Chapter Five

Constitution, Democracy And Human Rights

5.1. Chapter Introduction

This chapter presents the core meanings and notions of human rights, constitution and
democracy. In doing so, the main theoretical arguments, scholastic debates and interpretations
will be provided under these topics sandwiched with practical examples from our country and
beyond.
5.2. Chapter Objectives
After the successful completion of this chapter, students will be able to:
 Recognize the definitions of Human Rights, constitution and democracy.
 Be aware of the nature and characteristics of Human Rights.
 Be familiar with the classifications and categories of Human Rights.
 Differentiate constitution from constitutionalism.
 Examine the classifications of constitution.
 Identify the roles of the actors of democratization.
 Learn about evolution and development of Human Rights and Democracy.
 Understand the central values and principles of democracy.

5.3. Constitution and Constitutionalism

Class Discussion: Dear students, how do you define the term constitution?

5.3.1. Conceptualizing Constitution

The word ‘constitution’ is used mainly in many senses-constitution of a body, constitution of
trade union, constitution of political party etc. In a political sense, it signifies the constitution of
the state. Now the term has attained a normative connotation and has become another term for a
‘democratic political order.’ Every state must have constitution of its own and that its
government must be
organized and conducted according to the rules of the constitution so that the people must have a
rule of law, it constitutes the case of constitutionalism.

Constitution is figuratively defined as the fundamental or basic law of a state which sets out the
structure of the state and also lists the rights of citizens alongside the limits on the power
exercise of a government. It is a blue print placed on top the hierarchy of laws on constitutional
governments. A constitution may be said to be a collection of principles according to which the
powers of the government, the rights of the governed, and the relation between the two are
adjusted.

In other words, constitution refers to body of rules and laws, (written or unwritten) that
determine the organization of government and the distribution of powers and functions to various
organs of government, regulate the relationship among themselves and also between the state and
its individuals through general principles on which these powers are to be exercised. Constitution
is the mothers of all laws; all other ordinary laws are derived from and subjected to this blue
print. Hence, since constitution is supreme law of a land, any other law contradicted with the
provisions of the constitution becomes void or invalid.
5.3.2. Peculiar Features of Constitution

Class Discussion:
How constitution is similar or different from
other laws?
With a few exceptions, all constitutions contain some common elements. From Magna Carta of
1215 to today, constitutional documents and traditions take the general form of a contract or an
agreement between the ruled and the rulers. Limitations on the rulers are exacted by the ruled in
exchange for allowing the rulers to preserve some elements of their right to govern and for
preserving the stability of the governing system itself.

In addition, constitution has distinctive features that distinguish it from any other laws. The
following are some of the distinctive features of a 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 framework 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 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.

C. Supremacy: Constitutions are laws about the political procedures to be followed in making
laws. They are supreme laws, taking precedence over all others, and defining how all the others
should be made. 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.

D. Codified document: Constitutions are written down; often in a single document that presents
the constitution in a systematic manner. 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 favour with a majority of its people.

E. Allocation of powers: Constitutions outline the proper relations between institutions and
offices of the state, and between government and citizens. This is probably the most crucial part
because it
allocates powers and functions to government and specifies the rights and duties of governments
and citizens-who can do what, to whom, and under what circumstances.
5.3.3. Major Purposes and Functions of Constitution

Brainstorming question:
What do you think are the basic purposes and functions of
for further prominent purposes. Hence, the following are some of the major purposes and
The existence of a constitution in a country is not an end in itself since the constitution is a
functions
means of constitution.

1. It serves as a framework for Government: This means that the constitution of state is a
plan for organizing the operation of government which in turn effectively guides the
functions and powers of the executive, legislative and judicial bodies of government. In other
words, it is a brief and a general outline of duties and rights of governments and also that of
citizens.

2. It Limits the Powers of Government: In a constitutionally limited government, officials are

always abided by the constitution. i.e there is no decision or action that will be undertaken
arbitrarily and spontaneously rather every decision, act, or behavior is entertained according
to rules and laws that originate from the constitution. This subjection to the laws and rules
from the part of the government and the governed (the people) is coined as the rule of law.
However, Constitutional government protects the rights and a freedom of citizens doesn’t
mean that the government has no authority to effectively exercise its functions. A
constitutional Government is neither too powerful nor too weak because if a government is
excessively powerful, i.e. if it has unlimited powers, it tends to abuse the rights and freedoms
of citizens. If, on the other hand, a government is too weak it can’t protect citizens.
Therefore, constitutions shall grant Governments enough powers to effectively and
consistently undertake their functions and responsibilities but at the same time must put
limits on their powers to make sure that they are not in a position to endanger the rights and
freedoms of citizens.

3. It protects individual and collective rights of citizens: To protect the individual and
collective rights and freedoms of people, the constitution of a state lay down the relationship
between the state and the individual by making out the respective spheres of government on
the one hand, and the individual and collective rights and freedoms on the other.
4. It serves as the Supreme (Highest) Law of a Country: this implies that Constitution is the
source of and supreme over all laws in a country. i.e. No specific law will be valid if it
contradicts the constitution. All laws in a country are made to fulfil the objectives and goals
clearly specified in a constitution of a given country. Because of this, the constitution of state
is referred to as “the law behind other laws or “the mother of all laws” of a country.

5. It provides Government legitimacy/stability: as it formalize and regulate

relationships between political bodies and citizens and also provide mechanisms through
which any potential conflicts can be adjudicated and resolved, constitution usually provide
the vital function of introducing a measure of stability, order, and predictability of
government. This in turn gives governments a legitimate/legal right to rule or govern and by
doing so it serves as the weapon for legitimizing regimes.

6. Constitution Blue Prints for establishing Values and Goals: In a constitution there 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
members of any organization. This sort of positive declaration also usually has a way of
offering bearing to the operation of the constitution as well as affording the 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;
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.
5.3.4. Classification of Constitutions

Brainstorming question:
Can you mention different types of constitutions?

Constitutions are classified into different categories using different criteria. For instance, taking
the criteria, form, amendment procedure and degree of implementation/practice, constitutions
can be classified into the following categories.

A. Constitution based on form

Constitutions, in view of the breadth of written provisions, have been described as written and
unwritten constitutions. Or based on form/appearance constitutions can be classified as written
and unwritten.

1. Written Constitution

In simple terms, a written constitution is one whose provisions are written in detail. A written
constitution is one in which most of the provisions are embodied in a single formal written
instrument or instruments. It is a work of a conscious art and the result of deliberate effort to lay
down a body of fundamental principles under which a government is organised and conducted.
Thus, written constitution is a formal document that defines the nature of the constitutional
settlement, the rules that govern the political system and the rights of citizens and governments
in a codified form. It exists in a single document containing the fundamental laws and principles
specifying the rights of citizens, defines the political structure of a state and determines the
distribution of government powers; it serves as a supreme law of the state. For example, India,
Kenya, Ethiopia, USA, Germany, Brazil, Indonesia, Jordan, Venezuela and Nigeria have written
form of constitution. Written constitution has certain merits and demerits.

Merits of Written Constitution

 It is easily accessible to citizens that enable them to monitor the behavior of their government
thus preventing the emergency of dictatorship
 Citizens can easily learn about their rights and duties and the basic laws governing the
patterns of political processes of their nation
 It is full of clarity and definiteness because the provisions are written in detail.
 It has the quality of stability, since people know the nature of constitutional provisions , they
feel a sense of satisfaction

Demerits of written constitution

 It creates a situation of rigidity. Since all important rules are on writing, attempts are made to
act according to rules. It leads to the development of a conservative attitude.
 It becomes difficult to change it easily quickly as per the requirements of time. As such the
possibilities of mass upheaval are increased.
 A written constitution becomes a play thing in the hands of the lawyers and the courts.
Different interpretations come up from time to time that unsettle the judicial thought of the
country.
 Written constitution is not easily adapted to a new situation or changing circumstances. It
needs be continuously amended to be adapted to a new situation

2. Unwritten Constitution

Unwritten constitution is basically means that the fundamental principles and powers of the
government are not written down in any single document. An unwritten constitution is one
whose
written provisions are very brief and most of the rules of the constitution exist in the form of
usages and customs. It consists of customs, conventions, traditions, and some written laws
bearing different dates. The British constitution is the best example of unwritten constitution.
The most of the prescriptions of an unwritten constitution have never been reduced to writing
and formally embodied in a document. It is made up, largely of customs and judicial decisions.

Merits of Unwritten Constitution

 It has the quality of elasticity and adaptability. Since, most of the rules are in an unwritten
form, people may adapt them in response to the new constitution.
 It is so dynamic that it prevents the chances of popular uprisings.
 Unwritten constitution can absorb and also recover from shocks that may destroy a written
constitution. It looks like a natural outgrowth of a national life.

Demerits of Unwritten Constitution

 Since it is not compiled in to a single document, it is not easily accessible to the public to
determine which aspects of the constitution are violated and when it is violated
 It is difficult to create awareness through education on the fundamental constitutional rights
and duties of citizens because it is not easily accessible to citizens
 It leads to situations of instability. The provisions of such a constitution may change the spur
of the moment and so they are always in a state of flux as per the emotions, passions and
fancies of the people.
 It leads to the state of confusion. Controversies often arise over different provisions of the
constitution having their place in the usages and customs of the country.
 Unwritten constitution may be suitable to a monarchical or aristocratic system. It certainly
does not suit a democracy where people are always conscious and suspicious of
constitutional provisions

B. Constitution based on complexity of amending process

On the basis of the distinction in the process of amendment, constitutions may be classified as
rigid and flexible.
1. Rigid Constitution

Here, the process of amendment is difficult. A special procedure is followed to make a change in
any rule of the constitution. A constitutional amendment bill must be passed by the parliament by
special majority. Then it is to be approved either by the provincial units or by the people in a
referendum or both. Thus, rigid constitution is one that does not adapt itself to changing
circumstances immediately and quickly or simply one whose amendment procedures are
relatively complex or difficult. A more difficult procedure of constitutional amendment is the
one which requires a national referendum. A referendum is the process of direct voting by
citizens to support or rejects at constitutional amendment or other major national issues. Those
countries like USA, Australia, Denmark and Switzerland are known to have rigid constitutions.

2. Flexible Constitution

Flexible constitution is the constitution which set up simple amendment procedure and there is as
such no special required procedure for amending a constitution. The simplest and commonest
amendment procedure is the one which requires an absolute majority (two thirds support) in the
parliament. If it is very simple and convenient, the constitution is flexible. Any new law made by
the parliament gives a new rule to the constitution. Flexible constitution is one that adapts easily
and immediately to changing circumstances or simply one whose amendment procedures are
relatively simple. For instance, constitutions, such as those of the United Kingdom and New
Zealand, may be altered by a simple majority vote in the legislature.

C. Constitution based on degree of practice

On the basis of the degree to which constitution of state observed in practice, or on the basis of
the relationship between constitutional rules and laws and principles, on the one hand, and the
practice of the government (the workings) of the constitution, on the other hand, we can have
effective and Nominal Constitution of State.

1. Effective Constitution: Effective constitution denotes to a situation in which

government/citizens practices correspond to the provisions of the constitution. Thus, an
effective constitution of state requires not merely the existence of constitutional rules and
laws
 but also the capacity of those rules and laws to constrain or limit government behavior and
activities, and establish Constitutionalism.

2. Nominal constitution: the constitution accurately describes government’/citizens’ limits yet in

practice either or both fail to behave accordingly. In short when the constitution only remains
to have paper value or when there is absence of constitutionalism. This is a constitution of
state that shows the texts, principles, rules and laws that may accurately describe the
government behavior but fail to limit government behavior and activities in practice.
Therefore, a nominal Constitution is not observed in practice but in form.

D. Based on the kind of state structure

Constitutions either concentrate powers at the centre or distribute it among the different branches
and levels of government. Such a constitution is called unitary and federal constitution
respectively. This classification of constitution is based on the kind of state structure made by the
constitution. In this regard, it can be classified as federal or unitary.

1. Federal Constitution: Federal constitution is one that distributes power among the different
units of a state administration. But the model that is followed by constitutions in distributing
state power differs from each other. Some constitutions purely classify and decentralize
power between the central government and regional/local units and such constitutions are
referred as federal constitutions. In many states, for example, the United States of America,
Canada, Australia and Malaysia, there exists a division of powers between central
government and the individual states or provinces which make up the federation. The powers
divided between the federal government and states or provinces will be clearly set down in
the constituent document.
2. Unitary Constitution: On the other hand, in unitary constitution state power is concentrated
in the hands of the central government. And the central government can establish or abolish
the lower levels of government; determine their composition, and their power and functions.
In this case the local government has no guarantee for their existence. Powers and
responsibilities are delegated to them by the central government. The constitution of the
unitary state presents a very different arrangement from constitution of federal state outlined
above.
5.4. Constitutionalism

Class Discussion:
What do you think are the differences between constitution and constitutionalism?

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

because the rules and laws so provided are all that can protect citizens’ rights from arbitrary
actions and decisions of the government. It is being subject to limitations and that citizens and
governments operate in accordance with the general rules and laws rather than arbitrary. This is
because the rules and laws so provided are all that can protect citizens’ rights from arbitrary
actions and decisions of the government. In other words, constitutionalism is the belief that
constitution is the best arrangement of affairs in a society. Hence, the essential elements for
constitutionalism are constitution and its effective implementation.

Constitutionalism, desires a political order in which the powers of the government are limited. It
is another name for the concept of a limited and civilised government. There exists no
government in the world that may not be called constitutional, though such a government hardly
exists in a country under a totalitarian rule where the constitution is seen with ‘contempt’.
Because of this, it is only in a democratic country that a constitutional government can be said to
exist. A form of government can only be classified as constitutional when the rulers are subject
to a body of rules and principles, which limits the exercise of their power. Thus,
constitutionalism does not merely require the existence of constitution. This is because,
constitutionalism checks whether the act of government is legitimate and whether officials
conduct their public duties in accordance with laws pre-determined in advance.
5.5. The Constitutional Experience of Ethiopia: Pre and Post 1931
5.5.1. Traditional Constitution (Pre- 1931)
 Ethiopia has a very little experience with a written constitution
 from the 13th to early 20th Century: Kebra Nagast, Fatha Nagast and serate mengest

Ethiopia has a very little experience with a written constitution in spite of its long history of state
formation. For this reason, the first written form of constitution promulgated in Ethiopia in 1931.
But before that the country has a far back constitutional history of unwritten form. Such lack of
written constitution does not necessarily implicate the total absence of constitutional rules and
principles in the legal history of the country.

Beginning in the 13th Century until the early 20 th Century the Ethiopian Orthodox Church was the
chief legitimator of monarchical rule. However, the rights and obligations of the Crown and its
subjects were not spelled out in a written secular constitution. Instead, there was developed by
monks of the Church an elaborate set of codes rooted in an Ethiopian national epic. Despite the
fact of existence of constitutionally significant documents in traditional Ethiopia, no written
constitution in the modern sense formed the basis for the constitutional process. Thus, documents
like the Kebra Nagast, the Fatha Nagast and serate mengest from the 13th Century until the early 20th
Century were the precursors to the formal written Ethiopian national constitutions of the modern
era.
Fetha Negest

The Fetha Negest (The Law of Kings) was a religious and secular legal provision than being a
definite constitution. Law of the Kings, is a collection of laws which in use in Christian Ethiopia
for many centuries. It was originally written in Arabic by the Coptic Egyptian writer Abu-l
Fada’il Ibn al-Assal (commonly known as Ibn al-Assal) when Cyril III was the Patriarch of
Alexandria (1235- 1243). It was designed by monks in the Church the same time Kebre Negest
penned. It set out the laws and regulations that were used to govern all activities of the Ethiopia
society in the late middle age. It was used as the sources of constitutional, civil, and criminal
laws. It was compiled from the Old Testament, the New Testament, and the Roman law. It serves
as both religious laws and legal provisions of state. It was fundamental laws upon which the
government and the administration were based and the king vested with absolute power. The
throne was hereditary, the king was thought to be appointed divinely, that is derives his power
directly from God. It contains the idea of divine rights of kings with the assumption that rules
have a God given power.
Kibre Negest

Kibre Negest was another traditional document that has constitutional relevance. Literally, Kibre
Negest means glory of king. The Kebra Nagast (The Glory of Kings) was written to document
for the first time the mythical origins of the royal house. This document was written by six
Tigrean clerics and completed in the early 14 th Century. It was the most important traditional
document that even
defined who should become king in Ethiopia i.e., it determine the succession of the throne in
Ethiopia. It was the principal sources of legitimacy for the kings. This document takes the
Ethiopian history back to the Solomonic dynasty, where the queen of Sheba made romantic tripe
to King Solomon of Israel and gave birth to the first Ethiopia king Menelik I. Based on this the
document determined that any king in Ethiopia must descend from the Solomonic dynasty or
must have such blood relationship with the dynasty.

Ser’ate Mengist

Ser’ate Mengist was another traditional document that had been used as constitution by the
traditional rulers before [Link] ser’ate Mengist was one of the traditional documents of the
nineteenth century that provided certain administrative protocol and directives in the 19th
century. The Ser’ate Mengist can hardly be considered to be a document of Constitutional Law
in its widest sense. Nonetheless, as it is the first document known to have been used for
allocating power among the Crown, its dignitaries and the Church, by means of “... a protocol of
ceremonies which had to be consulted whenever occasions required it…” and tried to lay out a
pattern of succession to power, though the problem of primogeniture was more theoretical than
practical as incessant rivalries among members of the royal house intermittently switched lines.
5.5.2. 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 ‘Siyume Egziabiher, Niguse Negast Za
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: 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.
5.5.3. The Revised Constitution of 1955

Class Discussion:
Can you reason out the bases for the revision of the 1931
constitution?
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 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).

Fourteen years after the end of a five year colonial suppression by the Italians in 1941, a revised
constitution was embraced in the Ethiopian legal system in 1955. It was revised because of
internal and external factors mainly to cope up with the social and political dynamics of the then
period, global politics, and Ethio-Eritrean federation. This revised version of the 1931
constitution comes with a slight modification in the structure of the system of governance,
limiting the power of the emperor to a certain extent and a relatively better recognition of rights
and freedoms. However, like its predecessor, the constitution declares the inviolability of the
Emperor’s dignity and the power of appointing and dismissing members of the parliament and
other offices were in the hand of the Emperor.

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. Thus, the emperor was forced to revise
the 1931 Constitution.
5.5.4. The 1987 Constitution of People’s Democratic Republic Ethiopia (PDRE)
Immediately after came to power, the Dergue setup the Provisional Military Administrative
Council (PMAC) type of temporary government. The Provisional Military 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 series. In 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.

Though it was late, during the Dergue regime a new constitution was adopted in 1987. The
regime facilitated the adoption of a new constitution, through a constitutional commission, which
was different in its nature form the constitutions of its predecessors. The People’s Democratic
Republic Ethiopia constitution (1987) was different from the 1931 and the 1955 imperial
constitutions in that constitution:

 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.

Practically, however, the 1987 constitution was not different from the 1931 and 1955 constitutions.

5.5.5. The 1995 (FDRE) Constitution

Class Discussion:
How can you differentiate the 1995 constitution from the 1987
constitution?
The FDRE constitution has a wider coverage of both human and democratic rights. Of the total
106 articles of the constitution just about one third (approximately 33 articles) is devoted to the
discussion of rights. While the democratic rights enshrined in the constitution tend to be
essentially group-oriented and political in nature the human rights on the other hand are
individualistic and natural.

The 1995 Constitution has some salient features. Getahun (2007: 79) mentioned the
“introduction of a federal form of governance and the assignment of the competence of
determining constitutionality to the second chamber of the parliament” among the other things.
Besides, the FDRE (1995) Constitution takes a breakthrough departure in the constitutional
history of the country by embodying many of the core egalitarian principles including the
principle of self- determination of collectivities, rule of law, democracy, development,
fundamental rights and freedoms, equality and non-discrimination, sustainable peace and
affirmative action in its preamble part. In the second chapter, the Constitution gives recognition
to five fundamental principles; to be precise the principles of popular sovereignty (art. 8),
constitutionalism and constitutional supremacy (art. 9), sanctity of human rights (art. 10),
secularism (art. 11) and accountability and transparency of government (Art.12). The
Constitution embodied fundamental principles, which give a background to many of the rules
that emerge in subsequent Chapters there by setting the framework for a better understanding and
interpretation of the rules.
5.6. Democracy and Democratization
5.6.1. Defining Democracy

Question for discussion:

How do you define democracy?

Democracy literally means the government of the people or government of the majority.
Etymologically, the word democracy is derived from two Greek words: demos and kratos, which
means common people and rule (legitimate power to rule) respectively. In this case the word
democracy refers to the idea of rule by the people or government by the people. Hence, in its
original sense democracy means “rule by the people”. Gradually, however, the meaning of this
term is evolving and changing substantively. Hence, democracy may mean different things for
different
people and in different times. You may have already heard about the most common definition of
democracy: “the government of the people, by the people and for the people”, given by former US President
Abraham Lincoln. To put it another way, we can say that a government comes from the people;
it is exercised by the people, and for the purpose of the people’s own interests.

The lexicon or dictionary definition of the term entails that democracy is a state of government in
which people hold the ruling power either directly or indirectly through their elected
representatives. Accordingly, democracy embraces the principles of equality, individual freedom
and opportunity for the common people, as those who actually wield political power. Moreover,
the definition entails, among others, in democratic system, state power involves compromise and
bargaining in decision- making process in a democratic system. One of the mostly quoted
definitions of (modern day) democracy is the one given by Joseph Schumpeter (1943: 269),
which defines democracy as an “institutional arrangement for arriving at political decisions in
which individuals acquire the power to decide by means of a competitive struggle for the
people’s vote”. In democracies, rulers are held accountable for their actions in the public realm
and citizens act indirectly through the competition and cooperation of their elected
representatives.

Abraham Lincoln defined democracy as the virtues of what he called ‘government of the people,
by the people, and for the people’. In so doing, he defined between two contrasting notions of
democracy. The first, ‘government by the people’, is based upon the idea that the public
participates in government and indeed governs itself: popular self-government. The second,
‘government for the people’, is linked to the notion of the public interest and the idea that
government benefits the people, whether or not they themselves rule. The classical conception of
democracy, which endured well into the nineteenth century, was firmly rooted in the ideal of
popular participation and drew heavily upon the example of Athenian democracy. The
cornerstone of Athenian democracy was the direct and continuous participation of all citizens in
the life of their polis or city-state.

Democracy can also be conceived as the institutionalization of freedom. That means democracy
is a set of ideas and principles as well as procedures and practices about human and democratic
rights, and freedoms. In this case, it refers to the process of organizing agencies that can watch
the respect of rights and freedoms, the signing and ratification of international treaties and
conventions and introduction of these rights and freedoms in the fundamental law of a state.
As such,
institutionalization of freedom is possible by the application of constitutional government,
human rights and equality before law and the like. In this regard, freedom means responsibility
to do in line with national interest and then answerable for one’s actions and inactions.

If one maintains the definition of democracy to be a government system in which supreme power
is vested in and exercised by people, two broad ways of exercising it can be singled out namely
direct and indirect democracy. Direct democracy implies a form of government in which the
right to make political decisions is exercised directly by the whole body of citizens acting under
procedures of majority rule. It is also known as pure/classical democracy. Every decision
concerning the government is decided based on popular vote. This kind of democracy was
mainly practiced in Ancient Greece city states. As the city states were relatively had small
population it was manageable to conduct direct democracy. In modern society/state, because of
the population size of countries direct democracy has lost its validity and substituted by indirect/
representative democracy. However even in modern times there are some cases that governments
applied direct democracy. These include referendum, recall, initiative and plebiscite. Indirect
democracy on the other hand refers to a form of government in which citizens exercise their
rights and freedoms and discharge their obligations not in person but through representatives
chosen by themselves. Citizens will submit their sovereignty for their representatives. The
representatives will act on the behalf of the citizens they are representing.

Like all regimes, democracies depend upon the presence of rulers, persons who occupy
specialized authority roles and can give legitimate commands to others. What distinguishes
democratic rulers from nondemocratic ones like monarchy, aristocracy and dictatorship are the
means by which governments/rulers come to power and the practices that hold governments
accountable for their actions. However, for democracy to flourish, specific procedural norms
must be charted (procedural democracy) and fundamental rights and freedoms of citizens must
be respected (substantive democracy). The overall concept of modern democracy constitutes
three key portions: democracy, constitutionalism, and respect for human rights. Each needs to
happen in a given polity or political system for it to be a genuine democracy. Thus, any state or
system of government that miscarries to levy such limits upon itself, that fails to follow the rule
of law with regard to its own procedures, should not be considered democratic. Robert Dahl
(1982:11) provides the most generally accepted
listing of procedural minimal conditions must be fulfilled for modern political democracy to be
existent. The major ones are:

o Control over government decisions about policy is constitutionally vested in elected officials.
o Elected officials are chosen in frequent and fairly conducted elections in which
coercion is comparatively uncommon.
o Practically all adults have the right to vote in the election of officials.
o Practically all adults have the right to run for elective offices.
o Citizens have a right to express themselves without the danger of severe punishment on
political matters broadly defined.
o Citizens have a right to seek out alternative sources of information. Moreover,
alternative sources of information exist and are protected by law.
o Citizens also have the right to form relatively independent associations or
organizations, including independent political parties and interest groups.
Exercise: Think about the following questions;
 How does limited government help to fulfill the purposes of democracy?

 What responsibilities does democracy place upon citizens?

5.6.2. Values and Principles of Democracy

Democracy is a popular political notion in today’s world, fair and free elections are the
prerequisite of democracy and rule of the law, protection and freedom of human rights and
supremacy of the constitution are important elements in true democratic system. There are some
key elements that distinguish states organized under democratic principles from dictatorship. The
respect of fundamental freedom and fundamental rights, elections, citizen’s participation,
equality, rule of law, separation of powers, democratic pluralism, and multi-party political
system are among these key elements or sometimes called fundamental principles of democracy.

Exercise
What else could be mentioned as a fundamental principle of democracy?
Hence, democracy is more than just a set of specific government institutions; it rests upon a well
understood group of values, attitudes, and practices - all of which may take different forms and
expressions among cultures and societies around the world. Democracies rest upon fundamental
principles, not uniform practices.

There are three core values that are central in the discussion of the concept of democracy. These
are values of liberty/freedom, justice and equality. Let us now briefly look at what each of
them means.

o Liberty: This value includes personal freedom (to mean that Individuals should be free
from arbitrary arrest and detention and also their homes/property should be
secured from unreasonable searches and seizures), political freedom ( to imply that people
of a nation have the right to participate freely in the political process such as elections
without being subject to arbitrary arrest, harassment and electoral corruption such as buying
votes, intimidation and obstruction of voter) and economic freedom ( to mean that citizens
should have the right to acquire, use, transfer and dispose of private property without
unreasonable governmental interference and more over to enjoy right to seek employment
wherever one pleases, to change employment at will and to engage in any lawful labor unions
or business corporations).

o Justice: This value of democracy can be understood in three general senses of fairness.
These are distributive Justice (the sense of distributing benefits and burdens in society via
agreed up on standards of fairness), corrective Justice (the sense that a proportional
response should be in place to correct wrongs and injuries) and procedural justice (the idea
that procedures used for gathering information and making decisions should be guided by
such principles as impartiality and openness of proceedings).

o Equality: Three notions of equality are of particular significance here for our discussion.
These are political equality (implying that all people who attain the status of adult hood have
equal political rights or in short one man-one vote- one value), social equality (implying that
there should be no social hierarchy at individual and collective level or no discrimination
what so ever) and economic equality (implying that all peoples of a country deserve equal
and fair assessment to the national resources services).
Although we can be exhaustive in our list, the followings constitute some of the fundamental
principles of democracy. These are;

A. Popular Sovereignty

This type of sovereignty is associated with power and legitimacy. In this way, the citizen as a
whole is the sovereign of the state and holds the ultimate authority over public officials and their
policies. Consent is given by the people through their regularly elected representatives and
through approval of all constitutional changes. Popular sovereignty also means that the people
have the right to withdraw their consent when the government fails to fulfill its obligations under
the constitution. On the other side, popular sovereignty in democracy assumes the principle of
majority rule, which means that within constitutional limits, majorities should have the right to
make political decisions. Such decisions are made within the framework of regular elections and
include the choice of who should be elected to public office and what laws should be passed by
legislative bodies.

The notion that sovereignty came from the people (popular sovereignty) became one of the main
foundations of modern democracy and constitutional principle. John Locke’s notion of popular
sovereignty contrasted with a later model developed from the philosophy of the French
intellectual Jean-Jacques Rousseau in the 18th century. Rousseau asserted that sovereignty was
based in the general will of a population (or the common good) and that there was no distinction
between the source of sovereignty and its exercise. The general will was consequently the basis
for national sovereignty and the means through which state authority was manifested. It was
expressed through the structure of government (which Rousseau argued should be a form of
direct democracy but was implemented as a representative system). The general will could and
would supersede the individual rights of citizens.

To this end, sovereignty implies the power to have a final say on an issue. The preamble of the
Ethiopian Constitution for instance says, “We the Nation, Nationality and Peoples... adopted….
this Constitution”, expressly providing the doctrine of popular sovereignty, or rule by the people.
Article 8 of the Constitution is more explicit in providing that ultimate political authority resides
not in the government or in any single government official, but rather, in the Nations, Nationality
and Peoples of Ethiopia. In democracy, the peoples own the government. The delegation of
powers in no way damages or diminishes the peoples’ right as the supreme sovereign. The
government's legitimacy
remains dependent on the people, who retain the inalienable right peacefully to alter their
government or amend their constitution. Besides, there are situations where the people’s
sovereignty in a democracy is expressed through their direct participation.

B. Constitutional Supremacy

This is a principle that puts the constitution at the highest level in the hierarchy of laws.
Constitutions are laws about the political procedures to be followed in making laws. They are
supreme laws, taking precedence over all others, and defining how all the others should be made.
Some analysts call them ‘meta-rules’ (rules about how to make rules), but the German
constitution calls them ‘the Basic 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. Thus, according to this principle, the constitution is above all laws
and organs of a state. This principle dictates all laws and governmental or non-governmental acts
to be under the constitution. It also implies that if an act is found to be against the constitution, it
would out of effect or void. In the Ethiopian case, Article 9 of the FDRE constitution states that
the highest power and authority is vested in the nations, nationalities and peoples of Ethiopia to
indicate that they are the sovereign in the land.
C. Rule of Law

In contemporary time, almost in all countries, the concept of the rule of law has been reflected
either in their constitutions or statutes. There are two aspects of the rule of law that are
important. First, the law should govern the people and the people should obey the law. And
second, the law must be capable of being obeyed (‘good’ laws). This made the rule of law
different from ‘rule of men’ where the people were ruled by ‘bad’ laws. In order to maintain the
rule of law, an institution, independent from the legislative or executive or other forces, impartial
and free from interference or influence is required. In this case, the rule of law is the principle
under which a government exercises its authority in accordance with clear, objective, and
publicly disclosed laws. Laws must be adopted
and enforced through established procedure and incompliance with international recognized
standards.

The rule of law is a key component of a social order grounded in consistency, predictability, and
transparency. It is the foundation of a democratic society-the means by which people protect
their liberty. The principle is intended to be a safeguard against arbitrary rule. Thus, the concept
of rule of law is embodying the predominance of law over unrestricted authority; equality before
the law; and the law asserting individual rights. This also implies that due process of law and
lack of arbitrary treatment recognized and this has been added to the maintenance of order as
necessary for law to prevail. It requires government abided by written rules and statutes rather
than the arbitrary or absolutist “rule of man”.
D. Secularism

Secularism referred to as an approach that asserts to dismiss or ignores God, the divine, the
supernatural, and other religious viewpoints when discussing or participating in politics.
Emphasis is placed on human excellence, potential, fulfillment, “actualization,” and so on,
instead of the Godly, providential, or spiritual dimensions of life. Contemporary expressions of
secularism occur in the mainstream liberal media, business, public education, and social
organizations. In church and state matters, secularists demand a strict separation of religion and
politics, keeping prayer and religious instruction out of government, public schools, and other
common institutions.

Secularism is mostly understood to mean separation of state and religion. This principle demands
strict separation of religious and political affairs hence state and church operations basing on the
philosophy that individuals and groups in a free society should have freedom of conscience (the
right to decide for themselves what to believe in which case it can be threatened if government
becomes religious and supports some religions but not others). It asserts the freedom of religion,
and freedom from the government imposition of religion upon the people, and absence of state
privileges or subsidies to religions. Government should do only what is necessary to keep the
peace and prevent one religious group from violating the rights of others. To achieve this goal
government should not interfere with religion in any way.

E. Separation of Powers
The doctrine of separation of powers refers to the idea that political power should be divided
among several bodies or officers of the state as a precaution against too much concentration of
power. Most of the literature on federalism has emphasized the relationship between national and
sub- national governments but overlooked the organization of sub-national powers. Likewise, the
debate on the separation of powers in presidential and parliamentary systems has neglected the
role of federalism in strengthening the separation of powers. A federal polity is a constitutional
arrangement that creates executive, legislative, and judicial branches of government in its
constituent units. This definition is applied to all countries that are classified as federations, or
unions.

In order to promote accountability of government, hinder corruption and protect the fundamental
freedoms of citizens from the will of the government of the day, it is essential to keep separate
the parliament’s power to make laws, from the executive’s power to administer laws, and from
the judiciary’s power to hear and determine disputes according to the law. This separation is
designed to protect the people from a concentration of power, and the ability of individuals or
groups to manipulate government for personal gain and to ignore the will of the people.
Separation of powers is, therefore, an essential feature of constitutional government. Further,
constitutionalism ensures that the principal powers of government legislative, executive, and
judicial-were not monopolized by any single branch.
F. Free, Fair and Periodic Election

In order to establish democratic government, first the election should be free means all interested
parties to the election should get the chance to participate in the election. Secondly, fair means
after giving the chance of participation all of them should be treated equally without
discrimination. Finally, the election should be conducted periodically with fixed duration.

G. Majority Rule Minority Right

After conducting democratic election, those who gets the majority vote will establish a
government. The policies, programs and decisions of the majority will govern the country while
the right of the minority respected

H. Protection and Promotion of Human Rights

Human rights are those naturally given values that reflect respect for human life and dignity
hence their protection and promotion test the legitimacy and constitionality of a democratic
government.

I. Multiparty System

Democracy also requires having several political parties working together in one political
system. These political parties should get equal constitutional guarantee, support and treatment to
compete for elections and present their offer freely to the voters. That enables to establish market
of ideas to the citizens and encourage parties to come with better alternatives to be elected
among the competitors.
5.6.3. Democratization

Question for Exercise:

What do you understand by the concept of democratization?

Democracy is a variable not a fixed phenomenon; it changes and develops over time, so that
what was regarded as good democratic practice a hundred years ago may not be now. Democracy
does not automatically arise out of “primal mud” but needs to be planted and nourished by years
of practice and experience through various levels of democratization process. Democratization is
the process of transitions from nondemocratic to democratic regimes that occur within a
specified period of time and that significantly outnumber transitions in the opposite direction
during that period. It is not a simple process and will taken an extend period of time to complete,
if it wishes to be prosperous. There are three main elements in democratization such as the
removal of the authoritarian regime, installation of a democratic regime, and the consolidation, or
long-term sustainability of the democratic regime.
By democratization simply we refer to the institutionalization and routinization of democratic
ideals and principles and their effective functioning. Moreover, democratization is a conclusive
and extended process, which involves the emergence or presence of the formal elements of a
democratic political system such as the recognition of basic civil and political rights, multiparty
system, electoral system and etc. Democratization in this sense, involves the full-scale transition
from authoritarian regime and its replacement by democratically elected regime. It involves the
rupturing all the links
and connections of authoritarian leaders, party or army to the state apparatus. In this sense,
democratization represents a true rapture and a political transformation.
5.6.4. Actors of Democratization
[Link]. Political Parties
The centrality of political parties for modern democracy is generally accepted both by
contemporary scholars and by policy-makers charged with fostering the development of newly
emerging democracies or with improving the quality of democracy in established democratic
politics. Despite their relatively recent appearance on the political stage, parties have put such a
strong mark on contemporary politics and democracy that twentieth century democracy could be
best described as party democracy.

It has been argued that parties are ―endemic to democracy, an unavoidable part of democracy.
In a democratic system, political parties provide the proper mode of functioning for the
government so that the majority party or a combination of parties controls the government, while
other parties serve as the opposition and attempt to check the abuses of power by the ruling
party. Citizens extend their desires, needs, and problems to the government through the political
parties. In fact, political parties represent an essential and important tool that acts as a bridge
between a society and its government. The existence of a strong and viable opposition keeps the
ruling party alert. It is also the duty of political parties to promote policies that will educate the
people about how a democratic system functions and offer different policy packages to the
electorates.
[Link]. Media
Mass Media and Democracy are always related to each other. Media is a mirror of the society
and how democratic a society is, can be represented through media. Opinion leaders influence
the public opinion regarding political leaders and political system of any country. Hence, media
has an influential role in strengthening democracy. Hence, media and democracy have strong
association. Countries which are strong democracies always have strong and free media. Studies
show that a free and democratic society is not possible without an independent, free and
responsible media and active civil society.
Saeed (2009) argues that the maturing of mass democracy in most societies has gone hand-in-
hand with development of mass communication as an important player in the organization of
public life and opinion formation on issues significant to the masses. To better understand how
free press enhance democracy, we need to look at various and distinct role of media, namely,
media as source of information, media as a watchdog, media as a civic forum and media as an
agenda setter. Norris (2006) measures how press freedom affects democracy, good governance
and human development and concludes that there is a strong relation between the critical role of
the free press, as one of the major components of democracy and good governance. Media in all
countries serves as a watchdog, as a source of information, a civic forum and an agenda setter.

Theoretically, the role of free media in processes of democratization is straightforward. The free
media serve as watchdogs, monitoring those in power and provide citizens with the information
they need to be free and self-governing and to hold governments accountable for their actions.
Therefore, freedom of the media is often included in the measures developed to assess and
compare the quality of democracy across countries.
[Link]. Civic Societies
Civil society is the set of civil rights, including primarily everyone’s right to participate in public
life. Civil society forms the backbone of democracy. Larry Diamond (1999: 220-221) defines
civil society as “the realm of organized social life that is open, voluntary, bound by a legal order
or set of shared rules”. Diamond stated that civil society encompasses “private citizens acting
collectively to make demands to the state or to express in the public sphere their interests,
preferences and ideas or to check the authority of the state and make it accountable” (ibid: 221).
Following Diamond’s definition, civil society may contain a wide range of establishments
concerned with public matters. Civil society may comprise civic, issue-oriented, religious, and
educational interest groups and associations.

In large multicultural developing countries like Ethiopia, there are numerous gaps left by the
government in the development and democratization process. Civil societies have a potential of
playing numerous momentous roles for democratic development and consolidation. To mention
some: limiting the power of the state more generally, including challenging the abuses of
authority; monitoring human rights and strengthening the rule of law; monitoring elections and
enhancing the
overall quality and credibility of the democratic process; educating citizens about their rights and
responsibilities; building a culture of tolerance and civic involvement; incorporating marginal
groups into the political process and enhancing the latter's responsiveness to societal interest and
need; providing alternative means, outside the state, for communities to raise their level of
material development; opening and pluralizing the flows of information; and building a
constituency for economic as well as political reforms.

Questions for Discussion:

 How would you describe the civil society in Ethiopia?
 Do public associations presently support the work of the government at national
and local levels? How?
 What role do public associations play in providing public information?
 Do any public policies make it difficult for public associations to
communicate information?

5.7. Human Rights: Concepts and Theories

5.7.1. What Are Human Rights?

Question for Exercise:

How do you define human rights? What comes to your mind when you read/heard the term
human rights?

Human rights are basic to humanity. They apply to all people everywhere. An understanding of
human rights is an important part of our individual status as human beings and of our collective
status as members of the global community of humankind.

The notion of human rights infers that fundamental entitlements belong to every member of the
human race. These are privileges someone can claim just because he/she is a human being
without any discrimination based on condition. The basic idea of human rights lies in people’s
recognition of the need to protect and affirm every other person’s individual dignity. It is also
common to call them ‘natural’ rights, since they are natural entitlements to everyone. Hence,
one of the points most
scholars in the field agreed on is the fact that human rights derived from fundamental human
dignity and worth.

Class Discussion:
Whose responsibility do you think is making sure everyone’s rights are fully respected?

The Universal Declaration of Human Rights (UDHR, Article 2), stipulates that human rights
belong to every human being “without distinction of any kind, such as race, color, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status” (Art.
2). Thus, the only criteria someone must fulfil to enjoy these rights is being a human. However,
there is no universally agreed definition of the term human rights. Peoples understanding towards
the notion of human rights is changing from time to time. One prominent way of defining human
rights is to present them as a special kind of claim on others. For example, the right to education
denotes that everyone is entitled with the privilege to good education and the state have an
obligation to provide and fulfil the needed resources, structures, infrastructures and services.

Human rights provide the minimum standards indispensable for people to live worth-living life.
Human rights allow people to live the life they deserved to live, they aspire to live, and to live a
life with dignity and equality. Human rights give people a full control of their life and the
freedom to choose how they live, how they express themselves, and what kind of government
they want to support, among many other things. Human rights also guarantee people the means
necessary to satisfy their basic needs, such as food, housing, and education, so they can take full
advantage of all opportunities. Finally, by guaranteeing life, liberty, and security, human rights
protect people against abuse by individuals and groups who are more powerful. The United
Nations stated that human rights ensure that a human being will be able to fully develop and use
human qualities such as intelligence, talent, and conscience and satisfy his or her spiritual and
other needs.

Human rights are not just theoretical; they are recognized standards to which governments are to
be held accountable. There are basic tenets underlying human rights as they apply to all people.
Human rights are entitlements naturally endowed to all persons equally, universally and for a life
time. These are entitlements everyone can claim just because they are human beings. The only
precondition someone needs to fulfill in order to claim human rights is being a human. Hence,
they are necessarily imperative in forming and preserving a fair and civilized society. Human
rights are
established upon some main principles including universality, inalienability, indivisibility and
interdependence.

Question for Exercise:

Are you familiar with these principles of human rights? Try to explain what each principle is
intended for.

When we say human rights are universal, it is to show their worldwide applicability. This means
all rights are expected to be applied equally everywhere, every-time and to everyone in this
world. They transcend time, geographical and cultural disparities. However, this is not to mean
that no room is available to contextual realities and value differences among various
communities around the globe. Article one of the Universal Declaration of Human Rights
(UDHR here after) stipulated that “All human beings are born free and equal in dignity and
rights.” It also stated that human rights belong to every human being “without distinction of any
kind, such as race, color, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status” (Art. 2).

Human rights are inalienable. That means you cannot lose these rights any more than you can
stop to be a human being. These entitlements are essential to live a human or worth-living life.
Human rights are not luxury or privileges we only enjoy after some preconditions are met, rather
part of our basic necessities. We may not die, but we cannot live the life we supposed to live a
human creature without our rights and freedoms. Human rights are indivisible. This implies that
human rights are inherent to the dignity of every human person. It is not possible for one to live a
worth living life without the full respect of these rights; this concerns all the civil, cultural,
economic, political or social rights endowed for all human beings.
Human rights are interdependent and interrelated. This is to mean that all rights have equal
weight/importance and it is not possible for one to fully enjoy any of his/her right without
the others. For instance, one cannot enjoy his/her right to life without his/her rights of health,
education, freedom from torture and inhuman treatment, right to an adequate standard of living
and the like. The violation of all these rights threatens one’s life and existence in general. That is
true for all our human rights, not possible to enjoy the one ignoring the other. That means we
cannot prioritize one right from others, because no right can stand on itself. The fulfillment of
one right often depends, wholly or in part, upon the fulfillment of others. The respect of one right
(e.g. right
to life) is subjected to the respect of our other rights (e.g. right to an adequate standard of living),
and the vice versa. Thus, human rights are entitlements which apply to all equally, and all have
the right to take part in all the decisions that affect their lives.

The other important principle of human rights is the principle of equality and non-
discrimination. This principles pronounces that all individuals are equal as human beings and by
virtue of the inherent dignity of each human person. Accordingly, no one should face
discrimination on the basis of race, color, ethnicity, gender, age, language, sexual orientation,
religion, political or other opinion, national, social or geographical origin, disability, property,
birth or other status as recognized by many of the international and regional, national human
rights frameworks.
5.7.2. Human Rights and Responsibilities
Human rights involve responsibility and duties toward other people and the community.
Individuals often have a responsibility to ensure that they exercise their rights with due regard
for the rights of others. For example, exercising freedom of speech should not infringe someone
else’s right to privacy. Human rights are part of a context of people living together in societies.
As part of this, there must be a legal, social and international order for human rights to be
realized effectively.

Promoting for the respect of human rights is one of the core missions of the UN and its agencies.
Besides, state parties to the UN are mandated with the promotion, protection and fulfillment of
human rights. Human rights protection and fulfillment is considered as one of the functions of
governments, one of the very reasons why people need a government or political system in
general. This is clearly states in various human rights instruments and resolutions issued by the
UN including the UN Charter, Universal Declaration of Human Rights (UDHR), International
Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social
and Cultural Rights (ICESC), Convention on the Rights of Children (CRC), Convention on all
forms Discrimination against Women (CEDAW) and the Paris Principles. For instance, principle
63 (1 and 2) of the Paris Principles (1993) stipulated that:
A national institution shall be vested with competence to promote and protect human
rights. A national institution shall be given as broad a mandate as possible, which shall be
clearly set forth in a constitutional or legislative text, specifying its composition and its
sphere of competence.
Mandates of state institutions in relation to human rights are also clearly stipulated in the FDRE
Constitution. The Constitution shows its dedication to human rights and freedoms by reserving
one of its eleven chapters, if not the biggest one, to human rights and fundamental freedoms. The
third chapter of the Constitution guarantees a list of civil, political, economic, social and cultural
rights (arts. 13 to 44) in consistence with the core international human rights instruments; mainly
the UDHR. The Constitution clearly declares the superior legal status given to international
human rights instruments over domestic laws in interpreting the constitutional provisions speak
human rights. Article 13 of the FDRE Constitution reads “the fundamental rights and freedoms
specified in this Chapter shall be interpreted in a manner conforming to the principles of the
Universal Declaration of Human Rights, International Covenants on Human Rights and
international instruments adopted by Ethiopia”.
5.7.3. Landmarks in Development of Human Rights
The modern human rights notions are the result of extended tussles to end many forms of
oppressions; including slavery, genocide, discrimination, and government tyranny, in history of
world societies. In their contemporary manifestation, human rights are a set of individual and
collective rights that have been formally promoted and protected through international and
domestic law since the adoption of UDHR in 1948. The following diagram shows the timeline of
major international human rights treaties or instruments with the dates of their adoption.
Source: UN, 2017

5.7.4. Rights Holders and Duty Bearers

Rights become rights when the job of identifying the two main actors is done. This works for
every rights we may possess as an individual or group. These are right holders and duty bearers.
Right holders are those who are entitled to enjoy, possess or claim a given right. Human rights
provisions usually started by mentioning the right holder using terms like “every human being,
all children, women, people with disability…” from that we can simple know for whom is a
given right intended. Duty bearers are those who carry the obligation of promoting, protecting,
and fulfilling these right
to the right holders. There must be always someone you will claim the protection, provision and
fulfillment of your rights from and become accountable for any failures to do so.

Questions for Exercise:

Identify the rights holders and duty bearers of the following rights in the FDRE Constitution;
 The right to life (Article 15)

 The right to Privacy (Article 26)

 Freedom of Religion, Belief and Opinion (Article 27)

 Rights of Nations, Nationalities, and Peoples (Article 39)

 The right to development (Article 43)

The primary (not the only) duty bearer for almost all of our rights is the state. Besides,
individuals and other non-state actors may be named as duty bearers depending on the nature of
the right. Thus, it has been typically understood that individuals and certain groups are bearers of
human rights, while the state is the prime organ that can protect, provide and fulfil human rights.
Moreover, uninterrupted and cyclic relationship is expected among rights holders and duty
bearers. The rights holders should always claim their rights from the duty bearers and the duty
bearers should discharge their responsibility of promoting, protecting, and fulfilling the rights out
of sense of obligation or duty. The following diagram shows the relationship among rights
holders and duty bears from human rights perspective.
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Participation

Accountability
Figure 1 Duty-bearer-rights-holders Relationship Cycle

Source: UN OHCHR, 2017

5.7.5. Categories of Human Rights

Questions for Exercise:

Identify some categories of human rights comes to your mind?

Human rights cover virtually every area of human activity. They include civil and political
rights, such as freedom of speech and freedom from torture. They also include economic and
social rights, such as the rights to health and education. Some rights apply to individuals, such as
the right to a fair trial: these are called individual rights. Others apply to groups of people, such
as the right to a healthy environment or to native title: these are called collective rights. There are
various ways used by different scholars to categories human rights. These writers use various
reference point in classifying rights in to different clusters. The common way of categorization is
the one developed by Karl Vasak (1982) who have classified Human Rights into three: First,
Second and Third generation rights. However, Vasak’s representation of generations is criticized
by many authors for its failure to capture the nature of human rights mainly in “one respect:
classes of human rights, unlike

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generations in life, don’t replace each other sequentially over time” (Alston, 2000: 641). Carl
Wellman states the problem in Vasak generational categorization stunningly: “generations
succeed one another, not only in that the members of one generation are born before those of the
next generation, but also in that parents tend to die before their children” (Wellman, 2000: 641).
[Link]. Civil and Political Rights
Civil and political rights are the first generation rights which uphold the sanctity of the individual
before the law and guarantee his or her ability to participate freely in civil, economic, and
political society. Civil rights include such rights as the right to life, liberty and personal security,
equality before the law, protection from arbitrary arrest and the right to religious freedom and
worship. When protected, civil rights guarantee one's 'personhood' and freedom from state-
sanctioned interference or violence. Political rights include such rights as the right to speech and
expression, assembly and association, vote and political participation. Political rights thus
guarantee individual rights to involvement in public affairs and the affairs of state.
Civil and political rights are seen as an immediately realizable rights. This is to mean that all
states, regardless of their economic, social, cultural and political developments or realities, are
expected to ensure the realization of these rights immediately. No precondition could be
acceptable for any violations of civil and political rights. They have also been called as
‘negative’ rights to indicate the fact that they simply entail the absence of their violation in order
to be upheld. The state, as a primary duty bearer, is expected here to let citizens enjoy their rights
and freedoms and not intrude in their private life. Besides staying aside of the life of the rights
holders, the state is also responsible to protect them from any potential interventions from other
non-state actors; such as individuals, groups and organizations. Hence, protection is the main
obligation of the duty bearers for civil and political rights.

Question for Exercise:

List four civil and political rights recognized in the FDRE Constitution and the corresponding
articles.

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[Link]. Social and Economic Rights

In contrast to the above set of rights, the second generation (social, economic, and cultural) rights
are considered by many writers as an aspirational and programmatic set of rights that national
governments ought to strive to achieve through progressive implementation. Social and
economic rights include such rights as the right to education, health and wellbeing, work and fair
remuneration, form trade unions and free associations, leisure time, and the right to social
security. When protected, these rights help promote individual flourishing, social and economic
development, and self-esteem. Cultural rights include such rights as the right to the benefits of
culture, indigenous land, rituals, and shared cultural practices, and speak one's own language and
‘mother tongue’ education. Cultural rights are meant to maintain and promote sub-national
cultural affiliations and collective identities, and protect minority communities against the
incursions of national assimilationist and nation-building projects.

Unlike the civil and political rights, rights in this category are called ‘positive’ rights to indicate
that whose realization is highly subjected to the economic capability of states. One of the strong
counter- arguments to this false dichotomy is to assert that all rights are positive since the full
protection of all categories of human rights ultimately relies on the relative fiscal capacity of
states. For instance, the protection of property rights requires a well-funded judiciary, police
force, and fire service, as well as a well-developed infrastructure that can relay information,
goods, and services in the event that property is under threat in some way. The same is true for
the rights to vote. Besides to avoiding segregation and discrimination at the polls, running a free
and fair election requires a tremendous amount of financial support, technology, and
infrastructure. However, by claiming that all rights are positive, it is not to undermine the
negative characteristics or dimensions of human rights. Comprehensive understanding of human
rights requires the recognition of both positive and negative dimensions. Thus, for every rights,
we need to ask what the positive (those actions that states can take to provide resources and
policies for improving the protection of human rights) and negative (those actions that states do
(or not do) that deliberately violate (or protect) human rights) dimensions are, instead of trying to
classify whether a given category of rights are positive or negative.
Second generation rights are considered as “less fundamental” or unrealistic rights because of the
issues of justicialibility. Justiciability is not obviously the quality of economic, social and
cultural

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rights. For this category of rights there is a room for the state to justify duty failure referring to
lack of capacity, resources or finance. For instance, suppose you are living in Ethiopia and you
are still unemployed for some years after finishing college. You may argue that “I have the right
to work and fair remuneration, and should be taken as a violation of my human right at the time
the state fails fulfill or provide it to me”. This will be considered as human rights violation only
if the state is economically capable (in the condition to fulfil that right for every citizen with the
resources at hand). If the state able to justify that the needed resources and finance to fulfil or
provide that particular rights are not adequately available – then that will be the end of the story.
That means, the state’s duty failure and the violation of your right can be justified. This makes
many authors in the field to question the justiciability of most of the economic, social and
cultural rights.

Question for Exercise:

List three economic, social and cultural (one from each category) rights recognized in the FDRE
Constitution and the corresponding articles.

Peace, Development and Environmental Rights

Third generation (solidarity) rights are aimed to guarantee that all individuals and groups have
the right to share in the benefits of the earth's natural resources, as well as those goods and
products that are made through processes of economic growth, expansion, and innovation. Many
of these rights are transnational in nature. They requires redistribution of wealth, resources from
developed to developing nations. Solidarity rights also require global cooperation and shared
responsibility to world peace, development and the environment. Third Generation (solidarity)
rights include rights to public goods such as the right to development, the environment and
peace. The third generation rights are still considered as an emerging rights, where the rights
holders and duty bearers of the rights included under this category are yet to be identified clearly.
Think, for instance, about the right to peace or right to clean and protected environment. Whose
right are these? And whose responsibility? At this stage it is difficult to determine answer these
key questions, unfortunately.

Question for Exercise:

List two solidarity rights recognized in the FDRE Constitution and the corresponding articles.

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The following table provides the summary of the classification of rights.

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Generation First generation Second generation Third generation

rights rights rights

Category of rights Civil and political Socio-economic rights Solidarity rights

rights

State obligation Promoting and Providing and ?

protecting fulfilling

What is expected from Non-interference Positive interference Positive involvement

the State

Realization Immediate Progressive Progressive

Right holders Individuals (mostly) Groups (mostly) ?

5.7.6. Derogations and Limitations on Human Rights

There are two conditions under which human rights can be restricted: limitation and derogation.
Limitations are lawful infringements of rights. Limitations are deviations from the standard
manner of dealing with rights imposed primarily to facilitate optimal use or exercise of rights in
a context of scarce public resources, space and time. Limitations can take the form of restrictions
and/or derogation. Restrictions are acceptable or justifiable limits of human rights during the
normal times. Restrictions circumscribed the manner, or place, and the extent to which rights can
be enjoyed or exercised in a particular set of circumstances, often in normal times. Derogation
means a temporary non-application and suspension of rights by the state in abnormal or
emergency (natural/artificial) situations.

Enjoyment of human rights is subject to limitations and this limitations are normally found in
constitutional human rights and international human rights treaties. But that limitation should not
be arbitrary, it should be based on legality, necessity, rationality and proportionality supposed to
be determined by the human rights law. Limitations may be made on the enjoyment of human
rights for the sake of: safeguarding of national security or public peace; the prevention of crimes;
the protection of health, public morality; the protection of the rights and freedom of others; and
safeguarding democratic institutions

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In Ethiopia, for example, both federal and regional governments have constitutional powers to
limit exercising human rights since they have the power to declare state of emergency is their
respective domains. Regional states can declare in two conditions: natural disaster and
epidemics. Besides, the FDRE Constitution (art. 93) clearly specifies four conditions for such
declaration by the Federal Government. The Council of Ministers can declare a State of
Emergency in the following situations:
1) External Invasion, 2) Breakdown of law and order when it: (i) endangers the constitutional order,
(ii) cannot be controlled by regular law enforcement, 3) Natural disaster, and 4) Epidemic.

5.7.7. Non-derogability of Human Rights

The concept of non-derogability has been one of the important aspects of the international human
rights laws and treaties. Some of the important treaties concerning human rights, including the
ICCPR have special provisions explaining whether its member states can derogate from certain
rights during some exceptional situations. States believe that some provisions of derogability are
necessary to allow them exercise their sovereign power during exceptional circumstances for the
greater good of their people. However, this kind of derogation is not unconditional and it has its
own limits.

There are also certain unique and inherent human rights, which can never be suspended under
any circumstances. For instance, the ICCPR, which also allows states to suspend some of the
rights under specific conditions, clearly mentions that some of the articles are non-derogable.
They are: right against arbitrary deprivation of life (art. 6); freedom from torture or cruel,
inhuman and degrading treatment or punishment; and freedom from medical or scientific
experimentation without consent (art. 7); freedom from slavery and servitude (art. 8); freedom
from imprisonment for inability to fulfill a contractual obligation (art. 11); prohibition against the
retrospective operation of criminal laws (art. 15); right to recognition before the law (art. 16);
and freedom of thought, conscience and religion (art. 18).

The FDRE Constitution (art. 93(3[c])) states that rights under Articles 1, 18, 25, and sub-Articles
1 and 2 of Article 39 of the Constitution are non-derogable rights. However, it is good to mention
here that this is not to mean that all other rights are suspend-able anytime at the will of the state.
In this regard, Article 4 of ICCPR clearly established the specific conditions could be used as a
ground for derogation. Conditions like the existence of real emergency, threat to life of a nation,
official

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proclamation of emergency, and guarantee of non-discrimination are justifiable grounds to

suspend some of or all the derogable rights.
5.7.8. Implementation and Enforcement of Human Rights
[Link]. International Mechanisms and the International Bill of Human Rights
The very reason behind the establishment of the international law is ensuring global peace and
security, and help men to lead a worth-living life; a life with liberty, equality, and freedom from
violence. Hence, the main objectives of the international law and its institutions is in one way or
another related with the protection of human rights. The issues of human rights come into picture
in the international law starting from the adoption of the Charter of the United Nations on
October 24, 1945. The charter make protection of human rights one of the three main objectives
of the UN, in addition to preserving global peace and stimulating comprehensive development.
The United Nations has six prime organs, namely; the General Assembly, Security Council,
Economic & Social Council (ECOSOC), International Criminal Court (ICC), Office of the
Secretariat and the Trusteeship Council (Suspended operations-1994 with the independence of
Palau).

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FIGURE 2 UN ORGANS

The General Assembly, Security Council and ICC are functioning as the legislative (law
making), executive (law enforcing) and judiciary (law interpreting) organs of the UN
respectively. The Office of High Commissioner for Human Rights (OHCHR) is established
under the ECOSOC, and is an organ particularly dedicated to the promotion, observance and
monitoring of human rights worldwide. The international bill of human rights is made up of
various treaty and charter based human rights instruments; treaties, covenants, charters and
declarations.
The UN Charter clearly stated that the organization is dedicated to help men live a life free from
fear of war, the promotion of human rights and the worth of human person and dignity of
mankind. It also seeks to establish justice, and promotes corporation between the States to
discharge their duties to create a just economic, social and cultural order wherein mankind can
realize the fundamental human rights in accordance with the principles of international law.

The Universal Declaration of Human Rights (UDHR) is a human rights instruments considered
as the groundwork of most of the post-1945 codification of human rights. It is the basis for

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human

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rights protection and promotion around the world and has been endorsed by all countries. Many
countries have included its provisions in their basic laws or constitutions (Used 2). Most of the
modern national, regional and international human rights regimes are established based on this
declaration. Many of the UN human rights instruments are drafted under the shadow of the
UDHR. Actually, almost all international human rights instruments comprises at least a
preambular reference to the Universal Declaration, as do many declarations adopted
unanimously or by consensus by the UN General Assembly. It has served as a model for most of
the laws, constitutional provisions and rules aimed at protecting citizen’s rights and freedoms.

The UDHR is not a binding instrument, but claimed to have great moral weight and popularity. It
is a declaration adopted by the General Assembly of the United Nations in 1948. Thus, no
obligation can be drawn from that instrument, since it is not a treaty based document. However,
its wider global acceptance is enabling it to be seen as a customary law. The UN claims that the
Declaration is the most translated document in the world to show its inclusive nature and spread
(UN, 2015: iii). Hence, beyond doubt the UDHR is most widely accepted declaration of its kind
(Walter, 2014: 121). The preamble of the UDHR states that “the General Assembly proclaims
this Universal Declaration of Human Rights as a common standard of achievement for all
peoples and all nations, to the end that every individual and every organ of society, keeping this
Declaration constantly in mind, shall strive by teaching and education to promote respect for
these rights and freedoms […]” (UN, 1948: 1).
The first two provisions of the UDHR deals with its two core principles; equality and non-
discrimination.1 The following 21 articles (Articles 3 to 21) postulate civil and political rights. In
these articles, rights set forth include the right to life, liberty, a fair trial, free speech, privacy, of
personal security, and of movement, as well as freedom from slavery, torture, and arbitrary
arrest. The subsequent five articles (Articles 22 through 27) articulates economic, social and
cultural rights recognized in the Declaration. These rights include entitlements such as the right
to social security, right to work, reasonable payment and leisure, the right to an adequate
standard of health, well-being

1 Article 1 stipulates that "All human beings are born equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in a spirit of
brotherhood". Article 2 reads "Everyone is entitled to all the rights and freedoms set forth in this

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Declaration, without distinction of any kind such as race, color, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status."

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and education, the right to partake in cultural life. To end with, Articles 28 through 30 provides
the general frameworks needed for the enjoyment of the above mentioned rights.

Besides to the UN Charter and the UDHR, the UN presently has more than ten core human rights
treaty based human rights instruments. These includes, but not limited to, the Convention on the
Prevention and Punishment of the Crime of Genocide (1948), the Convention Relating to the
Status of Refugees (1951), the International Covenant on Civil and Political Rights (ICCPR), the
Slavery Convention (1926, but amended by Protocol in 1953), the International Covenant on
Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural
Rights (1966), the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT), the International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW), the Convention on the Rights of the Child (CRC),
and the International Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families.

Each of the above human rights treaty instruments has an autonomous monitoring body,
composed of independent experts who examine the reports that signatory nations submit under
the treaty. These committees are also in charge of issuing "concluding observations/comments",
where they summarize their concerns about certain states and also give recommendations for the
future. Ethiopia is a signatory member to all of the aforementioned core international human
rights instruments. Besides, Ethiopia has also endorsed other area-specific treaties such as those
enacted under the auspices of International Labor Organization (ILO). All of the provisions in all
of the treaty-based human rights instruments are expected to fully apply here in Ethiopia. Thus,
beyond its constitutional mandate, the state of Ethiopia has a treaty obligation emanated from
those international instruments to realize human rights at domestic level. As a final point, it is
good to mention here that Ethiopia is one of the countries of the world that have ratified many of
the most important international human rights instruments.
[Link]. Regional Mechanisms
In addition to the international human rights regime functioned under the UN umbrella, there are
regional human rights systems which cover three parts of the world; Africa, the Americas and
Europe. These two (international and regional) systems are aimed to make sure state actors are

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fulfilling their obligation in promoting, protecting, providing and fulfilling their citizen’s rights.
Hence, if an individual or groups feel that his/her/their rights are not protected on the domestic
level, “the international system comes into play, and protection can be provided by the global or
the regional system”. Actually, this works only for the countries found in regions of the world
where such systems are in place. As mentioned before, regional human rights systems are
currently established only in Europe, Africa and American regions. The alternative for citizens
live in the other regions is to take their complaints to the UN human rights system, which is
barely functional. However, beyond their existence, the functionality of these systems is highly
questionable.

Question for Discussion:

Do you think there is a hierarchy among the international, regional and national human rights
regimes?

These human rights systems are established independent, but as part of regional integration
arrangements. This is the case in all the three regions have human rights institutions. In African,
this system is established under the African Union (AU) structure; in the Americas it is part of
the Organization of American States (OAS); and in Europe it is embedded in the European
Union’s (EU) organizational structure. The other regional integration agreements we found in
various places in the world does not have such human rights mandate. This includes, for
instance, North American Free Trade Area (NAFTA), ASEAN, and OPEC. Such arrangements
are established for economic or political purposes other than human rights.
Many authors in the field agreed on the importance of regional systems referring into the
opportunity they offer for regional values to be taken into consideration when human rights
norms are defined and framed. However, it should be also recognized that if this goes too far, of
compromising the idea of the universality of human rights. Regional human rights systems are
also recognized for providing a better systems of enforcement than the global system. It allows
regions to apply the relevant enforcement mechanism that fits to their context. For example, the
EU founds judicial approaches more appropriate and the AU inclined to non-judicial mechanism.
The global human rights system lacks such flexibility.

The African human rights system is operative under the organizational structure of the AU since

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in July 2002. Currently, 53 African countries are signatory members to the AU and the African
Charter

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on Human and Peoples' Rights (1981/86). Besides, a protocol to the African Charter on Human and
Peoples' Rights on the Establishment of the African Court on Human and Peoples' Rights
(1998/2004) is adopted in 2004 and ratified by 21 member states. This Protocol entered into force
in January 2004 and the process is underway to establish the Court. The AU Summit has started
this endeavor by taking a decision to merge the African Human Rights Court with the African
Court of Justice in July 2004. Ethiopia is a signatory party to the Banjul Charter since 1991 and
to the African Charter on the Rights and Welfare of the Child in 2001.
5.7.9. The Ethiopian Human Rights System
The foundation of the observance of the human rights in Ethiopia is the FDRE Constitution,
which was ratified in 1994. The Constitution is the supreme law of the land and the source and
basis of legality of all other laws. The FDRE Constitution classifies human rights as one of its
five fundamental principles and declares that human rights and freedoms, emanating from the
nature of mankind, are inviolable and inalienable and that the human rights of citizens and
peoples are respected. The Constitution further empowers all Federal and State legislative,
executive and judicial organs at all levels with the responsibility and duty to respect and enforce
the Constitutional provisions of human rights.
The FDRE Constitution has established a national human rights regime by recognizing most of
the human rights entitlements acknowledged by the core international and regional human rights
instruments. These rights cover civil and political rights (arts. 14 to 38), socio-economic rights
(arts. 41 to 42) and group rights (arts. 39, 43 and 44). About one-third of the Constitution is
devoted to enshrining fundamental rights and freedoms. Accordingly, most civil and political
rights and economic, social and cultural rights as well as environmental rights and the right to
development are stipulated in detail. Further Article 9/4/ and Article 13 of the Constitution state
that international agreements ratified by Ethiopia are an integral part of the law of the land and
the fundamental rights and freedoms specified in the Constitution are to be interpreted in a
manner conforming to the principles of the UDHR, International Covenants on Human Rights
and international instruments adopted by Ethiopia.

Moreover, the Constitution gives outstanding emphasis to the rights of women, children, persons
with disability, and of nation, nationalities, and peoples. Besides including a vast of human rights

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

To end with, there have been established institutions with the specific and prominent mandate of
respect and promotions of human rights and the main organizations in this respect are: the
Ethiopian Human Rights Commission (EHRC) and the Ethiopian Institution of the Ombudsman
(EIO). Additionally, the Federal and Regional Ethics and Anti-Corruption Commissions and the
Chief Auditor’s Office are agencies that consolidate transparency and accountability. The
National Election Board was established on the basis of the Constitution’s dictum that state
power can be assumed only through representatives elected by universal and equal suffrage held
by secret ballot, guaranteeing the free expression of the will of the electors. The above structured
nexus is designed to ensure respect, protection and promotion of human rights.
Chapter Summary
Human rights, constitution/alism and democracy are some of the core concerns of this course.
The chapter deals with these three important notions one by one. The chapter discussions goes
from definitions/meanings to theoretical arguments around these concepts. The core ideas or
arguments of the major authors in the areas are discussed briefly. Human rights are explained in
the first section as entitlements with both legal and social recognition. Human rights mainly
engaged two main actors: rights owners and duty bearers. It is the cyclic interaction between the
rights holders and duty bearers the respect and realization of human rights come to practice. The
Universal Declaration of Human Rights associates human rights with "the highest aspiration" of
the common people, and proclaims itself to be a "common standard" for all. Human rights are
also recognized and stipulated in our FDRE Constitution in similar manner. Thus, the realization
of all human rights is not a matter of choice for states and non-state actors working in the area, it
is rather an obligation must be fulfil if citizens have to live a worth living life. Constitution/alism
and democracy are also imperative in any political system. Both can be seen as a basis for the
promotion, protection and fulfilment of human rights. Constitutional regimes exercises limited
power and respects citizen’s rights. The respect, fulfillment and provision of rights is also one of
the fundamental principles of democracy. Thus, these three concepts are not mutually exclusive.

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Self-Check Questions
Give Short Answer for the following questions
6. What do you think of the reason for Europe to be the pioneer in the protection
and promotion of human rights?
7. Discuss the status and condition of the respect and promotion of human rights in
African context in-group. Due think that Africa has a good record in this
regard? If not what do you think of the possible reasons?
8. As a document setting common standard for human rights, how do you evaluate
the contents of UDHR? Do you think the document is exhaustive?
9. What roles can private institutions play in the global move for the respect of
human rights? And what possible challenges do you think the face?
10. Now days there is this argument that 'unless and otherwise the issue of the
problem of globalization of poverty is solved humanitarian crises will be the
defining feature of the world and hence all issue of human right revolves around
global redistribution of resources to eliminate the gap between the few rich and
the many poor.' Discuss in-group.
11. Discuss the right to life in view of FDRE constitution? What arguments can you
forward for the legalization or for the illegalization of death penalty?

MoSHE 201