CHAPTER two

CONSTITUTION AND ITS FEATURES

1. What is Constitution and Constitutionalism?

James Bryce defined constitution as a frame of political society organized through and by law, ie, the law
has established permanent institutions with recognized functions and definite rights. John Adler (1994)
defines constitution as a collection of principles according to which the powers of the government, the
rights of the governed (citizens) and the relations between the two are adjusted. The constitution of a
country embodies basic framework of rules about government of that country and its fundamental
values. Encyclopedia defines it as "the body of doctrines and practices that form the fundamental
organizing principle of a political state. Constitution is also defined as a document that contains the laws
and beliefs of a nation; including the powers and responsibilities of the government and the rights of
citizens. Constitutional law is different from other kinds of law in that the other laws of a country obtain
their validity from its constitution. Constitutional law is 'the law the law behind the law.

Supreme Law

A fundamental principle of constitutional government is that a constitution is considered to be the

supreme law of the land. As supreme law, no other laws may contradict the constitution.

The constitution is above all other laws and government officials including citizens.

• The constitution is a source to all other laws Many may believe that those in position of governmental
authority can behave as they please, but the constitution meant to define and limit the use of their
power vis-à-vis the citizens. Once principles are laid government should be limited in certain basic ways.
It means it cannot encroach (invade) unnecessarily into the lives of its citizens. The constitution then
serves as a force more powerful than government of the day and successive governments must operate
within constitutional framework. Another principle is that there are certain fundamental rights and
freedoms of citizens that do not change or disappear overtime --such as freedom of expression and the
right to peaceful assembly. As such, constitutions are meant to limit governments from denying citizens
these fundamental rights. Because the constitution is considered as supreme law, other laws cannot
take away rights that are given in a constitution.
Constitutionalism

Constitutionalism is fundamental principles of democratic governance. It is the principle that

government is organized and limited in ways that adhere to a law (the constitution) that is considered to
be above- government. Constitutionalism is a guiding principle that limits government power so as to
protect human rights. In the impression of Strong (1972), Constitutionalism focuses on the
establishment of constitutional government in which constitutional guarantees protect human rights
from abridgment (reducing) by either public officials or private groups. Generally speaking,
constitutionalism may be said that constitutionalism stands for the principle that the exercise of political
power shall be bounded by rules which lay down the procedure and determine the validity of legislative
and executive action. These rules have the effect of curbing the arbitrariness of political power.

As distinguished from dictatorships, constitutionals governments refer to rule by law and not by men. A
constitutional government is identified how the contents of its decisions affect human rights. Therefore,
the application of the rule of law and separation of power preservation.

4. Classifications of Constitution

Classification of constitutions may be necessary for a proper understanding of the peculiar character of a
particular constitution. The classificatory schemes differ according to the criteria adopted for such
purpose. A clear distinction may be drawn between the traditional schemes and those adopted by
modern writers. Some of these classificatory schemes may be mentioned as follows:

1. Written and Unwritten

2. Flexible and Rigid

3. Monarchical and Republican

4. Parliamentary and Non-parliamentary

5. Federal and Unitary state organizations and the like

A. Written and Unwritten Constitution (as cited in Adler Written Constitution , 1994)

document (Codified Constitution) It is a special or group of documents setting out the main principles
status in principles system. A written constitution is found as a single, handy and readable document
containing the basic principles and rules specifying the nights and duties of citizens. In this document all
and institutions of political structures the country are organized in accordance with the stated in the
single written document. The majority of constitutions in the world are written in form. For example,
India, Ethiopia, Kenya, France Germany Nigeria and United States of America and the like have written
constitutions.

History of written constitutions in Ethiopia was the 1931, 1955, 1974 attempted constitution making of
the new Cabinet), 1987, 1991 (transitional charter) and 1995.

in many cases, there is also a bill of individual rights and the constitution declares the aims and
aspiration towards the community. In some countries the history of written constitutions has been the
result of some major upheaval in the affairs of a country, like evolution. Example: -

The constitution of USA made in 1781

The constitution of France made in 1789

The constitution of Ethiopia in 1974 (attempted constitution of the new Cabinet).

* It is readily available to citizens to enable them to supervise the works of their government

* It prevents the prevalence of dictatorship It enables citizens to identify their fundamental rights and
duties and to learn the basic rules governing the patterns of political process of their nation. It avoids
political uncertainties It enables citizens to have the opportunities to seriously consider fundamental
constitutional provisions

Disadvantages:

* The implementation of a written constitution requires interpretation and, therefore, it may lead to
disputes between branches of government. It is not easily adaptable to changing circumstances. To be
adaptable to new situations, written constitutions need to be continuously amended or modified.

It is difficult to describe the extent of devolution of power among different levels of governance in a
country.

Unwritten constitution (Uncodified Constitution) -It is a document based on common traditions,

customs...of the country. It is a collection of documents, statutes and traditional practices that are
generally accepted as governing matters. It is also a collection of documents, statutes, rules, regulation,
declarations and traditional practices that serve as governing matters. These elements were passed
either by a parliament or other competent government body at different times and in the mean time
not compiled in a single document. The fundamental principles and powers of government are not
written down in any single legal document. In other words, there is no single written document that
specifies the rights and duties of citizens. This type of constitution is based on the customs and beliefs,
and understandings that grew up over a long period of time.
This form of constitution is used in Britain, New Zealand, Bhutan, Oman, Saudi Arabia and Israel. Britain
is a classic example of unwritten constitution. The British constitution comes from a variety of sources.
The main ones are:

Statutes such as Magna Carta of 1215 and the Act of settlement of 1701 Laws and customs of
parliament; political conventions Case law; constitutional matters decided in a court of law
Constitutional experts who have written on the Walter Bagehot and A,V Diecy

Advantages:

It is flexible and therefore can be easily adapted to changing circumstances.

It may ensure smooth running of the government in accordance with the various conventions and
customs. This may result in with political stability

Disadvantages:

* Since there is no single document that clearly states the fundamental rights and duties of citizens and
of

* Governments, it would be difficult to quickly determine which aspect of the constitution is violated
and when.

* Since there is no legal restraint and because it is not accessible to the public, it can easily be distorted
or even changed without the consent of the stakeholders.

* It is not simple to determine what an established convention or custom is. Hence, there may rise
differences in society regarding subject such as

which convention or custom is acceptable and which is not, since there could exist different conventions
and customs in a country * Because of its inaccessibility, it is nearly impossible to create awareness
through education on the fundamental constitutional rights and freedoms, duties and obligation of
citizens.

To conclude, constitutions that are found as a single, handy and readable document are called written
constitutions. Constitutions that are not set out in detail within a single document or a body of law are
known as unwritten constitutions.
B. Flexible and Rigid Constitution (as cited in Adler, 1994)

Writers on constitutional matters have traditionally divided constitution into flexible and rigid
constitution. Flexible constitution is a constitution that adapts easily to changing circumstances. Rigid
constitution is a constitution that does not adapt itself to changing circumstances. A rigid constitution is
more difficult to change than flexible constitution. However, the law alone cannot tell us how 'rigid' a
particular constitution really is. Rather, the political forces act as political brake restraining changes. A
realistic distinction is sought to be made between rigid and flexible constitutions, not in the
conventional sense, but taking into consideration the relative ease of frequency of significance of actual
change of the constitution. This would dispel the old notion that the American or the Swiss constitutions
are rigid while the British constitution is flexible. Experience of actual change and the existence of formal
legalistic procedure for making a change in these constitutions will lead to quite different conclusions.

What is very important: the rigid-flexible distinction has no necessary connection with the distinction
between written and unwritten constitution. What matters is the extent to which the legal constitution
adjusts to political reality, Nevertheless, understandably unwritten

constitutional Development in Ethiopia

traditional and modern Constitutional Experience in Ethiopia

history of constitutional practice in Ethiopia is traced back to the fernation of the earliest states of
ancient Ethiopia. The political som of monarchy was established in the very early times in Axum on the
basis of divine rights of kings. Divine rights of kings imply that they had absolute power over their
subjects and their rule was meant to be not only secular but also spiritual. They made their people
believe and accept kings as unquestionable beings who can not be challenged by the people. A divine
right of kings is a type of political rule with the belief that the right to rule is given to those who are
believed to be born to rule. These are the families of kings.

1. The 1931 Constitution

The 1931 constitution was introduced in order to achieve Ethiopia's diplomatic recognition abroad and
to strengthen Halileselasies's authority at home. This constitution was not a reform measure in response
to popular demands from the Ethiopian societies. Thus, there was no little or no attention to
guaranteeing political freedoms and fundamental rights of Ethiopians. The com constitution gave all
sovereign s to the emperor. The people were considered as mere 'subjects' ad not as citizens with
political and civil rights.in general, the 1931 constitution was formulated to attain the following two
purposes:
1. The constitution was intended to give Ethiopia the image of modernity among the international
community. Because during that time Ethiopia felt pressure from the European powers that controlled
colonial territories in Africa. Ethiopia was also accused of being "uncivilized" to be considered as a
sovereign political entity in on international atmosphere by the colonial powers. Therefore, Haile selasie
issued the constitution to impress

European with Ethiopian's political modernity 2. In the domestic affairs the 1931 constitution aimed at
providing a legal framework for the subordination of the powerful traditional nobility to the emperor.
The emperor used the constitution as a legal basis to extend the power of the central government over
regional rulers.

This first written constitution served the interest of the Emperor. Thus, the 1931 constitution can be
referred to as the charter of the absolute power of the monarchy. Nevertheless, the 1931 constitution
laid some foundation for experimenting with practices of modern government in Ethiopia. Some of the
contributions of the 1931 constitution were:

A. Introducing of the Parliamentary System

One major contribution of the 1931 constitution in this regard was the creation of the parliament. The
parliament consisted of two Houses Chambers namely, the Chamber of Senate ("Yehig Mewesegna
Mekerbet) In other words, the parliament in its structure was bi- cameral i.e. having two houses.

Those elected to the two houses were only noblemen and princes, and their term of office was not
limited. However, the constitution did not provide powers and functions to the parliament. It was not an
institution that was meant to decide on laws. Power to make laws was vested in the Emperor. The
parliament was merely meant to approve of the legislation of the Emperor.

B. Introducing the system of Annual Budget

The second major contribution of the 1931 constitution was the introduction of the idea of providing
fixed annual budget for government.

C. The Introduction of the Ministerial System

The third major contribution of the written constitution of the 1931 was the provision of the
institutional framework for the ministerial system. But the executive branch of government was heavily
centralized in the person of the Emperor In other words, the ministerial system of government was
completely subordinate to theEmperor.
D. The introduction of Judicial Branches

The fourth major contribution of the constitution of 1931 was the introduction of two separate systems
of courts. These were:

The regular courts that dealt with civil and criminal cases *The administrative tribunals which handled
civil cases that affect government.

At the top of the court system was the emperor's Chilot ("Yenigus Chilot") where the emperor in person
received cases, and it can change any judicial decision.

all aspects, whatever the constitution is innovative it is more of paper value. Thus, the constitution of
1931 was by no means democratic in its inherent nature. The main objective of the constitution of 1931
was to justify the centralized and absolve authority of Emperor Haileselasie over all internal and external
affairs of Ethiopia. Otherwise, ordinary Ethiopians were considered by law as not yet ready to participate
and decide in public affairs.

3. The Revised Constitution of 1955

The second written constitution of Ethiopia is the Revised Constitution of 1955. It was introduced on 4
November 1955. The political principles and objectives of the Revised Constitution of 1955 were
essentially similar to the 1931 constitution. Nevertheless, the Revised Constitution of 1955 included
some elements of advancement compared to the previous 1931 constitution. Similar to the 1931
constitution, the Revised Constitution did not involve any popular process of ratification. In other words,
people did not participate in the formulation of the constitution. The only distinction, between the
Revised Constitution of 1955 and the 1931 constitution was that the former included one chapter to
deal with some right and more duties of the people.

The Revised constitution more strongly established the absolute power of the monarch. It declared the
"inviolability" of the emperor's dignity. He could appoint and dismiss government officials in all branches
of government as he wished. The emperor has also the power to dissolve the parliament. Any law could
not become into effect unless the emperor approved it.

In general, the 1955 Revised Constitution made the power an authority of the Emperor absolute in the
Ethiopian state and society. consolidated the executive, legislative and judicial powers of Hai selasie. In
contrast, little or no significance was attached to the need to guarantee the political and human rights of
the Ethiopian people. The constitution expressed intention of protecting individual rights in terms of
property, life, and private affairs. However, in practice, the mechanism for implementing these rights
was largely absent.
Although the Revised constitution of 1955 was a step forward in the history of constitutional
development in Ethiopia, in effect it failed to lay down a democratic tradition in the Ethiopia political
process.

4. The 1987 Constitution

The 'Dergue' constitution of 1987 was issued for the purpose of justifying the 'Dergue's' rule. It was not
to institute constitutional order. The 'Dergue' constitution of 1987 was not different from the former
constitutions of Haile selassie, in terms of the provision of democracy, human rights and freedoms to
the Ethiopian societies.

The 'Dergue' constitution differed from the previous constitutions in some ways. It was dratted by the
constitutional commission through a program of public "consultation" it was later on ratified by the
name of popular referendum to provide a pretext of broad participation. Jo

In form, some of the provisions of the 'Dergue' const incorporated 'democratic' principles. It declared
that all powers are derived from the elected National 'Shengo'; a legislative body having a unicameral
structure. The National 'Shengo was by name the supreme organ of the state. It was responsible to
establish the subordinate organs of the state and to elect the president and other leading officials. In
practice, however, actual powers of the 'Shengo' were suspicious.

An important contribution of the 'Dergue' constitutional experienc was the involvement of the people in
the ratification of thCAMON 12

* On the basis of this principle government structures were founded at two major levels: the Federal
Government which was responsible for governmental affairs at the center and the Regional Government
that were responsible for administrative affairs of their respective regions

* It guaranteed the nations, nationalities and peoples of Ethiopia the rights to administer their own
affairs and to participate on the basis of equality in the central government decision making processes.
The charter offered an opportunity for self governance and it also

recognized the diversity of the Ethiopian societies. *It familiarized federalism by devolving political
power from its concentration at the center to the regions.

To sum up, the 1931 constitution was promulgated to give Ethiopia an image of modernity and
strengthen the emperor's authority at home. The 1931 constitution introduced parliamentary system,
annual budget, ministerial system and judicial system but all these were more of paper value than
practical implementation. The Revised constitution of 1955 was further consolidated the absolute power
of the emperor by declaring the inviolability of the emperor's dignity. Though it was not democratic, the
1987 constitution of the 'Dergue' introduced the participation of people in the ratification of the
constitution.

5. The 1995 Constitution

The constitution came into force since 21 August 1995. The 1995 constitution has a preamble and a
main body. The main. body is divided into eleven chapters with a total of 106 articles.

The preamble is an introduction to the main body of the constitution. It determines the objectives and
principles which the Nations. Nationalities and peoples of Ethiopia share in common. The preamble of
the constitution states the major principles that guide the government and the people towards the
constitutional objectives. These principles are helpful in the build-up of peaceful, democratic and
advanced Ethiopia.

The principles and objectives of the constitution are the foundations of the constitution. The objectives
indicate the common destiny of all Ethiopians. This shows the effort to build a political community. It is
reflected by the agreement made among the nations, nationalities and peoples of Ethiopia to live
together as members of one country.

The principle of the full respect of the fundamental freedoras and rights of the individual as well as that
of the group. The principle of living together on the basis of equality and without any ethnic, cultural,
political, religions, gender, social status or any other form of discrimination.

That is. Ethiopians are convinced live together, guided by the above principles to build an advanced and
veong nation that is governed by the rule of law, peace and democracy

The preamble of the 1994 constitution expresses the importance of living together as one economic
community. That is, we Ethiopian are convinced that to live as one economic community as essential for
our well-being. Creating one economic community enables us to establish sustainable and mutually
supportive conditions for our progress. This helps to avoid poverty and and strengthen our economic
growth and development. That is, our living together as one conomie as well as political community is
believed to be the source of our strength for our common benefits,

The Basic principles of the 1995 Constitution

The basic principles of the FDRE constitution of 1995 are:

1. Sovereignty of the people. It indicates when power is vested in the hands of the people. In other
words, it means when the people exercise supreme power or ultimate power directly or (by their
representatives). The FDRE constitution (Article 8) states indirectly that "All sovereign power resides in
the Nations, Nationalities and Peoples of Ethiopia". Accordingly, sovereignty is in the hands of Nations,
Nationalities and Peoples of Ethiopia.
2. Supremacy of the Constitution---In any country, constitution is at the highest level in the hierarchy of
laws. It means a constitution is supreme law of the land. There is no any other law above the
constitution. The FDRE constitution (Article 9 (1)) states that "The constitution is supreme law of the
land.... Any law that contradicts with the constitution has no legal effect".

3. Respect of Human and Democratic Rights---These are basic rights of the people. These rights are
inalienable (not separated) rights and should be respected. The FDRE constitution (Article 14-44)
contains provisions of human and democratic rights.

4. Separation of State and Religion---The separation of religion and state is termed as secularization. In
Ethiopia, there has been history by which state and religion were not separated. It means, there has
been state religion. Today, according to FDRE constitution (Article 11), state and religion are separate
and there is no state religion. This also includes that religion shall not interfere in state affairs and
likewise state shall not interfere in religion matters.