CHAPTER FIVE

Constitution, Democracy and Human Rights

Constitution

 Constitution is the fundamental 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.

 Constitutions are laws which govern those people who are in power and citizens.

 It is the supreme law of the land.

 It is superior to all laws

 Other laws are formulated in line with the constitution.

Peculiar Features of Constitution

 With a few exceptions, all constitutions contain some common elements. The following

are the major features:

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.
  Other laws provide the details of the subject for which they are created.

Permanency:
i. unlike laws, constitution is made for undefined period of time.
ii. That means constitution serve for a long lap of ages.
iii. It is purposely made to be stable and permanent.
[Link] of the mechanisms to ensure this permanency is through constitutional
amendment.

Supremacy:
 a constitution is a supreme law of the land.
 They are supreme laws, taking precedence over all others, and defining how all the
others should be made.
 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.
 Other laws which are contradictory to the constitution will be null and void.

Codified document:

 Constitutions are written down; often in a single document that presents the constitution
in a systematic manner.

Allocation of powers:

 Constitutions outline the proper nexus between institutions and offices of the state, and
between government and citizens.

 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.

Purpose and Function of Constitutions

[Link] serves as a framework/charter for Government

 A constitution establishes the structure, composition, powers and principal functions of

the basic organs of government.
 That means, a constitution establishes the legislative branch that makes law, the executive
branch which enforces law and finally the judiciary branch which interprets law.

[Link] limits the power of Government

 A constitution limits or restricts the degree and extent of power of government officials.
Constitutions outline what government officials must do and must not do.
[Link] Power to Governments:
 A constitution assigns power for the different organs of government and between Federal
and regional governments.
[Link] protects individual and collective rights of citizens
[Link] 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.
6. It provides Government legitimacy/stability:
 constitutions 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.
7. Blue Prints for establishing Values and Goals:
 a constitution also contains the aspiration and objective of people living together a state.

 Usually, the aspiration of people is found in the preamble part of constitutions.

Classification of Constitutions
I. Constitution based on form/ appearance
 Constitutions, in view of the breadth of written provisions, have been described as written
and unwritten constitutions.

[Link]
 Written constitutions are constitutions that are embodied in a single document
 A written constitution is always enacted
 A written constitution is one which is framed at a given time and comes into practice on a
fixed date.
Advantages of a Written Constitution
 It is clear and definite.
 When the constitution is in the form of a document, people have a clear understanding
about the powers of the government.
 A written constitution can be made available to all inhabitants (and visitors).

The Disadvantage of Written Constitution

A written constitution is that it fails to adapt itself to changing conditions easily.
 Generally, the process of amending or changing a written constitution is comparatively
complex.
 The implementation of a written constitution usually involves interpretation.
 In some instances, such interpretation leads to dispute between branches of the
government.
 It is also not possible to absolutely define the extent of devolution of power among
different levels of governance in a country.

[Link]
 Un-written constitutions are constitutions which are not assembled and written in a single
document.
 Parliamentary enactments, customary practices, traditions, court decisions etc., serve as
constitutions in countries having unwritten constitutions.
  It is based on conventions, customs and statutes that grow over the centuries.

 unwritten constitution is evolved

 An unwritten constitution, on the other hand, is a result of evolution: it is given by
history.
 It is never framed by any Constituent Assembly.
 The British Constitution is the best example of an evolved and unwritten constitution.

The Advantages of unwritten Constitution

 One of the major advantages of unwritten constitution is its flexibility.

The Disadvantages of unwritten Constitution

 It is disadvantageous because there is no single document that clearly states the
fundamental rights and duties of citizens and of governments.
 In this case, it would be difficult to quickly determine which aspects of the constitution is
violated and when.
 Since there is no legal restraint and because it is not accessible to public, it can easily be
distorted or even changed without the consent of the people.
 As a result, there may arise difference in society regarding which conventions or custom
is acceptable and which is not, since there could exist different conventions and customs
in a country

II. 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. A rigid constitution:

 is one in which amendment is very difficult, requiring special procedures to be employed

before any changes can be made.

Advantages of Rigid Constitution

 The strength of a rigid constitution is that it is a guarantee against quick changes. It is

 Stable.

Disadvantages of Rigid

 A rigid constitution may not be easily changed according to the changing conditions.
 Where constitutions were devised by their founders as a complete statement of
arrangements for the future, it will generally be difficult to amend them.
 For this reason it is particularly difficult to amend a written constitution: it is „rigid‟
rather than „flexible‟ in nature.
 The constitutions of the United States of America, Switzerland and Australia are
considered as rigid constitutions.

2. A flexible constitution:

 Is one which can be amended easily by an ordinary legislative process

 It can be amended without any special procedure.
 For example; the constitution of England is flexible because any provision can be
changed by an act of Parliament.
 Some countries such as USA, Canada, Nigeria, Ethiopia stipulated a serious of
amendment procedures in their constitutions.

Advantage of flexible constitution

 A flexible constitution, however, is considered progressive in nature and helpful in the

development of the nation as it changes easily and adapts to the changing circumstances.
 A constitution to cope up with the changing environment must be amended
 Constitution needs to be adjusted in relation with the changing external environment.
 This is done by modifying or changing certain provisions of the constitution. This
process is known as Amendment
 On the other hand, in countries such a united kingdom, a constitution could easily be a
mended by a normal legislative process.
 Some countries such as USA, Canada, Nigeria, Ethiopia stipulated a serious of
amendment procedures in their constitutions.

Disadvantage of flexible constitution

 whereas a flexible constitution is unstable.
III. Constitution based on degree of practice

1. Effective Constitution:

 Effective constitution denotes to a situation in which government/citizens practices

correspond to the provisions of the constitution.

2. Nominal Constitution:

 In short when the constitution only remains to have paper value or when there is
absence of constitutionalism. Therefore, a nominal Constitution is not observed in
practice but in form.

IV. Based on the kind of state structure/ state arrangements

 Constitutions which distribute power between the Federal and regional levels of

government are Federal constitutions.

 On the other hand, constitutions that concentrate power at the central government are

called unitary constitutions.

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.

 Hence, the essential elements for constitutionalism are constitution and its effective
implementation.

 Constitutionalism is another name for the concept of a limited and civilised government.

 Thus, constitutionalism does not merely require the existence of constitution.

The Constitutional Experience

Ethiopia of: Pre and Post

1931 Traditional Constitution

of Ethiopia (Pre 1931)

 Documents like the Kebra Nagast, the Fatha Nagast and serate mengest from the 13th
Century until the early 20th Century were the precursors to the formal written Ethiopian
national constitutions of the modern era.

A. The Fetha Negest (The law of the Kings)

 The Fetha Negest (The Law of Kings) was a religious and secular legal provision
 Law of the Kings, is a collection of laws which in use in Christian Ethiopia for many
centuries.

 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 a fundamental law upon which the government and the administration were based
and the king vested with absolute power
 It contains the idea of divine rights of kings with the assumption that rules have a God
given power.
[Link] Negest
 The Kebra Nagast (The Glory of Kings) was written document for the first time the
mythical origins of the royal house.
 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.
 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.

C. Ser’ate Mengeste:
Another is Ser’ate Mengeste of the 19th c which deals with administrative protocols within
the government institutions.

The 1931 Written Constitution

 The first written constitution in our country constitutional history.
 the constitution has two motives: Internal and external.
 One of the most important historical goals of the Constitution was to breakdown the powers
of the regional lords by bringing them under powerful centralized state machinery.
 This constitution strengthened the traditional position of the emperor by weakening the
role of nobility.
Secondly, its major purpose was modernization

 Consistent with their colonial intention, the west, particularly, Italy under Mussolini
continued to accuse Ethiopia as un-civilized, backward, arbitrary, feudal etc.
 Therefore, the constitution was written with the Emperor's strong motivation to reverse
all these criticisms and to show the modern picture of the country.
 Ethiopia was expected to show to the outside world that it is becoming civilized.

The 1931 constitution is remarkable in the sense that it has

 Established the three branches of government.

 Established bicameral parliament containing the senate (Yehig Mewossagna Mikir Bet)
and the Chamber of Deputies (Yehig Memiria Mikir Bet).

 However, these two Houses were not representative.

 The primary role of the two Houses was strictly advisory.

 They had no power to make laws independently by themselves as modern parliaments do

today.

 It provided the constit utional frame work for ministerial system The constitution was
significant not for its liberal traditions but rather for its symbolic role in providing formal
definitions of the relations between the emperor and the nobility and the administration of
the government.
 The constitution can be considered as more of a formal agreement between the monarchy
and the feudal lords.

The 1955 Revised Constitution

 The Revised Constitution continued to reinforce the process of centralization.
 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).
 Similar to its predecessor the revised Constitution solidified the absolutism of the
 monarchy.

 The first two chapters were devoted to the institution of the monarchy, the holiness of the
Emperor, His dignity, and the Solomonic root of the dynasty, etc.
 The Revised Constitution continued to reinforce the process of centralization.
 The federation of Eritrea (with its liberal constitution) with Ethiopia (which had
autocratic constitution) in 1952 was the one that necessitated the revised
Constitution.
 The persistent effort on the part of few enlightened Ethiopians returning home from

abroad for a more liberal and democratic constitution was another reason for
the revision of the constitution.

The 1987 Constitution of the People's Democratic Republic of

Ethiopia (PDRE)
 After assuming power, the military regime, suspended the 1955 revised constitution and
began to rule the country by series of decrees and proclamations.
 The Constitution starts by making “the Working People of Ethiopia” owners of the
Constitution.
 It goes on at the preamble to note the fact that Ethiopia is a multinational state with
various nationalities and diverse communities with essential unity created by
cultural intercourse, migration and commerce.
 Sovereignty lies on the workers of Ethiopia and exercised through the unicameral
parliament called the National Shengo and local Shengos established by election, as
well as through popular referendums.
 According to the Constitution, the Shengo was the supreme organ of the state power in
the country.

The 1995 FDRE Constitution

 The Constitution gives the ownership of the constitution to “Nations, Nationalities
and Peoples of Ethiopia” and established a federal state by dividing and sharing power
 between the federal and state governments.
 In line with federal traditions, the constitution stipulated legislative, executive and
judicial organs.

 Similarly, an independent judiciary with the supreme federal judicial authority vested in
the Federal Supreme Court is established.
 Likewise, states have the State Council (with legislative power), State administration
(highest organ of state executive) and a judicial power vested in courts.
 The judicial branch is composed of federal and state courts.

Democracy and
Democratizatio
n Understanding
Democracy

 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.
 In its original sense democracy means “rule by the people”.
 The most common definition of democracy: given by former US President Abraham
Lincoln.
 “the government of the people (a government comes from the people)
 by the people (it is exercised by the people)
 and for the people” (for the purpose of the people‟s own interests)
There are two broad ways of exercising democracy: namely, direct and indirect
democracy.

Direct democracy:

 It is also known as pure/classical 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.
 Every decision concerning the government is decided based on popular vote.

Indirect democracy:

 Refers to a form of government in which citizens exercise their rights and freedoms
through representatives chosen by them.

Fundamental Principles and Values of Democracy

The followings constitute some of the fundamental principles of democracy.

A. Popular sovereignty: Democracy makes people ultimate sources of political power.

B. The Rule of Law: it means that government decisions and actions shall be made
according to the established laws of the country rather than by arbitrary action.
It means that the principle of the rule of law means that both government and the
governed are, and must be, subject to the laws of country.
C. Separation of Powers: In a democracy, there is no concentration of power up on a single
individual or institution.
Instead, political power will be shared among the different organs and levels of
government.

D. Checks and Balance: Means that many of the powers of one branch are shared and
checked by those of the other branches.

E. Majority Rule and Minority Rights: After conducting democratic election, those who gets
the majority vote will establish a government
 F. Political Participation; requires active political participation of the public.
Participation could take different forms such as voting, being members of a political party
and running for office, undertaking peaceful demonstrations etc.
G. Liberty: Liberty refers to the freedom enjoyed by citizens to lead their life in their own
way. Democracy as a system ensures freedom to the possible degree for all the people so
that they could develop their own capacity and potential.
H. Political Equality: Political equality implies the enjoyment of all political rights by all
citizens without discrimination on various grounds.
I. Tolerance: Tolerance refers to the accommodation of divergent views, believes, cultures
languages etc.

J. Free, Fair, Periodic and Competitive Elections: In a democratic election voters are free
from any sort of threat of punishment, coercion and intimidation.
 That is voters should be independent and autonomous to choose whomever they want.

 An election should be fair in the sense that contesting political parties should be given with
equal chances and privileges to air their views, political programmers etc.

 Democratic elections are also hold on the basis of regular time intervals.

L. Accepting the Results of Elections

M. Economic Freedom: In a democratic political system individuals are also given with the
freedom to undertake any kind of business they want in any part of the country

N. Accountability and Transparency.

 Accountability implies that government officials are answerable to the decisions and acts
they took. Failure in duty will make an official answerable to it.
 Transparency implies openness of the activities of government officials and institutions
to the public.

O. The protection of Human and Democratic Rights

P. Peaceful Transition of Political Power

Q. Multiparty System; Democracy also requires having several political parties working
together in one political system
R. Secularism

Democratization
 Democratization is the process of transitions from nondemocratic to democratic regimes
that occur within a specified period of time.
 It is not a simple process and will take 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.

Actors in Democratization Process

A. Political Parties
B. Mass Media
C. Civil Societies

Human Rights: Concepts and Theories

 Human rights are rights that belong to all of us, simply because we are human beings.
 Human rights are also called natural rights.
 They are natural in a sense that they are rights everyone needs to have as a result of being
a human creature.

Basic Characteristics of Human Rights

A. Universal:
 Universality refers to the applicability of human rights to all people everywhere at all
times.
 B. Inalienable:

 Inalienability implies that nobody can deprive anyone of these rights and nobody can
renounce these rights by himself.
C. 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.
D. Equality:
 This principle 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, colour, ethnicity,
gender, age, language, sexual orientation, religion, political or other opinion,
geographical origin
D. Inherent (in human dignity);
 Inherence refers to the existence of rights independently of the will of either an individual
human being or a group of people.

 Thus, “they are neither obtained nor granted through any human action. They are not
given by governments

Categories of Human Rights

These are the first generation of civil and political rights; the second generation of economic,
social and cultural rights; and the third generation

A. The First Generation Rights

 Civil and political rights
 Liberty rights
 First generation rights are essentially individual rights
 They only require the state to abstain from interfering in the life of the individual
 (negative obligation of the state).
 it conceives of human rights more in negative ("freedoms from") than positive ("rights
to") terms; it favors the abstention rather than the intervention of government in the quest
for human dignity.
 negative rights
 Belonging to this first generation, thus, are such claimed rights as set forth in Articles 2-
21 of the Universal Declarations of Human Rights, including
 punishment;

B. The Second Generation Rights

 equality rights
 economic, social and cultural rights
 group or collective rights.
 POSITIVE RIGHTS, requiring the intervention, not the abstention, of the state for the
purpose of assuring equitable participation.

Articles 22-27 of the Universal Declaration of Human Rights such as:

 The right to social security;

-being of self and family;

C. The Third Generation Rights

 Solidarity rights
 The right to development and environment
 seen as more collective rights eg.

 The right to political, economic and social development;

of mankind"
  All six of these claimed rights tend to be collective rights, requiring the concerted efforts
of all social forces, to substantial degree on global scale.

Derogations and Limitations on Human Rights

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

Limitations –restriction under normal circumstances

 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. Derogation means a temporary non-application and suspension of rights by the
state in abnormal or emergency (natural/artificial) situations.
 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.

Non-derogability of Human Rights

 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); etc.
Non-derogable rights under the 1995 FDRE constitution

Article 39; sub article 1 and 2

1. unconditional right to self-determination, including the
right to secession.
2. Every Nation, Nationality and People in Ethiopia has the
right to speak, to write and to develop its own language;
to express, to develop and to promote its culture; and to
preserve its history.
Article 25; Right to Equality
Article 18; Prohibition against Inhuman Treatment
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