confidence. The executive (government) is also
dependent upon the legislature (parliament), because the latter can reject, accept, or amend
legislation initiated by the government. Equally, the executive can dissolve the legislature
and call an election.

Election
Elections determine who is to take control of government. From the research point of view they
also have the advantage of involving a large number of citizens and of producing a large volume
of reasonably reliable statistics, so they are one of the best topics for research on mass political
behaviour. They tell us a lot about how ordinary citizens relate to politics, what they think is
important and how they make up their minds about governments and issues.

Reflection on the Election under Ethiopian Legal Regime

Although Ethiopia had written constitution as early as 1931, members of two chambered
parliament established by the constitution did not assume their seats by election.

Members of the upper chamber- the senate were handpicked/appointed by the emperor from
among the nobility (mekuanint) and local chiefs (‘shumoch’) who served the empire as ministers,
judges or military officers. Members of the lower chamber, on the other hand, were elected by
the nobility and local chiefs.

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It was only in 1955 that the idea of election was introduced by the revised constitution as
members of the lower chamber begun to assume seats through election. Since the coming into
existence of the revised constitution, various laws meant to regulate the country election
procedure were issued.

The first electoral law was issued on the 27 th day of August, 1956. This law established a
National Board for registration and elections and determined the powers and duties of the Board.
Later on, subsequent electoral proclamations were amended and consolidated into a new
proclamation, proclamation No. 264/1969 which regulated elections in Ethiopia until the 1974
revolution. Then Proclamation No. 314/1987 which was meant to govern the process of election
for the formation of the National Shengo was adopted.

In 1992, another electoral law, a proclamation to provide for the establishment of the National,
Regional, and Woreda council members election commissions, Proc. No. 11/1992, followed by
Proc. No. 64/1993 was issued . In those electoral laws, a tendency of decrease in the age of
voters and candidates was seen. The age of voters was reduced from 21 to 18 and that of
candidates was reduced from 25 to 21. Yet, another proclamation, Proc. No. 111/1999 as
amended by Proc. No. 187/1999, was adopted with a view to make the country’s electoral laws
conform to the FDRE constitutions.

The proclamation defines election as popular elections held at representative levels for the
formation of national and regional organs of state power and their corresponding substitutes. The
proclamation established the National Electoral Board, which is accountable to the Council of
Representatives of the transitional Government of Ethiopia or its successor, i.e. the House of
People’s Representatives.

Review Question
It is provided under Art. 102(1) of the FDRE constitution that the National Election Board shall
be established independent of any influence to conduct in an impartial manner free and fair
election. On the other hand, it is provided under Proc. No. 111/1995 that the National Board is
accountable to the House of Peoples’ Representatives. Does such accountability jeopardize the
board to the influence of the House? Does it in any way compromise the integrity of the Board?
If so, does the proclamation violate the constitution?

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Finally, when we come back to the system of election followed by Ethiopia, we find on Art. 13
of the Proclamation that:
1. Any election shall be based on free, direct, and popular suffrage.
2. A candidate with more votes received than that by other competitors within the
constituency shall be declared the winner.

What one can easily discern from the reading of sub Article 2 of the above article is that the
proclamation endorses the First-past-the-post system of election where in a candidate with
plurality of votes will be returned to office.

Judiciary

Judiciary is the branch of government mainly responsible for the authoritative interpretation and
application of law. This, in turn, requires judicial independence to protect judges from political
interference and from the temptations of corruption. For this reason, judges are often appointed
for life and paid well. Some countries have created special constitutional courts, but most use
their regular courts. Courts provide an authoritative interpretation of laws; including
constitutional law to overturn executive or legislative actions they hold to be illegal or
unconstitutional. However, not all democratic countries accept the principle of judicial review of
the constitution. Some reject it, for two main reasons:

1. It is difficult to guarantee the political independence of the judges. In many countries,

senior judges are appointed by politicians and conservative politicians tend to appoint
conservative judges while liberal politicians are more likely to appoint liberal ones. Nor
are judges entirely immune from the social pressures of public opinion and the mass
media. Most important, judges usually come from conservative social groups and deliver
conservative political judgments. In short, it is claimed that judges are not, or cannot be,
neutral.

2. In a democracy, so it is argued, the democratically elected legislature should have

responsibility for interpreting the constitution, not an appointed and unrepresentative

39 | P a g e
 judiciary. Judges are involved in more than constitutional law. The meaning of other laws
may also be ambiguous and disputed, and sometimes this has political implications –
electoral law for example, or tax law with implications that affect government’s capacity
to raise money for public services. In fact, some legislation is deliberately vague, because
it was the only way out of political deadlock between competing groups. In such
circumstances, it is the job of the courts to interpret the law and to decide how it should
be applied to particular cases. In doing so, the courts may go beyond merely interpreting
the law and actually modify or change it in subtle ways. In this respect, judges can play
an important political role as the third branch of government.

Structure and Power of Ethiopian Courts

The Ethiopian Constitution gives some hint about the organizationof the judiciary the
Constitution states that supreme federal judicial authority is vested in the Federal Supreme Court
and reserves for the HoPR to decide by a two-third majority vote to establish inferior Federal
Courts as it deems necessary, nationwide or in some parts of the [Link] is only one
federal Supreme Court with nationwide jurisdiction and, until very recently, the Federal High
Court and First Instance Courts were limited to Addis Ababa and Dire Dawa.

As far as organization of the inferior Federal Courts in the states, the Constitution declares that
the jurisdictions of the Federal High Court and of the First Instance Courts are delegated to State
Courts. By virtue of this delegation, the State Supreme Court exercises, in addition to its state
jurisdiction, the jurisdiction of the Federal High Court and the State High Courts exercise, in
addition to their state jurisdiction, the jurisdiction of the Federal First Instance Court are
appealed to the State Supreme Court, while decisions rendered by a State Supreme Court on
federal matters are appealed to the Federal Supreme [Link] the recent decision of Parliament
to establish Inferior Federal Courts, a full-fledged dual court structure is on its way, at least in
five Regional States. As a result there are Inferior Federal Courts in some states, while the
delegated power seems to continue in three other states namely:Oromia, Amhara and Tigray.

As far as the State Courts are concerned, from the provisions of the Constitution one finds that
the judicial structure consists of the State First Instance Courts at the lowest level, also called
‘Wereda’ Courts, above which we have the intermediate ‘Zone’/High Court and at the highest

40 | P a g e
level we have the State Supreme Court. All the state Constitutions too stipulates that the
judiciary of the Regional State shall be organized in such a way as to comprise the Regional
Supreme Court, High Courts and First Instance Courts.

As a result the Ethiopian judicial system, theoretically speaking, is organized on a dual basis in
which there are two parallel court systems, the federal courts and the state courts with their own
independent structures and administrations. However, until the enactment of the new laws the
operation of the Federal and State Courts were an integrated one. One probable reason for the
original design of the dual but delegated court structure under Article 78(2) was the lack of
trained legal experts while it was set-up in 1995. However, after 10 years of experience it
appears that the delegated function of State Courts has brought some inadequacies in the
enforcement of federal laws.

Jurisdiction
The Federal Courts Proclamation allocates subject-matter jurisdiction to federal courts on the
basis of three principles: laws, partiesand places. It stipulates that federal courts shall have
jurisdiction over cases arising under the Constitution, federal laws and international treaties and
over parties specified in federal laws." Article 3(3) of the Federal Courts Proclamation states that
federal courts have judicial power in places specified in the Constitution or in federal laws.
Article 5 ofthe same Proclamation stipulates that federal courts shall have civil jurisdiction over:

cases to which a federal government organ is a party; suits between persons permanently
residing in different regions; cases regarding the liability of officials or employees of the
federal government in connection with their official responsibilities or duties; cases to which
a foreign national is a party; suits involving matters of nationality; suits relating to business
organizations registered or formed under the jurisdiction of federal government organs; suits
regarding negotiable instruments; suits relating to patent, literary and artistic-ownership
rights; and suits regarding insurance policy and application for habeas corpus.

In the exercise of their jurisdictions, one might wonder as to how the federal courts are arranged
in their first instance, appellate or another form, if any, of jurisdiction. These courts have three
levels: Federal First Instance Courts (FFICs), Federal High Courts (FHCs), and the Federal
Supreme Court (FSC). FFICs, which could have as many divisions (such as civil or labour

41 | P a g e
benches or this-or-that locality benches) as the situations required, hear cases for first time.
FHCs, which sometimes hear cases for first time such as civil cases worth Birr 500,000, are
normally appellate courts.

Article 4 of the Federal Courts Proclamation gives federal courts criminal jurisdiction over
offences against the national state; offences against foreign states; offences against the law of
nations; offences against the fiscal and economic interests of the federal government; offences
regarding counterfeit currency; offences regarding forgery of instruments of the federal
government; offences regarding the security and freedom of communication services operating
within more than one region or at international level; offences against the safety of aviation;
offences of which foreigners are victims or defendants; offences regarding illicit trafficking of
dangerous drugs; offences falling under the jurisdiction of courts of different regions or under the
jurisdiction of both the federal and regional courts as well as concurrent offences and offences
committed by officials and employees of the federal government in connection with their official
responsibilities or duties.

The Constitution provides that the President and Vice-President of the Federal Supreme Court
shall be appointed by the House of Peoples' Representatives upon the recommendation of the
Prime Minister; other federal judges are appointed by the HPR from a list of candidates selected
by the Federal Judicial Administration Commission.

Office of ombudsman

Another quasi-legal development in modern democratic politics is the appointment of

ombudsmen. Ombudsman isa state official appointed to receive complaints and investigate
claims about maladministration. Itis a ‘grievance officer’, or a state official to whom citizens can
appeal if they feel wrongly treated by public bodies. Sweden, which invented the concept, has
four ombudsmen covering different areas of public services. Although ombudsmen are found in
many western European countries, most democracies (about 75 per cent) do not have them,
preferring to use normal court procedures. For the most part, ombudsmen are not lavishly funded
and their powers are usually limited, so they rarely have a big impact.

The origin of an ombudsman institution is traced back to the 1809 Constitution of Sweden. The
idea and institution of ombudsman first permeated the Nordic countries, then they spread
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throughout the commonwealth countries and now they have flooded the whole world.A few
catalysts in the process
ofproliferation include decolonisation, democratisation that followed the collapse of the Soviet bl
oc,government reforms in older democracies and the implementation of democratic government
and good governance reforms.

In Ethiopia, in pursuance of the exercise of its constitutional mandate, the House of Peoples’
Representatives organised international conference on the establishment of an ombudsman
institution and a human rights commission in [Link] years later, the House promulgated the
Institution of the Ombudsman Establishment Proclamation No. 211/2000 (Ombudsman
Proclamation), heralding the formal establishment of the Institution.

Mandate and organizational structure

The Institution was established to address maladministration problems in the executive. It deals with
maladministration in two ways: prevention of maladministration and protection of citizens from
maladministration. The Freedom of the Mass Media and Access to Information Proclamation has
expanded the mandate of the Institution.

To carry out these mandates, the Institution has been organised into four main directorates and
four support directorates. The support directorates are Human Resource Administration
Directorate, Planning, Procurement and Property Administration Directorate, Public Relations
and Communication Affairs Directorate, and the Audit Directorate.

The Ombudsman Proclamation requires that an ombudsman heads children and women
[Link] Institution included persons with disability as vulnerable groups requiring special
attention and established one of the main directorates: Children, Women and Persons with
Disability Affairs Directorate. The remaining three main directorates deal with prevention of
maladministration, protection of citizens and monitoring of access to information.

The Ombudsman Proclamation embraces the philosophy underlying the saying that ‘prevention
is better than cure.’ Prevention of maladministration has been one of the core mandates of the Institution. It has
the responsibility to prevent maladministration before it occurs and thereby avoid its damage on
thecitizens because ‘what’s done cannot be undone’ as the proverb goes. The Maladministration

43 | P a g e
Prevention Directorate is responsible for preventing maladministration as its name indicates.
Although it is not clear from the Ombudsman Proclamation, conducting promotional activities
that target both the executive and the general public is also necessary to prevent
maladministration through creating awareness.

The Institution is required to ‘undertake studies and research on ways and means of curbing
maladministration.’It should disseminate research findings, and may use trainings, seminars,
workshops, conferences, symposia and other means including the media to create awareness and
to disseminate research findings. Based on such findings, the Institution should make
recommendations for the revision of existing laws, practices or directives, for the enactment of
new laws and the formulation of policies and thereby prevent the incidences of
maladministration.

The protection of citizens from maladministration is another core mandate of the Institution carried out by the
Maladministration Investigation and Remedy Directorate. It is logical to provide cure
where preventive measures are unable to succeed. The Institution receives and investigates
complaints alleging maladministration and provides a remedy if it ascertains that maladministration has been
committed.

Implementing access to information law (which is part of the Freedom of Mass Media and
Access to Information Proclamation) is the third core mandate of the Institution falling under the domain of the
Access to Information Law Implementing Directorate. The Institution has responsibility to
compile guideline that helps interested parties in obtaining information they need from public [Link]
Institution has also been assigned a list of responsibilities in this line, including monitoring the implementation
of Access to Information Law, receiving reports from public bodies, and submitting report to the
House of Peoples’ Representatives.

The Institution conducts supervision to ensure that administrative directives, decisions, and
practices do not contravene the constitutional rights of citizens and other laws. After conducting
investigations, the Institution pronounces violations of constitutional rights or other laws. Such
pronouncements are followed by recommendations of remedies which include, among others,
stopping an administrative act, requiring a directive to be inapplicable and rectifying
[Link] to comply with recommendations amounts to a crime. The Institution

44 | P a g e
follows up the prosecution of officials who fail to comply with its recommendations. Hence, the
Institution has the power to hold the executive legally accountable.

The Institution holds the executive politically accountable, at least in theory. By reporting to the
federal and state legislatures, the Institution or its branches can cause political measures,
including removal from office, to be taken against officials who fail to provide remedy
for maladministration. By issuing official reports, the institution can expose the prevalence of
maladministration and thereby induce pressures by the general public.

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CHAPTER THREE: VERTICAL DIVISION OF POWER

Federalism and its Essential features

Federalism emerged as an important instrument of nation/state building after the collapse of

European colonial empires in the immediate post World War II period. In this respect, many
post-colonial multi-ethnic countries of Asia and Africa adopted federalism. Even if several of
these federations failed in their infancy, the role of federalism in balancing the competing and
perhaps conflicting demands for autonomy and unity in such countries as India, Malaysia and
Nigeria could not be doubted.

Since the end of the Cold War, federalism once again emerged into the spotlight because of two
contradictory developments. First, the disintegration of the socialist federations of theUSSR,
Yugoslavia and Czechoslovakia refreshed doubts about stability and durability of multiethnic
federations. The continuing standoff in Canada over the question of Quebec’s independence and
the frequent political stalemates that characterise federal Belgium strengthen uneasiness about
the stability of multi-ethnic federations. Second, in spite of these problems, politicians used to
reconstitute multiethnic countries through federalism after the collapse of authoritarian regimes
and centralist nation-building projects. For instance, international powers imposed federalism to
reconstitute Bosnia-Herzegovina after a bitter war and genocide that accompanied the
disintegration of Yugoslavia. Russia adopted federalism to maintain what is left of the Soviet
Union. Ethiopia adopted ethnic federalism in 1991 after the end of military dictatorship.
Recently, the American led international forces caused the reconstitution Iraq as an ethnic
federation following their invasion and occupation of the country in 2003. There are also calls
for a federal arrangement for such countries as Sri Lanka and Somalia that were torn apart by
decades of bitter conflicts.

There is, therefore, a growing interest in the use of federalism as a way of managing ethnically
diverse countries. In ethnically divided countries, the hope is that political recognition of cultural
and ethnic pluralism through federalism reduces ethnic tensions and conflicts. That is why
federalism has been presented as a compromise between ethnic nationalism, which like
nationalism in its classical form advocates congruence between nations and, and assimilationist
centralization by dominant ethnic groups in multiethnic countries.

46 | P a g e
Federalism is state structure characterized by division of power between central government and
sub-national government. Many federal states have multi-ethnic or multi-national populations
that are concentrated in different geographical areas (Belgium, Canada, India, Switzerland and
the USA). A country with deep political cleavagesof any kind, whether based on language,
ethnicity, religion, culture or history, may have severe problems with its unity, and these
problems will be compounded if the cleavages coincide with geographical divisions. For
example, in Canada the French-speaking part of the population is concentrated in Quebec.
Political cleavage is a political division created when political organisations use social cleavages
for their own purposes to mobilise support. Social cleavages are often more important politically
if they coincide with regional divisions. Federalism makes it easier to hold diverse areas together
within a single country by giving regions a degree of control over their own affairs. Belgium
turned itself into a federal system in 1993 to prevent its three major regions (French-speaking
Brussels, Dutch-speaking Flanders and French-speaking Wallonia) from falling apart.

Federal systems all have a constitutionally recognised territorial division of political powers, but
there are different forms of federalism: some have many units of sub-central government, others
only a few. Some reserve powerful functions for the centre (Canada, India), others give them to
the states (Australia, Switzerland, the USA); some specify carefully the functions and powers of
each level of government, others assume that powers and functions not specifically assigned to
one level will be the responsibility of the other. In some federal systems, the upper legislative
house is reserved for representatives of the states, regions or provinces (the Bundesratfor the
German Länderand the Senate for American states), which gives them a powerful stake in
national as well as regional and local politics.

In theory, there is a distinction between ‘cooperative federalism’ and ‘dual federalism’. In the
cooperative type, federal and state government share powers and, consequently, are required to
cooperate closely with one another (Germany, Switzerland). In a dual system, there is supposed
to be a clearer separation of functions and powers (Australia, the USA), with each level
ofgovernment having its own sphere of competence. In practice, however, federalism of both
kinds requires close and constant cooperation, negotiation and bargaining between federal and
state government. In theory, the USA draws a line between the responsibilities of the federal
government and the states, but in practice they cooperate closely in many areas of domestic

47 | P a g e
policy. The metaphor of ‘the marble cake’ is often applied to the USA: a cake wherethe layers
are not divided by clear, straight lines, but mixed and melded in a complex partnership of shared
responsibilities. The key fact about any federalsystem, whether of the Swiss/German or
Australian/US type, is not theseparation of powers, but cooperation, inter-governmental relations
andinterdependence. The study of ‘inter-governmental relations’ and ‘fiscal federalism’(the
politics of shared taxing and spending powers) is important in federal systems because
government is not so much layered as intertwined in a way that makes it difficult to understand
how it works in practice.

Federal systems usually have three main levels of government – national government, local
government and a middle level between them. To make life complicated the main middle-level
units are often called ‘states’. To distinguish ‘states’ in a federal system from central government
the latter are often called ‘federal’ or ‘national’ governments. Local government is normally
under the general oversight of the states, not the federal government. This means that each state
or province can determine its own system of local government, with the result that they can vary
in a bewildering variety of ways. The picture is often complicated further where large cities are
given special powers of their own. Some cities in the USA have ‘home rule charters’, which give
them a special degree of autonomy. In many countries (Brazil, Australia, the USA, India, South
Korea) the capital city is also treated as a special case.

Although federalism allows the degree of decentralisation and flexibility that is necessary for
large and mixed populations, there is often a price to be paid for it. Inter-governmental relations
between federal and state government can be complicated and sensitive, and special
arrangements and understandings have to be created to allow them to operate effectively. These
can be slow, complex and costly as different levels of government, each with its own powers and
duties, work out a common programme of action between them. The growth of federal funding
and regulation has often created a tangled mass of complicated inter-governmental relations.

48 | P a g e
The Theoretical Underpinnings of the Use of Federalism as an Instrument of Democratic
Consolidation
There are various ways in which federal systems come into being. Alfred Stepan, building on the
seminal work of William Riker, identifies two main patterns:
1. Coming together federations; and
2. Holding together federations
'Coming together' federations emerge when sovereign states, for security purposes and/or
purposes of governmental efficiency, decide voluntarily to form a federal system. 'Holding
together' federations are the outgrowth of a consensual parliamentary decision to preserve a
unitary state by creating a multi-ethnic federal system. A 'holding together' federation is a
decision taken by ethnic elites to create sub-national statefrom a unitary state. This is most often
done to avoid or manage divisive ethnic, regional, or other types of group conflict within the
polity.

In the formation of holding together federations, one of the most common justifications given for
entering into a federal arrangement is the desire to reduce group conflict, while at the same time
demonstrating not only a respect for the diversity of the cultures of the given polity but also a
commitment to protecting the integrity of the constituent cultures. Under most circumstances, the
decision to pursue such a course is taken by the central authorities of a unitary state in the
interest of 'social justice and democracy'. In this type of circumstance, the central government
must be confident that it has both the coercive capacity and the political acumen to make such an
arrangement work.

The type of federalism evolved in Ethiopia is first holding together federations. But, it has now
evolved into a form of 'putting together federation, as the federal government and ruling party
have created new stats but staffed them with parties and personalities loyal to the ruling group
opposed to being representatives of the regional states themselves and their citizens. What has
emerged in Ethiopia is a type of putting together federation that is based upon the ruling EPRDF
working through ethnically based elites and parties that are beholden to it. Although authority is
constitutionally devolved to sub-national governments, this devolution is only apparent at the
regional, zonal and, in some cases, woreda (district) levels. Sub-regional authorities, under most
circumstances, have power and authority to make autonomous policy decisions only when this

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involves using non-federal resources. Given the heavy emphasis on following central directions,
one could even argue that what Ethiopian federalism resembles is more a case of the
deconcentration of authority rather than devolution of authority.

Federal systems vary in form but, at a very fundamental level, federal principles involve a
combination of self-rule and shared rule. Sub-national units are accorded rights to govern their
own affairs, at least in particularly prescribed policy areas, and they acknowledge the authority
of the central government to rule on their collective behalf in other clearly defined areas, such as
taxation and foreign policy. It is possible, then, to have a unitary state that grants wide latitude for
self-governance to lower levels in the governmental hierarchy. Power is constitutionally diffused
to the sub-national governments, while at the same time being constitutionally concentrated at
the center.

In the modern era, it is most common for a federal system of national government to be
rationalized in a constitution. Rather than this constitution being based on a particular formula
that can be easily transported from one societyand one historical moment to another, it is always
the product of a unique historical circumstance. In situations where attempts have been made to
apply a federalist paradigm wholesale onto a society this has generally failed. To the extent that
federalism succeeds, it is fashioned so as to accommodate the circumstances existing in a
particular society at a particular historical moment.

One of the primary objectives of a federalist approach in deeply divided societies should be to
"proliferate the points of power". The idea is to scatter power among institutions not only at the
center but also at the sub-national level. In this way, sub-national units come to govern
their own affairs and sub-national elites come to feel that they have power and authority over the
affairs of their people. In this way, intra-group conflict will come to predominate, rather than
conflict between the center and the periphery or among various units in the periphery. The
existence of federal councils, which make it possible for equal representation of the constituent
units in executive and/or legislative bodies, will likely contribute to cooperation across sub-
national units. When these sub-national units are largely based on ethnic identity, this
arrangement will contribute to the development of intra-ethnic cooperation.

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The effectiveness of federal systems can be measured in political terms or in administrative
terms. In political terms we could assess the level of support in the general population at the sub-
regional level for local, regional and national institutions and governmental actors. In
administrative terms, we could look at the process of decentralization, the design and operations
of federal institutions and the impact of resulting policies.
There are three most common forms of administrative decentralization:
1. Deconcentration, where authority over certain decision making, financial and management
functions is transferred to federal institutions at the state or local levels, with the aim being to get
the center closer to the people, while retaining central control;
2. Delegation, a situation that involves transfer of government decision making and
administrative authority for certain well defined tasks to lower level governmental entities that
are either autonomous or only indirectly under the control of the center; and
3. Devolution, a circumstance under which the central government transfers certain
constitutionally specified authorities to autonomous state and local governments which have
independent corporate status and the authority to employ their own staff, to raise certain types of
revenue, devise their own constitutions, and manage their own budgetary, accounting and
evaluation systems.

Form and Scope of Distribution of Powers

Here the forms of division of legislative power are referring to the ways in which these powers
are constitutionally allocated between the federal government and the states, while the scope of
legislative powers refers to the areas and amount of jurisdiction assigned to each order of
government. In other words, with the latter we refer to the substance of power allocated, while
with the former we refer to the technique of allocation.

Despite specific variations among the federations, there are some common features one observes
in the forms of distribution of legislative powers between the federal government and the state.
The constitutional allocation of legislative power is defined on the basis of three categories;
namely, exclusive powers (of the federal government and/or of the states), concurrent powers
and reserve power.

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A. Exclusive Powers: refers to the powers to be distributed in federal systems falling to one of
two main categories: exclusive powers and non-exclusive powers. Traditionally the use of
exclusive powers refers to the powers for which the federal constitution has created a monopoly,
which either is in the hands of the federation or of the states. In theory the exercise of such an
exclusive power as described in the federal constitution is left entirely to the entity to which it
has been attributed. Looking at federal level, there are certain functions of government, which in
a federation are and ought to be exclusively with in the power of the federal government; such
functions by their very nature cover the entire territory of the federation and apply equally to all
member states and citizens.

According to American federal tradition and the interpretation given by the Supreme Court, the
federal government cannot claim power not allocated to it by the Constitution. According to
Laurence Tribe an act of congress is invalid unless it is affirmatively authorized under the
Constitution while states’ actions in contrast are valid as a matter of federal Constitutional Law,
unless prohibited explicitly or implicitly by the Constitution. This is what is known as the
doctrine of enumerated powers.

The Ethiopian Constitution in general follows the United States’ and Swiss’ forms of distribution
of powers. According to Article 50(2) the federal government and the states shall have
legislative, executive and judicial powers. We have earlier noted the point that the Ethiopian
federal system appears to reflect some aspects of coming together as well as holding together.
Although it is a fact that none of the constituent states existed as autonomous entity, owing to the
aggregate nature of the federation, the federal government appears to be one with enumerated
and limited powers and the federation is based on the accommodation of diversity within the
various Ethiopian Nations, Nationalities and Peoples existent at the time of ratification by the
Constituent Assembly.

It is the states that hold residual powers as per Article 52(1), excepting the power of taxation, for
undesignated powers of taxation are as per Article 99 left to the determination of HPR and HoF.
Thus Article 99 should logically be treated as an exception to Article 52(1). The Constitution
also comprises a brief account of some state powers under Article 52(2) in addition to reserve

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power, which should only be understood as illustrations of the powers bestowed to states in
general terms, as referred to above; i.e. Article 51(1).

It is worth noting that the powers granted to the federal government are not limited to the list
under Article 51. It might appear that by virtue of the reserve clause, any power not mentioned
under article 51 belongs to the states, but other provisions of the Constitution also indicate
additional powers entrusted to the federal government as can be gathered from the Minutes of the
Constitutional Assembly. In general it appears that Article 51 was intended to cover a whole list
of powers conferred on the federal government, while others were meant to allocate these lists of
power to each federal departments of the federal government and other bodies akin to it like that
of the Office of the President. Yet, what appeared as final product did not reflect this intention,
for we find powers seem to be additional; i.e. under Article 55, 74 and 77, for instance. Some of
the exclusive federal powers not mentioned under Article 51 but indicated elsewhere; include the
power to enact labor, commercial, penal code, approval of federal appointments submitted by the
executive, and the establishment of federal institutions. Article 51 has therefore failed short of
incorporating all powers that the Constitutional Assembly sought to have endowed to the federal
government. So the reserve power of the states only applies after discounting all power of the
federal government distributed throughout the Constitution.

It is also worth noting that the Ethiopian Constitution provides neither for the ‘necessary and
proper’ clause nor for any express comprehensive list of shared powers.

The Constitution empowers the federal government to formulate and implement the country’s
policies, strategies and plans in respect of overall economic, social and development
[Link] and implement national standards and basic policy criteria for public health,
education, science and technology. One may state that this is perhaps more than the ‘necessary
and proper’ clause for it grants the federal government with wide powers on economic, social,
health and education aspects. This express coverage looks as those economic and social issues
that were federalized during the 1930’s in the United States. There is no doubt that these powers
cover the bulk of concurrent power on a vast field of social and economic affairs as stated in
other federations. However it is also possible to argue with equal force that if one follows the
terms closely, the powers of the federal government even in these vital areas do not seem

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exhaustive. The same Constitution also empowers the states, among other things, to formulate
and execute economic, social and development policies, strategies and plans for the state. The
big question is to draw the borderline between the two, but certainly there is no doubt that this
makes most of the policy-making areas concurrent.

Despite the whole range of variation among the federations, a common pattern of sorts emerges.
The general principle, on which allocation of responsibilities has usually been based, is the vague
concept that matters of national importance should be reserved to the federal government, while
matters of regional importance should devolve to the states. But the principle does not tell us
much about the specifics of what powers should go to the federal government and which one to
the states. Besides, it has not been possible to avoid the provision of a wide range of shared
powers. What is of national or of local importance cannot be decided on any priori basis and
federal Constitutions show variations in this regard.

Broadly speaking, the exclusive federal power includes: defense, foreign affairs, immigration,
major taxation powers, currency and foreign exchange, foreign and interstate trade, maritime
shipping, inter-regional communication, postage and matters physically transcending state
boundaries such as high-way transport services and key aspects of economic activities, for which
uniform regulation is deemed important. Some of these powers are justified on the ground that it
would mean unnecessary multiplication of authority, creation of inconsistent directives and
creating chances of friction.

The field of defense is considered mostly an exclusively federal power. It is the essence of
federalism to accommodate diversity but war like circumstances require centralized power to
discharge effectively. Besides, the history of older federations indicates that one of the reasons to
join the federations was to have a common defense. Furthermore, the centralization of defense is
supposed to back foreign relations. For these reasons the control of armed forces, control of land,
naval and air forces, were not only believed to reinforce political influence in international
politic but also to minimize armed conflicts Yet while maintaining the basic principle that
defense remains federal, the states have in many cases been involved one way or another with at
least the police force of their own for maintaining law and order within their respective
territories.

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Traditionally it is the need for centralization of foreign powers in the hands of the federal
government that among other things was the driving force among older federation in their bid to
transform themselves from a confederation to a federal polity. In fact, one of the reasons for
establishing a federation was the need for a unified foreign policy. As a result, in many cases
foreign relations are the exclusive domains of the federal government. In some federations,
however, the states have obtained formal representation in international forum, particularly when
the matter concerns the interest of the states.

Despite the whole range of variation among the federations, a common pattern of sorts emerges.
The general principle, on which allocation of responsibilities has, usually, been based in the
vague concept that matters of national importance, should be reserved to the federal government,
while matters of regional importance should devolve to the states. But the principle does not tell
us much about the specifics of what powers should go to the federal government and which one
to the states. Besides, it has not been possible to avoid the provision of a wide range of shared
powers. What is of national or of local importance cannot be decided on any priori basis and
federal Constitutions show variations in this regard.

Broadly speaking, the exclusive federal power includes: defense, foreign affairs, immigration,
major taxation powers, currency and foreign exchange, foreign and interstate trade, maritime
shipping, inter-regional communication, postage and matters physically transcending state
boundaries such as high-way transport services and key aspects of economic activities, for which
uniform regulation is deemed important. Some of these powers are justified on the ground that it
would mean unnecessary multiplication of authority, creation of inconsistent directives and
creating chances of friction.

B. Concurrent powers:Concurrent powers refer to powers attributed to both entities. However,

one of the entities – often a times, the states – are allowed to exercise this power until the federal
government steps in to legislate on such powers. The states continue to regulate in some fields
until the former occupies the field and the part of the concurrent power which has not yet been
occupied by the federal government, may still remain confined within the states. Concurrent
powers provide an element of flexibility in the distribution of power enabling the federal
government to postpone the exercise of potential authority in a particular field until it becomes a

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matter of federal importance. They enable both governments to exercise their respective powers
depending on whether the matter remains of regional or of national importance.

In Ethiopia, the general thinking about shared powers has been that Article 52(1), which, among
other things, states “all powers not given expressly to the federal government alone or
concurrently to the federal government and the state….” is without much significance, as the
Constitution nowhere indicates such concurrent powers, excepting tax-matters.

However, it is still possible to argue that even in other non-tax-matters there are concurrent
powers. The Constitution has in one way or another made mention of concurrent powers, albeit
not explicitly. Nonetheless, it is only that the framers have not expressly made it so as suggested
by Article 52(1). Yet, one may arrive at a number of concurrent powers if on follows the
following approaches, for instance.

As already noted, federal practice indicates that a clear demarcation of powers between the
federal government and states is difficult. One can find some examples of such powers. First it is
stated, “it (HPR) shall enact a penal code”. But, here also, the states may enact penal laws too
on matters that are not specifically covered by the federal penal legislation. It appears that this is
more of a concurrent than parallel or framework power; because a state may enact only if the
Federal Criminal Code does not exhaust the list of offences. Potentially the Federal Parliament
may, by virtue of Article 55(5), exhaust the field leaving no room for the states. But states do
often include specific offences not covered by the Federal Penal Code in every piece of
legislation; which shall not be an actual exercise of power.

C. Residual Powers: Residual powers represent those powers not listed or partly listed by the
Constitution and assigned to either unit of government. Federal Constitutions must provide rules
on how to deal with changes in the distribution of powers between the federal government and
the states and must govern whom to entrust with new responsibilities that have come about
because of changes in new circumstances. This is crucial because such an approach settles
tensions between those who urge for greater centralization and those who may urge for greater
state power.

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The United States, Switzerland, Germany, and Ethiopian Constitutions have preferred to leave
residual powers with the states while in India such powers belong to the center. The importance
of residual powers is very much related to the scope of exclusive powers conferred upon the
other units of government. The point is that the greater the list of enumerated powers, the less
significant the residual powers will be.

In drafting a Constitution the best technique one can advise is that depending on the policy, to
leave residual powers to either the states, or the federal, to start from one of them and then keep
quite. To go any further will create room for overlapping, loopholes, areas of conflict. To
illustrate, take a coin. If one tries to characterize the coin by explaining both sides of the coin, the
sedge of the coin remains unexplained. In the same manner, the matters falling between the
federal and the states lists will remain areas of contention. Against this proposition some might
argue that it would be better to make these abundantly clear. In the eyes of the Developer, it
rather would mean to make matters abundantly vague. That is the problem with Articles 52(1)
and (2). It would have been better to leave Article 52 with what Sub-article (1) states. The
enumeration made under the same Article that is Sub-article (2), has taken matters from better to
bad, if not from bad to worse. To save the apparent or real inconsistencies, it would be better to
see the enumerations under Sub-article (2) as being a mere illustration of principle stated under
Sub-article (1) of the same Article.

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CHAPTER FOUR: ADJUDICATION OF CONSTITUTIONAL ISSUES

Interpretation of a Constitution
Constitutional interpretation is defined here as the activity aimed at extracting from a written
constitution the general normative content and specific meaning of its [Link]
interpretation, or constitutional construction, the term more often used by the Founders, is the
process by which legal decisions are made that are justified by a constitution, although not
necessarily correctly. Constitutional controversies are about whether an official act is consistent
with, and authorized by, a constitution or constitutional statute or court decision. Since a
constitution is a law, and the supreme law within its domain, and authorizes statutes and other
official acts which have a textual expression, the principles of constitutional interpretation are
essentially the same as the principles of statutory or judicial interpretation.

The need for constitutional interpretation

In order to safeguard the supremacy of the constitution, a special organ checking the
constitutionality of laws is indispensable. Every Constitution needs an organ interpreting the
constitution and giving a final decision on disputes arising on the constitution. The assertion that
the constitution is a supreme law would have no meaning unless there is some authority to
safeguard the constitution against violation.

Generality is one of the distinctive characteristics of constitution. Constitutional provisions are

intended to stay long period and accommodate changing circumstances of the country.
Constitutions by their nature are stated vaguely so that they will serve for generations. Due to
their generality, constitutions have loopholes or may be over vague; constitutional is the
solution to this problem.

Theories of Constitutional Interpretation

Theories of constitutional interpretation refer to different philosophical approaches the

interpreters take in construing the meaning of the constitution. The theories are both prescriptive
and descriptive. They describe what interpreters usually do, but also prescribe what they ought to
do.

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 A. Originalism: Originalism refers to constitutional interpretation based on the original
meaning and intention of the drafters of the [Link] also conveys the
philosophy that a constitution has a fixed and knowable meaning. The challenge in
originalism comes from the difficulty in understanding what the drafters meant at the
time of drafting.
B. Pragmatism:Pragmatism refers to constitutional interpretation based on judicial
[Link] conveys the philosophy that “there is no constitutional
meaning apart from” the interpretation given by the institutions that enforce the
[Link], therefore, allows the interpreters to be actively involved in
finding the meaning of the text.
C. Natural Law Theory: Natural law theory refers to constitutional interpretation based on
an unwritten moral code or “higher law” that people ought to follow, such as equality,
human rights, and privacy. Natural law is less frequently referred to in interpreting
modern-day constitutions.

Principles in Constitutional Interpretation

While some experts follow the strict application of the principles of ordinary statutory
interpretation when interpreting the constitution, others support more creative methods of
interpretation of the constitution.

A. Plain Meaning of Text: States often focus on the plain meaning of the text when
interpreting the [Link] the words are clear, interpreters do not need to
consider any other means of interpretation. In addition to focusing on the plain meaning,
states may also consider the technical meaning and the speaker’s meaning. The technical
meaning refers to the meaning of the text within a smaller section of society, such as the
legal community. The speaker’s meaning refers to the authors’ intent, particularly if the
meanings of the words have changed since the drafting of the constitution.

The High Court of Kenya has interpreted its constitution based on the plain meaning of
the text. The High Court has stated that the plain text of Section 60 of supports the
finding that “the High Court is always a Constitutional Court.” Similarly, the High Court

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 of Malawi considered the plain meaning of “any person” in interpreting Section 46(2) of
the Malawi Constitution, which provides “any person who claims that a fundamental
right or freedom guaranteed by this Constitution has been infringed or threatened” can
make application to have a Court enforce such right. The Malawi Court pointed out that
the text did not say any person who claims that “his” or “her” fundamental right was
infringed, and interpreted the provision to allow fundamental rights applications without
having to show that the individual making the application was sufficiently connected to
the harm.

B. Intent of the Authors: States often interpret their constitutions based on the intent of the
authors,reflected in the history of drafting and adopting the law. The Constitutional
Court of South Africa interpreted Section 167(3)(b) of the Constitution, which
providesthat the Court has jurisdiction over “issues connected with decisions on
constitutional matters.” The Court considered that the phrase was intended to “avoid
fettering” the exercise of the Court’s functions, and decided that the provision extends the
jurisdiction to “matters that stand in a logical relationship to those matters that are
primary.

C. History and Prior Interpretations: States often interpret their constitutions based on
past interpretations of the constitution. On some occasions, states strictly follow the prior
interpretation, which is more prevalent in common law [Link] other occasions,
states reject or expand upon previous interpretations for a reading of the text that is more
suitable to the present context. For instance, the Constitutional Court of Hungary, in its
Decision 6/1998 on the issue of the right to defense in criminal cases, relied on its
previous interpretation of “the right of having access to the documents” to further include
“possession” of the necessary documents, including copying them.

On the other hand, the High Court of Australia considered historical and political
developments in addition to prior interpretations to interpret the meaning of the word
“alien” under Section 51(xix) of the Australian Constitution. The Court considered the
definition of alien in a number of legislations and prior cases during the colonial era. For
example, in the colonial era, alien was a person “who did not owe permanent allegiance

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 to the Crown.” The Court also noted that early High Court cases defined a citizen as a
person born within Australia. Taking into account the prior interpretations and historical
context, the High Court interpreted that alien now means “those who owed allegiance to
another sovereign power, or who, having no nationality, owed no allegiance to any
sovereign power.

D. Constitution as One Consistent Document: States often consider the constitution as

one consistent document when interpreting different provisions. States consider
underlying principles and concepts in the constitution to maintain consistency in
interpretation of provisions. The Supreme Court of Uganda has sought to read the
Constitution “as one whole.” Stating the importance of harmonization of its provisions,
the Court pointed out that “free and fair” elections under Article 69 of the Ugandan
Constitution should be achieved despite the provisions of Article 269, which regulates the
activities of political [Link] Supreme Court, in this case, deferred that judgment to
the Constitutional Court of [Link] Supreme Court of India also has stated that the
constitution “must be read as a whole, and construed in keeping with its declared objects
and its functions” to ensure “smooth and harmonious working of the Constitution.”
E. Constitution as Structural Document: States often also consider the constitution as the
fundamental law that sets the structure of the government. States interpret the constitution
to promote harmonious and effective working among the different government bodies
and territorial districts. The Supreme Court of India stated that the Court should interpret
the constitution in a manner that treats federalism as “part of the basic structure of the
Constitution” and avoids interpretations that will cause “practicalinconvenience” and
“absurdity.” Similarly, the High Court of Australia acknowledged that the federal system
of government provided by the Commonwealth Constitution did not necessarily prescribe
the State Constitutions to do the same.

House of federation
The Players
Ethiopia's federal and state governments possess distinct responsibilities, and each level has its
own constitution and executive, legislative, and judicial [Link] legislative branchof the
government consists of two houses of [Link] houses of parliament are the House of

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People's Representatives ("HOPR") and the [Link] HOPR is the law-making body, which
represents the individual citizens of [Link] HOPR elects the executive branch, the Council
of Ministers and the Prime Minister from among its members. TheEPRDF currently holds
approximately two-thirds of the seats in the HOPR. Both the state and federal governments have
independent judiciaries. The Federal Supreme Court is the highest court in the land, however, the
HOF along with theCouncil of Constitutional Inquiry ("CCI") are responsible forconstitutional
interpretation."

A. House of Federation
The HOF is a representative organ of parliament whosemembers come from every ethnic
[Link] the HOF represents all the NN&P of Ethiopia, it is seen as the body with theduty to
resolve conflicts, foster cooperation and ensure equalitybetween Ethiopia's numerous ethnic
groups."' Each ethnic group is represented in the HOF by one member with an additional
representative per million of its population."The HOFis also responsible for mediating disputes
between states and between states and the federal government; overseeing any attempts at self-
determination or secession; and allocating the federal budget among the states."Most
importantly, the HOF isthe organ of the federal government that is constitutionally mandated to
settle constitutional disputes and interpret the Constitution. The HOF's final decision regarding
a constitutional dispute is considered law to be applied in similar cases that arise in the future."
Two parliamentary proclamations (Proclamations 250 and 251) adopted in 2001 clarify the role
played by the HOF in regard to constitutional interpretation." The HOF is to interpret the
Constitution according to the principles of the Universal Declaration of Human Rights,
International Covenants of Human Rights, and other adopted international instruments. The
HOF organizes the CCI, which plays an advisory role to the HOF in constitutional
interpretation.
[Link] of Constitutional Inquiry
The CCI is the legal advisory body to the House of Federation. The CCI is comprised of eleven
members who includethe President and Vice President of the Federal Supreme Court; three
persons designated by the House of Federation fromamong its members; and six legal experts
appointed by the President of the Republic with the recommendation of the [Link] function
of the CCI is to assist the HOF in deciding constitutional disputes and to discard cases in which

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no constitutionalinterpretation is required. Because CCI is merely an advisory body its
recommendations are [Link] to Article 84 of the Constitution, any federal or
state court and any interested party, be it an individual, organization, nation, orstate, may submit
a constitutional challenge to either a state orfederal law to the CCI. Proclamations 250 and 251
extend the power of constitutional interpretation to include all proclamations, regulations and
directives issued by the federal and stategovernment and international agreements that have been
ratified by [Link], all acts of the legislature and theexecutive are subject to
constitutional interpretation by the CCIand HOF.
B. Courts
The courts are required to submit cases to the CCI andHOF if they believe that there is a need
for constitutional [Link] a constitutional dispute exists, the court adjudicating the case
does not have the jurisdiction to further investigate or render a ruling on the issue of
[Link] courts are loathe to do anything which might indicate thatthey are
engaged in constitutional interpretation, they do have aduty to enforce the Constitution's
fundamental rights and freedoms, and the principle of precedent, recently establishedwithin
the Ethiopian judiciary, may assist them in doing so.'The Court of Cassation recently invoked
the Child Rights Convention in a precedent-setting decision. While there is some debate as to
the extent of its application, the decision clearlyindicated that courts have both the right and the
duty to invoke international human rights instruments in their decisions.'However, despite this
breakthrough, courts may still fear citinginternational human rights instruments in their
decisions. In invoking an international human rights instrument, a court couldconceivably be
triggering the need for constitutional interpretation in its very invocation, requiring a referral to
the HoF
.
The Process
When the HOF receives a case involving a constitutional dispute, it first forwards the case to the
[Link] to Article20 of Proclamation 250, the CCI may "develop and
implementprinciples of constitutional interpretation" which it believes willbe helpful in
determining if there is a constitutional question atissue.' The CCI then investigates the
issue.'The CCI mayremand a case to the lower courts if it finds that there is no need for
constitutional interpretation. If the CC rejects a casebased on a finding that there is no

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 constitutional dispute, and a party to the case is dissatisfied with this ruling, the party
mayappeal directly to the HOF within sixty days from the receipt ofthe CCI's [Link]
courts, non-governmental organizations, and individuals can all submit cases to the CCI for
adjudication.

If the CCI finds that there is indeed a valid constitutionaldispute and interpretation is necessary,
the CCI legally analyzesthe constitutional question and provides a non-binding advisory
recommendation to the HOF. The HOF must then make afinal decision within thirty days of the
CCI's recommendationregarding the constitutional [Link] the CCI is an advisory body,
the HOF is free to disregard the CCI's recommendations. The HOF may further investigate any
pertinent constitutional issues, or alternately, it may choose to call upon another body or organ
to investigate the dispute and report back to theHOF prior to its final decision.

Both the HOF and the CCI have the capacity to review individual human rights cases pertaining
to constitutional rights. Asstated in Article 84(2) of the Constitution, any court or interested
party can submit a question of constitutional dispute to theCCI which shall consider the matter
and then submit it to the HOF for a final decision. In addition, under Proclamation 250, any
person who alleges that his fundamental rights and freedoms have been violated by the final
decision of any governmental institution or official may present his case to the CCI for
constitutional interpretation." Before an applicant can submit an application to the CCI or HOF
for review, however, the individual is first required to exhaust all remedies and appeals within
the government institution or body that has allegedly violated his or her rights. If the court in its
final determination holds that a constitutional question exists, the court then "rejects the case"
because they cannot interpret constitutional issues, and the party can then submit the case to the
CCI within ninety days from the receipt of the decision of the court.

There is some debate regarding the exclusivity of the HOF'sauthority over constitutional
interpretation in relation to thecourts. The general consensus is that the courts can apply
theConstitution but have no power to interpret the [Link] scholars, however, have
argued the [Link], a noted Ethiopian legal and constitutional scholar, argues that
courts are mandated by the Constitution to enforce the fundamental rights and freedoms

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 enshrined in Chapter III ofthe Constitution and that such enforcement cannot be
achievedwithout the courts engaging in constitutional interpretation."

This argument, though providing a theory upon which the present understanding of constitutional
interpretation can be challenged, is not part of the general consensus regarding thecourts' role in
constitutional interpretation. The dominant viewmaintains that the FDRE Constitution and the
HOF and CCIProclamations deny courts the power of judicial review and confine them to mere
application of the laws as promulgated by thelegislature. In addition, in practice, courts do not
engage in constitutional interpretation.

Comparative analysis with USSR

The former Soviet Union (U.S.S.R.) sought to maintaincontrol over the former Soviet empire, as
well as spread communism, through ethnic federalism, which is the foundation of theEthiopian
Constitution.'The U.S.S.R.'s political system alsoutilized non-judicial constitutional review."' In
the U.S.S.R., theSoviet of the Union and the Soviet of the Nationalities, the two chambers of the
Supreme Soviet, the highest legislative body ofthe Soviet Union, could rule on the
constitutionality of theirown [Link] practice, both Soviet parliamentary
bodies'constitutional review powers were largely ceremonial as they affirmed whatever laws
were put before them.

As in most Marxist countries, the Soviet judiciary was weakby design.'Marxists viewed the legal
profession and the judiciary as bourgeois institutions and law as a tool of the ruling class.'The
Soviets considered separation of powers unnecessary since each branch of government worked
towards the common goal of furthering [Link] a Marxist regime, therule of law is
subservient to socialist [Link], mostcommunist countries devoted few resources to a
well-developedlegal system.

The Supreme Soviet elected judges for limited terms, making the judiciary highly dependent on
political [Link] in China, the Soviet judiciary was beholden to the CommunistParty.'
Structurally, the Soviet judiciary was part of the executive branchand became a powerful tool of

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the Party. Communist courts enforced laws as expressions of socialist policy,rather than as
directives on societal behavior.

It is difficult to deny the Marxist underpinnings of Ethiopia's system of non-judicial

constitutional review. Ethiopia'sbrand of ethnic federalism was partly inspired by the Soviet
Constitution, which combined the federal states of former nationstates into one [Link]
influence can be seen in similarphrasing of the countries' respective constitutions.

The Marxist influence on the Ethiopian political system isalso apparent in the weakness of the
Ethiopian judiciary, including the deprivation of the power of judicial review.'As
statedpreviously, Marxist political systems generally vest the power ofconstitutional review in
parliamentary bodies while purposefullyweakening the judiciary.'Under the Derg, which
espousedMarxist ideology, the executive branch was very strong and thejudiciary was a mere
appendage of the [Link] the Soviet Union and Eastern European communist nations, courts
didnot adhere to the separation of powers doctrines that had developed in Western European
countries and the United States.

The TPLF, which played a major role in the framing of Ethiopia's 1995 Constitution, was once a
hard-line, [Link] have even noted that the TPLF was more devoted to Marxism
than the Derg.'Since the fall of the Derg,the TPLF has been the ruling faction of the EPRDF.
TheTPLF has since embraced capitalist economic development and Western support.' However,
the effects of the early Marxist influences are still apparent in Ethiopia's system of non-
judicialconstitutional review.

Meanwhile, it appears that there were no similar cases so far involving jurisdictional conflicts,
say, between the Federal and any of the Killil Governments on a given matter of mutual interest.
Comparatively speaking, the more notable cases in many federal countries are related with
intergovernmental disputes. Yet, it is also true that intergovernmental disputes usually arise in a
context characterized by political pluralism that reaches a point of power sharing at federal
and/or unit levels.

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The Respective Role of the HoF and the Courts within the Constitutional Framework

The first question that comes to mind when one thinks of a law enacted by the House of Peoples'
Representatives (HoPR) that defines the ‘powers and responsibilities’ of the HoF itself
established by the constitution to check the constitutionality of the laws of the HoPR, is whether
the law itself is constitutional or not. Could the HoPR really define the powers and
responsibilities of the HoF? More specifically, does the HoPR have competence to do so? Would
not such a power, if it existed at all, lead to a conclusion that the HoPR may in the process limit,
extend or even take away the competence of the HoF? Is not the HoF competent enough to
define its responsibilities in light of the broad powers indicated in the Constitution? These are
interesting questions and perhaps one day they will be dealt with by the HoF. In the early phase
of the process of drafting such law, some experts, aired their concerns in a small gathering
organized by the HoF and HoPR and stated that in light of the functionof reviewing
constitutionality of laws, the attempt to define the powers of the HoF through the HoPR is
questionable. However, their opinion did not seem to have won the support of the actors.

More important, however, is the compatibility with the Constitution of the two new laws dealing
with the HoF and the CCI regarding the jurisdiction of the HoF and indirectly ‘stripping the
jurisdiction’ of the regular judiciary, a judiciary already weakened because it lacks the
competence to review the constitutionality of laws. In an earlier study and before the enactment
of the laws, this author tried to define the respective roles of the Courts and the HoF. In light of
the generality of the clauses of the Constitution on the respective role of these bodies, the
author’s main finding was to restrict the role of the HoF to reviewing the constitutionality of
laws enacted by the legislature: federal and state; resolution of disputes among high federal
organs mainly dealing with the horizontal separation of powers and umpiring federal disputes.
The three important reasons for this view were as follows.

Firstly, the Constitution does not seem to wipe out the role of the judiciary completely. If one
sticks to the terms employed by the text, the relevant Article states: ‘Where any federal or state
law is contested as being unconstitutional...’ and the Amharic version which according to Article

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106 has the final legal authority in case there is contradiction between the English and the
Amharic versions is even more explicit in stating that the term ‘law’ refers to laws enacted by
federal and state legislative bodies. Thus it was logical to argue that othersubordinate regulations
issued by the executive and decisions of governmental bodies other than ‘laws’ were left to the
courts. There is another second reason for concluding the same. In parliamentary systems, of
which Ethiopia is one, the supremacy of parliament, subject of course to the supremacy of the
Constitution, requires that all other branches of government are bound to assume that legislation
enacted by parliament is constitutional and the courts are prohibited from nullifying such
legislation. The presumption of constitutionality has expressly been incorporated in the new law.
Thus, administrative acts and decisions of public bodies could be questioned for their
constitutionality as well as for their conformity with the enactment of parliament by the regular
judiciary. Thirdly, the practice of the CCI as well hinted at this position, at least until the
enactment of the laws. In the case of Addis Ababa Taxi Drivers Union v. Addis Ababa City
Administration and in the case of BiyadiglignMeleset alv. Amhara National Regional State, the
CCI ruled that remedies concerning the conformity of regulations with the enabling legislation,
as well as violations of rights by the executive do not amount to reviewing constitutionality of
laws and thus parties have to seek remedy from the courts.

However, the constitutional position as well as practice has been confused with the enactment of
the new laws. According to the new laws ‘law’ (that is subject to the investigation for its
constitutionality by the HoF) shall mean proclamations issued by the federal or state legislative
organs, and regulations and directives issued by the federal and states government institutions
and it shall also includeinternational agreements that have been ratified by Ethiopia.’ Thus by
defining ‘the law’ too broadly to include all conceivable acts of the legislature and the executive,
the drafters of the new laws that are supposed to define the role of the HoF and the CCI, have
themselves apparently come up with an unconstitutional law. This is so because the federal
constitution is at least clear on this point: it never intended to include regulations, directives and
decisions of administrative bodies in the way the laws attempted to include. By so doing the
drafters have wiped out or at least attempted to wipe out the jurisdiction of the courts: federal
and state. It thus remains to be seen how this anomaly is to be settled by the HoF.

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But at least in the case of Coalition for Unity and Democracy (CUD) vs PM MelesZenawi, a
recent case brought before the CCI requesting the latter to declare unconstitutional a directive
issued by the PM following the May 2005 election crisis and its aftermath banning
demonstrations in the capital for a month was entertained by the CCI and considered as
constitutional although the CUD started its case and applied to the relevant Federal First Instance
Court. This is a veryinteresting case because the Federal First Instance Court to whose bench the
case first appeared willfully relinquished its constitutional mandate in its decision held on June 3,
2005 by referring the case to the CCI. This trend seems to conform to what is provided in the
new laws for which we have questioned their constitutionality. This also implies that the courts
are further stripped of their jurisdiction.

Horizontal separation of powers

Issues concerning the horizontal separation of powers often fall within the grey areas of law and
politics and the settlement of such disputes truly involves political matter, which the regular
judiciary may lack the competence to deal with. However, the HoF would be the most suitable
candidate as it is more a political than a judicial body. It is in recognition of this fact that it is
stated: ‘A case requiring constitutional interpretation which may not be handled by courts may
be submitted to the CCI by, at least, one-third of the members of the federal or state councils or
the federal or state executive bodies.’ No specific case has yet been reported under this procedure
but it may be interpreted to cover two crucial aspects: horizontal separation of powers both at
federal and state level as well as vertical division of powers between the federal and state
governments. This appears to be so from the nature of the parties.

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CHAPTER FIVE: CONSTITUTIONAL DEVELOPMENT IN ETHIOPIA

The 1931 First Written Constitution

It is often said that the key sources of legitimacy in Ethiopia’s past were force (conquest,
military expansion), religion (i.e. Orthodox Christianity), and tradition (i.e. ‘right’
genealogy). This is also in line with the official titles of the supposedly “Solomonic”
Ethiopian Emperors which, roughly, are as follows; “Conquering Lion [marking might, or
force] of the Tribe of Judah [marking genealogy and tradition], Elect of God [marking the
vital importance of religious anointing to qualify for the throne], ... [the name], King of
Kings, Emperor of Ethiopia.” Hence, these indicate the importance of genealogy and
tradition in Ethiopian past constitutional experience. 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 as ‘SiyumeEgziabiher, NiguseNegastZa Ethiopia’ which literally means: Elect of
God, King of Kings of Ethiopia’ but 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.

It is believed that both internal and external factors forced the development of the 1931
constitution. Externally, the introduction of the 1931 constitution 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. Yet, it is important to note that Haile Selassie
was crowned with full support of the pre-war modern elite with a mission of Japanizing
Ethiopia. The Meiji Constitution of Japan was conceived as a benevolent gift of the
Emperor of Japan to his people. The emperor embodied the state itself and was the source
and repository of all state power. The emperor had to convince the world that his country
was modernizing and taking her place among the civilized states. A few years before that
it became a member of League of Nations, over some nations’ objection that it was not
“civilized enough” to join the club of civilized nations. The constitution unequivocally
declared that the sole basis of legitimate authority was the emperor, and that all titles and
appointments descended from him. For instance, Article 6 of the constitution declares that:

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In the Ethiopian Empire supreme power rests in hands of the emperor. He ensures the
exercise thereof in conformity with the established law. Ethiopia was in need of reflecting
a different picture of its own to the rest of the world, that it is no more a back ward state.
However, the 1931 constitution was failed to achieve external goals as intended by the
emperor.

Internally, the 1931 constitution was intended to provide a legal framework for the
suppression of the powerful traditional nobilities to the emperor. The emperor has a deep
interest of centralizing the state power in the internal politics of the country. This was
effectively done by absolutist nature of the constitution. It was designed to unify and
centralize all state power in the hands of the monarch. This also marked the beginning of
the culmination of the struggle for centralization, which began with the attempt at
unification by emperors during the 19th century and reached its consolidation under the
absolutist rule of Emperor Haile Selassie to be further reinforced by the military. The
consequence was the alienation of the bulk of the regional actors leading to the center
periphery polemics.

First, centralization of state power was basically done through the creation of new
administrative units headed by loyal appointed chiefs. This reduced the power of regional
nobles, who were previously so powerful locally but now their power is transferred to the
monarch indirectly through the appointed local chiefs by the means of the constitution.
Secondly, the establishment of standing army was another mechanisms used to
consolidate the power of the monarchy. Finally, the setting up of a ministerial system was
other steps used in the process of centralizing state power in the hands of the feudal
monarchy. In the latter case appointed ministries were decided to be directly accountable
to the king. This enabled the emperor to have strong control over the executive branches
of the government. As the result of such high centralization of power and upgrading of the
absolutist nature of the monarch, the constitution was said to be a little more than an
instrument of legalizing the absolute power of the monarch.

Even if the external dream of the constitution was short of its target, the constitution is
said to be very successful in achieving its internal goal. It has become one of the most

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successful attempts ever in Ethiopia in centralizing state power. All modern Ethiopian
rulers attempted to do this but the 1931constitution turned glorious in doing so. The
constitution formalized centralization of state power by employing different mechanisms.

Apart from the centralization of the power of the monarch, the 1931 constitution
introduced some very important innovations to the Ethiopian political history. In the first
place, the constitution established a bicameral parliament of the upper and the lower
houses as legislative branches of the government. The upper house was stronger than the
lower house and its members were handpicked and appointed by the monarch from among
the nobility. The upper house of the parliament was given the power to elect the lower
house. Accordingly, members of the lower house were appointed by the members of the
upper house.

The primary functions of these houses were to play an advisory role to the monarch than
making and approving laws of the country. The parliament can neither propose policies
nor oppose a policies proposed by the emperor. They cannot also challenge the executive
without the permission of the emperor.

Second, the 1931 constitution setup the three branches of government as legislative,
executive and the judiciary organs of government. It also introduced the idea of fixed
annual budget system and a uniform taxation system. The constitution institutionalized the
ministerial system and made all the ministries directly accountable to the monarch through
individual and collective ministerial responsibility. This made easier for the emperor to
control the executive branch of the government.

In the judicial branch, the constitution structured two court systems as ordinary court and
administrative tribunals. At the apex of the court system the constitution set up the
emperor’s chilot (Zuefanchilot). This reveals that the 1931 constitution was used as a
means of providing a legal framework (legitimacy) for the undisputed absolute power of
the king. The constitution was failed to limit the power and functions of the monarch. This
can be witnessed by the fact that, all the three branches of government were directly
accountable to the emperor. It also confirms supremacy of the emperor over the organs of
government, the constitution and the Ethiopian people.

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Consequently, the Constitution’s major outcome was its ability to establish the legal
framework within which governmental power was to be channeled and distributed. It was
aimed against the personal, arbitrary and ill-defined powers traditionally held by the
nobility. It reflected the traditional principle of absolute imperial power without any
practical limitations. The Emperor was granted full executive power over both central and
provincial government and the nobility and provincial governors were granted no
independent authority.

The constitution was not elaborate, and contained many of the elements that were imbedded in
the traditional codes governing the relationship between Crown and subjects. For example,
the first chapter, consisting of five articles, proclaimed Ethiopia a constitutional
monarchy, headed by a monarch who traced his ancestry to King Solomon of Jerusalem
and the Ethiopian Queen, Makeda. The Emperor was said to be divinely ordained, and
anyone who wished to lay claim to the throne had to be able to prove that they were the
direct descendents of this Solomonic line. This requirement was already enshrined in the
KebraNagast, but what was significant about its inclusion in the new constitution was that
the Church was formally removed from its traditional role of legitimizing any claims to
the throne. Moreover, this marked the beginning of the secularization of national politics
in Ethiopia.

The Constitution of 1931 went on to outline a process of bureaucratic secularization and

centralization. Rules were laid out calling for more professionalized national and regional
administrations, including the judiciary and budgetary institutions. Perhaps most
significant for its implications for the future development of democracy in Ethiopia, the
constitution for the first time mandated the creation of quasi-representative legislative
institutions at the national level: The Chamber of Deputies and the Senate. Senators were
appointed by the emperor from among the nobility and local chiefs. Representatives to the
Chamber were in turn chosen by the nobility and chiefs. It was expected that sometime in the
future, the representatives to the Chamber would be popularly elected, but this was not
required by the new constitution. In either case, the Senate and the Chamber were not
autonomous institutions, and could only make recommendations to the Crown. They
could not make self-enforcing laws.

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The first measure the Emperor took along the process of centralization was the grant of the
Constitution. It was a fairly brief Constitution containing fifty-five articles. The first
chapter with five articles dealt, as one might expect, with the emperor and the succession
to the throne. The famous article three states ‘...the imperial dignity shall remain
perpetually attached to the line of his majesty Haile Selassie I, descendant of king Sahle
Selassie whose line descends without interruption from the dynasty of Menelik I, son of
King Solomon of Jerusalem and of the Queen of Sheba.’ Article four stipulated about the
succession to the throne and the subsequent provision explained ‘the person of the
emperor as sacred, His dignity inviolable and His power indisputable’. His authority was
unlimited and unquestionable and his function multi-faceted: the emperor was the head of
the executive, the fountain of justice, the agent of change and the law-giver, albeit
moderated by parliament that lacked the competence to enact law. To a careful observer
such clauses represent a significant departure from the Ethiopian tradition of the right to
rule which was open for any one (presumably from the regional nobility) who combines
competence, might and Solomonic legend. With the coming to power of Haile Selassie
and his constitution, it was planned to take a different course.

As John Markakis perceptively argued, rather than demonstrating a real commitment

to democratic reform when he allowed the Senate and the Chamber to be created, the
emperor, "...was really attempting to rein-in and co- opt important members of the
traditional nobility; and to strengthen the legitimacy of the regime among the new-edu-
cated classes" whom he saw as potentially crucial allies in his efforts to consolidate the
Crown's absolutist position’s. For example, historically the nobility had been required to
spend specified amounts of time at the royal court. The effect of the new constitution for
Senators was to make them dependent upon the Crown for their legitimacy. They
depended upon the emperor for their appointments, and they were now deprived of the
opportunity of perhaps building their own bases of power in the provinces that could
eventually lead them to challenge the Crown as had been the case in the past.

Needless to say, these reforms were not generally popular among the nobility, but they did
not vigorously resist because they retained a good deal of their traditional rights and

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privileges. For example, the nobility were still able to demand a proportion of the
agricultural produce from peasants who occupied land that was in the noble person's
domain of responsibility. Moreover, the emperor used the possibility of the appointment
of noblemen to political and administrative positions as effective forms of patronage. If a
nobleman proved loyal, and effectively represented the Crown in his area, he could expect
a steady flow of patronage from the emperor.

Despite the outward appearances of a modicum of democracy, the 1931

Constitution was clear about the absolutist position of the emperor. Twelve of the fifty-
five articles in the document pertained to the powers and prerogatives of the Crown.
Furthermore, other articles related to the "discretion" of the emperor. Theoretically,
however, the emperor was not above the law, but since he in fact made the laws, he could
construct them to favor whatever objectives he might decide to support.

The rights accorded average citizens by the Constitution were few. If they were accused of
a crime, all citizens had the right to be tried in a bona fide court here were limited rights
of privacy in correspondence and in the person's home. Citizens could own private
property, and they had the right to, if they felt they needed to, petition the government.
Despite these "guarantees", all citizenship rights could be suspended by either the
emperor himself or by any of his agents. In disputes between a citizen and another
citizen or between the citizen and a government institution, the emperor was the court
of last appeal.

The Revised Constitution of 1955

Ethiopian politics were profoundly affected by World War II and its aftermath. The
emperor had been driven into exile when beginning in 1935 the Italian Fascists
occupied the country for just over five years. During this period both the Ethiopian
Orthodox Church and the traditional aristocracy were severely weakened. In fact, in
the process of resisting the Italian occupation, virtually a whole generation of young
Ethiopian intellectuals was wiped out. When the emperor was restored to the throne by
the British in 1941, he used their military and administrative assistance to bolster his
own authority against what was left of the Church leadership and the traditional

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aristocracy. At the same time, the world had also been profoundly changed by the War.
Ethiopia found itself needing to establish itself as a legitimate player in the world
community of states. Moreover, it was surrounded by African colonies which were
rapidly gaining their independence and left by the departing colonialists with varying
forms of democratic institutions. This trend led to pressures for reform on the Imperial
Crown from younger Ethiopians.

In this situation, after quarter of a century, the 1931 constitution was revised and replaced
by the revised constitution of 1955. There were constellations of social and political events
that urged the revision of the 1931 constitution. The revision of the 1931 constitution was
urged by both internal and external factors. The Revised Constitution continued to
reinforce the process of centralization. The sketchy provisions regarding the powers and
prerogatives of the Emperor were extensively elaborated in the new Constitution. The
Constitution spent one chapter settling the issue of succession on the rule of male
primogeniture. Detailed provisions vested in the Emperor wide powers over the military,
foreign affairs, local administration and so forth. Interestingly enough it also contained an
elaborate regime of civil and political rights for the subjects. In theory, the Constitution
was the supreme law of the land governing even the Emperor. It contemplated even an
independent ministerial government responsible to the monarch and parliament, an elected
chamber and independent judiciary but these liberal provisions were overshadowed by
executive prerogatives reserved to the Emperor who exercised them expansively. Despite
the apparent inclusion of the notion of separation of powers, little change was introduced
regarding the position of the Emperor. He was both the head of state and of the
government and he continued to oversee the judiciary through his Chilot(Crown Court).

The reason why the Emperor Haile Selassie wanted to revise the previous constitution
was: Internally, the 1931 constitution was interrupted by the short lived Italian occupation
over Ethiopia in 1935. This event brought a big transformation in the socio-economic a
political system of the country. It increased the country’s access to the outside world and
caused slight diffusion of western ideas in to the mind of the people. Furthermore, Italian
built infrastructures that facilitated communication between different parts of the county.
These are among the factors that caused some form of transformation in the Ethiopian

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polity. These transformations served as only secondary factors for the reformulation of the
constitution.

After the liberation in 1941, the legal structure of the government was completely
reorganized and a number of important steps were taken to create the modern government
institutions. Some of these new developments include:

 The establishment of the official ‘NegaritGazeta’ which was established in 1942;

 Since the people obtained sufficient experiences to elect their representatives the
procedures of election was revised;
 Finally, the council of ministries was established in 1943.

As explained above the socioeconomic and political development of the time was the
result of the growing interaction between Ethiopia and the outside world. It brought
western ideas and socio-economic and political reorientation. Above all educated
Ethiopians both in the country and abroad forced the emperor to introduce new reforms.
These and other reasons forced the emperor to revise the 1931 constitution in order to
accommodate the new development in the country.

Externally, the top urgent factor that necessitated a hand in hand revision of the
constitution was the Eritrea federation with Ethiopia in 1952. Beginning from 1889
Eritrea was under the colonial rule of Italy. It was the defeat of the Italian forces in the
Second World War that brought the Eritrean issue in to attention. From 1942 onwards,
Eritrea came under the British military administration and it was ruled by the British until
1952.

During this period the Eritrean people developed different interest with regard their
government. Accordingly, they were divided in to three categories. There are Eritreans
who wanted to establish self-government independent of any external influences. The
second group identified their interest with the British government and wanted to be ruled
by the British. Still the other category voted for federation with Ethiopia. The second and
third groups of Eritrean were supported by the Ethiopia government and the British
government, respectively. The internal division among the Eritrean people caused
instability and a serious problem to the British government. As the result, the British

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government passed the issue to the UN. Finally, the United Nations passed its final
resolution favoring the federation of Eritrea with Ethiopia in 1952.

The federation of Eritrea with Ethiopia led to the addition of two new documents in to the
Ethiopia legal system. These were the federal act and the Eritrean constitution. The
federal act was a document that specified the terms of agreements for the federation
between Eritrea and Ethiopia. The Eritrean were established their own constitution with
the support of UN. This constitution incorporated the human rights provisions of the
universal declaration of human rights and other progressive concepts. It also implied a
more liberal government that incorporated the values and ideas of a democratic society as
the result of colonial heritage and the influences of United Nations. Both documents were
far modern and better than the existing traditional 1931 constitution of the imperial
government.

The realities of the situation Haile Selassie found himself in by the early 1950's led him to
begin the process of constitutional reform. It was clear that the resulting Constitution of
1955 was meant to appeal to those forces in Ethiopian society who were calling for the
opening up of the political and social systems. This new constitution was very different
from the earlier one. Rather than sticking to the notion of a constitutional monarchy, an
effort was made to construct a constitution that was reflective in many ways of the United
States Constitution.

Like the U. S. Constitution, Ethiopia's 1955 Constitution outlines the separation of powers
among the three branches of national government: the executive, legislative and judicial
branches. Moreover, twenty-eight articles in the document dealt with the rights and duties
of citizens. For example, it specified freedom of speech and assembly; due process, and
religious freedom. However, as with the previous constitution, the emperor could suspend
any citizenship rights.

Two notable features of the new constitution were the way in which it spelled out the
relationship between the Crown and the other branches of government, and its pro-
vision for a popularly elected national assembly with more than advisory
responsibilities. Also, for the first time, the structure and functions of such executive

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institutions as the Crown Council, Council of Ministers and the Prime Minister's Office
were detailed in a coherent way. The Council of Ministers was comprised of the prime
minister, the heads of all ministries, and ministers without portfolio. The Council of
Ministers was assigned the responsibilities of advising the emperor on policy matters and of
coordinating all inter-ministerial activities. Bills were drafted and then studied by the
Council of Ministers and then the emperor was given by it a recommended course of
action. He in turn made a decision and presented the bill to the Crown Council.

The Crown Council, representing the more traditional elements in society, consisted
of the chief cleric in the Ethiopian Orthodox Church, the Abuna, the president of
the Senate, and notables appointed by the emperor. It was required that the emperor
consult with this body, but he alone made policy decisions." Once the Council had
made its intervention, the bill was then passed on to the legislature. It is important to note
that even with these new provisions neither the Crown Council nor the Council of
Ministers had any actual direct policy making authority. Furthermore, ini tially, the
legislature was nothing more than a "rubber stamp" for endorsing what the emperor had
decided."

The Council of Ministers was comprised of elites with more modernistic orientations
than the Crown Council. For this reason, the emperor appeared to have been
concerned with its potential powers. Therefore, he was careful not to become too
influenced by this "new nobility". Because of their expert knowledge of matters they
were required to deal with on a regular basis, Ministers could actually have indirect
influence over policy. Realizing that he might not always be completely in charge of
making policy, the emperor created his own private cabinet in 1959. Again, Haile
Selassie seemed to have been influenced in his creation of his cabinet by the way the
cabinet of the American chief executive was organized and operated.

The cabinet's primary responsibility was to provide the emperor with independent and
alternative policy perspectives. However, almost as soon as it was created, the cabinet's
unconditional loyalty to the emperor proved to be suspect. In late 1960, one of the
members of the emperor's cabinet was involved in a coup plot against him.

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As had the 1931 Constitution before it, the Constitution of 1955 placed no formal
constraints on the emperor's power and authority. He could create on his own new
governmental institutions, and appoint and dismiss any government official. Even
though he allowed some law making powers to the legislature, the emperor retained the
power and authority to make laws independently through executive decrees. Rather than a
real system of checks and balances, the emperor relative to the other branches of
government was all powerful. He could choose if he wished to dissolve the legislature,
and he could also dismiss judges if he deemed that to be neces sary. Significantly, the
new constitution gave the emperor direct control over the administrative and financial
matters of the Church.

When it was originally announced, the Constitution of 1955 won Haile Selassie
widespread praise both at home and abroad, mostly because it seemed to extend and
clarify the rights of citizens and because it resulted in the creation of a popularly elected
legislature. Whereas the 1931 constitution did not provide for an actual lawmaking
function on the part of the Senate or Chamber of Deputies, the new constitution gave
both houses the authority to propose and to veto laws proposed by the executive branch
of government." Perhaps the most significant new authority assigned to the legislature
related to the budgetary function. It could now approve or reject all budgetary items
including tax proposals and appropriations. It could, if deemed necessary, also require
that ministers appear before the legislature for questioning.

Between 1955 and 1966 parliamentarians went through a learning process through
which they came to understand what their roles in government were and how they
could in fact exercise the newfound authority and independence they had gained. This
was a popularly elected assembly, and the emperor was not in any position to directly
control who was or was not elected. At the same time, political parties were not
allowed, and candidates for the legislature ran campaigns based on their personal popular
appeals. The fact that candidates had to meet certain property ownership qualifications
resulted in a class bias in the body toward the educated elite. The cost of campaigning
also influenced who chose to run or not run for national public office.

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In 1957 there were 210 parliamentary seats. By the time of the next election, 194
incumbents, almost 80 percent, were not returned to office or chose not to stand. The size
of the national parliament was increased in 1963 by forty members, bringing the total
number of seats to 250. There were three further elections before the imperial system
was overthrown and each of these elections yielded trends similar to that of 1963 with
high turnover. In the election of 1973 the turnover rate was 60 percent. In part, this was the
result of the growing popular interest in such burning issues as land reform and
increased taxation. Also, this was no doubt evidence of the growing sophistication
among the electorate about the role of elections and the power that they had as citizens
to choose their representatives. Between 1957 and 1973 there were five national elections,
and voter turnout was consistently at 60 percent. In the election of 1973 alone, the
turnout rate was 70 percent's.

Because of fact that the Chamber of Deputies could amend and even veto proposals
made by the government, by 1966 it was evident that it had become more than a rubber
stamp for the government. In that year, after a bitter struggle between the Ministry of
Finance and the lower house, a revised tax bill was finally forwarded to the Emperor for
his signature.

Ironically, it was the constitutional reforms of 1955 that appeared to have contributed
most to a sharpening of the contradictions between the feudalistic values held by the tra-
ditional elites and the bourgeois-democratic values held by the new classes. Between
1965 and 1974, young intellectuals and students began to question the legitimacy of
feudalism and royal absolutism. What came to be characterized as the "student
movement" emerged in February 1965, crystallizing in a demonstration before the
Parliament. While Parliament was discussing a land reform bill, the rallying cry of the
students was, "Land to the Tiller. Such demonstrations became common from this
moment on and, in 1969, students openly distributed pamphlets attacking the Emperor
directly. They called for radical social, economic, and political reforms. Nevertheless,
there appeared not to have been an overwhelmingly leftist orientation among them. In
these demonstrations, the contradictions inherent in the remnants of the old order were

81 | P a g e
clearly identifiable; all that was left was for precipitating ingredients to be added to this
inherently explosive situation.

In an effort to blunt growing discontent in several sectors of society; the regime again
made a desperate attempt to reform national political institutions. In August 1974, yet
another national constitution was proposed. This version called for the abolition of
royal absolutism, the introduction of parliamentary democracy, and the relegation of
the Emperor to only a titular status. It was also proposed that there would be a
separation of powers among the branches of government, universal suffrage, guaranteed
civil rights, and a complete separation of church and state.

Even as the terms of the new constitution were being debated in Parliament, various
groups throughout the country were becoming more and more politically emboldened.
Inmany areas of the rural south, even tenants and peasants had begun to express their
concerns publicly. In some areas, they began to appropriate land and other property
claimed by local landlords as well as that of agents of the Crown itself. In early
September 1974, a military coup brought an end to Ethiopia's modern imperial regime.

Justlikeitspredecessor,theRevisedConstitutionplayedlittleintherole
oflimitingthepowerofthestateandthemonarch. Itwasmeanttoserveasacamouflagefor
pureauthoritarianism.A basic development in the revised Constitution compared to its
predecessor was the introduction of the representative principle for the chamber of
Deputies whose members were elected on the basis of universal adult suffrage. But
parliament was granted no control over the ministers indirectly or collectively, who
remained responsible to the Emperor. However, a measure of population representation
with divine right of kings was resolved decisively in favor of the latter, with the Emperor
retaining direct control over the executive, with the power to appoint ministers and
regulate the whole of the executive branch. While one of the two chambers of parliament
was popularly elected, it was balanced by the senate, which was appointed by the
Emperor. There was a parliament but those who were eligible to be candidates were the
nobility and wealthy landlords who were opposed even to modest land reform and by so
doing they were the ones that made the Revolution inevitable. A law approved by both

82 | P a g e
houses could not override the position of the Emperor. The revised constitution of the
1955 incorporated progressive political elements like democracy and human rights,
which were unimagined in the 1931 constitution. It showed a significant departure from
its predecessors. It incorporated some new concepts. For instance, it gave a textual
recognition for the rights and liberties of citizens even if it was short of practice. Liberal
individual rights such as the right to vote on the basis of universal adult suffrage to elect
the chamber of deputies of the parliament were also introduced.

The basic principle of constitutionalism and supremacy of the constitution was postulated
under the constitution. It has subsumed all other rules, laws, decisions and acts below the
constitution and required conformity to the fundamental law of the country. It was also
much more elaborated than the 1931 constitution. The revised constitution had eight
chapters and 101 articles whereas the previous constitution had only seven chapters and
fifty five articles.

Even though, these provisions were first hand attempts to the progressive advancement of
the political and legal system the country, the revised constitution of 1955 had reaffirmed
the legitimatization of absolute power of the emperor in a unitarily structured state. The
emperor had great powers in law making, executing, and act as supreme judge. For
instance, in the parliament, the emperor had the power to:

____appoint the members of the senate (the upper house);

____dissolve the more active lower chamber parliament;
____decree laws when the parliament is not in session and when the two chambers of the
parliament disagree on a given issues.
____discuss and formulate laws, but this legislative power was checked by the emperor’s
veto power;
____determine on the church decrees and even appointment of the Abun except on
doctrinal issues.

The legislative body was bi-cameral: senators were appointed from the nobility and a few
from the commons for their meritorious achievements, while the deputies were directly
elected from equally populated constituencies. Election was made purely on personal

83 | P a g e
basis, for there was none in the nature of political party. Member of Parliament enjoyed,
constitutionally some privileges such as free debate and immunity from arrest. They also
had the power only to call the Prime Minister or other ministers to answer questions
concerning the conduct of government affairs or legislative proposals. Essentially, the
cabinet, particularly the Prime Minister, stood between the Emperor and the Parliaments;
i.e. the PM stood as sort of a Liaison-Officer. The parliament had no real control over the
executive and on the appointment and dismissal of the ministers.

In the executive branch of the government, the emperor: was empowered to create
government agencies and determine their functions;was commander in chief of the armed
forces;had supreme power to determine on foreign policy issues. The Emperor held a pre-
eminent place in the [Link] stood apart from other agencies of government and,
at the same time, he was the embodiment of them all; and as such he enjoyed a lot of
executive, legislative and judiciary prerogatives. There were, too, others with respect to
which he shared power. The provision among others, which prompted the writer to make
assertion of this kind, runs as follows:

“The sovereignty of the Empire is vested in the Emperor and the supreme authority
over all the affairs of the Empire is exercised by himas a Head of state, in the
manner provided for in the present constitution.”

The judiciary was appointed by the Emperor, according to a special law, which was yet to
come and which was supposed to regulate manner of selection, tenure, appointment and
dismissal. Judges were to submit “to no other authority”, but to the law – law, in the
absence of contrary stipulation, presumably included the [Link] constitution
provided that the judge should be free and independent in conducting trial and giving
judgment in the accordance with the law. However, the emperor retained certain residual
and judicial functions. In addition the Emperor’s Chelot remained functional and could
unmark the decisions carefully arrived by the Supreme Court. Other than this, the
Emperor had a sort of umbrella power of “maintaining justice through courts”.

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As far as human rights are concerned, the revised constitution of the 1955 expressed
some intention of protecting individual rights in terms of property, life and election of
deputies. However, in practice little or no significance was given to the need to guarantee
political and human rights of the Ethiopian people. The mechanisms of implementing
some of the human rights identified in the constitution were largely not clearly defined.
In general, close analysis of the revised constitution of 1955 reveal that it further
consolidated the centralizing themes started by the 1931 constitution.

The issue of nationalities gained momentum when it appeared as an important element of

agenda of political reform as student’s movements joined the opposition against the
imperial regime, beginning mid-1960s. Initially Ethiopian Student Movements (ESM)
was concerned with the struggle for free speech, assembly and organization. The
movement later espoused the revolutionary slogan land to the tiller, thus demanding a
major agrarian reform. It was only at the beginning of the academic year of 1969-70 that
students started to address the question of nationalities. The right of nationalities to self-
determination became the central agenda of movement. Important in this regard is the
ground breaking article that was authored by WallelignMequkananet, who challenged the
way the state of Ethiopia define itself:

It is not simply Amhara and to certain extent Amhara-Tigre supremacy? Ask

anybody what Ethiopian culture is? Ask anybody what Ethiopian language is? Ask
anybody what Ethiopian religion is? Ask anybody what is national dress is? It is
either Amhara or Amhara-Tigray!! To be a ‘genuine Ethiopian’ one has to speak
Amharic, to listen to Amharic music, to accept Amhara-Tigre religion, Orthodox
Christianity, and to wear Amhara-Tigre shama in international conferences. In some
cases to be an ‘Ethiopian’ you will even have to change your name. In short, to be
an Ethiopian, you will have you have to wear an Amhara mask…

5.4. The 1987 Constitution of People’s Democratic Republic Ethiopia (PDRE)

As discussed in the above section, the preceding two monarchical constitutions were
failed to address the basic socioeconomic and political needs of the Ethiopian people. The

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constitutions gave priority to the power and benefits of the emperor and the royal family.
Moreover, societal transformation in terms of outlook, thinking education and relative
modernization was not accompanied with a proportionate alteration in terms of
administrative and political setups. The monarchical system was lagging far behind and
surprisingly it was not even prepared for change. As the result the old feudal system came
under enormous socio-political challenges and crises that finally led to its ultimate
collapse of the system.

The cumulative effect of this was the fermentation of revolutionary forces, which were
anti-thesis of the status quo by the monarchical system. In the mid-1960 and early 1970
such forces were staging opposition plots against the old system. This process which was
ignited by the Ethiopian student movement around socialist ideology, culminated in
deposing the old traditional system from power once and for all. As the result of the 1974
Ethiopian revolution the traditional feudal system came to its end. After the downfall of
the monarchy the state power was assumed by the military Dergue regime.

In the Ethiopian constitutional

experience,themainhistoricallyrecurringconstitutionalthemes—
feudallandownershipandthe issueofethnicity—
[Link]
severalriotsthroughoutthecountry,ledparticularlybythefarmers.
TheriotsforcedtheEmperor
toagreetorevisetheConstitution,[Link],it
wastoolittle,toolatefortheEmperor.In1974,thelastEthiopianmonarchwasbeheaded
followingthelargestsuccessfulrevolutioninEthiopianhistory.

In 1974, the emperor was overthrown and the military Junta suspended the constitution.
The provisional Military Government issued proclamation No 1/1974 on September 12,
1974, which declared the overthrow of Emperor Haile Selassie and his replacement by
the crown prince. This proclamation addressed some basic issues which were mainly
geared towards outlawing the traditional system and its institutions. Article 5 declared the
suspension of the 1955 constitution and promised to expedite the drafting process of a
new constitution, which would be “suitable for the political, economic and social

86 | P a g e
condition of modern Ethiopia and appropriate to the respect and protection of human
rights. On the other hand, Article 8 of the proclamation banned any opposition against
military government’s directives, labour strike, peaceful public demonstrations, and any
“illegal” activities. Except for Article 8, all remained on paper and when the long awaited
constitution came out in 1987, it was replica of the other former Soviet bloc countries’
constitutions.

The coup makers who overthrew the system of imperial rule were not guided by an
elaborate [Link]
creationofamilitaryjuntacalledtheDergue(literally,‘Committee’),whichledthecountryfor
[Link]
[Link]:the
[Link]—thequestionofethnicity—was,
however,notaddressedinanymeaningfulway, instead they claimed that they were mainly
motivated by a sense of patriotism. Initially, the new regime adopted as its motto Ethiopia
Tikeiem(Ethiopia First); however, within three years, it had shown itself of this African
nationalist ideology, and began to pursue a variant of "scientific
socialism.",astheDergueemphasizedastrongEthiopian
[Link],[Link]
[Link],theDergueregimeunleashedoneofEthiopia’s
darkesthistoricalexperiences—the‘RedTerror’—whichclaimedthousandsofyounglivesand
forcedotherstofleetheirfamilies,homes,[Link]
‘WhiteTerror’,whichwasorchestratedbytherebellionandtargetedandkilledsomeofthe
[Link]
behaviorandactivitiesofthemembersoftheDergue.Itwasonlyin1987,after13yearsofconstitut
ionallacuna,thatmountingpressureforcedtheDerguetoadopttheConstitutionofthePeoples’D
[Link],however,savetheregime;theulti
matedownfalloftheDerguein1991wasacceleratedbythesubsidingoftheColdWar,whichmea
ntlittleornosupportfortheDerguefromtheUSSR.

Immediately after came to power, the Dergue setup the Provisional Military
Administrative Council (PMAC) type of temporary government. The Provisional Military

87 | P a g e
Administration was also in the process of reconstituting itself. To legitimize itself within
and broad it had, at least, to take off the uniform and appear in a civil dress. The PMAC
presented itself for elections through a new party- the Workers’ Party of Ethiopia. The
party became the vanguard communist party. The establishment of the Dergue inevitably
brought profound changes in the country. After coming to power the Dergue issued a
series of decrees and proclamations that was used as legal rules until the adoption of 1987
constitution. It took sweeping measures through series of decrees and proclamations that
includes nationalization of rural and urban land, extra urban houses, private schools and
factories by passing [Link] the Article 3, state would control key production, distribution
and service enterprises, which legalized the massive nationalization of private businesses
after the government came to power in 1974. However, these, decrees and proclamations
cannot be given a constitutional status because it does not touch basic constitutional
issues. This may lead us to the conclusion that the time from 1974-1987 was a period of
constitutional vacuum in Ethiopia.

From the very beginning, the regime, or the Derg(committee) as it came to be known, was
confronted with popular discontent, as several ethnic groups made demands for equal
citizenship rights and/or self-determination. For instance, the Eritrean People's
Liberation Front and other nationalist movements in that region had been waging a civil
war against Ethiopia for more than a decade, and the Derginitially tried to squash this
movement militarily. However, it was unsuccessful and the conflict merely intensified.
In an effort to find a political solution to the Eritrean and other claims of the right to
self-determination, the Derg, in 1975, proclaimed its Program for the National
Democratic Revolution (PNDR), and its commitment to creating a political system and
government based upon the principles of "scientific socialism" aimed to resolve
nationality questions. The document asserted the right to self-determination of all
nationalities within Ethiopia, including Eritreans.

In spite of enormous efforts over its first decade of rule to create conditions for its
widespread acceptance, the Dergby 1976, was confronted with persistent civil unrest
throughout the country. In response, its tendency was to react with violence against
those who challenged it. This led to international exposure of the gross human rights

88 | P a g e
problems in the country. For instance, in the U. S. Presidential campaign in 1976,
presidential candidate, Jimmy Carter, pledged to cut off military aid to several
countries, including Ethiopia, who was guilty of gross human rights violations. This was
exactly what he did when he assumed office in 1977. By November 1976, the Dergwas
desperate, and had already begun to turn to the Eastern Bloc for military, economic and
political assistance. Relations between the U. S. and Ethiopia were completely severed
in late April, and the Soviet Union stepped in to fill the void.

In addition to military and economic aid, the Soviets and their allies attempted to
encourage the Dergto create institutions to assist it in pursuing its scientific socialist
development strategy. By 1984, the Worker's Party of Ethiopia (WPE) had been
created, with a mandate to be the vanguard of the revolution. This action came at a
time when Ethiopia was in the midst of a catastrophic drought and famine. But, despite
the widespread social problems the country faced, the Dergforged ahead with its
socialist policies, and also with its preparations for the inauguration of a Marxist-
Leninist constitution. It diverted resources that would have been used for famine relief
and poverty alleviation to military purposes, and relied heavily upon the international
community for humanitarian assistance.

The Workers Party of Ethiopia was assigned to devise a new national constitution. In its
role, as the vanguard of the revolution, one of the WPE's primary tasks was to lay the
foundation for a socialist constitution. In March of 1986, a 343-member Constitu tional
Commission was formed to draft this document. The Commission had its origins in
the Institute for the Study of Ethiopian Nationalities, which had been established in
1983 in an effort to find solutions to political and social tensions that grew from
Ethiopia's extreme ethnic diversity. Of course, the 1987 constitution was different from
the previous constitutions issued by the imperial regime in many ways. The draft of the
1987 constitution was prepared by a constitutional commission through a program of
public consultation and the involvement of the people in the ratification of the
constitution. Member of the constitutional commission included religious leaders, artists,
doctors, academics, athletes, workers, and former nobility. The central committee of the
workers party of Ethiopia was also included in the constitutional commission. This

89 | P a g e
indicates that the constitutional commission was organized from different sections of the
society. Moreover, attempts were also done to include all major ethic nationalities in the
commission on the part of those who choose appointees to the commission. Also, it was
for the first time

After about six months of deliberations, the commission issued a 120-article draft
document. The constitutional commission discussed the details of the new constitution
for about six months. The new constitution was drafted based on the principles of
scientific socialism. A million copies of this draft were printed and distributed
throughout the country. After a nationwide discussion was done, the comments were
collected and necessary amendments to the drafted constitution were done by the
commission. It was said that the commission accepted about ninety five amendments to
the draft.

Between July and August, the draft was discussed at about 25,000 locations. Where
popular interest was evident, it centered on issues such as taxes, the role of religion,
marriage, the organization and conduct of elections, and citizenship rights and
obligations. Few questions were raised about the document's failure to directly address
the nationalities problem and the right to self-determination. According to official
reports, however, more than a half million people suggested revisions. In August, the
drafting committee reconvened for the purpose of considering some proposed
amendments. It accepted some ninety-five amendments, but for the most part, the
changes that were made were only cosmetic.

The referendum to ratify the constitution took place on February 1, 1987, and the
results were announced three weeks later. The government reported that 96 percent of
the country's 14 million eligible voters actually voted. Eighty-one percent were said to
have endorsed the constitution, while 18 percent opposed it. Significantly, this was
Ethiopia's first national election based on the principles of universal suffrage. However,
the freeness and fairness of the election could arguably have been questioned because of
heavy security in certain areas and the obvious presence of WPE cadres at certain
polling places throughout the country.

90 | P a g e
The People's Democratic Republic of Ethiopia was officially proclaimed on February
22, 1987."The 1987 constitution consisted of seven chapters and 119 articles. The 1987
Constitution in its very first Article, therefore, declared as follows:

“The People’s Democratic Republic of Ethiopia is a state of the working People

founded on the alliance of worker and Peasants and the Participation of the
intelligentsia, the revolutionary army, artisans and other democratic section of the
society.

The 1987 constitution was only an attempt by the government to gain legitimacy to what it
was trying to implement for over decade. The constitution resembled a hybrid of the
Soviet and Romanian constitutions. Even though there was created an executive body
of 24, the Council of State, with the primary responsibility of running the day to day
operations of the state, even more importantly, there was a requirement for a strong
presidency. Interestingly, the authors of the new constitution chose not to endorse an
approach to dealing directly with the issue of self-determination. The rights of
nationality groups were deemed not as important as those of citizens belonging to
mass organizations (e.g. workers and peasants associations, women's associations,
student associations, etc.). In other words, individuals were expected to owe their
primary loyalty to these types of mass organizations, rather than to their ethnic kin.

The preamble of the constitution talks about the sovereignty of the working people and
that Ethiopia is a multi-national state and the right of these diverse nationalities must be
respected equally. The Constitution opens with the words: “We the working People of
Ethiopia...” Ethiopia is an old polity principally formed through military conquest and the
incorporation of vast lands with diverse peoples with equally diverse linguistic and
cultural identities into the Ethiopian empire. The constitution under Article 2 approved the
equality of all nationalities and the equal consideration of their culture, language and
history. It was also stated that effort would be underway to reduce regional economic
disparity. In relation to this, the constitution established a unitary state with administrative
and autonomous regions, provided that autonomous regions would be provided more
independent power and authority from the central government than the administrative

91 | P a g e
regions. Accordingly Tigray, Eritrea, Assab, Dire Dawa and Ogaden autonomous regions
were established and another 28 administrative regions were also identified.

Part one of the constitution clearly spells out the regime's definition of the appropriate
social order. The state is declared to be "a state of working peasants in which the
intelligentsia, the revolutionary army, artisans and other democratic sections of society
participate." This section also outlines the manner in which popular participation is to
take place and how the people would exercise their powers through the election of
representatives to the national legislature body, the Shengo, and to more local
governmental bodies.

The structure and operations of the 835-member National Shengo, the supreme organ of
state power, were detailed in Part Three of the Constitution. Those elected to office had to
first be nominated by local cells of the WPE, mass organizations, military units, and selected
other bodies. Each electoral district averaged seventy-five thousand people in rural areas and
fifteen thousand in urban areas. A term of office was five years. The secretary general of
the Worker’s Party was also Chairman of the National Shengo (the parliament), the
executive president of the Republic and the commander-in-chief of the armed forces.
While formally the Shengo constituted the highest legislative body, in practice, the
Shengowas not to be sitting continuously but only once a year for a set period. The role of
the Shengo was undertaken by the State Council. It was the visible administrative organ
of state power with the highest responsibility for undertaking the day-to-day state
functions. It was also the permanent executive, legislative and administrative organ of the
National Shengo. Thereby the National Shengo’s role was reduced in a rubber-stamping
body of the WPE. The president practically accumulated as much power as the emperor
except for the alterations of names and rhetoric embodied constitution.

The constitution approved that ultimate power (popular sovereignty) resides in the
working people. The assembly of the National Shengo determined to be a means of
expression of their will. The constitution conferred the ultimate decision making power to
the National Shengo, which can supremely decide on most important issues. The National
Shengo was the legislative organ of the [Link] addition,the constitution of People’s

92 | P a g e
Democratic Republic of Ethiopia had conferred ultimate state power on the National
Shengo and its standing organ, the Council of State. The 1987 constitution also established
the council of the state, a very strong executive organ headed by the president. Although
the constitution placed some division of power as a structure, the reality was that all
powers converged into the hands of single person i.e President. He was the head of the
state, the council of the state, the Shengo and the armed forces. The setup is reminiscent of
the monarchical absolutism of Ethiopian history during both unwritten and written
constitutional epoch, in spite of the empire having changed into a republic and the
emperor into a president. This led to the suppression of the concept of separation of
power.

The National Shengowas responsible for electing the president, and vice president of
the country, and the vice presidents of the Council of State. The prime minister,
deputy prime ministers, other members of the Council of Ministers, and other
officers in standing commissions were to be elected on recommendation from the
president by the National Shengo. As suggested above, the President of the PDRE was
granted sweeping powers. Like the emperor, he could appoint and dismiss
governmental officers at any level, govern by decree, and in effect, despite the trappings of
separation of power into the executive, legislative and judicial branches of government, the
President could operate above the law. Rather than operating as an autonomous
legislature, the Shengooften found itself in the position of merely ratifying decisions that
had already been made by the President.

The constitution setup an independent judiciary, headed by the Supreme Court and also
established as another important organ of the government. Judges were elected, recalled
and dismissed by the parliament and more interestingly the term of their office was made
to be congruent of that of the parliament. Although judges were in those days, as in the
past, were to be guided by “no other authority than that the law”, it was clear more than
even before that the judiciary was under the double yoke of the executive and the
parliament. On top of this, socialist legality required the construction of laws in
accordance with “revolutionary legal consciousness”.

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Citizens' rights, freedoms and duties were covered in Part Two of the constitution. The
people were said to have guaranteed rights to work and leisure; free education; free
health care; individual human rights and the protection of private property; due
process; trial by a court; free legal counsel if needed; the right to vote; freedom of
assembly and expression; and religious freedoms. This latter freedom was a clear
departure from the previous two previous formal constitutions in that the Orthodox
Religion was deemed not to be the state religion.

As the different liberation front’s intensified their armed struggle against Derg
army, the question of nationalities resurfaced as the agenda of the Derg with the
establishment of Institute of Nationalities in 1983, which became operational in
1985. Similarly, the Derg also tried to address the ‘question of nationalities,’ with the
new government and constitution officially inaugurated on September 10, [Link],
within a week, the PDRE turned its attention to dealing directly with the burning
issues relating to group rights and self-determination. Commenting on the principal
cause of civil war, the constitution recognized the existence of nationalities but reaffirmed
that Ethiopia would remain a unitary state. It stated that the nationalities are equal and
ensured the equality of nationalities ‘through ... combating chauvinism and narrow minded
nationalism, [and by enhancing] the equality, respectability of the languages of
nationalities as well as through equal participation in political, economic, social and
cultural fields and through realization of regional autonomy’.In Article 3, the formation of
regional autonomy was indicated, and subsequently, five autonomous regions were
[Link] National Shengo was empowered to determine by subsequent legislation
the autonomous regions, their powers and boundaries. Subsequent proclamations defined
more the powers and duties of the autonomous regions. It did so by issuing a
proclamation calling for the administrative reorganization of the country, creating 24
administrative regions and five "autonomous regions". This was an obvious attempt to
diffuse widespread discontent among various nationality groups, particularly in Eritrea,
Tigray, the Ogaden, and some areas inhabited by the Oromo. It was clear that rather than
forthrightly addressing its ethnic or nationality problems, the regime was attempting to
repartition the country so as to minimize the importance of large and relatively
homogeneous regions, and to strengthen its ability to control politics as well as the

94 | P a g e
economy. The fact that special status was granted to some administrative regions reflects
the long-standing recognition on the part of the government that there was a serious
problem that deserved attention. Accordingly, the Shengo proposed five autonomous
regions and twenty-four administrative regions. The port city of Assab in the province of
Eritrea but without its Afar inhabited areas, and the regional commercial center Dire
Dawa for Issas in the Ogaden, for example, were granted autonomous status, thus allowing
the regime to retain the economic cores of those respective provinces. The new regional
structure announced sought to reorganize the entire basis of regional government
according to nationalities as determined by the Nationalities Institute, while dividing
several of the larger nationalities, including notably the Oromos, Amhars and Somalis,
over a number of [Link], the Amharas, the Oromos and other nationalities were
not in the list. It failed to be consistent with the recognition of the existence of various
nationalities, and even for the mentioned candidates the intention remained on power.

The reforms called for the creation of popularly elected provincial legislative assemblies
and executive officers. Regional governments were to have at least partial control over
policies and programs in such sectors as culture, health, education, taxation, and local
economic development. Moreover, despite the alleged significance of these reforms by the
national government, Eritrea, where a war of national liberation was intensifying at the
time, remained a special case. The central government controlled the port of Assab, and
the province was divided into three sub-regions, one of which, Sahel, was totally in
rebel hands.

Even though the administrative reorganization of the country was intended to lend
legitimacy to the Marxist regime and its programs, this did not stem the tide of
opposition. The reaction of the armed opposition nationalist movements fighting the
regime was swift and negative. Groups such as the OLF, TPLF, EPLF and the Mar
Liberation Front saw nothing new in the reforms, and in fact stepped up their criticisms
and resistance against the regime. By the end of 1987, administrative reforms were a
reality only on paper. The beginning of 1988 saw the TPLF and EPLF record significant
battlefield victories against the Ethiopian forces, and their capturing and holding
territory. Finally, failing to address the grievances of various nationalities, civil war

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escalated and as a result the government collapsed in May 1991 with entry of the
Ethiopian Peoples’ Revolutionary Democratic Front (EPRDF) to Addis Ababa.

The democratic provision of the constitution focused on democratic centralism, which is a

socialist form of democracy. Such democracy allows only the existence of a single state
party, which centrally controls and guides the politics of the state. In addition, long lists of
rights and freedoms were also stated in the constitution such rights as freedom of speech,
opinion, expression, assembly, religion… were provided under the framework of
democratic centralism.

All in all the deep scrutiny in to the constitution testifies that the state is strictly unitary
type where there is high centralization of power in the hands of executive as dominated by
the president of the state. In addition, giving too much emphasis to national unity and
emotional indignity of the state, most part of the constitution has also centrally focused on
basic principles of socialism. This unitary socialist state by the constitution gave a very
little concern for human rights and ethnic self-assertion and no concern for federalism.

Unlike the preceding constitutions, this constitution dedicates an article for amendment
procedure of the constitution. According to Art 119 of the constitution, a special procedure has to
be gone through prior to deciding in favor/against amendment. Accordingly, a three fourth
majority decision of members of the National Shengo has to be obtained in order to amend the
constitution. This, therefore, renders the constitution rigid. But, it should be remembered, once
again, that other factors play a major role in such decisions.

It is utterly impossible for us to say the constitution is perfectly rigid by looking at just this
article as the extent to which power is centralized might force us to consider other options. For
instance, the Secretary General of the sole political party, the Workers Party of Ethiopia, was
also the executive president of the Republic, the Chairman of the National Shengo, and the
commander-in-chief of the armed forces.

Besides, the People’s Democratic Republic Ethiopia constitution was different from the
1931 and the 1955 imperial constitutions in that constitution:

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___state and religion were separated (issue of secularism was included in the constitution)
for the first time;
____state the political power and sovereignty were declared to be the preserve of the
working people of Ethiopia.
___contains provisions on democratic and human rights;
___recognized the different cultural identities and the equality of Nation and Nationalities;
___introduced a party system by giving recognition to the workers party of Ethiopia.
Thus, leading to a transition from a none party system to a single party system;
___ aimed at the principles of Marxist and Leninist ideology;
___aimed at giving power to the peoples so that they exercise through referendum, local
and national assembly.

An important political development of the 1980s Derg epoch was the recognition of the
fact that despite all the forces the regime employed to destroy all opposition, the
struggle to overthrow the regime persisted in some quarters of the country, mainly in
Eritrea and Tigray. With a view to calm this resistance and to rob the rebels’ cause, the
PDRE Constitution expressly stated the possibility of organizing regional autonomies.
This Constitution was also the first to recognize the presence in Ethiopia of different
nationalities. It sought to combine the recognition of the cultural identity of ethnic or
national groups and a measure of autonomy for them, with overall subordination to the
center in the name of the ultimate supremacy of class solidarity over national identity.
What is mysterious is why it came to this point late in time as the regime hinted its
acknowledgement of the nationalities’ right to self-determination as early as it took
power.

Again formally speaking an attempt was made to decentralize power and the decision-
making process after thirteen brutal years of centralized military administration. A fresh
start was made to set up autonomous regions in the areas, which had been a focus of
civil strife, ethnic violence and war.

Yet, it soon became clear that the PDRE project with its approach to the regional
autonomy of some districts were all a means never taken seriously. Critics are
unanimous in pointing out that it was a sham attempt. Opposition to the regime stated

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‘It remained the Derg’s Republic not a people’s republic. Real power continued to be
exercised by those who seized power on 12 September 1974, that is, the same military
officers who have ruled the country under the PMAC continued to rule under the
People’s Democratic Republic, everything else being window-dressing. Those familiar
face who were in power before the establishment of the Republic was indeed serving
the new Republic and by the new Constitution they acquired a democratic legitimacy.’
If anything, the process only resulted in transfer of power from the military and PMAC
to the PDRE but in the end the same people who were responsible for all the turmoil
emerged as leaders in a civilian dress. As expected, Mengistu became the President of
the Republic and remained an accomplished dictator. The question of the return of the
military to the barracks and the formation of democratic institutions remained unre-
solved. Thus, it was an ‘attempt to wrap the military clique in civilian clothes bearing a
new name Peoples Republic but remained the same old dictator.

Derg removed some symbols associated with the old regime including the loss of the
Orthodox Church as a state religion. As already noted even the land reform failed to
maintain its popularity. The nationality issue, the legacy of the old regime and as
championed by the students remained unresolved and when the military tried to address
it towards the end of its regime, it was not only half-hearted but was also too late. To
this extent than one clearly sees the continuity, to an even aggravated degree of the
political and social ills of the old regime.

The continuity in the state structure with the old regime was clear. The centralization of
power by far exceeded the old regime. Clapham speaks of encadrement, ‘incorporation
into structures of control’, implying the complete control of the political space by the
Derg in all aspects of life, for instance, through the peasant associations, youth
associations, women associations, the kebele and all forms of associations one can
imagine giving no space for individual autonomy. The tradition of concentration of
power in the emperor transferred wholesale to the new head of state, the President,
backed by the only party allowed to operate, the WPE, itself controlling the dozen
associations. In this respect Clapham’s remark on the similarity of patterns between the
1955 and 1987 Constitution is worth quoting. ‘In a sense the two documents could

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scarcely be more different. The first was issued in the name of Haile Selassie I elect of
God emperor of Ethiopia, conquering Lion of the Tribe of Judah, the second in the
name of ‘we the working people of Ethiopia’, the role which in one is played by God
and the emperor was in the other taken over by the alliance of the workers and peasants,
the vanguard party. But in a sense the two can be seen as very similar documents. Both
of them were intended to consolidate the power of an existing regime by giving it a
formal basis, which on the one hand sought to convey an impression of legality and
participation to the domestic population and on the other sought external support and
recognition by adopting an acceptable external model.’ No one can comprehend vividly
the message of Clapham’s statement in the quotation at the beginning of this section.

Under these circumstances, the Derg’s commitment to regional autonomy was viewed
with suspicion. The extent of the administrative and autonomous regions to exercise
power decentralized to them was severed by the WPE’s centralized decision-making
structure and regional autonomy remained a dream that was never fulfilled. It was a
grant from the centralized government that could easily be revoked but besides that it
was too little too late. While it was originally argued that this move is right on the mark
in line with the program of the NDR and deserves wide support, however, as expected,
none of the liberation front’s participated in nor welcomed the move. It was never
considered a genuine attempt to solve the problem of the nationalities in Ethiopia.
Indeed, the Derg through its war policy gave further vigor to ethnic nationalism. The
nationalities question was pressed right after the revolution by the Oromo, Tigrayan and
Eritrean radicals. Certainly, the belated measure did not attract the Eritrean groups for
which an early federal accommodation would have been more appealing.

As one writer noted it was modeled after the former USSR’s approach to the question
of nationalities. The nationalities would enjoy cultural rights and a limited amount of
administrative autonomy within their own home areas subject to the overarching
control of the communist party. In the Ethiopian situation the WPE played this role and
in the end not even the minimal versions of self-autonomy were put into practice. All
discontents had to be resolved along class lines under the vanguard WPE and the
regime simply paid lip service to regional autonomy.

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The Constitution in dealing with regional autonomy did not offer any hope in terms of
reconciliation for peace with the opposition. A political solution to the crisis was never
whole-heartedly pursued. Political will on the part of the actors was manifestly absent.
Indeed, the Derg’s single-minded reliance on coercion on the northern periphery was an
essential ingredient in the sequence of events that followed. By totally alienating
peasants in Tigray and Eritrea and by creating the conditions for a series of diasporas
that began to interact with local politics the Dergset favorable conditions for the rise of
the (Tigray People’s Liberation Front) TPLF and EPLF.

These negative developments had a profound effect on the morale of the Ethiopian military
and in May 1989 there was an abortive coup against the regime. This came at the same
time that the Soviets had declared their intention to end their military and economic
support of the Ethiopian government. The Ethiopian army had expanded to more than six
hundred thousand at the time, and following the failed coup it began to implode as
whole units of troops defected, taking their arms and weapons with them, and joining
opposition forces. Over the next two years, the TPLF and its recently created umbrella
organization, the Ethiopian Peoples' Revolutionary Democratic Front (EPRDF), was able
to capture all of TigrayProvince, and large segments of Wollo, Gondar, and Showa
provinces. In Eritrea, the EPLF came to control all but the urban centers of Asmara,
Massawa, and Assab. By late 1990, the entire country was in turmoil, and on May 21,
1991, the Marxist regime finally fell to the forces of the EPRDF, and its leadership was
either captured or went into exile.

Transitional Charter of 1991

The P.D.R.E. Constitution was a short lived one. The Transitional Period Charter of 1991
replaced it. The Charter declared that the transitional period was to last no more than
two and a half years. The Charter in its preamble declared the overthrow of the military
dictatorship that has ruled Ethiopia for seventeen years presented a historical moment and
opened a new chapter in Ethiopia in which freedom, equal rights and self-administration of
all the peoples shall be the governing principles of political, economic and social life. The
Charter also guaranteed each nation, nationality and peoples the right to administer its own

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affairs within its own defined territory and effectively participate in the central government
on the basis of freedom, and fair and proper presentation.

“With respect to the central government, the Charter having stated that the Transitional
Government shall exercise all legal and political responsibilities for the governance of
Ethiopia, proceeded to establish the Council of Representatives, which exercised
legislative functions and oversaw the work of the Council of [Link] Council was
charged with constituting a commission to draw up a draft constitution. The draft
constitution in 1994 was first submitted for public discussion and then voted into effect
by a constituent assembly. Further legislation of the Council of Representatives, namely
Proclamations No. 1 and 2 of 1991 provided in detail for the powers and functions of the
President of the Transitional Government as well as the Prime Minister and Council of
Ministers – all of these institutions having been already established by the Charter.

Perhaps the two most important provisions of the transitional charter were articles II
and XIII. Article II asserted the right of all Ethiopian nationalities to self-determination,
the preservation of the national identities of each group, and the right of each nationality
to govern its own affairs within the context of a federated Ethiopia. Article XIII stated
that "there shall be a law establishing local and regional councils defined on the basis of
nationality." These provisions represented a dramatic departure from the policies of
previous regimes on the claims of various groups to the right of self-determination. The
new policy quickly prompted protests among Ethiopian nationalists, both at home
and abroad, who violently opposed the possible break-up of the unitary state of
Ethiopia.

Despite this, the EPRDF regime demonstrated its resoluteness in following through on
the administrative reorganization of the country along ethno-regional lines. It did this at
first through a series of proclamations over a period of years, and eventually the right
of states to self-determination was enshrined in the Constitution of 1994. For example,
Proclamation #7 fleshed out the provisions in the Charter dealing with the creation of a
federal system of states based upon ethno-linguistic criteria. Proclamation #26 of
1992 and Proclamation #33 of that same year sketched the out lines of a revenue

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sharing scheme involving central, state and local governments. The states would have
administrative autonomy, but they would receive substantial fiscal support from the
center.

National/ Regional self-government

The point ofdeparture for National/Regional Self-government set-up during the
Transitional period Charter of Ethiopia proclaimed by the peace and Democracy
Conference convened on July 1-5, 1991 in Addis Ababa. The Charter in preamble having
declared the “starting of a new chapter in Ethiopian history in which freedom, equal
rights and self-determination of all the peoples shall be the governing principles of
political, economic and social life,” went on Article 2, to affirm the rights of nation,
nationality and people the right to administer its own affairs within its own defined
territory and effectively participate in the central government on the basis of freedom,
and fair and proper representation”.

With respect to the central government, the Charter, having stated that the Transitional
Government shall exercise all legal and political responsibility for the governance of
Ethiopia, proceeded to establish Council of Representatives, which exercised legislative
functions and oversaw the work of the Council of Ministers.

The establishment of National Regional Self-government was provided for in

Proclamation 7 of 1991. Article 3 of the proclamation enumerated 63 identified nations,
nationalities, and peoples and established 14 regions. Eight of these regions were
composite regions embracing from 3 up to 13 identified nations, nationalities and
peoples. Four regions had one identified nation each and greater Addis Ababa with its
amalgam of urban and rural peoples formed a region by itself.
The proclamation provided for 48 of the identified nations, nationalities, and peoples to
be able to establish their own National/Regional Self-Governments at the Wereda level or
above. Moreover, it was provided that these Self-Governments of adjacent nations,
nationalities, and peoples may, by agreement, jointly establish a larger a larger Regional
Self-Government within any of the 14 regions specified.

The remaining 17 nationalities and peoples having small size population and therefore
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less than 50% of the population of Self-Government Wereda were incorporated in it.
These nationalities and peoples with small-size population and known as “minority
nationalities” nevertheless, were provided with appropriate representation in the Wereda
Council.

In the language of the Charter, “The Transitional Government shall exercise all legal and
political power for the governance of Ethiopia.” In no unequivocal manner the
Proclamation also stated, National/Regional Transitional Self-Governments are, in every
respects, entities subordinate to the Central Transitional Government.” Moreover, the
National/Regional Council which was “the repository of overall political power regarding
the internal affairs of the region” was made “accountable to the people who elected it and
to the Council of the Representatives of the Central Transitional Government.”

The 1995 FDREConstitution

The most important thing to note about the Ethiopian Constitution of 1994 is that it is
clearly a departure from previous Ethiopian constitutions. The clear-cut departure the
constitution of 1995 makes is based on the evaluation of previous systems. It is based on
the understanding that the previous constitutional orders, whether of a feudal monarchial
nature or of a Marxist dictatorial type, have failed to deliver what the society expected of
them. What the society expected is a constitutional order that, without sacrificing the
fundamental values of the society, drives it towards a sustainable political and socio-
economic development in an orderly and peaceful fashion. The state it envisages and the
government it establishes are different both in form and content. Unlike age-old
monarchical constitutions that are familiar landmarks in Ethiopian history, this
constitution provides for a republican constitution that has been promulgated; but while
the former one provided for a single-party system and a unitary government. That the
name of the state is the Federal Democratic Republic of Ethiopia is no coincidence.

The term “federal” comes from the Latin word foedus, meaning “treaty”, and implies the
existence of more than one set of authority. A federation is hence a dual polity.
Federalism has come to be seen as the only viable alternative to promote the management
of conflict prone multi-ethnic societies. Federalism, where properly implemented, has

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more often than not proved to offer tools for the better governance of supra-national
institutions and has both facilitated effective decision making in complex systems and
promoted democracy. Thus, it is not surprising that, within the short historical time-span
of two hundred years, about a third of countries in the world have evolved governments
that would be classified as federal systems.

The Constitution further proclaims the establishment of the Federal Democratic

Republic of Ethiopia, consisting of nine states. Four of these states, the Southern
Peoples' State, BenshangullGumaz, Gambela, Harari, rather than being purely
ethnically based are in fact heterogeneous. The only relatively homogenous states are
Tigray, Afar, Ahmara, Oromiya, and Somali states. However, the regime consistently
refers to its approach as "ethnic federalism."

How did the leaders of the EPRDF arrive at the decision to pursue federalism as a
governance strategy? At a very fundamental level this was a political decision, intended to
keep the EPRDF in the position of being the dominant player in the reconstruction of
Ethiopia. The leaders of the EPRDF initially in the transitional period had created a
broad political pact. However, by the end of 1993, the governing coalition had
considerably narrowed, when the EPRDF-dominated government in April of that year
ousted five political groups, calling themselves the Southern Coalition, from the Council
of Representatives for endorsing a resolution adopted at a conference of opposition
groups meeting in Paris, calling for the dissolution of the Council. 'Thus, the membership
of the Council was reduced to the representatives of the EPRDF and ethnically based
parties it had created." Organized opposition inside the country by this time was
generally repressed. Major ethnically based parties were completely shut out of the
pact that formed the TGE or were forced out over the first two years of the transition.

National, state and local elections have occurred since the early 1990s, but only
recently in national elections have opposition parties presented credible challenges
to the EPRDF regime. Between 1992 and 2004, opposition parties either opted
voluntarily not to participate or were kept out by forces loyal to the EPRDF. But, in
the build up to the parliamentary elections of 2005, more than sixty political parties

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were registered, and two, the Coalition for Unity and Democracy (CUD) and the
United Ethiopian Democratic Forces (UEDF), proved quite competitive against the
incumbent regime. Whereas in 2000, opposition parties were only able to garner 12
parliamentary seats, in the 2005 election opposition parties won almost two hundred
seats out of the total of 547.

The objectives of the EPRDF in implementing its federal strategy seemed noble enough.
The regime claimed that it wanted to reduce the ethnic tensions and conflicts that
had dominated the modern history of Ethiopia; to forthrightly tackle social and
economic problems in such a way that all ethnic groups were treated as equals; to build
a democratic society; and to construct effective, efficient and uncorrupt systems of
governance. In order to do this, there would have to be a new social compact for
the polity. However, rather than such a compact being negotiated among elites
representing the major groups in society; or rather than this compact emerging in an
organic manner, it was imposed from the top.

Even though Ethiopia's recent experiment with federalism has been hailed by some as
novel and successful, the approach does not have the benefit of a popular consensus or
even widespread support in large segments of the population. There are many in the
public at large who contend that by definition a development strategy involving ethnic
federalism is fatally [Link] is the predominant view of citizens who feel that such
a strategy will ultimately result in the demise of a unitary Ethiopian state. Some
scholars question this approach because they claim it is likely to lead to more rather
than less ethnically based conflict.

Despite such concerns, the EPRDF government has forged ahead with its plans,
justifying this approach based on the fact that its first priority is the removal of social
inequalities based upon ethnicity. One of the government's chief ideologues in 1995,
citing the historic failure of previous Ethiopian governments to effectively address
the problem of ethnic disharmony stated, We must find a solution which is beneficial
to the Ethiopian people today, therefore, history will not provide the answer."

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Whether one agrees or disagrees with Ethiopia's strategy of ethnic federalism, the
process of constructing it will not be easy. In spite of the fact that international donors
tend to accentuate the positives in this approach, there are hardly any examples of states
that have followed the path of ethnic federalism and succeeded. In fact, the most
successful cases to date have been only Canada and Switzerland. Other states such as
Malaysia, Singapore, India and Nigeria have only limitedly succeeded and are still
wrought with regular intervals of violent ethnic conflict. In order for Ethiopia to
succeed, it will have to be blessed with committed and enlightened leadership from all
walks of life, particularly government, and effective federal institutions. Moreover,
whatever federalism is implemented, it will have to be crafted so as to take into account
the unique features of a multi-ethnic Ethiopia.

The experiment currently underway is indeed hybrid federalism with many features
that are characteristically Ethiopian. In structural terms, the Federal Democratic
Republic of Ethiopia resembles federal states in most parts of the world. As mentioned
above, it consists of nine regional states, based, and two charter cities, Addis Ababa and
Dire Dawa. In addition, Ethiopia is made up of 66 administrative zones (provinces), 550
woredas(districts) and 6 special districts. Each of the four levels of government has more
or less the same structures, with executive, legislative and judicial branches. The
regional state bureaucracy carries out the day-to-day operations of government.

Regional state powers include the implementation of state constitutions as well as

social (e.g. language policy, education policy) and economic development policies and
plans; the policing function, the administration of land and natural resources according to
Federal law; taxation in such areas as personal income (except for federal state and
international employees); certain producer and manufacture taxes; and certain joint
taxes with the federal government.

Although most taxing powers rest with the federal government, most of the expenditure
obligations of government in this federal system are the responsibility of regional states.
The central government has rather narrow responsibilities. It is responsible for collecting
most taxes, including import and export taxes, setting national economic and social

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policies, establishing national standards in areas such as commerce and trade, finance,
and transportation. Also, like central governments in federal states, it is responsible for the
conduct of foreign policy, insuring national defense, monetary policy, and setting policy
relating to inter-regional state transportation and commerce.

However, Ethiopian federalism is not a pure type, but a hybrid that resembles a
form of "centralized federalism. This system is in part deconcentrated—
operatingthrough regionalized agents of the central state—and in part devolved,
with regional states having corporate power of their own. In spite of the fact that the
constitution gives a great deal of power and administrative authority to regional states,
the overwhelming amount of political power in this system rests with the central
government. Because of this, in practice, Ethiopia operates more like a unitary state,
with regional states closely following the policy lead of the center, rather than asserting
their policy independence. The most important and powerful figure in the country is
the Prime Minister, the leader of the ruling EPRDF. There is also a figurehead or titular
president whose role is mainly ceremonial. Moreover, through constitutional means, the
EPRDF government has systematically neutralized political opposition, and placed
political elite and party cadre who support it in positions of power and authority at the
regional level.

At the same time, the central government has set up a devolved system of
administration, ostensibly in an effort to bring government closer to the people and to
create an environment conducive to peoples' empowerment. However, as has been
found elsewhere, devolution can often enhance the control of the center rather than
reducing it, especially when regional states do not have sufficient taxing powers or other
means of generating their own revenue.

In poor and deeply divided countries, such as Ethiopia, administrative devolution

would under the best of circumstances be risky business. Poverty and weak,
uncoordinated administrative institutions have generally proven to be anathema to
the successful implementation of devolved federalism. Such an approach has the
tendency to limit population movement between and among regional states; could

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lead to demands for secession from the federal state; limit the ability of the central
government to take an effective lead in the development of the country; and could
inhibit the development of an open and free market that integrates all parts of the
country.

TheSalient Featuresof the 1994 Constitution

The most important thing to note about the Ethiopian constitution of 1994 is that it is
clearly a departure from all previous Ethiopian constitutions. The State it envisages and the
government it establishes are different both in form content. Unlike age-old monarchical
constitutions that are familiar land marks in Ethiopian history, the constitution provides for
a republican form of government. To be sure, it is the second republican constitution that
has been promulgated; but while the former one provided for a single party system and a
unitary government, the 1994 Constitution provides for a federal multi-party system of
government.

The clear departure the constitution of 1994 make is based on the evaluation of previous
constitutional experiences. It is based on the understanding that the previous constitutional
orders, whether of a feudal monarchical nature or of a Marxist dictatorial type, have failed
to deliver what the society expected (and still expects), put in nutshell is a constitutional
order that, without sacrificing the fundamental values of the society propels it towards a
sustainable political and socio-economic development in an orderly and peaceful fashion.

Worldwide, the pace of change since the industrial revolution has been accelerating and
Ethiopia could not remain unaffected. Already a big colonial battle was fought victoriously
at the end of the last century. A railway way line extended from the sea inland up to the
capital in the early years of a new country and this brought in not only new goods but also
new ideas. The work of Christian missionaries in education through the decades, together
with the government’s own efforts, helped create a new intellectual modernizing elite. The
Second World War and United Nations-blessed Eritrean unification at mid-century helped
shake the traditional frame of mind. Ethiopia’s participation in the United Nations forces in
Korea and later in Congo played its part in the awakening within the armed forced. And
finally the coup’detat paved the way for a final and decisive confrontation with a late–

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modernizing feudal monarchy.

With the drought as the last straw to break the camel’s back, the monarchy was swept away
in 1994. In its eagerness for a short cut to socio-economic development, Ethiopia, under the
leadership of the military junta known as Dergue, soon joined the Cold War bandwagon as
a vigorous player and became the Soviet Union satellite. The Marxist blue print for overall
development, replete with instant friends and foes internally and internationally, initially
created a new sense of direction and the feeling that the society was now moving away
from century’s old stagnation.

The 1994 Federal Democratic Republic of Ethiopian Constitution, as new beginning is not
surprising. The question is has Ethiopia chosen wisely this time in order to achieve the
goals it has set for itself?

Ethnicity as a Major Component

One feature of great import throughout the Constitution, and one that places this
constitution on a pedestal of its own, more or less, is the utmost significance given to the
ethno-linguistic components of the society. The preamble of the constitution does not open
with the familiar “We the People …” it is “We, the Nations, Nationalities and the Peoples
of Ethiopia …” This is not a constitution of Ethiopian Citizens are the first categorized in
their different ethno-linguistic groupings and the nationality issue has historico-political
and socio-economic significance beyond the cultural and linguistic expressions. Indeed,
“We the Nations, Nationalities and Peoples …” recognizes Ethiopia as a Nation of Nations.
But what is Nations, Nationalities and peoples? A "Nation, Nationality or People" for the
purpose of this Constitution, is a group of people who have or share a large measure of a
common culture or similar customs, mutual intelligibility of language, belief in a common
or related identities, a common psychological make-up, and who inhabit an identifiable,
predominantly contiguous territory. Both subjective and objective elements constitute
definition of Nations, Nationalities and Peoples. Objective elements constitute common
culture, language and territory, while identity and psychological makeup constitute
subjective elements. The Constitution, therefore, necessarily becomes a constitution of a
Nation of Nations. The importance given to the ethno-linguistic components of the society

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by the constitution is absolute and real, and cannot be overemphasized. This rather unusual
constitutional approach has been hailed, on the one hand, as a stroke of genius that will
uplift Ethiopia from its age old backwardness and, on the other, as the sign of the first
cracks for disintegration.

However, some scholars argue that constitution envisages a hierarchy between the different
ethnic communities by designating some as nations, others as nationalities. In such a way
nation denotes ethnic group from large (nation), medium (nationals) small (people) in both
numerical size and political significance. For instance, Alem (2005) illustrate this position
by stating Oromo as Nations, Agaw as Nationality and Koma as People. But meaningful
distinctions among three categories are not inferred from the constitution.

One cannot stop wondering why the term ‘federation’ has not been used. Another interesting
point that emerges is the emphasis given to the concepts of nation, nationality and peoples.
Nations, nationalities and peoples, and not geographical regions are the point of departure of the
Self-Government. Some may argue that this is a carry-over from ideological thinking. It must be
pointed out, however, that the psychological make-up of the Ethiopian people contains a heavy
dose of emphasis of ethnic background. The spontaneous ethnic political grouping so strongly
reflected in the Council of Representatives is a good example. In a free political process, aiming
at a democratic society, ethnicity seems the inevitable stepping-stone to political maturity. Some
fear that the risk for political disintegration and violence are too great. Others point out, taking
negative examples from recent Ethiopian history that an iron-fetters policy, which denies the
recognition of ethnicity, actually results in disintegration. The achievement of peace and stability
within the short period under the Charter is remarkable and this augurs a bright future for
Ethiopia.

“We the Nations, Nationalities and the Peoples of Ethiopia …” is a formula that has been
developed to its full extent in the constitution. As a concept that has bloomed fully, it has
resulted in federalism as the only logical alternative in government. Moreover, the type of
federalism it has unfurled is not a territorial federalism but an ethnic federalism. To be sure,
it is not as simple as all ethnic groups simply coming together to form the federation. Some
minority ethnic groups (i.e., those with significantly less population) have joined with

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much larger ethnic groups within a state, or have joined together again to form a state. And
these states formed on the basis of ethnicity have then come together to form a federation.
These states have retained the characteristics of their ethnic groups for governmental and
other ongoing constitutional purposes. The ethnicity of states is not just of historical
importance, it is of actual significance in the everyday life of the people and of the
federation as a whole.

Parliamentary Democracy
Another salient feature of the 1994 Constitution is establishment of parliamentary
democracy in the manner in which it have been working in most of Western States and
North America. The use of the term “parliamentary democracy” assumes the exercise of
freely and fairly contested, periodic election and representative assembly or assemblies that
are the expression of popular will and hold power for a mandated period. The Constitution
in this respect provides for a two chamber parliament known as the Federal Houses. They
are the House of Peoples Representatives and the House of Federation. The Constitution
also provides for a one chamber state Council at state level. The House of Peoples’
Representatives is “the highest authority of the Federal Government, “and the state Council
is “the highest organ of state authority.” The House of Federation which is composed of
representatives of Nations, Nationalities and Peoples” is the other representative assembly
with specific powers, including the ultimate “power to interpret the Constitution” and to
decide on other matters of grave constitutional concern such as the right to secession.

The Right to Secession

The right to secession is one of the peculiar features of the constitution that again that
emanates from the overriding significance given to the ethno-linguistic notion of nation,
nationality and the people. The right to secession is part of the broader right to self-
determination. The right to self-determination includes the right to develop one’s
languages, promotes one’s culture and preserves one’s history. Beyond that it includes the
right to self-government and equitable representation in state and national government. The
right to secession is the ultimate extension and expression of the right to self-determination
and the Constitution provides a detailed set of procedures by which this right may be
exercised, if necessary. According to FDRE constitution Article 39 (4), the right to self-

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determination, including secession, of every Nation, Nationality and People shall come into
effect:

(a) When a demand for secession has been approved by a two-thirds majority of the
members of the Legislative Council of the Nation, Nationality or People concerned;

(b) When the Federal Government has organized a referendum which must take place
within three years from the time it received the concerned council's decision for secession;

(c) When the demand for secession is supported by a majority vote in the referendum;

(d) When the Federal Government will have transferred its powers to the Council of the
Nation, Nationality or People who has voted to secede; and

(e) When the division of assets is effected in a manner prescribed by law.

However, the constitution did not mention the reason for the claim for secession rather than
listing procedures.

The right to secession is definitely the most controversial item in the constitution. This
right under “The Nationality Right has been pointed out as a basis for unity in diversity and
serves as litmus test for democracy. It can be a guarantee for sustainable peace and a solid
foundation for unity based on equality and mutual respect. The argument marshaled in
favor of the right to secession by any nation, nationality, or people are based on the
understanding that the nation-state exists to serve the people and vice-versa. If any nation,
nationality or the people strongly and consistently feel its interests are not being properly
served by existing status quo, it should be able to change it. Obviously the other nations,
nationalities, and the people have quite a say through the process of accommodation.

Ownership of Land
Another item of the Constitution which is hotly debated, but on economic rather than
political terms, is the question of ownership of land. The Constitution explicitly states that,
“the right to ownership of rural and urban land…is exclusively vested in the state and in the
peoples of Ethiopia.” It goes on to add, “Land is a common property of the Nations,
Nationalities and Peoples of Ethiopia and shall not be subject to sale or other means of
transfer.” The general principle that land, be it urban rural, should not be considered simply

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as a market commodity is based on the Ethiopian experience of long standing. The extra-
ordinary significance attached to land that propels it beyond it beyond market forces is
usually put in philosophical language. Land is seen in an intergenerational manner as
having belonged to one’s parents, grand-parents, great grand-parents and will belong to
one’s children, grandchildren, great-grandchildren. Beyond that, land is also seen as the
common property of the extended family, the clan, the tribe, and etc. one cannot forget that
land touches sensitive chords in a traditional society that is particularly subsistence-
agriculture based. Other modalities of use of land in traditional society will also attribute
special value beyond market forces to land and natural resources contained, be the water,
minerals, or pastures and forests.

This does not mean, however, that land is therefore frozen in the interests of status quo. Its
exploitation through market forces and otherwise is not only permitted but expected and
encouraged. Where ownership is understood in its original Roman definition as being the
sum total of use (usus), enjoyment of its fruits (fructus), and disposing thereof (abusus), it
is only the last item that is not available to market forces. The use of land and enjoyment of
its fruits through market forces and in accordance with the laws and regulations that pertain
to it are not affected. Thus, the renting, leasing, and developing of land is both expected
and encouraged.

Language Policy
Still another salient feature of the constitution that emanates from Ethiopia being a country
of Nations, Nationalities, and Peoples is the constitutional provisions dealing with
languages. The general principle laid down by constitution is “all Ethiopian languages shall
enjoy equal state recognition.” When this provision is put together with the provision of
Article 39 (2), which provides each nation, Nationality or People with “the right to speak,
to write and to develop its own language…” as part of the right to self-determination, then
it becomes clear that this general principle is not a matter of platitude, a principle with a
hollow ring. State recognition of every Ethiopian language means that effort for its
development – i.e., the preservation of its literature; the provision for a script, where such
does not exist; the documentation of its oral literature; and the further study of each
language via grammatical, vocabulary and over all publication and enhanced use of the

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language will be done with both state blessing and state support to the extent possible.

Having said this, the question of state use of language has to be settled. Here two
provisions are made, at federal and the other state level. At federal level, Amharic is made
the working language of the state. This means that the Federal State in all its official
dealing shall employ Amharic as its language. But member states of the federation are
allowed by the Constitution to determine their respective working language by law. In
other words, each member state through a law promulgated by its legislative council will
have to determine what the official language of the member state is. There is no question
that this process of accommodation at the linguistic level is a reflection of overall
accommodation process that federalism provides. The balance will have to be made
between the need for non-cumbersome mode of communication as is required for a
modernizing state on the one hand, and on the other the need of the different ethnic groups
to feel that their identity is fully recognized and respected.

Fundamental Rights and Freedoms

A significant thrust of the constitution is achieved in the field of fundamental rights and
freedoms. Nearly one-third of the provisions of the Constitution deal with fundamental
rights and freedoms. Chapter 3 of the Constitution is divided into two parts and rights are
categorized as human rights and democratic rights. Human rights deal basically with the
rights and freedoms of the individuals and include the classical, first-generation rights
covered by the International Bill of Rights. The right to life, liberty, and security of the
person, as well as the right of the person in a criminal case, to be treated humanely and
fairly, with all procedural and substantive safeguards intact. Throughout the process are
carefully spelt out. The right to equality before the law, the right to protection to the
protection of privacy and the right to freedom of religion, belief, and conscience are all
covered as parts of human rights.

The compartmentalization of rights as human rights on the one hand and democratic rights
on the other is not water-tight. Democratic rights tend to be more group oriented and/or
political in nature. The right to freedom of thoughts and expression, the right of assembly
demonstration, and petition, the freedom of association, and the freedom of movement are

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included in the second category. Going deep into what have internationally come to be
known as second and third generation rights or socio-economic and solidarity rights, the
Constitution in addition provides for the rights to development and environmental right.

Federal and member state courts with respective judicial authority and independent
judiciary are empowered to interpret and enforce the Constitution and the whole legal
regime. A council of constitutional inquiry is also provided for, whose task is to examine
constitutional issues and to submit to its findings to the House of Federation for final
decision.

That the Council of Peoples’ Representatives establishes the Human Rights Commission
and the institution of Ombudsman reveals the importance given to fundamental freedoms
by Constitution is that it is serious with respect for human rights.

Constitutional Amendment
Another interesting feature of FDRE Constitution is its amendment procedures. True to
federal systems, it involves both regional and federal legislative organs in process. The
formal initiation of constitutional amendment can come from either regional or federal
legislative organs. Where the initiatives come from the regions, a third of state council
must have supported a draft by majority vote. Otherwise either of the Federal Houses can
initiate a constitutional amendment by two–third majority vote.

Constitutional amendments are then categorized in to two. Ordinary constitutional

amendments require a two-third majority vote in joint meeting of the Federal Houses as
well as majority vote in two-thirds of state councils.

Where constitutional amendments deals with fundamental rights and freedoms enshrined in
the constitution or the constitutional amendment initiation procedures of Article 104, a
more stringent requirement is introduced in such cases, the Federal Houses must each
accept the proposal by a two-third majority and all state councils must pass the draft by
majority vote. Constitutional amendments in addition require popular discussion and may
be submitted for referendum.

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State of Emergency
State of emergency is an unfortunate and exceptional situation that may arise in the life of
state. To foresee such a possibility and to provide for specific procedures to avert the
danger posed is not uncommon in constitutions. How constitutions handle a state of
emergency, however, varies from one system to another. The Ethiopian constitution
provides for specific procedures and institutions to come to life on a temporary basis when
situations occur that amount to a state emergency. At Federal level, any of the following
conditions may trigger state of emergency:

a. External invasion
b. Serious breakdown of law and order
c. Natural disaster, or
d. Serious outbreaks of epidemics.

The Council of Ministers has the power, under such circumstances, to issue a decree
proclaiming a state of emergency and, through regulations it issues, take the necessary
measure to protect the country’s sovereignty and peace, and to maintain public security,
law and order. To this end the Council of Ministers may suspend democratic and political
rights provided for in the constitution as necessary. The Council of Ministers, however, has
the duty to submit the emergency decree to the House of Peoples’ Representatives within
48 hours of its adoption if the House is in session and within 15 days if not in session.

Once adopted by the House of Peoples’ Representatives, an emergency proclamation stays

in effect up to six months and can be extended for a four-month period successively. The
constitution also provides for the simultaneous establishment of an Emergency Board to
oversee the implementation of state of emergency proclamation. The seven-person
Emergency Board appointed by House of Peoples’ Representatives from among its
members and from legal experts is particularly empowered to ensure respect for human
rights during a state of emergency.

From Prescription to Application

These, then, are the important considerations that characterize the Ethiopian constitution of
1994 and imprint an exclusive personality known as the Federal Democratic Republic of

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Ethiopia. The constitution is “supreme law of the land” and any law, customary practice, or
decision of an agency of government or official that contravenes this constitution is null
and void. The law, in its full sense, is not only prescription but both prescription and
application is a notion the realistic school of law has been making and emphasizing for a
long period of time. Indeed, prescription without enforcement is nothing but pretense. But
here something totally different is envisaged. At the time of the establishment of the
Constitutional Commission in 1993, the President of Transitional Government in his key
note address emphasized the great importance of the application and enforcement aspect of
the constitutional process. Hence, one looks forward at this initial stage of the development
of the new constitutional process in Ethiopia to the strict application of the provisions of
the constitution in the spirit of peace, the enjoyment of human and democratic rights, and in
the common interest. This would be the additional distinctive and salient feature of the
constitution.

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