Chapter Five

Constitution, Democracy and

Human Rights

1
5.1. Conceptualizing Constitution
 Constitution is fundamental or basic law of a state which sets out
the structure of the state.
 It is a blue print placed on top the hierarchy of laws

• It is collection of principles according to which the powers of the

government, the rights of the governed, and the relation between the
two are adjusted.
• Constitution is the mothers of all laws; all other ordinary laws are
derived from and subjected to this blue print.
• Any other law contradicted with the provisions of the constitution
becomes void or invalid. 2
5.2. Peculiar Features of Constitution
The following are some of the distinctive features of a constitution.
 Generality: a constitution provides the general principle of a
state.
 Permanency: unlike laws constitution is made for undefined
period of time.
 Supremacy: As a mother of law, it is original law by which the
system of government is created.
 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 relations
between institutions and offices of the state.
3
5.3. Major Purposes and Functions of Constitution

 It serves as a framework for Government.

 It Limits the Powers of Government.
 It protects individual and collective rights & freedoms of
citizens.
 It serves as the Supreme (Highest) Law of a Country
 It provides Government legitimacy/stability
 It serves as Blue Prints for establishing Values and Goals

4
5.4. Classifications of Constitution
A. Constitution based on form
 Written (codified) Constitutions
 It has the detail of rules, laws and principles in a single file or
document or compiled in single document.
 It is well arranged and systematized.
 It is understandable and handy for movement.
 All political structures and institutions of a country are organized in
accordance with the principles stated in the single written
document.
 The majority of constitutions in the world are in written form.
 Ethiopia, Kenya, India, France, Germany and USA have written
constitutions.

5
 Unwritten (Uncodified) Constitution
 It is a set of rules, regulations, declarations and laws passed by either
a parliament (the legislative body) or other competent body at
different times.
 It is not systematically put in a single document.
 It is based on the beliefs, traditions, norms, wisdoms, and conventions
of the society.
 Basic laws may be derived from previous acts and judicial rulings.
 Rules and principles may be considered as complex collections of
articles found in different documents.
 Example Great Britain, New Zealand,

6
Merits of Written Constitution
 It is available/accessible to citizens and enable them to monitor the
behavior of their government and thereby prevent the emergence of
dictatorship.
 Citizens can easily learn their fundamental rights and duties & the
basic laws governing the patterns of political process of their nation.
 Citizens have the chance to seriously consider fundamental provisions
before making the amendments.
 It is full of clarity and definiteness b/c of provisions written in detail.
 Uncertainties of political life and processes will be avoided or at least
reduced to the minimum. 7
Demerits of Written Constitution
 Interpretations may lead to disputes between branches of
government.
 It creates a situation of rigidity.
 It is not possible to absolutely delineate the extent of devolution of
power among different levels of government in a country.
 It is not easily adaptable to changing circumstances.
 To be adaptable to new situations, written constitutions need to be
continuously amended or modified.

8
Merits of Unwritten Constitution
 It is relatively more flexible and adaptable than a Written
constitution because it 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 contribute to the political stability of the state.
 It is so dynamic that it prevents the chances of popular
uprisings.
 It is dynamic to that prevents the coming of popular
uprisings.
9
Demerits of Unwritten Constitution
 It would be difficult to quickly determine which aspect
of the constitution is violated and when b/c it is
inaccessible .
 It can easily be distorted or even changed without the
consent of the stakeholders/people.
 It is not simple to determine what an established
convention or custom is.
 Because of its inaccessibility, it is nearly impossible to
create awareness through education on the fundamental
constitutional rights and freedoms, duties or obligations
of citizens.
 It leads to the state of confusion due to provisions are
exist in different usages & customs. 10
B. Constitution based on mode of Amendment Process
 Rigid Constitution
 It requires series of procedures for amendment.
 It is difficult to amend and needs special procedures.
 Amendment procedures may be relatively more a complex or
difficult.
 The constitutional amendment bill/advancement has to be
passed by an extraordinary or absolute majority (2/3) in the
parliament.
 It can not change and adopt with changing circumstances
easily and immediately.
 A more difficult is that which involves a national
referendum.
 Example: USA, Australia, Denmark, Ethiopia 1995

11
Flexible
 Ease to adapt with changing circumstances immediately.
 Legislature has the unchallenged and unconstrained
power to make laws on any issues and affairs.
 Easier to amend.
 It does not require special session/procedures to amend
it. No special arrangement is needed.
 The common amendment procedure is an absolute
majority(2/3 vote) of the parliament.
 Example: United Kingdom, New Zealand

12
C. Based on Degree of Practice
 Effective Constitution
 It depicts the capacity of the constitutional articles to
limit or constrain the power of government.
 Effective enforcement of constitutional provisions by
gov’t bodies and citizens.
 The existence constitutionalism. Example: democratic
countries constitution.
 Nominal Constitution
 The constitutional provisions exists but not practiced or
observed by government & citizens.
 Absence of constitutionalism.

13
D. Based on State Structure
 Federal Constitution
 It distributes/devolves the power of government b/n central and
local units.
 It allows shared rule and self-rule in the country.
 It clearly demarcates the power sphere of central and local
governments.
 Example: USA, Canada, Australia, Malaysia etc…
 Unitary Constitution
 It permits the concentration of power at hands of central
government alone.
 Local governments can be exist or abolish based on the will of
central gov’t.
 Examples: UK, France, Netherlands, etc..
14
5.5. Constitutionalism
 Constitutionalism refers to a doctrine that governments should be
faithful to their constitutions.
 It is being subject to limitations and that citizens and governments
operate in accordance with the general rules and laws rather than
arbitrary.
 constitutionalism is the belief that constitution is the best
arrangement of affairs in a society.
• Because of this, it is only in a democratic country that a
constitutional government can be said to exist.
15
5.6. Constitutional Experience of Ethiopia

5.6.1. Traditional Constitution (Pre- 1931)

 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.
 Thus, documents like the
 Fetha Negest
 Kebra Nagast
 Serate Mengist

16
 Fetha Negest
 Fetha Negest (The Law of Kings) was a religious and secular legal
provision than being a definite constitution.
 It is a collection of laws which was 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.
 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.

17
 Kibre Negest
 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 14th Century.
 Defined who should become king in Ethiopia i.e., it determine the
succession of the throne in Ethiopia.
 It determined that any king in Ethiopia must descend from the
Solomonic dynasty or must have such blood relationship with the
dynasty.
18
 Ser’ate Mengist
• The ser’ate Mengist was one of the traditional
document that provided certain administrative
protocol and directives in the 19th century.
• Is used for allocating power among the Crown, its
dignitaries and the Church, by means of a protocol of
ceremonies.

19
5.6.2. The 1931 First Written Constitution
 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.
 Factors forced the development of the 1931 constitution are:
 Externally, the introduction of the 1931 constitution was the result
of the growing interaction between Ethiopia and western
European countries.
 Internally, the 1931 constitution was intended to provide a legal
framework for the suppression of the powerful traditional
nobilities to the emperor.
 It was designed to unify and centralize all state power in the hands
of the monarch.

20
5.6.3. The Revised Constitution of 1955
 The1931 constitution was revised and replaced by the
revised constitution of 1955.
 It was revised because of internal and external factors .
 Internally, mainly to cope up with the social and
political dynamics of the then period,
 Externally, global politics and Ethio-Eritrean federation.
 It also affirms the inviolability and absoluteness of
emperor’s power like to first.
21
5.6.4. The 1987 Constitution (PDRE)
 Immediately after came to power, the Dergue setup the
Provisional Military Administrative Council (PMAC) type of
temporary government.
 The PMAC presented itself for elections through a new party- the
Workers‘ Party of Ethiopia.
 After 13 years vacuum of constitution the 3rd written constitution
was issued by Dergue in 1987.
 Dergue issued a series of decrees and proclamations that was used
as legal rules until the adoption of 1987 constitution.
 State and religion were separated.
22
Cont’d…
 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.
 Aimed at the principles of Marxist and Leninist ideology.
 However, the 1987 constitution was not different from the 1931 and
1955 constitutions.

23
5.6.5. The 1995 (FDRE) Constitution
 It introduced federalism based on ethnic identity.
 One-third of it deals about human rights & freedoms.
 It offers constitution in to hands of upper-house or House of
Federation.
 It asserts self-administration up to secession for ethnic groups.
• The Constitution gives recognition to five fundamental principles
such as:
 popular sovereignty (art. 8)
 constitutionalism and constitutional supremacy (art. 9)
 sanctity of human rights (art. 10)
 secularism (art. 11)
 accountability and transparency of government (Art.12).

24
5.7. Democracy and Democratization

5.7. Democracy and Democratization

5.7.1. Defining Democracy

 Democracy literally means the government of the people or
government of the majority.
 The government of the people, by the people and for the
people( US President Abraham Lincoln).
 is a state of government in which people hold the ruling power
either directly or indirectly through their elected
representatives.
 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.

25
5.7.2. Values and Principles of Democracy
There are three core values that are central in the discussion of the
concept of democracy
 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).
 Justice: This value of democracy can be understood in three general
senses of fairness.
 Equality: All people are equal before the law.
 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.
 Economic equality: implying that all peoples of a country deserve equal and fair
assessment to the national resources services

26
Fundamental principles of democracy
 Popular Sovereignty
 Constitutional Supremacy
 Rule of Law
 Secularism
 Separation of Powers
 Free, Fair and Periodic Election
 Majority Rule Minority Right
 Protection and Promotion of Human Rights
 Multiparty System

27
5.7.3. Democratization
 Democratization is the process of transitions from non-democratic to
democratic regimes.
 Democratization is a conclusive and extended process, which
involves the 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.
 It is not a simple process and will taken a long period of time to
complete.
 There are three main elements/phases in democratization.
 removal of the authoritarian regime
 installation of a democratic regime
 consolidation, or long-term sustainability of the democratic
regime.
28
5.7.4. Actors in Democratization
A. Political Parties
 In a democratic system, political parties provide the proper
mode of functioning for the government.
B. Media
 Media and Democracy are always related to each other.
 Serve as watchdogs, monitoring those in power and provide
citizens with the information.
C. Civic Societies
 They help the government through raising awareness of public
about their rights and thereby to active participant.

29
5.8. Human Rights: Concepts and Theories

5.8.1. What Are Human Rights?

 Human rights are basic to humanity.
 They apply to all people everywhere.
 It is also common to call them natural‘ rights, since they are:
 human rights are universal
 Human rights are inalienable.
 Human rights are interdependent and interrelated.
 Important part of individual status as human beings and of our
collective status as members of the global community of
humankind.

30
5.8.2. Land marks 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.
 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.

31
Basic Features of Human Rights
 Universality: belongs to every human kind.
 Inalienability: without them life is impossible
 Indivisibility: full respect of all rights
 Interdependent and interrelated: all rights have equal
importance.
 Human rights involve responsibility and duties toward other
people and the community.
 There are legal, social and international orders for human rights
to be realized effectively.
 Human rights protection and fulfillment is considered as one of
the functions of governments.

32
5.8.3. Rights Holders and Duty Bearers
 Right holders are those who are entitled to enjoy, possess or claim
a given right.
 Right holders are individuals & groups who always claim their
rights from duty bears.
 Duty bearers are those who carry the obligation of promoting,
protecting, and fulfilling these right to the right holders.
 Primary, duty bearers are states. Besides, individuals & non-state
actors are duty bearers based on the nature of rights.
 Thus, duty bearers comprises: state, NGOs, community, individuals
 They have the duty of protecting, promoting & fulfilling the rights
right holders.

33
5.8.4. Categories of Human Rights
 Human rights cover virtually every area of human activity.
 Includes civil and political rights, such as freedom of speech and
freedom from torture.
 Also include economic and social rights, i.e. rights to health and
education.
 The common way of categorization is the one developed by Karl
Vasak (1982) who have classified Human Rights into three:
 First generation;
 Second generation;
 Third generation rights.

34
A. First generation rights (Civil and Political Rights/Liberity)
 Are rights which uphold the sanctity of individuals before
the law and guarantee their ability to participate freely in
civil, economic, and political society.
 No precondition could be acceptable for any violations of
such rights.
 They guarantee one's 'personhood' and freedom from state-
sanctioned interference or violence.
 Are negative rights and immediately realizable rights.
 They include the right to life, liberty and personal
security, equality before the law, protection from
arbitrary arrest and the right to religious freedom and
worship.

35
B. Second generation rights (Social and Economic
Rights/Equality)
 These rights helps to promote individual flourishing, social ,
economic and cultural.
 This category is called positive rights to indicate that their
realization is highly subjected to the economic capability of
states.
 Include the right to education, health & wellbeing, work and
fair payment, form trade unions and free associations,
leisure time, culture/identity and the right to social security.

36
C. Third generation rights (Peace, Development and
Environmental Rights)
 Such (solidarity) rights aimed to guarantee all individuals and
groups have the right to share the benefits of 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 require redistribution of wealth, resources from
developed to developing nations.
 They needs global cooperation and shared responsibility to
world peace, development and the environment.
 Include rights to public goods such as the right to
development, environment and peace.
 They are called emerging rights.
37
5.8.5. Derogations and Limitations on Human Rights
 There are two conditions under which human rights can be
limited or restricted:
1. Limitations: are lawful violations of rights.
 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.
 It can take the form of derogation.
2. Restrictions/Derogation are acceptable or justifiable
restriction of human rights.
 Derogation means a temporary non-application and suspension
of rights by the state in abnormal or emergency situations.

38
5.8.6. Non-derogability of Human Rights
 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.
 There are some rights never be suspended under any
circumstances.

39
Cont’d…
 These non-drogable rights are:
 Right against arbitrary deprivation of life;
 Freedom from torture or cruel, inhuman and degrading
treatment or punishment;
 Freedom from medical or scientific experimentation without
consent;
 Freedom from slavery and servitude;
 Freedom from imprisonment for inability to fulfill a
contractual obligation;
 Prohibition against the retrospective operation of criminal laws
 Right to recognition before the law;
 Freedom of thought, conscience and religion. .
 In Ethiopia FDRE constitution, 1, 18, 25, and sub-Articles 1 and 2
of Article 39 of the Constitution are non-derogable rights.
40
u !!
yo
h a nk
T

41